a Corte Internacional de Justiça se pronunciou no seguintes termos, em 20/12/1988, invocando um precedente da antecessora Corte Permanente de Justiça Internacional, julgado em 26/7/1927

The Parties have devoted some argument to a question defined by them as that of the burden of proof: whether it is for Nicaragua to show the existence of jurisdiction for the Court to deal with its claims, or for Honduras to establish the absence of such jurisdiction. Each of them has cited, in support of its contention, the Court’s dictum that “it is the litigant seeking to establish a fact who bears the burden of proving it” (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), I.C.J. Reports 1984, p. 437, para. 101). The existence of jurisdiction of the Court in a given case is however not a question of fact, but a question of law to be resolved in the light of the relevant facts. The determination of the facts may raise questions of proof. However the facts in the present case – the existence of the Parties’ declarations under Article 36 of the Statute, the signature and ratification of the Pact of Bogota, etc. – are not in dispute; the issue is, what are the legal effects to be attached to them? The question is whether in case of doubt the Court is to be deemed to have jurisdiction or not. This question has already been considered by the Permanent Court of International Justice in the case concerning the Factory at Chorzów, Jurisdiction, when it observed: “It has been argued repeatedly in the course of the present proceedings that in case of doubt the Court should decline jurisdiction. It is true that the Court’s jurisdiction is always a limited one, existing only in so far as States have accepted it; consequently, the Court will, in the event of an objection – or when it has automatically to consider the question – only affirm its jurisdiction provided that the force of the arguments militating in favour of it is preponderant. The fact that weighty arguments can be advanced to support the contention that it has no jurisdiction cannot of itself create a doubt calculated to upset its jurisdiction. When considering whether it has, jurisdiction or not, the Court’s aim is always to ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it.” (P.C.I.J., Series A, No. 9, p. 32.) The Court will therefore in this case have to consider whether the force of the arguments militating in favour of jurisdiction is preponderant, and to “ascertain whether an intention on the part of the Parties exists to confer jurisdiction upon it”.