Non Corrigé
Uncorrected
CR 2010/16
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2010
Public sitting
held on Friday 15 October 2010, at 3 p.m., at the Peace Palace,
President Owada presiding,
in the case concerning the Territorial and Maritime Dispute
(Nicaragua v. Colombia)
Application by Costa Rica for permission to intervene
________________
VERBATIM RECORD
________________
ANNÉE 2010
Audience publique
tenue le vendredi 15 octobre 2010, à 15 heures, au Palais de la Paix,
sous la présidence de M. Owada, président,
en l’affaire du Différend territorial et maritime
(Nicaragua c. Colombie)
Requête du Costa Rica à fin d’intervention
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presiewtada
Vice-Presdenkta
Judges Koroma
Al-Khasawneh
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Xue
Donoghue
Judges ad hoc Cot
Gaja
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : M. Owada,président
viceMpra,ident
KoMroMa.
Al-Khasawneh
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Crinçade
Yusuf
XuMe mes
Dojnogshue,
CotMM.
jugesaja, ad hoc
Cgeffrrr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Nicaragua is represented by:
H.E. Mr. Carlos José Argüello Gómez, Ambassador of Nicaragua to the Kingdom of the
Netherlands,
as Agent and Counsel;
MrA. lexOudeElferink, Deputy-Director, Netherlands Institute for the Law of the Sea,
Utrecht University,
Mr.AlainPellet, Professor at the University ParisOuest, Nanterre-La Défense, Member and
former Chairman of the International Law Co mmission, associate member of the Institut de
droit international,
Mr.PaulReichler, Attorney-at-Law, Foley Hoag LLP, Washington D.C., Member of the Bars of
the United States Supreme Court and the District of Columbia,
Mr.AntonioRemiroBrotóns, Professor of Intern ational Law, Universidad Autónoma, Madrid;
Member of the Institut de droit international,
as Counsel and Advocates;
Mr.RobinCleverly, M.A., DPhil, CGeol, F.G.S., Law of the Sea Consultant, Admiralty
Consultancy Services,
Mr. John Brown, Law of the Sea Consultant, Admiralty Consultancy Services,
as Scientific and Technical Advisers;
Mr. César Vega Masís, Director of Juridical Affairs, Sovereignty and Territory, Ministry of
Foreign Affairs,
Mr. Julio César Saborio, Juridical Adviser, Ministry of Foreign Affai
rs,
Mr. Walner Molina Pérez, Juridical Adviser, Ministry of Foreign Affairs,
Ms Tania Elena Pacheco Blandino, Juridical Adviser, Ministry of Foreign Affairs,
as Counsel;
Ms Clara E. Brillembourg, Foley Hoag LLP, Member of the Bars of the District of Columbia and
New York,
Ms Carmen Martinez Capdevila, Doctor of Public International Law, Universidad Autónoma,
Madrid,
MsAlinaMiron, Researcher, Centre for International Law (CEDIN), University ParisOuest,
Nanterre-La Défense,
Mr. Edgardo Sobenes Obregon, First Secretary, Embassy of Nicaragua in the Kingdom of
the Netherlands,
as Assistant Counsel. - 5 -
Le Gouvernement du Nicaragua est représenté par :
S.Exc.M.CarlosJoséArgüelloGómez, ambassadeur du Nicaragua auprès du Royaume des
Pays-Bas,
comme agent et conseil ;
M. Alex Oude Elferink, directeur adjoint de l’Ins titut néerlandais du droit de la mer de l’Université
d’Utrecht,
M.Alain Pellet, professeur à l’Université de ParisOuest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,
M.PaulReichler, avocat au cabinetFoley Hoag LLP, WashingtonD.C., membre des barreaux de
la Cour suprême des Etats-Unis d’Amérique et du district de Columbia,
M.AntonioRemiroBrotóns, professeur de droi t international à l’Universidad Autónoma de
Madrid, membre de l’Institut de droit international,
comme conseils et avocats ;
M.RobinCleverly, M.A., D.Phil, C.Geol, F.G.S., consultant en droit de la mer, Admiralty
Consultancy Services,
M. John Brown, consultant en droit de la mer, Admiralty Consultancy Services,
comme conseillers scientifiques et techniques ;
M. César Vega Masís, directeur, direction des affaires juridiques, de la souveraineté et du territoire,
ministère des affaires étrangères,
M. Julio César Saborio, conseiller juridique au ministère des affaires étrangères,
M. Walner Molina Pérez, conseiller juridique au ministère des affaires étrangères,
Mme Tania Elena Pacheco Blandino, conseiller juridique au ministère des affaires étrangères,
comme conseils ;
Mme Clara E. Brillembourg, cabinet Foley Hoag LLP, membre des barreaux du district de
Columbia et de New York,
Mme Carmen Martinez Capdevila, docteur en droit international public à l’Universidad Autónoma
de Madrid,
Mme Alina Miron, chercheur au Centre de droit in ternational de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,
M.EdgardoSobrenesObregon, premier secrétaire à l’ambassade du Nicaragua au Royaume des
Pays-Bas,
comme conseils adjoints. - 6 -
The Government of Colombia is represented by:
H.E. Mr. Julio Londoño Paredes, Professor of International Relations, Universidad del Rosario,
Bogotá,
as Agent;
H.E. Mr. Guillermo Fernández de Soto, Chair of the Inter-American Juridical Committee, Member
of the Permanent Court of Arbitration and former Minister for Foreign Affairs,
as Co-Agent;
Mr.JamesCrawford, S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institut de droit international, Barrister,
Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris , Member of the NewYork Bar,
Eversheds LLP, Paris,
Mr.MarceloKohen, Professor of International Law at the Graduate Institute of International and
Development Studies, Geneva; associate member of the Institut de droit international,
as Counsel and Advocates;
H.E. Mr. Francisco José Lloreda Mera, Ambassador of the Republic of Colombia to the Kingdom
of the Netherlands, Permanent Representative of Colombia to the OPCW, former Minister of
State,
Mr. Eduardo Valencia-Ospina, Member of the International Law Commission,
H.E. Ms Sonia Pereira Portilla, Ambassador of the Republic of Colombia to the Republic of
Honduras,
Mr. Andelfo García González, Professor of Interna tional Law, former Deputy Minister for Foreign
Affairs,
Ms Victoria E. Pauwels T., Minister-Counsellor, Ministry of Foreign Affairs,
Mr. Julián Guerrero Orozco, Minister-Counsellor, Embassy of the Republic of Colombia in the
Kingdom of the Netherlands,
Ms Andrea Jiménez Herrera, Counsellor, Ministry of Foreign Affairs,
as Legal Advisers;
Mr. Thomas Fogh, Cartographer, International Mapping,
as Technical Adviser. - 7 -
Le Gouvernement de la Colombie est représenté par :
S. Exc. M. Julio Londoño Paredes, professeur de relations internationales à l’Université del Rosario
de Bogotá,
comme agent ;
S. Exc. M. Guillermo Fernández de Soto, président du comité juridique interaméricain, membre de
la Cour permanente d’arbitrage et ancien ministre des affaires étrangères,
comme coagent ;
M.JamesCrawford, S.C., F.B.A., professeur de droit international à l’Université de Cambridge,
titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
M.RodmanR.Bundy, avocat à la Cour d’appel de Paris, membre du barreau de NewYork,
cabinet Eversheds LLP à Paris,
M. Marcelo Kohen, professeur de droit internationa l à l’Institut de hautes études internationales et
