6358 T&F Latin America and the International Court of Justice.

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Latin America and the

International Court of
Justice
Contributions to international law

Edited by Paula Wojcikiewicz Almeida

and Jean-Marc Sorel
6358 T&F Latin America and the International Court of Justice.qxp_Royal_A 11/08/2016 14:10 Page iv

First published 2017

by Routledge
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and by Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2017 selection and editorial matter, Paula Wojcikiewicz Almeida and

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British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data

Names: Almeida, Paula Wojcikiewicz, 1980-editor. | Sorel, Jean-Marc, editor.
Title: Latin America and the International Court of Justice: Contributions to
International Law/Edited by Paula Wojcikiewicz Almeida and Jean-Marc
Sorel.
Description: New York: Routledge, 2016. | Series: Routledge research in
international law | Includes bibliographical references and index.
Identifiers: LCCN 2016026067 | ISBN 978-1-138-85857-2 (hbk) | ISBN
978-1-315-71789-0 (ebk)
Subjects: LCSH: Latin America—Foreign relations. | International Court of
Justice. | International law—Latin America.
Classification: LCC KZ4116 .L38 2016 | DDC 341.5/52098—dc23
LC record available at https://lccn.loc.gov/2016026067

ISBN: 978-1-138-85857-2 (hbk)

ISBN: 978-1-315-71789-0 (ebk)

Typeset in Galliard
by FiSH Books Ltd, Enfield
6358 T&F Latin America and the International Court of Justice.qxp_Royal_A 11/08/2016 14:10 Page v

Contents

Notes on contributors ix
List of abbreviations xiii
List of maps xvi
Editors’ introduction xvii

PART I
The historical contribution of Latin America to the
development of international law through adjudication 1

1 Identity formation, theorization and decline of a Latin

American international law 3
LILIANA OBREGÓN

2 The influence of the Latin American doctrine on

International Law: The rise of Latin American doctrines at
The Hague Academy during the early twentieth century 15
RICARDO ABELLO-GALVIS AND WALTER AREVALO-RAMIREZ

3 Latin America and the II Hague Peace Conference of 1907 28

ANTÔNIO AUGUSTO CANÇADO TRINDADE

4 Latin America and the Central American Court of Justice 39

ROSA RIQUELME

5 Latin America and the Permanent Court of International

Justice 50
MIRIAM COHEN
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Notes on contributors

Contributor’s biography by order of appearance in the book:

Liliana Obregón is an Associate Professor at the Universidad de los Andes
in Bogotá, Colombia and was a Postdoctoral Researcher at the University
of Helsinki, Finland. She received an SJD at Harvard University; an MA,
SAIS at The Johns Hopkins University (Bologna-Washington D.C.); and
a Law degree from the Universidad de los Andes.
Ricardo Abello-Galvis is Principal Professor of Public International Law of
the Universidad del Rosario Law School in Bogotá, Colombia. He is a
Member of the Permanent Court of Arbitration – PCA (2014–2019);
Director/Editor of the ACDI – Anuario Colombiano de Derecho
Internacional; and Former President of the Colombian Academy of
International Law.
Walter Arevalo-Ramirez is a Professor of Public International Law –
Comparative Law and a Member of Anuario Colombiano de Derecho
Internacional (ACDI). He received LL.M Master of Laws in International
Law (Summa Cum Laude) and LL.B.-Political Scientist, Postgraduate in
Constitutional Law at Stetson College of Law, Gulfport, Florida and
obtained his PhD at the Universidad del Rosario Law School in Bogotá.
Antônio Augusto Cançado Trindade is a Judge of the International Court
of Justice, a Former President of the Inter-American Court of Human
Rights, Emeritus Professor of International Law of the University of
Brasilia and of Brazil’s Diplomatic Institute Rio Branco, a Member of the
Curatorium of the Hague Academy of International Law and of the
Institut de Droit International.
Rosa Riquelme is a Professor of International Law at the University of
Murcia (Spain) and a Visiting Fellow at the Human Rights
Implementation Centre of the University of Bristol (UK) (2013).
Miriam Cohen is an Assistant Professor at Bora Laskin Faculty of Law at
Lakehead University in Thunder Bay, Ontario, Canada and formerly
served as Associate Legal Officer at the International Court of Justice.
6358 T&F Latin America and the International Court of Justice.qxp_Royal_A 11/08/2016 14:10 Page 15

