Audience publique tenue le vendredi 22 octobre 2010, à 15 h 55, au Palais de la Paix, sous la présidence de M. Owada, président, en l'affaire du Différend territorial et maritime (Nicaragua c. Colombi

Non Corrigé
Uncorrected

CR 2010/23

Cour internationale International Court
de Justice of Justice

LAAYE THAEGUE

ANNÉE 2010

Audience publique

tenue le vendredi 22 octobre 2010, à 15 h 55, 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 Honduras à fin d’intervention

________________

COMPTE RENDU

________________

YEAR 2010

Public sitting

held on Friday 22 October 2010, at 3.55 p.m., at the Peace Palace,

President Owada presiding,

in the case concerning the Territorial and Maritime Dispute
(Nicaragua v. Colombia)

Application by Honduras for permission to intervene
____________________

VERBATIM RECORD
____________________ - 2 -

Présents : M. Owada,président
KoMroMa.

Al-Khasawneh
Simma
Abraham
Keith

Sepúlveda-Amor
Bennouna
Crinçade
Yusuf

XuMe mes
Dojnogshue,
CotMM.
jugesaja, ad hoc

Cgefferr,

⎯⎯⎯⎯⎯⎯ - 3 -

Present: Presewtada
Judges Koroma

Al-Khasawneh
Simma
Abraham
Keith

Sepúlveda-Amor
Bennouna
Cançado Trindade
Yusuf

Xue
Donoghue
Judges ad hoc Cot
Gaja

Registrar Couvreur

⎯⎯⎯⎯⎯⎯ - 4 -

Le Gouvernement du Nicaragua est représenté par :

S.Exc.M.CarlosJoséArgüelloGómez, ambassadeur du Nicaragua auprès du Royaume des

Pays-Bas,

comme agent et conseil ;

S. Exc. M. Samuel Santos,

ministre des affaires étrangères du Nicaragua ;

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.JohnBrown, R.D., M.A., F.R.I.N., F.R.G.S., 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.EdgardoSobenesObregon, premier secrétaire à l’ambassade du Nicaragua au Royaume des
Pays-Bas,

comme conseils adjoints. - 5 -

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;

H.E. Mr. Samuel Santos,

Minister for Foreign Affairs of Nicaragua;

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., DPh., CGEOL., F.G.S., Law of the Sea Consultant, Admiralty

Consultancy Services,

Mr.JohnBrown, R.D., M.A., F.R.I.N., F.R.G.S., 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 Martínez 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. - 6 -

Le Gouvernement de la Colombie est représenté par :

S. Exc. 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 mini stre des affaires étrangères de la République de
Colombie,

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 (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 de la République de Colombie,

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 de la République de Colombie,

Mme Victoria E. Pauwels T., ministre-conseiller au ministère des affaires étrangères de la
République de Colombie,

M. Julián Guerrero Orozco, ministre-conseiller à l’ambassade de la République de la Colombie aux

Pays-Bas,

MmeAndreaJiménezHerrera, conseiller au ministère des affaires étrangères de la République de
Colombie,

comme conseillers juridiques ;

M. Thomas Frogh, cartographe, International Mapping,

comme conseiller technique. - 7 -

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 of the Republic
of Colombia,

as Co-Agent;

Mr.JamesCrawford, S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institute of International Law, 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 of the Republic of Colombia,

Ms Victoria E. Pauwels T., Minister-Counsellor, Ministry of Foreign Affairs of the Republic of
Colombia,

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 of the Republic of Colombia,

as Legal Advisers;

Mr. Thomas Frogh, Cartographer, International Mapping,

as Technical Adviser. - 8 -

Le Gouvernement du Honduras est représenté par :

S. Exc. M. Carlos López Contreras, ambassadeur, conseiller national au ministère des affaires
étrangères,

comme agent ;

SirMichaelWood, K.C.M.G., membre du barreau d’Angleterre, membre de la Commission du
droit international,

Mme Laurence Boisson de Chazournes, professeur de droit international à l’Université de Genève,

comme conseils et avocats ;

