INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org
Summary
Not an official document
Summary 2007/5
13 December 2007
Territorial and Maritime Dispute
(Nicaragua v. Colombia)
Preliminary Objections
Summary of the Judgment of 13 December 2007
Chronology of the procedure and submissions of the Parties (paras. 1-14)
On 6 December 2001, Nicaragua filed in the Regi stry of the Court an Application instituting
proceedings against 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.
In its Application, Nicaragua sought to found the jurisdiction of the Court on the provisions
of ArticleXXXI of the American Treaty on Pacific Settlement, officially known as the “Pact of
Bogotá”, as well as on the declarations made by the Parties under Article36 of the Statute of the
Permanent Court of International Justice, which ar e deemed, for the period which they still have to
run, to be acceptances of the compulsory jurisdic tion of the present Court pursuant to Article36,
paragraph 5, of its Statute.
Since the Court included upon the Bench no judge of the nationality of either of the Parties,
each Party proceeded to exercise its right conferred by Article31, paragraph3, of the Statute to
choose a judge ad hoc to sit in the case. Nicaragua first chose Mr.MohammedBedjaoui, who
resigned on 2 May 2006, and subsequently Mr. Giorgio Gaja. Colombia chose Mr. Yves Fortier.
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 Ar ticle 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 Cour t, 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 in
respect of the preliminary objections.
Public hearings were held be tween 4June and 8June2007. At the conclusion of the oral
proceedings, the Parties presented the following final submissions to the Court: - 2 -
On behalf of the Government of Colombia,
“Pursuant to Article 60 of the Rules of the Court, having regard to Colombia’s
pleadings, written and oral, Colombia respect fully requests the Court to adjudge and
declare that
(1) under the Pact of Bogotá, and in particular in pursuance of Art
iclesVI
and XXXIV, the Court declares itself to be without jurisdiction to hear the controversy
submitted to it by Nicaragua under Article XXXI, and declares that controversy
ended;
(2) under Article36, paragraph2, of the Statute of the Court, the Court has no
jurisdiction to entertain Nicaragua’s Application;
and that
(3) Nicaragua’s Application is dismissed.”
On behalf of the Government of Nicaragua,
“In accordance with Article60 of the Rul es of Court and having regard to the
pleadings, written and oral, the Republic of Nicaragua respectfully requests the Court,
to adjudge and declare that:
1. The Preliminary Objections submitted by the Republic of Colombia, both in
respect of the jurisdiction based upon the Pact of Bogotá, and in respect of the
jurisdiction based upon Article 36, paragraph 2, of the Statute of the Court, are invalid.
2. In the alternative, the Court is requested to adjudge and declare, in
accordance with the provisions of Article79, paragraph9, of the Rules of Court that
the objections submitted by the Republic of Colombia do not have an exclusively
preliminary character.
3. In addition, the Republic of Nicaragua requests the Court to reject the request
of the Republic of Colombia to declare th e controversy submitted to it by Nicaragua
under ArticleXXXI of the Pact of Bogotá ‘ended’, in accordance with ArticlesVI
and XXXIV of the same instrument.
4. Any other matters not explicitly dealt with in the foregoing Written Statement
and oral pleadings, are expressly reserved for the merits phase of this proceeding.”
Historical background (paras. 15-32)
The Court gives a brief account of the history which forms the background of the dispute
between the Parties (only parts of which are referred to below).
It notes that on 24 March 1928, a “Treaty concerning Territorial Questions at Issue between
Colombia and Nicaragua” was signed at Managua (hereinafter the “1928Treaty”), in which both
countries expressed their desire to put “an end to the territorial dispute between them”. Article I of
that Treaty provided as follows:
“The Republic of Colombia recognises the full and entire sovereignty of the
Republic of Nicaragua over the Mosquito Coast between Cape Gracias a Dios and the
SanJuan River, and over Mangle Grande and Mangle Chico Islands in the Atlantic
Ocean (Great Corn Island and Little Corn Island). The Republic of Nicaragua - 3 -
recognises the full and entire sovereignty of the Republic of Colombia over the islands
of San Andrés, Providencia and Santa Cata lina and over the other islands, islets and
reefs forming part of the San Andrés Archipelago.
The present Treaty does not apply to the reefs of Roncador, Quitasueño and
Serrana, sovereignty over which is in dispute between Colombia and the United States
of America.” [Translation by the Secretariat of the League of Nations, for
information.]
The instruments of ratification of the 1928Treaty were exchanged at Managua on
5May1930. The Parties signed on that occasi on a Protocol of Exchange of Ratifications
(hereinafter the “1930 Protocol”). The Protocol noted that the 1928 Treaty was concluded between
Colombia and Nicaragua “with a view to putti ng an end to the dispute between both Republics
concerning the SanAndrés Archipelago and the Nicaraguan Mosquito Coast”. The Protocol
stipulated as follows:
“The undersigned, in virtue of the full powers which have been granted to them
and on the instructions of their respectiv e Governments, hereby declare that the
SanAndrés and Providencia Archipelago mentioned in the first Articleof the said
Treaty does not extend west of the 82nd degree of longitude west of Greenwich.”
[Translation by the Secretariat of the League of Nations, for information.]
In a diplomatic Note dated 4June1969, Colo mbia protested against the granting of certain
oil exploration concessions and reconnaissance permits by Nicaragua, which allegedly covered
Quitasueño and the waters surrounding it as well as maritime zones that surpassed the
82nd meridian to the east. With respect to Quit asueño, Colombia pointed out that the 1928 Treaty
explicitly declared that the Roncador, Quitasueño and Serrana cays were in dispute between
Colombia and the United States. Colombia also made “a formal reservation... of its rights over
the referenced territory, as well as over the adjacent ma ritime zone”. With respect to the maritime
zones over which oil exploration concessions had been granted, Colombia observed that the
82nd meridian had been noted in the 1930 Protocol as the western boundary of the Archipelago of
San Andrés and Providencia.
In a diplomatic Note dated 12June 1969, Ni caragua asserted, with respect to the oil
exploration concessions, that the areas concerned we re part of its continental shelf and that the
concessions had therefore been granted “in use of the sovereign rights [Nicaragua] fully and
effectively exercises in accordance with the norms of international law”. As to the reference to the
82ndmeridian in the 1930Protocol, Nicaragua assert ed that “[a] simple reading of the... texts
makes it clear that the objective of this provision is to clearly and specifically establish in a
restrictive manner, the extension of the Archipelago of San Andrés, and by no valid means can it be
interpreted as a boundary of Nicaraguan rights or creator of a border between the two countries.
On the contrary, it acknowledges and confirms the sovereignty and full domain of Nicaragua over
national territory in that zone”.
In a Note in response dated 22 September1969, Colombia inter alia made a “formal
declaration of sovereignty in the maritime are as located East of Meridian82 of Greenwich”,
relying on the 1928Treaty and 1930Protocol. Colombia also pointed to the exclusion in the
1928Treaty of the Roncador, Quitasueño and Serrana cays “from any negotiations between
Colombia and Nicaragua”.
