Preliminary Objections of Colombia

INTERNATIONCOUROFJLISTlCE

TERRITORIALANDMARITIMEDISPUTE
(NICARAGUAYCOLOMBIA)

PRELIMINARY OBJECTIONS OF THE

GOVERNMENTOFCOLOMBIA

VOLUME1 TABLEOFCONTENTS

TNTRODUCTION ........................................................
....................

I. ProceduralHistory .......................................................
.....

II. CoIombia7sPreiiminaryObjections ......................................
ILI. Colombia'sPosition:AnOvemiew ............................5.......................

A . THE HISI'ORICLBACKGROUND INOUTLINE ..................6...............
B . NICARAGUA 'TTEMPTS T(f REUPEN THE QUWTONS
SETTLED BY THE I928TEATY AND ITS PROTOCOLOF
EXCHANGE OF RATlFlCATION OF 1930.........,...* ........9.......

C . COLOMBIA PRSELJMINARO YBJEC'TION........................
I.InrespecrofthePactofBogota ..........................12.......

2.In respectofArticle36.paragraph 2. ofthe Statuse:
the OptionalClauseDeclaration........................1........

IV . Contents ofthe PresentPleading .....:.......................2..........

CHAPTERI: BACKGROUND OF THE CASE .......................3..........
TheFartiesbeforethe Court ................................2.............
1.
11. TheGeographicalArea .....................................23..............................

A THE ARCI-IIPELAGOOF SAN AND&S .........................25....................
B .THE MARITIME AKEA .....................................28..............

IU . The Colonialand Early Post-ColonialEra ...................29.............
IV . The Emergenceof a Dispute in 1913, upon Nicaragua's
Claim totheArchipelagoofSan And& .......................................

A.EMERGENC OE THE DISPUTEOVERTHEARCHIPELAGO OF
SANANDES IN1913......................................32................................ B.NEGOTIATIO NETWEEN .THPARTIES ..........................................

V. The SettlementoffftDispute hy the Esguerra-BBrcenas
Treaty of 1928 and its Protocol of Exchange of
RafificatioofI930 .....................................36................
................
A. CONCLIJSJU NFTHE TREATY .............................................

B.APPROVAL AND RATIFICATIONOFTHE TREATY .....................

C. REGISTMTIO NFTHE 192TREATY ANDITSPROTOCOLOF
EXCHANGE OFRATIFICATIO OFS1930.............,..,,,..52
VI. The 192&1!W2 Agreements between Colombiaand tbe
United Stateabout the Cays ofRonciador,Quitasmeilo
andSemnml .......................... . 53

VII. NicaraguaPurports to Carry Out Activitieinareas to
theEastof the AgreedMaritimeBoundarybetween the
- twoCo~rrtri~~~he82~WM~ia ................--.-.-.-+.+.+-

V1U- Niamtgtta'sUaWral Challenge fa theVaIide of the
1928Treaty.......................................5.........
A.N ICAKAGUA'SUNILATERAP LURPORTED DECLARATIO 08
NU1,LSI'Y .....................................................
......

D.THE 192'TREATYHAS NOT BEEN '['ERMTNATEIIECAUSE
OF "BKCACH .........................................68..........
..................

CHAPTER 11: IN ACCORDANCE WITH ARTICLES VIAND
XXXN OF THE PACT OF ROC- THE
COURT IS "WTTHOUTJURISDICTION TO
HEAR THR CONTROVERSYw AND

TFIEREFORE SHALL DECLARE
"CO'NTRUVERSYENDED". .....*...........,..7.+.-...
I. The PactofBogod .......................................3...............
....

11. The Rehni ProvisionofthePact ofBogoti.........................
ID. The Objectand PurposeofArticleVI and XXXTV ............6....

IV. Definitive Scthnat of the Uite mncmming the
Archi- oT%n Ad&, theMq* Cast sln dheMw
fhtgim (Cornbh&) ............................................................V. Esfablishment ofthe Maritime Limit abng the 82" W .
Mend~an ...................................................88..
.....................

VI. The Chamcfer ofthe82" W Meridian ..........................2...........
VK Basisofthe 1928-1930Settlement ...........................104....................

VIII. ConcIrrsion ...................................................6....
...............

CHAPTER III: THEDECLARATIONSOF COLOMBIAAND

NICARAGUA UNDER THE OPTIONAL
CLAUSE DO NOT AFFORD COURT
JCTRlSDlCTION .................................1.9...............
I. Jurisdictionunder the Pact of Bogoth is Governing and
Hence Exclusive............................................09..........
.......

II. By Reason of the Dispute between Nicaragua and
Colombia having beenSettld and ended, there is no
Disputebeforte heCourt towhichjurisdiction underthe
OptionalCIauseDeclarationscouId A-ch ...................I1.......

ID. In any Event,thereis noJurisdictionundertheOptionaI
ClausebecauseColombia'sDeclarationWasnot in Force
ontheDayofthe fiIing.ofNicaragua'sApplication ............1..3

A. TERMINA'TION OF AN OPTIONAL CLAUSE DECLARATION
MY BEEFFECSIVE ON NOTICE ..............................4............

B. COURT'S REFERENCES TO A "REASONABLE TIME
WEREOBITERDICTA ............................***.*.*..I.....*.*.
C. NICARAGU ANDCOLOMBIA M PRACTICEHAVE TREATED

THEIRDECLARATION SSTERMINABLEONNOTICE ...............
IV. In any Event, if Found to Be in force,the Terms of
Colombia's 1937 Declaration Exclude Nicaragua's
Claims, because the alleged Dispute arisesout ofFacts
priorto 6January 1932...............................................................

V. Conclusion .................................................3......
................

CHAPTER IV: SHORT SUMMARY OF COLOMBIA'S
REASONING W THESE PRELIMUVARY
OBJF,€TIONS ....................................3.................

I. General...................................................1.............
....

ZI. Colombia'sFirstPreIiminaryObjection ......................142.............. . Colombia's Secon PdreliminaryObjection...................143.............

CHAPTER V:COLOMBIA'S SUBMTSSIONS ........................

Listof Annexas (Volume II)...................................................................

Listof Maps (Volume 111).......................,................151...........PRELIMINARYOBJECTIONSOFTHE

GOVERNMENT OF COLOMBIA INTRODUCTION

I. ProteduraIHistory

1. On 6 December 2001 theRepublic of Nicaragualodged with
the Registry of the International Court of Justice an
Applicationby which itinstitutedproceedingsbefore the
Court againsttheRepublic of Colombia regarding a"dispute

[that] consistof agroup of relatedlegal issues subsisting
between the Republic of Nicaragua and the Republic of
Colombia concerning title to territory and maritime
delimitation"'.

2. In particularNicaragua asked the Court to adjudge and

declare:
"First, that the Republic of Nicaragua has
sovereignty over theisIandsof Providencia, San

Andr6s and Santa Catalina and aII the
apptrrrenant isIar~dsand caysand also over the
Roncador, Senma, Serranilla and Quitasrrefic
cays (insofar as they are capabIe of
appropriation);

Second, in the light of the determinations
concerning title requested above, the Court is
asked further to determine the course of the
single maritime boundary between the areas of
continental shelf and exclusive economic zone

appertaining respectively to Nicaragua and
Colombia, in accordance with equitable
principles and relevant circumstances
recognized by general inten-rationaI law as
applicable to such a delimitation of a single
maritimeboundary,"

AppI~cafnf~iicaa@ta,para.I.3. In its Orderof 26 February2002 the Court fixed28 April
2003as thetimelimitforthe filinofNicaragua'sMemorial,
Nicaragua duly filedits Memorialon that date. In its

Memorial Nicaragua substantiallreaffimred its original
request tothe Court, althoz~ghadding certai nfinements.
The case presented by Nicaragua remains, however,
essentiallone which conems sovereigntyover theislands,
cays and isletsof the Archipelagoof §an And* and

Plvvidencia ("th Archipelago of San hdrks"), and the
maritime boundary mning between thoseterritorieand
Nicaragua's mainlandand insul eatsrreisthe westernpart
oftheCaribbean Sea.

4. As tojurisdictioin its ApplicationNicaraguaassertthat,
"in accordance withtheprovisionsof Article36,paragraph
1, ofthe Statute,jurisdictioexistsby virtueof Article

XXXI ofthePact of~0~0th"~ and that"in accordancewith
the provisionsof Article 36, paragraph 2, of the Statute,
jurisdiction dsoexists by virtueofthe operation of the
Declaration of the Applicant State:dated 24 September
1929and the Declarationof Colombiadated 30 Ocroher

193~'~.In itMemorialNicaragua ineffectsimply repeats
thisassertion,withoutfurthere1abowtion3.

5. Not asingleword issaid by Nicaraguain itsMemoria1 on
the reIationshig between these TWO alleged titles of
jurisdiction -even though- as will shown in Chapter 111

below, the Court has dealt alength with rhisissuein the
Armed Acjium case4.Nor does Nicaragua'sMemorial refer
to the fnctthat Colombia had withdrawnits Declaration
priorto the filiof Nicaragua'sApplication.

'hfemoriqfNkarngtpara.pp.1-2.
' BorderolaTra~rsboArmzedAction(Nfcarapv Hodurn),Jiirisdiction and
AdmissibiJenr+ I.J.Repor~s1983. "'.:- . ,
n. Colombia'sPreIiminaryObjections

6. In accordance wirh the provisions ofArticle79, paragraph
1, of the Rules of Court,as amended with effect from 1
February 2001, Colombia has the honour to submit the
present Preliminary Objections. Colombia's Preliminary
Objectionsrelate to thejurisdiction of theCourt and to other

matters a decision on which issought before any further
proceedings on the merits.Those Preliminary Objections
address the twotitlesof jurisdiction invoked bNicaragua.
Those Preliminary Objections will be set out in full in
ChaptersII andTI of thisPleading.

111.CoIombia'sPosition: An Overview

In its ApplicationNicaragua slates thathe case it seeks to
bring beforethe Courtconcerns fa) the issueof sovereignfy
overcertain islandand cays fuming the ArchipeIago of San

Andrgs in the Caribbean Sea, and fiif,in the lighof the
Court's determination of that issue, the course of the
maritime boundary between the areas of confinenta1shelf
and exclusive economic zone appertaining respectively to
Nicaragua and ~olombia

8. Both those matters were definitivelysettled by a treaty
concludedbetween Colombia and Nicaragua more than 70
years ago following a dispute between the two States which
had arisenwith regard to the Mosquito Coast and the
Archipelago of San Andrds, including the IslasMangles
(Corn Islands).Thus, by instituting these proceedings
Nicaragua is seeking to reopen a matter which has long

sincebeen settled. A. THE HISTORICAB LACKGROUND IN OUTLINE

9. Colombia and Nicaragua became independent Stzrtes
following thbreak up ofthe SpanishcoIoniaIEmpire in

the Americasin theearlyyears oftheninetee nentury.
At thattime the ArchipeIa og§an And* -which then
includedtheIsIas Mangles(CumIslands)- and pm of the
Mosquilo Coast were partof theSpanish Viceroyaltyof
Smta Fe (or Viceroyalty of Mueva Granada), the
forerunilerof pmnr-day Colombia.Fm the time that

Colombia becameanindepende nntionand righup tothe
mt timethe islandsandcaysoffhe Archipiago of San
An&& -as it iknown toda$- havealways beenfullyand
exclusiveladministeredbyColombiaand have beenunder
Colombiansovereign stbj,ctonly toratransientdispuw
betweenColombiaand theUnitedStatwofAmerica -butnot
involvingNicaragua-regardinsovereigntoverthreeofthe

Archipelag cayss(Roncador, Quitasuefioad Serrana)
which wasresolvedby agreemenbtetweenColombia andthe
United Stateswith the latter's renouncingall claito
sovereignty over them. Colombia has exercised its
sovereigntyandcarriedoutcoun~Iessactsofguvelnrnenral
authoritand administratiin thoseislandsandcaysofthe

Archipelago of §an Andr& fornearIy two centuries.
CaIombia has throughoutdoe so prrbIicIy, peacehIly,
unintemptedlyandciti&de souvernipz.In shoreversince
the break upof the SpanishEmpire,sovereigntyoverthe
Archipelagoof SanAnd& has been vestin andexercised
by Colombia ,ndColombiaaIum-

10- In markedcontrast,throughoutheperiodsinceNicaragua's
om independence in1821 andup tothepresenttime,none
ofthe islandscays or islets othe Archipelagoof San
AnMs has ever beenunderNicaraguan sovereigntyor,
much less, administeredbyNimgua in anyparticulaor
degree,# icaragua'claimthatthe islandsandcays of the

Unlessolheiwise spallrefcrcncrheArchipelgfSanAnddsare tbr
understdsmeaninthArchipelasiisknowntodSceChaptI,pm1.8. ArchipeIagoappertainedto Nicaragua in 1821, 1823, 1838,
or atany othertime,ik simplypreposterous.
I
11. As regards the Mosquito Coast, in rile19~ century it was
under direct control of Great Britain andtheir Miskito
protdgks.Since the very emergenceof Colombia as an

independent State, Colombia, on the basis of the titles
derived from the Spanish Crown, asserted itsrights of
sovereignty andjurisdiction over that coast firagainstthe
British Government,and from the rnid-1gfientury,against
Nicaragua as well. Despite thefactthat Nicaragua in 1860
signed the Treaty of Managua(Wyke-Zeledon) with Great

Britain,theMiskitos -under Britishprotection- continuedto
hold the effective controlover the coast that officicame
ro be known as "Resenra Mosquitia" (Mosquito
Reservation). This situation prevailed until 1894 when
Nicaragua, with the support of the United States, began to
exercise some presence on the aforemenf ioned coast.

Colombia, for its part,continued tassertitsrightsover the
MosquitoCoast againstNicaragua, but withoutbeing able to
resolve thematterbetweenthe two counbies.

12. The differences bemeen both Stateswere ccmpor~nded by
the factthat,in 1890,Nicaragua occupied the IslaMangIes

(Corn Islands)by forcein anact that was duly protestedby
Colombia. This occupation onlyaffected the IslasMangles
(Corn Islands)whilethe otherislands,isletsand cays of the
Archipelago of San AndrQ continued to be under full
Colombiansovereigntyandjurisdiction.

13. In 1913 Nicaragua for the first time advanced claims to

certain islands of the Archipelaof SanAndrGs.Thus, the
subject matterof the controversybetween the two countries
comprised the MosquitoCoast and the Archipelagu ofSan
An&& ofwhich the IsIarjMangles(Con1 Islands)were part.
After promred negotiationsbetween the two States,the
matter was definitivey settled by the Treaty Concerning

Territorial Questions at Issue between CoIombia and
Nicaragua concIudd in 1928 andits ProtocoIofExchange of Ratificationsof1930. Thisinstrument,alsoknown asthe
Esguem-BbcenasTreaty, was discussedand approvedby
the Congressesof both StatesThe 1928Treaty and its
ProtocolofExchge of RatificationsofE930 was registmd

withthe Leagu ofNtions byColombia on 16 August 1930,
and byNicaragua on25 May 1932.

14, InthatTreatyanditsProtmIof~cbangeof~tifi~iorrs,
thePaltiesgated he theywere "...dsirotlsof puttingan
end tothe territorialdisputependiMween them...""as
the Treaty'spreambIe recites), By Article I Nicaragua

expressly 1.ecognizedColombian sovereignty over the
Archipelagoof San Andrks.Nicaraguaalso agreed in that
Treaty that in respect of three ofthe Archipelago's
cays -Roncador, Quitasueiioand Serrana-"sovereignty..
(was]in disputebetwee nolumbia and theUnited States":
Nicaragua thusacknowledged thatithadnoclaims tothem.

For its partColombiarecognized Nicaragua'ssovereignty
over theMosquitoCoastand over theIslasMangles (Corn
Islands)two islandwhich werealsopartoftheArchipelago
of SanAndres.Moreover,the partiesalso agreedupon the
82OW Meridianasthe maritimelimibetweenColombia and
Nicarap.

IS. Thereafter, bothStatesconductedthemselvesconsistenrly
with the provisionsupon which tkq had agreed in that
Treatyof I928and itsProtocoIofExchange ofRatifications
of 1930.In accordancewithitstermsColombia continu ed
exerciseits unintemptedsuvereignv and administr~ion of
the ArchipeIagoofSan And* and exercisedauthoritand

jurisdictiooverthemaritime area sothe eastof Meridian
82'W. Nicaragua never exercisedany such sovereignty,
administrationauthorityandjurisdiction oveColombia's
Archipelagoand maritimearea tstheeastofthemeridian,

U~~CSSnofficialsouactranslaiidentified,transavebepreparfo?
thpurposofthisPleading, - . J
B. NICARAG A~UEA *^S TO REOP THE N ~~~~~o~~
SETTLED BY'THE 198 TREATY ANDITSPROTOCOL OF
EXCHANGE OF RATIFICATIONS OF I930

16. Four decadesafterthe enrrinto forceof the 1928Treaty
and its Protocol of 193in 1969Nicaragua, forthe first
time ever, purported -without questioning the valiorty

effectiveness of t1928 Treatyas a whole- to carry out
activitiesinareto theastofthe agreedboundaryalongthe
82" W Meridian, by granting survey permits and oil
concessions in those areas. Colombia protested tothe
NicaraguanGovernment.

17. A decadelater,in1980,by which timethe Treathad been
in forcefor50 years,Nicaragua unilateralpurported to
disclaim thI928 Treaty, by declaring itandvoid.Just
as CoIornbia had rejected Nicaragua'earIieattempt ro
carryoutactivitiesareasto theeast oftagreedboundary
aIong the 82"W Meridian,Colombia againrejected rhis
further attempt to vitia boundaryand territoritreaty

which it continued to applywithout intemptiNaturally,
Colombia conlinued to exercise its sovereignty and
jurisdiction over the ArchipeIaof San AndrGs and its
appurtenant maritimareas,asit had been doing for almost
two centurie-.

18. By institutinthese present proceedings, Nicaragua is
continuing to pursue its attempt to disclaima treaty
settlement which was arrived at after painstaking
negotiationsand which hasnow enduredfor just over 70
years.

C, COLOMBIA PS ELIMINARYOBJECTIONS

19. Colombia submits two PreIiminary Objections, reIating to

rhejurisdictiof theCourt and toothermattersadecision on which is sought before anyfurtherproceedingson the
merits.

20. As noted above (paragraph 4), in its Applicarion(and

substanti rpeIted initsMemorial) Nimgua referto
twotitlesofjurisdiction.

21, First,Nimgun contends in its AppIication that "[IIn
accordance with the provisionsofArticle36, paragraph I,
*
of the Statutejurisdictionexistsbvirtueof ArticlXXXl
ofthe Pactof Begot$"' a treatyto which both Nicaragua
andColombia areparties.Nicaragua makes nomenrionof
any otherrelevantprovisionof the Pact.

22. Second,Nicaraguacontends that"inaccordancewiththe

provisions of Mcle 36, paragraph 2, of the Statute,
jurisdiction. exists by virtue of the operation of
Declaration of the Applicant State dated 24 September
1929and the Declarationof Colombia dated 30 October
1937".

Nicaraguaaccordingly rests itApplicationin the instant
proceedings on the same two titlesofjurisdictioasthose
on whichit reliedinitsAgpIicationagainstHondura snthe
Armed Actionscase, wherethe Court summarized them as
follows:

"micaragw asserts [hat the Court couId
entertain thcaseboth on the basisofArricIe
XXXI of thePact ofBogoti and on thehis

of the declarations of acceptance of
cornpuIsoryjurisdiction made by Nicaragua
and Honduras under Article 36 of the
~tatute,"'

' Bordw anTransbordArmed Acfia[Nicaragzv. HondttmJurtsdlctand
AdmlsslbEiiiyJ,udC,JReporrs198p.82pam.26. -.
However, the Court specifiedthat

"Since, inrelationsbetweenthe States parties

to the Pact of Bogoti, thatPact is governing,
the Court will first examine the question
whether it has jurisdiction under Article
XXXI ofthe act."'

24. According to Article 79, paragraph 1,of theRules of Court
(asamendedon 5 December 2000),

"Any objection by the respondent to the
jurisdictionofthe Court or tothe admissibility

of the application,or other objection he
decision upon which is requested before any
further proceedings on the merits, shall be
made inwriting as soon as possible, and not
latethanthree months afterthedelivery ofthe
Memorial ."

25. Three categoriesof objectionsare provided forin this Rule,
twoofthem specific,andthe third oageneralnature:

objectionstothe jurisdictioofthe Court;
(a)
fbf objections tothe admissibility of the Application;
and
fc) other objections the decision upon which is
requested before any further proceedings on the
merits- in theFrench version of the Rules: 1foufe
autre exception sur laqtleifie difevrde dlev ande

u~e&cision a??nt que fa prockdtare suriefond se
poursuive ... .

26. As the Court has noted inthe Lockerbie case, the"fieldof
applicationratione naateriue"of Article79 of the Rules"is

0
BorderandTransbordAnteActiom flicuraguHonduras),Judgement,ICJReports
1988,p.82,pam.27. Emphasisadded. thusnot limited solelytoobjectionsregardingjurisdiction
and admissibility",but extends to any "ofher objection"

which possesses a 'preliminarycharacti ens7faras its
purpose andeffect, as ascertained bythe Court, are "to
prevent, intimine, any considerationof the case on the

1.ICPrespect.ofth eQC~ ofaOg&

27. Inrespect of Nicaragua" claim to base thejurisdictionof

the Court on Article XXXT of the Pact of Bogoth,
Colombia ,n thebasisoFArticle 79 oftheRules, submits a
preliminaryobjectionon whichit respectfr ilquyestthe
Court to rule in limipae Eitisin accordancewith the

procedureset outinthatsame article.

28. The America11 Treaty on Pacific Setrlement,oEcialIy
known as the"Pact of BogotP, was adoptedin Ihe with
Article26 of the Charter*oftheOrganizat of Anmerican

States.It is an importantelement inthe Inter-American
systemfurthe pacificsertlement ofdisputes-ArticIeXXXI
ofthePacf of Bogoth readsas follows:

"In conformity with Article 34,paragraph 2,
of the Statute of the ~nten&ional Court of
Justice, theHigh ContractingPartiesdeclare
that they recognize,in relationto any other
American State,the jurisdictionof the Court
as compulsory ipso facto, without ;the

necessityof any special agreement so longas
thepresent Treaty isinforce,inalldisputesof
a juridical nature that arise among them
concerning:

'@&viunsofInlerprefrdionmid Ap#ic[fie19&mtr@aiConvenfrurisi~fronr
ikeAerreni;:iafLmkmbie [CibyrutJmnntahirVUniteKtngda~~~/liminary
Ianguagin its ludgme!hesamedalin rhprallcasebroughagainsteUnited
Siat{!bid,a~r131-2,pa. 6) (a) !. The interpretationof a treaty;
(b) Any question of internationallaw;
(c) The existence of any fact
which, if established, would
constitute the breach of an
internationalobligation;or

(d) The nature or extent of the
reparation to be made for the
breach of an international
obligation."

29. Article XXXT,however, does not of itselfdispose of the

matterwhichNicaraguanowseeks to putbeforetheCourt -
namely sovereignty over the Archipelagoof San Andrks and
themaritime boundarybetweenColombia andNicaragua.As
wiIIbe shown later on1: itis essentiato read the Pact of
Bogotitas a whole, and not seIectiveIya Nicaragua does.
Artide I1 of the Fact provides that the parties bind

thernseIvesto use the proceduresestablishedtherein (good
ofices, medialion, investigation, conciliation, judiciaI
procedure and arbitration)in the manner and under the
conditiunsprovided forinthePact itseIf.

30. In this context, fuaccount must thereforealso be taken of

ArticleVIof the Pact. ThatArticlereads:

"The aforesaidprocedures [whichinclude those
of ChapterTVrelating to Judicial Procedure, in
which Article XXXI appears],furthermore,
maynot beapplied tomattersalready settledby
arrangementbetweenthe parties, orby arbitral

award or by decision of aninternationalcourt,
or which are governed by agreements or
treaties force on the datof the concIrrsioof
thepresentTreaty 1i.e30 April1948, whenthe
Pactwas signed]."

See par2.5md ff. procedimiepftosa /uasuntosya resueltopor
arreglode lasparfes,upr l& arbitralo
pr sentencia dewl tribunaintemmbflial,o
qw se kaIlenregidospor ocziwduso ~afados
ea vigepscien lafichede ia edebrac& del
presenfePacto':

31. AticleVI thusrequiresthatArticleXXX "not beapplied"
to the matters referrto,namely (a)the mattersalready
settledby thearrangement embodied in the1928 Treaty
and its Protocol Exchange ofRatificationso'193a 0n,d
(b)mattersgovd bya treatyinforceon30 April t948,
asurnontestablyand incontestab lhe 1928Treatyandits
1930 Protocol was. By virtue ofArticle YI,therefore,

ArticleXXXT relied on by Nicaragua to found the
jurisdictiofthe Courtis inapplicableon bothgraunds,
and the Court cannot have jurisdiction under that
inapplicablArticlXXXI as such.

32. ArticleVf ofthe Pact of Bogotisnot,however, the only
otherreleva ntovisionwhichmust be takenintoaccount.

Article XXXnI provides (in accordance with normal
practice)thatif thereis any disp~~kover the Court's
jurisdichon, then tCourtmust decidethatissue. And if
the Courtreaches thconclusiothaton thebasisofArticle
VT itis withojurisdictiotoheatthedisputesubmittedta
it, theunder ArticIeXXXIV the controversy"sha1I"be
declared "ended" (termin&, ierminad~~).The Pact of
Bogota expressly givetheCourtjz~risdicrito make this

declaratioi~.Whathe Courtiswithourjurisdictiotodo is
to hear thecontroversyanew, as if itwere not already
settledbyan arrangemenbtetweenthe Partiesorgoverned
by ntreatyinforceon30 Apri11948.

33. In shortthe veryPactof BogotA invoked (selectivelby
Nicaragua requiresinstead(whenread in full) thatthe

Courtmust declarethathe controvev isended.34. The exception 'contained in Article VI ofthe Pact of
Bogotk ensures that the matters referred to cannot be
reopened. As wiII be shown in Chapter 11,the fmvaux
prkparafoires af fhe ZX International Conference of
American States, in relationto ArticIe VI, confirm the
intentionofthe StatesP~IQnot toapplythe procedures set

forthinthe Pact to matterswhichhave already beensettled
by arrangement between the parties, as well as those
governed by agreementsor treatiein forceon the date on
which thePact was signed,

35. ThemeaningandeffectofArticlesVIandXXXIVofthe
Pact arethus clear. Inthe present proceedings, thdispute

havingbeen settledby the 1928 Treaty and itsProtocol of
Exchange of Ratificationsof 1930, a declaration by the
Court thatthe matter is "ended"(terminke, terminadu) is
what the Pact requires.If Nicaragua's Applicationwere
aIIowed to proceed, the dispute with regard to the
Archipelago of San Andre5 which had arisen in I913

between the two countries and which they settledin 1928
after protracted negotiations, wouIthus revivemore than
seventy years later,and the whole issue, including
Colombia's rightsover the Mosquito Coast and the Mas
MangIes (Corn Islands), would now be brought back to
square one.

36. The scope of the 1928 Treaty and its 1930 Protocol of
Exchangeof Ratifications is clear.

37. First,as regards territoripossessions, it establishes that
Nicaragua recognizes Colombia's sovereignty over "the
islandsof SanAndrCs, Providencia, SantaCatalina and all

the other islands, isleand cays that form partof the said
Archipelagoof San Andrks" , ndthat Colombia recognizes
Nicaragua's sovereignty overthe Mosquito Coast and the
IsIasMangles (Cum Islands). Second, the Treaty provides
thatthe caysof Runcador, Quitasuefio andSer~ana ,renot
considered to be include id it, or1 the ground that

sovereigntyover them "is indispute between Colombiaand the United States": since theTreaty could only have
appliedto thosecayson thebasisthattheywerepart of the
Archipelago,itfollowsthatNicaraguahas recognizedthat
they are partof the Archipelago,*md since further the
disputeoversovereigntyover them was saidtobe a matter
between onIyColombia and the United States,itfollows
rfiatNicaragua also agreed that it had no clajm to

sovereigntyoverthem.

