Non Corrigé
Uncorrected
CR 2010/12
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2010
Public sitting
held on Monday 11 October 2010, at 10 a.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 lundi 11 octobre 2010, à 10 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
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
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 of 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.AndelfoGarcíaGonzález, Professor of Intern ational Law, former Deputy Minister of 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.
Before we start our judicial proceedings t oday however, I should first like to pay solemn
tribute, on behalf of the Court, to the memory of Professor Shabtai Rosenne, a truly distinguished
international lawyer, who sadly passed away on 21 September 2010.
Professor Rosenne was born in London in 1917. He studied law at the University of London
and, during the Second World War, served in the Roya l Air Force. In later years, he successfully
combined a career as an Israeli diplomat and an active academic career, with an especial focus on
international law. As a scholar, he was the author of an impressive number of notable publications
which helped to bring international law to a wider readership. In particular, his landmark treatise,
“The Law and Practice of the International Court”, which all of you know, remains an
indispensable guide to the role and functioning of this Court, and serves as the first port of call for
international lawyers and diplomats alike who are in terested in the work of the principal judicial
organ of the United Nations. I would add that judges themselves not infrequently consult this
oeuvre in exercising their judicial duties. ProfessorRosenne was not only a leading academic
authority on the Court, he also participated directly in a number of cases as Agent or counsel, most
recently in the LaGrand case (Germany v. United States of America) . His keen interest in and
enthusiasm about the work of the Court, which c ontinued unabated throughout his life, was greatly
appreciated by all Members of the Court, past and present.
ProfessorRosenne will also be warmly re membered for his contribution to numerous
international institutions of which he was a me mber, including the United Nations International
Law Commission and the Institut de droit international.
I would now like to invite you to stand and observe a minute’s silence in memory of
Professor Rosenne.
The Court observes a minute’s silence.
The PRESIDENT: Please be seated.
* - 11 -
The Court meets today pursuant to Article 84, paragraph 2, of the Rules of Court to hear the
oral argument of the Republic of Costa Rica and the Parties on the question whether the
Application for permission to intervene in the case concerning the Territorial and Maritime
Dispute (Nicaragua v. Colombia), filed on 25 February 2010 by Costa Rica under Article 62 of the
Statute, should be granted.
I begin by noting that JudgeGreenwood, wh o invoked Article24, paragraph1, of the
Statute, will not participate in this phase of th e case. For reasons which he had duly conveyed to
me, Judge Skotnikov is unable to be present on the Bench today.
I note that since the Court does not include upon the Bench a judge of the nationality of
either of the Parties, both Parties have ava iled themselves of the right, under Article31,
paragraph2, of the Statute, to choose a judge ad hoc . Nicaragua originally chose
MrM. ohammed Bedjaoui. Following the resi gnation of the latter, Nicaragua chose
Mr.GiorgioGaja. Colombia chose Mr.YvesFortie r. Following the resignation of Mr.Fortier,
Colombia chose Mr. Jean-Pierre Cot.
Article 20 of the Statute provides that “[e]very Member of the Court shall, before taking up
his duties, make a solemn declaration in open court that he will exercise his powers impartially and
conscientiously”. Pursuant to Article 31, paragraph 6, of the Statute, that same provision applies to
judges ad hoc. Mr.Gaja, having participated in the proceedings on preliminary objections in the
present case, and having made his solemn declaration on that occasion, need not make another
declaration in the present proceedings.
Although Mr. Cot has been a judge ad hoc also and made a solemn declaration in a previous
case, not in the present case, Article8, paragraph3, of the Rules of Court provides that he must
make a further solemn declaration in the present case.
In accordance with custom, therefore, I sh all first say a few words about the career and
qualifications of Mr. Cot before inviting him to make his solemn declaration.
Mr. Jean-Pierre Cot, of French nationality, is a member of the International Tribunal for the
Law of the Sea. He is also ProfessorEmeritus at the Université de Paris-I (Panthéon-Sorbonne)
and an associate research fellow at the Centre de droit international of the Université Libre de
Bruxelles. Between 1981 and 1982, he served as Minist er for Co-operation and Development in - 12 -
the French Government. For a number of years Mr. Cot was a member of the European Parliament
and held several distinguished positions at that institution, including Chairman of the Committee on
Budgets and Vice-President of the Parliament. Mr . Cot has appeared before this Court as counsel
and advocate in a number of cases, such as the cases concerning Frontier Dispute (Burkina
Faso/Republic of Mali) , Territorial Dispute (Libyan Arab Jamahiriya/Chad) , Kasikili/Sedudu
Island (Botswana/Namibia) , Land and Maritime Boundary be tween Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guinea intervening) , and Sovereignty over Pulau Ligitan and
Pulau Sipadan (Indonesia/Malaysia). Mr. Cot also served as judge ad hoc for Romania in the case
concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine) and has been chosen as
judge ad hoc in the case concerning Aerial Herbicide Spraying (Ecuador v. Colombia). He is the
author of many publications on various questions of international law, European law and political
science and is the current President of the Société française pour le droit international.
I shall now invite Mr.Cot to make the solemn declaration prescribed by the Statute, and I
would request all those present to rise.
M. COT: Merci M. le président.
«Je déclare solennellement que je remplirai mes devoirs et exercerai mes
attributions de juge en tout honneur et dévouement, en pleine et parfaite impartialité et
en toute conscience. »
The PRESIDENT: Thank you. Please be seated. I take note of the solemn declaration made
by Mr.Cot and declare him duly installed as judge ad hoc in the case concerning the Territorial
and Maritime Dispute (Nicaragua v. Colombia).
*
I shall now recall the principal steps of the procedure so far followed in this case.
On 6December2001, the Republic of Nicaragua filed in the Registry of the Court an
Application instituting proceedings against the Re public of Colombia in respect of a dispute
consisting of a group of “related legal issues subsisting” between the two States “concerning title to
territory and maritime delimitation” in the western Caribbean. - 13 -
In its Application, Nicaragua founded the jurisdiction of the Court firstly on the provisions of
ArticleXXXI of the American Treaty on Paci fic Settlement signed on 30April1948, known
according to Article LX thereof as the “Pact of B ogotá”, and secondly on the declarations made by
the Parties recognizing the Court’s jurisdiction.
By an Order dated 26 February 2002, the Cour t fixed 28 April 2003 as the time-limit for the
filing of the Memorial of Nicaragua and 28J une2004 as the time-limit for the filing of the
Counter-Memorial of Colombia. Nicaragua filed its Memorial within the time-limit so prescribed.
On 21 July 2003, within the time-limit set by Article 79, paragraph 1, of the Rules of Court,
as amended on 5 December 2000, Colombia raised preliminary objections to the jurisdiction of the
Court. Consequently, by an Or der dated 24September2003, the Court, noting that by virtue of
Article 79, paragraph 5, of the Rules of Court, the proceedings on the merits were suspended, fixed
26January2004 as the time-limit for the presentation by Nicaragua of a Written Statement of its
observations and submissions on the preliminary obj ections made by Colombia. Nicaragua filed
such a statement within the time-limit so prescribed, and the case thus became ready for hearing on
the preliminary objections.
Pursuant to Article53, paragraph1, of the Rules of Court, the Governments of Honduras,
Jamaica, Chile, Peru, Ecuador and Venezuela aske d, between 2003 and 2006, to be furnished with
copies of the pleadings and documents annexed produced in the case. In accordance with the same
provision, having ascertained the views of the Parties, the Court granted these requests.
From 4 to 8 June 2007, oral proceedings were held on the preliminary objections in the case.
In its Judgment of 13December2007, the Court found that it had jurisdiction, on the basis of
Article XXXI of the Pact of Bogotá, to adjudicate upon the dispute concerning sovereignty over the
maritime features claimed by the Parties other th an the islands of San Andrés, Providencia and
Santa Catalina and that it had jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to
adjudicate upon the dispute concerning the maritime delimitation between the Parties.
On 22 September 2008, the Government of Costa Rica, citing Article 53, paragraph 1, of the
Rules of Court, submitted to the Court a request to be furnished with copies of the pleadings and
documents annexed produced in the case. In accordance with the same provision, having
ascertained the views of the Parties, the Court granted this request. - 14 -
On 11 November 2008, Colombia filed its Counter-Memorial.
By an Order dated 18December2008, the Court directed the Republic of Nicaragua to
submit a Reply and the Republic of Colombia to submit a Rejoinder. It fixed 18 September 2009
and 18June2010 as the respective time-limits for the filing of these written pleadings. Those
pleadings were filed within the time-limits so prescribed.
*
On 25February2010, Costa Rica filed an A pplication for permission to intervene in the
case. In its Application, Costa Rica states that “[b]oth Nicaragua and Colombia, in their boundary
claims against each other, claim maritime area to which Costa Rica is entitled”. It specified,
inter alia, that its intervention “would have the limited purpose of informing the Court of the nature
of Costa Rica’s legal rights and interests and of seeking to ensure that the Court’s decision
regarding the maritime boundary between Nicaragua and Colombia does not affect those rights and
interests”.
In its Application, Costa Rica invoked Article 62 of the Statute of the Court as the basis for
its intervention, underlining that it does not seek to become a party to the case between Nicaragua
and Colombia.
In accordance with Article 83, paragraph 1, of the Rules of Court, Costa Rica’s Application
was immediately communicated to Nicaragua and Co lombia, which were informed that the Court
had fixed 26 May 2010 as the time-limit for the filing of written observations by those States.
Both Parties filed their observations within the time-limits so prescribed. Since the Court
considered that an objection to the Application had been raised by Nicaragua, the Parties and
CostaRica were notified that the Court would hold public sittings pursuant to Article84,
paragraph 2, of the Rules of Court to hear the vi ews of Costa Rica, the State seeking to intervene,
and those of the Parties in the case.
After ascertaining the views of the Parti es, the Court has decided that the Written
Observations of the two Parties on the Application for permission to intervene shall be made - 15 -
accessible to the public on the opening of the presen t oral proceedings; additionally, those Written
Observations will shortly be posted on the Court’s website.
I note the presence at the hearing of the Agen ts, counsel and advocates of both Parties as
well as of Costa Rica. In accordance with the arrangements for the organization of the proceedings
which have been decided by the Court, the hearings will comprise a first and a second round of oral
argument. Costa Rica will be heard first.
During the first round of oral argument, Costa Rica and each Party will speak for a
maximum of two hours: Costa Rica will take the floor this morning until 12noon, and on
Wednesday 13October2010 Nicaragua will take th e floor between 9.30a.m. and 11.30a.m., and
Colombia between 11.30 a.m. and 1.30 p.m.
During the second round of oral argument , Costa Rica and each Party will speak for a
maximum of one hour: Costa Rica will take the floor on Thursday 14October2010 between
3 p.m. and 4 p.m., and on Friday 15 October 2010 Nicaragua will take the floor between 3 p.m. and
4 p.m., and Colombia between 4 p.m. and 5 p.m.
*
In this first sitting, Costa Rica may, if requi red, avail itself of a short extension beyond
12 noon, in view of the time taken up by the opening part of these oral proceedings.
I now give the floor to H.E. Mr. Edgar Ugalde Álvarez, Agent of Costa Rica.
Yes, H.E. Ambassador Álvarez, you have the floor.
M. UGALDE ALVAREZ :
1. Monsieur le président, distingués membres de la Cour: en tant qu’agent du CostaRica,
c’est pour moi un grand honneur de m’adresser à vous pour défendre les intérêts juridiques de mon
pays dans cette affaire.
2. Avec votre permission, Monsieur le président de la Cour, je prends un moment afin de
rappeler et de rendre hommage à sir Ian Brownlie, un des plus grands experts en droit international,
dont ses contributions à son développement et la cons olidation de son enseignement et sa pratique
laissent une empreinte profonde. Son absence est re grettée, mais son extraordinaire héritage - 16 -
continuera d’être une source d’inspiration et de guide pour les spécialistes du droit international.
De la même façon, la délégation du Costa Rica présente ses salutations aux distinguées dames qui
font partie de la Cour internationale de Justice.