On 23June1971, Nicaragua sent a memorandum to the Department of State of the United
States formally reserving its rights over its continental shelf in the area around Roncador,
Quitasueño and Serrana and noting that it considered those banks to be part of its continental shelf.
It further stated that it could not accept Colombia’s contention that the 82nd meridian referred to in
the 1930Protocol set the dividing line between th e respective maritime zones of the two States
since it only constituted the limit of the San Andrés Archipelago. - 4 -
On 8September1972, Colombia and the United States signed the Treaty concerning the
status of Quitasueño, Roncador and Serrana (als o known as the Vásquez-Saccio Treaty). Article 1
of the Treaty provided that “the Government of the United States hereby renounces any and all
claims to sovereignty over Quita Sueño, Roncador and Serrana”. On the same day, there was an
Exchange of Notes between Colombia and the United States concerning their “legal position
respecting Article1 of [the] Treaty”. The Unite d States affirmed that its legal position was,
inter alia, that “Quita Sueño, being permanently submer ged at high tide, is at the present time not
subject to the exercise of sovereignty” and that the 1928Treaty did not apply to Roncador,
Quitasueño and Serrana. For its part, Colombia stated that its position was that the “[t]he physical
status of Quita Sueño is not incompatible with the exercise of sovereignty” and that “with the
renunciation of sovereignty by the United Stat es over Quita Sueño, Roncador, and Serrana, the
Republic of Colombia is the only legitimate title holder on those banks or cays, in accordance with
the [1928 Treaty and 1930 Protocol] and international law”.
On 4October1972, the National Assembly of Nicaragua adopted a formal declaration
proclaiming Nicaraguan sovereignty over Roncador, Quitasueño and Serrana. On 7 October 1972,
Nicaragua formally protested, in diplomatic Note s to Colombia and the United States, against the
signing of the Vásquez-Saccio Treaty and maintained that “the banks located in that zone...
[were] part of [Nicaragua’s] territory and therefor e subject to its sovereignty”. It added that it
could not accept Colombia’s contention that the 82 ndmeridian referred to in the 1930Protocol
constituted the boundary line of the respective ma ritime areas of the two States since it did not
coincide with the letter or spirit of the Protocol, th e clear intention of which was to specify that the
San Andrés Archipelago did not extend west further than the 82nd meridian.
In July 1979 the Sandinista Government came to power in Nicaragua. On 4 February 1980,
the Minister for Foreign Affairs of Nicaragua published an official declaration and a “Libro
Blanco” (hereinafter “White Paper”) in which Nicaragua declared
“the nullity and lack of validity of the Bárcenas-Meneses-Esguerra Treaty [the
1928Treaty]... [concluded] in a histori cal context which incapacitated as rulers the
presidents imposed by the American forces of intervention in Nicaragua and which
infringed . . . the principles of the National Constitution in force . . .”.
In a diplomatic Note sent to Nicaragua on 5February1980, Colombia rejected the
declaration of 4 February 1980 as “an unfounded claim that counters historical reality and breaches
the most elementary principles of public intern ational law”. In the view of the Colombian
Government, the 1928 Treaty “[was] a valid, perpetual instrument, and in full force in light of the
universally recognized legal norms”.
The new government which came to power in Nicaragua in 1990 and subsequent
governments maintained the position with regard to the meaning of certain provisions of the
1928 Treaty and 1930 Protocol which had been stated from 1969 onwards and the position with
regard to the invalidity of the 1928 Treaty which had been set out in the 1980 White Paper.
Subject-matter of the dispute (paras. 33-42)
The Court initially notes that the Parties have presented different views about whether there
is an extant dispute between them and, if so, th e subject-matter of that dispute. Consequently,
before addressing Colombia’s preliminary objections, it needs to examine these issues.
The Court recalls that according to Nicaragua, the dispute submitted to the Court concerned
(i) the validity of the 1928 Treaty and its termination due to material breach; (ii) the interpretation
of the 1928Treaty, particularly regarding the ge ographical scope of the SanAndrés Archipelago;
(iii)the legal consequences of the exclusion from the scope of the 1928Treaty of Roncador,
Quitasueño and Serrana; and (iv) the maritime de limitation between the Parties including the legal
significance of the reference to the 82ndmeridian in the 1930Protocol. In Nicaragua’s view, the - 5 -
fourth element “implie[d] and encompasse[d] all the others”. In this regard, Nicaragua contended
that the question of sovereignty over the mariti me features was both accessory and preliminary to
that of maritime delimitation. Finally, Nicara gua also submitted that the question whether the
1928 Treaty has settled all questions between the Parties is “the very object of the dispute” and “the
substance of the case”.
Colombia, for its part, denied that there was an extant dispute over which the Court could
have jurisdiction, claiming that the matters in issue had already been settled by the 1928 Treaty. It
further contended that the real purpose behind Ni caragua’s Application was maritime delimitation
rather than the determination of sovereignty over the maritime features.
The Court notes that, while the Applicant must present its view of the “subject of the
dispute” pursuant to Article 40, paragraph 1, of the Statute of the Court, it is for the Court itself to
determine the subject-matter of the dispute before it, taking account of the submissions of the
Parties. As a preliminary point, the Court recalls that the Parties disagree on whether or not the
dispute between them had been “settled” by the 1928Treaty within the meaning of ArticleVI of
the Pact of Bogotá. The Court first notes that ArticleVI of the Pact provides that the dispute
settlement procedures in the Pact “may not be applied to 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 the conclusion of the present Treaty”
(emphasis added). The Court also notes that according to Article XXXIV of the Pact controversies
over matters which are governed by agreements or treaties shall be declared “ended” in the same
way as controversies over matters settled by arrang ement between the parties, arbitral award or
decision of an international court. The Court c onsiders that, in the speci fic circumstances of the
case, there is no difference in legal effect, for the purpose of applying ArticleVI of the Pact,
between a given matter being “settled” by the 1928 Treaty and being “governed” by that Treaty. In
light of the foregoing, the Court decides to use the word “settled” in its Judgment.
After having examined Nicaragua’s arguments, the Court considers that the question whether
the 1928Treaty and 1930Protocol settled the matters in dispute between the Parties concerning
sovereignty over the islands and maritime fe atures and the course of the maritime boundary does
not form the subject-matter of the dispute between the Parties and that, in the circumstances of the
case, the question is a preliminary one.
With respect to Colombia’s contention that Ni caragua’s true interest lay in the maritime
delimitation rather than in sovereignty over the maritime features, the Court notes that nonetheless
“the claim of one party is positively opposed by the other” as to sovereignty over the maritime
features.
The Court thus concludes that the questions which constitute the subject-matter of the
dispute between the Parties on the merits are, firs t, sovereignty over territory (namely the islands
and other maritime features claimed by the Par ties) and, second, the course of the maritime
boundary between the Parties.