38. As regardsthe maritimearea, onNicaragua'sinitiativethe
line of the Meridian 82"W was agreed fietweenboth
countriesanda provisionwas includedto thateffectinthe
Protocolof Exchang oeRatificationof 1930. itprovided
that "thArchipelagoof SanAnd& and Providencia, hich

is mentionedinthefirstclauseofthreferredtoTreaty, oes
not extend west of the 82 Greenwichmeridian".In so
stipulatingthe pmies agreed that Colombia'srights
extended totheeastof thatmeridianandtherefore,thatthe
rightsofNicaraguaextended tothewest of Meridian82"W
- inother wordsthatthis meridianwouldbethe boundary
between bothcountries.

39. Nicaragua argues that the provision in the ProtocoIof
Exchangeof RatificationsregardingMeridian 82O W isa
westernbunday for CuIornbiavis-A- vicaraguabutnut
aneaster bonundaryforN~carag uis-his Coiornbiat:hiis
inmhermt.It is inconceiva tbateaboundarythatdivides
theams of jurisdictioqmtaining totwo borderingStates,
negotiatedandestablishebyagreementbetween thewies,

can be consideredasa brxdary for onlyone ofthem and
not furrhe other.It ievidm~that the jtrisdictioofone
Stateendswherefhat oftheotherbegins.

40, The debate in the Nicaraguan Congress confirms the
meaningof the incorporationintProtocolof Exchange of
Ratificationof theprovisioregardingthe82"W Meridian:

. the termsused includeda "'border", "dividingline oftk
watersin dispute''a "delimitation, "denmen of the dividing linev1- in-otherwords: a boundary betwee he
two countries.~ui~hkr miinnation bf the character of the
82' WMeridian as a boundary betweenboth Statesliesinthe
fact that, for very long period, both countries conducted
themselvesas regardsthe boundary in accordance with the
agreementincluded inthatprovision.

41. Itisthus clearthatthe 1928Treaty and its 1930Protocolof
Exchangeof Ratificationscoverprecisely the issues which
Nicaraguais seeking by itsApplication to reopen.

42. Nicaragua adds, however, an argument that seeks to deny

present IegaIforceto the I928 Treatyand its1930 Protocol
of Exchange of Ratifications.TileT~afy is, arguesNicaragua,
null and void; moreover, so Nicaraguaargrres, Colombia
has itseIf acted in breacofit,and thus rhe Treatyhas been
terminated by that breach. Neither of these argrlrnents
withstands scrutiny.

43. Nicaragua argues first that the Treaty was concluded in
breach of the provisions of the ConstitutionoNicaragua at
the time, and second, that in concluding the Treaty
Nicaragua was subject to coercion by the United States.
Both arguments areon their merits (or lacof them) wholly

unconvincing (as;will be demonstrated in paras. 1.99-
1.l11below).

44. Nicaragc~a knows this. Nicaragua allowed fifty yeas to
elapse without voicing any challenge to the vaIidiryof the
I928 Treaty and its Protocol of Exchange of Ratifications
of 1930. In itsjudgment of 1960 in the caseconcerning the

Avbitral Award made by the King of Spin on 23 December
f906, the Court found that "Nicaragua's faiIuretoraise any
question with regard to the validity of the Award for
several years... debars it from relying subsequently -on
complaints of nullityN "icaragua's sixyear delay inthat
case may be compared with half-centuy delay before

"SCCChapterI,pa1.59,1.-1.63.
"I.C:J. Reports196213-214. challenging the validiof the 1928 Treaty- a treaty which
alsohas a territorial character.

45. In addition to those rwo arguments, Nicaragua has
advanced a further argument,ro the effect fhaCoIornbia's

"interpretation"of the 82"W Meridian as a boundary
amounted to a breachof the Treatyandhas thus ledto the
Treaty being unilareralIy terminated.To assert thaf the
adoption of an argumentas to thecorrect interpretatiof a
treaty amounts to a violation of tTreaty is fancifulitis
particularly so when that argument is based on the very

terms used by Nicaragua's own representativesin the
Congressional debates in which the Treaty was approved.
Moreover, Nicaragua bases its argumenton the (incorrect)
'view that Colombia only adopted that "interpretation" in
1969, when in fact Colombia did no more than assertthe
agreement as itwas conceived by Nicaragua in 2930 and

agreed by both parties at that rimeInany event,even on
Nicaragua's incorrect versionof events Nicaragua waited
34 years before advancing this argurnenr-of the Treaty's
termination due to its aIIeged breaeh by Colombia- for the
firstime inits Memorialof2003.

46. As explainedmore fullybelow (seepara.1.1151,asearlyas

1931-a yearafterthe Treaty's entryinto force- the 82OW
Meridian was includedas the boundary between Colombia
and Nicaragua in the Oficial Map of the Republic of
Colombia. Nicaragua made no protest. Colombia
subsequently published several similar official maps that
were not protested by Nicaragua either. Colombia has

consistently continued to exercise its sovereignty and
jurisdictionover the maritime areas pertaining to the
Archipelao gfoSan An&& up to the aforementioned
meridian.

47. As noted above, Nicaragua's allegariontharColombia is in

bread1of the 1928Treaty and its Protocol of Exchange of
Ratificationsof 1930 was advanced for the first time in
Nicaragua'sMemorial of28 April2003. Arno time before, even when Nicar:ztgua in I969 purported to carry out
activitieto the eaiof the maritime boundary agreedalong
the 82" W Meridian, or in 1980 when it purported to
declare the 1928 Treaty as a nullity, did Nicaragua put

forwardan argumentof thisnature.

48. Nicaragua cannotnow be heard toarguethat Colombia, by
implementing the 82"W Meridian as a maritimeboundary -
as agreedin 1930-and complied with from then on- is in

breach of the 1928 Treaty with the result that that Treaty
has been terminatedor is subjectto termination,A purpose
of so extraordinarya cIaim is to vitiatColombia's valid
objectionstojurisdiction.Werethe Courtto sustainsuchan
argument, it wouId permit a State to evade limitationson

thejurisdiction ofthe Court by means of a spurious claim.
The presentation of aIIegedviolations before the Court
would thenof itselsu£tketo render thosemafrom -which
areanexpression of the wilof States- ineffectual.

49. In short, the I928 Treaty with its 1930 Proloco1 of
Exchange ofRatificationsis validand is in force.

,
2.Inrespect ofAr!icie36,paragraph2, of~hS etarute:the OpfiunnE
ClauseDecia~tltiuns

50. As noted earlier(para.23),the Cou1.thas heid that where a
State relies boton Declarations under the Optima1 Clause
and on provisiorlsof thPact ofBog#&,it is the lattewhich

"is so much so that, when the Court has
jurisdiction under the Pact ofBogoti, it has no need ro
consider whether it has jurisdictionaIso by virtue of the
Parties' OptionaI Clause Declarations.Since in thepresenr
proceedings the Cour-thasjurisdiction -and indeed has the

duty- under ArticleXXXIV(in accordance with Micle VI)
to declare ?he controversyended", thereis no need, and

l3Border nndTransborderArmed Acriom (Nicurv. Honduras), Jurisdictionand
AdmissibiJudgmentI,CJReports1988,para27. indeednoroom, for theCourtto considerwhether itmight
havejurisdictiounder theOptionalClause,

51. In any event,as decidedby theCourt in theAmed Actions

caseI4,jurisdiction under thPactis governingandhence
exclusive.So,whether thereexistedornot on the dayofthe
Application a jurisdictional title baseon the Optional
Clause system doesnot aflecttheCow's jurisdictionunder
the Pact of Bogoti. Therefore, whether Colombia's

Declaration was stiIl valid or not on the day sf the
Applicationisimmaterial.

52. Nevertheless,sinceNimgua assertsthat"jurisdictioalso
exists"in accordance with the provisions of Article36,
paragraph 2, of theStatute,Colombia will show thatthe

Court'sjurisdictioin theseproceedings can inno way be
based ontheParties'Declarationsunderthe OptionalClause
system,Therearetworeasons forthis.

53. First,NicaraguafailstonoteinitsMemorialth~tCo~ombia~s

Optional Clause Declaration of 30 October 1937 was
terminated by Colombia with immediateeffect on 5
December 2001 that is, beforethe filinofNicaragua's
Appliwtion on 6December 2001.

54. Consequentlya , thetime when Nicaragua'sApplicationwas

submitted to thCourt thesewas no mutualityof acceprance
of the Oprional Clausb ey the Applicant and Respondent
States,as is required by Article 36,paragraph 2,of the
StatuteoftheCorrfl.The CorW doe sot havejurisdictioby
virtueof NicfimguafsDeclarationaloneThe practiceofboth
Celombia (in1937 and 2001) and Nicaragua tin20QI) has

ken to intqrer their mpective DecIaratlonsassubject to
wifhdrawal w amendment withimmediateef'fect.

55. Second, even takingCoIombia'sterminatedDeclarationas if
it had been in forceat the time ofthe submissionof rhe

I4
Bordeand Tm~rbo* Armed Aaims(FImrugmY.HmIurc~s].A~risd~indo
Admrss~tr~, dgmenICYReporis19p,g2pp 27. Application (which.it was not), any resultingjurisdictofn
tfi Court wuu1d be'~imitedbythe &s of thatDecIaration.
Colombia's DecIaarion of 30 October 1937 contained the
reserration that "[t]he presendeclarationapplies only to
disputesarisingoutof factssubsequentto 6January 1932".It
is significant that rhis resewatrelat tosthedate of facts

out ofwhich a disputearose.

56, It is evidenfrom the outline of tcircumstances leadingto
the present proceedingsthat Nicaragua'scornplaintinvolves
in substancean attemptto reopen adispr~teaIreadyseRIedin
the 1928 Treatyand itsProtocolofExchange ofRatifications

of 1930.Nicaragua's challengeisto themeaning,and indeed
to the very existencein law, of that Treatyand Protocol.
Moreover, thefacts attheheartof the presentproceedings
advanced or alleged by Nicaraguain its Applicationand
Memorialrelateto mattersoccurring as long ago asthe early
years ofthetwentiethcentury,and even earlier.

57. It follows thatit is a dispwhich "aroseout of' facts(in
particulat, e1928 Treatyandits 1930 Protocol)which pre-
date6 January1932; itis thunot a disputewithinthe only
category of disputes which were within the scope of
Colombia's 1937 Declaration,namely "disputesarisingout '

of facfssubsequentto 6Jmuary 1932".

58. It followsfurtherthar inotsa disputeover whichthe Coun
could have jurisdiction by virtlreof Colombia's 1937
Declarationeven if (which isnotthe case)thatDecIaration
had stiIIbeeexranrat the time whenNicaragua submitted its

Application.

59. Therefore, for both these reasons -the absence of a
Colombian Declaration at rhe time when Nicaragua's
Applicationwas submitted, and the terrnsof thterminated
1937Declaration had it sriII bein force-the Court does
not have jurisdiction under ArticIe 36, paragraph ofthe

Statuteasreliedon by Nicaragua. IV, ContentsofthePresent Pleading

60. On the basisof Article79 of theRules of Court,Colombia
accordinglyraisetwo preliminarobjectionstothe effect
thatfirstinaccordancweithArticl VeIand XXXlVof he

Pactof BogotitheCourtis &withou turisdictito hearhe
controversy"and therefme the Court shalldecIm fhe
"controversy...ended",and secun h,attheCourt hasm
jurisdictionundArticIe36,paragrap h,ofitStatute.

61. The present pIeading, in additionto this Introduction,
mists offiveChaptersdealingwithd~efuIIowingmatters:

ChapterI Background oFthecase
ChapterII In accordancewithArticlesVI anXXXIVof
the Pact of Bogoti, theCourt is '%ithor~r
jurisdictioto Rear the controversy"and

therefore shall decIarthe "c~n~mversy...
mder
ChapterIII TheDecIaration sfColombia and Nicaragua
underthe OptionalClausedo not afford the
Courtjurisdiction

ChapterIV Shortsummary of Colombia% reasoningin
thesPreliminaryObjections,nd

ChapterV Colombia's Submissions.

62. The PreliminaryObjectionsalso include two additional
volumes. VolumeLicomprisesdocumentary annexesand
VolumeIllcontainsa setofmaps. 23

CHAPTERI

BACKGROUNDOFTHE CASE

I.TheParties beforethe Courf

!
i 1.1 The Parliesbeforethe Court are Stateswhich both have
I coastson the CaribbeanSea.Colombia is divided into 32
"Departamentos" (provinces), one othem being according
to ArticIes 101and 309 of theNational Constitutionthe
"Departamento ArchipiCtago de SanAndsks P,rovidenc yia

Santa Caialina".This province comprises aII the isIands,
isIefsandcaysinthe ArchipelagoofSan Andres.

1.2 Nicaragua is divided into 15provincesand 2 autonomous
regions. These regions arethe North Atlantic and South
Atlantic,whose territoriare partof what was formerly

knum as theMoqito CmsL Thi sms~d zoneis gqmphicaIly
and soeiaIIydiflerefromthe restofthecountry.

1.3 Since the beginning of Colombia's independent life, the
Archipelago of SanAn&& has been anintegr partof its
territorand,as such, hasalwaysbeen expressIyincluded in
its domestic law.In contrast, Nicaragua has never inirs

domesticIaw specified that the Archipelagoof SanAndrkis
partof itsterritory.

ILThe Geographical Area

1.4 TheArchipeIagoofSmAndr6sisIoca~edatthesouth-west

end of theCaribbean Sea, in the generalarea comprised
between Iatitrrdes16'30'N and 1 lo 00' N and longih~des 8Z0 00'W and 38' 00'W, to theeasof Honduras,thesouth-
west of Jamaica,the easrof Nicaragua, the north-easof
Costa Rica and thenorthOF Pama. Map No. 1iIIwtrafes
this geographicarea.

1.5 Colombiahas fixeditmaritime boundariesintheCaribbean
througha seriesaftreatiewith its neighboursin the areal5
(See Map No 2), beginniwngiththe 1928 Treatyand its
Protocol of Exchang ef Ratificationsof1930,concIuded

with Nicaragua .hereafter,maritimeboundarytreatieshave
'beencuncluded withPanma, in 1976 withGush Rica, in
1977;withthe DominicanRepublic, in 1978;with Haiti,in
1978;with Hondur.~,in 1986 ;ndwith Jamaica,in 1993'~.

1-16 Subsequent to the1928 Treaty and its1930 Protocolwith
Nicaragua,the maritimedeIimitatiolinesestablisheinthe
treaties signedby Colombia with Panama, Costa Rica,
HondurasandJamaica , erdram beween theArchipelago
of SanAndresd themain coastsofthoseStatesThe treaty
with Jamaicanot onlyestablishea maritimeboundary, but

also a jointregime area between the two countriesfor
purpm ofcontrol, expIoratioandexpioirationoftheliving
and nun-Iivinresources.Thelimitsoftharjoint regamearea
were likewise buiIt by drawing lines between the
Archipelago of San And& andthe Jamaicancoast. Even

tkough thetreatywithC~oa Ricahas norbm mifled, irhas
bm appliedbo~a$de$ bythe Partiesincethe verymoment
of its signamre. That treats ygned by -theColombian
Ambassadorin CostaRica and theForeign AffairsMinister
of thatcountv,Gmmlo J. Faccio,estaBI'is a delimitation
linebeween the Costa Rica coast andtkeislandsand cays

of theArchipela ofoSan Andrgs.Moreover3 Colombia has
concluded several treaties that take into account its
aforementionedboundariesinrheCaribbem Sea on matters
suchas druginterdiction.

''IitmttwnrtthaCoIo~nhhiL~~IW maritimedeIfmimariein !hePacific
OceaaswellwirhCos~aRihnam andhador.
l4AnneI, CoIornba'sritiDrIimi~aTrcarinrhCaribbean.1.7 Historically, the Archipelagoof SAndrts was formed by
the Archipelago ofSan Andrks as it belongstoColombia
today and the Islas Mangles (Corn Islands) whose
occupation and lease by Nicaragua had given rise to
Colombia's protestsin1890 and 1913respectively.

1.8 The Archipela ogfSan Andres today is formed by the
isIandsofSanAndres(including Johnny Cay,Hayne'sCay,
Rose Cay, Cotton Cay and Rocky Cay) Providencia
(inclrrdingLow Cay,Basalt Cay,PaIm Cay,Cangrejo Cay,
HermanosCay and CasaBaja Cay) and SantaCatalina; the
Cays of Roncador (including Dry Rocks), Quitasuefio,

Serrana(includinNorth Cay, LittleCay,NarrowCay,South
Cay, East Cay and Southwest Cay), Serranill(including
Beacon Cay, East Cay, Middle Cay, West Breakerand
NortheastBreaker),BajoNuevo (includingBajoNuevo Cay,
East Reef and West Reef),Albuquerque (includingNorth
Cay, SouthCayand DryRock), and thegroup ofCaysof the

East-Southeast -"Cayus del Este-Sudeste7'- (including
Bolivar Cay or MiddleCay, West Cay, Sand Cay andEast
Cay), as wellas by other adjacent islets, cays, baand
atoII(Map No. 3,Chart COL 004,depictsthe Archipelago).

1.9 The Cays of Albuquerque, the westernmost feature of the
Archipelago,are located 10 nautical milesto the ofsthe

82" W Meridian and some 100 nautical miles off
Nicaragua's mainlandcoast.Bajo Nuevo -the easternmost
cay- is locate70 nautical miles east of Serraniila Cay, 122
nauticalmiles offJamaica's coast,and 269 nauticalmiles
off Nicaragua's mainland coast, TfieArchipelago has a
maximum elevation above sea 1eveI of 350 metres

(approximately1150 fef).1.10 San Andr6, Providencia and Santa Catalina have several
urban centres throrrghorrtrhe islands. TpopuIafionof the
ArchipeIaguin 2003 is dose to 80,000 inhabitrtnt~'~. he
capita1of tlte Archipelago Depar-trnentis the city ofSan

Andres on the isIandof San Andres. Itis a city endowed
with a broad and modem infrastructure, including
Government faciIities and public utilitiesithas excellent
hotels and other facilities for tourism, shops and
deparlment stores, and branches of most of the financial
institutions operatingn the country. Ihas a road network

with paved ways, and there are centres for elementary,
higher and college education, public and privatehospitals
and health centres,and places of worship of different
denominations.There are radiostationsand four transmission
stations (one on San Andrgs Island and three on

PrcvidenciaIsland,twoof whichaIsocover Santa Catalina
IsIand)for thetelevisionchanneIs of the rest ofColombia.
San Andrgs as well as Providencia have excellentairports
that aIIowfurthemany flights-day and night, inthecase of
San Andrk- proceeding to and from therest of Colombia
and CentraiandNorth American countries.

1.11 The Archipelago is an important centre of commerce and
tourism, itsmost dynamic 'economic activitiesThe tourist
flow comes mainly from the rest of the Colombian
territory, as well as from Central Americanand Caribbean
cour-rtrieIn fact, thousands of tourists from countries Iike

Costa Rica, Panama, Honduras, the United States, Canada,
and Nicaragua visirthe Archipelagoevery year.

I.I2 CoIombia has, for. nearIy two centuries,without any
interruption,always regulated allaspects ofthe economic,

social,administrativeand judicial lifeof the Archipelago
with animus domini. The Governors of the Department of
San Andrks as well as the Mayors of the two existing

17
NationSlntisiDepartmentoColombia(DepartnmewNational Es~adistdea
Columbia),EstimaiedPopuProjectioCensusStudi1997. municipalities-Sa? Andres (on the-islandof San Andres)

and Providen comaprisingthe island of Providencia and
Santa Catalina)- are,as in every other Department in the
country, elected by popular vote according to the
Colombian Constitution and law. The Archipelago
~epartrnent electstwo Representatives to theHouse of
Representatives oftheNational Congress and its inhabitants
participateicountrywide elections(Presidential,Senaand

others).

3 In San Andres and in Providencia, the Judicial Branch
operates infull.Thereisalso aCustomsDistrict, partof the
National Tax and Customs Direction. Likewise, the
Archipelago has always had thepresence ofthe authorities
and agenrsofthe NationaIPolice.

1.14 On the islands and cays of the Archipelago, there are
Colombian Navy detachments responsiblefor theoperation
and maintenanceof the lighthouses and navigationalaids,
controlof fishingand theinterdictionofshipmentsof illicit
narcotics.

1.15 As regards theca$, tradifiondIyand historic ahl^^ave
aIways been the fishing grounds for the people of the
Archipelagoof §an Andrb who carr out their activities on
thebasis ofColombiangovernmentalreg~rlations.

1.16 Colombia's unintermpted sovereigntyover the Archipelago
of SanAndreshas been duly recognizedby the international
community in general and Nicaraguin particula. hus,for

instance, in the mid 20Ihcentury, Nicaragua appointed
consuls in San Andrks and on severaloccasions has
requested the Colombian authorities flight and fishing
permits, and its naGonals have traditionally requested
CoIombia to grant visas and tourism cards to visit the
Archipelago.1.17 Some 32 nautical miles off the coat of Nicaragua and 69
naurical rniIesoff the Cays of Albuquerque -which are

closest tothen- Iiesa group of two islandsknown as the
Corn IsIands,or Islas MangIesor blas del Maiz, that have
belonged toNicaragua since the 1928 Treaty. The Iargest
island (GreatCorn Island)has an approximate area of IO
square kilometres,whereasthe smallest(Little Corn Island)
has anapproximata ereaof2.9square kilometres.

1.18 To the southeast oftheterminusof the land borderbetween
Nicaraguaand Honduras near CapeGracias aDios, there are
certainNicaraguan cays and reefs called "MiskitoCays",
located approximately30 nauticalmiles off theNicaraguan
coast.They areuninhabited andare only usedas fernporary
shelterby fid~emen.

B. THE MARITIMEAREA

1.19 TheArchipelagoofSanAndr6sandtheIslasMstngIes(Corn
Islands) are locatedwithin a maritime area of irregular
depths, from some hundreds af fathoms deep abruptly
descendinginplacesto depths closeto 3,000metres.

Due to the specid feames of the Caribbean coast of

Nicaragua (the "Mosquito Coasr")and of the Isias MangIes
(Corm Islands)andrhe MiskitoCays, thefisherypotentiaIies
off those coasts,where the largest fishing capacity the
entireareais four-~d.In contrast, axas eastofthe 82"W
Meridianhave, ingeneralterns,limited fishingpotentiafor
lobsterfishingand snailfishcolIectionithe maritime areas

adjacent to the cays of Roncador, Quitasueiio, Serrana,
Serranilland BajoNuevo.1.21 Withinthe framework ofinternationalagreements or under

the express autho~sation of the Colombian Government,
nationalsof other'countriemay carryout fishing activities in
the maritime areasof theArchipelago. All fishingactivities
performed in the area are subject to strict conservation

measuresestablished by the Colombian Government.

IIT.The ColoniaI and EarIy Post-CoIoniai Era

1.22 The partsof the Spanish Empirein the Americasrelevant for
the presentproceedings were theViceroyalty of Santa ~e''
(comprising rnostIythe present-day Republic of Colombia)

and the Captaincy General of GuatemaIa(which incIuded
partof what isnow mainland Nicaragua}.

1.23 The Mosquito Coast as well as the Archipelago of San
AndrCs-which included the tslasMangles (Corn Islands)-
formed part of the Viceroyalty of Santa Fe when it was
definitivelyestablished in 1739'~.For a short period(1792-

1803)Spain authorisedtheCaprainGeneral of Guatemalato
appoint a Gove~mur for the Archipelago. However, in
December1802t, he Governor ofrheArchipela agsoell as

the isIanders wrote to the King, requesting that the
ArchipeIago be placed again under the juisdicfion of the
Viceroyalty ofSantaFe.

1.24 The King of Spainthen provided,by a Royal Order of 20
November 1803~', that the Archipelago of San AndrQ,

''l'he Spanidocumentsof thtimeinterchange afeledtosaid Viceroyaasy
Yiwetnaide!dNz~evGrnnad I.'icerayofNz~evaGrr~noh)or YirreinaSuntFe
(Yireruyn5fSunrrr Fedue10IIrfacthaSan~aFewas rhe capitaheoVimroyaIly
and thsearohc viceroys.
l9CiiirrllzRed (RoyaItPni~nlof1739,esfahlisl~ingthe ViceroyaIIre,inmrla
Bordq F-deP.:LimiIesdc CoIonrconCana Ricq Memoriaredactaddeorden deI
GobiemodeColombiaImprentadLa Luz,Bogorh, 1896310-313.
Annex2:RosaOrdcrof20November1803. includinthe lslaMangles(Corn Islands),aswelas thepart
of theMqito Coastfrom CapeGracias aDios southward,
besegregatedfromtheCaptaincyGeneral ofGuatemalamd

become dependentupon the Vimyaity of SanfaFe, to
which theseterritoriesbeIonged fothe reminder of the
CoIoniatera.

However, warding the MosquitoCoast,sincethemid-IF

century,Britishsubjectswith the aidof theGovernorof
Jamaica,began to occupy and colonize&c coast which is
today Nicaragua e'sterncoast between Cape Gracias a
Dios and theSan Juan River.Upon the dissolutioofthe

Spanish Empire,thatportionof theCoast which had 'bem
assignedtoColombiaby the SpanishSovereignin 1803 (as
explained inthe precedip nggraph) was under British
possession.

1.26 When Spain's AmericanEmpire broke up,Colombia
emerged asan independentStatein1810.Colombiabecame
known as "Great ColornbiaqV1819 anditsConstitutiowas
adoptedin 1821.TheArchipelago ofSan And& -including
the lslas Mangles (Com Islandsk adhered to that

Constitutionby means of public proclamation sy the
inhabitantof theisland?'in 1822 and,in thatsame year,
was incorporateas the Sixth Cantonof the Provinceof
Cartagena.

f.27 As regards Nicamgtla's independence, almugh the
provinces that were part of the Capraincy Gend of
Guatemala piaimed their independencfrom the Spanish
Crownon 15SeptemberI821, a fewmm~s Iakr theywere

absorbed by the Mexim Empire to which theybelonged
until 1823, In that year, the "RepcblicasUnidas de
CentPoamCrica'"CentraA1merican Federationw)ere formed

21Lmw addressey Cot PedeLecreix,ColonthcRepublicanArmies(Merim
Canunder, duriOcr. 18of(he dhCantoftheProvincfCnrtage-main&
comprisedSonAndrPOld Provide~aceandCornlkpw~mn~ofMngdalento
Genera'Francde PaulaSunttm, iPresidtf theRepublicofColombi1,onI
Nov.1822. .-" I : :-. .
. .

asa single Sbte,fhq{-was to last unril 1838 when Nicaragua
separated from the Federalion anddeciared its "sovereignty
and independencew2'.

1.28 In the 19" century the Mosquito Coast was under direct

controlof GreatBritainandtheir Miskitoprotegds.Since the
very emergence of Colombia as an independent State,
Colombia, on the basis of the titles derivfrom the Spanish
Crown, began to assert its rights of sovereignty and

jurisdictionover thatcoast againstrhe BritishGoverrment.
Sincethe mid-19' century, Columbia had asserted its rights
over the Mosquito Coast againsrNicaraguaas well.Despite
thefactfhat Nicaragua in 1860 signedthe TreatyofManagua
(Wyke-ZeIedbn) with Great Britain, the Miskitos -under

British protection- continued to hold rhe efkctive controI
over the coast thatofficial1ycame to be knownas "Reserva
Mosquitia" (Mosquito Reservation). This situationprevailed
until 1894 when Nicaragua, with the support the United

States,began to exercisesomepresenceonthat coast. During
that entire period, Colombia continuedto assertits rights
over theMosquito Coastagainst Nicaragua.