S. Exc. M. Julio Rendón Barnica, ambassadeur, ministère des affaires étrangères,

S. Exc. M. Miguel Tosta Appel, ambassadeur, président de la commission hondurienne de
démarcation au ministère des affaires étrangères,

S. Exc. M. Sergio Acosta, chargé d’affaires a.i. à l’ambassade du Honduras au Royaume des
Pays-Bas,

M. Richard Meese, avocat à la Cour d’appel de Paris,

M. Makane Moïse Mbengue, docteur en droit, maître de conférences à l’Université de Genève,

Mlle Laurie Dimitrov, élève-avocat, barreau de Paris, cabinet Meese,

M. Eran Sthoeger, faculté de droit de la New York University,

comme conseils ;

M. Mario Licona, ministère des affaires étrangères,

comme conseiller technique. - 9 -

The Government of Honduras is represented by:

H.E. Mr. Carlos López Contreras, Ambassador, National Counsellor, Ministry of Foreign Affairs,

Asgent;

SirMichaelWood, K.C.M.G., member of the E nglish Bar, member of the International Law

Commission,

Ms Laurence Boisson de Chazournes, Professor of International Law at the University of Geneva,

as Counsel and Advocates;

H.E. Mr. Julio Rendón Barnica, Ambassador, Ministry of Foreign Affairs,

H.E. Mr. Miguel Tosta Appel, Ambassador, Chairman of the Honduran Demarcation Commission,
Ministry of Foreign Affairs,

H.E. Mr. Sergio Acosta, Chargé d’affaires a.i. at the Embassy of Honduras in the Kingdom of the

Netherlands,

Mr. Richard Meese, avocat à la Cour d’appel de Paris,

Dr. Makane Moïse Mbengue, Senior Lecturer at the University of Geneva,

Miss Laurie Dimitrov, pupil barrister, Paris Bar, Cabinet Meese,

Mr. Eran Sthoeger, Faculty of Law, New York University,

Csounsel;

Mr. Mario Licona, Ministry of Foreign Affairs,

as Technical Adviser. - 10 -

The PRESIDENT: I now give the floor to Mr. Rodman Bundy to make his presentation on

behalf of Colombia.

BMUr. DY:

T HE QUESTION OF THE INTEREST OF A LEGAL NATURE THAT MAY BE AFFECTED
BY A DECISION IN THE CASE

Introduction

1. Thank you very much, Mr.President, Members of the Court. It falls to me this afternoon

to present Colombia’s second round oral argume nt on Honduras’s Application for permission to

intervene. I will focus on the central issue whether Honduras has an in terest of a legal nature that

may be affected by a decision in the case sufficient to justify its request to intervene, at least as a

non-party. On Wednesday, ProfessorCrawford di scussed a number of elements relating to the

question of party intervention that the Court may feel are relevant in considering that issue. We

will not return to that issue today, and accordingly my presentation will be quite brief.

The interest of a legal nature

2. On Wednesday, Professor Pellet emphasized the fact that a State applying to intervene has

to satisfy two conditions under Article 62 of the Statute: (i) that it has an interest of a legal nature,

and (ii)that such an interest is one that may be affected by a decision in the case [CR2010/19,

p. 14, para. 5].

3. Colombia agrees. That is why, in my presentation earlier this week, I had suggested that

there were two questions that must be answered before the question arises whether the appropriate

mode for intervention is as a party or a non-party. And the two questions were:

(i) Whether Honduras can point to an interest of a legal nature within the relevant part of the

rectangle that it has identified; and

(ii) If so, is the delimitation of any part othat area in dispute as between Colombia and

Nicaragua such that a decision in the main case may or could affect Honduras’s legal

interest [CR 2010/20, p. 16, para. 9]? - 11 -

4. With respect to the first condition, Honduras h as identified its interest of a legal nature as

being its rights and interests under the 1986bounda ry Treaty with Colombia. The bilateral treaty

relations between Colombia and H onduras were not at issue in the Nicaragua v. Honduras case,

and the 2007Judgment ⎯ I think all the parties in the room today are agreed in this ⎯ did not

prejudice the Treaty in any way. As Sir Michael observed yesterday: “Nor could it, as Colombia

was not a party to the proceedings, and thus the Court refrained from passing judgment on its treaty

rights and obligations.” [CR 2010/21, p. 15, para. 24.]