3. Monsieur le président, la décision du Costa Rica de solliciter l’autorisation pour intervenir
dans cette affaire, non comme partie, mais conformé ment à l’article 62 du Statut de la Cour, a été
soigneusement réfléchie et fondée sur la thèse que d’aucune façon cette décision vise à nous
immiscer ou à faire obstacle aux efforts de cette Cour suprême et des Républiques sŒurs de la
Colombie et du Nicaragua dans la recherche d’une solution aux aspects soumis à votre
considération.
4. Cependant, à la lumière des prétentions soumises par les Parties à la Cour, le Costa Rica a
dû utiliser la procédure prévue par le Statut, da ns le but d’informer la Cour sur ses intérêts
juridiques qui pourraient bien être compromis par le jugement de la Cour dans cette affaire.
5. Le CostaRica, en ligne avec sa tradition démocratique et juridique, a toujours mis en
avant son intérêt pour trouver des solutions avec ses Etats voisins par le biais des mécanismes de la
diplomatie et du droit international. C’est dans ce sens que nous avons réussi à signer des accords
avec les Républiques du Panamá, de la Colombie et de l’Equateur. Nous avons aussi entrepris des
efforts dans ce sens avec la République du Nicarag ua. Aujourd’hui, le CostaRica renouvelle sa
disponibilité et son souhait pour que par le biais de ces mécanismes, soient établies les frontières
maritimes entre ces deux républiques sŒurs. Mais soyons clairs, le fait que le Costa Rica cherche à
délimiter ses frontières maritimes par la voie de la négociation diplomatique, ne signifie en aucun
cas qu’il renonce à ses droits ou à la protection de ses intérêts par tous les moyens juridiques
possibles.
6. Monsieur le président, concernant le déla i octroyé pour la présentation de la requête à fin
d’intervention, l’article81 du Règlement de la Cour signale que celle-ci doit être présentée: «le
plus tôt possible avant la clôture de la procédure écrite».
7. Le Costa Rica a soumis sa requête à fin d’intervention le 25 février 2010, seize semaines
avant le terme du délai pour la fi nalisation de la procédure écrite, dont la clôture fut fixée par la
Cour au 18 juin 2010. - 17 -
8. Avant d’adopter cette très importante décision de se présenter devant cette honorable
Cour, le CostaRica a dû prendre en considération divers facteurs. Parmi ceux-ci, le processus
électoral qui s’est achevé le dimanche 7février201 0. Etant donné cette situation, et en prenant
toujours en considération un délai suffisant avant la finalisation de la procédure écrite, la requête à
fin d’intervention fut présentée aussitôt que possible, en plein respect des mesures de l’article81,
paragraphe 1, du Règlement de la Cour.
9. Dans la requête soumise le 25 février 2010, le Costa Rica a exprimé qu’il ne prétendait pas
se constituer comme partie dans cette affaire, et que son seul intérêt était lié au différend maritime,
et non à son aspect territorial.
10. Le Costa Rica a aussi exprimé dans sa dema nde l’intérêt de nature juridique qui pourrait
être touché par la décision de la Cour dans cette affaire, à savoir l’exercice des droits souverains et
de la juridiction sur les espaces maritimes dans la mer des Caraïbes, ainsi que sur la protection, en
vertu du droit international, de tout autre inté rêt que le CostaRica détient dans cette zone.
L’exercice de ces droits pourrait se voir affecté par la décision de la Cour, comme conséquence des
prétentions des Parties dans l’affaire en cours qui, d’une part, pénètrent clairement les zones
maritimes costa-riciennes, et d’autre part, font que la décision puisse produire des effets juridiques
qui, en termes pratiques, auront un impact sur la relation maritime convenue avec la République de
la Colombie.
11. Monsieur le président, dans sa requête à fin d’intervention, le Costa Rica a identifié deux
objets précis : premièrement, «pour protéger les droits et intérêts légaux du Costa Rica dans la mer
des Caraïbes par tous les moyens juridiques disponibles, et, par conséquence, utiliser les procédures
établies dans ce but dans l’article62 du Statut de la Cour», et deuxièmement, «pour informer la
Cour sur la nature des droits et des intérêts juridiques du Costa Rica qui pourraient se voir affectés
par la décision de la Cour en ce qui concerne la délimitation maritime dans cette affaire».
12. Apparemment, le Nicaragua s’oppose à cette formulation en affirmant que: «nowadays
the exceptional procedure of intervention on the basis of Article 62 may be accomplished by third - 18 -
parties with only the vague object of «informing» the Court of their supposed rights and interests,
1
and therefore «protecting» them» .
13. Ceci constitue un argument étonnant, car la jurisprudence de cette Cour, a solidement
établi que les objets présentés par le Costa Rica étaient clairement encadrés dans l’article 62.
14. Dans cet esprit, souvenons-nous que, en réponse à une objection semblable d’El Salvador
à l’objet exprimé par le Nicaragua, dans sa requê te à fin d’intervention dans l’affaire entre
El Salvador et le Honduras, l’une des chambres de cette Cour a considéré :
«Dans la mesure où l’intervention du Nicaragua a pour objet «d’informer la
Cour de la nature des droits du Nicaragua qui sont en cause dans le litige», on ne peut
pas dire que cet objet n’est pas approprié: il semble d’ailleurs conforme au rôle de
l’intervention… En revanche, la Chambre estime qu’il est tout à fait approprié ⎯ et
c’est d’ailleurs le but de l’intervention ⎯ que l’intervenant l’informe de ce qu’il
considère comme ses droits ou intérêts, afin de veiller à ce qu’aucun intérêt d’ordre
juridique ne puisse être «affecté » sans que l’intervenant ait été entendu.» ( Différend
frontalier terrestre, insulaire et maritim e (ElSalvador/Honduras ), requête à fin
d’intervention, arrêt, C.I.J. Recueil 1990, p. 130, par. 90.)
15. Egalement, des observations similaires peuvent être trouvées dans les décisions de la
Cour sur les requêtes à fin d’intervention présentées par la Guinée équatoriale dans l’affaire entre le
Cameroun et le Nigéria 2, et par les Philippines dans l’affaire entre l’Indonésie et la Malaisie . 3
16. En effet, il est extrêmement clair que la formulation du Costa Rica indique l’objet précis
de la requête, en accord avec les décisions successives de la Cour: premièrement, le CostaRica
souhaite informer cette Cour sur toutes les questions pertinentes ainsi que sur le droit applicable qui
soutient l’existence de ses droits et ses intérêts dans la mer des Caraïbes. Deuxièmement, le
Costa Rica cherche à utiliser cette pr océdure d’intervention afin de protéger lesdits droits et lesdits
intérêts.
17. En conséquence, il ne fait aucun doute que l’objet précis de la requête à fin
d’intervention du CostaRica a été clair, qu’il est correctement identifié et approprié, et qu’il se
trouve en pleine conformité avec la procédure d’intervention reconnue par cette Cour.
1
Observations écrites du Nicaragua, p. 2, par. 5.
2 Frontière terrestre et maritime entre le Cameroun et le Nigéria (C ameroun c.Nigéria), requête à fin
d’intervention, ordonnance du 21 octobre 1999, C.I.J. Recueil 1999 (II), p. 1034, par. 14.
3 Souveraineté sur Pulau Ligitan et Pulau Sipadan (Indonésie/Malaisie), requête à fin d’intervention, arrêt,
C.I.J. Recueil 2001, p. 606, par. 87. - 19 -
18. Monsieur le président, parmi les observa tions écrites, le Nicaragua a suggéré que le
CostaRica semble assumer qu’une décision de la Cour est un motif pour ne pas respecter ou
modifier ses traités en vigueur 4. Cette suggestion n’est pas seulement sans fondement, mais elle
dénature, en plus, la position du CostaRica contenue dans sa requête à fin d’intervention. Le
critère de base de mon pays est qu’une décision de la Cour sur la proprié té et l’extension des
espaces maritimes de la Colombie et du Nicara gua, pourrait avoir pour résultat la modification ou
l’élimination de la relation de voisinage existant entre la Colombie et le Costa Rica dans la mer des
Caraïbes, ce qui engendrerait, sans aucun doute, un possible impact sur les intérêts juridiques que
possède le Costa Rica sur ladite mer.
19. De plus, parmi les indications faites, le Nicaragua a essayé de signaler que la requête du
CostaRica présente des déficiences et que, par c onséquent, la requête à fin d’intervention ne
5
satisfait pas les conditions requises par le Statut et par le Règlement de la Cour . Le CostaRica
refuse que sa requête soit imprécise ou qu’elle ne contienne pas les renseignements nécessaires
pour que la Cour autorise son intervention dans ce cas. Néanmoins, car cela est nécessaire, durant
le déroulement de cette audience, le Costa Rica précisera les fonde ments de sa demande
d’autorisation d’intervention.
20. Dans le cadre de la juridiction que la Cour a pour reconnaître une requête à fin
d’intervention, il est clair que l’article62 du Statut de la Cour octroie le droit à un Etat tiers de
présenter une requête à fin d’intervention quand il ju ge que la décision dans une affaire pourrait
porter préjudice à un de ses intérêts de nature juridique. L’article62 mentionné est également
déterminant, car il indique que la Cour, de façon exclusive, décide si la requête à fin d’intervention
est acceptée, raison pour laquelle, elle n’est pas assujettie à la position adoptée par les Parties sur le
sujet. Cela veut dire que même si une seule ou les deux Parties dans la procédure s’opposent à
l’intervention d’un Etat tiers dans l’affaire, cela constitue seulement un élément additionnel à
6
considérer, comme la Cour l’a déjà souligné , et non pas une exigence pour que la requête à fin
d’intervention soit permise.
4
Voir les observations écrites du Nicaragua, p. 9, par. 24.
5
Ibid., p. 17, par. 41.
6Voir Différend frontalier terrestre, insulaire et maritime (ElSalvador/Honduras), requête à fin d’intervention,
arrêt, C.I.J. Recueil 1990, p. 133, par. 96. - 20 -
21. De ce qui précède, il est clair que le Co staRica remplit toutes les conditions formelles,
selon l’article81 du Règlement, et l’article62 du Stat ut de la Cour, et reste confiant que la Cour
acceptera la présente requête d’intervention.
22. De même, le Costa Rica tient à préciser tr ès clairement, que le but de cette intervention
n’est pas de soutenir une des Parties, ni de défendre les thèses que les Parties ont exprimées quant à
l’affaire principale.
23. Je suis confiant qu’après cette audience, il n’y aura aucun doute quant au bien-fondé de
la requête du CostaRica, et l’honorable Cour pourra déterminer que le CostaRica dispose de
suffisamment de raisons pour justifier la permission d’autorisation pour intervenir.
24. Monsieur le président, permettez-moi de vous présenter le programme pour cette journée.
M.ArnoldoBrenes expliquera les antécédents et les aspects géographiques des espaces maritimes
costa-riciens dans la mer des Caraïbes. M.CarlosVargas se référera à des considérations
juridiques sur la requête du CostaRica. M.CoaltrLathrop expliquera à la fois l’intérêt d’ordre
juridique que le Costa Rica a dans la mer des Cara ïbes et comment la décision de la Cour pourrait
avoir un impact sur celui-ci. Finalement M. Sergio Ugalde examinera des aspects liés aux
articles 59 et 62 du Statut de la Cour.
25. Monsieur le président, membres de la C our, merci de votre attention. Monsieur le
président, je vous prie d’appeler à la tribune M. Arnoldo Brenes. Merci.
Le PRESIDENT: Je vous remercie, Monsieur l’ambassadeurUgaldeAlvarez, l’agent du
Costa Rica, pour votre intervention. Now I invite the second speaker, Mr. Arnoldo Brenes to come
to the floor.
BMRE.NES:
THE GEOGRAPHICAL AND HISTORICAL CONTEXT OF COSTA RICA S LEGAL
INTEREST IN THE CARIBBEAN S EA
1. Mr. President, distinguished Members of the Court, it is my great honour to appear before
you this morning on behalf of Costa Rica. - 21 -
2. My task is to provide the Court with some historical and geographical background
information, which will lay the groundwork to s how in subsequent presentations how Costa Rica’s
legal interests may be affected by the outcome of the present case.
Costa Rica’s maritime boundaries
3. Although the Court is already familiar with the maritime boundary situation of the Parties
to this case in the Caribbean Sea, it may neverthe less be useful to have a quick overview of the
history of Costa Rica’s maritime delimitation effort s in the area. This is particularly relevant
because, as will be seen, that history is inextricably linked to the maritime boundary between
Colombia and Nicaragua that is the subject-matter of the present dispute.