The differences between both Stateswere compounded by

the fact thain 1890,when there was still a Britispresence
in the ~os~uiti& Reservation, the representative or
"commissary", designated by the Nicaraguan Government
for rhe Mosquito Coast, occupiedthe IsIas Mangles(Corn

FsIands)by force. The CoIombian Minister of Foreign
Affairs, inan officiaNote of 5November 1890, protestedto
Nicaragua againstits occupationofthose islands"over which
the Republic [of Colombia] holds indisputable titles of
dominion and ownership".23This unlawful occupation only

affected the Islas Mangles (Corn Islands),while the other
islandsand caysofthe Archipelagoof San Andr6scontinued
to be under full Colombian sovereignty and jurisdiction,in

2'MemnoriojNicar.ngp.61,para2.5.
21Annex3: UipiomaticNote o5Nov. IS96midressetoNicamgua'sFureig Alhirs
Minier byColombia'sForeignARrirsMinisler. the same manner as every otherportion of the country's
tertoj.

1.30 Eves since the consolidation of its independencefrom the
SpanishCrownand rhe foundation ofthe Republic,CoIornbia
li ritre de sawerain hasfur almost two centuriesexercised

publicly,peacefullyand uninterruptedlyitssovereigntyover
the Archipelago of San Andrds, including allthe islands,
isletsandcays2'thatarepartof it.

1.31 Instrikingcontrast,Nicaraguaexercisedno sovereigntyat a11
over theArchipelagoof SanAndres.Nicaragua isunable to
show the exerciseof any dement ofadministrationin either
he 19Ihor20' centuries.

1.32 Moreover, as will be hereinafterexplained,it wonIy when
Colombia definitively renounced a11 its rights over fhe
Mosquito Coast and the IsIasMangles (Corn Islands)in the

1928 Treaty that Nicaragua became the lawful sovereign
overthoseterritories.

IV. TheEmergenceof a Dispute in 1913,upon Niearagna's
CIairn tofhe ArchipelagoofSanAndrGs

A.EMERGENC OFTHEDISPUTE OVER THE ARCHIPELAGO OF SAN
AND&S IN 1913

1.33 On 8 Februay 1913, Nicaragua signed a treaty with the
United States (known as the Chamorro - WeitzeI Treaty)

under whichit purportedto grant theUnited Statesthe right
tobuild an inter-oceanicanal through Nicaraguanterritory.
Inthe same treatyNicaraguapurportedto granttothe United

24Betwee1928and1972thecaysof RoncaQ,uitasueandSerranaweresubjetoed
aspeci"status qregimebetweColombiaantheUniteStates. States a 99 year Ieqe of he IslasMangles (Corn Islands)
which belonged to Colombia. The treaty was not approved

by the United States' Senate.h the foIIowing year,the two
countries signed a new instn~ment,the Chamorro-Bryan
Treatythat ingeneral contained hesame terns asthe former

treaty.Colombia protested to Nicaragua ina Note dated9
August 191 325 and tothe United States on 6 February 19 16
when the Senate's Foreign Relations Committee had
recommendedthe approvalof that ~rea$~.

1.34 Despite the factthata difference between thetwo countries
had arisenduringthe mid-1 9' centuryregarding sovereignty
over the Mosquito Coast and, later on,on the occasion of

Nicaragua'staking of the Islas Mangles (Corn Islaqds) (as
mentioned inpara. 129 above), itwas onlyon 24 Decernber
7913that Nicaragua,furthe first timein aNote responding
to CoIornbia'saforementioned Note of 9 August 1913,

assertedcIaimsover certainislandsoftheArchipela ofgoan
Andres.As regardsthe IslasMangIes (CumIslands) and the
Mosquito Coast, Nicaragua's reply reiterateitscIair onver

them.

B. NEGOTlAT[ONS BETWEENTHE PARTIES

1.35 Sincethe dispute over the Archipelagoof San Andrks arose

in 1913, an extended exchange of diplomatic Notes took
placebetweenthe twocountries,with regardto the Mosquito
Coast, the Islas Mangles (Corn Islands) and other islands
belonging to the Archipelago of San Andrks.During the

course of that exchange, each of the partiesextensively put

Annex 4: Diplomatir Note of 91913,addresse30Nicang~ra'sForeign Affairs
MinisrerbyColombia'sForeignAffairsMiniskr.
torhe United Stareapcrioof99ryearsthe riruestabIish,expat~maintaiagranted
navabase onaparof its rerronthe GuIfof Fonseca, Iocaledon he Octan.c
Separacsses%&rebrought by th&e Stalesagainsl NicaraheCcnrra!American
Courof Justice that issncd itsj1916and1917,I-lowever,Nicmgurefusro
comply wirh !he decisions precUrtwIIapse of fhc CcnAmericanConrf of
Justice. forthitsrespectivepositionsand views with regardto the
rightover thoseterritories.

1.36 In early 1919, Mr. Manuel Esguelra -who had been
appointed asthe CoIonlbian Ambassadorto the Central
American States7 srnc2e915- arrivedatManagua,with the
purpose ofcarryingwt negotiationwith theGovernmen otf
Mcaragua in order to settlethe diffe~encessubsisting

between tIleparties.

137 On 27 Mwch 1922,theNicaraguan Governmen tnnounced
itsdecisionto-1 isha LegationinBogotA, headedby Mr.
Josi M. PasosArana.Nicaragu aovsernmentexpresseidts

confidencethatthedesignatioof Mr.Pasoswould dbute
to thedirectsettlementofthe territorialquestiobetween
Nicaragua md Colombia thatboth governmentshad been
dealingwith.

1.38 h April 1922, the Fkmgtm Government expressed to
&gum its willingnessto settlethe disputeby direct
negoriationsetweenthepati=. Takingaccountof Nicmgm's
dispositiontheGove~mrnm tfGoIarnbia,though Esguera,
proposed apossiblefmuIa t. hat effectotheGovcmment

ofNicaragua. By hat formula,ColombiaWOU Menounceits
tightsovertheMosquitoCoastandekebras Mangles(Corn
Islands)inexchangeforNicaragua'rsenouncing romy claim
whatsoever overtheArchipIago of San An& inchding all
of itsislands,islea&nd cays.The CoiambianGovernment

consulted theForeignAffairs Advisory omm miss aind ^'
requesteditsrecommendatio n thiregard.

I'The ColombianAmbassado(rMinister Plenip)oNicaraguawalikewise
accreditntltheothCentrArncricountries.
farmebythemosillustrcxperoninternatlelatiatthetime.Eovernmmt,1.39 The Comn-rissipn's recommendation concurred with the
aforementioned formula and thus, was adopted by the
Colombian Government. Consequently, Esgherra and the

Foreign AffairsMinisterof Nicaragua,under the Nicaraguan
President's authorization, continuedto hold negotiations on
thematter, as a result ofwhich Esguerra presented a draft
treaty29in March 1925 to Nicaragua's Minister, thus
formalizingtheproposal submittedby Esguerrathat had been

discussedsince 1922.

1.40 According to thedraR treatythat aimedto address the issues
thatdivided the parties, Nicaragua would renounce "in a

definitivemd absolute manne~'' the sovereign rigyts it
beIieved itseIfto hold over "the islands of San Andres,
Providencia,SantaCatdina and all the other islands,islets
andcays of theArchipelago of San AndrQ and Providencia".
In turn,Colombiawould do the same with regard toitsrights

overthe Mosquito Coast, lyingbetweenthe Cape Graciasa
Dios andtheSan Juan River,as well as to"the islandscalled
Great Corn Island and Little Corn Island, or Mangle
~slands"~~A.s will be shown in paragraph 1-45below, the

rems of this proposaIare stibstanridly the same asthose
which were to be incorporatedinto the 1928 Treaty signed
between the parties.

1.41 The Nicaraguan Minister replied to Esguerra's ~ote",
pointingout that "under instructions from the Presiden[IE]
had been discussing those issues with [Esguerra, the
Colombian Ambassador]until culminating in the draft that
you propose for my Goveinment's consideration", and that

"...had the political eventswhich have precipitated within
these last few days allowed it, it isvery likely that this

presenr10Nicaragua's ForeignAffairsbyColombia'sAmbassadorManagua. oTTreary
SeeAnnex5drafttreaty.
3'Annex6: DipIomaticNoNo.I57of 28Mar. 192addressetothe A~ibassdof
Colombiain MwagubyNicaragua's ForeignAffairsMinisrer. important matter would have been solved under equitable
and cordialterms''.

1.42 Ineffectthe generalcivil war thabrokeout inNicaragua at
the time ledto asuspensionof negotiationsduiing the rest of
1925 and 1926, and also ro Esguerra'sdeparturefrom that

country.

1.43 In mid-1927 the Nicaraguan Governmentconveyed to
Colombia itswillingness to resumethenegotiations order

to settle the controversy.

V. The SettIementofthe Disputeby theEsguerra-Bhrcenas
Treatyof 1928and itsProtocoIof Exchangeof Ratificationsof
1930

A. CONCLUSIO ONFTHETREATY

1.44 The disputewas fiaIlysettled by the Esguerra- Barcenas
Treatysignedbetween ColombiaandNicaraguain Managua
on 24 March 1928" and itsProtocol of Exchange of
Ratifications of 5 May 1930. The Treaty settled the

controversy by each paw recognizin tge other's
sovereigntyover fie respective disputeterritorie(thereby
renouncing its claims), and by establishing the 82" W
Meridianas the boundary berweentlw twocountries.That is

precise lhy dispure that Nicaraguanow seeks to reopen
beforethisCourt.

32AII~CI aTreaty ConcernTerritorial QuestIssue behveen Colombianand
Nicaragu24March1928anditProtocoof ExchanofRatificator5 May 1930.
OriginaIin SpaniEnglishtranslation.Seefootnote 6.1.45 This Treaty hassince governed the matrer. Its substantive
provisions are,in the originalarrhenticSpanish text,as
follows:

La Repziblica de Colombia reconoce la

soberanicay pleno dominio de laRepSblica de
Nicaraguasobre la Costa de Mosquitos
comprendidaentreelcabo de Graciaa sDios y
el rio $an Juan, y sobre las islas Mangle
Grnnde y Mangle Chico en eIOckano Arlriy~fico

fG~mr Corn Island y LirrfeCum fslnndf;y /a
RepzibficadeNicaraguu reconucela soberania
y pleno domi~io de la Repzibficnde Colombia
sobre las Islus de San Andris, Pmvide~cia,
S~ICI Cataiim y todas fadeds islax, islofey

cayasque tacacenpuride dichoarchipiklogude
SunAndris.
No seconsideranincluide onseste TrutadoEos

cayos Roncador, Quitasueiio y Serrana, el
dominio de 10s cuales estci enlitigioentre
Colombiay 10sEstados Unidos deAm&rica.

E£ presente Tratadu serh somerid0 para stl
volidez a lusCongesos de ambus Esfados, y
una vez uprubado pou esros,el cnrje de /as
rnt~j?cc~cionese vevificard eur Managm o

Bogotci,denfrodef menord&rmino posibk. "

The English textisasfollows:

ArticleI

The Republic ofColombia recognizesthe full
aridentire sovereignty of the Republic of
Nicaraguaover the Mosquito Coast between the Cape Graciasa Dios and the SanJwn
River, and over the MqgIe Grande and
Mangle Chico islands,in the AtlanticOcean
(GreatCorn ~slsndand Little Corn Island);
and the RepubliofNicaraguarecognizes the

full and entire sovereignttheRepublicof
Colombia over the islandsofSan Ande
Providenc SiantaCatalinami alltheother
islands,islets ancaysthatform partof the
saidArchipelagoofSan Andrds.

The Roncador,Quitasueiioand Semna cays
are not considered to be includedin is
Treaty,sovereigntyoverwhich isin dispute
between CoIombia and theUnited Statesof
America.

ArticleI1

The presentTreaty,in ordeto bevalid,shall
be submitteto theCongressesof bothStates,
andonce approvedby them, theexchangeof

ratifications shall tplaceat Managua or
Bogota,inthe shortestpossibterm.

1.46 In Nicaragua, the President approved the Treaty by
ReoItltioof23 Mmh 192g3a'nd orderedittbesubmit-ted
toCongressforconsidemtion.

1.43 In Columbia, in accordance with the Cumtitution,the
PresidentrderedtheTmry to besubmittedtoCongress for
itsa~~ruvaI.t wasaccordinp gresentedbythe Ministerof
ForeignAffairson 28 September1928. Initstransmittto
Congress,theGovernmen totedthat

3SeeAnnex10ap.1143anAnncx7at 746. "...the settlement in question comes to dispei
any motive of divergence between the two
countries...J4

The Minister of Foreign Relations pointed out that the
Treaty confirmed Colombia's sovereignty over the

Archipelago and thus prevented any future claim by
Nicaragua and anyfuture controversy:

"T&is arrangemeM forever comoiidates the
Republic's sifu~tion in fhe Archipelago of Sm
Andrks and Providencia, erasing any

pretension to the contrary, and perpetually
recognizing the sovereignty and right of fuII
domain for our country over that important

section ofthe ~e~ublic."~~

B.APPROVA ALND RATIFICATIO N F THE TREATY

7.48 Tl~e Colombian Senate,after the three mandatorydebates,
gave itsapprovalon28October1928.

1.49 The Treatywas then submitted to the Colon-rbian House of
Representatives for considerarion, where it was aIso

sribjectedtothe mandatorydebares and was approved by that
House on 14November1928.

34,'
... earreglen cucsiidviene alejatodo moiivde divergencentrelosdos
paises..AnalesdeSenado,SesionOsrdinarias1928[Annalsof theSenate,Ordinary
Sessionsof 192, o.lI4,2Sept1928,p713.Emphasisadded.
ArehipiihgodeoSan Arrdr&yoP~~videncirr,borrntrdD {&a preiensibn coyfraria
rcconociendoperpelaidparanuesfrpois Irrsoberayel derec:hotle plena daminio
deaqrze/h izrtporlanfesdeloRepGbticn".AnalesSenadoSesiunesOrdinaririe
1828 [ArmnlsoftheSenateOrdi~rayessionso19281,No.114,20Set.1928,p 713.
Emphasisadded.1.50 Subsequently,the Treaty was finally approved in Colombia,
by Law 93 of 17November 1928", about nine months after

itssignature.

1.51 In the Nicaraguan Congress, a Study Commission

('%omisiun Dictaminadora"), composed of the same
Senatorswho were membersof the Senate'sForeign Affairs
Commission, was created to study the Treaty and
recommend a decisioninthat regard.

1.52 The Nicaraguan Senatorial Study Commission agreed with
theNicaraguanMinisterof Foreign Atiairs and his advisors
to proposethe 82"W Meridian "as the Iirnitinthe dispute

withColombia"and proceededto discuss thematter with the
CoIombian Ambassador in ~anaguaf~.

1-53 Thus, bearing in mind thar the Colombian Congress had
already approved the Treaty, a process of negotiation
between the two countries was initiated with a view to
settlingtheissue. These negotiationsand consultationstook

placebetween theNicaraguan Foreign Minister,his advisors
and the membersof the Foreign Affairs Commissionof the
Nicaraguan Senate on the one hand, and the Colombian
Government through its Ambassador in Managua oh the

other.

IS4 The Colombian Ambassador in Managua transmined
Nicaragua'sproposal to his ~overnmen?~. ARer a careful

study by theColombianGove~ment, it was consideredthat
the provision concerning the 82" W Meridian as the

Nov.t928DiartOticial, 8ogotB,No. 20952of 23Nop547.28,Kepresenta, 0es]3
37Anncx8: Record of session ofItheChamberof the Senate of the Nicaraguan
Congress,Mar.1930.LaGacefaDiarioOficial,Mo XXXIV,Managua,D.N.,No. 98,7
May 1930,p.778.
''Cablegraof8 Peb1930addresseto tMinistryof ForeignAffairs 017Cbyombia
the ColombianAmbassadoManaguaManuelEsguerra. boundary between the twoStates couId be incIude indrhe
ProtocoI ofExchangeof Ratifications.

1.55 The Colombian Ministryof ForeignAffairs furtherinstructed
itsrepresentativein Managuato propose thata specificmap
be expressly referredto in the provision as the basis for
identifyingtheagreedboundaryalong theMeridian 82" w~~.

1.56 In this regard,the parties finally agreed to use for the
aforernenfionedpurpose the chart prlbIishedin1885 by the
HydrographicOfice in Washingtonunder the authorityof
the Secretaryof the Navy of the United States.That map,

widely known in bath countries, clearly 'permits the
identificatioof the 82" W Meridian -establishedas the
maritime boundary between Colombia and Nicaragua.

1.57 Both the inclusion of the provision in the Protocol of
Exchange of Ratificationsaswell as the reference to the
1885chart wereaccepted by the Government of Nicaragua
and by theSenatorialStudy Commission,prior tothe debate
inthe Nicaraguan Senate. Thereference to the1885 United

Stateschart was included in the ratification instrumenof
bothNicaragua and ~olornbia~'.

1.58 The entire negotiation process between both countries

concerning the inclusion of the provision regarding the
dividing lineofthe waters in disputebegan at the end of
January 1930 and lasted unriI the NicaraguanSenate's
approvaIoftheTreatyon6 March 1930.

Bsguerr,mmutheColombianMinistyofForeignAffairs.mbin Managua,Manuel
40Althoughthreferento the 1charwas includedin the ratification tsstrumen
bothNicaraguand Colombia,the two governmentslater decided ntoomitless
expressreferenceto thischartinthoExchangeofRatifications.1.59 In therec~rdoftheNicrrraguanSenatepIenay sessionof4
March 1430 regardinthe Treaty'sapproval,isstated:

"7. The reportoF theCommission, signed by
SenatorsPaniziguaPrado, B&ez and Amndor,

thathad studid theinitiatioftheExecutive
branch, submittingfheborder treatybetween
Nicaragua andColombia ['el tratadode1imii.e~
entre Nicaragua y Colombia'] for the
considerationofthiHigh Body was read."41

The Nicaraguan congressional Study Commission
recommendedinits report thatthe Treatybe ratifiedwith
theprovisionagd withtheGovernment ofColombia, in
thefoEIowintgerns:

".,.understandingthathe Archipelagoof Sm
Andrdsmentioned in the firstclause of the
Treaty does not extend west of Greenwich
meridian82 of the charpublished inOctober
I885 by the Hydrographic Office of

Washington under the authority af the
Secretaryof theNavy of the UnitedStaresof
North

("..en la ipzfe1igencdeqw el Archipidago
deSun Andrksgue se mencionn enEa cluusula

primera deE Tratudo no se extiende crl
Qccide~ltdelmeridian0 82de Greenwich dela
cartupublicadu eraoctubre de 1.885 por la
QficinH aidrogrdficade Washi~tfoxzbajo la
autoridad deI Secueiorrde laMarina de £os
EstacfosU~pidodeAmhriw. '7

" Amex7:RcFwdof-ion XLVIIIofrhcCh9mbmvf rSenarofthPli-n
May1930,pp.746-747.EmpaddedCf~iaA~-IXXXIY, Manag= DNo.94,1 For his part, Senator Paniagua Prado, member of Study
Commission createdto anaIyse the Treaty, took the floor ro

explain
"... that there beingno ground whatsoever for

the pr-etensions [of Nicaragua] over the
disputed territoriesthe best solution that can
be given to this dispute from a patriotic
standpoint, is to approve the Treaty under
~42
discussion...

Later on, he again tookthe floor

"..,to reinforce his arguments and he tried to
show the advisability andneed to approve the
Treatywhich is beingdealt with."43

16 The debate in the Nicaraguan Senate plenary session of 4
March 1930 was postponed tothe followingday in order to

hearthe ForeignAffairs Minister's view on theinclusion of
rheagreed provisionregarding the82"W Meridian.

1-61 During the Nicaraguan Senateplenaty sessionof 5 March

1930, Senator Paniagua Pradu, member of the Study
Commission, and who proposed summoning the Foreign
AffairsMinistertoappear in that session, said:

" ..That since the Honourable Senator Don

DemetrioCuadra had stated during yesterday's
session his fears that the Colombian

42Annex7:Recurdof sessiXLVIll ofthe Chamberof the SenatthNicaraguan
Congress4Mar.1930.LuGacetaDiarioOficial,AfioXXXlV,Manag, .N.,N94, 1
May1930,pp.746-747Emphasiadded.
43Annex 8:Recordofsession XLIX of the Chamber oSenatof the Nicaraguan
Congress5Mar. 193LaGacela, DiarioOficMoIXXXW, Managua, D.N.No.98,7
May 1930,pp.777-779.phasisadded. Governmen tould not acceptthe amendment
to theTraby with Nicaragua .. tha he Study'
Commission proposed. Since he therefore

consideredthat addition or amendment of the
Treaty not to be conver~ient, and His
Excellency the Minister of Colonlbia [in
Managua],Mr. Esguerrahavingdeclared to me
inmy capacityasSenator oftheRepublic,that

his GovernmePr tas willingto accept the
agreed delimitationhe had asked for the
Ministerof Foreign] Affairsto becalled in
orderto learnwhetherourMinistryof Foreign
Affairsis officially awarof thatdecision of

the Colombian Government regardin- the
clarijcotioor demarcation qfthedividingiine
ofthe wafersin disputeas he understandsfht
such demwcnfion isindispenmbie for $he

("@e cm mofh de habey nfmj%sfado en la
sesicinde dyer el Honorable Senador don
Demetrio Cuadra sus kmores de que el
GobiernoColombiano no ac~pt~la reforma al

Trutado con Nicaragua ... que propane la
Comisibn Dicfaminadora. Parecikndde pr lo
mismo noconveulfenfesa adicibno reforma al
trpfado y habiindome manifestado el
ExcelentisirnoSeFtor Minisfro de Colombia,

se%r Esguerra,en micauricfep .esenudor de
la Reptiblicayuesu gobieriloesrabndi'spr~est~
a acepfclrla de/imii~cidn acordasa, Iwbia
pedidu se EEamarn seiior Minisir0 de
Relaciurzespara confevevtcitrcon iia firQe

saber simesm CuncidIeria fi~m conucimieato
ofr'ciuide esa resolucidrn del Gobierno

Anncx8: Recoof xssiXtlX ofthcChambeoftheSenaleof tllc Nicaraguan
May1930, p777-779.phbisadded.fciaAfiXXXIV, ManquaD,N.No. 97, CoEombiano .en.kelacidn con fn aciaracibn o
demarcacibn dc ia fineadivisorinde aguns en

dispta; pugs tiem entendido que esa
demarcaci6n es indispensable para que la
cuestibn quede de una vezterminada para
sieinpre.'y

1.62 The Nicaraguan Foreign Affairs Minister began by
explainingthe way in which theGovernment of Nicaragua
hadagreedon the decisionregardingthe additionof the 82"

W Meridian astheboundary in rhedisp~rtwithColombia:

"...that duringan interview at the Ministry of
Foreign Affairs with rhe HonourabIe Senate

Commission on Foreign Affairs,ifwas agreed
between the Commission and the advisors of
the Government to accept the 82" west
Greenwich meridian and of the Hydrographic
Commissionof the Ministryof theNavy of the

United Statesof 1885, 3345e bounda~y in this
disputewithColombia...

f",..qtren una entrevista en et Minisferio de
Refaciones cofi la Honorable Comisiun de
Retaciones dd Senah, se convim entre !a
Cumisidn y fosCansejeros de£ Gobiernu en
acepfar cumo limife en esm dispura con

Colombia et 82" Ueste del meridiano de
Greenwich y de la Comisidn Hidrogra8c de2
Ministeriude la Marina de 10sEstados Unidos
de 1885...'y

1.63 TheNicaraguan ForeignAffairsMinisterwenton to explain
that,since certaiconcerns hadarisen due to thepossibility

41Annex 8Record vsessiXLIX ofthe Chamberafrhe Senofrhe Nicaraguan
Cor~gress,S Mar.La GacefDiirrioOfiAlIaXXXIV,ManaguaD.N.No.98,7
May 1930pp777-77E9.phasisaddd. that the inclusion of the -boundary proposed by the
Government ofNicaragua couldimply the need fora new
considera ofitonTray bythe Colombian Con-+ he
had discussetchtissuewith therepresenhtiveofColombia

andthe latter,inturn, consrllkdwithhisGovernment:

"... thathaving dealt with the HonourabIe
Ministerof Colombia[inManagua]a ,ndhe in
turnwithhis Government, whomanifested that
he begged not to altethe Treatybecause it

would have to be submitted again to the
Congress' considerationhaving insinuatedto
H.E. Minister Esguema to discuss thisissue
againwith hisGovernment, and afterobtaining
a reply, he had manifested to him that his

govern men^ hnd au~hot~izdim to declarethat
such Treaty worrId not be submitted forthe
approvalof theColombian Congressbyreason
offhe..d.ng iine['con~pfofivuela- i-es
divisonbalthathecouldtherefora em..e-the
HonourableChamber ,.that theTreaty would

be approvedwithout the need forit to be
submitted again for the approval of the
[Colombian]Congress." 46

The Nicaraguan ForeignAffairs Ministeralsoexplainedthat
theinclusionofihe 82"W Meridian's

"only g~rpse was ro es~oblishe boundary
behueenthe archiplagos which had been the
reasonfor thedispute" ("sbioieniapr objeto

seiialarun Eimiteenfre10s archl;tri61~1osre
hbim side modw iiefa disputaT')"the
CoIombian Govement had alreadyaccepted
that clarificatioaccording to what was

" Anncx8: Recoof sessXL.1Xorhe Chmhr of the Senathe Nicquan
Mayg1930,p777-77Emphassdded,Oficial.Aho XXManagua,.NN,o. 98, 7 expressed by + their Minister Plenipotentiary,
[who had] soIeIy rnaniksted that this

clarificatio[should] be made in the protocolof
[sic] ratificationof the Treaty; that this
~Iarificationwas a need for rhe future of both

nations,as itcame toestablishthe geogr~phiccrl
boundary betweenthe archipelagos indispute,
without which the question would not be
completely defined ['...ues venia a seiialar el

lirnite geognifico entre 10s arch@iilagos en
disputa sin lo cual no quedariu coinpletarnente
definida la cuestib7.7747

1.64 Yet another reiteration of the Nicaraguan Congress'

understanding of the implicationsof the aforemen toned
grovisjun as an agreed boundary was given by Senator
DemetrioCuadra when he Then tookthe floorandstated:

"I consider it to be a complete amendment of
the Treaty and therefore shouId be returned for
the consideratinn of the Colombian Congess

where eevwhing is done with IegaI formality.
11 is urgent furus toclarifyour rights over the
Mosquitoterritory and over the islands granted
by the Bryan-ChamorroTreaty as belongingto

Nicaraguafor the constructionof the canal."