du développement de Genève, membre associé de l’Institut de droit international,
comme conseils et avocats ;
S. Exc. M. Francisco José Lloreda Mera, ambassadeur de la République de Colombie auprès du
Royaume des Pays-Bas, représentant permanent de la Colombie auprès de l’OIAC, ancien
ministre d’Etat,
M. Eduardo Valencia-Ospina, membre de la Commission du droit international,
S. Exc. Mme Sonia Pereira Portilla, ambassadeur de la République de Colombie auprès de la
République du Honduras,
M. Andelfo García González, professeur de droit inte rnational, ancien ministre adjoint des affaires
étrangères,
Mme Victoria E. Pauwels T., ministre-conseiller au ministère des affaires étrangères,
M. Julián Guerrero Orozco, ministre-conseiller à l’ambassade de la République de la Colombie aux
Pays-Bas,
Mme Andrea Jiménez Herrera, conseiller au ministère des affaires étrangères,
comme conseillers juridiques ;
M. Thomas Fogh, cartographe, International Mapping,
comme conseiller technique. - 8 -
The Government of Costa Rica is represented by:
H.E. Mr. Edgar Ugalde Álvarez, Ambassador of Costa Rica to the Republic of Colombia,
as Agent;
Mr. Coalter G. Lathrop, Lecturing Fellow at Duke University School of Law, member of the North
Carolina State Bar, Special Adviser to the Ministry of Foreign Affairs,
Mr. Sergio Ugalde, Member of the Permanent Court of Arbitration, Senior Adviser to the Ministry
of Foreign Affairs, Member of the Costa Rican Bar,
Mr. Arnoldo Brenes, Senior Adviser to the Ministry of Foreign Affairs, Member of the Costa Rican
Bar,
Mr. Carlos Vargas, Director of the Legal Department, Ministry of Foreign Affairs,
as Counsel and Advocates;
H.E. Mr. Jorge Urbina, Ambassador of Costa Rica to the Kingdom of the Netherlands,
Mr. Michael Gilles, Special Adviser to the Ministry of Foreign Affairs,
Mr. Ricardo Otarola, Minister and Consul General of Costa Rica to the Republic of Colombia,
Mr. Christian Guillermet, Ambassador, Deputy Permanent Representative of Costa Rica to the
United Nations Office at Geneva,
Mr. Gustavo Campos, Consul General of Costa Rica to the Kingdom of the Netherlands,
Ms Shara Duncan, Counsellor at the Embassy of Costa Rica in the Kingdom of the Netherlands,
Mr. Leonardo Salazar, National Geographic Institute of Costa Rica,
as Advisers. - 9 -
Le Gouvernement du Costa Rica est représenté par :
S. Exc. M. Edgar Ugalde Álvarez, ambassadeur de la République du Costa Rica auprès de la
République de Colombie,
comme agent ;
M. Coalter G. Lathrop, Lecturing Fellow à la faculté de droit de Duke University, membre du
barreau de l’Etat de Caroline du Nord, conse iller spécial auprès du ministère des affaires
étrangères,
M.SergioUgalde, membre de la Cour perman ente d’arbitrage, conseiller principal auprès du
ministère des affaires étrangères, membre du barreau du Costa Rica,
M.ArnoldoBrenes, conseiller principal auprès du ministère des affaires étrangères, membre du
barreau du Costa Rica,
M. Carlos Vargas, directeur du département juridique du ministère des affaires étrangères,
comme conseils et avocats ;
S. Exc. M. Jorge Urbina, ambassadeur du Costa Rica auprès du Royaume des Pays-Bas,
M. Michael Gilles, conseiller spécial auprès du ministère des affaires étrangères,
M. Ricardo Otarola, ministre et consul général du Costa Rica en République de Colombie,
M. Christian Guillermet, ambassadeur, représentant permanent adjoint du Costa Rica auprès de
l’Office des Nations Unies à Genève,
M. Gustavo Campos, consul général du Costa Rica au Royaume des Pays-Bas,
Mme Shara Duncan, conseiller à l’ambassade du Costa Rica aux Pays-Bas,
M. Leonardo Salazar, Institut géographique national du Costa Rica,
comme conseillers. - 10 -
The PRESIDENT: Please be seated. The sitting is open. The Court meets today to hear the
second round of oral argument of Nicaragua and Co lombia. I shall first give the floor to
His Excellency Ambassador Carlos Argüello Gómez, Agent of Nicaragua.
Mr. ARGÜELLO GÓMEZ:
1. Thank you Mr.President. Mr.President, Members of the Court, good afternoon. Last
Wednesday we witnessed an unusual double r ound of pleadings. First came Nicaragua and
devoted the time allotted to it in order to address the issue presently before the Court which is the
question of the Application of Costa Rica for intervention in this case.
2. Next came Colombia and, whilst occasionally referring en passant to the Costa Rican
Application, it devoted most of the time allotte d to it in order to address the merits of the
Nicaragua v. Colombia case. And it is evident that this was not a reaction to Nicaragua’s
presentation that had immediately preceded it because, apart from some rhetorical remarks on this
presentation, the Colombian argument was based entirely on matters relating to the merits of the
case and not this incidental proceeding.
3. At the opening of his statement the Agent fo r the Republic of Colombia avowed that “it is
not my intention to discuss issues that do not form part of the subject-matter of Costa Rica’s
1
request to intervene” . He then did just that, embarking on an overview of Colombia’s views on
the history of the political geography of the south-western part of the Caribbean. This certainly is
not an issue that formed part of the subject-matte r of Costa Rica’s request to intervene. It had
already been extensively discussed in Colombia’s pleadings on Colombia’s preliminary objections
and again in Colombia’s pleading on the merits. Mr. Bundy and Professor Crawford followed suit.
Their presentations focused on the main elements of Colombia’s case on the merits. Colombia
apparently thinks that if it repeats itself often enough, its views on the merits acquire an appearance
of credibility.
4. An application to intervene is an incidental proceeding and the pleadings should be
addressed to the incidental matter before the Court and not enter into the merits of the case beyond
1
CR 2010/14, p. 10, para. 3 (Londoño). - 11 -
what is strictly necessary for that purpose. This is most imperative during the oral pleadings
because they are by definition held before a pub lic audience and States should not be goaded into
extemporaneously responding to issues that are to be dealt during the merits.
5. Furthermore, as I pointed out in my first presentation, these proceedings represent a very
costly exercise in time and resources especially for Nicaragua. It should also be added that this
also is a very costly exercise in time and resources for the Court. It is unfortunate that it has been
largely wasted by being perverted from incidental proceedings to pleadings on the merits.
6. Colombia has had a two-hour opportunity to argue on the merits of the case and Nicaragua
will only have this hour to respond to both Costa Ri ca’s arguments of yesterday and to Colombia’s
full force excursion into the merits last Wednesd ay. And again Colombia will still have the final
say at the end of this afternoon. Under these circumstances it would be unrealistic for Nicaragua to
attempt to defend the merits of its case in this brief afternoon session.