5. Both Honduras and Colombia have acknowle dged that the Treaty is in force and binding

as between them. It is not somehow invalid, as Professor Pellet suggested just a few moments ago,

as between the two parties to it ⎯ Colombia and Honduras ⎯ and there is no support whatsoever

cited for Professor Pellet for that contention. It follows that Honduras continues to have a legal

interest in the 1986 Treaty and the areas covered by it. For that reason, Colombia considers that

Honduras has satisfied the first condition under Article 62 of the Statute, the interest of a legal

nature.

6. Having said that, there is one point that SirMichael mentioned yesterday that Colombia

does not share. It was actually a threefold point but the points are all closely interrelated. First,

SirMichael argued that for the Court to determ ine the allocation of the “delimitation area”

proposed by Nicaragua ⎯ that is, the pink area lying north of the 15°parallel ⎯ “it would

inevitably have to decide whether the 1986Treaty is in force and whether it does or does not

accord Colombia rights in the area in dispute between Colombia and Nicaragua”. Second, he

contended that in the present case “the status and substance of the 1986 Treaty are at stake”. Third,

Sir Michael concluded by saying that: “It is thus clear that our intervention ‘actually relates to the

subject-matter of the pending proceedings’.” [CR 2010/21, pp. 15-16, para. 26.]

7. With respect, Colombia does not agree. In delimiting areas situated to the north of the

15thparallel and east of the 82ndmeridian as between Colombia and Nicaragua , the Court does

not need to decide whether the 1986 Treaty is in force or what it accords to Colombia. While the

Treaty is in fact in force, it is not invalid as between Colombia and Honduras. The Court’s task at

the merits phase is to delimit the maritime bounda ry between Colombia and Nicaragua, not to

determine the status of Colombia and Honduras’s treaty relations. Thus, the status and substance - 12 -

of the 1986 Treaty are not issues that are at stake in the main case, and that Treaty does not relate to

the subject-matter of the pending proceedings.

8. To be clear, that does not mean that, to th e extent that the Court delimits areas lying north

of the 15th°parallel between Colombia and Nicaragua ⎯ or at least indicates the direction of the

boundary line in this area ⎯ Honduras does not have an interest of a legal nature that may be

affected. Because Honduras’s interest of a legal nature continues to lie in the 1986 Treaty, and that

is a sufficient interest in Colombia’s view to justify intervention. But the Court does not need to

rule on the status of the 1986 Treaty to decide the main case.

Which may be affected by a decision in the case

9. Now that brings me to the second cond ition under Article 62: whether Honduras’s rights

and interests in areas covered by the 1986 Treaty may be affected by a decision in the case.

10. On Wednesday, Professor Pellet argued that there are no such interests that could be

affected by a decision in the case because the 2007Judgment ( Territorial and Maritime Dispute

between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),

I.C.J. Reports 2007 (II), Judgment of 8October 2007) determined that the maritime areas lying

south of the bisector and north of the 15th° parallel as belonging to Nicaragua not Honduras, and he

added, and this was repeated again a few moments ago, that Colombia can have no rights in these

areas due to the fact that, in the 1986 Treaty, in Professor Pellet’s words, Colombia recognized its

legal interests to be limited to the 1986 line [CR 2010/19, p. 29, para. 43].

11. In our first round presentation we discussed at length the relative or relational aspect of

bilateral treaties and why the 1986 Treaty in no way precludes Colombia from claiming areas north

of the 15th°parallel as against Nicaragua [CR2010/20, p.26, para.46 (Bundy); ibid., pp.31-34,

paras.12-31 (Kohen)]. I will not repeat those ar guments. I would simply note that there is a

tension between Nicaragua’s arguments this week and those it advanced last week.