1.65 The Treaty was unanimously approved in the Nicaraguan
Senate on 6March 1930.

1.66 In the Nicaraguan Chamber of Deputies, the Treaty was
reviewed by the ~ordi~n Affairs Commission formed by
the foilowingDeputies: Argilello,Irias,Garcia and Borgen.
When unanimity was not achieved for the approvalof the

41Annex8: Record of sessXLIX of Ihe CIramber of the Senateofthe Nicaraguan
Congress,Mar.1930LnGocefa, DiarioOficMoIXXXIV, Maraguq D.NNo. 4%7
May 1930pp.777-779 .phaqisadded.
''Annex9:RecordosessioLVIIufrheChanbeofDeputieoftheNicarag~an
Congress,Apr. 1930.Gaceia, DiarioUfrAirXXXIV,Managnq D.N.NO.182,
20Aug.1930p,1460ff. instrument, Deputy Borgen drafted a minority report

recommending thatthe Tmty not be approved. For their
part,DeputiesArgliello,lriasand Garciadrafteda majority
reportthatconcluded as follows:

"...rewmmending toye, the approval of the
aforemefiioned ~mty concluded between
Nicaraguaand Colombia, with the addition

proposedintheSenatc ~harnber".~~

Aftera lengthydebate,the majority reportrecommending
the Treaty" approval was adopted by 25 votes to 13,

therebyresultinginthe Treaty's adoption intheChamber
ofDeputies en 3AprilI 930.

1.67 The singlearticlecovering the Nicaraguan Congressional
approval decreereadsas follows:

"The Treatyconcluded between Nicaraguaand
theRepublicof Colombiaon 24 March 1928,
that wasapproved by the Executive Brmch on
the27th ofthesamemonth and year,is hereby

ratifiedJheTreaky putsautend to rhequestion
pendingbetweenbork RepbIics regatdingthe
Arckipetago ofSm Andrks and #heNicar~~guiatr
~~sqolifid''understandingthatthe ArchipeIago

ofSan And& mentioned in the firsclauseof
the Treaty, does not extend to the west of
GreenwichMeridian82, ofthe map pubIished
inQclober 11885by the Hydrographic Officeof

Washington under the authoritof the Secretary
oftheNavy of theUnited States.

rnAnnex9:Recordof sessiLVIlof thCharnbcof DeputioftheNicaraguan
Congress,1Apr. 1La Geta,DiariOficiAao XXXIV,Managua,D.NNo.182,
20Aug.1930,p146R
"Trarodqltponef&minoalocaesripcdie~eentreambasRe@biicas dud
ArchipidadeSonAn&& yProdenciy lMmqaitinicm@ense." This decree shalI be incIudie ndthe Insh-ument
of Ratification.."51

1.68 The President of Nicaragua signed into law the
Congressional approval decree by PresidentialResolution of
5 April1930~'. The Congressionaland Executiveinstruments

of approval were published in the official journal of the
Republic ofNicaragua on 2July 1930.

1.69 In the PrutocoI ofExchange of Ratificationssigned in
Managua on 5 May 1930, the rnrltuaIIy agreed provision
regardingthe82" W Meridianrefened toabove was included
a§foIIows:

"His Excellency Dr. Don ManueI Esguera,
Envoy Extraordinaryand MinisterPlenipotentiary

of Colombia to Nicaragua, and His Excellency
Dr. Don Julian Irias, Minister for Foreign
Affairs, having met in the offices of the
Ministry of Foreign Affairs ofthe Government

of Nicaragua, for the purpose of proceeding to
exchange the ratifications of their respective
governments, regarding the Treaty concluded
between Colombia and Nicaragua, on March

twenty-fourth, one thousand nine hundred and
twenty-eight, fu pa# an end 15 the question
pmding bemeen both Republics, concerning
the Sm Andris and Pr~videnci~ Arch belago

and the Nictlrc~guan ~os~ziirin'~; having
communicated their full powersfound in good
and due form, and having noted that the said
ratificationswere identicaproceeded to exchange

the same.
-. -.
51~nnex10:Official Publicin Nicaraguaofthe 1928TreatyConcerningTerritorial
QuestionatIssubetweenColombianand Nicaragand its Protocol of Exchangeof
Ratificariansof taGacela,Diario OfiAfioXXXIV, ManagukD.N.N,o.1442
JulyI934 pp. II45-I145.Emphasisaddcd.
" "...purn pmtkrminoo la cucsribn pendenire ombarRepriblicsobreel
ArclripiPode AndresYruvidencglaMqriiizunicarugiie"Emphasiadded. The undersignedin virtueof the hll powers
which havebeen grante dothem and on the
insfructioof their respectivgovmments,
herebydecIare: that the Archigelago ofSan
And* and Providenciawhich ismentionedin

the first clausethe referretoTreaty does
not extend west of the 82 Greenwich
meridian."

1.70 The Protocol Exchange of Ratificatiwasalsooficially
publishdby Nicaraguaalongwith theTreaty 'extandthe
requireapprovaldecree(PresidentilndCongressional).

1.71 The Tmty of 1x8 ad its PrutocoI of Exchangeof
Ratificationso1930 senle tde disputebetweenColombia
and Nicaraguaonthefe1Iowingbasis:

(a) Nicaragua recogniz Cedornbia'ssovereigntover the

islandsofSan And&, Pmvidencia and SantaCatalina,
and overtheotherislands,island caysformingpac tf
theSanAndks Archipelago;

(b) Colombia recognizedNicaragua'ssovereigntover the
Mosquito Coast and over the Islas Mangles(Corn
Tslands),two islands which were also part of the
Archipelago;

c Nicaragua recogniz aeddagreedthatsovereigntyover
the cays of Roncador, Quitasueik and Sma,
constitutinpZ of theArchJpeIagowasa matterwIely
between CoIombia and the United States, to the
exclusionof~icaragua'~;nd

53Separa1.82-1.83i,nfra. fd) The rwo Srates agreedthat the boundary between them
foI1owed the Meridian 82" W, thus eliminating any
matterthat could be the object of a dispute between the
twonations.

1.72 Colombiacontinued to exerciseas it had been doing, its
sovereigntyand jurisdictioover each and everyoneof the

features ofthe Archipelago, namely, the islands of San
Andres, Providencia and Santa Catalina, the cays of
Roncador, Quitasuefioy Serranat,he cays oSerranillBajo
Nuevu, Albuquerque, ad the group of Cays of the East-
Southeast orCourtownCays ("Cayos del Este-Sudeste")as
well as over the other adjacenisletscays and banks (see

para. 1.8, above). As regards the cays of Roncador,
Quitasuefio and Serrana,they continued to be under the
starusquo agreedbetweenColon-rbiaand rheUnited Statesin
1928 (seeparas. 1.82-1.83,below). There was never any
exerciseof sovereignty, dominionorjurisdictiover any of
them on Nicaragua p'rt.

1.73 The Treatywas promulgated in Colombiaby decreeNo. 993
of23June 1930,publishedintheDiario Oficia tle,0ficial
JournalNo.2 1426of30June1930,pp. 705-706.Thatdecree
entirelytranscribeboth theinstnrmentof ratificationof the
Treaty signed by President Jose Maria Moncada of

Nicaraguaan 30April1930, andtheProtocolofExchangeof
Ratificationof5 May 1 930.The aforementionedNicaraguan
instrumentof ratification, in tuncluded the entictextof
the Treaty, thedecree of the Congress of Nicat-agrrathe
presidentid approval of thatdecree of 5 April, and the
ProtocoI of Exchange of Ratificarions. In Nicaragua, as
mentioned earlier,the ratification insmment inchding all

these documents was pubfished in''LaGaceta",the OficiaI
Journal,No. 144,2 July 1930,p. 1145-1146.These textsare
alsotranscribedinthe Colombian decreereferreto above. C.REGISTRATIONOF THE 1928TREATYANDITS PROTOCO L F
EXCHANGE OF RATIFICATlON SF 1930

1.74 The Treaty and its P1.o~ocoIf Exchangeof Ratifications
wereregisteredwith theSecretary-Generalof theLeagueof
Nations on 16August1930, under No. 2426. Registration

was initidly made at fhe request of the Colombian
AmbassadwinBern,FranciscoJest ~rnrtia~~111fheIndex
ofVoI. CV of theRemeif, when referrinto theregistration

requestedby Colombia, itis indicated, "Treaconcerning
territoriaquestiom atissuebetweenthe two Skatessigned
at ManaguuR Marck 24,1928, andProtocol of Exchange of
htifacationssigned at Managua ,itby5,19JO''*On page

338, where thetext ofthe Treaty and Protocolappear, a
footnote is included stating that "The exchange of
ratz~cc~tiotsokplace atManagua , ay5, 1930.me treaty
came in~furceon ihaiduteSJS.

1.75 Subsequently, wr 25 May 1932, the NicaraguanForeign
AffairsMinisterlikewiserequestedtheTreaty'sregi~tration~.
Since theTreatyhad alreadybeenregisreredattherequestof

Colombia,tile reference tothe'Nicaraguanwn~nmunicatiun
carriesthe samenumber 2426 thathad been assigned in
1930.Inthe alphabeticaindex ofthe 1433 volumeofthe
League of NationTmty Series, therew: "TreatylPad

Pmtd offichange of R~~fimii~om -emerrr&r iuestions.
Communicated by Nica~agtda"~'.

'*AnnexI: Indexof Qe TreavSeriofrbt Lt~gtrNafionLeaguofNations,
TrrrrgSenes.19voCV,p.7.
55Lcngnf Nalion3,TmSerie1930,nl.CV,p.338.
" Anntx12IndexofIh1931-19321-reatySofthe LeagrreoEMatLawe of
Narion,keatySer1931-3, ICXXIl.p362.
" Anna 13:AI~efkalIndeofth1930-19GeneraIndeoft&TrcatSmiaoflhc
LeagueoMationseagueoNmionlkealSeries933,p348,422. -,,.,-----. . .---
.:.. . I....:.

VI.The 1928-1972 Agreements between CoIorn bia and the
United States abouttheCays of Runcador, Quitmrsuefi ond
Serrana

1.76 Duringthe 19' century, the United StatesGovernment was
facing serious dificulties with its farmers because of a
shortagein theprovision of fertilis ~earso.''which exists

on severaIoceanicislands and cays, especiallythose located
in the Caribbean Sea, was the idea1solution. In order to
satisfy the aforementioned needs, the 34' American
Congress issuedthe so-called"Guam Law" on 18 August

1856. This statedtI-rawhen anycitizen of the United Srates
discovered and tookpossessionof a depositofguano on any
islandrockor cay, whichwas not underthe legaljurisdiction
ofany other government, it was consideredto belong to the

UnitedStates.

1-77 In 1890 Colombia learned that the United States
Government, acting pursuantto that don-restprovision, had

grantedauthorizationto oneof itsnationals fortheextraction
ofguano on the Cays of Roncadur,QuitasueRo andSerana,
that are part of rhe Archipelago of San Andris. The
CoIornbian Government protested to the United States,

assertingits sovereignty over those cays. A dispute thus
arosebetween the two Stateswhich led to omcia1exchanges
betweenthem. That controversy would resurface in 1919,
when the Governorof SanAndrQ and Providenc informed

the central Government of Bogoth about the erection of
lighthousesbythe UnitedStates on thecays inquestion.

1.78 Re CaIombian Minister of Foreign Aff.diir~ irnmediareIy
summoned the United States Ambassador in Bogot& to

advise him of the effectthatsuch an actionwould have on

58Guanoisformebyexcrementomarinbirds,aisusuallfoundonrockcoasoron,
isleand caysscatteredtheseaespeciallythlocatein the CaribbeanS11is
especialrichinphosphtltehasbcenusedfonlongtimeasatopquality,lpriced
fertiliser. therelationsbetweenthe two countriesandto deIivea Note
of addmd to the Secretary of State. The
American Ambassador statedthatthere must have been a

misunderstandi ngstotheownership of rhecays inquestion
and:laterexpressedhis displeasurand concern tothe State
Department regardingthisfact.

1.79 The AmericanAmbassador's concern proved accurateas
strong popular protests arose almost immediately in
~olornbia~'. The State Departmentthen requested its
Ambassado rnBogotito informtheColombian Government
that the UnitedStateswere willingto considerCoIombia's

positionon thematrer.

1.80 At rr~timebetween 18913and1928 did theGovernmentof
Nicaragrrastatany spgcifimemations orclaims wha~er

to Colombia orto theUnited Statewith regardto anyof the
aforementione days.

1.81 On the contrary,iconcludingthe Esguema-Bbcenas Treaty
Nicaraguaexpressly recogized that iIackcdmy rightover

them.ForNicaraguaagreedthatrhequestionof sovereignty
over them was an issuesoIeIybetweenColombia md the
United Statestothe exclusionofNicaragua, byvirtueofthe
provision imluded therein stipulatingthat "thRodor,
Quitawe50 and Sema cays are not wmidered to be

includedin thisTreaty,sovereigntyoverwhichis in dispute
between Colombia and the United Statesof America". No
specifireferencetoany ofthosecays was evermade during
the Congressionaldebates ofthe Treaty in Nicaragua.Tn
contrast,during theapproval debates ofthe Treaty in the

Colombian Chamber ofRepresentativest,heaforementioned

BuguabyColombia-sForeAff,xMinisrer.addressetheAmrim Mkis#ein
* Annex15Telegramo4 Oct. 19addd to1he!kre#tolSrarenf the Unired
Stafby the Americarr Min BogoPapersReI~r10tiForeignReia~iofike
iJni!edSmi,919VUI1GovernmentrintiOIli~Washingon, 1934$00-801. clause was criticiz~dsince Colombia's righrs over the cays

were unquesti&able6'.

1.82 Afterthe Esguerra-Bhrcenas Treaty was signedon24March

1928, Colombia and the United States entered into an
Agreementregardingthe aforementioned cays on 10 April
192862.The Parties agreedto maintainthe existingsituation
inthe cays, by whichColombian national wsould continueto

fish-unintemptedly- in the watersof the cays without any
objection from the United States while, for its part,the
United States would continue to be in charge of the

maintenance of navigation aids then or afterwards
estahIished by them on the cays in cluestion, without any
objectionfrom Colornbia,

1.83 The foregoingstateof affairscontinuedwithoutchange until
the 1928 Agreement was replaced bythe "Treaty concerning

thestatusof Quita ~ueno~~ R,oncadorand Serrana",known
as the Vkquez - Saccio Treaty signed between Colombia
and the United States on 8 September1972~~. Nicaragua
never expressed any claim to Colombia regarding

sovereignty over the cays, either before or after 1928, until
1971 when the negotiations between CoIombia and the
UnitedStatesbegaii:

1.84 The Treaty of 8 September 1972 consistsof ninear-ficlesthe
fils of which provides that'?theGovernmentof the United

6'Analesde la CCriarade RepresenrantesExtraordinarde 1928[Annalsofthe
ChamberofRepresentatiE,xtraordinyessionof19281,Bogot4 Wednesday,14Nov.
1928,number158,pag1,131.
62Annex16:AgreementbetweenColombiaandthe UnitedStates,concerningthc statusof
QuitasueiR,oncadandSerranao10Apri1928.
63Inthcoficial Englishversionof the TnameoftheQuitasuciiocisspellas
"QuitaSueno". ~okevethemost commondenominatioand the one usedoEIibyallp
WheGovernmenofthe RepublofColombiai"Quiras~vfio".
Annex I?: Treaty between the GovernmentheRepubliof Cobmbia and the
RoncadorandSenma signed on 8 Septe1972.ncerninthe srafus of Quita Sueno, States hereby renounces any and all claims to sovereignty

overQuitaSueno,Roncadorand Serrana".

1.85 In the Treaty, the Govetnrnent of Colombia guaranteed,

under certain conditions, the development of fishing
activitiesby ships and nationaIs of the UnifedStates in the
watersadjacentto rheCays;the United States transferredthe

existing navigation aids on the Cays to Colombia, and
Colombia was to be in charge of their maintenance and
operation6'.The regime established in the Agreement of
1928was broughtto anend.

1.86 Afterthe respectiveapproval procedures in theCongressof
each of the two Slates, the exchango ef the ratification

instrumentstookpIaceinBog& an 17 Sep~ernber 1981.

1.87 The Treaty was registeredwith the Secretary-Generalof rhe

United Nations on 31 March 1983, at the request ofthe
UnitedStates,undernumber 21801.

1.88 In this way, the dispute between the United States and
Colombia regarding sovereignty over the Cays of Roncador,
Quitasueiioand Serrana-that had begun atthe endof the 1

century- was brought toanend bythe 1972Treaty.

6'Due lothefact [hat Ihe US autlofihePanarnaChwdlceascd the operaandn
maintenanceofthelighthouthQuitasuefiolighthouse(of crucialimportareainan
thatis especiallydangfornavigatiostoppedworkingbtheendofthe1960s,and
hadbeen rep1:isince 1971by thc ColombianNbyyamore modem lighthuusewith
differentcharacterusthoseof theonethadheenoperatebytheUnitedStates.The
same occurrewiththe lighthouseSemna and Roncador, hicwerereplaced with
moremodernandfunctionallighthobytheColombianGovernment.VIT .icaragua Purpcrfs toCarry Out ActivitiesinAreas to the
East ofthe AgreedMaritimeBoundarybetweenthe two
Countries along the8z0W Meridian

1.89 ARerthe conclusionof the 1928 Treaty and its Protocolof
Exchange of Ratifications of1930 that settlethe dispute
ktwem Colombia andNicamgua C,olombiacontinudexercising
its sovereigntyand administrationoverthe Archipelagoand

its appurtenant maritimeareas in the same uninterrupted
manne rsithaddoneso for nearItwo cenhiries.

1.90 In 1969 Nicaragua, for thevery first time -and without
questioningthe validitor effectivenessof rhe 1928 Treaty

asa whole- purportedto cany out activitiein areasto the
eastof the agreed n-raritimeboundary along the 82" W
Meridian by grantingsurvey permits andoil concessions in
those areas. Colombia protested to the Nicaraguan
Government byNote of4 June 1969h6.

1.91 In it~ernorial~',Nicaragua wrongly assertsthat Colombia
for the firtime claimed the 82"W Meridian as amaritime
boundary in that digIomaticNote ro Nicaragua of 4 June
1969. That is nbi true. CoIombia's 1969 protest was

occasioned by Nicxagua's acrivities to the east of that
meridian,But ever since the concIusionof rhe agreement
reached by the 1928Treaty and its ProtocoIof Exchange of
Ratifications uf 1930, Colombia haa1ways conducted itseIf
as regardsthe boundary on the basis of what was then

agreed.

1.92 As earlyas 19314nly a yearafter theTreaty's entry into
force- the82" W Meridian was included as the boundary
between Colombiaand Nicaragua in the OfficialMapof the

" k~nm 18:DiplomatNoteof4 June 1969,addretoNicaraguFa'reigAffairs
''MetnariirlofNicainlenliu, p.178,2.255. Republicof Colombia,withouttherebeinganyprotest from
Nicaragua (See Maps No. 4 and 4 bk). Colombia
subsequently published several similaroficial maps that

werenot protestedby Nicaragua either(Seee.g.,MapsNos.
5 - 11).In the officialpublicationsof Colon-rbiaentitled,
'limits of the Republic of Colombia" (Limiles cle fa
Repibticade Coiombia), prlblishein 1934and 1 9446g, the

82" W Meridian was Iikewise incorporated as the border
between Colombiaand Nicaragua. Thosepublications were
not the subject of protests on the part of Nicaragua.
Colombia has consistently continued to exercise its

sovereignty and jurisdiction over the maritime areas
correspondingto the Archipelagoup to the aforementioned
meridian.

VIIT.Nicaragua'sUniiaferalChaIIenge to theVaIidity offhe

1928 Treaty

A. NICAMGUA'S UNILATERALPURPORTEDDECLARATION OF
NULL tTY

1.93 On 19July1979, theSandinistaMovement came topower in
Nicaragua. Thereafter,a process to increaseNicaragua's

militarypower and armaments -unprecedentedin Central
American history-began and, at thesame time,numerous
military and civilian advisers came to Nicaragua, thus
generatinga delicate sibationin the region.Some seven
months IaterNicaraguapurpofled to question the terirturiaI

and maritime settlement reached hdfa century earlierwith
the Esguerra-BArcenasTreaty of 1928 and its ProtccoI of
Exchange of Ratificationsof1930.

Officof1,ongitudesandBorders,EditoriBogoth1934p. 4And,Limitdelafairs,
ReplibiicColombiaSeconeditioRepublofColombia,Ministryof ForeignAffairs,
OfficeoLongitudesandBord, olombiaLithogr,ogot&1944p.11.1.94 On 4 February 1980, Nicaragua's Minister of Foreign
Affairs, MigueI D'Escoto, unexpectedly called in the
diplomaticcorps accredited in that country to a meeting at

the Ministry. Duringthe meeting the Minister distributedan
official declaratianda "Libro Blanco" (White by
which Nicaragua attempted to declare null and void the
Treatysigned with Colombiain 1928. In those documents, a

series ofarguments were advance td support that attempt,
amongthem the following:

"The historicalcircumstances undergoneby our
peopIe since 1909 impeded he reaI defenceof
our Continental Shelf,jurisdictionalwaters and

insular territories emerging from this
Continental Shelf.
I.....]

A great deal of time has passed since the
BhrcenasMeneses-EsguerraTreaty, but the fact
is that, it was only on 19 July 1979 that
Nicaragua recovered its national sovereignty;
before the victory achieved by our people, it

had been impossible lo proceed to defend the
insuIar, marine and submarine territory of
Nicaragua.
[.....I

These circumstances impose the patriotic and
revolutionary obligation upon us, to declare the
nullity and lack of validity of the Bhrcenas
Meneses-Esguerra Treaty.. . in a historical

context which incapacitated as rulers, the
presidentsimposed by the American forces of
intervention in Nicaraguaand which infringed,

69Nicqua's WhitePaperon [hecaseLibroBlancosobvelcnso dc SonArrdrys
PruvidenciMinis~edeReIacia~iesExterdeIaRepirbIideNicaraguManagua,4
Feb.1980. as stated, the principles of the National
>*?D
Constitutionin force...

Nicaragua's position was in clear vio1atio11of the norms
and principles of international Iaw, in parricuIar of the

principleofpacfa sfintservanda Itmustalso be noted that,
at the time, the Republic of Nicaragua never stated, in
relationto its purportedunilateral declaration of nullitthe

alleged breach by Colombia of the 1928 Treaty.In fact,the
argument ofalleged breachof treaty by Colombia was only
advanced by'Nicaragua, for the very first time, in its
Memorial of 28 April2003.

195 Nicaragua'sextravagantclaim was immecIiateIy rejecredby
the Governmentof CoIumbia ina Noteof 5 February1980~'.

Amongother arguments, CoIombia statedthat,

"The Nicaraguan atritude, of invoki~lg the
nullityorinvalidity ofthe Esguerra -BLcenas

Treaty fifty years after havin- entered into
force, is an unfounded claim that counters
historical reality and breaches the most
elementary principles of international public

law. Even more so, given that an ample
parliamentary debate in both countries
prccededthe ratification of the Treaty, that it
was not approvedsuddenly, but that afterbeing

signed by the PIenipotentiaries of the High
Parties, was discussed in two legislative
periods in Nicaragua, prior to the definitive
approval.

70NicaraguaW'hitePapeon thecaseLibro Blanco sobrecnsodc SanAnd& y
ProvidenciMinistcdcoRelncionesExteriorlRepdblicadeNicaragua,Manag4a,
Feh,1980pp.3-4.Seefootnote6.
7'Anncx 19: Diplo~nNote uf5 Fch.1980,addressed toNicmgua's ForeignAfhirs
MinistbyColombia'sForeignAffairsMinister. No lesssurprising is the fact that the
NicaraguanDeclarationsuggeitsthattherewas
a lackof sovereign btween 19219and 1979,
becaus eif that situation had occurredwe
would findumeIves facingthe disregard for
all the commitmentscontractedbyNicaragua

inthesevenprecedi decades."

1-96 The Colombian Government produixda documentof its
own -the "Libro Blanw de Colombia" (White Book of
~010pppbia1~-demonstrating Phe rmlawlFuInessof the
Nicaraguanposition.NamlIy, afterthispurportuniIateraI
dmIar&im ofnulIitybyNicaragua,the 1928 Treaty andits
I930 Protax1 continuedto be fully implementedby the

RepubIiocfCuIornbla.
1.97 This was not fiefirsttime the Nicaraguan Government
attempteto disavowa treaty,daision ofan intmtionaI

courtm anabitral awerrIthas beena repeatedpracticof
Nicaraguaw, hichha infact assumed anidenticalposture
towards iotherneighburs. Ln1871 Nicarapa uniletteraIly
declaredthaitmideed theCaflas- Jmz Treatyof 1858,
whichhadesrablisbeditland borderwith CostaRicatobe
- nulland void. As regards toHmduras, N~carag ulso
uniIater aecayed asnulland void,sevd years affeit

was issuedchehitrat award renderedbyHisMajesty the
KingofSpain, in1906,definingthId bordebetween rk
two countrieLikewise,Nicaragua refuseto complywith
the judgmentof theCenual AmericanCourt of Justiceof
1916an d917.

1.98 Nicaraguahasin itMemorialrepeateditcontentiothatthe
Esguem-Bkenas Tmty of' I928 is null md void.

Colombiacategurica1lyrejectthosecmtentionsas who1Iy
withoufoundationinintemariomPlaw, B.THE QUESTION OF THE VALIDITY OF THE1928TREATY

1 Inits Memorial,Nicaragua adoptsand expandsupon the
"patrioticand revolutionalyanalysisinits "WhitePaper"
of 1980.

1,100 Nicaragua endeavorsto show that Colombia,"well aware"
thatNicaragua'stitIetotheSan And& Archipela wgos
"firmlyestablishedin accurdance with the Z& possidetis
&is principle..tookadvanrage ofthe U.S. wcupzaion of
Nicaragua to extortfrom her theconcIusion of!he 1928

~reaty"~~.It claimsthat "threalnegotiatorsof theTreaty
were Colombia and the UnitedStates,and thatNicaragua
was merely an onIcoker awaiting instr~ctions*'~~.It
maintainsthattheUnired Statesdectine doextend itgood
ofices in favor ofa Nicaraguan pruposa lurarbitration
with Colombia over sovereigntyover the San And&
Archipelagoandrather endorsed Colombia's proposalfor

what came tobe the substanceof the 1928Treaty as "an
equitableso~ution"'t, the"greatdisappointment"7 6fthe
Nicaraguan Minister.It argues thwhen theUnited States
Legation at Managua was "aritharize do exertitsgood
officesin the premises",the 'cprernises'~eferreto the
quartersofLheNi~ragua ~ongress~.

1.101 A readingof the diplomaticdispatcheonwhich Nicaragua
reIiesinsupport ofthese and Iikeassertionsdemonstrates
the liberties rakenbytheNica~aguanMemorial with the
diplomaricrecord. Nothing inthesedispatchesindicateor
impIies thaColombia "extorted"mything, or that threal
negotiatorsofthe 1928 Treatywere theUnited Statesand

CoIombia. On the contrary,rhq show that it was
CoIornbia and Colombia alone that took the initiative in

" MentorofNicm-irp.a,po. 2.82.
" {bip.99pra.2.84.
''ibtd,100para.2.85.
" {bid.,p.100,par~.2.$6.
" {bid.106pard.299. proposing the terms of a settIement of a dispute thar

originated with Nicaragua alone78.