7. For this reason, Nicaragua generally reserves its position on all statements and claims
made by Colombia on the merits of the case a nd would simply refer the matter to its written
pleadings on the merits which address all the fundamental issues, except of course, the
plaisanteries that occasionally adorned these pleadings.
8. With this said, Nicaragua will limit its reaction to Colombia’s pleading of last Wednesday
to pointing out and putting in true perspective some of the remarks ⎯ if not arguments — made by
Colombia. Naturally Nicaragua can only reserve its position on what Colombia will plead later on
this afternoon. Perhaps it might be shamed into limiting its pleading to the only question presently
before the Court.
9. I will start with a comment on the histori cal record presented by the Agent of Colombia
and very briefly put in true perspective the geography of the area that was described by Mr. Bundy.
10. Mr.President, the Court will forgive the time consumed in responding to the totally
unnecessary presentation by the distinguished Colombia n Agent of the historical record as viewed
by Colombia. This matter is amply dealt with in Nicaragua’s Memorial. But since this is a public
hearing and it was presented publicly, it needs a public, if abridged, response.
11. The distinguished Agent of Colombia presen ted certain images to describe the evolution
of historical title over territory since the early nineteenth century. - 12 -
12. The first image (Graphic CAG 1) portrays Colombia as a sovereign not only over present
day Panama but also over extensive areas of the Caribbean coasts of Nicaragua and Costa Rica and
the islands off the Nicaraguan coast. This is not historically correct. The Vice-Royalty of Santa
Fe, from which Colombia emerged, was a sep arate entity from the Captaincy General of
Guatemala, of which present day Nicaragua and Costa Rica, and their islands, formed a part as
portrayed on the screen before you (CAG 2).
13. The next image presented by Colombia (C AG 3) is supposed to describe the situation
after President Loubet of France in his Arbitral Award on the questions of sovereignty submitted
by Costa Rica and Colombia, determined on 11 September 1900, that the Caribbean coastline of
Costa Rica was part of the territory of the c ountry inherited from the Captaincy General of
Guatemala. It is interesting to point out that Colombia asserted that it had been its intention all
along during the nineteenth century to recognize this territory as part of Costa Rica. This is a
historical distortion ⎯ if this had been so, then why the need of an arbitration? ⎯ and yet
CostaRica has accepted this distortion by its sile nce. The main point is that the Loubet Award
shattered Colombia’s claim to the Caribbean coast not only of Costa Rica but naturally to the whole
question that this area was part of Colombia. The claim of Colombia to the Caribbean coast of
Nicaragua was based on the same arguments and historical precedents as those over the Caribbean
coast of Costa Rica. So in fact this Award r esulted in erasing the green colour over the Caribbean
coast of Nicaragua shown on this image and putting things back as they were in the colonial period:
the uti possidetis juris. (CAG 4: CAG 2)
14. In the Loubet Arbitration, Colombia laid claim to the islands off the Nicaraguan coast.
Since Costa Rica laid no claim to these islands the arbitrator naturally awarded them to Colombia.
Nicaragua was not a party to that Arbitrati on and as soon as it became aware of Colombia’s
machinations, it immediately protested the award of the islands to Colombia. The Minister for
Foreign Affairs of France, Theophile Delcass é, on behalf of PresidentLoubet, responded on
22October1900 that “the rights of Nicaragua over these islands stand unaltered and intact as
heretofore, the Arbiter by no means intended to decide a question not submitted to his judgment” 2.
2
MN, p. 53, footnote 89. - 13 -
15. It was only in 1928 that Nicaragua, then under military occupati on, was constrained to
sign a treaty ceding three islands to Colombia: San Andrés, Providencia and Santa Catalina which
can be seen in the graphic. Title over all the other islets and cays was left intact. In its Judgment of
13December2007, the Court determined that it la cked jurisdiction to consider the question of
sovereignty over these three islands , but that it had jurisdiction to determine the sovereignty over
all the other features. This result is portrayed on the screen. (CAG 5)
16. That is the situation at present and Nicar agua’s Reply and its submissions to the Court
are addressed to the questions over which the Court decided it had jurisdiction.
17. Mr. President, Colombia also presented a distorted vision of the geographical area,
particularly misrepresenting the size and impact of the archipelago of San Andrés and the other
islets and cays in dispute. In the graphic on screen (CAG 6) Colombia portrayed these features as
having a radial projection and impact as formidable as the continental landmass of Nicaragua. The
reality is that the three islands of San Andrés, Providencia and Santa Catalina that are sometimes
referred to as the San Andrés archipelago, have a landmass of approximately 40sqkm. And the
landmass of all the other features — the cays of Roncador, Serrana, Serranilla and Bajo Nuevo —
add up to approximately to 1 sq km. This can be more adequately appreciated in the graphic on the
screen (CAG 7) that even yet portrays these features in a larger size in order to be seen at that scale.
18. Some other questions relating to the merits that were addressed during the pleadings of
Colombia last Wednesday are as follows.
19. A first point concerns the relevant ar ea for the delimitation between Nicaragua and
Colombia. No less than four slides in the judg es’ folder of Colombia’s first round of pleading
3
depict this area as Colombia perceives it . In Colombia’s view the relevant area is located between
the coast of Nicaragua and the islands of San Andrés and Providencia and the minor cays. This
completely ignores the fact that the maritime zones of Nicaragua project a large distance to the east
of these features. As can be appreciated on the figure on the screen (CAG 8), there is no opposite
coast blocking this projection. The relevant area for the delimitation thus includes all of these
3
Tabs 3, 4, 17 and 19. - 14 -
maritime areas. In the case of the continental sh elf it also includes the continental shelf of the
mainland of Colombia, which overlaps with Nicaragua’s continental shelf.
20. Colombia has not given a satisfactory explanation as to why it considers that the relevant
area does not include those areas to the east of the islands of San Andrés and Providencia.
Possibly, Colombia considers that the territorial sea and contiguous zone of the islands and cays —
and apparently also the submerged bank of Quitasueño, which, however, does not generate any
maritime zones— blocks the maritime projection of Nicaragua’s coast. It should be noted that
Colombia, which is not a party to the Unite d Nations Convention on the Law of the Sea
(UNCLOS) and had not previously claimed contigu ous zones, only first argued the relevance of
these zones in its Reply.
21. The territorial sea of San Andrés and Providencia also does not help Colombia in
blocking Nicaragua from the areas to the east of them. The figure you have now before you
4
(CAG9) is from the Judgment in the case between Nicaragua and Honduras . It shows the
delimitation line established by the Court. The delimitation effected by the Court awarded a
number of cays to Honduras at a 12-nautical-mile territorial sea enclave. As can be appreciated,
that territorial sea does not block the maritime projection of the coast of Nicaragua seaward of
those islands.