4. I will start by describing the delimitati on treaty between Costa Rica and Colombia signed
on 17 March 1977, known as the Facio-Fernández Tr eaty, which speaks solely of the delimitation
of Caribbean Sea entitlements as between these two countries. The graphic on screen illustrates the
boundary established through the treaty. Its first not able feature is that, when it was negotiated,
Costa Rica agreed to give full weight to Colombia’s San Andrés Island. Thus, the treaty
establishes a simplified equidistant maritime border by drawing a median line based on the
relationship between the Costa Rican coast and the island of San Andrés.
5. Clearly, the basic premise upon which the 1977 Treaty was negotiated and concluded was
that if Colombian insular features ⎯ here San Andrés Island ⎯were given a notional
200-nautical-mile entitlement, the Colombian maritime zone thus generated would overlap with the
Costa Rican maritime zone, thereby requiring an agreement to divide the overlapping entitlements.
6. The second feature of the 1977 Treaty that merits attention is that the negotiating States
agreed to simplify their equidistance boundary lin e by exchanging similarly-sized areas in the
Caribbean Sea. The final result of this exchange , and the resulting boundary line, may be seen in
7
the graphic on the screen . Colombia ceded to Costa Rica a triangular-shaped area in the east that
would have gone to Colombia unde r strict equidistance delimitation. In exchange, Costa Rica
granted Colombia another portion of the maritime ar ea located to the west, in the vicinity of the
82nd meridian, that would otherwise have been on the Costa Rican side of the equidistance line.
7American Society of International Law, International Maritime Boundaries, Vol. I, J.I. Charney &
L.M. Alexander (eds.), 1996, p. 473. - 22 -
7. In accordance with the negotiation and the areas exchanged, the maritime boundary
between Costa Rica and Colomb ia was established from pointA to pointB along the Parallel
10°49'00"North and from pointB northward along the Meridian 82°14'00"West. These lines
were chosen in an attempt to create a balance between the sizes of the areas exchanged, while at the
same time allowing sufficient distance from both Colombia’s insular territory and Costa Rica’s
mainland coast. From point B, the boundary extends north to an unspecified point where it would
intersect with Nicaragua.
8. At this point, I would like to note that the 1977 Treaty has been ratified by Colombia, but
not by Costa Rica. While Colombia has urged Costa Rica to ratify, Nicaragua has strongly voiced
its opposition to ratification. Ratification fa lls upon Costa Rica’s Parliament; however, in
consideration of Nicaragua’s c ontinuous requests that Costa Rica not ratify the treaty until the
dispute with Colombia has been resolved, Co sta Rica, acting out of good neighbourliness, has
abstained from doing so.
9. The decision to abstain from ratifying w as taken before Nicaragua initiated the present
case in 2001, but its sensibility has been vindicated now that the dispute has been brought to the
Court, since the decision in this case could signif icantly alter the substantive basis on which the
1977 Treaty was negotiated and concl uded. I will not expand on th is subject since my colleagues
will refer to it in more detail in subsequent interventions.
10. In connection with Costa Rica’s endeavour to negotiate all its maritime boundaries in the
Caribbean Sea, it should also be noted that on 2 February 1982 Costa Rica and Panama signed their
maritime delimitation treaty, known as the Calderón- Ozores Treaty. This Treaty has been ratified
by both States, and sets out their maritime boundari es in both the Pacific Ocean and the Caribbean
Sea, as can be appreciated in the graphic presented on screen 8. In both cases, the maritime
boundaries were drawn by applying the equidistance method to establish a median line parting
from the mainland coasts of both States. The equidistance boundary in the Caribbean was
simplified into a single line segment that discounted the effect of Panama’s near shore islands. It
originates at the land border terminus and extends to a notional tri-point with Colombia.
8American Society of International Law, International Maritime Boundaries, Vol. I, J.I. Charney &
L.M. Alexander (eds.), 1996, p. 546. - 23 -
Maritime boundary negotiations between Costa Rica and Nicaragua
11. With regard to maritime boundaries betw een Costa Rica and Nicaragua, it still has not
been possible to reach a bilateral agre ement, either in the Caribbean Sea or in the Pacific Ocean.
Although talks between Costa Rica and Nicaragua can be traced back as early as1977, formal
maritime boundary negotiations actually began in2002. In a Joint Communiqué signed by the
Costa Rican and Nicaraguan ViceMinisters of Foreign Affairs on 6September2002, both
countries agreed to initiate negotiations to define maritime boundaries in both the Caribbean Sea
and the Pacific Ocean, and for that purpose the bilateral Sub-Commission on Limits and
Cartography was activated.
12. The Sub-Commission met on five occasions between2002 and2005, alternating the
venue of the meetings between Costa Rica and Nica ragua. Notably, during the first meeting, both
countries listed the legal instruments that would guide the negotiation process, which included,
inter alia, the United Nations Convention on the Law of the Sea, with reference to its Article15,
among others.
13. The last meeting of the Sub-Commission took place on 22 August 2005 in San José. The
next meeting was scheduled for10 and 11October 2005, in Managua, that is, exactly five years
ago. The Nicaraguan Government, however, cancelled that meeting and showed no enthusiasm for
continuing negotiations, despite Costa Rica’s re peated requests to resume the process.
Unfortunately, Nicaragua’s reticence prevailed and the process has been suspended since 2005.
14. Nicaragua’s Written Observations on Costa Rica’s Application to intervene assert that
“Nicaragua does not recall any negotiations on ma ritime delimitation with Costa Rica in the
9
Caribbean that involved specific claims to maritime areas or even methods of delimitation.” In
light of the detailed and documente d history of negotiations just presented, it is clear that this
statement obscures the level of real effort the neighbouring States undertook in their boundary
negotiations.
15. The 2002 Joint Communiqué expressly stat ed that the maritime boundary negotiations
would involve both the Pacific Ocean and the Cari bbean Sea. Nevertheless, when formal talks
started, the Nicaraguan delegation requested that the negotiations in the Caribbean Sea take into
Written Observations of the Republic of Nicaragua on th e Application for permission to intervene filed by the
Republic of Costa Rica, p. 7, para. 19. - 24 -
consideration the ongoing dispute between Nicara gua and Colombia, which constituted an element
of uncertainty that could eventually alter some aspects of the nascent bilateral agreement between
Costa Rica and Nicaragua. Therefore, the efforts in the Caribbean Sea fo cused on the negotiation
of the territorial sea boundary only. As a first step, the negotiating teams agreed to locate the
missing marker No.°1, placed at the land border te rminus of Punta Castilla, which had disappeared
due to the forces of nature. The task of re-establis hing the location of marker No. 1 was in fact the
subject of constant discussion during the ensuing meetings of the Sub-Commission. As a
consequence of the inability to locate marker No. 1, neither Nicaragua nor Costa Rica was able to
present a precise proposal for maritime delimitation in the Caribbean.
16. While the negotiations in the Caribbean Sea were focused on the location of marker
No.°1, negotiations in the Pacific Ocean did adva nce, and there was in fact an exchange of
proposals by both countries. It is particularly noteworthy that both countries agreed on the use of
equidistance to establish the maritime boundary between their Pacific territorial seas, which
resulted in generally concordant proposals in that zone.
17. Nicaragua’s claim that it “does not recall any negotiations on maritime delimitation with
10
Costa Rica in the Caribbean” therefore reveals a profoundly selective memory. Because of the
circumstances just explained, and most notably the suspension of the negotiation process due to
Nicaragua’s inaction, negotiations in the Caribb ean Sea did not reach a point where concrete
proposals for delimitation could have been exchanged. But the fact is that if negotiations were
formally joined to establish maritime boundaries in the Pacific and the Caribbean, it can only be
because overlapping entitlements exist in those areas. Why else would both countries engage in the
process of negotiating maritime limits if it were not for the fact that their respective maritime
interests overlapped?
18. In light of the forego ing observations, it cannot escape the Court’s notice that Costa
Rica’s maritime boundary relationships in the Caribbean Sea are currently uncertain, and will
necessarily remain so until the Court reaches a decision in the present case.
1Written Observations of the Republic of Nicaragua on the Application for permission to intervene filed by the
Republic of Costa Rica, p. 7, para. 19. - 25 -
Maritime boundary treaties between Cost a Rica and its neighbours constitute res inter alios
acta
19. Mr.President, in its Written Observations on Costa Rica’s Application to intervene,
Nicaragua scrutinizes the maritime boundary delimita tion agreements that Costa Rica has ratified
with Panama, and signed with Colombia. In both instances, it applies an extraordinary inverted
logic in an attempt to serve its purposes. To Nicaragua, the conclusion of a maritime boundary
agreement with Panama means th at “Costa Rica acknowledges that it has no claims to the areas
11 12
further east from the end point” of that boundary; and “the same understanding” , according to
Nicaragua, applies in the case of the maritime agreement with Colombia, where the proposed
conclusion is that “Costa Rica has no maritime claims further than the line of the
meridian 82° 14' 00" W” 13.
20. These assertions mischaracterize the effect of Costa Rica’s treaties with Panama and
Colombia. Costa Rica has certainly not acknowledged in these agreements, or anywhere else, what
Nicaragua wishes for: namely, th at Costa Rica has relinquished certain maritime claims it may
hold vis-à-vis Nicaragua in the Caribbean Sea. However, those maritime agreements relied upon to
derive this remarkable conclusion neither expressly nor implicitly entail Costa Rica’s
relinquishment of any maritime areas to third States not party to those agreements. In other words,
those maritime agreements concluded between Costa Rica and its other neighbours are exclusively
the result of particular negotiations between the Parties, and, most importantly, constitute res inter
alios acta for Nicaragua as well as for all other non-party States.
21. As Article34 of the 1969 Vienna Conven tion on the Law of Treaties states, “a treaty
does not create either obligations or ri ghts for a third State without its consent” 14. Unfortunately
for Nicaragua even the most strenuous wishful th inking cannot overcome this long-standing rule.
As such, it is manifestly the case that Nicaragua is not bound by Costa Rica’s treaties with other
States, nor can Nicaragua benefit from or rely upon Costa Rica’s negotiated bilateral maritime
agreements with Panama and Colombia. These agreements divide overlapping maritime interests
11Written Observations of the Republic of Nicaragua on the Application for permission to intervene filed by the
Republic of Costa Rica, p. 6, para. 16.
12
Ibid., p. 6, para. 17.
13
Ibid., p. 7, para. 18.
14Vienna Convention on the Law of Treaties, 23 May 1969, 1155 United Nations, Treaty Series (UNTS), p. 331. - 26 -
in the Caribbean Sea only as between the signatory States, and that is the only effect that can be
given to them. Nicaragua’s wish simply cannot be granted by this Court.
22. It is thus clear that Nicaragua, as a matter of both law and fact, is precluded from
extracting any legal interests or legal rights out of these agreements. All the more so when the
apparent intention is to grasp le gal benefits against Costa Rica, the very State it presently seeks to
deny the opportunity to make its interests known.
Nicaragua’s claim for an extended continental shelf is irrelevant
23. As a final point before I conclude my presentation, I would note that Nicaragua’s Written
Observations also seem to place great importance on having presented to the Office of the
Secretary-General of the United Nations a prel iminary information document for an extended
15
continental shelf in the Caribbean Sea, while Costa Rica has not . This observation, like so many
others, is absolutely irrelevant. The fact is that , as stated in Article 56 of the 1982 United Nations
Convention on the Law of the Sea, Costa Rica’s 200nautical mile exclusive economic zone
entitlement in the Caribbean Sea already includes its respective sea-bed and subsoil, that is, in other
words, any continental shelf entitleme nt within that zone. Therefore, considering that continental
shelf claims beyond 200 nautical miles in the Caribbean Basin are precluded by competing third
State claims to exclusive economic zones, all lyi ng within 200 nautical miles from their respective
coasts, there is no need for Costa Rica to subm it continental shelf claims beyond its exclusive
economic zone. Nonetheless, should there arise any technical information and legal grounds on
which to place such a claim, Costa Rica reserves its right to do so.