The diplomatic dispatches show that negotiations between
Colombia and Nicaragua were extended over a period of

years, and that, while Nicaragua sought the advice of fhe
United States, and tried toenlistthe infiuence of theUnited
Statesin favor of itsposition, theUnitc.:ritates imposed no

The United Statesdid seemeritin a settlement
which "would make permanent a situation which ha[d]
existed in fact"78,namely, that Nicaragua administered the
Mosquito Coast and the Corn Islands and that Colombia

administered the San Andrh Archipelago, a perfectlyplausjble
position on its face, and one that would "clear up" any
questionas to the rightofNicaraguain 1914to lease Great
and LirtleCorn Islands tothe United forpurposes

guaranteeingthe security of the prospective inter-oceanic
way across Ni- tmitory. Indeed, itwas Nicaragua's
foremost inrerest thar an inter-oceanic way be built in its

territory. Itaccording heyd various negotiations on the
matter with fhe United States.The NicaraguanCongressional
records of the approval processof the 1928 Treaty clearly
show that Nicaragua assigned the greatest impoflance to

faciIitatingtheconditions for thatproject,

1.103 The United States informed both Parties that, if they

mutually so requested,it was prepared to mediate their
dispute, onthe understanding that, if ultimately it went to
arbitration, theParties bound themselves to comply with
any awardR0 . he United States Minister called on the

President of Nicaragua at the request of, and with, the
Colombian Minister in Managua to repeat what he had
"already told the President about the Department's viewing

"seeinparficrrNlaeof21 Mar.1925,addressoNicaragua'sForeignAffaMinister
by thSecretaryoState, PrpcRefutinfothe Fureign Relatio[he UnitedStates,
1925,VoII,GovernmenPrintingOffice,Washing1940p.432.
7ibidSee also, Memorandubyrhc AssislantSecretarStale2Aug. 1927Pap~~s
ReIniingiI~PForeign ReifiriomofUniled Slnii 927,VoI.I, Go:-t:mmenlFriii~ing
Oilice, wash ins942,pp.325-327.
"l'he SecretarStare1the MinintrCoIornbia,25Sep1925IoccP,pp.43t,435. with favora settlement alongthe lineswhichColombiahad

proposd'Vut his so doing was not sinist inrn
circumstance in which the United States hadbeen asked by
Nicaraguato assist in resolvingthe disputethrough the

extensionofi tsgood officdl.

1.104 To cIairnthat an authorization to the U.S. Legation in

Managua to exel? "itsgood offices in theprernises'9efers
to thephysicaIpremises of the NicaraguanCongressrather
than lo what has been previously stated is a fatuous
misconstruction of the English Tomaintainthat

Nicaztgua ratifiedthe1928 Treatybecause of "the exertions"
ofthe United States Legation"in thepremises"is notborne
out bythe diplomaticrecordcited by ~icaragua~~ T.he

1928 Treaty was widely discussed in Nicaragua.The
UnitedStates made clearto Nicaraguan authatitiesincluding
the new President Moncada, that itfoundtheTreaty to be

equitable and that itthought it unlikely that Nicaragua
could achievebetter terms;but that inot the same as saying
thatthe UnitedStates imposedtheTreaty onNicaragua,

1.10$ Theallegednullity ofthe 1928 Treaty was discoveredbythe
revolutionaryJuntain 1980 - more thanfiflyyearsafter its
negotiation.Howcan itbe thata Treaty Iengrhilymd duIy

negotiated, and lengthily appmved and ddy ratified, and
thereafter implementedby thePartia forsome fivedecades,
cstnbe found in 1980 fobe a nulliv? Howcan itbe zhata
Treaty,regist& sepmteIy byColombiaad byNicaragua

withtheLeague of NationsSecretaria ptursuantto ArticIe18
-.
"l'hc MinistinNicaragua(Eberhardr~htSwretarof Star4,Ftb. 1928,Prrpevs
RelfliitotheF#rig:KehionroJihrUnileS~ate19.28, o1IGovernmentPrinting
OfficeWashington,19,3701.
'?he Mini3reinColombia (Caffc10tht: SecreofrState10Sept.1929, Papers
RsIarlntotheForeigRelotionsojrhe UnitedStaterVal.IGovernmentPrinting
Ofice,Washington, 1p.,935.Peruslfthisdispatclearlyshothathe common
term"premiscusthereusedtorefertotmatters cntionenthcpreviousparagraph
dlhe Icttgr.alsoWalker,DaviM.,7k OxforCom~nim to hv, ClarenPres-
O~Torrl,198p982, wherethterm'"Premissdefineas:"Ihingsdoutbeforeand
conscqucnti. deeds,lhipreviousmentionedIn conveyancestwordfrequently
referbac[asubiccfulldescrikdediwin tdeed..,"
"pupersRelolito thForeignRelatiooffhUniteSates,1929.Vol. I,Govemrnenr
PrintingO!%c,ashingto,943pp.934-938. ofthe Covenant of the Leagueas aA4tbinding nternationa1
agreement,isfoundsomefiftyyeas Iaterby Nicaragua to be
a nullity? How is it that, i1969, when CoIombiaprotested
againstNicaragua'sactivities carried out to the east of the

agreed maritime boundary with Colombia along the 82"W
Meridian,Nicaragua didnot notice thattheTreatyinstrument
so providing,ratifieda treaty that was purportedly null and
void?

1.106 The position now embraced by the Government of
Nicaragua,and illustratedby the quotations found above i1-r
paragraph 1.94, imports that,mtiI the Sandinista Junta
assumption of power, no Government of Nicaragua from
1909 to 1979 could bind Nicaragua internzltiunaIlbecause

of what it terms, "[tlhisabsence ofsovereignty.. ,"g4.That
absence of sovereignty, the White Paper maintains, began
with United Statesinterventionin 1909 and lasted"seventy
years, untilthe Sandinistapopular insurrection's victory on
July 19,1979"~~ Itclaimsthatthe 1928 Treatywas imposed

upin Nicaragua "under the total military and
occupation by the United statesya6and that, moreover, it
infiinged the National Constitution then in force, "which
prohibited in absolute terms the execution of Treaties
irnpIyingprejudiceto the national sovereigntyor division of

the native soil"". 11ackr~owledgesthat, "[a] Iong time has
elapsed sincethe BBrcenas ~en&es-~s~uerra ~reity, butthe
fact isthat it was not until JuIy 19, I979 that Nicacagua
recovered itsNationaISovereignty. ..98.

1.107 If however Nicaragua because of itssubjection to United
States influence between 1909 and 1979 lacked the
capacity to concludetreaties, most notably the 1928Treaty,
itcould not have becomea founding Member and signatory
to the Charter of the United Nations nor could it have, for

" Nicaragua'WhitePaperon thc case. Libro Blsobreelcasode SanAndrksy
Provihcin, Ministeriode RelacionesExde lRepublicsdNicaragua, anagu4,
Feb.1980p.2.
86!bidp.2..
''{bidp.3. that matter,become Party to the Pact of Bogot.A,the vely
instrument on which Nicaragua founds the jurisdictionof
the Court in the presentproceedings. Indeed,as Nicaragua
isaparty tothe Statuteof thelnternationaiCourtofJustice
as a Memberofrhe United Nations,if it lackedthecapacity
to sign the Charter, it Iacks standing in this Court.

Furthermore, Nicaragua's Declaration under the Optima1
CIause, which this Slate isalso invoking before the Court
in the presentproceedings,was made in 1929, that is,a
year afterthe signatureof the Treatywith Colombia and
just ayear before its ratification.

C. ALLEGED UNCONSTITUTIONALITY

I.108 Nicaragua argues fhat the 1928 Treaty was in violationof
thethen Constirution of Nicaragua (191 I),adopted under
the aIIeged interventionof the United States, as per the

dates cited in Nicaragua's own MernoriaI. The alleged
violat ruIe of itsdomesric Iaw provides that "...treaties
may not be reached that oppose the independence and
integrityof the nation or that in some way affect her
sovereignty.."

Itis clear that the 1928 Treaty, far from affecting the
integrityor sovereigntyofNicaragua,notably favored both
since bythattreaty,Colombiarenouncedits rightsover the
Mosquito Coast and the TslasMangles (CornIslands)in
favor of Nicaragua. Fu~.themore, since the Constitution
that Nicaragua now argues was violated did not even
include the Ar-chipelago of Sm Andres as part of its

territoryasacknowledged by Nicaragua in its~ernu~tal~',
it cannotbe maintained rhat a treaty oneof whose main
objects was precisely that Archipelagowas in violation of
thatConstitution.Even more so, sinceNicaragua had never
exercised any type of sovereignty over that Archipelago
throughoutitsentirehistory.

anMetnorinfNicaragua,p. 1092.105.1.I09 Inaddition,isufficestorecallthegoverningprovisionof
theViema v on vent onone Law ofTreaties(on which
ConvenzionNicaraguareIiesiitMemorial, notwithstanding
thefactthatiisnota Party)Articl27provides:

"InfereaIfa md obsefymce oftreaties
A party may not invoke the provisionsof its

internallaw as justificatifor its faiIurto
perform atreaty?'hisrule withoutprejudiceto
afiicl46."

The exceptioprovided inArticl46 isasfollows:

"Pruvbiom ofinter4 law regwding cmpefme
lo concludefreaties
1.A Statemay not invoke the f8ctthat its
consent ro be bound by a treaty has been

expressed in vioIatiunof a provisio ofnits
intern lal regardingcompetence to conclude
treatiesas invalidatinitsconsent unless that
vioIationwas manifestandmcmd a ruleof
itsinternallawofhndamenta1importance.

2. A violationis manifst if it would be

objecriveIyevidenTO my Stateconductingirsef
in thmatterin accordancewirhnormalpractice
andgood faith."

1.110 In this case ,he n1Ieged violationof the Nicaraguan
Constibution asnotonly nosrnairifebtColombia orany
third Szate. It wnotmanifestto Nicaraguaimlf, which
forfiftyearstmted the 192R TreatyasConsrimrionaland

in force. Itissignificanthat, in rhe mful processof
satifiw~ioofthe 1928Tmry bythe NicaraguanCongress,
theseConstitutionalissuewerenot even mentioned.Nor,
asnunoteddi,theCanstitutionthein forcespecifythathe
Sm Andrb Archipela wgos part of the territory of Nicaragua;in point of factno Constitutionof Nicaragua
everhassoprovided.

In theface ofallofthis,fortheGovment of Nicaragua to
argue thatatrvatysuchas the 1928Treaty anditsPM~OC oUfI

Exchangeof Ratifications of 193is voidis an outrage,It
comtirures a completedisregard of the most fundamen&I
norm of intemarionallaw, thatispacla sunt semtmda* the
cornemtone ofintemioml peace and security. icaragua's
conduct isalsocontraryto theprincipleoftherespectfor the

obIigations arising frc~n treatk and other sources of
intemstti~naaw7enshrined in the Charters ofthe Unird
Na~iwsand theOrganizationof American Statess'.

D,THE I928TREATY HAS NOTBEEN TERMMATEDBECAUSE OF
"BREACH"

1.1I2 InSection IV of itsMemorialNicaraguamainfainsfor the
very first timehat, even if the 1928Treaty"ever entered
intoforce,ithas been terminated as a consequenceof its
breachby~olornbia"~'. Itcharacterizes the I930 PmtocoI
ofExchangeof Ratificatioas "anauthentic interpretation

of TIETreaty,on whichbothPmies agreedandwhichwas
a condition for the ratificarion by the Nicaraguan
~ong-ess~~'. Bur Nicaragua M'emorial goeson to allege
thatthis common under.standingof the meaning of the
Trwty "was not challengedby Colombia trnril1969 when,

forthe first time, she contended rkat the 82"meridian..,
constituttethe maritime border between herseIf and
~icaa~ua.. ."92.Nicaragua contends that, This radical
shiftin the common inte~prefationofthe Trealy cIariy
constituted a materialbreach of this in~tnlrnerrt"~~.t

%POfficircxlspubTished!heGenera1Secmukr o!hQrganimh OCAmcricat~
SlavsWashingto, .G., 1997.
QntMemordNthi-agt~p.178.
91Ibd, p. 175.pix. 2.254.
" Ibip.178,para.2.255.
/bip.178pia 2.256. proceeds to characterize this "whimsicaI md self-serving
interpretationof a fundamental ciause, which radicaly
changes the intention of the contracting partiesmy4 as a

"material breach" which accords Nicaragua the right to
terminate the Treaty in pursuance of Article 60 of the
Vienna Convention onthe Law of ~reaties~'.

1.113 These extraordinary assertions on the part of Nicaragua

-advanced by Nicaragua for the firsttime only in its
Memorial- are patently implausible.They are groundless,
asa maner of facand a matterof Iaw,

1.II4 As a matter offact,itis nottrue thatin I969 Colombiafor
the first time advanced the position that the 82" W
Meridian constitutes a maritime dividing line between the
jurisdictionsof ColombiaandNicaragua. That position was
the true shared position of both Parties when the 1930

Protocol was concluded. It was Nicaragua itself,in its
Congressional debates, that took the lead inmaking clear
that itproposal to includethe 82"W Meridian proviso into
the 1928 Treatywas precisely designed to establish sucha

dividing line in the waters between Colombia and
~icaragua~~. Colombia agreed to Nicaragua's proposal as
alreadyshown.

I.I15 Also as already shown, it was as earIyas 1931, one year

ahr the exchang of ratifications,thathe 82" W Meridian
was depicted as a boundary in the OfficiaI Map of the
ReprrbIicof Colombia (see maps Nos. 4 and 46is) w,ithout
receiving any protest from Nicaragua. Colornbia

subsequently published several similar offician-raps{see
e.g.,Maps Nos. 5 - 11) that were not protested by
Nicaragua either. Furthermore, in theofficialpublications
of Colombia entitled, "Limits of the Republic of
Colombia" (Limites de 2u Reptiblica de Colombia),

... -. ...
MenforiaIojNirorag~179para.2.258.
''Ibid,.180,pm. 2.26I.
% Seerhe quoratifromthC~)ngressioconsidera tinhnquaionsetout in this
Chapter,parI.5Id3, aninChapIe11paras.21andff. published in 1934 and 1944"~ the 82" W Meridian was
likewiseinco~porated as the border between CoIombiaand
Nicaragua. Those publicationswere not the subject of

protestsontheparrofNicaragua.

I.116 As a Inanerof Iaw, even ifit were true-as itis not-thatin
1968 CoIornbia "uniIatesa colvyerted" the 82" W

Meridian into a rnaririrneboundary,a party'sadvancing an
argument concerning the construction of a treatycannot
constituteof itself a "material breach" of itThe passage
from Lord McNair's work on which Nicaragua relies98
concerns an argument advanced in bad faith. Colombia's

actions in 1969 cannot be characterized in that way.
Colombia, acting in response to Nicaragua's attempt to
carry out activitiesin areas to the east of the agreed
boundary, did nomore than assertthe agreement as itwas

conceived by Nicaragua in 1930and agreed by both Parties
afthat time.

Further, asa matrer of law, even if anargument advanced
by a party could by irselfconstiruta breach oftreaty, that

of itseIcould nut bring the treaty tan end. Under Article
60of the Vienna Convention on the Law of Treaties, a
material breach of a bilateraltreatyby one of the parties
entitles the otherto invoke the breach as a ground for
terminatingthetreaty. Nicaraguahas donenothing purporting

to exercise this entitlement, presumably because itknows
that it has no basis foso doing. Article45 of the Vienna
Convention is instructive in this regard, for it providas
ful!ows:

"Loss of a right fu invoke a ground fur
invalidofing, termi~~ring, w irhdrawing from
or suspending rh~ operarionofa &eae

Ofice oLongitudandBordersEditorialCenRogotA193p. 46And,Limitesde la
Repcblicade CnlonSecondeditiRepubliofColombia,MinistrForeigAffairs,
Ofice ofLongitudesand BoColombiLithograph, ogotj 1944101.
98MenrorialofNicaragua,p. 178,pnra.2.257. A State,may no Ionger invoke a grotrnd for

invalidating,terminating, withdrawingfromor
suspending dze operation of a treaty under
Articlels...60...if, afterbecoming awareof
the facts:

it shall have expressly agreed
(a) that the treaty is valid or

remains in force or continues in
operation, as the case may be;
or

(b) itmust by reason of its conduct
beconsidered havingacquiesced
inthe validitof the treaty or in

its mainrenance in force or in
operation,asthe case may be."

1.118 On the factsof thismatter, it is plain that, in ratiftheg
1928 Treaty and in registering it with the League of
Nations as binding, Nicaragua treated the 1928 Treaty as
valid and in force, and that, by reason of having

implemented the Treaty for decades, it more than
acquiesced in its validityand maintenance in force and
operation. Nicaragua's argument that the 1928 Treaty and
its1930 ProtocoIhave terminated is whollywithout merit.

I.II9 Furthermore, it is evident that Nicaragua cannot now be
heard to argue that Colombia, by impIementing the 82"W

Meridian as a maritimeboundary -as agreed in 1930 and
complied with from then on- isin breach of the 1928 Treaty
withthe result thathatTreatyhas been terminated or is subject
totermination.A purposeof so extraordinaryaclaimis to vitiate
Colombia's valid objections to jurisdiction: to undermine its
positionthat,under thePactof Bogoth,the disputeis onesettled
by arrangement between the parlies and governedby a treaty

thatwas in forc011the dak of the concIrrsioofthePact, and is
still iforce;and to undermineitspositionthat the disputearises
out of factantecedent to 1932.Ifthe Court were tosustainsuch an argument,it would permitaStateto evade limitationon the
jurisdictioofthe Cou~rby means ofa spuriouscIairb n,cause
the presentatioof alleged violations beforfhe Cow would
then of itsesufficeto render those reservations-which aan
expression of the wiII of States- ineffectual. Colombia is

confident thatthe Cow willreat Nicaragua a'senturous
argumentwith the reservethat it merits.

1.120 Ilaving presented the general background of the case,
according toArticle79 of the Rules of Court, Colombia's

PreliminaryObjectionsarehereinaftesetout infull, CHAPTER I1

IN ACCORDANCEWITH ARTICLES VI ANDXXXIV
OFTHE PACT OFBOGOTATHECOURTIS
"WITHOUTJURISDICTION TO HEARTHE
CONTROVERSY" ANDTHEREFORESHALL

DECLARETHE '6CONTROVERSY,,. ENDED"

I,ThePactof Bogoti

2.1 The "American Treatyon Pacific SettIement"known as
"Pactof Bogoth" ("thePact"),was concludedon 30 April
1948~~d,uring theIX InternationalConferenceAmerican

States.Itwas based on a draftpreparedby the Tnter-
American Juridical Committeethat includedamendments
suggestedbyBrazil,Mexico andPeru.

22 The Pact ofBog& is a principa1element in the Inrer-
American system forthepacificsertIemenof dispuresand

has a specialplace in the Charter ofthe Organization of
American States. ThePact estabIishea system for the
settlemenof disputesin whichthePartieundertaketo use
the agreed procedures, in the manner and under the
conditiowprovidedfor inthePact (ArticlIIof the Pact of
Bogoth].Theproceduresestablishedin thePacare:

- Good offices and medialion (ChapterTwo),
- Investigation and conciIiation (Chapter Three),

- Judicial procedure(ChapteFour),and

- Arbitration(ChapterFive).

Annex20: AmericanTronPacifSettleme"Pactof Bogoth", 31948.il
Offictext theEnglishandSpanishlanguages.2.3 However,the Pact, in itsArticIeVI, excludeshrn the
applicationofatiof theaforemen~ioned proceduresmatters
already settledby arrangementsbetween the Patzis or
governed by mtKs in forco en the date of the Pact's

currc~usion.

2.4 When thePactofBogota waswncludedin1948,&ere was a
considera bumeber of outstanding disputes between
various American States but none whatsoever between

~ihgua andColombia

11.TheRelevant P~YIsians ofthePactof Bogota

2.5 The Parties arein agreementthat the Pact of BogotB -a
treaty in forcebetween them- is governing,Tn both its
Applicationand its Memorial,however,Nicaraguarelies

only on one provision ofthe Pact,namely ArticlXXXI,
without givingeffect,oreven referringtootherprovisions
of the Pactwhich, inthe Court'sown wds, 'Crestrihe
scopeofthe Parties'commitment" IDunder ArTicleXXXI,
namely, ArticlesVI and XXXIV.It is not ArticlXXXJ,
read in isolatiofrom the other relevaprovisions,which

cunfel-s jurisdic~ioupon the Court, but the whole of
ChapterFour.YJudieial Procedure") read in conjunction
with the general provisions in ChapterOne ("General
Obligation toSettleDisputes by Pacific Means"),andin
particularwith ArticleVI, towhich referenceis explicitly
madeby the TetmSof ArricIeXXXIV.ArticleXXXI does

not stand alone, but must be read together with other
relevantprovisionsofthePact - towhichNicaraguamakes
no ~ference.

'ODBo&r andT-hc~rdr ArmedAciir (Nicaragv Hdurcl5)Jt.wf~~dfndio
Adraissib.la.Kqorls1988p84,par35.2.6 Contrary to Nicaragua's assertion, therefore, it is not
ArticleXXXIof the Pactread inisolationwhich provides a
basis for the Court's jurisdiction; it is thePact of Bogota as
a whole which providessuch a basis,and itis only to the
extent and within the limits defined by the Pact that the
jurisdiction of the Court is determined. This is clearly

borneout by Article IIof thePact, accordingto which

"... In the event that a controversy arises
between two or more signatory States... the
Parties bind thernseIves to use the procedures
established in rhepresenr Treaty,in #hemanner

and under bhe co~zd9,IOIsprovided fur in rhe
following articles..

2.7 According to ArticleVI of the Pact, the procedures under
thePact -including thejudicial procedure ofChapterFour-

"...may not be applied to matters aIready
sen led by arrangements between the Parties..
or which are governed by agreements or
treatiesin forceon rhe date of theconclusion of
the presentTreaty."

2.8 ArticleXXXIIIprovidesthat

"If the Parties fail to agree as to whetherthe
Court hasjurisdictionover the controversy, the
Court ilseIfshallfirstdecide that question."

This is precisely what the CourtisrespectfuIIyrequested to
decide upon "before any further proceedings on the
merits",as provided forin Article 79ofits Rules.

loEmphasiadded.2.9 According toArticleXXXTV ofthePact

"If the Court, for the reasons set forth in

Articl... VT...of thisTreaty, declares itself
withor~tjurisdiction tohear the controversy,
suchcontroversyshallbe declaredended."

The matters brought befm the Court by Nicaragua's
Application-the sovereigntyover the Aschipela ogo an

AndrCs and the maritimeboundary between Colombiaand
Nicaragua- are matterswhich -along with the matter of
sovereignty over rheMosquito Coast and theIslas~aig~es
(Corn Island+ were settledand governed byrhe Esgum-

&enas Treatyof 1928 and itsProtoco oflExchango ef
Ratificationsof 1930 and which constitute bth an
"arrangement" and an "agreement or treat[yrof the kind
referreto inArticleVI of thePact of Bogotk It therefore
fallwsithin thjurisdictionof theCourt, and,pursuantto

ArticlesVI and XXXIVof the Pact, theCourtis bound to
debar anyreopening ofthese matters.Itisbound todeclare
thecontrovmy "ended'" ferminie,terminada.

111.The Object and Purposeof ArticIesVI and XXWV

2.10 Thatthe objectandpurpose of ArticlesVI andXXXV of
thePact ofBogo~is toensurethatthe proceduresprovided
farin the Pact be used only settle stiunsettleddisputes

butnot toreopen previously settledonesappearsnotonly
from their very warding, but also from the travam
priparatoires'02.

OnSArticVi,Annexm21:IXlntwnabl Confermixofqmerim Smeq Aclad
DocttlmeACISqfk Sessrmofcrnn~iiIil. SKSessio27Apr1948,Minisofr
FureigAffairsofCoIomRogor1853,VolIVpp.134136.
On ArticXXXIV,A~rne22:IXIn1enlationalConfofAmericaStates,Aand
DocumenrActsoJthSessiasCommitte11k+o*aurtehs2,8Apr948,Ministof
ForeigAffairsofColotDugot1953,Vol. IV,p, 172.2.11 ArticleVI corresponds to one of the threearticiesPeruhad.
proposed to be inioborated illtothedwfi prepared by the
Inter-AmericanJuridicalCommittee to be discussed at the
IX International Conference of American States. The text

of thePeruvian proposal on what was later tobe ArticleVI
ofthePact, was asfollows:

"Article ...These procedures may not be
applied either to matters aIready settled by
arrangement between the parties or by arbirraI

orjudiciaI decisions,or which are governed by
internationaIagreements inforceon the date of
the conclusion of thepresent rea at^."''^

The discussions on the draftArticle were held in the First

Working Group setupby Committee111 at theConference.
Ttwas submitted by the Chairman for debate during the
thirdsession of Committee I11 on 27 April 1948, with a
minor drafting change, namely, the deletion of the term
"intemationa1" before "agreements", At the session, Peru

and Nicaragua were represented by the renownedlawyers
and diplonlats, Victor An&& BeIa5nde and GuiIIermo
SeviIIaSacasa,respectively.

2.12 The representative of Ecuador found Peru's proposal

"peremptory" as well as too absolute and general, and
suggested its rephrasing. Belarinde opposed this suggestion
because, inhiswords,

".., it would be very dangerous toattenuatethe
formula, [because] ...it wouIdopen the door to
provoke a dispute, which is exactly what we

want to avoid.I believethat anAmerican peace
system should not only resolve disputes, but
also preventthem, because the provocation of

'031XInternatil onferenceofAmeriStates.Documentsof Comm111.ages 69-
70.SeeAnnex21forthefutexof thispartodebates. disputes is precisely one of the ways of

attemptingagainst geace."Io4

The DeIegare of Chile took the floor ro suppo1.tthe
Peruviandelegate:

"My country's delegation amply supports the
wordsof the DeIegate of Peru, and is willing to

it+w1O5he article in the way he has proposed

The represenrative of Cuba, having expresseddoubts about

the usefulness of such a provision -if the dif'ficulties are
seftled,so he said, what isthe problem?- Belairnde went so
far as to speakofres judicutct:

"The danger lies in its being reopened, in
wanting to reopen them. It is the exception of

resjudicata. " '

2.13 In the light of these explanations, the Peruvian proposaI
was approved, unanimously. It is now Articl VeI of the

Pact, which, as rhe travaux prtparntoires cIearIyshow, is
rneant as a shield against anypossible useof the procedures

provided for by the Pact in order to reopen previously
settled disputes.

10...seriumuy peligrosnlenlin!tfhrjtnr..[porque]seria ubrir Inpzraprovncar
rm liligiqut.e.precisrimenreloqrqt(kremoevilorCreo yue rtnsisre~nnterirrmode
pnz debeno sdloresoli,eIosli~igios,sino mmb~impedir qirseprovoqrten,porqze el
pjwvocrriiiigioesp~cc?san~dn ntaedIlis finasdementnr cmwa lapz. "See Annex
21.p I35
ros:.La Ddegacidtdc t~~paisapoycininp!1a111eI1~pafnbrus dd seh delegudodei
Perri,yesfrtlispiteovoinrel a~ficienItl formcoma +iloIraprup~~esroSee Annex

lob*. 135.
"El peiigrestaen qlise reabra,ctqriesequierureabrir. Es la excepcih cosa
jzr~gada"SeeAnnex 21,p.136.2-14 The approvaIdebates in the adoption of the Pact in the

Congresses of severalsignatory Stares furrher confirm the
common interpretation of he intenr, purpose, scope and
meaning of ArticleVIof the Pact of Bogota.