First preliminary objection(paras. 43-120)
⎯ General overview of the arguments of the Parties
The Court recalls that in its first preliminar y objection, Colombia claims that pursuant to
ArticlesVI and XXXIV of the Pact of Bogotá, the Court is without jurisdiction under
Article XXXI of the Pact to hear the controve rsy submitted to it by Nicaragua and should declare
the controversy ended. In this regard, Colombia, referring to Article VI of the Pact, argues that the
matters raised by Nicaragua were settled by a tr eaty in force on the date on which the Pact was
concluded, namely the 1928Treaty and the 1930Prot ocol. Colombia adds that this question can
and must be considered at the preliminary objections stage. - 6 -
Nicaragua claims that the Cour t has jurisdiction under Article XXXI of the Pact of Bogotá.
In this regard, Nicaragua argues that the 1928 Treaty and its 1930 Protocol did not settle the dispute
between Nicaragua and Colombia within the meani ng of Article VI of the Pact of Bogotá because
the 1928Treaty was invalid or had been terminated and that, even if that was not the case, the
1928 Treaty did not cover all the matters now in dispute between the Parties. Moreover, Nicaragua
contends that the Court may not pronounce upon these issues at this stage of the proceedings since
that would require an examination of the merits of the case.
⎯ The appropriate stage of proceedings for examination of the preliminary objection
The Court recalls that, under Article79, paragr aph9, of the Rules of Court, there are three
ways in which it may dispose of a preliminary objection: the Court “shall either uphold the
objection, reject it, or declare that the objecti on does not possess, in the circumstances of the case,
an exclusively preliminary character”. The C ourt further recalls that, in the Nuclear Tests cases
(albeit in slightly different circumstances), it emphasized that while examining questions of
jurisdiction and admissibility, it is entitled, and in some circumstances may be required, to go into
other questions which may not be strictly capable of classification as matters of jurisdiction or
admissibility but are of such a nature as to require examination before those matters.
The Court believes that it is not in the inter est of the good administration of justice for it to
limit itself at that juncture to stating merely that there is a disagreement between the Parties as to
whether the 1928Treaty and 1930Protocol settle d the matters which are the subject of the
controversy within the meaning of Article VI of the Pact of Bogotá, leaving every aspect thereof to
be resolved on the merits.
In principle, a party raising preliminary objections is entitled to have these objections
answered at the preliminary stage of the proceed ings unless the Court does not have before it all
facts necessary to decide the questions raised or if answering the preliminary objection would
determine the dispute, or some elements thereof, on the merits. The Court finds itself in neither of
these situations in the case at hand. The determin ation by the Court of its jurisdiction may touch
upon certain aspects of the merits of the case. Moreover, the Court has already found that the
question of whether the 1928Treaty and the 1930Pr otocol settled the matters in dispute does not
constitute the subject-matter of the dispute on the mer its. It is rather a preliminary question to be
decided in order to ascertain whether the Court has jurisdiction.
In light of the foregoing, the Court finds th at it is unable to uphold Nicaragua’s contention
that it is precluded from addressing Colombia’s first preliminary objection at this stage of the
proceedings.
⎯ Jurisdictional system of the Pact of Bogotá
The Court makes mention of the relevant pr ovisions of the Pact of Bogotá in the case,
beginning with Article XXXI,which reads as follows:
“In conformity with Article36, paragra ph2, of the Statute of the International
Court of Justice, the High Contracting Par ties declare that they recognize, in relation
to any other American State, the jurisdiction of the Court as compulsory ipsofacto ,
without the necessity of any special agre ement so long as the present Treaty is in
force, in all disputes of a juridical nature that arise among them concerning:
(a) The interpretation of a treaty;
(b) Any question of international law;
(c) The existence of any fact which, if est ablished, would constitute the breach of an
international obligation; or - 7 -
(d) The nature or extent of the reparation to be made for the breach of an international
obligation.”
The other relevant provisions are Articles VI and XXXIV of the Pact.
Article VI provides that:
“The aforesaid procedures, furthermore, may not be applied to 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 the conclusion of the present Treaty.”
Article XXXIV reads as follows:
“If the Court, for the reasons set forth in Articles V, VI and VII of this Treaty,
declares itself to be without jurisdiction to hear the controversy, such controversy shall
be declared ended.”
These provisions indicate that if the Court were to find that the matters referred to it by
Nicaragua pursuant to ArticleXXXI of the Pact of Bogotá had previously been settled by one of
the methods spelled out in Article VI thereof, it would lack the requisite jurisdiction under the Pact
to decide the case.
⎯ The question whether the 1928 Treaty and 1930 Protocol settled the matters in dispute between
the Parties
The Court considers the arguments of the Parties and examines the factual background of the
conclusion of the 1928Treaty and the signature of the 1930Protocol. It states that, in order to
ascertain whether it has jurisdiction, it has to d ecide the question whether, on the date of the
conclusion of the Pact of Bogotá in 1948, the ma tters raised by Nicara gua were, pursuant to
Article VI thereof, “governed by agreements or treaties inforce”. For this purpose, the first point for
the Court to consider is whether the treaty, wh ich Colombia alleges to have settled the matters
constituting the subject-matter of the dispute, was in force in 1948.
The Court notes that, with respect to the validity of the 1928 Treaty, Nicaragua first contends
that the Treaty was “concluded in manifest viola tion of the Nicaraguan Constitution of 1911 that
was in force in 1928” and, secondly, that at the time the Treaty was concluded, Nicaragua was
under military occupation by the United States and was precluded from concluding treaties that ran
contrary to the interests of the United States and from rejecting the conclusion of treaties that the
United States demanded it to conclude. Nicaragua submits in this respect that Colombia was aware
of this situation and “took advantage of the US occupation of Nicaragua to extort from her the
conclusion of the 1928Treaty”. Nicaragua claims that it remained under the influence of the
United States even after the withdrawal of the last United States troops at the beginning of 1933.
Colombia, for its part, maintains that Nicara gua’s assertion relating to the invalidity of the
1928 Treaty is unfounded. It observes that, even assuming that the 1928 Treaty was incompatible
with Nicaragua’s 1911Constitution or that Nicar agua lacked competence to freely conclude
treaties due to occupation by the United States, these claims were not raised during the ratification
process in the Nicaraguan Congress in 1930, nor for some 50 years thereafter. It points out that, in
fact, these arguments were raised for the first time in 1980. Colombia further notes that in 1948,
when the Pact of Bogotá was concluded, Nicaragua made no reservation with regard to the
1928Treaty, despite the fact that Nicaragua knew that it had the right to make such a reservation
and made a reservation with regard to the validity of an arbitral award. Finally, Colombia contends
that, as a consequence, Nicaragua is now preclude d from raising the question of validity of the
1928 Treaty and its 1930 Protocol. - 8 -
The Court recalls that the clear purpose of Article VI of the Pact of Bogotá was to preclude
the possibility of using the procedures provided for in the Pact, and in particular judicial remedies,
in order to reopen such matters as were settled be tween the parties to the Pact, because they had
been the object of an international judicial decision or a treaty. When ratifying the Pact, States
envisaged bringing within its procedures matters not yet so settled.