2 The influence of the Latin

American doctrine on
International Law
The rise of Latin American doctrines
at The Hague Academy during the
early twentieth century
Ricardo Abello-Galvis and
Walter Arévalo-Ramírez

The entry of Latin America into the community of nations is one of the
most important facts in the history of civilization. It resulted not only in
widening the field occupied by International Law but also in radically
modifying its character.
(Manuel Alejandro Álvarez. 1909. Judge of the International Court of
Justice (ICJ) from 1944 to 1955)

I Introduction: two meanings of ‘doctrine’ in

International Law
‘Doctrine’ in International Law has two principal meanings. A doctrine is a
particular form of state-practice, unilateral or collective, which the state has
declared through a formal statement of its sovereign will, being political or
legal interest, intention or expected behavior.1
Formal statements by high authorities, carrying the name of the politician
that conceived them (e.g. Drago doctrine) is the usual way of expressing
state doctrine. They are sovereign messages to the international community
regarding the position of the state in particular matters.
On the contrary, ‘the teachings of the most highly qualified publicists’2
(Statute of the ICJ art. 38 (1–d)), are also commonly recognized by inter-
national lawyers as doctrine (doctrina). This, especially in Latin America and
Europe, thanks to their collective roots in civil law, is a legal system in which
the scholar’s interpretation is highly regarded as a subsidiary source of law.3

1 Rubin, A., ‘International Legal Effects of Unilateral Declarations’ AJIL, 71, 1977, 1.
2 United Nations, Statute of the I.C.J., 18 April 1946.
3 Peil, M., ‘Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the
International Court of Justice’, Cambridge Journal of International & Comparative Law,
1, 2012, 136.
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16 Abello-Galvis and Arévalo-Ramírez

The quest to define the influence of the Latin American doctrine in

International Law must consider both meanings of the word, and recognize
the importance to those that proclaimed, developed and promoted such
doctrines, they being Latin American scholars who, during the early twenti-
eth century, yielded enormous influence in International Law conventions
and academic institutions.
There are early writings by Latin American scholars who have studied the
possibility of a ‘Latin American international law’.4 Such scholars have deliv-
ered their teachings at The Hague Academy of International Law
(hereinafter ‘The Academy’), which since its inception in 1923 is acknowl-
edged as being the most renowned annual International Law course as well
as a unique intercultural legal forum.5
It is from these sources that we intend to recreate the emergence of the
most influential doctrines of International Law that originated in Latin
America and then affected the corpus of International Law.
We will present a brief retrospection of the courses that Latin American
scholars presented at The Academy during the first decades of the twentieth
century. Their intention was to promote Latin American doctrines and
regional concepts on various legal issues, coupled with the continent’s
proposals for the future organization of a growing international community.
Furthermore, we will provide a review of the legal practices and doctrines
that emerged from Latin America during the nineteenth and twentieth
centuries, which grew beyond a regional doctrine and ended up influencing
the development of modern institutions of International Law.
The legal issues found in the courses presented by J. M. Yepes at The
Academy in 19306 and 1934,7 which are among the first legal and historical
efforts of a scholar to demonstrate the influence of Latin American doctrine
in the progressive development of modern International Law, inspire this
review. Along with the earlier works8 of Judge Alejandro Álvarez who was the
principal promoter of the notion of ‘Latin American International Law’.9
Both, pioneers in addressing the same questions that we pose in this publi-
cation on the impact of Latin American doctrines in International Law.

4 Álvarez, A., ‘Latin America and international law.’ AJIL 3.2, 1909, 270.
5 Gormley, W. P., ‘The Hague Academy of International Law: A Study in Intercultural
Education and Communication’, Journal of Legal Education, 1961, 512–5.
6 Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit internatio-
nal public et privé’, RCADI, 32, 1930.
7 Yepes, J. M., ‘Les problèmes fondamentaux du droit des gens en Amérique’, RCADI, 47,
1934.
8 Álvarez, A., ‘Le droit international américain: son fondement-sa nature d’après l’histoire
diplomatique des états du nouveau monde et leur vie politique et économique’, Paris: A.
Pedone, 1910.
9 Álvarez, A., ‘Latin America and international law.’ AJIL 3.2, 1909, 269–353.
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Latin American doctrine on International Law 17