24. As a matter of fact, Costa Rica proteste d Nicaragua’s preliminary information document
through a diplomatic note to the Secretary-General of the United Nations dated 19 August 2010, by
reason of the existence of overlapping interests within the maritime areas requested by Nicaragua
in the Caribbean Sea, which Costa Rica itself claims.
25. Moreover, it should be noted that Nicaragua’s preliminary in formation document does
not trigger automatic acceptance of its claim. As is well known, a final submission must eventually
be filed to the United Nations Commission on the Limits of the Continental Shelf, which will
1Written Observations of the Republic of Nicaragua on the Application for permission to intervene filed by the
Republic of Costa Rica, p. 7, para. 20. - 27 -
carefully analyse it before making its comments and recommendations to Nicaragua, and none of
this has happened yet.
26. Mr. President, as demonstrated, all three of Costa Rica’s maritime boundary relationships
in the Caribbean Sea are inextricably linked to each other. They also share a common element: all
three relationships may be affected by the delimita tion decision in this case. Costa Rica wishes to
inform the Court of this possibility through the process of intervention.
27. Mr.President, distinguished Members of the Court. With these remarks I close my
presentation, and thank you all for your kind attention. Mr. President, may I ask you now to call on
Mr. Carlos Vargas.
The PRESIDENT: Thank you, Mr.ArnoldoBrenes, for your presentation. I now invite
Mr. Carlos Vargas, to take the floor.
VMAr. GAS:
A TTACHMENT OF DOCUMENTS ,STANDARD OF PROOF ,AND THE LEGAL BASIS
OF C OSTA R ICA’S LEGAL INTEREST IN THE CARIBBEAN SEA
1. Mr.President and distinguished Members of the Court, I am honoured to appear before
you on behalf of the Republic of Costa Rica. My task today is to emphasize certain aspects of our
Application for permission to intervene in the prent dispute. In particular, I will demonstrate
how certain criteria set forth in Article81 ofe Rules of this Court should be interpreted and
applied to Costa Rica’s Application to intervene, and elaborate on the legal basis of Costa Rica’s
interest of a legal nature in the Caribbean Sea.
Costa Rica’s decision not to attach documents to its Application for permission to intervene is
legally irrelevant and in no way a procedural defect
2. I will begin my discussion with paragraph tree of Article81. That paragraph states,
“[t]he application shall contain a list of tdocuments in support, which documents shall be
16
attached” . In its Written Observations, the Government of Nicaragua suggests that Costa Rica’s
decision not to attach documents to its Appliction “makes it even more difficult to determine
16
International Court of Justice, Rules of Court, Art. 81, para. 3. - 28 -
17
exactly what are the legal interests claimed by Costa Rica” , implying that this supposed lack of
documentary support is a defect in the Application. This accusation is entirely without merit.
3. In the first place, this Court has made clear that Article 81 does not require the attachment
of documents. In its Judgment on the Philippin es’ Application to inte rvene in the case between
Indonesia and Malaysia the Court said:
“there is no requirement that the State seeking to intervene necessarily attach any
documents to its application in support. It is only where such documents have in fact
been attached to the said application th at a list thereof must be included.”
(Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia),
Application to Intervene, Judgment, I.C.J. Reports 2001, p. 587, para. 29.)
Furthermore, the Court continued, “the choice of the means whereby the State wishing to intervene
seeks to prove its assertions lies in the latter’s sole discretion” 18.
4. Although these observations are sufficien t to demonstrate the error of Nicaragua’s
assertion, I would like to correct one other misl eading allegation regarding the attachment of
documents made in the same paragraph. Nicaragua alleges that Costa Rica’s decision not to attach
unnecessary supporting documents differs “quite di stinctly from the procedure followed by
Equatorial Guinea” 19in its successful application to inte rvene in the dispute between Cameroon
and Nigeria. A gullible reader may assume that Equatorial Guinea attached a substantial volume of
documentary support, thus distinguishing its application from Costa Rica’s.
5. However, as this Court will recall, the trut h is that Equatorial Guinea attached to its
application only two distinct documents, referri ng to domestic legal provi sions framing Equatorial
Guinea’s maritime entitlements 20. Notably, Costa Rica did essentially the same in referencing
21
ArticleSix of its Constitution in the Application itself . Thus, the two applications may be
considered essentially equivalent. And regardless, it is clear that Costa Rica’s application is
sufficiently supported by the evidence contained ther ein and the materials furnished to this Court
by the parties to this case in their submissions.
17
Written Observations of the Republic of Nicaragua on the Application for permission to intervene filed by the
Republic of Costa Rica, p. 10, para. 25.
18
Ibid.
19Ibid.
20Application for Permission to Intervene by the Governm ent of Equatorial Guinea: Case Concerning the Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon/Nigeria), pp. 16-39.
21Application for permission to intervene by the Republic of Costa Rica, p. 3, para. 14, footnote 1. - 29 -
The standard of proof in the application stage is low and has been met by Costa Rica’s
submissions to the Court
6. Indeed, this observation leads naturally in to the next topic of my presentation: the
standard of proof that Costa Rica must meet in th eir application stage of the intervention process.
Nicaragua suggests in its Written Observations that Costa Rica “has failed to clearly identify any
22
interest it may have of a legal nature that might be affected by the decision in this case” . The
failure, however, is not with Costa Rica’s Application; rather, it lies in Nicaragua’s confusion
regarding the standard of proof resting on Costa Rica at this stage of the proceedings. That
standard, properly conceived, has been easily met by Costa Rica’s Application.
7. Nicaragua would apparently require Cost a Rica to submit its complete arguments on the
merits of its intervention at the time of the app lication to intervene. This would be a profound
perversion of the intervention process established in the Rules of this Court. In reality, the
intervention process proceeds in two distinct stages: First, the “application stage”, which is the
stage in which we find ourselves at this moment; and second, if the party seeking to intervene is
successful in its application, the “intervention stage”, which is the moment in which the intervening
State presents the full merits of its intervention position.
8. In this initial application stage, it is not Costa Rica’s burden to set forth in full every
argument that would be made in the subsequent intervention stage. Indeed, to do so would
improperly burden this court with information irrele vant to the particular decision at hand. Rather,
as this Court said with regard to Nicaragua’s Application to intervene in the case between
ElSalvador and Honduras, in the application stage a State seeking to intervene must only
“demonstrate convincingly . . . the interest of a le gal nature which it considers may be affected by
the decision in the case, and to show in wh at way that interest may be affected” ( Land, Island and
Maritime Frontier Dispute (ElSalvador/Honduras), Application to Intervene, Judgment, I.C.J.
Reports 1990, pp. 117-118, para. 61). Furthermore, as Judge Sette-Camara observed in his opinion
dissenting from the Judgment on Italy’s Application to intervene in the dispute between Libya and
Malta,
22
Written Observations of the Republic of Nicaragua on the Application for permission to intervene filed by the
Republic of Costa Rica, p. 2, para. 4. - 30 -
“In the first stage of the procedure of intervention ⎯ and that is all we are
concerned with here — the only thing that the Court is asked to do is decide whether
or not to grant the request to intervene. It is only if intervention is granted that the
intervener is bound to substantiate its claims and its reasons to consider that its
interests may be affected.” ( Continental Shelf (Libyan Ar ab Jamahiriya/Malta),
Application for Permission to Intervene, Judgment, I.C.J. Reports 1984 , Diss.
Op. Sette-Camara, pp. 83-84, para. 65; emphasis added.)
9. Thus, Costa Rica assumes its proper burden of proof in this stage, to demonstrate
convincingly that it claims a legal interest that may be affected by the Court’s decision in the
instant dispute. Costa Rica is confident that its Application and oral submissions easily exceed that
standard, as properly applied at this stage.
The substantive legal basis of Costa Rica’s legal interest in the Caribbean Sea
10. Now having addressed these two procedural considerations emanating from the
requirements of Article 81 of the Court’s Rules, I will conclude by addressing the substantive basis
of Costa Rica’s legal interest in the Caribbean S ea. In accordance with pr inciples of international
law, Costa Rica has claimed sovereign rights and jurisdiction in its maritime entitlements in both
the Pacific Ocean and Caribbean Sea. These claims are manifest in Costa Rica’s Constitution, its
domestic laws and regulations, and its international agreements.
11. First, Article Six of the Constitution of the Republic of Costa Rica explicitly states:
“The State exercises complete and exclusive sovereignty over the airspace
above its territory, its territorial waters for a distance of 12miles measured from the
low-water line along its coasts, its continenta l shelf and its insular sill, in accordance
with the principles of International Law.
Furthermore, it exercises special juri sdiction over the seas adjacent to its
territory for an extent of 200miles from the aforesaid line, in order to protect,
conserve and utilize on an exclusive basis all natural resources and riches existing in
the waters, soil and subsoil of those z ones, in conformity with the aforesaid
23
principles.”
24
It is through these provisions, clearly re ferenced in Costa Rica’s Application , that Costa Rica
expressly claims its maritime entitlements under international law. If these entitlements are not an
interest of a legal nature, then that concept is completely devoid of meaning.
12. Furthermore, Costa Rica’s exercise of its sovereign rights and jurisdiction over its
maritime entitlements is demonstrated by its intern ational agreements and domestic legislation. I
23
Constitution of the Republic of Costa Rica, 1949, Art. 6.
24Application for permission to intervene by the Republic of Costa Rica, p. 3, para. 14 and footnote 1. - 31 -
will note a few examples. First, Costa Rica has b een legislating and regula ting its fisheries areas
for over 60years, most recently through the Fishery and Aquaculture Law of 2005 25. Second,
Costa Rica has enacted legislation regulating the exploitation of its maritime oil and gas resources
26
and reserves . Third, Costa Rica has also enacted laws establishing criminal penalties for
activities relating to illegal fishing and piracy 27. Fourth, Costa Rica has engaged by international
agreement with its Caribbean neighbours in join t efforts to combat narco-trafficking in the
Caribbean region 28.
13. Finally, in accordance with its Constituti on and domestic legislation, Costa Rica has in
practice licensed fishing and oil and gas activities in parts of its Caribbean zone, and engaged in
other exercises of its sovereign rights and jurisdiction.
14. As such, it is clear that Costa Rica maintain s an undisputable interest of a legal nature in
the Caribbean Sea.
Conclusions
15. Mr.President and distinguished Members of the Court, these observations allow us to
draw three conclusions. First, Costa Rica’s App lication was complete without documents attached
and fully satisfies the appropriate procedural re quirements. Second, Co sta Rica’s Application
easily clears the standard of proof at this, the application stage of the proceedings, by clearly and
convincingly demonstrating the existence of Costa Rica’s interest of a legal nature in the Caribbean
Sea, which may be affected by the Court’s decisi on. And third, that Costa Rican law and practice
clearly evince Costa Rica’s legal rights and inte rests in maintaining its sovereign rights and
jurisdiction over its maritime entitlements in the Caribbean Sea.
16. Mr.President, these remarks conclude my pr esentation. I thank you for your attention,
and respectfully request that you now call on Professor Lathrop. Thank you.
25Law No. 8436, March 1, 2005, http://www.acto.go.cr/descargas/Ley_Pesca_y_Acuicultura_8436.pdf.
26Costa Rica Hydrocarbon Law, Law No.7399, May3, 1994, http://www.mag.go.cr/legislacion/1994/ley-
7399.pdf.
27
Foreign Flag Vessels in the Patrimonial Sea Law, Law N6 o. 67, Augst, 78,
http://www.pgr.go.cr/scij/Busqueda/Normativa/Normas/nrm_repartidor.asp?…
6&nValor3=33767&strTipM=TC.
28
Agreement Concerning Cooperation in Suppressing Illicit Maritime and Air Trafficking in Narcotic
Drugs and Psychotropic Substances in the Caribbean Area, Law N8 o.00, A8prl10,
http://www.oas.org/juridico/spanish/tratados/sp_conve_coop_traf_estup.p…. - 32 -
The PRESIDENT: Thank you, Mr. Carlos Vargas, for your presentation. The Court has two
more speakers this morning, but given the time c onsideration, I suggest that the Court has a very
short recess of ten minutes, until 11.20 a.m., and r esume the session with the next speaker on the
Costa Rican side.
The Court adjourned from 11.10 to 11.20 a.m.
The PRESIDENT: Please be seated. Now I invite Mr. Coalter Lathrop to take the floor to
make his presentation.