12. Last week, Mr. Reichler contended that the 1977 Colombia-Costa Rica Treaty created an

objective situation on which Nicaragua could rely to preclude any Costa Rican claims extending

beyond or to the north of the 1977 line. We responded to that argument and so did Costa Rica. But

on Wednesday of this week, ProfessorPellet argued that the 1986Treaty did not create an - 13 -

objective situation and was not opposab le to Nicaragua in citing the res inter alios acta principle

and Article34 of the Vienna Convention [CR2010/ 19, p.31, para.46]. Moreover, counsel for

Nicaragua also cited Colombia’s Counter-Memorial with approval, in which Colombia had stated:

“The question of delimitation between Colombia and Nicaragua is the subject-matter of the present

proceedings ⎯ a matter which the Colombia-Honduras agreement did not deal with.”

[CR2010/19, p.29, para.42.] In the south, of course, there has been a pattern of consistent

conduct lasting over three decades by Colombia, Co sta Rica, and even Nicaragua respecting those

treaties that are in place, that were discussed last week. In the north, on the other hand, Nicaragua

protested the 1986 Treaty, and the area has been and continues to be in dispute.

13. As for the 2007Judgment, counsel for Nicaragua accepted the proposition that that

Judgment does not affect any rights of third States, among which he named Colombia

[CR2010/19, p.28, para.36] and the Agent for Nicaragua repeated the same point in his

intervention this afternoon. Professor Pellet also emphasized that the authority of matters decided

by the Judgment is relative and only obligatory for the Parties to the case and with respect to the

matters decided [CR2010/19, p.29, para.42]. Nonetheless, counsel went on to assert that the

reason why the Court did not fix a precise e ndpoint to the Nicaragua-Honduras delimitation was

because to do so would have implicated the righ ts of third States which he claimed on Wednesday

and again this afternoon only involved Jamaica, not Colombia [CR 2010/19, p. 18, para. 15; ibid. ,

p. 30, para. 44].

14. Now that line of argument ignores the fact th at Colombia has rights that come into play

well before any potential interests of Jamaica that could be affected by the Court’s 2007 Judgment,

a point that appeared to be shared by Honduras yesterday [CR2010/21, p.18, para.25 (Wood)].

Moreover, counsel’s contention was advanced at the expense of ignoring, and I have to say with

respect even distorting, what the Court actually said in its Judgment and how it illustrated its

decision.

15. In the first place, counsel’s argument cannot be reconciled with paragraph 321 (3) of the

dispositif. There, as the Court is well aware it held that: “[f]rom point F, it [the line] shall continue

along the line having the azimuth 70° 14'41.25" until it reaches the area where the rights of third

States may be affected”, without specifying any particular third State. - 14 -

16. Nicaragua also refashioned the Court’ s own illustrative sketches on Wednesday that

appear in the Judgment. I pointed out at that ti me that the only sketch-map in the Judgment that

has an arrow placed on it is sketch-map No. 8 (Judgment, p. 762). I did not say it was not the only

valid map as I was accused of being said earlier th is afternoon, I said it was the only map with an

arrow and that is true. That arrow is placed at the 82ndmeridian, not far to the east. While the

Judgment also contains a further sketch-map depi cting a dashed line extending seaward from that

point, Nicaragua on Wednesday reconfigured that map by first of all turning the dashed line into a

solid line and then placing an arrow on it at the end of the 80° meridi an in the vicinity of the Joint

Regime Area. Neither of those modifications reflects wh at appears in the Court’s Judgment and

the Court’s own maps.

17. I would suggest that what Nicaragua has essentially sought to do is to rewrite the Court’s

dispositif. Instead of saying that from pointF, th e delimitation line shall continue along the

azimuth until it reaches the area where the rights of third States may be affected, Nicaragua would

have the dispositif read that “[f]rom the 80°meridian, it shall continue along the line having the

azimuth until it reaches the area wh ere the rights of a third State ⎯ Jamaica ⎯ may be affected”.

But that is not what paragraph 321 (3) says.