II Regional doctrines at The Hague during the first half

of the twentieth century
The impact following the participation of Latin American States in interna-
tional conferences during the first half of the twentieth century was
undeniable. A reflection of such legal influence was the presence of Latin
American scholars, as well as diplomats in the first courses of The Academy.
This period is considered the golden age of Latin American international
legal thinking prior to the decline of the movement in the second half of the
century.10
From 1923 to 1947, the most influential legal scholars of the region regu-
larly visited The Hague and lectured for the Academy’s annual courses. They
shared the influential legal doctrines that Latin America had to offer with the
world, proving to its interlocutors that their history of independence had
created a regional legal consciousness of its own.11

A. Peaceful settlement of disputes and the need of a World Court

During the first course of The Academy in 1923, Francisco León de La
Barra, former Secretary of State for Foreign Relations and former President
of Mexico (1911), delivered a course on pacific settlement of disputes,12 the
first of its kind at The Academy. It reflected the views of Latin American
states regarding dispute resolution, which were later included in instruments,
such as The Pact of Bogotá.
Francisco León de La Barra was a pioneer in asserting that despite the rele-
vance of arbitration for regional disputes during the nineteenth century,13 in
topics such as international boundaries and sovereign debt,14 the progression
to this was the establishment15 of a permanent world court.

10 Lorca, A. B., ‘International Law in Latin America or Latin American International Law-
Rise, Fall, and Retrieval of a Tradition of Legal Thinking and Political Imagination.’
Harvard International Law Journal, 47, 2006, 283.
11 Obregón, L., ‘Construyendo la región americana: Andrés Bello y el derecho internacional’,
La idea de América en el pensamiento ius internacionalista del siglo XX., Instituto Fernando
el Católico, IFC, 2010.
12 De La Barra, F., ‘La médiation et la conciliation internationales’, RCADI, 1, 1923,
553–68.
13 Summers, L., ‘Arbitration and Latin America’, California Western. International Law
Journal, 3, 1972, 1.
14 For example, the arbitrations regarding borders between Colombia and Venezuela, and
between Guatemala and Honduras: Scott, J., ‘The Swiss Decision in the Boundary Dispute
between Colombia and Venezuela.’ AJIL, 16.3, 1922, 428–31.
15 De La Barra, F., ‘La médiation et la conciliation internationales’, RCADI, 1, 1923,
563–65.
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18 Abello-Galvis and Arévalo-Ramírez

B. The Monroe Doctrine, self-determination and non-intervention

In 1924, Simón Planas-Suárez, Minister Plenipotentiary of Venezuela at The
Hague, Rome, Vienna and Lisbon, delivered a course at The Academy on
the extension of the Monroe Doctrine in South America.16
Planas-Suárez explained how the Monroe doctrine was put into practice
by Latin American states primarily through diplomacy. He demonstrated
how the doctrine of the United States, in relation to the rejection of foreign
intervention in the region by former colonial powers during the early nine-
teenth century,17 was subsequently embraced and then transformed by the
Latin American countries according to their own views on the definition of
independence and self-determination. These values were later acknowledged
in the Pan-American Conferences that inspired a true Latin American spirit
regarding regional identity in the shape of Pan-Americanism and shared legal
values, which included republicanism and non-intervention.18

C. Diplomacy, arbitration, the urge for international

organizations and Uti Possidetis Iuris
In 1925, Alberto Guani, Uruguay’s Delegate at the League of Nation’s
Council, presented a lecture at The Academy regarding Latin American prac-
tices in foreign relations that proved their international solidarity, from the
time of their independence to their participation in the League of Nations.
According to Guani, the practices that demonstrated the spirit of cooper-
ation that characterized Latin American International Law included: (i) the
early projects of an American Confederation; (ii) the ongoing Pan-American
Conferences; (iii) the expansion of the Drago doctrine for the rejection of
armed intervention as a means of debt collection; and (iv) the collective
proclamation of arbitration as the preferred method of dispute settlement, to
be included in the 1883 Conference in Caracas and promoted by the Latin
American states at the Second Peace Conference at the 1907 Hague
Conference, this the result of their conspicuous participation.19
Guani presented uti possidetis iuris as a Latin American principle that
assisted in the avoidance of regional boundary conflicts thanks to its recog-
nition by most countries in the region,20 and as an effective mechanism to
claim sovereignty over territories inherited from the Spanish Crown admin-
istrative divisions.21 This principle is also accompanied by the Latin American