2.15 It is worth recalling that express reservations to Article VI
were made by ~olivia''~and ~cuador"~ when signing the

Pact of Bogota, aimingto protect the possibility that their
existing territorialtraies with Chile and Pem iespectively-

might be opened to review'". In line with their own
positions regarding those treaties,they sor~ghtto leave the

door open for territorial rnaners already settIed by
international treaty, to be submitted at some futuredate to

the procedures of the Pact. Nevertheless, neither ~cuador"~
nor Bolivia ever ratified the Pact. A study carried out by
the General Secretariat of the OAS in 1985"' further

confirms the purpose of the reservations entered by Bolivia

IoBolivia'sreservatiwas as follows"The Delegation of Boliviamakes a reservation
with regard to Article VI, inasmasit considers that pacificproceduresalsobe
applied to controversiesarifrom matters settlcd by arrangementbetwcenthe parties,
whenthesaidarmngeinen?affeclslhvitainterestsoa[Sltate."
lo8Ecr1ador7rtsew~tionwas as folIcws"fie DeIegaIionof Ecuador,upon signing this
Pact, makesanexpress reservatiiviIregardtoAriiclVI md aIsoevciyprovision[hat
con~radictsor is not in harmonwiththe principles prorlaimby or Ihe sIipnIations
contained in theChaflerof the UnitedNat,llChaner ofrheOrgarrizationof American
Sraies,or the Constitulionof the RecfEcuador."
1wBoIiviahad repeatcdIyprocIaimedthe nuIIityof the lreaty signed wi~hChOct.n 20
1903.On irpm, Ecrradvrconsideredthat the so-called"ProrocoIo de Janeiro"(Rio
de Jnnei~uProiocolsig~rcwiih Peruon 29Jan. 1942,was impracticablearafterrvsrds
proclaimed itsnullity.BChileand PerupereinproriIyrejectedsaidcIaandrt.fr~s10
reopenmattersalreadysettledbytheirrespective treatiesin force.
"*The Pact of Bogotawas initially submittedto EcuadorianSenate. Ithe plenary
sessioin which the isswas considered,the reponof the ForcignAffairsCommission
was read.In it,was statethat"This Pacwas signcdin Bogotabythe representativesof
Ecuador, with the followinrgeservation... [Seefootsup]1... [the]aforementioned
reservatileavesthe possibilityofthe revisionof Treatiesopen..." Howeverwase Pact
not ratifbydthe Ecuadorian Government, gihatit wasconsiderethateven withthe
reservationformulatby Ecuadorto ArticlV1, the revisionof the Protocolof Rio de
Janeirathat hadsignedwithFcm in 1942was not facilitated.
{Scnak debateAcra de laSesidlVespertinde InHonorableCan~aradelSenado[Record
of the VespertineSession ofthe Honourable Chamber of the Seirateof the Ecuudoriaa
Congress],heId01131Oct. 1949,ItemXXV: FirstdiscussionaBiIInumber 157,Pacrof
Rogol&pp.I923R)
1I Organimiorrof ArnericmrSlates, Permat~entCouncil, 0EAISer.GPIduc.1560185

(Pane11). Apr.1485.OriginaI:Spanish,pp. 17-18. and Ecuador.After transcribing these reservations, the
sfudy states:

"Given tha t rticieVI of the Pact considers

thearrangements,treaties,awards ordecisions
prior to its conclusion as definitive, and
thereforeexcludes rhe matters that have been

the object ofany of themfrom itsapplication,
the reservationisessentially equal todepriving
such actsfromtheirIegaleffectiveness iffaced

with thepossibilitythat already settleddisputes
mightbereopened."

2.16 For fheirpart, borh Chile and Peru in respect of which
BoIivia and Ecuador, respectitreIy, then upheld the
possibiIity of revising treaties,ratified the Pact. The
procedures for theapprovalof the Pact in the Congresses

of chileH2 and Peru are a further indicafion of the
interpretationthar theirGovernments and Congresses gave
to ArticleVI.

2.17 During the Congressionaldebates in Chile concerning the
approvalof the Pact of Bogotk, the definitivecharacter of

Micle VI as a guarantor of internatid treatieswas
recognized. The relevanr,part of the text of Chile's
reservation toArticle LV of thePact, designed to chailenge

and neutralize Bolivia's objection to Article VI, was
originally drafted to reject any reservation that might

'"lnhistransmirto€mges rRPresidcnzoChilrm~iunecithimpmame ofArticle
V1 inthefacoftht:BoIivremvafim "...Ote OW Iran id,sakaurgrmlaadopr
thismeasur[rrr~ifia~sincthe nmIntwAmericanConfereninRiodcJaneimwill
k apmiscd oftwo propwls replace~PactoT13ogononeofwhichincludeasdoes
Art.V1oi'the anyprovisio10prcvml[bereviewof treatiforce.forgrmm
protect irthe nationin- rhcGowrnmenthasconsideredtheformulatiofa
reservationat ttimeof ratifica..dlu wouldanticipateour rejectof any
reservatiwhichattemptedto athescopeof ArticleVl." Messageaddredythe
PRCo~FDogot6nordertuprocccdtortltiticwithnreservati,hamberofDcputies
oi'chilSesdon42of12May 1965pp,3266-3267, change the scope of ArticIe VI'13.Aftersome discussion, it
was nonetheless decided to adopt a differe tett for the

reservation,with an identicaIresult.

2.18 Peru entered a reservation to Article XXXlTIand "the
pertinent part of Article XXX'LV",designed to ensure

that the Court would not even be able to pronounce
itself on its own jurisdiction -under Article XXXIII-
r~garding the exceptions contemplated in Article VI,
and therefore to declare controversies to be ended under

Article XXXIV"~.

2.19 Nicaragua made only one reservation regarding "arbirral
awardsthe vaIidityof which it has impugned" - areference

to the award given by the King of Spain of 1906in its
dispute it had held with Honduras. Quite obviously, it did
not envisage when it ratifiedthe Pact that its dispute with
Colombia might not have been settled and might, therefore,

not fall under ArticleVI. Nor did it questionthe fact that
the 1928 Treaty was in force on the date of the conclusion
of the Pact of Bogota. This was wholly understandable
because Nicaragua had itselfrequested the registration of

the 1928 Treaty .md its ProtocoI of Exchange of
Ratifications of 1930with the League of Nations and, in
1948, had irnpianented the Treaty and its ProtocoI for
almost twenty years.

2.20 The thrust ofthe Pact is thus crystal clear: when the Court
reaches the conclusion -under Article VI- thatthe matter
has been previously settled by an arrangement or a treaty

'''~egardingthe text of his counlry'sreservation, the President of Chilethus statedthat it
shouldbeperemptoryin "...declaring, of course, that it donotaccepianyill
rcscrvationwhichattemptsto changethe literalscoV1oin anyway". Ibid
and thepenincpartof the ArticleXXXIV,inasasciconsiders thatthe exceptionsof
resjndicatq resolvedbysertbretween[hepanics or governedbyagreor trea~ies
inforcede~ermine,in vioftheiobjectiand perernprrlarrrheexclusioofthese
casefiom thapplicationeverprocedure." between the Parties,or that the matter isgovernedby a
treaty inforceon the dateof theconcI~rsionof the Pact,the
duty of theCourt -under Article XXXIV- is todeciare the
dispute "ended". This is exactly what tPacr of Bogoth is
about:providing mechanisms of settlement for unsettled

disputes,on the one hand ;fXrnting previoussettlements
and opposing any attempt at their reopening,on the other
hand. In rhe present proceedings, to deciare the dispute
settledbythe 1928Treaty andits Protocol of 1930 and the
matter "ended", ternzine'e,terminada, is what the Pact
requiresand thislieswithintheCourt'sjurisdiction.What,

in thewords of ArticleXXXIV of the Pact, theCourtis
"without jurisdiction" tdo is to"hear the controversy"
anew, asifit werenot alreadysettledby atreatyin force.

2.21 That thisis themeaning ofArticles VI and XXXV of the
Pact of Bogot5 is borne u by the oficial
conternporaneo~~ sommentaryon the Pact publishedby the

Secretary-GeneralaftheOrganization of AmericanStates:

*Ytcouldoccur thatone of theStates partyina
dispute claimed that the case was not
susceptibleof a judicial settlementdue to its
being precisely within one of the exceptions
providedin the [Pact] itselfthatis, becauseit

referredto [matters] .. already settled by an
arrangementbetweenthe parties,orby arbitral
award, or by a decision of an international
court;or because it is governed by agreements
orti-eatiesiforce on he date ofthe concIusion
of the American Treaty on Pacific Settlement.

In sucha case thepreliminary questionshaII be
submitted lo the Court whenever one of the
partiesclaims an exception. ff the Coup#, in
the case of judicial procedure, should
declare itself without jurisdiction for the 83

reasons set forthabove, fhe controversy is
declared ended. ..,115

2.22 The Pact of Bogota must be read as a whole. Nicaragua
cannot solely rely on Article XXXI of the Pact of Bogoth.
By virtueof the I928 Treaty and itsProtocol of Exchange

of Ratifications of 1930, which is vaIid and in force, the
matters which Nicaragua seeks to place before the Court
(a) have already been settled and are governed by that
Treaty and itsProtocol, which fb) was uncontesrablyand

incontestablyin force in 1948 on the date ofthe conclusion
of thePact.ArticleVI ofthePactstipulates that,consequently,
on each of these grounds, Article XXXI "may not be

applied".

2.23 Moreover,by virtue of ArticIesVI and XXXIVof the Pact
of Bogota, the Courr's jurisdiction is Iimitedfo declaring

the controversy ended.

IV. DefinitiveSettlement of the Dispute Concerning the
Archipelagoof San Andrks,the MosquitoCoast and the Islas

MangIes (Corn Islands)

2.24 That the dispute maintained betweenNicaragua and
CoIombia comprising the Mosquito Coast and the IsIas

Mangles (Corn Islands)and, since 1913 the Archipelago of
San AnMs as well, was settled-after lengthy negotiations-
by the Esguerra-Bhrcenas Treaty of 1928 has been shown

115A. Lleras,"InformesobrelaNovenaConreInternationaldeEstAmericanos",
inAndes rk InOrganizflcihfEszadosA~~lericnn, oI,Nn. 1,Departamentde
Infonnaci6n PCbIica,Unibn PmarnericanaWahington, D.C., 1949 pp.49-50 (Enrphasis
added). Setalso,Garcia-Amador, F.V. (annotacamp.):"ArregIo I'acifrco de
Controuersia, rarado ArnerdcaSoIucionesPacificas,de Bogotf: iSistemn
Inreramericarroa Irwts rie irirfrrdos,cyofmsidoc~tmtzems,ubsecretariade
AsunrosJurrdim-PoIiticm, Secretarideela Organizacibnde EsladosAmcricanos,
VoI.IAsunlosJuridic-Polflicos,Washington,1981p.747. in detailCkapterIabove. As hasken shown,theTreaty
incorpora atfdmuIa proposed six years~Iier by the
CoIombian representat Mivne,elEsguerra, by which
-lorn biamugnized fhesovereigntyofNicaraguaover the
MosquitoCoast andoverthe lslasMangles (CornIslands),
whileNicaragua recogniz teedsovereignty of Colombia
over the islands oSan AndrBs, Providencia and Santa

Catalinaand over"allof thother islandsisletand cays
thatformpartofthe saidArchipelagof SanAndds." The
Treatyin effecconsdidated the defacrosituationwhich
prevaiied at ttime- andwhichis todaythe same asthat
prevaiIinwhen the Treaty was negotiated,signedand
ratified:the MosquitCoastand the IslaMangles (Com
IslandsasNicaraguan,andtheArchipela ofSanAnd&
includinallit"islands,sletand cays"asColombian.

Nicaraguaseeksto diminishtheextentofthe Archipelago
ofSan AndrCsa,nd toexcludefrom itthenorthern caysof
Roncador,Quitasueiiuand Senana, and also thecays of
SerraniIIaanBajo Nuevu.Inthis way Nicaraguaseeks to
deny CoIombia'stitle tthosecaysasagreedin the1928
Treatytok partofthe Archipelago,ndto IaycIaimitself

totirIe totkem.Geographica hlsor,ly and Iegalty
Nicaragu a'sitioncannotbesustained.

Geographicallyand historicallthe Archipelao foSan
Andres was understoodascomprisingthestringofislands,
cays,islets anbanksstretchingfrom Albuquerque in the
southtoSerraniIIandBajoNuevo in rhe nor-incIuding

the IsIas Mangles(Corn Isiandsk and the appurtenant
maritimeareas.Itis apparentfromaglance atMap No. 3
that thmefeaturesconstituta singleislandchain which
foms tkeArckipeIago.

2.27 Moreover, published maps show that the islands
comprising the presentCotombianArchipelago of San

~ndris"' extendfromAlbuquerqu e aysin the Southto

IlSeepara1.8,stry,.n Serranilla and Bajo Nuevo in the North. Thus Map No. 4,
published in the ye& following the entry into forceof the
1928 Treaty and its 1930 Protocol, and not protested by
Nicaragua, contains in the top right hand corner an insert
showing the Archipelago (reproduced as Map 4bis): It is
inscribed "Cartelaof the Archipelago of San Andres and

Providencia pertainingto the Republic of~olombia"~". It
shows the islands, caysand other maritime features
comprising the Archipelago and extending from north to
south in theareajust described.Other maps areto thesame
effect: Seee-g.,MapsNos. 5 - II,

Legally, Nicaragua has alreadyacknowledged in the 1928
Treaty that Roncador, Quitasueiioand Serrana are part of
the Archipelago.Article I of that Treaty stipulated inter
alia that Colombia recognized Nicaragua's sovereignty
overthe Islas Mangles (Corn Islands),thereby takingthem
out of the scope of the subsequent reference to the

ArchipeIago of San Andres as beionging to Colombia.
What the Treaty said in that latter respect was that
Nicaragua recognized "the hi1 and entire sovereignty of
theRepublic of Colombia over the isIandsof San Andrks,
Providencia, Santa CaraIinannd aft thother islands,isiers
and cays that form part of the said ArchQelagu ofSm

Andrks". This stipulation was followed by the statement
that "[tlhe Roncador, QuitasueAoand Serrana cays are not
considered tobe included in thisTreaty, sovereignty over
which is in dispute between Colombia and the United
StatesofAmerica".The basis on which the Treaty applied
to those three cays was that they formed part of the
Archipelago: this statement is inexplicabIeon any other

basis. It follows that in accepting the 1928 Treaty
contair~irthat statement, Nicaragua acknowledged that the
threecays formed part,of the Archipelago and would, but
for that statement, havebeen dealt witin accordance with
the main stipulation of Article I about Colombian
sovereigntyoverthe Archipelago.

'I"CarteladelArchipiklagodAndrisProvidenciapertenecientealaRepublicade
C<f/~mbff2.29 TI-ratsratement in thTreaty that the cays of Roncador,
Quitasuefioand Serranawerenot considered tobeincluded
in it had a further important consequence. The Parties
agreed to that provisobecause"sovereigntyover [rhern]is
in disputebetween Colombia and the United States".The

questionwas thusleftopen whetherthese cays would inthe
end belong to Colombia or to the United States.But as
between Colombia and Nicaragua it was establishedthat
thecays did notbelong toNicaragua.Nicaragua accepted
that theonly claimants to sovereigntywere Colombia and
the United States;it was not envisaged that they could

belong to Nicaragua, andNicaragua did notfo~mula~e any
claim to thaf effect. Since in 1972 the United Sfales
renounced its claims to these three cays, there is -as
establisheby Colombia andNicaragua in 1928- no other
possessor of sovereignty over them than Colombia. They
thus, in fullaccord with the 1928 Treaty, belong to

Colombia, and there is no basis whatsoever for any
Nicaraguan claimto sovereignty overanyof the threecays.

2.30 From the foregoing it is apparent that,once the dispute
between Colombia and theUnited Statesover the threcays
has been resolved, the whole ArchipeIagoof San Andres

(othethan theIsIasMangles(Corn Islands)whichCoIarnbia
acceptd in the 192Treaty asbelongingtoNicaragua), from
AlbuquerqueCay in the south toSerraniIIandBajo Nuevo
Cays in thenorthand includingallits islands, iandtcays,
has been acceptedby Nicaragua in the 1928Treatyasbeing
under Colombia's "fulland entire sovereignty Th.atwas
theessence of the settlement enshrined in the 1928Treaty:

theIslas Mangles (Corn Islands) and the Mosquito Coast
recognizedas Nicaraguan,and the Archipela *eocognized
asColombian. The dispute would nothave beensenled-in
the words of the preamble, the Parties would not have
succeed ind'putringanend tothe territorialdisputepending

between them"- on my otllcrbasis; certainot on the basis
that sovereigntyoversome partsof the Archipelagoshoukd
stiremain uncertainasbetweenColombia andNicaragua.2,31 It isthuscIearthatthefinaIandcompIetesettlemen~ofthe
dispute was the object and purpose of the Esguerra-

Barcenas Treaty and its1930 Protocol. This follows not
onlyfrom the history anthe verytext of the Treatyand its
Protocol and but also from the approval debates in the
Congressof both countries.

As shownin Chapter T,in both countriesthe ratification of

the 1928 Treaty folIowed a debate in the national
Congresses, both in the Senate and in the Chamber of
Deputies.The 1ive1inessof thesedebates,particulary in rhe
Nicaraguan Congress, beiies the argument raised by
Nicaragua when purporting to unilaterally declare the
Treaty nu11and void in 1980 on the ground rhat the

Esguerra-BhrcenasTreaty had been concluded under the
pressure of theUnited States and was not freelyentered
intoby Nicaragua. These debates do not leave the slightest
doubt asto the intentioof both Parties,andparticularly of
Nicaragua, to regard the Treaty as a tinal and complete
settlementof all territoridisputesbetween them, This is

borneout by theTreaty itselfwhich in its Preamble states
rhatthe Parties were "desirous of putti**11-end to the
territoridispute pending between them a statement
repeatedin the 1930 BsotocaIofExchange ofRatifications,
which specifiesthat the Treaty was concluded "to put an
end to the question pending between both Republics

concerning the San Andr6s and Providencia ArchipeIagu
and theNicaraguan ~us~nitia."""

2.33 The 1928 Treaty and its Protocol of Exchange of
Ratifications,n force since 5 May 1930, was registered
with the League of Nations by both Nicaragua and
Colombia. After the Treaty's entryinto force, onmultiple occasions-in o ficia1statements and communications-
Nicaraguarecognized theeffectivenesof the1928 Treaty
and itsProtocolof1930.Thus,itcIearIunderstoodittobe
in forceon 30 April1948,when the Pactof Bogot5 was
mncIt~ded.

On the dateofthe Pact's concIusion,Nicaraguamadeno
reservatiowith regardtothe 1928Treatywhichhad then

been inforcefor eighteen years.The onlyreservationit
entered referred20 arbitral awards, since Nicaragua
questionedthe validitof theaward renderedbythe King
of Spain in 1906. Furthermore, it would be
incomprehensibleforNicaragua to purportto unilaterally
declarethenullitofthe 1928Treaty,as it diin1980 h,ad
itnorconsideredito bein ibrce.

Inlightofthe above,itisevidentthat the intenfiunofthe
partieswasto putan end tothedispue betweenthem and
thatthatdisputwas definitivelsettIebythe I928 Treaty
and its Protocolof Exchange of Ratificationsof 1930
which was in force on30 April 1948, the date of the
conclusionof the Pact of Bogoth. This means that the
matterfall usderthe exceptionsestablisheinArticleVI
of the Pact:(a) thematter was settledby mangment

between thePartiesand governedby a treatyand (6)t'at
treatwas in forcon thedate of thPact'sconclusion.

V. EstabIishrnentf theMaritfme LimitaIongthe 82"W

Meridian

2.36 On 19December 19213t,he Treatywas presentedto the
Congress of Nicaragua. As stated inChapter I, the

NicaraguanSenatorialStudy Commissionagreedwiththe
NicaraguanForeign Minister,and hisadvisorsto propose
the 82' W Meridian "as the limit in thedispute with Colombia", and proceeded to discuss the matter with the
Colombian Government, through its Ambassador in
Managua. Thus, bearing in mind that the CoIomhian
Congress had already approved the Treaty,a process of
negoriationbetween thetwo countrieswas initiatewith a
view to settIingthe issue. These negotiations and
consultations tookplace between the Nicaraguan Foreign

Minister, his advisors and the members of the Foreign
Affairs Commission of the Nicaraguan Senate on the one
hand, and the Colombian Government through its
Ambassador in Managua on theother.Colombia carefully
studied the matter and, after the aforementioned
negotiations as described in detail in Chapter I above,

agreedto the inclusionof aprovision establishingthe82"
W Meridianas theboundary between the two countries.

2.37 As shown ear1ier12',during the Senatorial debates in
Nicaragua, one of the ~nembers of the Nicaraguan
SenaroriaIStudy Commission -and who thereforehad been

invoIved in the negofiarionswitCoIornbia- expIained rhat
in order ro prevent any hture disagreement between
Nicaragua and CoIombia it should be added that
Meridian 82" W was to constitute the "dividing liof rhe
waters" (la2ineadivisor dealas aguas).Thisdemarcation,
the Senator statedwas necessary to putan end forever to

the issue (esa demarcacidn es indispensablepara que Iu
cuestidn quedede una vez, terminadapara siempre'e) .he
Ministerof Foreign Relationsof Nicaragua explained that
it was necessartointroduce into the Protocol of Exchange
of Ratifications "the clarification which marked the
dividing line" (la aclaracibn que denaarcaba la Iinea
divisorin),because it "was a need for the hture of both

nations, asitcame lo estabIisthe geographical boundary
between the archipeIagoes indispute, without which the
question would not be cornpIetely defined" (em una
necesidad para ef fururode ambas nacionespugs venict a
sehalar ef iimiregeugrtificuer?fr.ios archipihingos en

12Seeparas.I.6I andif dispuu sin10cual noquedaria completam~e de$nidula
cuesfin). The NicaraguanMinisterfurther assured the
Charnk on behalfof hisGovernment that the provision

concerningthe "dividingIine"did not requirethetreatyto
be submitted again to the Colombian Congress, the
Colombian Ambassador having indicafed to him that he
had been authorizedbytheColombian Government to so

sIate(...su Gobiemo io habidautovizr7dopm mon*star

demtarcaba ia Iineadivisoriague por Iaranioy aungue no
existla mxda escrifo, pdi~ asegwar a la Honorable

Cdmtira, en numbredel Gobierno, que seriaoprobadoel
Tratado sin necesidad de someterlo nuevamenle a la
aprobacibndel Congreso).Herequestedt ,herefore,hatthe
Senate approvethe Treatywiththe proposed provision"'.
This was done, as recalledearlierby aunanimous vote on

6March 1930.

2.38 After having been approved by the Nicaraguan Senate,the
Treaty was submitted to the NicaraguanChamber of

Deputies.The Commissionof Foreign Relations proposed
thatthe Chamber approvethe Treaty, asthe Senate had
already done,&use of the"necessirytoputan end tothe
disprrtein the formspecifiedin the Treatyn(la necesidud
& poner fin a Icrdisputa en In forma que el Tratc~do

especpca), that isto say,"with the additionproposed in
the Senate"(can la adicibn propuesfa en in Chmaradel
ena ado)'' ^.e Treaty andthe agreed provision between
Colombia and Nicaragua regarding the 82" W Meridian
were approved on 3 April 1930. The provisionwas

includedin the 1930Protocolof Exchangeof Ratifications

"'Annm 8: RecordosessioXLlXofrhtChamberofthe Senaof the Nic~mgum
Mayg1930pp777-779.a GaceDinrioOficAAoXXXIV, ManaguaD.N.No98,7
12hnnex 9:Recorof session I.oftheChamberof DeputiesofNicaraguan
Congres1s,pr1930Ln GacctDiarioOficAfro XXXIV,Managua,D.No.182,
20August193p.1460ff. of the Treaty.The<T;eeatyand itProtocol was pubIished in
the Official~ournal'o~icara~ua on i July 1910.

2.39 It isnoteworthy that the terns of the Treaty had been
agreed upon under a Conservative Government in
Nicaragua, with the participation oCarlos Cuadra Pasos,
then Minister ofForeign Affairs, whilsttheratificatiand

exchange of ratificatioinstrumentswere both carried out
by Julihn IriasMinister of Foreign Affairs of the new
Liberal Government,the LiberalParty being an entrenched
opponent andrival of the ConservativeParty under whose
leadershipthetreatywasnegotiated.

2.40 At no time betwee he signatureof theEsguem-Bhrcenas
Treaty in 1928 and the exchange of its ratification
insfments in 1930;nor between 1930 and 1948,when the
Pact of Bogota was signed; nor between 1948 and 1950
when Nicaragua depositeditsinstrument of ra~fiiaion of
the Pact of Bogot6,did Nicaragua everstate thathe matter

of the sovereigntyover theArchipela of SanAndris was
outstanding,orthat there wasa questionabout the validity
of the 1928 Treaty and its Protocoi of Exchange of
Ratifications of 1930, or that there existmy difference
between Nicaragua and Colombia over this question.At
that timeNicaragua had never attempted to raise doubts

regarding either Colombia's sovereignty over the
Archipelago or the82"W Meridian as the dividingline of
the waters,the lineadivisoriade lasaguas. When the Pact
of Bogoth was signed on 30 April 1948, the Esguerra-
Barcenas Treaty of 1928 and its Protocol of Exchange of
Ratifications of 1930 hadbeen inforce for almost twenty
years - and atno time duringaflthese years had Nicaragua

even suggested thatthedispute between the two countries
had not been settled ayvalidtreaty,inforcesince 1930. VI.The Character ofthe 82"W Meridian

2.41 The debate in the Nicaraguan Congress Ieavesno doubt as
to 81emeaning of the 82" W Meridian within the 1930
Protocolof Exchange of Ratificationa:border, adividing

line othe waters in disputea delimitation,a demarcation
of thedividingline (hire, iirredivisoria lie languas en
disputa, delimitaciGndemctrcncidn d~ lalineadivisoria)-
in otherwords: a maritime boundary. It is me thatthe
1928-1930 settIement reIared in the firstpIace to

sovereignty over land -the Mosquito coast and the IsIas
Mangks (Corn Isiands) on the one hand, the Archipelago
ofSan Andrks on the other- because these werethe issues
which had divided the two countries for so many years.
However, if this settlementhadbeen restrictedto territorial
sovereignty and had left.open the issue of the maritime

division, it would not have achieved the purpose of the
negotiation, whichwas, as was repeatedly recalledinthe
Nicaraguan Congress, the final and complete settlement of
the dispute between thetwo countries. Iestablishingthe
82' W Meridian asthe boundary between Colombia and

Nicaragua, the Parties wantedto put an end to fhe whole
dispute: Nicaragua proposed, and Colombia agreed, to
estabiishaboundary aIongthe82" W Meridian and not any
other line.

2.42 To argue,as Nicaragua repeatedly does inirs ~ernorial'~~,

that the reference in the ProrocoI of Exchange of
Ratificationsto the 82" W Meridian limits Colombia
westwardsvis-A-visNicaraguabut does not limitNicaragua
eastwards vis-6-vis Colombia is preposterous. It is
inconceivable that Colombia would have accepted the
Treaty had Nicaragua proposed in 1930 that the 82' W

Meridian constitutedawestward limit forColombiabutnot
an eastward limit for Nicaragua. It wasboth appropriate
and sufficient to definethe western limit of Colombia,

12Memoriulofhicnragzl158pam.2.13p.176Pam.2.252;p178para. 2.255. without it being ,necessary to describe this line asbeing
alsothe easternlimit ofNicaragua.

2.43 The Nicaraguan Memorial goes to great lengths in its
attempt to limit the 1928-1930 settlement to its territorial

component and to disregard its maritime aspect"'. It
accuses CoIombia of having "seI f-servingy converted...,
fortyyears afterits concIusion",the territoriasettlementof
the Esgrrerra-BArcenasTreaty into a freaty of maritime
delirnitati~n'~the purport of which would have been, so

Nicaragua argues, to delimit maritime areas that were
unknown to, and unrecognizedby, international law at that
time.An "eccentricinterpretation",soNicaragua writes,of
a treatywhose scope was "clearly limitedto defining the
extreme extension to the West of the archipelago, without

any intentionof delimitingthe respectivemaritime areas on
which the Partiesmay claim juri~diction"'~~.

2.44 To set therecord straight,one need only refer onceagain to
the debates in the Nicaraguan Congress, recounted above,
which show the genesis and purport of the provision

regardingthe 82"W Meridianinthe ProtocoI ofExchange
of Ratificationsof 1930. It isinthe Nicaraguan Senatorial
Study Commissionthat the ideahad surfaced that, in order
to put an end once and for all to the dispute betweenboth
countries,itwas necessary to definethe limit-on the seaas

well ason land- between the two countries.