22. A second recurring theme in Colombia’s pleading is the significance which it attributes
to the islands of San Andrés and Providencia and also to the small cays in the area. In its
Counter-Memorial, Colombia argued that these features have to be treated as a single unit, because
they formed a continuous archipelago and we re not widely dispersed or separated by long
distances 5. As was pointed out in its Reply the isla nds of San Andrés and Providencia are 83 km
6
apart, as can be appreciated in the figure on the screen (CAG 10) . That is, a much larger distance
than that between the Ukrainian mainland an d Serpents’ Island, which is somewhat over
20 nautical miles. The Court in its Judgment in the Black Sea case held that Serpents’ Island was
an isolated island and did not constitute a part of the mainland coast of Ukraine ( Maritime
4
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007 (II), p. 761.
5
CMC, Vol. I, p.350, para. 8.27; RC, p. 240, para. 7.10.
6RN, p. 110, para. 4.14. - 15 -
Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports2009, pp. 109-110,
para.149). Serpents’ Island was treated a separat e unit. Likewise, San Andrés and Providencia
and the other cays have to be treated as separate un its in effecting a maritime delimitation between
Nicaragua and Colombia.
23. In Wednesday’s pleadings Colombia justified its treatment of San Andrés and
Providencia and the other cays by arguing that they were “mid-oceanic islands” 7. Counsel for
Colombia has to be given credit for discovering that the Caribbean Sea is an ocean. However, the
term mid-oceanic in general is reserved for isla nds which are in the middle of the open ocean. A
good example is Chile’s Easter Island in the Pacific Ocean, which is more than 3,500 km from the
continent. Colombia is right in one respect. The prefix “mid” is aptly chosen. San Andrés and
Providencia are right in the middle of Nicaragua’s exclusive economic zone and continental shelf.
24. Other examples of isolated islands which have been given limited or no weight in a
maritime delimitation abound. For instance the Norwegian island of JanMayen was given no
8
weight in the delimitation of the 200-nau tical-mile zones between Iceland and Norway . The
Court, in its decision in the Jan Mayen case, only gave limited weight to the island in the
delimitation with the Danish territory of Greenland ( Maritime Delimitation in the Area between
Greenland and Jan Mayen, Judgment, I.C.J. Reports 1993, p. 38). The continental shelf boundary
agreement between Italy and Tunisia only accords a 13-nautical-mile semi-enclave to the Italian
island of Pantelleria 9, which is 85km from Italy’s Sicily, about the distance between San Andrés
and Providencia. In short, there is no merit to the claim of Colombia that because of their location,
San Andrés and Providencia have to receive full weight in relation to Nicaragua’s mainland coast
and fringing islands.
25. Colombia — and in this case it is seconded by Costa Rica — submits that the continental
shelf beyond 200nautical miles cannot overlap with the 200-nautical-mile exclusive economic
zone 10. No authority was stated to support this proposition. Nicaragua certainly does not agree
7CR 2010/14, p. 33, para. 13 (Crawford).
8
Agreement between Iceland and Norway Concerning Fishery and Continental Shelf Questions of 28 May 1980.
9Agreement between the Government of the Republic of Tunisia and the G overnment of the Italian Republic
concerning the delimitation of the continental shelf between the two countries of 20 Aug. 1971.
1CR 2010/14, p. 32, para. 10 (Crawford); CR 2010/12, p. 26, para. 23 (Brenes). - 16 -
with it. And neither do some other States. In 1997, Australia and Indonesia concluded an
agreement on the delimitation of their maritime zones in the Timor and Arafura Seas 11. Under that
agreement, Australia’s continental shelf beyond 20 0 nautical miles extends to within 200nautical
miles of Indonesia. In 2009 China submitted preliminary information on the outer limits of its
continental shelf beyond 200 nautical miles in the East China Sea in accordance with Article 76 of
the United Nations Convention on the Law of the Sea. The entire East China Sea is within
200 nautical miles of the mainland and islands surrounding it.
26. A final example concerns the Russian Fe deration and Norway. The Russian Federation
made its submission on the outer limits of its continental shelf beyond 200nautical miles in
December 2001. One of the areas concerned is the Barents Sea. In the Barents Sea, the Russian
Federation defined the areas beyond 200 nautical miles by reference to its own 200-nautical-mile
limit. That area in part is within 200 nautical miles of Norway. This year, Norway and the Russian
Federation concluded an agreement on the delimitati on of their maritime boundary in the Barents
12
Sea and the Arctic Ocean . That agreement places areas within 200 nautical miles of Norway on
the Russian side of the maritime boundary. The agreement contains a provision on these areas 13.
That provision is only concerned with the exerci se of exclusive economic zone jurisdiction by the
Russian Federation. There is no need for a si milar provision on continental shelf jurisdiction
because the Russian Federation has a continental shelf beyond 200 nauti cal miles in that area. To
sum up, practice of States which have made important contributions to the law of the sea indicates
that the continental shelf beyond 200 nautical miles and the 200-nautical-mile exclusive economic
zone co-exist.
27. Nicaragua’s interest in the continental shelf beyond 200nautical miles is evident from
any map containing bathymetric data. The one on the screen (CAG11) is a map of the regional
bathymetry of Central America and the Caribbean Sea. It is evident why Panama and Costa Rica,
and for that matter Colombia, have not claimed extensive continental shelf rights. They have none.
11
Treaty between the Government of Au stralia and the Government of the Re public of Indonesia establishing an
exclusive economic zone boundary and certain seabed boundaries of 14 March 1997.
12Treaty between the Kingdom of Norway and the Russi an Federation concerning Maritime Delimitation and
Cooperation in the Barents Sea and the Arctic Ocean of 15 September 2010.
13Art. 3. - 17 -
This is clearer in the graphic on the screen (CAG12) which is a representation of the sea-bed
morphology of the western Caribbean Sea. The green and light blue areas represent the shallower
parts of the western Caribbean. Nicaragua’s preliminary submission under Article 76 of the United
Nations Convention on the Law of the Sea concer ned the outer limits of its continental shelf
beyond 200nautical miles to the south-west of the Nicaraguan Rise and Lower Nicaraguan Rise,
which are the natural prolongation of the Nicaraguan land territory.
28. The most egregious aspect of Colombia’s first round of pleading is its treatment of the
regional practice in the western Caribbean. All other States according to Colombia are conducting
their business peacefully except for Nicaragua, which allegedly shows no respect for the rights of
14
third States . This stands things on their head. Colombia has done everything possible to prevent
Nicaragua from enjoying the full benefits of its maritime zones. To that end, Colombia has for
some 40 years sought to turn the 82nd meridian into a maritime boundary, even resorting to the use
of its superior force in order to keep Nicaragua locked in. The Agent for Colombia this Wednesday
stressed that Colombia has negotiated boundaries with its neighbours and Nicaragua remained on
the side and now is seeking to affect the rights of Colombia’s treaty partners 1. Indeed, Colombia’s
grand scheme left Nicaragua no choice but to subm it two of its maritime delimitations in the
Caribbean Sea to this Court. Contrary to what Colombia is insinuating, there is nothing sinister
about this. What is more, it was the only avenue left to Nicaragua to break out of the straightjacket
of the 82nd meridian.
29. Mr.Reichler will address further the ques tion of the Application to intervene by Costa
Rica. At present some brief observations on this matter.