16 Planas-Suárez, S., ‘L’extension de la doctrine de Monroe en Amérique du Sud’, RCADI,

5, 1924, 267–366.
17 Hughes, C., ‘Observations on the Monroe doctrine’, American Bar Association Journal, 1,
1923, 559–66.
18 Planas-Suárez, op. cit., p. 299.
19 Hicks, F. C., ‘The equality of States and the Hague Conferences’, AJIL, 1908, 530–61.
20 Guani, A., ‘La solidarité internationale dans l’Amérique Latine’, RCADI, 8. 1925, 293–
310.
21 Guani, op. cit., p. 310.
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Latin American doctrine on International Law 19

reluctance to embrace res nullius, which helped to avoid conflicts regarding

territorial conquest among the republics in Latin America.22

D. Pan-Americanism, sources, harmonization and codification of

International Law
In The Academy’s course of 1928, José Francisco Urrutia, Colombian
Diplomat and Permanent Representative to the League of Nations Assembly,
who later served as a Permanent Judge of the Permanent Court of
International Justice (PCIJ) at The Hague,23 delivered a lecture regarding
the codification of International Law in Latin America.
Urrutia described the region as a leader in legal codification, breaking
down24 how many principles of International Law were proclaimed by young
Latin American republics over the course of six Pan-American Conferences
and their resulting treaties. These included: condemnation of territorial
conquest (later codified in the Organization of American States [OAS] and
UN Charters),25 the naturalization of foreign individuals, human rights, navi-
gable international watercourses, reduction of armed forces, ius in bellum
and the duties and rights of states in the event of civil strife. The region also
advanced in terms of the codification of private International Law,26 and the
ideal of a Pan-American Union that would later lead to the OAS, the need
for a permanent world court and the call for a global effort of codification
and harmonization of International Law.

E. The Latin American experience with international tribunals,

collective security and the League of Nations
Former Guatemalan Minister of Foreign Affairs and Member of the
Permanent Court of Arbitration at the time, José Matos, delivered a course
during the 1929 sessions of The Academy, reviewing the main contributions
of Latin America to the League of Nations.
He considered that the 1826 Congress of Panama, convened by Simón
Bolivar, was a blueprint for the Paris Conference that led to the League of
Nations as its principal organs, such as the Assembly and the Council, were

22 Kohen, M. G., ‘La contribución de América Latina al desarrollo progresivo del Derecho
Internacional en materia territorial’, Anuario Español de Derecho Internacional XVII,
2001, 64.
23 Quintana, J. J., ‘The Latin American Contribution to International Adjudication: The Case
of the International Court of Justice’, Netherlands International Law Review, 39.01, 1992,
127–54.
24 Urrutia, F. J., ‘La codification du droit international en Amérique’, RCADI, 22, 1928, 81–
236.
25 UN Charter Article 2(4).
26 Lorenzen, E. G., ‘Pan-American Code of Private International Law’, Tulane. Law. Review,
4, 1929, 499.
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20 Abello-Galvis and Arévalo-Ramírez

inspired by the Panama institutions. Indeed, the use of thematic commissions

to solve international disputes was a shared trait. Both conferences upheld
the ideal of the implementation of a collective security system and a non-
aggression pact that would bind its members.
Matos highlighted Latin America as an example of dispute settlement and
judicial effectiveness thanks to the region’s experience with the Central
American Court of Justice (Corte de Justicia Centroamericana),27 the first
permanent international court in history. The Court was the result of the
Washington Conference of 1907 that created a system of cooperation
between Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua.
This system was based on a series of conventions regarding peace and
amity, extradition, communications, governmental coordination and the
Tobar doctrine on the prohibition of granting recognition to governments,
which resulted from a coup d’état.
The Court’s example substantially influenced the development of the
practice and procedure of future international tribunals. The rulings were
binding upon the members of the Washington Agreement, and the Court
had jurisdiction to solve disputes involving treaty conflicts of any nature
between and among its five member-states. It also had jurisdiction over
claims addressed by individuals of Central American countries against any
member-state for violation of treaties. This procedure envisaged an early
version of the principle of exhaustion of local remedies.28 It allowed claims
involving human rights violations, as well as the possibility for individuals to
submit cases against the state, not covered by a treaty, under mutual
consent.29
Despite its short-term existence, the Court delivered rulings that still
today hold influence in International Law. Examples worthy of mention
include its ruling in the 1917 case involving El Salvador and Nicaragua,
regarding historic bays30 and the conditions required for a gulf to be declared
as such, which was a centerpiece for the debate31 in the 1992 ruling of the
ICJ in the case El Salvador/Honduras: Nicaragua Intervening.32
Rodrigo-Octavio de Langgaard Menezes, President of the Brazilian
Delegation at the 1st Assembly of the League of Nations, delivered a course