2.45 The fundamental impoflance of the 82OW Meridian and
the boundary name that Nicaragua attributed ro ilare
borneout from the very negotiation regarding the inclusion
ofthe Meridian.The proposal of rhe Nicaraguan SenatoriaI

Study Commission was widely debated between its
members, the Minister of Foreign Affairsand his advisors,
124
MemorialofNicaragua,p146-77paras.2.189-2.253.
1%Ibid.,146,para2.89;p153,para.2.203.
aid.p.181,para2.253. and the Ambassador of Colombia. The CoIombian
Government, after acasefuIanalysis,decided toaccept it
and proposed that it be incorporated in the ProtocoI of
ExchangeofRatifications.

2.46 From the debates in the Nicaraguan Congress the
overriding importancewhich the Government ofNicaragua
attachedto the matter is evident, totheextent that those
debates were suspended in order to learnthe views of the
ForeignAffairs Minister.Despitethe explanationsgiven by
theMinister and one of the Senatorswho was part of the

Study Cornmission, some Senators considered that rhe
inciusion of the Meridian.was, because of its boundary
nature,so fundamental rhat ir impliea fullamendmentof
the Treaty which wouId then have to be considered anew
by the Colombian Congress. However, that was not the
path chosen by the Colombian Government which

considered that,for purposes of itsinternationalllegally
binding character,it was feasiblefor the provision tobe
included inthe Protocolof Exchange of Ratifications. In
factColombia has, ashaveother States, followed that type
ofpracticeon severaloccasions.

From the hr.egoing,itfolIows thatthe determinationof the

82" W Meridian as a maritime limit was a hndamental
element of the agreement between both countriesand can
in no way be considered as a mere incidental reference
without any substantive significance for the agreement.
This is evidencedby thefactthat, intheyear following the
exchange of ratification instruments of the Treaty, the

Meridian had already been incorporated in Colombia's
official carrography -as ihas continued to be on several
occasions- (seeMaps Nos. 4-1 1) astheborrndarybetwee11
both countries without there being any protest fhm
Nicaragua. There can beno doubt asto the meaning and scope ofthis
provisis ince, during the congressionaldebates, one of
the members of the Nicaraguan Senatorial Study
Commission -and who therefore had been involved in the

referredto negotiationswith Colombia- explainedthat "the
clarification ordemarcation of the dividing line of the
waters in dispute.. [was]indispensable for thequestion to
be at once terminated for ever" (la aclur-acidn o
demarcacidn de la linea divisoria de Ius aguas en

disputn...indispensablepara que la cuestidnquedede una
vez, terminada para ~iernpre)A '~s~recalled above, the
Nicaraguan Minister of Foreign Relations observed that
without the ir-rclusiof the provisionregardingthe 82" W
Meridian "the question would not be compIeteiy defined"

(no quedaria compiefamenfe defirri 1~dcuesritm).If the
Treaty had to be understood, as Nicaragua maintains, as
having no other effectthan that of defining sovereignty
over the land, it would not have been described by the
Nicaraguan Minister and by the Nicaraguan Congressas a

"bordertreaty",atratado de lainites.

2.49 Nicaragua asserts that "treaties allocating territorior
islandswouId usualIy notdelimit the respective maritime
jurisdiction of thParties - except,of course, if otherwise

expressly provided"1 B2ut it follows from the travam
priparatoires that it was Nicaragua's inrenrion, when it
proposed the provision regarding the 82" W Meridian, to
definea limit inthe seas between the jurisdictions of both
countries. Moreover, the Protocol embodies an express

prescriptionto this effect. Contrahaefo~, to Nicaragua's
assertionin itMemorial, the 1928 Treaty, by theinclusion
of this provisionin tProtocol of Exchange of Ratifications,
does definea maritime limitbetween the Parties.

Congress,5 Ma1930LuGaceln, DiarioOfAfioXXXIV,Managua,D.N.No.987araguan
May 1930p. 778.
11Memo~iaofNic~rap, p.156,para.2.232.2.50 From theforegoing,it isdemonstratedthatthe 1928-1930
settlementput afinalend k thediiute betweenColombia
and Nicaragua on seaaswell asorrland.The detemina on
ofthe Iimit in thseawas conceivedof inboth capitals,

and particularlso in Managua, ascomplementary to the
1.8cognitionof territorluvereigntiesThe definitiveand
finalmaritime soIutiunagreedupon was part andparcelof
the globalsettlement reachedin 1928-1930, onthesame
footing as the definitiveand finalrecognition of the

Archipelago asColombian, and theMosquito Coastandthe
Islas Mangles(Corn Islands)as Nicaraguan. To separate
the maritime partof the 1928-1930 settlementfrom its
territoriapartwould run counter tothe intentionof the
Patties,thetrmm pr&purafuiresandthe very textof the
Protocol of Exchange ofblifications,whichis anintegral

partof theTreaty.

ConfrontedwiththiscornpeIIing evidence,Nicaraguatakes
a contradictorystance. On the one hand, ir expressly
acceptsthe Fundamenta mportance of the 82"W Meridian
wI~en it maintains, in its Memorial, that the "mutual

understanding onthe partof both Nicaraguaand Colombia
of the intentandmeaning ofthedeclarationthatwasadded
by the NicaraguanCongress to the 1928 Treaty" and
included in theProtocol of Exchange of Ratificationsof
1930 is to be regarded as what itcallsa "conditional
interpretativdeclaration",which"constitutean'authentic

interpretation'f theTreaty" and "hashome an integral
part ofthe Treatyand binds brh ~arties"". On the other
hand,however, Nicaragua makesevery efforto have the
Courtdisregardthis"aurhenticinreqxetafion"of the Treaty
because, so it says"the only objectof the Treatywas to

determine sovereignty over the territorieand there did
not exist "any intention of delimiting the respective

'-Memorialcfhricnmpp.11-153,pan2.197-2.2nparlicuiar2pam 2199,
andp. 15pam2.201p. 1para2.254. maritime areas o .n, which ,the .Parties may claim
. .
juri~diction"'~'.

2.52 In yet another approach Nicaragua argues that the
Esguerra-BhrcenaT sreaty of 1928 "must be interpreted in

light ofthe lawprevailing at thetimeof its conclusion"and
that to interpret the Treaty otherwise, so the Nicaraguan
argumentruns, would imply "that in 1930 Nicaragua and

CoIombia were claiming maritime areas unauthorized and
even unknown in international law"'3'.The Parties cannot
be supposed, so Nicaragua insists, to have deIimited in
1928-1930 maritime areas which were to be authorized

only fifty years later, thus "anticipating by half a century
the United Nations Convention on the Law of the Sea of
1982"'32.

2.53 No doubt, in 1930 Meridian 8Z0W could not be understood

as a maritime boundary in the modem sense of the word.
However, the travaza prdparatoires of the Protocol of
Exchange of Ratifications recounted above dcrnonstrate
that the 82"W Meridian was regarded by the Parties in

accordance with the iaw inforce ar thetime -as requiredby
the award in Guineu-Bissau - Senegd case133a - sa limit,
asa dividing line,as a Iine separating whatever Coiombian

or Nicaraguanjurisdictions or claims there then existed or
rnighr exist in the future. Nicaragua wanted to be assured
that there would never more be any Colombian claim to the
west of the Meridian, and by the sametokenColombia was

satisfied that Nicaragua would no longer claim any right to
the east ofthe Meridian.

"OMemoriulofNicaragunp.175para.2.249,ap.181,para 2.263.
13Ibid.,p. 170,para.2.241.
'"Ibid, p. 179,para.2.258.
'I"The Tribrlnal considerstirat the 1960mustbeeinterprein the lightof the
lawinforce on the dateof its cu...Arbitrati'I'ribunaIfor thc Determofation
heMaririmeBoundarGuinea-Biss-uSene@. Awardof 31July1989Geneva, I98p.
57, para85.The text of tAward. xvirh trans1alito[he EirgIiIanguagw,as
submitteasat?amcx tothe appIicntinstitutproceedings of the Govenr~nentof
Guinea-Bissauinrhecaseconcerningthe ArArvxrof 1 JulI989(Grri~rea-Bi-ua
SenegaI),The Hague,hug.1989.2.54 Since the 82"W Meridian was conceived asa boundary, it
partakes of the finalityand stability of a11boundaries,
whether on land or on sea.In the TempjeoofPreah Vihear
case rheCourt laid down the basic principlethat

"...when two countries esrablisha frontier
between them, oneof the primaryobjects is to
achieve stabiii and finality... [TIhis is
impossible if the Iine so established can, at
any moment, and on the basis of a
continuously available process, be called in

question..77134

The Court therefore decided that rhe requirements of
stabilityand finaIityare to prevail even over inaccuracies
in the treaty. AIIthmore are theserequirements toprevail

where no inaccuracy is even alleged.In a well-known and
far-reacbng dicmrn in rhe Aegectfz Confi~e~f~z Shelf case
the Courrregarded therequirementsof stabiIi9 and finality
a a genera1principlgovaning both seaandland boundaries:

"Whether it isa land frontier or a boundary

linein the continentalshelfthatis inquestion,
the process is essentially the same, and
inevitably involves the same element of
stabilitand permanence, and issubject tothe
rule excluding boundary agreements from
fundamental chango ef circumstances."

2.55 It may, moreover, be recalled that the basic and rnost
hndamenta1 principIe of rhelaw of maritime delimitation
is that the delimitation is tobe effected by agreemen1

between the Parries -as Colombia and Nicaragua did in
establishing themaritimeboundarybetween them along the
82"W Meridian- and that itisonly in the absence of such
an agreement that thecustomaryrules of internationallaw,

'3I.C,JRepts 1962p.34.
1.C.J Kepor1978p.35-36,pa85. developed by the,jurisprudence of the InternationalCourt
of Justiceand other internationaltribunaIs, come into- .y.
The evolution of these rules -as a result, in particular, of

the evolution of the jurisprudence- does -not affect the
validityof the agreements previously entered into. If the
numerous delimitation agreements entered into during the
lastfifty yearswere to be regarded as invalidbecause the

law of theseahas evolved on so many points,the fabric of
international relationswould be endangered. Would it be
conceivabletha tte agreements predatingthe1982Convention
ofthe Law of theSea,oreven the 1958 Geneva Convenliom

shorrIdbe declared null and void, or at least inappIicabIe
and callingfor revision,because they have been concluded
ata time whenthe concept of the continentalshelf was far
from what it istoday and the instihrtionof the exclusive

economic zone did not evenexist? The maritime limit
agreed upon by Colombia and Nicaragua in 1930 is,
therefore,governing, whatever changes there might have
been sincethen inthe lawofthe sea.

2.56 In another attempt tobelittle the Esguerra-Bkcenas Treaty
ashaving definedbetweenColombiaand Nicaraguaa limit
inthe seas aIongthe 82" W Meridian , icaragua citessome

arbitral awards which either are devoid of vaIue as
precede-ntsor even run counter to the Nicaraguanposition.
The GrrinedGuinea-Bissau award of 1985, cited by the
Nicaraguan ~ernorial'~"for example, statesthat

"... I'absence dotaie des mots enm, mer,

maritime ou mer territoriale constitue un
indice sbrieuxde ce qu'il itait essentiellernent
question depossessions terresbes.

'3"Thecompletabsencofthewordswaterseamaritimorterritoseaia clearsign
that essenriIatd possesssere i11voItherzU.N.R.I.A.A.,Vol. XXIX, p. 172,
para55.This awarwasrendered in Frend~andPortugueselanguaTht.:assage
qnotedwaslaken from the ErrgIishvethat ~vpublished in Irr~e~mulgal
lWnierioVoI.251485,p.279. The same award,soNicaragua stressesdecides that

"A b comissunce Trib~fTaIilnbjamah

comidkrre' Q ZZpq~e qzi'mtln tit?ces
inslaamen& air alom aflrihi ti i'wn de
signa~niresunesouverainefi en meP-sur autre
chose queles eaux territoviaiescommunkrtrent

admises ...(T]ouiindiqace qtreces deux Bats
[kt France el b ohg gal] n'ontpas entender
itablir me fronfiere'maritime gknirale enire
leurs possessions... Elles onr seulement

indipti ...~~138es iles ~7ppaHiendraientau
Portugal...

In ori rase, however*ever~rthin goes indicate that the

Partiesdid have the intention to estabIish a maritime
divisionbetween rheirterritorieT.he &maw prepavatoires
do referto the dividing line of thwaters (linesdivisoria
de lasaguas) and to the demarcationof the dividing line

(dmarcacidn de la linendivisoria). Far from supporting
Nicaragua'sview, this precedentsupports thecharacter of
the82" W Meridianasa maritime boundary.Furthermore,
as shown, the subsequentpracticeof the Parties so

confirms:Colombia eontinued to exerciseits wvere ignty
andjurisdictiontothe eastof the82" W Meridian,included
it asthe boundary betweenboth countries in its official
maps (Seee.g.,MapsNos. 4- 11)sincethe yearimmediately
following the exchange of ratificationinstrumentsof the

1928Treaty, and continued todo so in severalsubsequent
offrcialpublication(i.e.1934and I944 editionsof "Limits
of the Repubiic ofColombia") without objections from
Nicamgua.

"TotheknowldgcofrhTribmf, wrrmver considerathetimthal aoft b
lrwtiwgrant4 maritimesoverentyny03'thsignatoroveranythingmcepthe
[FrancandPortugal]hadno intencstnblisggeneralmaritboundaryctweens
theirpossess..p]hey simplIndicatwhichislanwouldbelongtoPortuga".
U.N,K,I.A..,olXXIX,p. 18paras81-82.Fothe English veseeInternational
LegalMatsrta,ol25, 198pp.287-288. ,.
2.57 It hastobe noted that if neirher the Colombian sovereignty
overthe ArchipeIago of San Andrks nor the Meridian82"

W limit were valid because the Esguerra-Bircenas Treaty
of 1928 were tobe regardedas nulland void, it would then
inexorably follow that no more valid would be the
provision of thesame Treaty recognizing the Nicaraguan
sovereignty over the Mosquito Coast and the two Islas
Mangles (Corn Islands). The dispute between the two
countries and which they intended to settle, andindeed

settledin 1928-1930 after protractednegotiations,would
thus revive more than seventy years latermd the whole
issuewouId nowbe broughtback to squareone.

2.58 TheIegaIfacticsofNicaraguaappeartobethosecfastage-

by-stage retreat: rhe Esguerra-BhrcenaTreaty is not valid,
so Nicaragua argues; ifitis did, its breachby CoIombia
entitledNicaragua tounilaterallydecIareits termination, so
Nicaragua continues; and if it is still force,it does not
ddimit the maritime areas along the 82" W Meridian,so
Nicaragua goes on.

2.59 This retreat, howeverdoes not stop here:there isa lastleg
to i- an extraordinaryone, at that: the limiton thesea is
regarded by the Court as running along the 82" W
Meridian, so theNicaraguan Memorial asseds,

"...this definition only bears upon he
ArchipeIago itseIf and has no bearing
whatsoever to the North or South of the San

And& and Providencia ArchipeIago which at
most Iies between parallel IsO10' and
13'25'; that is the stretch between the
Albuquerque Cays and the Island of Santa
Catalina. Southand north of these limits,the
1928 Treaty as interpreted by the 1930

Protocol ofExchange of Ratifications is siIent and can be of no use to delimitingthe
respective maritime jurisdicfrons of the
Parties. Thereforeevenif the Treaty were
found to be valid and were found to have
establish aedmaritime boundary, which

Nicaragua does nor accept,the Iimitstothe
south of the parallelof 12"IU'N and tothe
northofthe paralIelof I3O25'N must in my
case be decidedby the Court in accordance
withgeneral rulesofthelawofthesea,"I3'

In other words,if the court were to accept the 82'W
Meridian asthe limitintheseas determinedbythe Parties
in 1928-1930,thenitshould atleas-so Nicaragua argues-
restrictthextentofthisagreedboundary to a shortstretch
- approximately7' 5 miles(140 kilometers).Beyond this
shortstretchso Nicaragua maintains,tothe north aswell

as ro the south, therewouId not.be any contrxmally
defined Iimitintheseas,and the "generamlesof theIarv
of thesea"wouIdhegoverning.

260 Thisargumentisdifficult 10unde~and, andeven n-ro~e
accept.Nicaragua'asttempttolimitthegeographicalextent
of theArchipela gf$an Andr6s to thecentralsectionof

that Archipelagoand to purport torestricthe extent of
agreed maritime boundary along the 82" W Meridian to
thatsame section,igeographica h ityricallyanlegally
incorrect(seeparas.2.25-2.28,above).Moreover,while it
istrue that thprovisionregardingthe82"W Meridian in
the Protocolof Exchangeof Ratificationdoes not assign

any northernor southernlimito rbeeffectofthe Meridian
as a maritimeboundary, it isobvious,hawever, thatthe
maritime boundary constitutedby the.Meridian,whi Ieit
certainlycannotplay arule asa limit intheseasbetween
Colombia andNicaragua up totheNorthPoleand down to
the South Pule, playsthisrole from the tri-poinin the North where it, intersects with the maritime boundary
between Nicaraguaand a third State (Honduras)tothe tri-
point in the South where it intersects with the maritime
boundary between Nicaragua and another third State
(Costa-Rica). Thus, the whole of the maritime boundary
agreed upon by Colombia and Nicaragua runs along the

82"W Meridianbetween definite points to the North and to
the South.

2.61 More importantly, the Nicaraguan theory is belied by other
delimitationagreements in the region.The 1986 Treaty
between Colombia and Honduras, which is in force, refers

to the 82"W Meridian far tothe north of13'25' (seepara.
2.59, supra).In fact, poin1 of the maritime boundary it
determines between Colombiaand Honduras is definedas
lying on this Meridian athe latitudeof 14" 59' 08" N -a
latitude clearly to northof whatNicaraguaargues isthe
northernmost limitofthe 82"W boundary.The lineM-Lof

the 1976 Treaty between Colombia and Panama, which is
also in force, determinethe maritime boundary between
bothcountriesas running along the parallel olo1N. There
exists, thereforapatternof delimitation agreements in the
region which restson theassumption of the vaIidiry and
effectiveness of the 82" W Me~idian Iimit between

Colombia and Nicaragua as estabIished by rhe 1928
Esguera-Bhcenas Treaty and its 1930 Protocol of
Exchange of Ratifrcarions. What Nicaragua requests the
Court todo is tounsettle thiwhoIe patter onagreements
and maritime delimitations.

2.62 In light of the above, it appears that the maritime limit

berweenboth countries was defined by agreement between
theparties in the 1928 Trealy and iProtocoIof Exchange
of Ratificarions o'1930. The 1928 Treaty and its 1930
BrotocoI were in forceon 30 April 1948, the date of rhe
concIusionof the Pact of Bogoti. This means thatthe
matter of rhe maritime delimitationalso fallsunder the provisionsof Article VIof thePact, that is tsay: (a)the
matterwas settled byarrangement between the Partiesand
governed by afreaty,and fZ5thattreatywas in forceon the
dale ofthe Pact'sconclusion,

V1I. Basis off he 1928- 6930 SettIernent

2.63 The above accountestabIishesthat:

faf Tilesettlementreached in 1928foilowed the balanced
proposaI made six years earlier, andformalized in
March 1925, by Colombia, that is to say, the
acknowledgemen bt each Partyof fhe sovereigntyof
the other over the territorieswhich the latter

effecfively occupied-the Mosquito Coasf and the
IsIas MangIes (Corn Islands) as Nicaraguan, rhe
Archipelagoof San Andr6sas Colombian.

fb) Nicaraguarecogniz anddagreed thatsovereigntyover
the caysof Roncador, Quitasuefio and Semana,
constituting partof the Archipelago, was a matter

scleIybetween Colombiaand 81eUnitedStates, to the
excIusiunof Nicaragua.

fc) On Nicaragua's initiative and proposal the provision
regardi ngeridian 82" W, which was agreed upon
after negotiations betweethe parties witha view ro

establishingthe boundary between thetwo countries
and puttingan end to thecontroversy"forever",para
siempre,was included inthe Treaty.

(d) Tn both capitals the Treaty's ratification followad
carefuland thoroughdebatein thenationalCongresses. (e) These debates do not leave the slightestdoubt as to
the intention of both Parties to regardthe Treaty as a
final and complete settlement of all territorial
disputes between them. In both countries the Treaty

was intended to, and understood as, putting an end
once and for all to the dispute which had arisen
fifteenyears earlier(Paru que la cuesti6n quede de
una vez, terminadapara siemprel 4").

@ This was soon seaas well asonland, as is evidenced
by the reference, in the padiamentary dehate in
Nicaragua, to a 2ineiadivisoria de las aguas. To
assert,as Nicaraguadoesin its Memorial, that"it was

not the purpose of eitherthe Treaty orofthe Protocol
of Exchange of '~atificationsto delimit threspective
maritime areas belonging to the Parties771,1that
"neither the Treaty of 1928, nor the Protocol of

Exchange ofRatifhitions of 1930 include the word
LIim', or 'boundary7, or 'border'"142; that,
consequently, "by no means do either of' these
instnrrnents define a boundary between the
~arties"'~~;or to purport to restrictthe extent of

agreed maritime boundary alongthe 82"W Meridian
to a segment defined by the central section of the
~rchi~elago'~~, runs counter to the explicit
explanations given by the Nicaraguan Government
and accepted by Congress during the debate prior to

ratificationinManagua.
By agreeing to include, in the 1930 Protocol of
fg)
Exchange of Ratifications,the provision -afterwards
reproduced by each party in its domestic

Annex8:Recordofsession XLIX of the Chamber of the Senateofthe Nicaraguan
Congress,Mar.1930.La Gaceta, DiarioOMociXXXIV,Ma~ragua,D.NNo. 48, 7
1411930,pp.777-779.
14Ibidp. 171para.2.244.75,para.2.249.
14Ibid.,p.1para2.237.
l4Ibid.,pp.176-7,para 2.253. promulgation- that"theArchipelagoof San Andres
and Providencia, which is mentioned in the first
clat~sof the referreto Treaty,does not extendwest
ofthe 82 GI-eenwichmeridian." Arch@i&iago de
San Andh y Pmvidencia que se mencium en la
clbusuh primem del Trcatadoreferi do se extiende

a1oceidente del meridian0 82 de Greenwic h'1the
Partiesby the same token decided, necessarily,that
the rights of Nicaragua did extendutoMeridian 82"
W - inother words, thatthisMeridian would be the
boundary between both countries.

(h) Fifty years elapsed. without arty chaIIenge by
Nicaragua to the vaIidityof the Esguema-Bircenas
Treaty. In its judgment of 1960 in the case
concerning the~rbitpai award made by the King of
Spain on 23 December 1906 the Court found that
"Nicaragua'sfailure traiseany question with regard

to the validity of the Award for several years ...
debars it fromrelyingsubsequently on complaints of
nullity"'45.In that case Nicaragua had waited six
years before raising the question of the valofthe
award;here, Nicaraguahas purportedto chaIIengethe
validitof the 1928 Treatyha1facentmy later."

VITI.Conclusion

2.64 In view of the considerations set oin this Chapter,,and
bearinginmind in particular

i
(a} that the Court has already held that, when an

Applicant invokes both the Pact of Bogota and
Optional Clause Declarations, it is the Pact of
Bogofa whichgoverns;

I45
I.C.J.Reporfs196213-214. ($1thatthe Pactof Bogoti must be readas a whole and
not selectivelasNicaraguadoes;

(c)that thesovereignty over the Archipelago of San
Andr6 and the course of the boundary between
Colombia and Nicaragua are matters settledby the
Esguerra-Rarcenas Treaty of 1928 and itProtocol
of Exchangeof Ratificationsof 1930, and thus are
matters settled and governed by anarrangement
betweenthe partiesand atreatyin forceonthe date

of theconclusionofthe Pact of Bogoti;and

fd) rhat ArticIe VI of the Pact stipulates that,
consequentIy, on each of these grounds, A-ficle
XXXI"may not be applied",

the Court is, byvirtue of Articles VIand XXXIV ofthat Pact,
"withoutjurisdiction thear thecontroversy" raisedby Nicaragua

and has to declare the controver"ended", CHAPTER III

THE DECLARATIONSOFCOLOMBIAANDNICARAGUA
UNDER THEOPTIONALCLAUSE DONOT AFFORD THE
COURTJURISDICTION

3.1 The Application ofthe Republic of Nicaragua against the
Republic of Colombia filed on 6 December 2001

maintains,as analternativetitlof jurisdiction, that:

"In accordancewith the provisionsof Articles
[sic] 36,- paragraph 2, of the Statute
jurisdiction also exists by virtue of the
operation of [the] Declaration of the

AppIicantState dated 24 September 7929 and
theDeclarationof Columbiadated 30 October
1937."'~~

The merits of that contention will nbe addressed.

I.Jurisdiction under fhe Pactof Bogota is Governing and
Hence ExcIusive

As stated earIier (Irrtroductionparagrap h), Nicaragua
bases its Applicationnot onIy on Article 36, paragraph1,
ofthe Statute and ArticleXXXI of the Pact of Bogoth, but
also on Article 36, paragraph 2, that is to say, on the
operation of Nicaragua's Declaration of 1929 and

Colombia's Declarationof 193714'.Nicaragua, however, is
silentabout thewithdrawal by Colombia of itDeclaration
prior tothe filing of Nicaragua's Application. Nor does
,Nicaragua deal with the relationship between these two
alleged titles ojurisdictionon which the Court itselfhas

I47ppIicaiionofNic~rca,ara.I.
Ibi,para.;Memorialaftiicarilgu1-2pa-.3. specifically ruled in the case of the Border cind
Tran.rhrder Armed Actions, Jurisdiction md
Admissibilitybetween N icsraguaand ~onduras14'.

3,3 In that caseNicaraguareliedon exactlythe sametwotitits
of jurisdictioas if doesin rhepresentproceedings.in the
Court's own wordsin thacase*

"It is, inshort,claimed by Nicaragua that
thereexisttwo distincttitleofjurisdiction.t
assertsthattheCourtcould entertainthecase
both on thebasisof ArticleXXXT of thePact
ofBogota and onthe basisof thedeclarations

of acceptance of compulsotyjurisdiction
made by Nicaragua and Honduras under
Article36of the~tatute."~~'

Faced with theseNicaraguan claims,theCourt stated that

"Since,in relationbetween the State pasties
tothe Pact ofBogoti, thatPact is governing,
the Court will firstexamine the question
whether it has jurisdictionunder Article
XXXI ofthe ~act."'~O

3.4 "mhe commitment in Article XXXJ [ofthe Pact of
Bogot& ].., [so the Courr ruled] is an autonomous
commitment, independent ofany other which the paties
may have undertaken ormay undertake by depositingwith

the United Nations Secretary-General a dtclar-ationof
acceptance of compulsory jurisdictionunder ArticIe 36,
paragmphs 2 and 4, of the ~tatute" I'~ ~,o itdecided,
"independent of such decIararions of acceptance of

1M Mer nnd TronsbadAmd Acrlon(Uicaragv.Hdurus), Jusi,~diarid
Admissibil.CJ Report51988.
14ibid, p.82.2hLa.
I5ibld.p.8pam27.
15Ibidp,85pam 36. compulsory jurisdiction as may have been made under
Article 36, paragraph 2, of thk ~tafxte"'~~.Consequently,
whether the parties in a case beforrhe Court have, or have
not, deposited such decIararions,if rhey are partiesto the

Pact: of Bogoth, it is the Pact of BogotQ which is
commanding:

"The commitment in Article XXXI applies
ratione materiae to the disputes enumerated
inthat text;itrelates rationepersonae to the
AmericanStatespartiesto the Pact;itremains

valid rcrfionetemporis for as long as that
instrument itseIfremains in force between
those ~tates.'53

3.5 This is so regarding both the provisions in the Pact

conferring jurisdiction upon rhe Court and the provisions
limitingand circumscribing this jurisdictionThis is why
theCourt, immediatelyafter having laid down theprinciple
of the autonomous and self-contained character of the
jurisdictional provisionsof thePact of Bogot$ added that

"some provisions of the Treaty restrict the scope of the
parties'commitment" and referred, in particular,to the
provision inArticleVI concerning "matters already settled
by arrangement between the Parties... or which are
governed by agreements ortreaties in forceon the date of
theconclusionofthe present rea at^"'^^.