States parties to the Pact of Bogotá would have considered that matters settled by a treaty or
international judicial decision had been defin itively resolved unless a specific reservation relating
thereto was made under Articles LIV and LV of th e Pact. Nicaragua did not enter any reservation
regarding the 1928 Treaty when it became a party to the Pact of Bogotá, the treaty it now invokes
as a basis of jurisdiction, although it did enter a reservation with regard to arbitral decisions the
validity of which it contested. The Court notes that there is no evidence that the States parties to
the Pact of Bogotá of 1948, including Nicaragua , considered the 1928Treaty to be invalid. On
25May1932, Nicaragua registered the Treaty and Protocol with the League of Nations as a
binding agreement, pursuant to Article 18 of the Covenant of the League, Colombia having already
registered the Treaty on 16 August 1930.
The Court recalls that Nicaragua advanced “the nullity and lack of validity” of the
1928Treaty for the first time in an official declaration and White Paper published on
4February1980. The Court thus notes that, for more than 50years, Nicaragua has treated the
1928Treaty 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,
even after it became a Member of the United Nations in 1945 and even after it joined the
Organization of American States in 1948, did Nicaragua contend that the Treaty was invalid for
whatever reason, including that it had been c oncluded in violation of its Constitution or under
foreign coercion. On the contrary, Nicaragua h as, in significant ways, acted as if the 1928 Treaty
was valid. Thus, in 1969, when Nicaragua responde d to Colombia’s claim that the 82nd meridian,
referred to in the 1930Protoc ol, constituted the maritime b oundary between the two States,
Nicaragua did not invoke the invalidity of the Treaty but argued instead that the 1928Treaty and
1930Protocol did not effect a maritime delimitation. Similarly, in 1971 when Nicaragua made
representations to the United States reserving its rights over Roncador, Quitasueño and Serrana, it
did not call into question the validity of the 1928Treaty. The Court thus finds that Nicaragua
cannot today be heard to assert that the 1928 Treaty was not in force in 1948.
T he Court accordingly finds that the 1928Treaty was valid and in force on the date of the
conclusion of the Pact of Bogotá in 1948, the date by reference to which the Court must decide on
the applicability of the provisions of Article VI of the Pact of Bogotá setting out an exception to the
Court’s jurisdiction under Article XXXI thereof.
The Court recalls that Nicaragua argues that, even if the 1928 Treaty was valid, it has been
terminated due to Colombia’s interpretation of the Treaty in 1969, which Nicaragua characterized
as a material breach thereof. This contention is denied by Colombia. The Court considers that the
question whether the Treaty was terminated in 1969 is not relevant to the question of its jurisdiction
since what is determinative, under Article VI of the Pact of Bogotá, is whether the 1928 Treaty was
in force on the date of the conclusion of the Pact, i.e. in 1948, and not in 1969. Accordingly, there
is no need for the Court to address the question of the purported termination of the 1928 Treaty in
1969 for the purposes of the ascertainment of its jurisdiction.
The Court then turns to the question whether the Treaty and its 1930Protocol settled the
matters in dispute between the Parties and conse quently whether the Court has jurisdiction in the
case under ArticleXXXI of the Pact. It recalls that it has already concluded that there are two
questions in dispute between the Parties on the merits: first, territorial sovereignty over islands and
other maritime features and, second, the course of the maritime boundary between the Parties. - 9 -
The Court notes that the Parties disagree about whether various matters relating to territorial
sovereignty were settled by the 1928Treaty, name ly sovereignty over the three islands of the
SanAndrés Archipelago expressly named in the Treaty, the scope and composition of the rest of
the San Andrés Archipelago and sovereignty over Roncador, Quitasueño and Serrana. The Parties
also disagree about whether the 1930 Protocol effected a maritime delimitation between them.
With respect to the question of its jurisdiction as regards the issue of sovereignty over the
named islands of the San Andrés Archipelago, the C ourt considers that it is clear on the face of the
text of ArticleI that the matter of sovereignty over the islands of San Andrés, Providencia and
Santa Catalina has been settled by the 1928 Treaty with in the meaning of Article VI of the Pact of
Bogotá. In the Court’s view there is no need to go further into the interpretation of the Treaty to
reach that conclusion and there is nothing relating to this issue that could be ascertained only on the
merits.
Nicaragua’s contention that the 1928Treaty is invalid has already been dealt with by the
Court. With regard to Nicaragua’s further assertion that the 1928Treaty has been terminated by
material breach due to the interpretation adopted by Colombia from 1969 onwards, that issue has
not been addressed by the Court at this stage since it is not relevant to the question of its
jurisdiction by reference to Article VI of the Pact of Bogotá. Even if the Court were to find that the
1928 Treaty has been terminated, as claimed by Nicaragua, this would not affect the sovereignty of
Colombia over the islands of San Andrés, Providencia and Santa Catalina. The Court recalls that it
is a principle of international law that a territorial régime established by treaty “achieves a
permanence which the treaty itself does not necessar ily enjoy” and that the continued existence of
that régime is not dependent upon the continuing life of the treaty under which the régime is
agreed.
In the light of the foregoing, the Court finds that it can dispose of the issue of the three
islands of the SanAndrés Archipelago expressly name d in the first paragraph of ArticleI of the
1928Treaty at the current stage of the proceedings . That matter has been settled by the Treaty.
Consequently, ArticleVI of the Pact is applicab le on this point and therefore the Court does not
have jurisdiction under Article XXXI of the Pact of Bogotá over the question of sovereignty over
the three named islands. Accordingly, the Court upholds the first preliminary objection raised by
Colombia in so far as it concerns the Court’s ju risdiction as regards the question of sovereignty
over the islands of San Andrés, Providencia and Santa Catalina.
As regards the question of the scope and composition of the rest of the SanAndrés
Archipelago, the Court recalls that there is ag reement between the Parties that the SanAndrés
Archipelago includes the islands of San Andrés, Providencia and Santa Catalina as well as adjacent
islets and cays. However, the Parties disagr ee as to which maritime features other than those
named islands form part of the Archipelago.
The Court considers that it is clear on the face of the text of the first paragraph of Article I of
the 1928Treaty that its terms do not provide the answer to the question as to which maritime
features apart from the islands of SanAndrés, Pr ovidencia and SantaCatalina form part of the
San Andrés Archipelago over which Co lombia has sovereignty. That being so, this matter has not
been settled within the meaning of Article VI of the Pact of Bogotá and the Court has jurisdiction
under Article XXXI of the Pact of Bogotá. Therefore, the Court cannot uphold the first preliminary
objection raised by Colombia in so far as it concerns the Court’s jurisdiction as regards the question
of sovereignty over the maritime features forming part of the San Andrés Archipelago, save for the
islands of San Andrés, Providencia and Santa Catalina.
With respect to the question of its jurisdiction as regards the matter of sovereignty over
Roncador, Quitasueño and Serrana, the Court observes that the meaning of the second paragraph of
ArticleI of the 1928 Treaty is clear: this treaty does not apply to the thr ee maritime features in
question. Therefore, the limitations contained in Article VI of the Pact of Bogotá do not apply to - 10 -
the question of sovereignty over Roncador, Quitasueño and Serrana. The Court thus has
jurisdiction over this issue under ArticleXXXI of the Pact of Bogotá and cannot uphold the first
preliminary objection raised by Colombia in so far as it concerns the Court’s jurisdiction as regards
the question of sovereignty over Roncador, Quitasueño and Serrana.