27 Not to be confused with the Corte Centro-Americana de Justicia (Central American Court
of Justice), a Tribunal founded in 1993.
28 Hudson, M. O., ‘The Central American Court of Justice’, AJIL, 1932, 759–86.
29 Matos, J., ‘L’Amérique et la Société des Nations,’ RCADI, 28, 1929, 1–104.
30 Ruling of the Central American Court of Justice in the case between El Salvador v.
Nicaragua. Judgment of 9 March 1917; AJIL. Judicial Decisions Involving Questions of
International Law, 11, 1917, 703.
31 Abello-Galvis, R., ‘Eaux et baies historiques en droit international’, Estudios Socio-Jurídicos,
5, n.1, 2003, 33–76.
32 Land, Island and Maritime Dispute (El Salvador/Honduras: Nicaragua. intervening),
I.C.J. Reports 1992, p. 351. International Court of Justice, September 11, 1992.
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Latin American doctrine on International Law 21

at The Academy during the 1930 session. The subject was the legal traditions
that were entrenched in the colonial epoch of the continent and that, based
on the indigenous experience, shaped modern legal principles applied to the
region, such as the rights and duties during occupation and the limits on
government and civil liberties.33

F. Jesús María Yepes and the study of Latin American doctrines as

developers of International Law
Jesús María Yepes was a Colombian diplomat, International Law professor,
Senator, Delegate of Colombia at the Assembly of the League of Nations
(1934–9) and Plenipotentiary of Colombia at the San Francisco Conference.
As the signatory of the United Nations Charter, he proposed the second line
of article 2 of the Charter, regarding good faith in the fulfillment of interna-
tional obligations. Yepes was one of the most influential promoters of the
Latin American ideal for an organization of states34 and the need for a perma-
nent court.35 In the sessions of 1930,36 193437 and 1947,38 he delivered a
series of lectures that widely assessed the question of the contribution of
Latin America to the development of International Law and the principal
doctrines and legal matters that are at the forefront of such a contribution.
An invitee on three occasions to deliver courses at The Academy, Yepes
was honored and internationally recognized as a leading scholar – an honor
he shares with only a few internationally acclaimed legal scholars, such as
Roberto Ago and Hans Kelsen, thus accorded by their number of invitations
to lecture.39 Following the thematic structure his lectures, which propelled
Latin American doctrines into the forefront as true initiators of the most
universal concepts of International Law, we will finally present a review of
doctrines, principles and ideas that constitute the principal contribution of
the region to the development of International Law.

33 Octavio, R., ‘Les sauvages américains devant le droit’, RCADI, 31, 1930, 177–292.
34 Yepes, J. M., ‘Philosophie du Panamericanisme et organisation de la paix’, La Bacconnière,
1945.
35 Yepes, J. M., ‘Commentaire théorique et pratique du Pacte de la Société des nations et des
statuts de l’Union panaméricaine’, Vol. 2. Paris: A. Pedone, 1934, 375.
36 Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit internatio-
nal public et privé’, RCADI 32, 1930, 691–800.
37 Yepes, J. M., ‘Les problèmes fondamentaux du droit des gens en Amérique’, RCADI, 47,
1934, 1–144.
38 Yepes, J. M., ‘Les accords régionaux et le droit international’, RCADI, 71, 1947, 227–
344.
39 Abello-Galvis, R., ‘Editorial’, ACDI – Anuario Colombiano de Derecho Internacional 1, n.
1, 2008, 7–11.
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22 Abello-Galvis and Arévalo-Ramírez

III Latin American practices and doctrines that

contributed to the development of modern
International Law institutions
As mentioned above, the ideal of an organization of states was always in the
Latin American mindset regarding International Law. From the Congress of
Panama to the region’s attendance at the Second Peace Conference at the
Hague 1907, their role in the League of Nations and the San Francisco
Conference, the nations of the ‘New World’ have always been promoters of
two principles that are a prerequisite for the development of many legal
doctrines in public International Law. Namely, international solidarity
through lawfulness and the ideal of an organized international society with
permanent institutions.

