Territorial and Maritime Dispute (Nicaragua v. Colombia) - Preliminary Objections - The Court finds that the 1928 Treaty between Colombia and Nicaragua settled the matter of sovereignty over the islan

INTERNATIONAL COURT OF JUSTICE

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Website: www.icj-cij.org

Press Release
Unofficial

No. 2007/30
13 December2007

Territorial and Maritime Dispute
(Nicaragua v. Colombia)

Preliminary Objections

The Court finds that the 1928 Treaty between Colombia and Nicaragua settled the matter of
sovereignty over the islands of San Andrés, Providencia and Santa Catalina, that there is no
extant legal dispute between the Parties on that question, and that the Court thus cannot
have jurisdiction over the question; the Court further finds that it has jurisdiction to

adjudicate upon the dispute concerning sovereignty over the other maritime features
claimed by the Parties and upon the dispute concerning the maritime delimitation
between the Parties

THE HAGUE, 13 December 2007. The Internatio nal Court of Justice (ICJ), the principal
judicial organ of the United Nations, today delivered its Judgment on the Preliminary Objections
raised by Colombia in the case concerning Territorial and Maritime Dispute (Nicaragua v.
Colombia).

In its Judgment, the Court

(1) As regards the first preliminary objection to jurisdiction raised by the Republic of
Colombia on the basis of Articles VI and XXXIV of the Pact of Bogotá:

(a) By thirteen votes to four,

Upholds the objection to its jurisdiction in so far as it concerns sovereignty over the islands of
San Andrés, Providenciaand Santa Catalina;

(b) Unanimously,

Rejects the objection to its jurisdiction in sr as it concerns sovereignty over the other
maritime features in dispute between the Parties;

(c) Unanimously,

Rejects the objection to its jurisdiction in sr as it concerns the maritime delimitation

between the Parties; - 2 -

(2) As regards the second preliminary objection to jurisdiction raised by the Republic of
Colombia relating to the declarations made by the Parties recognizing the compulsory jurisdiction

of the Court:

(a) By fourteen votes to three,

Upholds the objection to its jurisdiction in so far as it concerns sovereignty over the islands
of San Andrés, Providencia and Santa Catalina;

(b) By sixteen votes to one,

Finds that it is not necessary to examine the objection to its jurisdiction in so far as it
concerns sovereignty over the other maritime fe atures in dispute between the Parties and the
maritime delimitation between the Parties;

(3) As regards the jurisdiction of the Court,

(a) Unanimously,

Finds that it has jurisdiction, on the basis of ArticleXXXI of the Pact of Bogotá, to
adjudicate upon the dispute concerning sovereignt y over the maritime features claimed by the
Parties other than the islands of San Andrés, Providencia and Santa Catalina;

(b) Unanimously,

Finds that it has jurisdiction, on the basis of ArticleXXXI of the Pact of Bogotá, to
adjudicate upon the dispute concerning the maritime delimitation between the Parties.

Reasoning of the Court

⎯ The 1928 Treaty

The Court notes that in 1928 Colombia and Nicaragua signed a Treaty in which Colombia
recognized Nicaragua’s sovereignty over the Mosqui to Coast, as well as over the Corn Islands. In
the same Treaty, Nicaragua recognized Colombia’s sovereignty over the islands of SanAndrés,

Providencia, SantaCatalina, and the other maritime features that form part of the Archipelago of
SanAndrés. The Treaty mentioned that it did not apply to Roncador, Quitasueño and Serrana,
“sovereignty over which [was] in dispute between Colombia and the United States of America”. A

Protocol of Exchange of Ratifications signed in 1930 provided that the San Andrés and Providencia
Archipelago mentioned in the 1928Treaty did “not extend west of the 82nddegree of longitude
west of Greenwich” (82nd meridian).

⎯ The subject-matter of the dispute

The Court observes that Nicaragua and Colombia have presented different views about
whether there is an extant dispute between them and, if so, the subject-matter of that dispute.