With respect to the question of its jurisdiction as regards the issue of the maritime
delimitation, the Court, after examining the arguments presented by the Parties and the material
submitted to it, concludes that the 1928Treaty and 1930Protocol did not effect a general
delimitation of the maritime boundary between Colombia and Nicaragua. Since the dispute
concerning maritime delimitation has not been settled by the 1928 Treaty and 1930 Protocol within
the meaning of Article VI of the Pact of Bogotá, the Court has jurisdiction under Article XXXI of
the Pact. Therefore, the Court cannot uphold Colo mbia’s first preliminary objection in so far as it
concerns the Court’s jurisdiction as regards the qu estion of the maritime delimitation between the
Parties.
Second preliminary objection (paras. 121-140)
In addition to ArticleXXXI of the Pact of Bogotá, Nicaragua invoked as a basis of the
Court’s jurisdiction the declarations made by the Parties under Article36 of the Statute of the
Permanent Court of International Justice, which are deemed, for the period for which they still have
to run, to be acceptances of the compulsory jurisdiction of the present Court pursuant to Article 36,
paragraph 5, of its Statute.
In its second preliminary objection, Colombia asserts that the Court has no jurisdiction on
this basis. It claims that jurisdiction under the Pact of Bogotá is governing and hence exclusive. In
its view, since the Court has jurisdiction unde r ArticleXXXIV of the Pact to declare the
controversy ended and must do so in the case at hand, the Court may not proceed further to
consider whether it might have jurisdiction under the optional clause. In support of its claim,
Colombia relies on the Court’s Judgment in the Border and Transborder Armed Actions
(Nicaragua v. Honduras) case, in which Nicaragua also ass erted jurisdiction on the basis of
ArticleXXXI of the Pact of Bogotá and on the basis of optional clause declarations. Colombia
notes that, in the Armed Actions case, the Court declared that “in relations between the States
parties to the Pact of Bogotá, that Pact is governing” and that
“the commitment in Article XXXI . . . is an autonomous commitment, independent of
any other which the parties may have undertaken or may undertake by depositing with
the United Nations Secretary-General a d eclaration of acceptance of compulsory
jurisdiction under Article36, paragraphs2 and 4, of the Statute” (Border and
Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1988, p. 82, para. 27 and p. 85, para. 36).
Colombia considers that the Court thus laid down the principle of primacy of the title of
jurisdiction under the Pact of Bogotá. It concl udes that, when an Appli cant invokes both the Pact
of Bogotá and optional clause declarations, it is the Pact of Bogotá, as lex specialis , which governs
or, in other words, is determinative and conclusive.
Colombia claims that in the Armed Actions case, the Court held that the title of jurisdiction
under the Pact of Bogotá prevailed over subsequent optional clause declarations. Colombia points
out that, in the case at hand, the argument that the Pact of Bogotá takes precedence is even stronger
since the optional clause declarations of Nicaragua and Colombia were made before the entry into
force of the Pact of Bogotá. Therefore, the Pact of Bogotá is not only lex specialis but also
lex posterior.
In Colombia’s view, “it is the Pact of Bogotá which constitutes the Court’s title of
jurisdiction in our case” and were the Court to conc lude that it had no ju risdiction to adjudicate
upon the dispute, the application of the Pact would require the Court to declare the controversy - 11 -
ended pursuant to ArticleXXXIV thereof, “not on ly for the purposes of the Court’s jurisdiction
under the Pact, but for all purposes”. In this regard, Colombia claims that a dispute cannot be
settled and ended and yet at the same time be a dispute capable of adjudication by the Court
pursuant to jurisdiction accorded under the optiona l clause. Consequently, once the controversy
between the Parties has been decl ared by the Court to be ended under the Pact of Bogotá, there
would be no controversy outsta nding to which jurisdiction coul d attach under any other title,
including the declarations of the Parties under the optional clause.
Colombia further argues that, in any event, the Court would have no jurisdiction on the basis
of the Parties’ optional clause declarations si nce Colombia’s declaration had been withdrawn
(December 2001) by the date of the filing of Nicar agua’s Application. Co lombia finally contends
that even if its declaration were found to be in force at the time when Nicaragua filed its
Application, 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 6 January 1932.
Nicaragua, for its part, submits that although th e Court stated in its Judgment in the Armed
Actions case that “in relations between the States pa rties to the Pact of Bogotá, that Pact is
governing”, this cannot “destroy the value of the Optional Clause declarations as an independent
basis of jurisdiction” since they “have an intrinsic value in and of themselves, and their operation is
not predetermined by other titles of jurisdiction”. It considers that the primacy of the Pact does not
signify exclusiveness. Nicaragua contends that this was recognized by the Court itself in the
Armed Actions case when it stated that the commitment under the Pact of Bogotá is “independent
of any other which the parties may have undertak en . . . by depositing . . . a declaration of
acceptance of compulsory jurisdiction” (emphasis added). It points out that in the Armed Actions
case, the Court did not rule out the possibility th at it also had jurisdiction under the Parties’
optional clause declarations but simply concluded th at it “[did] not need to consider” that question
since it had already found that it had jurisdiction under the Pact of Bogotá.
In Nicaragua’s view, if the Court were to declare the controversy ended pursuant to
Article XXXIV of the Pact, that finding would ha ve to be understood within the framework of the
Pact itself. Thus the controversy would be ende d only to the extent that it would no longer be
possible to invoke the Pact as a basis of jurisdicti on. It underlines that such a finding pursuant to
Article XXXIV of the Pact does not exclude the ex istence of other bases of jurisdiction such as the
declarations by the Parties under the optional clause.
Nicaragua argues that the two bases of jurisdiction, namely ArticleXXXI of the Pact of
Bogotá and the declarations made by the Parties under the optional clause are complementary and
that it is for the Court to decide whether to rely upon only one of them or to combine them. It
points out that the States parties to the Pact of Bogotá intended to broaden the jurisdiction of the
Court not to limit existing obligations deriving from other instruments. In this context, Nicaragua
refers to the statement of the Permanent Court of International Justice in the Electricity of Sofia and
Bulgaria case regarding multiple agreements accepting compulsory jurisdiction.
Nicaragua denies that Colombia’s declaration was not in force at the time of the filing of the
Application. It contends that reasonable notice is required for the withdrawal of declarations and
that this condition was not complied with by Colombia. Nicaragua does not dispute that
Colombia’s declaration applied only to disputes arising from facts subsequent to 6 January 1932; it
argues, however, that the generating fact of the dispute, namely the interpretation of the
1928Treaty and 1930 Protocol adopted by Colombia from 1969 onwards, arose after
6 January 1932. Finally, Nicaragua asserts, referring to the provisions of Article79, paragraph9,
of the Rules of Court, that in any event the objection submitted by Colombia does not have an
exclusively preliminary character.