18. Earlier this afternoon counsel for Nicara gua, while making the same point that Jamaica

was the only relevant third State, argued that the 1993 Treaty was irrelevant. He used figure AP 7

in the judges’ folder to contend that the prolonga tion of the bisector passes to the north of the Joint

Regime Area. That may be so, although even th e Court’s dashed line does not extend nearly as far

as Professor Pellet’s sketch, but I would ask the Court to recall that the 1993 Treaty in this area was

a Joint Regime Area under which Colombia in no way renounced its maritime rights and

entitlements to north of Serranilla and Bajo Nuevo as against Jamaica, let alone against any other

State.

19. If we move further west, we have al ready explained why Colombia’s maritime

entitlements vis-à-vis Nicaragua are not limited by the 15thparallel, which was agreed with

Honduras in the context of a completely differe nt agreement taking into account completely

different relevant circumstances. As against Nicaragua, Colombia’s maritime entitlements do

extend north of the 15th parallel and it is these entitlements that fall to be delimited with Nicaragua - 15 -

at the merits stage of this case. In a passage from the Court’s Judgment which counsel for

Nicaragua did not address on Wednesday, the Court indicated, and this is paragraph 318, that it had

considered certain interests of third States whic h result from bilateral trea ties between countries in

the region. But it added that its consideration of these interests “is without prejudice to any other

legitimate third party interests which may also exist in the area” (Judgment of 8October2007,

p. 759, para. 318), any other legitimate third party interest.

20. Now Colombia has such legitimate interests that do not arise from the1986 Treaty and

do not depend on it. As I said, Colombia’s 200-nautical-mile entitlements generated by its islands

extend to the north of the 15th parallel. These ar e legitimate entitlements under international law.

So, also, is Colombia’s median line claim in the present case an entirely legitimate claim.

Colombia’s position respects the “equidistance-special circumstances” rule that has been so clearly

established by the Court’s jurisprudence. And th at median line projects into areas lying within

Honduras’s rectangle somewhat to the east of the 82ndmeridian, which was the western limit of

the San Andrés archipelago.

21. As counsel for Honduras noted yesterday, the median line claim “confirms Colombia’s

interests in the area east of the 82ndmeridian” [CR2010/21, p.14, para.23 (Wood)]. In other

words, Colombia’s claims extend into an area where the Court has expressly reserved third State

rights by not fixing the terminal point of th e Nicaragua-Honduras boundary. This is the area

covered by the Court’s dashed line. How can an equidistance-based claim, which by definition

leaves on Colombia’s side of the line maritime are as that are closer to its territory than to the

territory of Nicaragua, not be considered to cons titute a legitimate interest? Now I would note that

even this afternoon Professor Pellet said that Colo mbia as a Respondent in this case can assert the

rights that it thinks it has and those extend north of the 15thparallel as against Nicaragua.

22. The fact of the matter is that bot h Colombia and Nicaragua have overlapping

entitlements in Honduras’s rectangle north of th e 15thparallel. This was acknowledged by

Nicaragua’s distinguished Agent himself when he referred to figure 3.1 of Nicaragua’s Reply. As

the Agent stated, and this was on Wednesday, figure 3.1 - 16 -

“is an illustration of the delimitation area ge nerated by the entire continental coasts of
Nicaragua and Colombia. It naturally do es not represent areas where Nicaragua has
claims but the… area of potential entitlement generated by both continental coasts.”
[CR 2010/19, p. 11, para. 10.]

23. Now we do not, on our side of the Bar, accept the fact that the relevant area posited by

Nicaragua ⎯ and I would note that this afternoon Nicar agua’s figure 3.1 w as changed from the

delimitation area, now it is appare ntly called the geographic context ⎯ we do not accept that the

relevant area posited by Nicaragua stretches anywhere near to Colombia’s mainland coast, which is

well over 400nm from Nicaragua, and which is thus not a relevant coast for purposes of

delimitation. Colombia believes that the relevant area for delimitation lies between the islands of

the San Andrés archipelago, which generate th eir own maritime entitlements, and Nicaragua’s

coast ⎯ an area which the last two weeks have largel y focused on. No doubt this is a matter that

will be discussed when we get to the merits. But at least the Parties are in agreement that they do

have overlapping entitlements north of the 15thpara llel as illustrated on Nica ragua’s figure 3.1.