30. The applicant State has come to inform the Court that its legal interests may be affected
by the decision of this case. One of its main legal interests turns out to be a Treaty it signed with
Colombia in 1977 that has not been ratified because the Congress of Costa Rica throughout the past
30years has refused to ratify it since it is perceived as damaging the interests of Costa Rica.
Nicaragua has the congressional records that are p ublicly available and that give a most vivid
picture of the heated debates on this issue. The most heated debates centred on the fact that the
14
CR 2010/14, p. 12, para. 11 (Londoño); pp. 28-29, para. 50 (Bundy); p. 31, para. 4 (Crawford).
1Ibid., p. 11, paras 8-9 (Londoño); p. 29, para. 52 (Bundy). - 18 -
Costa Rican Parliament has constantly consider ed that the Executive branch should not have
accepted a Treaty that gives equal weight to the is land of San Andrés and to the mainland of Costa
Rica. It will be most interesting to hear the reaction when it becomes publicly known that it was
not even the island of San Andrés that was given full weight but the insignificant cays of
Albuquerque as was explained by Colombian counsel. We are not going to put before the Court
the hundreds of pages of these records that are naturally well known to Costa Rica and
presumably — since they are public records — to Colombia, the other party to that Treaty. But this
Treaty that has proven unwanted in Costa Rica duri ng the past 33 years is now portrayed as being
at the heart of Costa Rican legal interests.
31. Aside from these internal issues in Costa Rica, the fact is that this case has no bearing on
the existence of that Treaty. As I stated in my first pleading, if Nicaragua’s claims prevail, this will
not vitiate the Treaty. On the other hand, on a pr actical level, Nicaragua does not claim that small
islands and cays have equal wei ght as continental landmasses and thus could hardly make claims
on Costa Rica’s maritime spaces that go beyond the limits of what the 1977 Treaty attributes to
Costa Rica. If Nicaragua prevails against Colombia it could only be Costa Rica itself that would
want to ignore the implications of that Treaty and try to negotiate a better deal with Nicaragua. But
this will be its own doing and not as a consequence of any judgment of the Court on this case.
32. Finally, Mr. President, a personal note on th e pleadings of Costa Rica. Both counsel for
Costa Rica, Mr.Lathrop and Mr.Ugalde, referred to Nicaragua’s pleadings in Land, Island and
Maritime Frontier Dispute (between El Salvador/Honduras: Nicaragua intervening) searching for
similarities between Nicaragua’s arguments of 20 years ago and the present situation. I particularly
thank Mr. Lathrop for reminding me and citing one of the arguments I made in order to justify that
the Application of Nicaragua be admitted. Yes, Nicaragua was prodigious in its arguments but . . .
the important thing for present purposes is that the Court was not satisfied with them and denied
Nicaragua’s request to intervene in the maritime delimitation. So reviving these arguments is
flattering but they are old clothes already discarded by the Court.
33. Thank you, Mr. President, distinguished Members of the Court, for your kind attention.
34. I would now ask you, Mr. President, to call Mr. Reichler to the podium. - 19 -
The PRESIDENT: I thank His Excellency Ambassador Carlos José Argüello Gómez for his
presentation. And now I shall give the floor to Mr. Paul Reichler.
RMEr. HLER:
COSTA R ICA HAS FAILED TO SATISFY THE REQUIREMENTS OF A RTICLE 62
1. Mr. President, distinguished Members of the Court, good afternoon.
2. Nothing has changed since Nicaragua addressed you on Wednesday.
3. Costa Rica still can’t show you how the decision in this case might affect their legal
interests, whichever way they want to define those interests.
4. In fact, they all but admit it.
5. It was quite revealing how Mr.Lathrop began his speech yesterday. I am sure this was
noted by the Court. But let me remind you exactly what he said:
“It is not our intent at this stage, nor is it the purpose of these legal arguments,
to inform the Court of the full extent of Co sta Rica’s interest. Informing the Court of
those interests will occur in the secondstage of the intervention process when ⎯ if
Costa Rica is permitted to intervene ⎯ we will draft a Written Statement and make
observations during the arguments on the merits. . . . Costa Rica’s Application has the
purpose, not of informing, but of requesting the permission of the Court to intervene.
It will be during the intervention itself that Costa Rica informs the Court of the full
extent of its legal interest.”
6. Now, that is quite a remarkable statement. And it is perfectly clear what it means. That is
how a talented lawyer tells a court that he has noevidence to offer in support of the ruling he is
requesting, but the court should rule in his client’s favour anyway, based on a promise that, after
the ruling, the Court will be provided with the eviden ce needed to support it. It’s like trying to go
to see a Wagner opera without having bought a ticket, by promising that you’ll pay for it later, after
the grand finale. Not as a lawyer, but as a parent , I’ve used the same technique. Eat all your
broccoli now, Jessica ⎯ I would say to my daughter ⎯ and maybe later we’ll go out for ice cream.
Maybe later. She knew better than to accept that deal.
16
CR 2010/15, p. 10, para. 3 (Lathrop) - 20 -
[SLIDE 1: PSR 1]
7. Let’s take a look at where Costa Rica’s counsel ended up yesterday, in their final
17
graphic . Both Nicaragua and Colombia have argued th at Costa Rica’s real area of interest is the
one coloured in cerulean blue, to the east of the delimitation line agreed in the 1977 Treaty between
Costa Rica and Colombia. To be sure, Colombia says this is only Costa Rica’s area of interest
vis-à-vis Colombia itself, and that Costa Rica might have a bigger area of interest vis-à-vis
Nicaragua. I will come to that bigger area in a moment.
8. It is apparent from this map ⎯ Costa Rica’s map ⎯ that Nicaragua’s boundary claims in
this case against Colombia do not “pierce” 18⎯ that’s Mr. Lathrop’s word, and it’s a good one ⎯
do not “pierce” Costa Rica’s cerulean blue area of interest. According to Costa Rica’s map, this
area of interest is only pierced by Colombia’s purported boundary claim. But we heard extensively
from Colombia’s counsel on Wednesday; and they have explained that the arrow at the end of their
putative line is directional only, and not intended to indicate extension; and that Colombia intends
for its line to respect Costa Rica’s interests by stopping short of the putative equidistance line
19
between Costa Rica and Nicaragua . [Build1.] So this arrow, again borrowing Mr.Lathrop’s
terminology, is a “pointing” arrow, not a “piercing” one. As such, nobody has any problem with it.
Not Costa Rica, nor Colombia, and not Nicaragua. This line, Colombia’s line, should the Court
adopt it ⎯ and Nicaragua certainly believes it should not ⎯ does not enter into or affect Costa
Rica’s area of interest.
9. We come now to Costa Rica’s expanded area of interest, which consists of the cerulean
blue area plus the purple area adjacent to it. For the sake of this argument, let us, just for the
moment, agree with Costa Rica and Colombia that this larger area is where Costa Rica has legal
interests vis-à-vis Nicaragua. I spent the first ha lf of my speech on Wednesday demonstrating that
Costa Rica has failed to show that the decision in this case will have any effect on this expanded
area 20. Nothing has changed. After two rounds of oral pleadings, Costa Rica has still failed to
17Costa Rica judges’ folder, tab 18.
18
CR 2010/15, p. 14, para. 10 (Lathrop).