The Court notes initially that the question of whether the optional clause declarations of the
Parties can provide a distinct and sufficient basis of jurisdiction in the case now only arises in
respect of that part of the dispute relating to th e sovereignty over the three islands expressly named - 12 -
in ArticleI of the 1928 Treaty: SanAndrés, Providencia and SantaCatalina. Having first
examined the preliminary objection raised by Colombia to jurisdiction under the Pact of Bogotá,
the Court has concluded that it ha s jurisdiction on the basis of ArticleXXXI of the Pact to deal
with all the other aspects of the dispute. C onsequently, no purpose is served by examining
whether, in relation to those aspects, the declara tions of the Parties under the optional clause could
also provide a basis of the Court’s jurisdiction.
The Court recalls that in the Armed Actions case it stated that “[s]ince, in relations between
the States parties to the Pact of Bogotá, th at Pact is governing, the Court will first examine the
question whether it has jurisdiction under Article XXXI of the Pact” (emphasis added). However,
this cannot be interpreted in any way other than that the Court, faced with the two titles of
jurisdiction invoked, could not deal with them simultaneously and decided to proceed from the
particular to the more general, without thereby implying that the Pact of Bogotá prevailed over and
excluded the second title of jurisdiction, namely the optional clause declarations.
The Court thus considers that the provisions of the Pact of Bogotá and the declarations made
under the optional clause represent two distinct bases of the Court’s jurisdiction which are not
mutually exclusive. It notes that the scope of its jurisdiction could be wider under the optional
clause than under the Pact of Bogotá.
The Court observes that neither Colombia nor Nicaragua has made a reservation to their
respective optional clause declarations identical or si milar to the restriction contained in Article VI
of the Pact of Bogotá. Accordingly, the limitati on imposed by Article VI of the Pact would not be
applicable to jurisdiction under the optional clause.
The Court notes that its acknowledgment of the fact that sovereignty over the islands of
San Andrés, Providencia and Santa Catalina was attributed to Colombia under the 1928 Treaty was
made for the purposes of ascertaining whether or not the Court had jurisdiction over the matter
under the Pact of Bogotá. However, it is equally relevant for the purposes of determining whether
the Court has jurisdiction on the basis of the optiona l clause declarations. In this regard, the Court
notes that Article36, paragraph2, of the Statute expressly requires that, in order for the Court to
have jurisdiction on the basis of optional clause de clarations, 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 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 the light of the foregoing, the Court finds that no practical purpose would be served by
proceeding further with the other matters raised in the second preliminary objection filed by
Colombia. The Court thus upholds the second pre liminary objection relating to jurisdiction under
the optional clause declarations raised by Colombia in so far as it concerns the Court’s jurisdiction
as regards the question of sovereignty over th e islands of SanAndrés, Providencia and
SantaCatalina, and finds that it is not necessary to examine the objection in so far as it concerns
sovereignty over the other maritime features in dispute between the Parties and the maritime
delimitation between the Parties.
Subsequent procedure (para. 141)
In accordance with Article 79, paragraph 9, of the Rules of Court, time-limits for the further
proceedings shall subsequently be fixed by Order of the Court. - 13 -
Operative clause (para. 142)
“For these reasons,
T HE C OURT ,
(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, Providencia and Santa Catalina;
IN FAVOUR : President Higgins; Judges Shi, Koroma, Parra-Aranguren, Buergenthal, Owada,
Simma, Tomka, Keith, Sepúlveda-Amor, Skotnikov; Judges ad hoc Fortier, Gaja;
AGAINST : Vice-PresidentAl-Khasawneh; JudgesRanjeva, Abraham, Bennouna;
(b) Unanimously,
Rejects the objection to its jurisdiction in so r as it concerns sovereignty over the other
maritime features in dispute between the Parties;
(c) Unanimously,
Rejects the objection to its jurisdiction in so r as it concerns the maritime delimitation
between the Parties;
(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;
IN FAVOUR : President Higgins; Judges Shi, Koroma, Parra-Aranguren, Buergenthal, Owada,
Simma, Tomka, Abraham, Keith, Se púlveda-Amor, Skotnikov; Judges ad hoc Fortier,
Gaja;
AGAINST : Vice-PresidentAl-Khasawneh; JudgesRanjeva, Bennouna;
(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;
IN FAVOUR : President Higgins; Vice-President Al-Khasawneh; Judges Ranjeva, Shi,
Koroma, Parra-Aranguren, Buergenthal, Owada, Tomka, Abraham, Keith,
Sepúlveda-Amor, Bennouna, Skotnikov; Judgesad hoc Fortier, Gaja;
AGAINST : JudgeSimma; - 14 -
(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.”
*
Vice-President Al-Khasawneh appends a diss enting opinion to the Judgment of the Court;
Judge Ranjeva appends a separate opinion to the Judgment of the Court; Judges Parra-Aranguren,
Simma and Tomka append declarations to the J udgment of the Court; JudgeAbraham appends a
separate opinion to the Judgment of the Court; Judge Keith appends a declaration to the Judgment
of the Court; JudgeBennouna appends a dissen ting opinion to the Judgment of the Court;
Judge ad hoc Gaja appends a declaration to the Judgment of the Court.
___________ Annex to Summary 2007/5
Dissenting opinion of Vice-President Al-Khasawneh
Vice-PresidentAl-Khasawneh found himself unable to concur with the arguments and
findings in the Judgment upholding Colombia’s prelim inary objections to jurisdiction in so far as
they concern sovereignty over the islands of Sa nAndrés, Providencia and SantaCatalina. While
acknowledging that the Court may need to touch on the merits of a case in order to ascertain its
jurisdiction at the preliminary objections phase of proceedings, Vice-President Al-Khasawneh is of
the view that the circumstances of this case were such that a decision on jurisdiction under the Pact
of Bogotá and under Article36, paragraph2, of the Statute of the Court did not possess an
exclusively preliminary character (see Article 79, paragraph 9).
The particular circumstances of the case leading to this conclusion are as follows: in order to
determine whether the Court has jurisdiction under the Pact of Bogotá in respect of the dispute
relating to the three above-mentioned islands, th e Court must decide upon the validity of the
1928Treaty and the 1930Protocol (which validity is contested by Nicaragua). This analysis is
required because ArticleVI of the Pact of Bogot á excludes the jurisdiction of the International
Court of Justice in respect of matters “governed by agreements or treaties in force on the date of
the conclusion of the present Treaty”. The validity of the 1928 Treaty and of the 1930 Protocol are,
however, also central to resolving, on the merits, the dispute with respect to sovereignty over the
three named islands of the San Andrés Archipelago. Thus, the finding in the Judgment that the
Court lacks jurisdiction under the Pact of B ogotá, because the 1928Treaty and 1930Protocol are
valid, has the effect of prejudging an important aspect of the merits of the dispute before this has
been fully argued.
The finding also has the effect of disposing of a range of complex factual and legal issues
raised by Nicaragua, via her allegation that th e 1928 Treaty and 1930 Protocol are invalid because
procured by coercion, without allowing the Partie s the opportunity to fully argue the case before
the Court, and without adequately setting out the reasons for the decision reached.