LMAT.HROP:
THE GEOGRAPHIC SCOPE OF C OSTA R ICA’S LEGAL INTEREST IN RELATION TO THE
SUBJECT -MATTER OF THE PRESENT CASE AND HOW THAT LEGAL INTEREST
MAY BE AFFECTED BY THE C OURT ’S DECISION IN THIS CASE
1. Thank you, Mr. President. Mr. President, distinguished Members of the Court, it is a great
honour to appear before you this morning on behalf of the Republic of Costa Rica. Mr. President,
before I begin, if I could do some housekeeping. Costa Rica has utilized approximately 50 minutes
of their two hours this morning. We have approximately 70 minutes of argumentation left to make.
Considering the interruption for a break and the in troductory matters earlier this morning we hope,
with your permission, to continue until approximate ly 12.30 this morning, to utilize the entire two
hours of our time.
The PRESIDENT: Thank you Mr. Lathrop. I made the announcement at the beginning of
my presentation that due account will be taken cocerning the time that I had to spend for the
opening speech. That will be taken into account in the calculation of the two hours I meant.
Mr. LATHROP:
2. Thank you very much. Mr.President, you have just heard about the nature of Costa
Rica’s legal interest. My job this morning is to demonstrate that Costa Rica’s legal interest may be
affected by the delimitation decision in this case. This will not be a difficult job because the
geographic facts— including the coastal configuration of the south-western Caribbean Sea, the - 33 -
area in which Costa Rica has a legal interest, and the area in dispute as defined by the claims of the
Parties against each other — these geographi c facts allow for only one conclusion: because Costa
Rica has a legal interest in an area of the Caribbean Sea that is also in di spute between the Parties
to this case, the delimitation of that disputed area by this Court may affect Costa Rica’s legal
interest.
3. Here is how I will carry out my morning’s task: First, I will show the Court the minimum
geographic area in which Costa Rica has a legal interest. Second, I will describe the area in dispute
between Nicaragua and Colombia. Third, I will demonstrate the significant overlap between the
area in which Costa Rica has a legal interest and the area that is in dispute in this case. Fourth, and
finally, I will describe how a delimitation decision may affect the legal interest of Costa Rica.
The minimum geographic scope of Costa Rica’s legal interest in the Caribbean Sea
4. Costa Rica has an interest of a legal nature in the exercise of its sovereignty, its sovereign
rights and its jurisdiction in its territorial sea and its exclusive economic zone. However, a question
remains as to the spatial extent of those zones.
5. I will begin by showing the Court the hypoth etical extent of Costa Rica’s maritime zones
in the absence of overlapping interests and conf licting claims of neighbouring States. After
presenting those zones in the abstract, I will turn to the factors that limit the extent of Costa Rica’s
zones and area of interest.
6. On the screen you will see a map that shows the geographic relationship among Costa
Rica and other coastal States in the region. Costa Rica is in the south-west, or bottom left of the
screen, Nicaragua is to the north, Colombia to th e north-east, and Panama is to the south-east of
Costa Rica. Together, these are the coastal States facing on the south-west Caribbean Sea.
7. Costa Rica claims a 12-nautical-mile terr itorial sea and a 200-nautical-mile exclusive
economic zone in the Caribbean. These two mariti me zones have now been added to the map in
two shades of blue.
8. In the hypothetical abse nce of any neighbouring State entitlement Costa Rica would have
maritime entitlements, and a corresponding lega l interest, in the areas shown on this map.
However, in order to understand the actual maritime area in which Costa Ri ca has a legal interest - 34 -
we must bring Costa Rica’s neighbourly relationships with Nicaragua, Colombia, and Panama into
the picture.
9. As you have heard, Costa Rica has negotiated two maritime boundaries in the Caribbean
Sea: one with Panama and one with Colombia . Those boundaries limit— with respect to those
treaty partners— the area in which Costa Rica ma intains a legal interest. Costa Rica has not yet
agreed a maritime boundary with Nicaragua nor h as any international court or tribunal delimited
that boundary. This is an important differe nce between Costa Rica’s intervention and the
Honduran request for permission to intervene in this case.
10. In my presentation of Costa Rica’s bounda ry relationships, I will begin with Panama and
work counter-clockwise through Colombia to Nicar agua. Starting at their shared land boundary
terminus, Costa Rica and Panama have agreed a single-segment boundary that extends seaward as a
simplified equidistance line between the mainland coasts of the two adjacent States. By concluding
this bilateral boundary treaty, Costa Rica has— vis-à-vis Panama— abandoned its claims to
maritime area south and east of the boundary with Panama. The map on the screen now reflects the
effect of Costa Rica’s agreed boundary with Pana ma on the area in which Costa Rica has a legal
interest.
11. Costa Rica has also agreed a line with Colombia in the south-west Caribbean, intended to
divide areas of overlapping maritime zones gene rated by Costa Rica’s mainland Caribbean coast
and Colombia’s insular Caribbean coast of SanAn drés. I will refer to this line as the 1977line,
which has now been added to the map. The 1977 line is a two-segment, simplified equidistance
line that extends northward “to where delimitation must be made with a third state”. In this
geography, that third State could only be Nicaragua, and the delimitation referred to is the future
delimitation of a lateral boundary between Co sta Rica and Nicaragua from their shared land
boundary terminus, out to a maritime tripoint with Colombia. By virtue of the agreement between
Costa Rica and Colombia that created the 1977 li ne, Costa Rica relinquishes its claim — vis-à-vis
Colombia— to areas north and east of this line. The map on the screen now shows the two
boundaries that Costa Rica has agreed in the Caribbe an that limit, through bilateral agreement, the
extent of Costa Rica’s maritime entitlements. - 35 -
12. Importantly, the 1977 line arises from a bilateral agreement between Costa Rica and
Colombia only. With respect to any other State this agreement is res inter alios acta . Itisnot
opposable to other States and other States, includi ng Nicaragua, may not invoke this agreement to
limit the area in which Costa Rica has a legal interest. This is, of course, equally true of the
agreement between Costa Rica and Panama.
13. As Costa Rica noted in its Application, the negotiations that resulted in the 1977 line
were predicated on the notion that Costa Rica and Colombia had overlapping maritime
entitlements, the division of which required agreement 29. This fundamental notion arose from two
assumptions. First, that an agreed boundary was in place between Nicaragua and Colombia along
the meridian 82° W leaving to Colombia the waters east of 82° W. Second, that Colombia’s insular
features were entitled to full effect in any delimitatio n. Taken together with Costa Rica’s maritime
entitlements, this meant that Colombia was the State with which Costa Rica had a boundary
relationship in this part of the Caribbean.
14. Nicaragua has challenged these assumptions in the main proceedings in this case.
Nicaragua has challenged 82° W by claiming an area that extends east of that line, past Colombia’s
islands to Nicaragua’s 200-nautical-mile limit and far beyond. Nicar agua’s area of “potential EEZ
entitlement” presented throughout its submissions h as now been added to the screen. Nicaragua’s
boundary claim as expressed in its Reply lies well beyond this area to the east . Nicaragua has also
challenged the effect of Colombia’s islands on a delimitation, asking the Court to give significantly
less than full effect to Colombia’s insular features. In fact, under Nicaragua’s delimitation
scenarios, Colombia’s insular features would generate no more than, and in some cases
significantly less than, a 12-nautical-mile territorial sea. Those enclaves have now been added to
the map, in white. In Nicaragua’s view, the maritime enclaves shown here are all the area
Colombia should get in the south-west Caribbean and the remaining maritime area should go to
Nicaragua.
15. Costa Rica takes no position on the boundary claims of the Parties, or on the question of
the effect of Colombia’s insular features on a delimitation between Colombia and Nicaragua.
29
Application for permission to intervene by the Republic of Costa Rica, p. 3, para. 13. - 36 -
However, it is impossible for Costa Rica to ignor e the prospect that the entire basis on which the
1977 line was negotiated would be e liminated by creating a zone of non-Colombian waters
immediately north and east of the 1977 line, thus rendering the agreement between Costa Rica and
Colombia without purpose. Because Nicaragua cl aims the area north and east of the 1977 line in
this case, and because the Court could delimit the Nicaragua-Colombia boundary in such a way that
those areas are no longer Colombian, Costa Ri ca maintains a legal interest in that area
notwithstanding its agreement with Colombia.
16. The map now reflects the impact of Nicaragua’s position in this case on Costa Rica’s
area of interest. While Costa Rica’s area may be limited by the 1977 line when Colombia is the
State with jurisdiction in the waters to the north and east, no such limitation exists if Colombia is
not the State with jurisdiction to the north and east of that line. In those circumstances Costa Rica
has a legitimate legal interest in areas extendi ng north and east of the 1977 line to at least the
200-nautical-mile outer limit of its exclusive economic zone.
17. I turn now to the third and final boun dary relationship between Costa Rica and its
Caribbean neighbours: that is, the relationship to the north between Costa Rica and Nicaragua. As
the Court is aware, Costa Rica and Nicaragua sh are a land boundary that stretches from the Pacific
Ocean to the Caribbean Sea. In addition, Co sta Rica and Nicaragua enjoy a maritime boundary
relationship in both the Pacific and the Caribbean. Despite efforts by Costa Rica and Nicaragua to
agree their maritime boundaries, those efforts have not been successful and the two States continue
to maintain boundary positions that create large overlapping maritime areas.
18. Costa Rica is not here to litigate its undelimited maritime boundaries with Nicaragua. As
the Agent stated, Costa Rica believes that negot iation is the best method for resolving these
differences, and is confident that its outsta nding maritime boundary with Nicaragua in the
Caribbean can be agreed through negotiation. Wh en that does occur, the agreed line will form the
northern limit of the area in which Costa Rica has a legal interest. However, in the absence of an
agreed line, Costa Rica will posit a boundary betw een its maritime areas and those that would
pertain to Nicaragua in accordance with interna tional law. Costa Rica does not ask the Court to
decide this boundary. Instead, this notional boundary must be put forward to demonstrate to the - 37 -
Court that there is a significant overlap between the area in which Costa Rica has a legitimate legal
interest and the area in dispute between the Parties to this case.
19. Costa Rica has not published a specific unilateral claim to maritime area in the
Caribbean, preferring instead to rely on the language of its Constitution in which Costa Rica claims
maritime area in accordance with the principles of international law. What then are the principles
of international law that govern maritime boundary delimitation?
20. The governing principle of interna tional maritime boundary delimitation is that a
delimitation should produce an equitable solution or result. The Court has grappled with this rather
vague principle over the years and has developed a procedural methodology for arriving at an
equitable solution. This methodology was articulat ed most recently in the maritime delimitation
case in the Black Sea between Romania and Ukraine. In its unanimous decision the Court wrote:
“When called upon to delimit the continental shelf or exclusive economic zones, or to draw a single
delimitation line, the Court proceeds in defined stages.” ( Maritime Delimitation in the Black Sea
(Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 37, para. 115.) In the first stage the Court
30
establishes a provisional delimitation line usually based on the equidistance method . In the
second stage the Court “consider[s] whether there ar e factors calling for the adjustment or shifting
31
of the provisional equidistance line in order to achieve an equitable result” . In the third stage the
Court verifies the equity of the delimitation by checking that “no great disproportionality of
32
maritime areas is evident by comparison to the ratio of coastal lengths” .
21. When applied in the Black Sea, this three-stage approach yielded an equidistant maritime
boundary between the opposite and adjacent mainland coasts of the parties, giving no effect to the
insular feature in the area beyond its own territorial sea, and making no adjustment to the line
despite a certain level of disproportionality between coastal length and maritime area ratios.
22. In some circumstances it has not been possible to construct a provisional delimitation
line based on equidistance as a result of unstabl e coastline and the difficulty of determining the
location of base points. This was the situati on in the recent delimitation between Nicaragua and
30Application for permission to intervene by the Republic of Costa Rica, p. 37, para. 118.
31
Ibid., p. 37, para. 120 (citation omitted).
32Ibid., p. 39, para. 122. - 38 -
Honduras in the Caribbean Sea. In these circumst ances, the Court has used methods other than
strict equidistance to construct a provisional de limitation line. In the delimitation case between
Nicaragua and Honduras, the Court used a bisector of the angle of the general directions of the
mainland coasts. This is also a distance-based me thod, but one that relies on a generalized version
of coasts. Here, too, the Court’s approach yi elded a distance-based maritime boundary, giving no
effect beyond 12 nautical miles to the insular features in the area, and making no
proportionality-based adjustment to the line.