And given that such areas also overlap with part of Honduras’s rectangle, which is where Honduras

says it has interests of a legal nature under the 1986 Treaty, those interests may be affected by a

decision in the case.

24. Nicaragua appears to consider that the Court, in its 2007 Judgment, already prejudged

this aspect of the Nicaragua-Colombia case by excluding any Colombian claims vis-à-vis

Nicaragua north of the 15th parallel. That cannot be right.

In light of the principle articulated by the Court itself in the same Judgment, that it “will not rule on

an issue when in order to do so the rights of a thir d party that is not before it, have first to be

determined” (2007 Judgment, p. 756, para. 312), and, of course the provisions of Article 59 of the

Statute, Colombia does not believe that the Court e ither intended to, or did, prejudge the claims or

the merits of the case between Colombia and Nicaragua as against each other existing in this area.

25. In his first round presentation on Wednesday, ProfessorPellet stressed the fact that the

boundary between Nicaragua and Colombia is “relational”. In his words: “it is a boundary relative

only to Nicaragua and Colombia”, and he added that it would not have any impacts on the rights of

third States [CR2010/19, p.26, para.31]. By exactly the same reasoning, the 2007Judgment is - 17 -

also “relational” as between Nicaragua and Hondur as: and it does not and cannot impact on any

rights of Colombia.

26. What is clear is that areas lying north of the 15th parallel and east of the 82nd meridian

are in dispute in the main case, and that these ar eas overlap with the areas within which Honduras

has interests of a legal nature under the 1986 Treaty. From Colombia’s perspective it follows that

Honduras has also satisfied the second condition of Article 62 ⎯ that its interest of a legal nature

may be affected by a decision of the Court in the case.

27. Now, in taking this decision, Mr. President, we are still being accused on our side of the

Bar of being engaged in some sort of plot to hem in Nicaragua. We heard it last week in the south

with respect to treaties that Nicaragua did not protest and we have heard it again in the north,

despite the fact that the 1986Treaty between Colombia and Honduras was the result of a very

tough and lengthy negotiation. It was not some preordained result designed and aimed at a third

party.

28. Apparently, because this afternoon Professo rPellet has effectively said that Colombia

and Honduras are in bed together in these proceedings— are “buddies”— at least that was the

translation provided by the interpreters — apparently, Colombia is damned if it does and damned if

it does not! If we believe, as we do, that Honduras has satisfied the requirements of Article 62 of

the Statute, at least for purposes of non-party intervention, we are accused of ganging up on

Nicaragua. If we had come to the independent view that we did not think that Honduras had met

those requirements, we would have been accused of ganging up on Honduras! What Colombia has

done is to set forth for the Court’s consideration its honest appreciation of where it feels the issue

lies. And as I have said, Colombia takes the positio n that, with respect to non-party intervention,

Honduras has satisfied the requirements of Article 62 of the Statute.

29. Mr. President, that concludes my presentation, and I would be grateful if the floor could

now be given to Colombia’s Agent to present his concluding remarks, and I thank the Court very

much for its attention.

The PRESIDENT: I thank Mr.Rodman Bundy for his statement. Now I call

Mr. Julio Londoño Paredes, the Agent of Colombia, to make his closing remarks. - 18 -

LMON. DOÑO:

C LOSING STATEMENT AND CONCLUSIONS

1. Thank you, Mr. President. Mr. President and distinguished Judges, the present incidental

proceedings are devoted solely to considering whether Honduras should be permitted to intervene

in the case. The question of Nicaragua’s claims against Colombia is one that can only be dealt with

at the merits stage, not now.

2. Any decision the Court may take whether to permit the intervention of Honduras, either as

a party or non-party, can in no way prejudice the decision that the Court may arrive at on the merits

of the main case. Likewise, taking into account Article59 of the Statute of the Court and the

Court’s jurisprudence, the 2007Judgment in the Nicaragua v. Honduras case did not in any way

prejudge the dispute between Colombia and Nicaragua, a matter that was not at issue in that case.