19CR 2010/14, p. 35, paras. 17-19 (Crawford).
20CR 2010/13, pp. 32-36, paras. 14-26 (Reichler). - 21 -
demonstrate at all ⎯ let alone demonstrate convincingly ⎯ that this area could be impacted by the
Court’s decision.
10. Costa Rica’s counsel continue to argue th at Nicaragua’s boundary claims, if adopted by
the Court, would impact this area. But how? They make no argument that the enclaves Nicaragua
has placed around San Andrés or any other Colombian islands, encroach on their area of interest.
And they make no argument that the claim line in Nicaragua’s Reply impacts the area. Even if
Nicaragua were still claiming the line requested in its Memorial, the arrow at the end serves the
same purpose as the one at the end of Colombia’s clai m line. It shows direction, not extension. It
was intended by Nicaragua to respect the agreed and existing boundaries not only of Costa Rica,
but also of Panama. It, too, is a pointing arrow, not a piercing one.
[Slide 2: PSR 2]
21
11. This is from Nicaragua’s Reply . It shows Nicaragua’s perception of the area of
overlapping entitlements between Ni caragua and Colombia, as of the time it was filed. This is a
Nicaraguan chart that Costa Rica’s counsel and Colombia’s counsel chose to ignore. You will note
that, in the south and the east, Nicaragua took pain s to exclude all areas claimed by Costa Rica and
Panama under their respective maritime boundary treaties with Colombia. All treaty lines ⎯
between Colombia and Panama in blue, between Panama and Costa Rica in red, and between Costa
Rica and Colombia in green ⎯ are fully respected in Nicaragua’s chart. The argument by counsel
this week that Nicaragua does not respect the rights of Costa Rica or other third States, or that it
seeks a delimitation in areas claimed by those States, is just plain wrong. As Nicaragua recognized
in its Memorial: “the Court lacks competence to make determinations which may affect the claims
of third States”22.
[Slide 3: PSR 3]
12. Until Costa Rica applied to intervene in this case, Nicaragua had no inkling that it
claimed to have legal interests in areas beyond the 1977 Treaty line. Colombia appears to be just
as surprised by this new claim. In regard to wh at Costa Rica now calls its “minimum area of legal
interest”, my very good friend and frequent co lleague, ProfessorCrawford, said on Wednesday:
21
RN, Vol. II, figures 6-8.
2MN, para. 3.92. - 22 -
“Nothing like it has been seen before.” 23 Now that we have all been introduced to it, the apparent
and unintended “piercing” caused by a boundary line Nicaragua is no longer claiming could easily
be avoided ⎯ as a purely hypothetical matter since this no longer represents Nicaragua’s claim ⎯
by retracting the directional arrow slightly to the north-east. [Build 2.]
13. In the second round, Costa Rica’s counsel made clear that they are no longer arguing that
any of these boundary lines claimed, or formerly claimed, by Nicaragua, pierce their expanded area
of interest. Instead, they argued that it is Nica ragua’s supposed claim to the waters between its
Caribbean coast and its requested continental shelf boundary with Colombia that encroaches on
Costa Rica’s area of interest 2. So, it is no longer any boundary line requested by Nicaragua that
causes a problem for Costa Rica; it is the clai m to the waters west of the continental shelf
boundary line that causes the alleged problem.
14. This argument by Costa Rica’s counsel is simply unsustainable. I cite no less an
authority than ProfessorCrawford, who said this in the first round: “as we have seen, and it is
fundamental to understanding the problem in front of the Court, maritime boundaries are
established on a relative, relational basis, by each State vis-à-vis each other relevant coastal
State” 25.
We agree.
15. And it is exactly in this context that Ni caragua claims that it is entitled to a maritime
boundary vis-à-vis Colombia at the outer limit of its extended c ontinental shelf, as set forth in the
Reply, and as depicted by the easternmost black line on Costa Rica’s map. The consequence of the
adoption by the Court of this boundary with Colombia, is that, as between those two States only ,
the waters on the Nicaraguan, or western side of the boundary would appertain to Nicaragua not
Colombia, except for the enclaved areas around Colombia’s islands.
16. This boundary between Nicaragua and Colombia would not have any impact on the
rights of Costa Rica, Panama or any other third State. It is “relational” ⎯ to use
Professor Crawford’s word ⎯ only to Nicaragua and Colombia; it is a boundary relative only to
2CR 2010/14, p. 36, para. 21 (Crawford).
24
CR 2010/15, p. 16, para. 16 et seq. (Lathrop).
2CR 2010/14, p. 37, para. 23 (Crawford). - 23 -
Nicaragua and Colombia. Nicaragua has never intended it to be applicable to any third State, as it
thought it had made perfectly clear in its written pleadings 26, and certainly emphasized in the first
round, when it said that “it makes no claim in these proceedings, vis-à-vis Costa Rica or any other
27
third State, of entitlement to the waters west of this proposed boundary line” . Article 59, and the
consistent practice of the Court in avoiding running into third States’ interests, assure the relational
nature of the delimitation in question in this case.
17. Counsel for all three States ⎯ Colombia, Costa Rica and Nicaragua ⎯ have agreed in
these hearings that the Court has found ways in all prior maritime delimitation cases to avoid
28
affecting the interests of third States .
18. This is what Mr.Lathrop said ⎯ and we agree with him: “[t]he Court, in the past, has
been very careful to use only pointing arrows”, rather than piercing ones 29. His concern, he says, is
30
with “the southern limit of Nicaragua’s claimed area” . The dispositive answer to this is that
Nicaragua is not seeking the establishment of any so uthern limit in this case, and the Court is not
called upon to provide one. Nicaragua is not cl aiming a boundary with Costa Rica, only with
Colombia, and that boundary ⎯ all counsel agree ⎯ must necessarily follow a north/south
direction, establishing limits only in the east for Nicaragua, and the west for Colombia 31. A
boundary with Costa Rica, by contrast, would necessarily follow an east/west direction, separating
Nicaragua to the north from Costa Rica to the south. Neither Colombia nor Nicaragua seeks such a
line in this case.
19. Costa Rica’s counsel admit that the Court is fully capable of deciding this case in a
manner that does not affect Costa Rica’s legal interests.
“When the Court delimits the boundary between the Parties somewhere within
the disputed area, Costa Rica hopes that the line will end well short of the area in
which Costa Rica has an interest of a legal nature.... From that endpoint, located
26
MN, para. 3.92 (“the only consistent pr inciple to emerge from the case law is the principle that the Court lacks
the competence to make determinations which may affect the claims of third States”).
27
CR 2010/13, p. 33, para. 16 (Reichler); emphasis added.
28
See, e.g., CR 2010/12, pp. 43-44, paras. 41-42 (Lathrop) ; CR 2010/13, p. 30, para. 8 (Reichler); CR 2010/14,
p. 16, para. 10 (Bundy), p. 40, para. 32 (Crawford); CR 2010/15, p. 14, para. 10 (Lathrop).
29CR 2010/15, p. 14, para. 10 (Lathrop).
30Ibid., p. 16, para. 17 (Lathrop).