Nicaragua argues that the dispute concerns inter alia the validity of the 1928Treaty, the
interpretation of the 1928 Treaty as regards the ge ographical scope of the San Andrés Archipelago,
the sovereignty over the maritime features in th e disputed area, and the maritime delimitation
between the two countries. Nicaragua also asser ts that the question whether the 1928Treaty has

settled all questions between the Parties is “the very object of the dispute”. Colombia contends that
the matters in issue have already been settled by the 1928 Treaty and 1930 Protocol, and that there
is thus no extant dispute over which the Court could have jurisdiction. - 3 -

After consideration of the arguments of the Parties, the Court finds that the question whether
the 1928Treaty and the 1930Protocol settled the ma tters in dispute between the Parties does not

form the subject-matter of the dispute, but is a preliminary question to legal issues in dispute
between the Parties concerning title to territory and maritime delimitation. It concludes that the
issues which constitute the subject-matter of the dispute on the merits are, first, sovereignty over
territory (namely the islands and other maritime features claimed by the Parties) and, second, the

course of the maritime boundary between the Parties.

⎯ The bases of jurisdiction

Nicaragua based the jurisdiction of the Court on the provisions of Article XXXI of the Pact
of Bogotá as well as on the optional clause declara tions made by the Parties. Colombia raised
preliminary objections to both bases of jurisdiction invoked by Nicaragua.

⎯ First preliminary objection

Examining the preliminary objection relating to its jurisdiction under the Pact of Bogotá, the
Court recalls that Colombia claims that the ma tters raised by Nicaragua were settled by the

1928 Treaty and 1930 Protocol and that, pursuant to Articles VI and XXXIV of the Pact, the Court
is without jurisdiction to hear the controversy submitted to it and should declare the controversy
ended. ArticleVI of the Pact provides that r ecourse to the Court is not possible for “matters
already settled by arrangement between the Parties, or by arbitral award or by decision of an

international court, or which are governed by agreements or treaties in force on the date of
conclusion” of the Pact in 1948. Article XXXIV provides that “if the Court . . . declares itself to be
without jurisdiction to hear the controversy, such controversy shall be declared ended”. For its

part, Nicaragua contends that the 1928Treaty a nd its 1930Protocol did not settle the matters in
issue within the meaning of Article VI of the Pact because the Treaty is invalid (Nicaragua argues
that it was concluded, first, in manifest violation of its Constitution in force in 1928 and, second, at
a time when Nicaragua was occupied by the Un ited States and was precluded from rejecting the

conclusion of treaties that the United States demanded it to conclude).

Having reviewed the arguments of the Parties, the Court first notes that it is not in the
interest of the good administration of justice for it to limit itself at the present juncture to stating

merely that there is a disag reement between the Parties as to whether the 1928Treaty and
1930Protocol settled the matters which are the subject of the controversy, leaving every aspect
thereof to be resolved on the merits. It goes on to consider whether the 1928 Treaty was in force
between the Parties when the Pact of Bogotá was co ncluded in 1948. It notes that, for more than

50 years, Nicaragua has treated the 1928 Treaty as valid and never contended that it was not bound
by the Treaty, even after the withdrawal of the last United States troops at the beginning of 1933.
At no time in those 50 years did Nicaragua contend that the Treaty was invalid for whatever reason,
including that it had been concluded in violation of its Constitution or under foreign coercion. On

the contrary, Nicaragua has, in significant ways, acted as if the 1928 Treaty was valid. The Court
thus concludes that the 1928 Treaty was valid and in force on the date of the conclusion of the Pact
of Bogotá.

The Court then turns to the question whether the Treaty and its Protocol settled the matters in
dispute between the Parties and consequently whether the Court has jurisdiction under the Pact.

With respect to the question of its jurisdiction as regards the issue of sovereignty over the

islands of the San Andrés Archipelago named in the 1928Treaty (SanAndrés, Providencia and
Santa Catalina), the Court finds that the question has been settled by the Treaty within the meaning
of ArticleVI of the Pact of Bogotá. The C ourt thus upholds the first Colombian preliminary
objection in this respect. - 4 -

As regards the question of the scope and composition of the rest of the SanAndrés
Archipelago, the Court considers that the 1928Tr eaty fails to provide answers as to which other

maritime features form part of the Archipelago. The Court thus finds that the issue has not been
settled within the meaning of Article VI of the Pact and that it has jurisdiction to adjudicate upon it.
It accordingly rejects the first Colombian preliminary objection in this respect.