Th3e. dispositif of the Judgment of 2007 clearly stated that, starting on pointF, the

boundary line “shall continue along the line having the azimuth of 70°14'41.25" until it reaches

the area where the rights of third States may be affected” (Judgment of 8October2007, p.763,

para. 321 (3)). Colombia is one such third State and cannot accept the statement made here that the

only third State concerned is Jamaica.

4. In 1975, for the first time ever, Hondurasclaimed rights over Serranilla and its adjacent

maritime areas. This claim and the overlapping maritime entitlements of Honduras’s coast and the

islands of the San Andrés archipelago, in particul ar Providencia, Serrana and Serranilla, led to the

conclusion of the 1986Treaty, a purely bilateral agreement. Indeed, these islands have full

maritime entitlements extending north of the 15thparallel, in accord ance with international law.

Therefore, the rights over those areas remain in tact vis-à-vis Nicaragua, as has been explained

during these proceedings.

5. While the 1986Treaty determined the maritime boundary between Honduras and

Colombia, it also settled matters that are not at stake in the present proceedings. In matters related

to territorial sovereignty, the 1986Treaty does not leave room for any uncertainty. Colombia

wishes to make clear that neither the validity of said Treaty, nor the question whether it is in force

are at issue in the present case. - 19 -

6. Thus, it is clear that other States, including Honduras in the north, have rights and interests

in the same general area. To the extent that any one of these States can show that its interests may

be affected by a decision in the case, it should be able to express its views by means of intervention

in order to explain and protect its interests. While it is for each applicant State to make out its case,

Colombia considers that the interest of a legal nature that may be affected by a decision in this case

has been shown. That is why Colombia has not objected to Honduras’s request.

7. By a treaty concluded in 1993 between Co lombia and Jamaica, a Joint Regime Area was

established between both countries. The area has been exploited and regulated by both States ever

since. But the Joint Regime Area which was part of the 1993 agreement did not prejudice the

continental shelf or exclusive economic zone rights of Serranilla and Bajo Nuevo.

8. In contrast to the 1986 Treaty, no protest from Nicaragua or any other State has ever been

advanced against the 1993 Treaty or the activities carried out thereunder.

Conclusions

9. Mr. President, and distinguished Judges, out of consideration and respect for the Court, I

will resist referring to the self-serving statement by the Agent and other high Nicaraguan officials

concerning the case on different occasions.

Mr. President and Members of the Court,

In light of the considerations stated duri ng these proceedings and within the framework

described above, my Government wishes to reiterate what it stated in the Written Observations it

submitted to the Court, to the effect that, in Colombia’s view, Honduras has satisfied the

requirements of Article62 of the Statute and, consequently, that Colombia does not object to

Honduras’s request for permission to intervene in the present case as a non-party. As concerns

Honduras’s request to be permitted to intervene as a party, Colombia likewise reiterates that it is a

matter for the Court to decide in conformity with Article 62 of the Statute.

Mr. President, I wish to express, on my behalf and that of all the Colombian delegation, our

deepest appreciation to you, and to each of the distinguished Judges, for the attention you have

kindly given to our presentation.

May I also offer our thanks to the Court’s Registrar, his staff and to the interpreters. - 20 -

Thank you, Mr. President.

The PRESIDENT: I thank Mr. Julio Londoño Paredes for his concluding statement.

That concludes the second round of oral argument of Colombia and brings us to the end this

week of hearings devoted to the oral argument of Honduras and of the Parties, namely, Nicaragua

and Colombia. The Court has taken note of the conclusions that the Agents of Honduras and the

Parties have stated at the end of the second rou nd of oral arguments. I should like to thank the

Agents, counsel and advocates for their statements.

In accordance with practice, I shall request the Agents of the Parties and the Agent of

Honduras to remain at the Court’s disposal to provide any additional information it may require.

With this proviso, I now declare closed the oral proceedings on the Application of Honduras

for permission to intervene in the case concerning the Territorial and Maritime Dispute

(Nicaragua v. Colombia). The Court will now retire for deliberation. The Agents of the Parties

and the Agent of Honduras will be advised in due course of the date on which the Court will

deliver its judgment.

As the Court has no other business before it today, the sitting is closed.

The Court rose at 4.30 p.m.

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