31CR 2010/12, p. 43, para. 39 (Lathrop); CR 2010/14, p. 33, para. 11 (Crawford). - 24 -
safely beyond Costa Rica’s area of interest, an arrow could be used to i32icate the
further continuation of the boundary toward Costa Rica’s area.”
Precisely! Nicaragua could not agree more. And it is not asking the Court for anything different.
20. So what is the problem? According to Co sta Rica: “To be certain that this arrow will
point and not pierce, the Court must first be awar e of the full extent of that area and only Costa
33
Rica can provide the information.” Well, here, on the map, Costa Rica’s figure 18, is a graphic
depiction of exactly how they defined their area of interest in the application to intervene.
Nicaragua agrees that any delimitation line establis hed by the Court should stop well short of the
area of interest shown on this map, and terminate in an arrow pointing in the direction of Costa
Rica’s area. This, we submit, the Court would do in any event. Problem solved. There is no way
the decision in this case would affect Costa Rica’s legal interests.
21. So at the end of the oral pleadings by Co sta Rica we are left with this. None of the
boundary lines Nicaragua claims or has claimed ha ve any impact whatsoever on the expanded area
in which Costa Rica now claims a legal interest. Nicaragua’s claim to maritime areas west of the
proposed continental shelf boundary with Colombia is opposable only to Colombia, and not to
Costa Rica or any other State. It, too, has no impact on Costa Rica’s legal interests. Costa Rica has
still failed to show how any of Nicaragua’s claims would result in a decision by the Court that
could affect its legal interests.
22. What we are ultimately left with, ⎯ all we are left with ⎯ is Mr.Lathrop’s so-called
34
“two stages of intervention” . He says we are now only in “the first of two stages in the overall
intervention process”, and he assures us that “inf orming the Court of Costa Rica’s interests will
occur in the second stage of the process” 35. Pay me now, and I will deliver the goods later, and I
am sure you will like them. It would make intervention under Article 62 remarkably easy if a State
could intervene first and then show how its inter est could be affected by the decision later. The
Court will note from the compte rendu that Costa Rica cited no authority in support of this
interpretation of the rules.
32CR 2010/15, p. 17, para. 18 (Lathrop).
33
Ibid.
34Ibid., p. 10, para. 2 (Lathrop).
35Ibid., para. 3 (Lathrop). - 25 -
23. Article81 appears to say the opposite. It says that an application for permission to
intervene under the terms of Article 62 of the Statute “ shall set out . . . the interest of a legal nature
36
which the State applying to intervene consid ers may be affected by the decision . . .” . Article 81
does not say that the application can set out only a part of the interest that might be affected, or that
the application need not set out the interest at all, leaving it to the discretion of the applicant State
to wait until after it has been allowed to intervene to set out its full interest. Colombia’s counsel
agree that “the burden is on the applicant State to demonstrate that it has an interest of a legal
nature that may be affected by a decision in the case within the meaning of Article62 of the
Statute” 37. Counsel to Costa Rica agree that to satisfy this burden “Costa Rica must demonstrate
convincingly that it has an interest of a legal nature that may be affected by a decision of this Court
38
in this case.” If not now, when?
24. It is not as if Costa Rica needs more time to figure out what its legal interests are.
Costa Rica was given the written pleadings in September 2008. They waited until February 2010
to submit their application to intervene. They have had ample time to develop their maritime
claims ⎯ time enough to develop the claim they presen ted here, which more than doubles the area
of interest that they were claiming for the past 33 years. If they wanted more, the Application was
the place to show it.
25. Put simply they do not get another bite at the apple. There is no mythical “second
stage” 39 to the intervention process where all truths, until then hidden, are finally revealed.
26. Nicaragua does not contend that, on an application to intervene, the applicant must give
an exhaustive description of its argument. But more must be shown than a mere statement of an
alleged legal interest, and an apprehension that it co uld be affected by the decision in the case. In
dismissing Nicaragua’s application to intervene in the El Salvador/Honduras case, the Chamber of
the Court said that Article62 required the applicant “to show in what way [its] interest may be
36
Rules of Court, Art. 81(2) (a); emphasis added.
37
CR 2010/14, p. 14, para. 3 (Bundy).
38CR 2010/15, p. 10, para. 2 (Lathrop); emphasis added.
39Ibid., para. 3 (Lathrop). - 26 -
40
affected . And “there needs finally to be clear identification of any legal interests that may be
affected by the decision on the merits. A general apprehension is not enough.” 41 The full Court
adopted the same standard for intervention unde r Article62 in the most recent decision on this
subject, in the Indonesia/Malaysia case ( Sovereignty over Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), Application to Intervene, Judgment, I.C.J. Reports 2001, p. 598, para. 58).
27. The now generally accepted “Oil-Platforms test” may provide a useful analogy.
28. Just as when an applicant State seeks to establish the jurisdiction of the Court, it has to
show that “the rights which it invokes in, and seeks to protect by, its request . . . have a sufficient
connection with the merits of the case fo r the purposes of the current proceedings” ( Pulp Mills on
the River Uruguay (Argentina v. Uruguay), Provisional Measures, I.C.J. Reports 2007 (I) , p.11,
42
para. 30) , similarly, a State applying to intervene should be held to show how the future judgment
of the Court might have an impact on its alle ged interest. This Costa Rica has not done.
Furthermore, as a would-be intervener, Costa Rica must show that its alleged legal interest “may be
affected by the decision in the case ”. And, clearly, this case can only be defined in relation to the
claims of the Parties. In the Arrest Warrant case the Court recalled:
“the well-established principle that ‘it is th e duty of the Court not only to reply to the
questions as stated in the final submissions of the parties, but also to abstain from
deciding points not included in those submissions’ ( Asylum, Judgment, I.C.J. Reports
1950, p. 402)” . 43
Costa Rica has not shown that there is anything in the submissions of either Party that would call
upon the Court to make a decision that might affect its interests.
29. Colombia, despite its effort to do so, is no more able to justify Costa Rica’s application
to intervene than Costa Rica is. On Wednesday, Colombia’s counsel identified no boundary line
claimed or formerly claimed by Nicaragua that pierces Costa Rica’s alleged area of interest,
broadly or narrowly defined. The best they could do was echo Costa Rica’s argument that
40Land, Island and Maritime Frontier Dispute (El Salvador /Honduras), Application to Intervene, Judgment,
I.C.J. Reports 1990, p. 118, para. 61; emphasis added.
41Ibid., para. 62; emphasis added.
42
See, also, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, separate opinion of
Judge Abraham, I.C.J. Reports 2006, p.140, para.10; Oil Platforms (Islamic Republic of Iran v. United States of
America), Preliminary Objection, Judgm ent, I.C.J. Reports 1996 (II) , p.810, para.16, and separate opinion of
Judge Higgins, ibid., p. 856.