A. International organizations and compulsory jurisdiction of

international courts
The work of the Brazilian delegate, Raul Fernandes, is recognized as one of
the most valuable contributions within the Advisory Committee appointed
by the League of Nations to work on the constitution of a permanent court
leading to the creation of the PCIJ (1922–46). He championed the legal
equality of states before the Court and the binding effect of its rulings as a
jurisdictional mechanism not restricted to a mere arbitration.40 Regarding the
scope of the Court’s jurisdiction, Latin American delegations also promoted
the compulsory jurisdiction of the Court for all disputes involving members
of the League, but this proposal was not well received by European nations.41
To break this deadlock, Fernandes proposed the historic article 36 (2) of
the PCIJ Statute, which would later become article 36 (2) of the ICJ Statute.
This article permits states to declare at any time that they recognize the
Court’s jurisdiction as compulsory ipso facto and without special agreement,
in relation to any other state accepting the same obligation. This procedure
has been adopted by many modern courts and has effectively motivated
inter-state judicial settlement of disputes.42

B. The practice of codifying International Law and the expansion of

codified Latin American principles
Latin America has contributed to consolidating the codification of
International Law as a desirable state practice. Multiple institutions, such as

40 Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit internatio-

nal public et privé’, RCADI, 32, 1930, 712.
41 Fernandes, R., ‘Nonagésimo Aniversário – Conferências e Trabalhos Esparsos’, Vol. 1, Rio de
Janeiro, M.R.E., 1967. 174.
42 Cançado Trindade, A. A., ‘The construction of a humanized international law: a collection
of individual opinions (1991–2013)’, Leiden: Brill Nijhoff, 2014, 525.
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Latin American doctrine on International Law 23

the International Law Commission of the United Nations and the

International Committee of the Red Cross, share this practice. The contri-
bution of the continent in this matter not only reflects the aspiration of
codifying International Law, but also the constant need to codify regional
practices, as demonstrated by Francisco José Urrutia in his course at The
Academy. The first Six Pan-American Conferences provide a shining exam-
ple of this practice.
Furthermore, since the Panama Congress in 1826,43 the region pressed for
the codification of international practices. One of the goals of the congress
organized by Bolivar was, indeed, the compilation of all rules and legal prin-
ciples applicable to the relationship among Latin American countries, as well
as that of the region with other states.
During the 1847–8 American Congress, in Lima, it was proclaimed that
codification provided the means of unifying the rules applicable to Latin
American states. It was considered the only way by which they could appear
as a united family of peoples before the international community.44 In the
Confederation Treaty, the region codified its practices in relation to naval
warfare, including collective defense, flags and the propriety of vessels, inno-
cent passage, port blockade and other issues that are currently part of the
modern law of the sea.45
A second codification process played a major role in private International
Law: the 1888–9 Congress of Montevideo. It aimed to codify a long list of
issues, as follows: conflict of laws in civil and commercial matters, intellectual
property, choice of law and forum, legal personality and nationality. One of
its groundbreaking contributions was the proclamation of lex domicilii, a
common practice among Latin American states, as a legal principle. At the
time, European nations preferred nationality instead of domicile as criteria to
resolve conflicts of laws. The Montevideo Congress, however, helped to
promote the use of lex domicillii worldwide.

C. The Latin American origin of the law of war

Yepes and many historians of international humanitarian law affirm that Latin
American doctrine was of the utmost importance to the proclamation of
many principles of ius in bello. They also viewed the 1820 Armistice and the
Treaty for the Regularization of the War of the same year, between Simón
Bolivar and the Spanish Commander-in-Chief, Pablo Morillo, as one of the
first treaties, if not the first, to effectively codify and apply the rules of war to
an ongoing conflict. The treaty proclaimed most humanitarian rules of war
of the time and included a very specific set of rules regarding treatment and

43 Treaty of Perpetual Union, League and Confederation, Panama, 15 July, 1826.

44 Congress of Lima. ‘Protocolo de la Conferencia del 20 de Diciembre de 1847’. 1847.
45 Garcia-Amador, F. V., ‘The Latin American contribution to the development of the law of
the sea’, AJIL, 68.1, 1974, 33–50.
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24 Abello-Galvis and Arévalo-Ramírez

exchange of prisoners of war, protection of civilians, rules applicable to occu-

pied territories and rules of conduct for the belligerents.46
This treaty is said to have inspired the rules included in the 1858 Treaty
of Paris ending the Crimean War. Its humanitarian formulas inspired most
humanitarian rules proclaimed during the 1907 Peace Conference at The
Hague, along with new proposals made by Latin American representatives,
such as the ban on anchored submarine contact mines. The majority of these
rules regarding armed conflict provided precious input for future confer-
ences on the laws of war, such as the First Geneva Convention in 1864,
which Latin American countries greatly participated in, the 1949 Geneva
Conventions and their protocols.