Vice-President Al-Khasawneh does not agree with the Court that Article 79, paragraph 9, of
the Rules of the Court includes a presumption in favour of the party making a preliminary
objection.
Finally, Vice-President Al-Khasawneh consid ers that the Court was only able to reach the
position that deciding the question of the validity of the 1928 Treaty and the 1930 Protocol “would
not determine the dispute on the merits” by defini ng the dispute narrowly and creating an artificial
distinction between the subject-matter of the di spute and the questions in dispute. While
acknowledging that the Court retains freedom to de fine the subject-matter of the dispute on the
basis of the submissions of the parties, the Vice-President considers that in this case the Court has
acted beyond the limits of that freedom; limits imposed by considerations of legitimacy and
common sense.
Separate opinion of Judge Ranjeva
The first preliminary objection raised by Colombia does not possess an exclusively
preliminary character, states Judge Ranjeva in his opinion. The arguments presented by the Parties
confirm the intimate connections between the proc edural issues. Indeed, by declaring that the
1928 Treaty put an end to the dispute between Nicaragua and Colombia when it attributed the three
islands of San Andrés, Providenc ia and Santa Catalina, the Court in the Judgment adjudicates two
of the Applicant’s submissions on the merits: the claim to sovereignty over those islands and the
nullity of the treaty owing to substantive defects resulting from coercion and infringement of
internal constitutional provisions. Judge Ranjeva holds that the Judgment confuses enforceability - 2 -
of the Treaty against Nicaragua and nullity as a sanction for the invalidity of the Treaty. Aside
from failing to respect the adversary principle, th e Judgment contains a lacuna: a statement of
reasons for choosing ArticleVI of the Pact of B ogotá as the basis for jurisdiction rather than the
optional clause.
Declaration of Judge Parra-Aranguren
1. Notwithstanding his vote in favour of the operative clause of the Judgment,
Judge Parra-Aranguren does not agree with paragraph 136 which states: “the Court considers that
the provisions of the Pact of Bogotá and the decl arations made under the optional clause represent
two distinct bases of the Court’s jurisdiction which are not mutually exclusive”.
2. The conclusion reached in paragraph 136 is supported by making reference to the
Judgment in the case Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction
and Admissibility (I.C.J. Reports 1988, p. 85, para. 36) and to a quotation from the 1939 Judgment
of the Permanent Court in the case Electricity Company of Sofia and Bulgaria (Belgium v.
Bulgaria) (P.C.I.J., Series A/B, No. 77, p. 76).
3. However, Judge Parra-Aranguren considers that the Armed Actions decision does not
support this conclusion in the present Judgment, b ecause as is indicated in paragraph134, “the
Court was merely responding to and rejecting the arguments by Honduras”; and the quotation from
the Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria) Judgment of 1939 is not
applicable, because in the present case there is no “multiplicity of agreements concluded accepting
the compulsory jurisdiction” of the Court.
4. Judge Parra-Aranguren observes, as indicated in paragraph122 of the Judgment, that
Nicaragua and Colombia made declarati ons on 24September1929 and 30October1937
respectively, under Article 36 of the Statute of the Permanent Court of International Justice, which
are deemed to be acceptances of the compulsory jurisdiction of this Court under Article36,
paragraph 5, of its Statute; they then made new declarations under Article 36, paragraph 2, of the
Statute of the Court as prescribed in ArticleXXXI of the Pact of Bogotá when they ratified the
latter in 1950 and 1968 respectively. In his opinion, it is not possible for two different declarations
to continue to be simultaneously in force in the relations between Nicaragua and Colombia,
because the second declaration necessarily replaced the first one in their reciprocal relations.
5. Therefore Judge Parra-Aranguren considers that the optional clause declarations made by
Nicaragua and Colombia in 1929 and 1937 respectivel y are no longer in force, and for this reason
they cannot be invoked as a basis for the jurisdiction of the Court.
Declaration of Judge Simma
While Judge Simma considers the present Judgment generally satisfactory, he expresses
doubts whether the Court has applied Article VI of the Pact of Bogotá to the 1928 Treaty between
Nicaragua and Colombia in a correct way. In the same context, JudgeSimma has considerable
difficulties with the Court’s reading of the rela tionship between, on the one hand, the notion of a
matter being “governed by... treaties in force” at the time of the conclusion of the Pact in 1948
and that of the continued existence of a “legal di spute” as a precondition for the jurisdiction of the
Court on the basis of a declaration of acceptance under the optional clause on the other. - 3 -
The matter turns on the question of sovereignt y over the islands of San Andrés, Providencia
and SantaCatalina. The Court concludes that the 1928Treaty has resolved this question
definitively, whereas Nicaragua had argued, inter alia , the invalidity of this Treaty abinitio .
However, according to the Judgment, Nicaragua, through its behaviour towards the Treaty for over
50years, lost the right to invoke such invalidity; therefore the Treaty is to be regarded as having
been “valid and in force” in 1948, with the con sequence that the Court does not have jurisdiction
under the Pact of Bogotá. In JudgeSimma’s view, the loss of the right to assert the Treaty’s
invalidity according to the conditions of the Pact of Bogotá can only be the end of the matter within
the framework of that Pact; if a second, independent, basis of jurisdiction existed and actually
yielded the jurisdiction of the Court, the issue of the invalidity of the 1928Treaty would remain
open and could be re-argued, this time fully, by Nicaragua. In the present instance, this could
possibly have been the case, in view of the Article36, paragraph2, declarations of acceptance
submitted by both Parties. According to the C ourt, however, its conclusion that there is no
jurisdiction under the Pact of Bogotá at the same time also disposes of jurisdiction under the
optional clause system, even though the Court recognizes that we are in presence of two distinct
bases of jurisdiction which are not mutually exclus ive. JudgeSimma therefore considers that the
Court should have continued the examination of its jurisdiction by turning to the optional clause
declarations of the Parties and scrutinizing the effect of the reservation ratione temporis made to
the Colombian declaration as well as that of Colomb ia’s denunciation of that declaration. If the
Court had followed this course, either the issue of jurisdiction would have been decided in the
negative once and for all, or the Nicaraguan law of treaties arguments would have experienced their
due fate at the merits stage of the case.
Declaration of Judge Tomka
Judge Tomka concurs with the view of the Court that Nicaragua has treated the 1928 Treaty
as valid for more than 50years and thus acquiesced in its validity. Therefore, Nicaragua’s first
argument alleging that the 1928Treaty was invalid because it was concluded in violation of its
Constitution then in force cannot be accepted.
Nicaragua also submitted that it was depriv ed of its international capacity during the
pertinent period since it could not freely express its consent to be bound by international treaties. It
seems that the majority has treated this second ar gument like the first, but Judge Tomka considers
that it requires a distinct response.