As to the question of its jurisdiction concer ning the matter of sovereignty over Roncador,
Quitasueño and Serrana, the Court observes that the terms of the 1928 Treaty make it clear that the
Treaty does not apply to these three maritime features. The Court thus has jurisdiction over the
issue and rejects the first Colombian preliminary objection in this respect.

With reference to the question of its juri sdiction as regards the issue of the maritime
delimitation, the Court concludes that the 1928Tr eaty and the 1930Protocol did not effect a
general delimitation of the maritime boundary between Colombia and Nicaragua. Since this

dispute has not been settled within the meaning of Article VI of the Pact, the Court has jurisdiction
to adjudicate upon it. It thus rejects the first Colombian preliminary objection in this respect.

⎯ Second preliminary objection

The Court notes that Nicaragua has also i nvoked the optional clause declarations made by
the Parties as a basis of the Court’s jurisdiction. In its second preliminary objection, Colombia
asserts that the Court has no jurisdiction on this basis. It argues that it had withdrawn its

declaration by the date of the filing of Nicaragua’s Application and that even if its declaration were
found to be in force at that time, the alleged dispute would fall outside the scope of the declaration
as a result of a reservation which excluded disputes arising out of facts prior to 6January1932.
Nicaragua denies Colombia’s arguments in this respect.

The Court initially notes that the question of whether the optional clause declarations can
provide a distinct and sufficient basis of jurisdiction in the present case only arises in respect of that
part of the dispute relating to sovereignty ove r the three islands named in the 1928Treaty:

San Andrés, Providencia and Santa Catalina. This is because the Court has concluded earlier that it
had jurisdiction under the Pact of Bogotá to deal with all the other aspects of the dispute.
Consequently, no purpose is served by examining whether, in relation to those aspects, the
declarations could also provide a basis of jurisdiction.

The Court observes that Article36, paragraph2, of the Statute expressly requires that in
order for it to have jurisdiction on the basis of optional clause declarations, there must exist a “legal
dispute” between the Parties. Given the Court’s finding that there is no extant legal dispute

between the Parties on the question of the sovereignty over the three islands, the Court cannot have
jurisdiction over this question either under the Pact of Bogotá or on the basis of the optional clause
declarations. In light of the foregoing, the Court finds that no practical purpose would be served by

proceeding further with the other matters raised in Colombia’s second preliminary objection. It
upholds the second preliminary objection raised by Colombia relating to jurisdiction under the
optional clause declarations in so far as it concerns the Court’s jurisdiction with regard to the three
islands.

In conclusion, the Court finds that it has jurisdiction under the Pact of Bogotá t
o adjudicate
upon the dispute concerning sovereignty over the maritime features claimed by the Parties other
than SanAndrés, Providencia and SantaCatalina; and upon the dispute concerning the maritime

delimitation between the Parties. - 5 -

Composition of the Court

The Court was composed as follows: President Higgins; Vice-President Al-Khasawneh;
JudgesRanjeva, Shi, Koroma, Parra-Aranguren, Bu ergenthal, Owada, Simma , Tomka, Abraham,
Keith, Sepúlveda-Amor, Bennouna and Skotnikov; Judges adhoc Fortier and Gaja;
Registrar Couvreur.

Vice-President Al-Khasawneh appends a dissenting opinion to the Judgment of the Court;
JudgeRanjeva appends a separate opinion; JudgesParra-Aranguren, Simma and Tomka append
declarations; JudgeAbraham appends a separate opinion; JudgeKeith appends a declaration;

Judge Bennouna appends a dissenting opinion; Judge ad hoc Gaja appends a declaration.

___________

A summary of the Judgment appears in the document “Summary No.2007/5”, to which
summaries of the declarations and opinions are a nnexed. In addition, this press release, the

summary and the full text of the Judgment can be found on the Court’s website ( www.icj-cij.org),
in the “Press Room” and “Cases” sections.

___________

Information Department:

Mrs. Laurence Blairon, Secretary of the Court, Head of Department (+31 (0)70 302 2336)
Messrs. Boris Heim and Maxime Schouppe, Information Officers (+31 (0)70 302 2337)
Ms Joanne Moore, Assistant Information Officer (+31 (0)70 302 2394)