43Arrest Warrant of 11 April 2000 (D emocratic Republic of the Congo v. Belgium), Judgment,
I.C.J. Reports 2002, p. 18, para. 43; see, also, separate opinion of Judge Koroma, ibid., p. 59, para. 3. - 27 -
Nicaragua’s claim against Colombia in regard to the waters west of Nicaragua’s continental shelf
boundary were somehow opposable to Costa Rica, which it plainly is not, as I have already
explained. For all intents and purposes, Colombia admits that Costa Rica cannot meet the
established standard for intervention under Ar tic62, in the elegant phraseology of
Professor Crawford. Here is how he tried to lower the bar so that Costa Rica could be admitted as
an intervener in this case:
“it is sufficient . . . that an interest of a legal nature maybe affected by this decision:
precisely how, and with what consequences, is not a matter to be decided in terms of
the admissibility of an application to intervene but in terms of the merits” .44
This is plainly inconsistent with the decision on intervention in the El Salvador/Honduras case,
especially with the language I quoted, and in the Indonesia/Malaysia case, which relied on, and
quoted approvingly, the same language.
30. Neither the real Article62 standard refl ected in these cases, nor the conveniently lower
one advocated by my friend Professor Crawford, is met by Costa Rica here.
31. Costa Rica argues that a decision by the Court, if favourable to Nicaragua, “could well
result in the disruption and, possibly, outright elimination of a long-time maritime boundary
45
relationship with Colombia” . But this allegation does not show that Costa Rica’s area of legal
interests would be affected by the decision. Costa Rica’s legal interests are properly defined by its
1977 Treaty with Colombia, regardless of how the Court decides the boundary dispute between
Nicaragua and Colombia. That Treaty cannot be vitiated by anything the Court decides in this
case. As between Costa Rica and Colombia, it will continue to have whatever legal validity it has
now.
32. Furthermore, Nicaragua maintains its assertion that Costa Rica’s renunciation of
entitlement to areas beyond the agreed boundary line in the 1977 Treaty with Colombia is erga
omnes as to other States. I would think, Mr.President, that it is hardly necessary to recall that a
treaty establishing a boundary gives birth to an ob jective situation, which becomes in a sense
disconnected with the instrument that created it. The well-known dictum in Libya/Chad
underscores in unambiguous terms this objective character:
44
CR 2010/14, p. 41, para. 36 (Crawford).
4CR 2010/15, p. 15, para. 12 (Lathrop). - 28 -
“A boundary established by treaty thus achieves a permanence which the treaty
itself does not necessarily enjoy. The treaty can cease to be in force without in any
way affecting the continuance of the boundary.... [W]hen a boundary has been the
subject of agreement, the continued existe nce of that boundary is not dependent upon
the continuing life of the treaty under which the boundary is agreed.” ( Territorial
Dispute (Libyan Arab Jamahiriya/Chad), I.C.J. Reports 1994, p. 37, paras. 72-73.) 46
33. Nicaragua submits that what is true for land boundaries ought to be equally true for
maritime boundaries. In regard to the erga omnes character of such treaties, here is how the
distinguished Arbitral Tribunal in the Eritrea/Yemen case put it:
“Boundary and territorial treaties made between two parties are res inter alios
acta vis-à-vis third parties. But this special category of treaties also represents a legal
reality which necessarily impinges upon thir d states, because they have effect erga
omnes . . .” .7
34. The import of this is simply that Costa Rica cannot define now its legal interests as
extending beyond the area delimited by its 1977 Treaty with Colombia, shown in cerulean blue on
Costa Rica’s figure 18.
35. Costa Rica argues that if Nicaragua were to prevail,
“it would create a vacuum in the areas of the south-western Caribbean now under
Colombian jurisdiction. Costa Rica is not precluded in any way from filling that
vacuum to the fullest extent possible in accordance with principles of international
law.” 48
That, presumably, is the maritime area described in its Application to intervene, and depicted in its
figure 18, which encompasses the area shown in purple. Even if, quod non, Costa Rica could assert
legal interests in this expanded area beyond its 1977Treaty lines, it would make no difference in
regard to its failure to meet the standards of Ar ticle62. Even the expanded area of interest now
claimed by Costa Rica would not ⎯ could not ⎯ be affected by the judgment of the Court in this
case. Costa Rica has failed to meet its burden of showing that it would. Its Application to
intervene must be denied.
36. Thank you Mr. President, distinguished Members of the Court, for your kind attention. It
is always a great honour for me to appear before you, and this case is no exception. My only regret
46The Court said further: “The establishment of this boundary is a fact which, from the outset, has had a legal life
of its own, independently of the fate of the 1955 Treaty. Once agreed, the boundary stands, for any other approach would
vitiate the fundamental principle of the stability of boundari es, the importance of which has been repeatedly emphasized
by the Court ( Temple of Preah Vihe ar, I.C.J. Reports 1962 , p.34; Aegean Sea Continental Shelf, I.C.J. Reports 1978 ,
p. 36).” See, also, Art. 62 (2) (a) of the 1969 Vienna Convention on the Law of Treaties; and Arts. 11 and 12 of the 1978
Vienna Convention on Succession of States in respect of Treaties.
47
Eritrea/ Yemen, Territorial Sovereignty and Scope of the Dispute, Award, 9 October 1998, para. 153.
48CR 2010/15, p. 16, para. 14 (Lathrop). - 29 -
is that my dear friend and mentor, Ian Brownlie, wa s not here in his customary place beside us. In
other ways he will always be with us. I ask th at you call Ambassador Argüello to the podium for
the presentation of Nicaragua’s formal Submissions.
The PRESIDENT: I thank Mr.Paul Reichler for his presentation. Now I give the floor to
HisExcellency Ambassador CarlosJoséArgüello Gómez, Agent of the Republic of Nicaragua to
present the Agent’s conclusion.
Mr.ARGÜELLO GÓMEZ: Thank you Mr.President. I shall now read the final
conclusions of the Government of the Republic of Nicaragua.
FINAL SUBMISSON
In accordance with Article 60 of the Rules of the Court and having regard to the Application
for permission to intervene filed by the Republic of Costa Rica and oral pleadings, the Republic of
Nicaragua respectfully submits that the Applicati on filed by the Republic of Costa Rica fails to
comply with the requirements established by th e Statute and the Rules of the Court, namely,
Article 62, and paragraph 2 (a) and (b) of Article 81, respectively.
Mr.President, to conclude our participation in this stage of the oral proceedings, I wish to
express on behalf of the Republic of Nicaragua, of our distinguished counsel, the skilful advisers
and counsellors, of all the members of our delegation our deepest appreciation to you,
Mr.President, and to each of the distinguished Members of the Court for the attention you have
kindly provided to our pr esentations. May I also offer our thanks, Mr.President, to the Court’s
Registry and to the team of interpreters and tran slators who have not only had to listen to and read
our presentations but even repeat them. Our rec ognition is also extended to the delegations of
Costa Rica and Colombia and their counsel for their contribution to these proceedings. Finally, I
must personally and publicly thank the Nicaraguan team that has given its best in all this
endeavour. Thank you, Mr. President. - 30 -
The PRESIDENT: Thank you, Ambassador Carl os José Argüello Gómez. That concludes
the second round of oral argument of Nicaragua.
The Court rose at 4.00 p.m.
___________
Audience publique tenue le vendredi 15 octobre 2010, à 15 heures, au Palais de la Paix, sous la présidence de M. Owada, président, en l'affaire du Différend territorial et maritime (Nicaragua c. Colombie) - Requête du Costa Rica à fin d'intervention