23. Although these two most recent delimitation cases resulted in largely unadjusted,
distance-based delimitation lines, there are situa tions in which distance-based methods will not
produce an equitable result. This is particularly true in circumstances in which one State is located
at the back of a coastal concavity 33.
24. The specific application of the three-stage delimitation process has varied from one
maritime boundary case to another. Nonetheless, several points can be drawn from the decisions.
First, mainland coastal configuration or coastal geography is the foremost concern in maritime
boundary delimitation. Second, small islands are normally given no weight in delimitations,
especially in lateral delimitations between adjacen t States. Islands typically are, however, given
12-nautical-mile territorial seas in these circumstances. Third, in order to adjust a line to account
for disproportionality between coastal length and ma ritime area, the disproportion must be quite
significant. Fourth, and finally, in certain co astal configurations distance-based delimitation
methods require adjustment in order to achieve an equitable result.
25. What then is the concrete effect of these principles when applied to the relationship
between Costa Rica and Nicaragua in the Caribbean Sea?
26. The map now on the screen reflects the area to the north and north-east of Costa Rica’s
Caribbean coast that is within 200nautical mile s of that coast. Costa Rica would be entitled to
exercise its sovereign rights and jurisdiction in this area in the absence of any Nicaraguan maritime
entitlement. Of course Nicaragua also has maritime entitlements off its coast. In fact, several of
Nicaragua’s figures in the written pleadings in this case indicate that there would be a significant
33
See, e.g., North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3, pp. 17–18, 48–49, paras. 8, 88–89. - 39 -
overlap between area claimed by Nicaragua and area to which Costa Rica is entitled 34. At some
point in time this overlap must be divided be tween Costa Rica and Nicaragua in a way that
achieves an equitable result. Now is not that time. However, for the purpose of Costa Rica’s
request for permission to intervene, it is necessar y to present a depiction of a line that reasonably
approximates an equitable result.
27. As discussed, this Court has developed a procedural method for reaching such a result.
Costa Rica has applied that method in this interv ention process and has concluded that the relevant
principles of international law when applied to this coastal geography, would result— at a
minimum — in a lateral equidistant boundary drawn from the mainland coasts of Costa Rica and its
35
adjacent neighbour, Nicaragua . That line — an equidistant line drawn from the mainland coasts
of Costa Rica and Nicaragua without adjustment — is now shown on the screen.
28. We should take a moment to be clear about what this line does and does not represent.
This line is not a negotiating position. It is not a maximum plausible claim. And, most
importantly, it is not a line that Costa Rica is asking the Court to delimit. Instead, this is a line that
reflects a restrained interpretation of the principles of international law applied to this particular
coastal configuration. It does not, for exampl e, take account of Costa Rica’s disadvantaged
position at the back of a coastal concavity. It represents a reasonable northern limit of the
minimum maritime area in which Costa Rica has a legal interest. It is used here only to
demonstrate, for the purpose of this preliminary proceeding, that Costa Rica has a legal interest that
is situated in the midst of the delimitation case between Nicaragua and Colombia. Under this
hypothetical delimitation scenario between Cost a Rica and Nicaragua developed in accordance
with international law and notwithstanding othe r third State interests, Costa Rica has a legal
interest in the area now shown in blue.
29. At this stage in the proceedings Costa Rica is not required to argue a detailed
delimitation case. Instead Costa Rica need only show that a delimitation decision of the Court
could affect a legal interest of Costa Rica’s. This would be the case if there were any overlap
whatsoever between the area in which Costa Rica has a legal interest, as shown on the map, and the
34
MN, figs. I & II; RN, figs. 3-1, 3-10, 4-5, 6-1, 6-5, 6-7, 6-8, 6-9, 6-10, & 6-11.
3Application for permission to intervene by the Republic of Costa Rica, p. 3, para. 14. - 40 -
area in dispute between the Parties to this case. In Costa Rica’s view there is a rather large overlap
between these two areas, an overlap of approximately 30,000 sq km.
The maritime area in dispute between the Parties is the subject-matter of the present dispute
30. Mr. President, let me turn now to the subject-matter of the main case between Nicaragua
and Colombia in order to demonstrate the significant overlap between that subject-matter and Costa
Rica’s legal interest. For the purpose of Costa Ri ca’s intervention — the scope of which does not
include issues of island sovereignty— the subject -matter of this case is the maritime area in
dispute between the Parties and the division of that area in the Court’s delimitation decision.
31. Colombia appears to accept that Costa Rica ha s a legal interest that may be affected by
the delimitation decision in this case. Nicaragua does not. Nicaragua’s argument seems to be that
there is no possible intersection between the line th at Nicaragua has asked the Court to delimit and
the area in which Costa Rica has a legal interest. In support of its opposition, Nicaragua points out
“that the line of delimitation it seeks with Colombia is located substantially east of the furthest
200 nm EEZ claim of Costa Rica” 36, and Nicaragua refers to a quotation from Costa Rica’s
Application in which Costa Rica wrote that Nicaragua’s new line ⎯ the one from the Reply ⎯ is
37
“beyond any area to which Cost a Rica claims an entitlement” . Finally, Nicaragua writes that
“this admission in itself should be enough to dismiss the Application of Costa Rica” 38.
32. Well, before we pack up and head home, perhaps we should take a closer look at
Nicaragua’s logic. The map on the screen shows the minimum area in which Costa Rica has a
legal interest. Adding both of Nicaragua’s maritime boundary claims in this case, the dashed line
39
to the west is the claim made by Nicaragua in its Memorial . The solid line to the east is the new
claim made by Nicaragua in its Reply 40. Nicaragua would have the Court believe that the only area
36
Written Observations of the Republic of Nicaragua on the Application for permission to intervene filed by the
Republic of Costa Rica, p. 10, para. 27; emphasis added.
37
Ibid., p. 13, para. 32.
38Ibid., p. 2, para. 3.
39MN, pp. 266–267, “Submissions” para. 9.
40RN, pp. 239-240, “Submissions” para. 3. - 41 -
in dispute between the Parties “is where the Parties’ continental shelf entitlements overlap” . That41
area is now shown on the screen.
33. But the area in the vicinity of Nicaragua’s claimed boundary does not constitute the
entire subject-matter of this delimitation case. In an attempt to convince the Court that Costa Rica
should not be allowed to intervene, Nicaragua has ignored the fact that there is another party to the
main case. Colombia, not surprisingly, has a di fferent perspective than Nicaragua on the question
of delimitation. Colombia’s claimed bounda ry against Nicaragua, depicted in its
42
Counter-Memorial and Rejoinder, has now been added to the map on the screen .
34. These two or three lines, Nicaragua’s in the east and Colombia’s in the west, do not stand
alone. Although they are separated from each ot her by hundreds of nautical miles they are not
disembodied lines drifting at sea, instea d they are inextricably linked to the areas of that sea
claimed by each of the Parties to this case. The lines themselves are merely the outermost limits of
the areas in which the Parties claim maritime entitlements as against each other. The area between
the lines is the area claimed by both Nicaragua and Colombia. This is the area in dispute between
the Parties. This is the subject-matter of the case, the decision in which may affect Costa Rica’s
legal interest. And that area has now been added to the map.
Because the area that is subject-matter of the present dispute and Costa Rica’s area of legal
interest overlap, Costa Rica’s legal interest may be affected by the decision in this case
35. The graphic now on the screen captures the essence of Costa Rica’s intervention
argument: there is a significant overlap between the area in which Costa Rica has a legal interest
and the area in dispute between the Parties to the main case. Any delimitation decision in this case
that enters that area of overlap would affect Costa Rica’s legal interest.
36. What you see on the screen is, essentially, a two-set Venn diagram. One set, in light red,
is the part of the Caribbean Sea in dispute betw een the Parties in this case, and is the very
subject-matter of the delimitation case between Nicaragua and Colombia. It is bounded on the east
and on the west by the boundary claims of the Part ies against each other, and on the south by the
southern limit of Nicaragua’s so-called “pot ential EEZ entitlement” combin ed with its area of
41
RN, p. 157, para. 6.27.
42CMC, p. 425, “Submissions” para. (b); RC, p. 337, “Submissions” para. (b). - 42 -
extended continental shelf, both as depicted in Nicaragua’s Reply 43. The other set, in blue, is the
part of the Caribbean Sea in which Costa Rica has an interest of a legal nature. It is bounded by an
agreed boundary with Panama, a notional boundary with Nicaragua and the outer limits of Costa
Rica’s EEZ entitlement. The purple or the dark blue area is the intersection of the two sets. It
represents the area in dispute in this case in wh ich Costa Rica has a legal interest. The very
existence of the purple area demonstrates that in the present case the legal interests of Costa Rica
form part of the subject-matter of the delimitation decision in this case and may be affected by that
decision.
37. You may hear from one or both of the Parties that there is something wrong with either
the shape or the size of the purple area shown he re. Costa Rica submits that the approximately
30,000sqkm purple area on this map is an accu rate representation of the intersection between
Costa Rica’s minimum area of interest and the area in dispute between the Parties. However, even
if the purple area were smaller or a different shape, the existence of any purple area whatsoever
would be sufficient to demonstrate that the delimitation decision in this case may affect the legal
interest of Costa Rica.
Without intervention by Costa Rica, the Court’s decision in this case could prejudice Costa
Rica’s legal interest
38. Mr. President, allow me to turn to the question of how, exactly, a decision in this case
might affect the legal interest of Costa Rica. The Parties have asked the Court to delimit a
maritime boundary between them. They have put forward their boundary positions and staked out
the area in dispute. At the completion of oral argument on the merits, it will be for the Court to
render a delimitation decision that divides that di sputed area. Costa Rica does not presume to
know what that delimitation decision will be. Howe ver, Costa Rica has contemplated the possible
outcomes and many of them could indeed affect its interests.
39. Although there are many possible delimitati on results in this case, the boundary is likely
to have certain characteristics. First, the mariti me boundary decided in this case is likely to fall
somewhere between the claims of the Parties. Second, whether the boundary is drawn between
43
RN, figs. 3-10, 4-5, 6-5, 6-9, 6-10, & 6-11. - 43 -
opposite islands as Colombia has urged, or between opposite mainland coasts or hypothetical
continental shelf outer limits as Nicaragua has urge d, it is likely to trend — generally speaking —
north-south. Third, in the congested geography of the south-west Caribbean Sea the boundary will
run, for its entire length, within 200nautical miles of the territory of the Parties or of a
neighbouring State. Taking these three character istics into account, the boundary relationship
between Nicaragua and Colombia must necessarily end in the north and the south where their
maritime areas meet an area in which a third State has an interest. In other words, a trilateral
boundary relationship will exist at both ends of the Nicaragua-Colombia boundary. In the south,
that trilateral relationship could be between the Parties to this case and Costa Rica.
40. In both the Counter-Memorial and Rejoinde r, Colombia took note of this potentially
problematic issue writing that “there is a question how far the median line should be prolonged to
the south given the potential interest s of third States in the region” 44. Indeed this question — how
far south the boundary between Nicaragua and Co lombia should extend considering the existence
of Costa Rica’s interests— this is the question that concerns Costa Rica in these proceedings.
Costa Rica has no interest in the Court’s decision regarding title to territory, the effect of small
insular features, the east-west location of the Nicaragua-Colombia boundary, or, for that matter, the
northern terminus of the boundary. The question th at concerns Costa Rica is the location of the
southern terminus of the boundary that will be delimited in this case and that will divide the area in
dispute between the Parties. Costa Rica has requested permission to intervene in this case so that it
may inform the Court of the extent of Costa Rica’s legal interests and thereby help the Court to
answer this important question regarding the southern endpoint of its boundary.
41. The question of endpoints in the vicinity of third States is of course not unique to the
delimitation between Nicaragua and Colombia, but instead is a question that arises in the majority
of bilateral delimitations. State practice and th e practice of international courts and tribunals
indicate a strong concern to avoid entering areas in which third States have expressed an interest or
might reasonably maintain an interest. This c oncern arises precisely because to enter those areas
could prejudice the interests of the third State, en flame an existing dispute, or, in the worst case,
44
CMC, p. 394, para. 9.34; RC, p. 312, para. 8.78. - 44 -
create a new dispute where none previously existed. It is not necessary at this point in the
proceedings to go into a full assessment of State pr actice or the practice of courts and tribunals on
this issue. It should suffice to briefly review the last four maritime delimitation cases decided by
this Court over the last decade.