The second ground of invalidity invoked by Nicaragua is not without difficulty. If it is to be
understood broadly, then it would run counter to the other basis of the Court’s jurisdiction invoked
by Nicaragua: the optional clause declaration under Article 36, paragraph 2, of the Statute. Indeed,
Nicaragua made such declaration in 1929, exactly in the pertinent period when its government was
allegedly deprived of its international capacity . Nicaragua however admits that it was not
prevented from concluding international treaties in general. But then it is difficult to accept its
contention that the Nicaraguan Government was de prived of its international capacity during the
relevant period. Nicaragua therefore specifies that while it was under occupation by the United
States, it was prevented from concluding treaties that ran against the interest of the United States
and from rejecting the conclusion of treaties that the United States demanded it to conclude. The
interests or demands of a third State are not however sufficient grounds to render a treaty null and
void abinitio . Furthermore, the Court would not have been able to reach a decision about the
alleged coercion without examining the lawfulness of the conduct of the United States which is not
a party to these proceedings.
Judge Tomka therefore agrees with the conclusions of the Court that the issue of sovereignty
over the islands of SanAndrés, Providencia and Sa ntaCatalina is not to be adjudicated at the
merits stage. - 4 -
Separate opinion of Judge Abraham
Judge Abraham expresses his agreement with the substance of the solutions adopted in the
Judgment in respect of all aspects of the dispute other than sovereignty over the three islands
referred to by name in ArticleI of the 1928Treat y (SanAndrés, Providencia and SantaCatalina).
As to all such aspects, he approves of the Court’s decision that the questions raised by Nicaragua’s
claim were not settled by the 1928Treaty, that th e Court therefore has jurisdiction over them
pursuant to Article XXXI of the Pact of Bogotá, and that there is no need for the Court to determine
whether it might also have jurisdiction pursuan t to the two Parties’ optional declarations
recognizing the compulsory jurisdiction of the Court.
On the other hand, Judge Abraham distances himself from the way in which the Court has
treated the question of sovereignty over the three islands referred to above.
First, in his view the Court should have found that Colombia’s first objection ⎯ challenging
the Court’s jurisdiction under the Pact of Bogotá ⎯ did not, in this regard, possess an exclusively
preliminary character, and that the examination of it should be deferred to the later phase of the
proceedings, after the debate on the merits. Indeed , to rule thoroughly on this objection, the Court
has had to take a position on Nicaragua’s argu ment based on the alleged invalidity of the
1928Treaty, specifically on the ground that it was concluded under coercion. Accor
ding to
JudgeAbraham, the Court did not at this stage have before it all the information necessary to
decide this question, and the manner in which it r esolved the issue creates as many difficulties as it
solves. Specifically, Judge Abraham regrets that, already at the preliminary stage, the Court,
needlessly and without adequately explaining its reasoning, addressed the delicate question whether
a State claiming to have been coer ced through the unlawful use or threat of force can rely on that
coercion as a cause for the nullity of a treaty, when, by its conduct after conclusion of the treaty, it
manifested its acquiescence over a period of time in the validity of the treaty.
Secondly, in respect of Colombia’s second preliminary objection ⎯ challenging the Court’s
jurisdiction under the optional declarations ⎯ Judge Abraham approves of the Court’s decision
that it is without jurisdiction on this basis over that part of the dispute concerning the three islands,
but not of the grounds on which the Court justified its decision.
According to Judge Abraham, the Pact of Bogot á is the sole basis for jurisdiction applicable
in the relations between the States parties to it, and the optional declarations are ineffective. On the
other hand, in his view it is incorrect to say, as the Judgment does, that there is no extant dispute
between the Parties over the three islands, any di spute having been settled by the 1928 Treaty. In
JudgeAbraham’s opinion, this reasoning originates in a worrying confounding of the substantive
issues ⎯ the 1928 Treaty may perhaps lead to deciding the dispute in favour of Colombia ⎯ and
the issues of jurisdiction and admissibility ⎯ the foregoing observation should not, by itself,
prevent the Court from exercising its jurisdiction over a very real dispute.
Declaration of Judge Keith
Judge Keith emphasized that, in accordance with the principle of the good administration of
justice, the Court should decide at a preliminary stage a matter in dispute if it may properly be
decided at that stage and if deciding that matter would facilitate the resolution of the case. In
exercising that power and responsibility the Court must have before it the material it needs to
decide that matter and it must accord to each party equal rights to present its case and rebut the case
against it.
In the circumstances of this case, in Judge Keith’s opinion, the Court could properly decide,
as it has, that the matter of sovereignty over the three named islands has been settled in favour of
Colombia. There is now no dispute in respect of that matter and the Court accordingly does not
have jurisdiction in respect of it. - 5 -
Dissenting opinion of Judge Bennouna
Judge Bennouna voted against the first decision of the Court, whereby it upheld the
preliminary objection to its jurisdiction raised by Colombia on the basis of the Pact of Bogotá, in so
far as it concerns sovereignty over the islands of SanAndrés, Providenc ia and SantaCatalina
(operative clause, sub-paragraph(1)(a) ). In his view, this objection does not possess, in the
circumstances of the case, an exclusively preliminary character within the meaning of Article79,
paragraph9, of the Rules of Court. While the Pact of Bogotá excludes from the Court’s
jurisdiction issues “governed by agreements or treaties in force”, Nicaragua has disputed the
validity of the Treaty signed with Colombia in 1928 and ratified in 1930, on which the latter relies
as the basis of its sovereignty over the three islands.
In so far as Nicaragua relies on the coercion to which it is said to have been subjected when
it was under occupation by the United States in order to contend that the 1928 Treaty was invalid
ab initio, Judge Bennouna considers that the Court could not at this stage investigate such coercion
of the State and its consequences on the capacity of Nicaragua to enter into a treaty without
addressing the merits of the dispute.
Judge Bennouna also voted against sub-paragraph (2) (a) , of the operative clause, according
to which the Court similarly lacks jurisdiction on the basis of the optional declarations of the
Parties recognizing the compulsory jurisdiction of the Court (Statute, Art.36, para.2). In
upholding this objection, the Court again declined to exercise its jurisdiction concerning the three
islands. Judge Bennouna notes that the Court, after holding that it was before “two distinct bases
of . . . jurisdiction which are not mutually exclusive”, has nonetheless managed to reject the second
of these, based on the optional declarations, by refe rence to an examination of the first, based on
the Pact of Bogotá, by concluding that there is no dispute between the Parties.
For JudgeBennouna, the optional declarations must be appreciated perse , and can only be
limited by the specific reservations made to them by the Parties. On that b asis, there is indeed, in
his opinion, a dispute, a conflict of legal argument between the Parties regarding the validity of the
1928 Treaty.
Declaration of Judge ad hoc Gaja
In his declaration Judge ad hoc Gaja criticized the Court’s finding that it had no jurisdiction
under the optional clause declarations because th ere was no “extant dispute” on the question of
sovereignty over the islands that were expressly attributed to Colombia by the 1928Treaty.
However, he concurred with the Court’s conclusions also on this point in view of the Colombian
reservation to the effect that its declaration applied “only to disputes arising out of facts subsequent
to 6January1932”. He considered that all the facts relating to the content and validity of the
1928 Treaty predated 1932.
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Summary of the Judgment of 13 December 2007