D. The early Latin American condemnation of war

Latin America as a continent was pioneering in the condemnation of war by
means of conventional instruments. The Panama Congress proclaimed that
war was contrary to international morality, while the First Pan-American
Conference, in 1889, banned the right of conquest from Latin American
practice, i.e. the prohibition of offensive wars. During the Second Peace
Conference at The Hague, Latin American delegations addressed reserva-
tions to the ‘Porter Proposition’ asserting that coercive means were not
allowed for the settling of international disputes or to recover debt. They also
stated that arbitration should be applied as the mandatory dispute settlement
mechanism, and not just a mere prerequisite to be exhausted before war
could be declared.
The efforts to ban war during the fifth Pan-American Conference47 and
the procedure introduced by the Mexican and Brazilian delegations at the
sixth Pan-American Conference both proclaimed the prohibition of war in
the following terms: ‘1) Every act of aggression is illegal, and therefore, is
prohibited, 2) The American States shall apply all the peaceful meanings
available to solve disputes that may arise between them’.48
These early formulations on the prohibition of war inspired the Paris
Treaty (Briand-Kellogg Pact) and inspire modern instruments, such as the
United Nations Charter and the Pact of Bogotá.49

46 Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit internatio-

nal public et privé’, RCADI, 32, 1930, 740
47 Treaty to avoid or prevent Conflicts between the American States, signed at Santiago, Chile,
on May 3, 1923.
48 Journal of Sessions of the VI Pan-American international Conference, La Habana. February
1928.
49 Villalta Vizcarra, A. E, ‘La Contribución de América al Derecho Internacional’, El Derecho
Internacional en las Américas: 100 años del Comité Jurídico Interamericano, OAS, 2006.
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Latin American doctrine on International Law 25

E. Other principles found in Latin American legislation regarding

International Law
Finally, Yepes and Álvarez early identified many International Law principles
in their municipal law, from Andres Bello Codes, to the first national consti-
tutions of the new American republics. Some of these principles enshrined in
municipal law include the abolition of slavery, the freedom of commerce in
times of war, the legal equality of foreigners, the freedom of the seas, the
limitation of diplomatic immunity and the reluctance to extradite individuals
accused of political charges.50

Bibliography
Abello-Galvis, R., ‘Eaux et baies historiques en droit international’, Estudios Socio-
Jurídicos 5, n.1, 2003, 33–76.
Abello-Galvis, R., ‘Editorial’, ACDI – Anuario Colombiano de Derecho Internacional
1, n. 1, 2008, 7–11.
Álvarez, A., ‘Latin America and international law’, AJIL 3.2, 1909, 269–353.
Álvarez, A., Le droit international américain: son fondement-sa nature d’après l’his-
toire diplomatique des états du nouveau monde et leur vie politique et économique,
Paris: A. Pedone, 1910.
Cançado Trindade, A. A., The construction of a humanized international law: a collec-
tion of individual opinions (1991–2013), Leiden: Brill Nijhoff., 2014, 525.
De Lapradelle, A. G., ‘Latin America at the Hague Conference.’, Yale Law Journal
17, 1907, 270.
Fernandes, R., ‘Nonagésimo Aniversário – Conferências e Trabalhos Esparsos’, Vol. 1,
Rio de Janeiro, M.R.E., 1967. 174.
Garcia-Amador, F. V., ‘The Latin American contribution to the development of the
law of the sea.’, AJIL 68.1, 1974, 33–50.
Gormley, W.P., ‘The Hague Academy of International Law: A Study in Intercultural
Education and Communication’, Journal of Legal Education 1961, 512–5.
Guani, A., ‘La solidarité internationale dans l’Amérique Latine’, RCADI 8, 1925,
203–340.
Hicks, F. C., ‘The equality of States and the Hague Conferences.’, AJIL 2.3, 1908,
530–61.
Hudson, M. O., ‘The Central American Court of Justice.’, AJIL 26.4, 1932,
759–86.
Hughes, C., ‘Observations on the Monroe doctrine’, American Bar Association
Journal 1, 1923, 559–66.
Kohen, M. G., ‘La contribución de América Latina al desarrollo progresivo del
Derecho Internacional en materia territorial’, Anuario Español de Derecho
Internacional XVII, 2001, 64.