42. In all four of those cases this Court encountered the problem of third State interests and
avoided entering third State areas by indicati ng the continuation of the boundary between the
parties from a point safely beyond the area of third State interest 45. In the case between Romania
and Ukraine in the Black Sea, Bulgaria and Turk ey were the third States to the south of the
delimitation. The Court drew the final segment of its line from a fixed point located safely beyond
the area of third State interest on a constant b earing “until it reaches the area where the rights of
third States may be affected” (Maritime Delimitation in the Black Sea (Romania v. Ukraine) ,
Judgment, 3 February 2009, p. 67, para. 219; emphasis added). The Court faced the same problem
in the case between Nicaragua and Honduras in the Caribbean Sea with respect to third States east
of the delimitation area; in the case between Ca meroon and Nigeria in the Gulf of Guinea with
respect to Equatorial Guinea immediately to the south of the delimitation area; and in the case
between Qatar and Bahrain in the Arabian Gulf with respect to Iran in the north and Saudi Arabia
in the south. In all of these cases the Court con tinued its boundary in a specified direction from an
endpoint safely beyond the area of third State interest.
43. In only one of these instances had the relevant third State delimited its boundaries with
both parties to the case, thereby circumscribing its area of interest with respect to both parties. In
the absence of agreed boundaries between the third Stat e and both parties, the Court is left to rely
upon the parties themselves to indicate the limits of third State interests. However, if the parties’
representations were incorrect and if the Court were to rely on them in its delimitation decision, the
line decided by the Court could unintentionally penetrate areas of third State interest and prejudice
future delimitations between the third State and the parties to the Court’s decision.
45Maritime Delimitation in the Black Sea (Romaniav. Ukraine), Judgment, 3 February 2009; Territorial and
Maritime Dispute between Nicaragua and Honduras in the Carribean Sea (Nicaragua v. Honduras), Judgment, I.C.J.
Reports 2007, p. 659; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial
Guinea intervening), Judgment, I.C.J. Reports 2002 , p.303; Maritime Delimitation and Territorial Questions between
Qatar and Bahrain (Qatar v. Bahrain), Judgment, I.C.J. Reports 2001, p. 40. - 45 -
44. Here, Costa Rica and Nicaragua have not agreed their maritime boundary. The map now
on the screen shows two very different lines extending from the Costa Rica-Nicaragua land
boundary terminus at Punta Castilla. The north ern line is Costa Rica’s modest rendition of an
equitable result described earlier. The southern line is Nicaragua’s “roughly sketched” southern
limit of its potential EEZ entitlement. If the Cour t were to delimit a boundary between Nicaragua
and Colombia ending anywhere south of Costa Rica ’s line, it would impair Costa Rica’s ability to
negotiate an equitable boundary with Nicaragua and it would put in jeopardy Costa Rica’s area
between these lines. This is one concrete wa y in which the Court’s delimitation decision may
affect Costa Rica’s legal interest.
45. The Court’s practice of stopping its delimita tion lines before entering areas of third State
interest manifests a strong concern to avoid prejudicing those interests by avoiding the division of
areas between parties to a case when those areas are al so claimed by a third State. However, in
order to fully delimit between the parties while avoiding prejudice to third State interests, the Court
must have correct and complete information about the limits of the third State area. In their
pleadings to date the Parties have not provided this information. Costa Rica intends, by intervening
in this case, to correct the record and to inform the Court of the true extent of its interests.
Conclusions
46. Mr.President, Costa Rica’s argument in this phase of the proceedings is really quite
simple: there is a significant overlap between the area in which Costa Rica has a legal interest and
the area disputed by the Parties to this case. If the Court’s delimitation of that disputed area were
to extend into the area in which Costa Rica has a legal interest, that delimitation decision would
affect Costa Rica’s legal interest. Costa Rica requests permission to intervene in order that it might
inform the Court of the nature and extent of its legal interests and thereby protect those interests.
47. Mr. President, with those remarks I am finished for the day. I thank you for your
attention, and I ask the Court to please call on my colleague, SergioUgalde, who will deliver the
final presentation for Costa Rica today.
The PRESIDENT: I thank Mr.CoalterLathr op for his presentation. Now I call the last
speaker this morning, Mr. Sergio Ugalde. - 46 -
UMGr. LDE:
T HE EFFECTIVE PROTECTION OF C OSTA R ICA ’S LEGAL INTEREST ,THE NATURE
OF INTERVENTION ,AND ASSOCIATED ISSUES
1. Mr.President, distinguished Members of the Court. It is a great privilege to have the
opportunity to appear before you today on behalf of Costa Rica.
2. Mr. Lathrop has just demonstrated that Cost a Rica does have an interest of a legal nature
that may be affected by the decision in this case.My task today is to demonstrate that, to protect
Costa Rica’s interests in the Caribbean Sea, Article 59 of the Statute and the possibility of bringing
two new individual cases against the Parties to th is case, are no substitute for intervention under
Article 62.
Costa Rica’s interests of a legal nature are no t sufficiently protected by Article59 of the
Statute of the Court
3. At the outset, I would like to recall what Nicaragua stated in its Written Observations to
Costa Rica’s Application to intervene. Nicaragua said:
“Costa Rica has available the jurisdiction of the Court with respect to both
Nicaragua and Colombia, at least by invoking the Pact of Bogota, to which all three
States are Parties. The significance of this is that Costa Rica is not only protected
against any decision of the Court in this case by Article 59 of the Statute, but also by
its ability to file an independent claim against either or both Parties, in the event its
46
legal interests so require.”
4. By this statement, Nicaragua implies that, despite the fact that Costa Rica may have an
interest of a legal nature that may be affected by the decision in this case, Costa Rica need not be
allowed to intervene under Article 62, because it is protected by Article 59 of the Statute, and also,
alternatively, by its ability to bring new claims be fore this Court against the Parties in the instant
case. This argument is flawed for three reasons: first, Article 59 protection is, in practical terms,
insufficient. Second, the avenues suggested by Nicaragua do not provide the Court with what it
needs, namely, complete and correct information a bout Costa Rica’s interests that may be affected
by the decision of the Court. And third, bringi ng new claims to protect legal interests, that
otherwise could be protected by means of Article 62, is inefficient, unnecessary and only serves to
46Written Observations of the Republic of Nicaragua on the Application for permission to intervene filed by the
Republic of Costa Rica, p. 3, para. 9. - 47 -
compound the problem faced by the Court in this case, which is, lack of information about the true
extent of Costa Rica’s interests.
5. I will begin by considering Nicaragua’s argument that Article59 protects Costa Rica
against any decision of the Court. Whilst it is true that in the eventuality of a decision affecting
Costa Rica’s legal interests, Article59 would afford protection from the direct legal effects of a
binding decision to which it is not a party, this is merely a legal technicality that, in practical terms,
offers only limited protection to Costa Rica, especially in the circumstances of this case.
6. Costa Rica acknowledges that Article59 sta nds as an important pillar in the system of
international justice. It gives compulsory force to the judgments of the Court between the parties
and in respect to a particular case. Taken together with Article 60, in any specific case, it gives to a
judgment of the Court the character of res judicata.
7. In addition, Article59 embodies another impor tant international law principle: that a
decision of the Court has no binding force for third States not party to a particular case.
Notwithstanding this principle, I will show that in certain circumstances Article 59 cannot prevent
a judgment of the Court from affecting third State interests.
8. Article 59 ascribes “force of law” to a j udgment vis-à-vis the parties bound by it. But the
fact that a judgment may have binding force only as between the parties to a particular case does
not prevent, per se, certain effects ⎯ to which I will refer later ⎯ from transcending the judgment,
carrying with them implications of fact and law th at may be prejudicial to the legal interests of
third States.
9. In the Continental Shelf case between Libya and Malta, the Court examined certain issues
related to third State legal interests. The Court stated:
“there can be no doubt that the Court will, in its future judgment in the case, take
account, as a fact, of the existence of other States having claims in the region. As the
Permanent Court of International Justice emphasized in the case of the Legal Status of
Eastern Greenland,
‘another circumstance which must be taken into account by any tribunal
which has to adjudicate upon a claim to sovereignty over a particular
territory, is the extent to which the sovereignty is also claimed by some
other Power’,
and this observation, which is itself unrelated to the possibility of intervention, is no
less true when what is in question is the ex tent of the respective areas of continental - 48 -
shelf over which different States enjoy ‘s overeign rights’. The future judgment will
not merely be limited in its effects by Article 59 of the Statute: it will be expressed,
upon its face, to be without prejudice to the rights and titles of third States.”
(Continental Shelf (Libyan Arab Jamahiriya/M alta), Application for Permission to
Intervene, Judgment, I.C.J. Reports 1984 , pp.26-27, para.43; internal citation
omitted.)
10. From this reasoning, three points can be drawn: first, the Court must take account of
third State interests ⎯ irrespective of Article59; second, Article59 does protect, but not
completely; and third, the Court may expressly state in its judgment that third States will not be
prejudiced by the decision.
11. The third point raises the following questi on: even when a judgment expresses that it
does not prejudice third State legal interests, is this statement sufficient to fully protect those
interests? The answer is no. No, because a gene ral statement of this kind cannot afford more
protection than Article59 itself. Without comple te and correct information about the rights and
interests claimed by third States, a decision of the Court, while not binding on third States, may
indeed produce prejudicial effects not fully consider ed in light of arguments or facts not known to
the Court. Moreover, Article59, applied ex post facto , does not offer real protection in these
circumstances.
12. Mr. President, I will now address the problem of information. In this case, the Court has
not been provided with complete information a bout the interests of Costa Rica in the Caribbean
Sea. Therefore, I will examine some matters that will conclude with a material example of how
important facts in a case may evade the Court’s atte ntion, in turn prejudicing a third State’s legal
interests without sufficient protection from Article 59.
13. Nicaragua asserts what it considers to be th e area subject to delimitation in figure 3-1 of
its Reply. The Reply also shows what Nicara gua’s potential EEZ entitlement would be according
to figures 4-5, 6-5, 6-9, 6-10 and 6-11. Nicaragua has not denied that what it seeks from the Court
is not merely the drawing of a boundary line with Colombia, but also the recognition of the
maritime areas bounded by that line as belonging to Nicaragua. As these figures show, there is no
indication whatsoever of potential conflicting or overlapping interests with other countries,
especially with Costa Rica. - 49 -
14. In its Written Observations, Nicaragua argued that this point ⎯ Nicaragua’s claimed
47
entitlement to the area bounded by the requested delimitation line ⎯ is irrelevant , but does not
explain why it is so. Despite Nicaragua’s plea of irrelevance, there is a clear and very relevant
intrusion by Nicaragua’s southern lines (bounding Nicaragua’s claimed maritime areas) on
Costa Rica’s maritime entitlements, as has been demonstrated by Mr. Lathrop. Thus, it is obvious
that this is a fact quite relevant to Costa Rica’s Application.
15. Furthermore, Nicaragua also asserts th at “all these figures in the Reply refer to the
general area of the ‘potential EEZ entitlement’, an d do not imply, under any possible reading, a
claim to the entirety of the areas thus roughly sketched” 48. This remarkable admission underscores
two points: First, that Nicaragua presented to the Court figures which do not mean what they
intend to prove, that is, what Nicaragua claims the precise delimitation area is, and what
Nicaragua’s precise potential EEZ entitlements are. And second, that these figures, as drawn, do in
fact intrude upon legal rights and interests of third countries, to be precise, the legal rights and
interests of Costa Rica. In addition, if these fi gures do not imply Nicaragua’s claim to the entirety
of the areas “roughly sketched”, this can only mean that a great extent of the areas erroneously
depicted as Nicaraguan ⎯ but that are not ⎯ comprise an outright intrusion into maritime areas
subject to the rights and interests of Costa Rica and perhaps other third States.