50 Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit internatio-

nal public et privé’, RCADI, 32, 1930, 750.de l’Am lt international public et privé,
RCADI, Vol. 32, 1930, 750.
6358 T&F Latin America and the International Court of Justice.qxp_Royal_A 11/08/2016 14:10 Page 26

26 Abello-Galvis and Arévalo-Ramírez

León de La Barra, F., ‘La médiation et la conciliation internationales’, RCADI 1,

1923, 553–68.
Lorca, A. B., ‘Law in Latin America or Latin American International Law-Rise, Fall,
and Retrieval of a Tradition of Legal Thinking and Political Imagination.’,
Harvard International Law Journal 47, 2006, 283.
Lorenzen, E. G., ‘Pan-American Code of Private International Law.’, Tulane. Law.
Review 4, 1929, 499.
Matos, J., ‘L’Amérique et la Société des Nations’, RCADI 28, 1929, 1–104.
Obregón, L., ‘Construyendo la región americana: Andrés Bello y el derecho interna-
cional.’, La idea de América en el pensamiento ius internacionalista del siglo XX.
Instituto Fernando el Católico. IFC, 2010.
Obregón, L., ‘Regionalism Constructed: A Short History of Latin American
International Law’ European Society of International Law (ESIL) Conference Paper
Series No. 5/2012.
Octavio, R., ‘Les sauvages américains devant le droit’, RCADI 31, 1930, 177–292.
Peil, M., ‘Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by
the International Court of Justice’, Cambridge Journal of International &
Comparative Law 1, 2012, 136.
Planas-Suarez, S., ‘L’extension de la doctrine de Monroe en Amérique du Sud’,
RCADI 5, 1924, 267–366.
Quintana, J. J., ‘The Latin American Contribution to International Adjudication:
The Case of the International Court of Justice.’, Netherlands International Law
Review 39.01, 1992, 127–54.
Rubin, A., ‘International Legal Effects of Unilateral Declarations’, AJIL 71, 1977, 1.
Scott, J., ‘The Swiss Decision in the Boundary Dispute between Colombia and
Venezuela.’, AJIL 16.3, 1922, 428–31.
Summers, L., ‘Arbitration and Latin America.’ California Western. International
Law Journal 3, 1972.
Urrutia, F. J., ‘La codification du droit international en Amérique’, RCADI 22,
1928, 81–236.
Villalta Vizcarra, A. E., ‘La Contribución de América al Derecho Internacional’, ‘El
Derecho Internacional en las Américas: 100 años del Comité Jurídico
Interamericano’. OAS. 2006.
Yepes, J. M., ‘Les problèmes fondamentaux du droit des gens en Amérique’, RCADI,
47, 1934, 1–144.
Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit inter-
national public et privé’, RCADI 32, 1930, 691–800.
Yepes, J. M., Les accords régionaux et le droit international, RCADI 71, 1947,
227–344.
Yepes, J. M., Commentaire théorique et pratique du Pacte de la Société des nations et
des statuts de l’Union panaméricaine 2, Paris: A. Pedone, 1934, 375.
Yepes, J. M., Philosophie du Panamericanisme et organisation de la paix. Neuchâtel :
La Bacconnière, 1945.
Yepes, J. M., Philosophie du panaméricanisme et organisation de la paix: le droit
panaméricain. Éditions de la Baconnière; Paris, 1945.
Yepes, J. M., ‘La contribution de l’Amérique latine au développement du droit inter-
national public et privé’, RCADI 32, 1930
Yepes, J. M., ‘Les problèmes fondamentaux du droit des gens en Amérique’, RCADI
47, 1934.
6358 T&F Latin America and the International Court of Justice.qxp_Royal_A 11/08/2016 14:10 Page 27

Latin American doctrine on International Law 27

Jurisprudence
Land, Island and Maritime Dispute. (El Salvador/Honduras: Nicaragua interve-
ning), Judgment, I.C.J. Reports 1992, p. 351.
Ruling of the Central American Court of Justice in the case between El Salvador v.
Nicaragua, Judgment of 9 March 1917; AJIL. Judicial Decisions Involving
Questions of International Law. Vol. 11, 1917, 703.