16. If, indeed, the figures presented and relie d upon by Nicaragua “do not imply, under any
possible reading, a claim to the entirety of the areas thus roughly sketched” as it is so candidly
asserted, why did Nicaragua not clarify to the Court, at the time of submission, that these figures do
not represent Nicaragua’s actual and precise claims? Had Costa Rica not made this request for
permission to intervene, these significant facts would have simply gone by unnoticed and
concealed from the Court’s attention! If the Court made its delimitation decision on the basis of
Nicaragua’s apparent claims, can we confidently say that Article59 would have fully protected
Costa Rica in this circumstance? Of course not.
47
See Written Observations of the Republic of Nicaragua on the Application for permission to intervene filed by
the Republic of Costa Rica, p. 13, para. 33.
4Ibid., p. 12, para. 31. - 50 -
17. This fact ⎯ the limited protection afforded by Article59 ⎯ has been examined by
distinguished jurists and by the Court itself. In his dissenting opinion in the Libya/Malta case,
JudgeOda considered that Article59 did not always sufficiently protect the interests of a third
State. He affirmed: “Article 59 of the Statute may not be accepted as guaranteeing that a decision
of the Court in a case regarding the title erga omnes will not affect a claim by a third State to the
same title.” ( Continental Shelf (Libyan Arab Jamahiriya/M alta), Application for Permission to
Intervene, Judgment, I.C.J. Reports 1984, p. 109, para. 37.)
18. Judge Jennings, also in his dissenting op inion in the same case, went even further,
emphasizing how Article 59 only provided technical protection. He commented:
“the slightest acquaintance with the jurisprudence of this Court shows that Article 59
does by no manner of means exclude the for ce of persuasive precedent. So the idea
that Article 59 is protective of third States’ interests in this sense at least is illusory” .
19. In the Cameroon v. Nigeria case, the Court considered what the limits of Article 59 are,
thus stating:
“The Court considers that, in particular in the case of maritime delimitations
where the maritime areas of several States are involved, the protection afforded by
Article 59 of the Statute may not always be sufficient. In the present case, Article 59
may not sufficiently protect Equatorial Guinea or Sao Tome and Principe from the
effects ⎯ even if only indirect ⎯ of a judgment affecting their legal rights.” ( Land
and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 421, para. 238.)
20. Therefore, Article59 may not always afford sufficient protection to third States in
circumstances where a judgment may carry with it, ev en if only indirectly, results that may affect
their legal rights and interests, particularly in cases concerning maritime delimitations where the
maritime areas of several States could be involved. It follows that intervention fulfils the purpose
of allowing a third State to inform the Court of its interests before the Court renders a possibly
prejudicial decision, from which Article 59 could not sufficiently protect those interests.
4Written Observations of the Republic of Nicaragua on the Application for permission to intervene filed by the
Republic of Costa Rica, p. 157, para. 27. - 51 -
The possible prejudicial effect of a judgment on Costa Rica’s legal interests, Article59
notwithstanding
21. Mr. President, let me now demonstrate how a decision by this Court, in the instant case,
may have practical and legal effects from whic h Article59 provides no real protection. A
judgment by this Court, delimiting maritime areas between Nicaragua and Colombia, implies much
more than the allocation of the column of water and sea-bed to the Parties. It entails title to
maritime areas, the right to exercise their sovere ign rights and jurisdiction under international law
in those areas, the right to exclude others from them and the right of enjoyment.
22. Once a judgment has been given, as the Court is aware, most countries under the
jurisdiction of the Court incorporate into thei r own legal framework that final and binding
judgment.
23. In the present case, it is expected that internal laws and regulations implementing the
Court’s decision may be enacted by the Parties. These regulations may range from domestic laws
incorporating the exact coordinates of the maritime areas awarded by the Court, to rules related to
fisheries, the environment, and oil and gas explor ation and exploitation, just to mention the most
common of regulation.
24. Even more importantly, and especially with respect to maritime delimitation, the Parties
claims are not just against each other, but in effect against all comers: that is, a positive declaration
awarding maritime areas is exp ected to be regarded as erga omnes. While it is true, that by virtue
of Article59, a third State with affected lega l interests may oppose the larger scope of the
judgment, that protection, as examined, is quite limited.
25. A judgment by the Court in this case could award, to one Party or the other, areas that
overlap with Costa Rica’s legal interests or rights, or end up being mute on issues relating to the
presence of Costa Rican legal interests in areas subject to decision. This situation gives rise to the
possibility that, either Colombia or Nicaragua, may carry out acts à titre de souverain that would
encroach upon Costa Rican legal rights and interests. It is true that Costa Rica may protest any
such acts carried out in contested maritime areas; but this is little consolation when, in practical
terms, Costa Rica would effectively be deprived of enjoyment of maritime areas it is entitled to by
virtue of international law. Obviously Article 59 would not afford Costa Rica any protection in - 52 -
these circumstances. This could, undoubtedly, be the short-term practical consequence of a
judgment as between Nicaragua and Colombia that does not consider Costa Rica’s legal interests.
26. In addition, there are also long-term legal consequences. A party to a maritime
delimitation case will not only rely on a Court’s judgment recognizing it rights, but it will certainly
use any and all means available to it to secure the full enjoyment of what it considers to be its title.
It would benefit from the compulsory character of a decision of this Court in order to secure its
presence in contested maritime areas, to build up on “custom” or “practice”, and to strengthen its
position vis-à-vis a third State with overlapping claims. This situation not only weakens the legal
position of a third State, but it may altogether divest that third country of any and all enjoyment of
a maritime area that may pertain to it under international law. Again, Article 59 cannot prevent the
erosion of Costa Rica’s legal position in this situation.
27. Mr. President, in light of the maritime clai ms made by Nicaragua and Colombia to areas
where Costa Rica has undisputable legal interests, it is evident that only Costa Rica is capable of
accurately informing the Court of the full extent of those interests, and that Article 59 alone would
not protect Costa Rica from the effects of a judgmen t that may not have considered its interests in
full. It follows, therefore, that the procedure of intervention is the only way by which Costa Rica
can, effectively, inform the Court of its legal interests ⎯ and how a decision may affect them ⎯
for the purpose of assuring their protection by the means afforded by the Statute of the Court.
Jurisdictional and other associated issues
28. Mr.President, I turn now to Nicaragua’s argument that Costa Rica may file an
independent claim against Colombia or Nicaragua on the basis of the Pact of Bogotá, as a means to
50
protect its legal interests . It seems that the Nicaraguan hypothesis is that, if Costa Rica can file
independent claims against the Parties here, there is no need to allow its intervention in the instant
case.
29. While Article 62 does not state that a third pa rty wishing to intervene need to fulfil any
particular jurisdictional requirements, Article 81, paragraph 2 (c), of the Rules of Court states that a
third party must indicate any basis of jurisdiction in support of its application to intervene.
50
See supra, para. 3. - 53 -
30. In its Application, Costa Rica informed the Court that it had made a declaration under
Article 36, paragraph 2, of the Statute and that it is a party to the Pact of Bogotá. Elsewhere in the
Application, Costa Rica asserted that it does not seek to become a party to the case between
Nicaragua and Colombia, and that it only seeks to in tervene as a non-party under Article 62 of the
Statute. It additionally pointed out that, in similar circumstances, the Court has permitted
non-party intervention in the absence of a valid ju risdictional link between the would-be intervener
and the parties to the case. As a matter of fact, a jurisdictional link is only required if the intervener
wishes to become a party to a case, as the Court observed in the Indonesia/Malaysia case .1
31. However, it seems that Nicaragua advo cates a procedural shift concerning non-party
intervention, implying that protection of a third St ate interest in a particular case would no longer
be achieved by means of Article 62 of the Statute, but rather by filing an entirely new case either on
the basis of Article 36 of the Statute or by some other jurisdictional instrument, such as the Pact of
Bogotá.
32. Nicaragua’s novel jurisdictional doctrine further suggests that Costa Rica, having a
jurisdictional link to the Parties to this case, ma y be barred from intervening solely on the basis of
Article62. If this argument holds ground, by implication, a third State could be barred from
intervening in a case if that country can file an i ndependent claim against the parties. Nicaragua’s
novel hypothesis has the effect of reading Article62 out of the Statute for third States with a
jurisdictional link to the Parties in an ongoing case, and equates the process of intervention with the
initiation of a new case.
33. In light of this argument, let me make tw o points about intervention. First, intervention
has the objective of allowing third States, with inte rests or rights of a legal nature that may be
prejudiced or affected by a decision of the Court, to protect them by a special incidental procedure,
that is, a procedure that stems out of and is closely connected to the principal case. This protection
is not sought in the form of a declaration of rights by the Court in favour of the intervener; rather,
it is laid out simply as a request to allow the in tervener to inform to the Court its rights and
interests. To accomplish this objective, the existence of a jurisdictional link is immaterial.
5Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia/Malaysia), Application to Intervene, Judgment,
I.C.J. Reports 2001, p. 589, para. 35. - 54 -
34. Second, in order to make use of intervention, the interests or the rights of a legal nature
that a third State wishes to protect need not form part of a dispute per se. A third State need only
show that a decision of the Court may, I repeat, may, affect those interests and rights for
intervention to be allowed. Thus, intervention is available not to resolve disputes but, rather, to
avoid new ones.
35. As said, Costa Rica’s intervention is not set out to establish the existence of a dispute or
to resolve one with the Parties to this case.
36. In addition, Costa Rica does not consider that the existence of an unresolved maritime
delimitation with Nicaragua precludes Costa Rica, in any way, from informing the Court of its
rights and interests that may be prejudiced or affected by the decision of the Court in this case.
37. In the El Salvador/Honduras case, a Chamber of the Court considered that the procedure
of intervention fulfils a purpose other than the determination of a new dispute. It observed:
“The function of intervention is, as indicated in the 1984 Judgment on the
Application of Italy for permission to intervene..., and as explained below,
something wholly different from the determ ination of a further dispute between the
State seeking to intervene and one or both of the parties.” ( Land, Island and Maritime
Frontier Dispute (El Salvador/Honduras), Application to Intervene , Judgment,
I.C.J. Reports 1990, pp. 113-114, para. 51.)
38. It is thus clear that intervention functions as an instrument to protect third parties’ legal
interests, and not to determine the existence of disputes, or to resolve those disputes.
39. Setting aside Nicaragua’s mistaken hypothesis about the significance of a possible
jurisdictional link, starting a new case against eith er or both Parties, as Nicaragua suggests, is a
highly inefficient way to protect Costa Rica’s le gal interests, and most importantly, does not
resolve the underlying problem of protecting those interests from the effects of a judgment in this
case. Bringing two new cases is inefficient, becau se it would unnecessarily burden the Court and
the parties with issues for which there is a pe rfectly sound and proper procedural instrument
available by way of Article 62. It does not solve the underlying problem in this case because the
Court would still be uninformed of the full extent of Costa Rica’s interests ⎯ in fact it would
multiply the informational problems, as they would also arise in the new cases.
40. If third States with legal interests to prot ect were asked to bring separate cases for that
purpose, it would render Article 62 without use or meaning. Not only would this call for excessive - 55 -
litigation, it is altogether unnecessary. Can this Court imagine what sort of difficulties it would
face by having to resolve a case, only to confront a number of new derivative cases solely for the
protection of third State interests? I think we all understand the implications.
41. Thus, we must conclude that when a jurisdictional link is alleged, there is no basis, in law
or in fact, for the novel idea that third party inte rests in a specific case may only be protected by
means of bringing a new, full-fledged case, to the detriment of the procedure already set forth by
Article 62. Therefore, there is no basis for entertaining Nicaragua’s novel hypothesis.
42. Mr. President, as I come to a close, Costa Rica wishes to state that it is confident that this
Court will look solely at the merits of its Applica tion and the circumstances of this case, and that it
will find that Costa Rica’s request for permission to intervene is based on solid legal and factual
grounds, thus warranting its acceptance.
43. Mr.President, this concludes Costa Rica’s presentation for today. I thank you and the
distinguished members of this Court for your kind attention.
The PRESIDENT: I thank you, Mr. Sergio Ugalde, for your presentation. That brings to an
end today’s sitting. The Court will meet again on Wednesday 13 October 2010 at 9.30 a.m. to hear
the first round of oral argument of Nicaragua. The Court is adjourned. Thank you so much.
The Court rose at 12.30 p.m.
___________
Audience publique tenue le lundi 11 octobre 2010, à 10 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