3.6 Therefore, even if Colombia had stillbeen bound by its
DecIarationof 30 October I937 when Nicaragua filed its
Application -quad Eon- the Pact of Bogot6 -the lex
specialis- would stiII be governing; the Court would stiiI
have to "declare itself to bewithout jurisdiction";and the

controversy would stilhaveto be "declared ended".

Bordeand TransborderArmed Actiflicaraguv. Honduras),Jurisdiction and
Admissibili~ 1.C.JRe1988.p.88,par41.
Ibidp.84,para.34.
15Ibid.p.84-85,pa35.3.7 The Court held thatas between the Pactand the Optional
Clause,jurisdictiounder thePactis "governing",thatisto
say, is commanding, determinative and conclusive. It
foIIuw~ thatconsiderat inioneseproceedin ofwhether
thereisa distinctandalfmative basisofjurisdictiounder

the Optional CIarrse isinconsona wnth the governing
effectof rhePact of Bogotk Itcarnot be concluded that
she pertinentprovisions 'of the Pact of BogotSlare
"governing"whilealso cuncluding thatjrrsidiion shalbe
determined ina particularcase not by those governing
provisions but by the distinctiveterms of declarations
whichmight be inforceunder theOptionalClause.

3.8 Thus, whether theCourtregardsColombia'w s ithdrawalof
itsacceptanceof theOptionalClause as validand effective
or not, the resultis the .same: the Pact of Bogota is
governing, and under zhe'Pact the Court has only the
jurisdictiondefined by the Iimitsof Az-ficlesVI and
XXXIV.

3.9 Cdombia could, tl~esefure, limit its discussioof the
jurisdictionaissuestothe ubjectionbased on Articles VI
and XXXTV ofthe Pact of Bogotk But sinceNicaragua
maintains a title of jurisdictiobased on the Parties'
Declarations under the Optional Clause, Colombia will
nevertheless show that the Court's jurisdictionin these
proceedings cannot be based on theParties7Declarations

underArticle 36ofthe Stamte.11.By Reasonof the Dispute between Nicaragua and CoIombia
having been Settled and Ended,there is noDisputebefore fhe
Court to whichJurisdiction under the Optional CIause
DecIarationscould Attach

3.10 It hasbeenshown that byvirtueofthe provisionscontained

inArticles VI and XXXIV of the Pact of Bogota, ifthe
Court declares itself to be withoutjurisdictionhear the
controversy, "suchcontroversyshall bedeclaredended". In
the submission of Colombia, the Court is bound to so
declarepursuant tothe analysis of thprevious Chapter of
thesePreliminary Objections. The result is that there is no
controversy beforethe Courtto which the Optional Clause

canbe heId toapply.

3.17 A dispute which incontestably was "already settled by
arrangement between the pa-iies", a matter which
incontestabIywas "governed" by a treaty inforce on the
dateof the conclusionof the Pactof Bog& cannot, bythe
veryterms of thePact ofBogota which Nicaragua invokes

as a titIe of jurisdiction, remaina dispute within the
meaning of Article 36, of paragraph 2, of theStatute. A
disputecannot be settledand ended and yet at thesame
time be a dispute capable of adjudication by the Court
pursuant to jurisdiction accorded under the Optional
Clause.

111.In any Event,there is no Jurisdiction under the Optional
CIausebecause Colombia's DeclarationWas notin Force on
the Day of the filing of Nicaragua's Application

3-12 Inany event, jurisdiction of the Court pursuanttoArticIe
36,paragraph2 ofthe Statute andthe cited DecIarationof
Nicaragua and Colombia thereunder does not exist,given thattheDeclarationof Colbmbia of30 October 1937 was
terminatedby Colombiabeforethe filingby Nicaraguaof
itsApplication.

3.13 On the date of the fiIingof Nicaragua'sApplication,

Colombia's Declarationunderthe OptionalClausehad to
have been inforce foj~rrisdictiorftheCourt toanach.
On 5 December 2001, Colombia notified the Secretary
General of the United Nations the terminationof its
Declarationof30 October 1937,"witheffect hm thedate
of this notification", thais with immediate effect
Colombia'sterminationof itDeclarationwas informedto

all the member States of the United Nations on the
followingday,as itappearedpublished inthe "Journaof
the UnitedNations" No. 20021237 of 6December 2001.
Not a single State has opposedColombia'stermination
withimmediate effect.TheApplication ofNicaragua was
submittedtotheCourt on6 December 2001.

A.TERMINATI OONAN OPTIONAL CLAUSE DECLARATtON MAY

BE EFFECT1VE ON NOTICE

3.14 The question may be askedwhether theterminationof
Colombia'sDeclaration under the Oprianal CIause was
effaive in respecofNicaragua'sApplication.Colombia,
asanyother State thabasentereda unilatml Declaration
witk notemporallimitshad therighttowithdraw itatany
time asitdid on 5 December 2001. This holds true with

regard toevery StateParty to theStatuteof the Court,
includingNicaragua.

3.15 In respect of Declaratiomade under theStatuteof the
Permanent CourtofInternationalJustice,andmaintainedin
forceforthe InternationClourtofJusticebyvirtueofthe
terms ofArticle 36,paragraph5 of itsStatuteof which

Colombia's1937 Declarationwas one andNicqua's of
1929 is anotherShabtaiRosennein his treatiseobserves
that: "..,it would be singu1arIyunreal to applyto
theman inflexible mIe saidto derive fromthe
genera1 Iaw of treaties and disaIIowing the

right of unilateral denunciation. The
dissolution of the League of Nations andthe
Permanent Court, the establishment of the
UnitedNations, and the far-reachingchanges

in the international community and its
organization which have followed are
sufficientto allowthose States to withdraw a
declaration made in those far-off days when
the compulsoryjurisdiction was initsinfancy,

and which is today appIicabIe only by virtue
of Article 36, paragraph 5,ofthe ~tatute""~.

Rownneconcludes that: "A title ofjurisdictionwhich has
terminated before the proceedings are institutedrvi56o
Ionger in force,and reliancecannot beplaced upon rt .

3.16 In its Judgment in Militaq and ParamilitaryActivities in
and against ~icara~ua't~ he,Court rejected the United
States argument that, because Nicaragua's declaration
underthe OptionalClause of the Statuteof the Permanent
Court of InternationalJustice was of indefiniteduration, it

could be terminated by Nicaragua at any time with
immediate effect and that,reciprocally, the United States
could terminate its declaration atany time with immediate
effect. The Court held that;

"But the right of in-rrndiate reminarion of

declarations with indefinite duration is far
from established. It appears from the
requirements of good faith that they should be
treated, by analogy, according to the law of

treaties, which requires a reasonable time for

S. Rosenne,The Laand Practiceof the lnternatl ourt, 1920-1996,11,.
Jurisdictatp.820.
'57Military and ParamilitaryActivities in und against NicaraV.Unitedragua
StatesJurisdictionandAdmdssi, .C.J.Reports 1p.392,420-421. withdrawal fromortermination of treaties that

containno provision,regarding the durarion of
their va~idi~y."'~~

3.17 This holding of the Court,as indeed itsholding thar ithad
jririsdictiontu entertainthe Application filed by Nicaragua
on the basis of Articles 36, paragraphs 2 and 5, of the
.
Sratute of the Court, was not unanirnous.Judge da'^',
Judge Je~irgs'~~, and JudgeSchwebei 16' differed fromthe

Court's holding that a "reasonable time" is requiredfor
withdrawal from or termination of a dedaration under the
Optional Clause,and maintained that neither the practice of

States under the OptionalClause nor consideration of allied
questions in the International Law Commission'sconsideration

of the law of treaties sustained the Court's position. The
Special Rapporteur of the InternationalLaw Commission

onthe Law ofTreaties,and laterJudge and Presidentofrhe
Court, Sir HuniphreyWaldock,concludedthat State practice
under the Oprional Clause as well as under treaties of

arbitrarion, concil iafion and judicial serilement, supports
teni~mtionunnoticetGZ S.tudentsof theCorn'sproceduresand

jurispiïldencehaveqirestioned the Corn'sconw

'" MiIiiqyand Prrrairril~lnvAciivrlr~s in lrnd hiicavagu(Nicarciguv. Unifcd
States), J~<rislandiAdrnissibility, Reborls1954.p.420, par63.
'" fbidat pp.5O,511.
IboIbidPI).46,547-553.
16'Ibid.pp.620-628.
Ih2YenrbookoftheInternafionl awCo~~pniissi,963Vul. II,p68.
'" See S. Rosenne, The Law and Practicc of the International Court, 1920-1996,Vol. II,
Jurisdictionp.819,as wellasOda, S.:"Keservationin the DeclarofiAcceptanceof
theOptional Clausand the Periodof VnlidiOCThosc Declarations: The ECfectof the
Shultz [,etter''BrYelrrBookofInternational LaVol. 59 (1988pp. 1,18;L.Gross,
"CompulsotyJurisdiction under ihc Optional,Clause:History aPractice", iL.F.
Damrosch, TheInterrraiionalCotrrt ofJinracCmssroc~ds1987,pp. 19K. 30; P. H.
Kooijmansiwritiirg hefore his eleclo theCourt ),ha IoIIçd ttrc Deaih-Be11for
CornpriIsat~urisdictiwSomc Crimments011theJuJgment of the InrenrationaICourt of
JusliceirIiCaseclincenii~rgMiIiraiid ParamiIitaryActivitiesin andaga1ns1Nicaragua
(JtrrisdicriofliCounand Ad~nissibiIiyfiliapplimriori)iReaiisminLw-Mnking,
Essnyson inler?ralinlaw inflnnour ojJl'iiI~ripliagefi,1986,p71 fiand 77;D.
Grcig,'-Nicaraguaand theU~ritedS~ates:Confrontarioover the lurisdiction of the
IniernatinnalCor~r&-irisYcarBr~okuJ.llnrérnc~~Law. Vol.62: 199;andF. Orrcgo
Victina,"The LegaINature of thc Optional Cnndrrhe Righi ofStatc tWithdrawa
Declaralion Accepting fheCo~npulsuryJnrisdicrliInternaiionCoun of Jr~stice",in
LiberAi~~irorrntrlgShrgeruOrlu,YoI1,2002, pp463,463-478. B, THE COURT'S REFERENCES TO A '!REASONABL EIME" WERE
0Bfl.R DICTA

3.18 The passage of the Court's Judgment requiring a
"reasonabletime" for withdrawal fromorterminationof an
Optional ClauseDeclaration ofindefiniteduration was cast
in hypothetical and tentative terns, suggestive of crbiter

dicurn.

3.9 Inany event, inMlilafy and faramitifary Acfiviricsinand
against Nicarug~~,that observation was not a necessary

basisforthe Court'sdecisiononthe point. The Court rather
attached decisive weight to what it characterized as the
"most important question",whether the United Stateswas
freeto disregardthe clauseprovidingfor six months notice

which ithad appended to its ~eclaration'~. It also held
thatthe reciprocityinvokedby the UnitedStatesconcerned
the scope and substance of theDeclaration's cornmi ments
and not the formal conditionsof theircrearion,durarionor

extinction.SirnilarIywhen the Court in its later Judgment
in the case of Land and Maritime Boundmy bekeen
Cameroon and iVigeria1 q6'oted the "reasonable time"
passage from Militar and Paramili~uiy Activities inand

agains Nticaragua, the Court was not considering that
question but rather the distinct issueof whether such a
temporal consideration governs the taking effect of the
deposit of a de~laration'~~t;hus again the reference was

obiir dicrum'" and,as such, is without precedentid effect.

3.20 Trisirnpoflanrto recaII that Colombia inot in the position
in which theUnited Stateswas in 1984 or in which Nigeria

MilitanndParamililaryActivities in and against Nicaraguu (Nicaragua v. United
States),JurisdictionandAdmissibilily,6C.J.Re19,para61.,p.4
165Land and MaritimeRounddy between CamandNigeria (C~merovNigeria),
16Ibid.,parasff.tions,I.C.J1998,p295, para.33.
Seee.g.,OrregoVicunlotcil.p.475andJ. G.Merrills,'The OptiClause
ReuisiteinBri~iYearBookoffn~ermtionalLVol64,1993,pp. 197,208. was in 1998. ~o~o~nbia' Dieclaration hano six months
nutice proviso, nor do6 ' Colombia seek to invoke a
temporal miprocity against Nicaragua. TR the instant
prucedings, there is no :question abut the temporal
conditions of the-deposit'of a Declaration underthe

OptionalClause thawere i.vokedbyNigeria.

Statesthat doadhereto theOptional Clauseof theStatute
generally attach multipl' and significantreservations,
includingthe facil ifterminationor variatioonnotice.
As it ithedictum advanced bythe Courtwould onIyapply

to thesingularsituationof.a haldm Statesthat made
Deckations of indefmitedurationunderthe Statuteof the
Permanent Courtduringtheinter-wayeas, whenthere were
high hopesfor thegradua nstitution throuthe Optional
Clauso efauniversaslystemof compulsoryjurisdictio.he
Court's dictum places thosefew Smes at a significant

disadvantv as-h-visother Statesthat have either not
adhered tothe OptionalClause atall orthathave adhered
withDeclarationsthaareterminableorvariableonnotice.

C. NICARAGUAANDCUMMBIA INPRACTICE HAVE TR€ATED
THEIR DECLARATlONS AS TERMINABLE ON NQTlCE

3.22 Practiceshows that both Colombia and Nicaragua have
interpretetheirrespectivDeclarationsunderthe Optional
Clause aspermittingtheirwithdrawaloramendment atany

timewith immediateeffect.' ,

3-23 CoIu111b nitiallacceptedthecornpuIsory jurisdiction of
the Permanent Court of InternationalJustice by a
Declarationof 6 January !932. AltI~ougthatDeclaration
was of inclefmitduration,on 30 October 1937 Colombia

replaced itwitha new one -with immediate effect- that included a reservation appIying itonIy to disputes arising
outof factssubsequentto 6 January 1932.

3.24 The terms of the newDeclarationfiIed by Colombia on 30

October 1937 thus provide that, "[tlhpresent Declaration
appliesonlyto disputesarisingouroffacts snbsequent to6
January 1932". Termination of the 1932 Declaration took
immediate effect; no question of the elapse of a

"reasonabletime" before ittook effectwith its replacement
by the Declaration of 1937 arose. No State, including
Nicaragua, protested or reserved its position in respectto
Colombia's termination of its 1932 Declaration with
immediate effectand itsreplacementby the Declaration of

30 October 1937. No State, including Nicaragua, has
protested or reserved its position in respect to Colombia's
termination of its 1937 DecIaration with immediateeffect
on 5 December200 1.

3.25 The practiceofamending Declarations entered under the
OptionaI Clauseof che Statuteof theCourt with immediate
effect was recenrly followed by Nicaragua on October
2001. In fact, on 24 October 2001, Nicaragua amended
with immediate effect the Declaration under the Optional

Clause that ir had entered in 1929. This amendment is
tantamount to terminationaccording to the Court'sviewin
Military and Paramilitary Activities in and against
~icaragua' 68.

3.26 The Nicaraguan Government notified the Secretary-
General of the United Nations and through him, the States
parties to the Statuteof theInternationalCourt of Justice,
of the inclusion of a "reservation made to Nicaragua's
voluntaryacceptanceof thejurisdiction of theInternational

Colr~tof Jusrice"providing:"Nicaragua will not acceptthe

Sfa~es,ttrisdiciiAdnissibiIi~y,LC.J.Xe1984pp4r9-42,para. 5..Cl~iird jurisdictionor competence ofthe TnternationalCourtof

Justice inrelation to any matter or claim based on
interpretationsof treaties or arbitralawardsthat were
signed and ratified or made, resp~ively, prior fo 31
December 1991"'? . ,

3.27 Thus, Nicaragua excluded -with immediate effect-&om
the Court'sjurisdiction, the matters orclaims based m
interpretationsof mies or at.biml awards that were

signed and ratifredor rnide, respecrively,prior to 3 1
DecemberI99 1.

3.28 Later, the United Nations Secretary-Genera l irculaa ted

Depository notificationdated 5 December2001, indicating
thatNicaragua's reservationrefened to matters or claims
based on interpretationsof treatiesor arbitmlawardsthat
were signed and ratifiedor made,respectively,prior to 31

December J901. It is understood that thiscorrection also
had immediateeffwt.l7O

3.29 Asnotedabove,Colombia has sirniIa corIstrueditsIegaI

posirion in respect of its 2937 Declaration under the
OprionaI Clause, having terminated it with immediate
effecr on 5 Ilecember 2001. In the submission of
CoIornbia, this concordant "subsequent pracrice" of
Colombia and Nicaragua cmstituks, between them, a

coinciding conduct regardingthe interpretation of their
obIigationsunder theOptional Clause, coinciding conduct
whose legal efkt theCourt is bomd totake intoaccount.

'MSecAnnex 23IlnizNationDcposilorNotifiatioNicaraguaseservationto its
kclaratioofacceptancofthemmpulsoy jurisdictdotheInternatioCourtof
Justicdatc7Nov.2001.
DeclamtiuofacceptanNcethecompulmryjurisdictofthe Internationartofs
Justice,datDec.2001(Keissucd). W. In any Event,if Found SoBe in Forte, theTermsof
CoIomMa's 1937 Declaration ExcIudeNicaragua's Claims,
bnse the allegedDisputearises out uE E7acfprior to 6

January1932

3.30 If,contrary so theposition of Colombia,the Courtwere to
find that both the DecIarationsof Colombia and of

Nicaragua were in force an the date of the filing of
Nicaragua's Application, that Application would
nevertheless fall outside the scope of Colombia's
~eclaration"' andtheCourt would lackjurisdictiontopass

upon the merits of the case, due to the effect of the
reservationwhich cxcludes disputesarising out of facts
prior to6 Jmuary 1932. The1937ColombianDeclamion
was filed for the sole purpose of embodying that

memation, and iisforthe Court togiveeffectto it,

3.3Z The facts out of which the aIIegeddispute brought by
Nicaragua againstColombia arisesare factsthatcame into

existenceprior to6 January1932. Nicaragua'sApplication
of 6 December 200I maintainsthat, in1821,the dateof its
independence from Spain, thegroups of islandsand cays
fuming thekchipdago of San Andresappertained to the

newly formedFederationof CentralAmerican Statesand
that,afierthe dissoIutiunofthe Federation in 1838,these
islandsand cayscameto be part ofthe sovereign territory
of ~icaragua N'ca~ragua contendsthat the 1928 Tmty

'lacked legal validityand consequently cannot provide a
basis of Colombian title over the Archipelago of San
~n~s'~~.Nicaragua furthemaintainsthat the problemof
title avethe islandsand cays formingthe Archipelagohas
been compounded by what it depicts as Colombia's

constructionof the 1928Treaty sothat"thetitle itclaims

"Ime texofCol~mbia's937Declardtreadafollows:"lRepublicof Colombia
mmgnim; compuIsorips@O and withuspeciaagreeme*on conditiof
reciprocinryarimw anyothwe mpting thrameobligarih jurisdictionof
thc Pmnt CotrtfIritemnkmI Jus,accordanwid1Artic26otheSra~mec
TheprcrtWlarafionappIison1dispurarisioutoffacsubsequeta6 hmq
1932"
I"AppIIcafqffli- para. 2. givesitsovereigntyoveranimmense parof theCaribbean
Seaappertainingto~icara~a""~.

3.32 Colombia conteststhe claim of Nicaragua that the

Archipelago of San Andtesappertained toNicaragua in
1822, 1823, 1838 or at-any other time, In fact, the
A~~chigeIag hasbeen under firand exclusivesovereignty
andadministrationbyColumbia since independencefrom
Spain.Cokmbia hasexercised 'itso't~ereignynd carried
out its governmentalau~hosityand administsa n rhn
Archipelagofor almost two cennries and in thatlong

period Nicaragua has exercised neither, Claims of
Nicaragua to sovereigntyover the Archipelab getween
1913 and 1928 were rejected by Colombia, and were
disposed of -definitively- by the Treaty Concerning
TerritorialQuestions At Issue Between Colombia and
Nicaragua signed at Managua, 24- March 1928,
"...D]esirous ofputtinga'nend to the territoridispute
pending between them, ..."(as the Treaty's Preamble

recites),bythetermsof ArticleI of thTreaty,Nicaragua
recognized'"he fuland entiresovereigntyaf the Republic
of Colombia over theislandsof $an Andres,Providencia,
Santa Gatalinand alltheotherislands,isletandcays thar
fum prf of the saidArchipela ofoSan And&''* and
Colombia made a similar recognition with regartorhe
Mosquito Coast and the lsIas MargIes (Corn Islands),

which were pafl'of the controversas well. The Psutoml
of Exchangeof Ratificaionsofthe Treatywas signedon 5
May 1930, estabIishing the 82° W Meridian as the
boundary betweenColombia and Nicaragua and bringing
the 1928Treatyintoforce.

3.33 These are the essential factout ofwhich the alleged
disputebrought beforethe Court by Nicarag uaoseand
none ofthem is subsequent to 6 January 1932. On the
contrary,theyareall facts antecedentothatdate. Bythe
terns ofitsMemorial~ , icka~ua asserttheexistenceofa

I7ApplicorbfNicarc1para.4. disputearisingoutof thosefacts, fitconteststhehistory
of Colombia'ssov&eigntyover the entireArchipela ogfo
§an And&, maintainsthat the Treaty signed in 1928
"IackeB"legalvalidityandhl1enges the effectofthe82"
W Meridianaged upon inthe 1930Protocolof Exchange.
ofRatifiatim,Asa resulof itsxpms mation, Colornbia*~
Declarationof 30 October 1937 "appliesonly to disputes

arising out of facts subsequentto 6 January1932";it
follows that that Declarationcannot furnish a titleof
jurisdiction enablingthe Courtto entertainthe claims
advanced by Nicaragua. It isincontestablthat the facts
that constitutethe heart, indeed the whole body, of
Nicaragua'sclaimspre-date1932.

3.34 CoIumbia'spositionissustainedy them's jtrrispnrdence,
Tke peedent directlyinpoint isthe 1938judgment on
prelimhay objections of the Permanent Court of
International Justicein the case of Phosphofes in
~oro~co"'. Italy brought proceedin agsainst France in

relianceon the DecIarations of both States under the
OptionalClause.The FrenchDeclarationof 193 I accepted
the jurisdictioof the Cuufl in relationto otherStates
acceptingthe sameobligation"in any disputeswhich may
arise aftethe ratificatiof the presentdeclarationwith
regard to situations or facts subsequent to this

ratificatio.'*'7France maintainedthatthedisputewhich
Italyhad submitted to the Court amse with regand to
situationand fact wshichate notcoveredby theseterms.
TheCourtheld:

"Theterms of theFrenchdeclarationlimitthe
scope of Francea 'sceptanceof the Court's
compulsory jurisdiction ratione temporis.

This Iirnitationis twofold.Itdates in the
firsplace to the dateon which the actual
dispmearose. That point isnot,however, the
178
PhosphatesMrmco {My z frmceIPreIimrncObcri- &&pm. 1938.
lX1biatp22./B,fbo.74. subject of the objection raised by the French
Government; the laiter does not, indeeddeny
thatthe dispute arose after ratification ofthe
declaration,..

The second limitation in the declaration
relat os the date of the situations or facts

with regard to which the dispute arises. It is
on this limitationthat the French Government
reliesw11en it contends that the sitr~atioand
facts giving rise to 'thepresent dispute were
prior to the date of its acceptance of the

compulsory jurisdiction -the date hereafter
referred to as the 'ciwcialdate'- and that, in
consequence, the Application of the Italian
Government cannotbe entertained."176

3.35 Italyopposed this view andoffered an alternative reading

ofthe reservation:

"This view is confested by the ItaIian
Government, which maintains that the dispute
arises from factors subsequent. to France's
acceptance of cornpuIsory jurisdiction, first
because certain acts... were actually

accon-rpIishedafter the cmciaI date; secondIy,
because these acts,taken in conjunction with
earlier acfs to which they are closely linked,
constituteas a whole a single, continuing and
progressive illegalact which was not hlly

accomplished until afterthe crucial date;and
lastly,because certain actswhich were carried
out priorto the crucial date,neverthelessgave
rise toa permanentsituation inconsistent with

176Phosphatesihforocco (Itv.France). PrcIirninaryObjections, Judgmenf, 1938.

P.C.I.Series A/No. 7atpp. 22-23. internationallaw which has continued lo exist
afterthe said date..rr177

3.36 TheCourtconstruedtheterms of the Frenchdeclaration in
thefollowing manner:

"The declaration.. by the French
Government.. . isa unilateralact by which

that Government accepted the Court's
compulsory jurisdiction. This jurisdiction
only exists within the Iirnitwithin which it
has been accepted,In thiscase, the terns on
wb ich the objection radione temporis
submitted by the French Government is

founded, are perfectly dear: he only
situations or facts falling under the
compuIsory jurisdiction are those which are
subsequentto the ratificatioand with regard
to which the disputearose,thatisto say,those
which must be considered asbeing the source

of the disputeInthese circumstances,thereis
no occasion to resort to a restrictive
interpretationthat,in caseof doubt,might be
advisableinregard to aclause which muston
no accountbe interpretedinsucha way asto
exceed the intehtion of the States that

subscribed toit.

Not only are the terms expressing rhe
Iim itation ratime tempo~is clear, but the

intention which inspired it -seems equaI1y
clear: it was inserted with the objecr of
depriving the acceptance of compulsory
jurisdictionof anyretsoactiveeffects,inorder
both to avoid, in general,the revival of old

Ibidatp.23. disputes,and toprecludethepossibilizyof the
submission to the Court by means of an
applicationof situationor factsdatingfrom a

period when the State whose action was
impugned was not in aposirion tofme the
IegaI proceedings to which these facts and
situationsmight give rise.'*'78

3.37 As totheFacts,theCourt held:

"...The situationsand the factswhichform
thesubject of the limitationrationetemporis
have to be considered from the pointof view
both of their date inrelation to the dateof

ratificatioand of theirconnectionwith the
birth of lthe dispute. Situations or facts
subsequent tothe ratificatiocould serve to
found the Court's compulsory jurisdiction
only if it was with regar to them thatthe

dispme arose.

..The questionwhether a given situationor

fact is prioorsubsequent to aparticuIardate
is one tobe decided in regardtoeach specific
case... However, in answering. .. it is
necessaryalways to bear in mind the will of
the State which only accepted compulsory
jurisdiction within specified limits, and

consequently only intendedto submit to that
jurisdiction disputeshaving actually arisen
from situationsor facts subsequent to its
acceptance. But it would be impossible to
ahit the existence of such a relatiunship

between a dispute andsubsequent factors
which either presume the existence or are
n~erelythe canfirmarion or development of
113
PkosphotpsMOTUCC (wv v.Frame), Preli~rObjenorps, Jndgm~n~1938,
P.CI.J.,SerA/Bflu.4atpp.23-24. , . ...
I...

earIier situationsor facts constituting the reaI
causes of thedispute.
[.....I

... What the Italian Government refersto as
'monopolization of the Moroccanphosphates'
has been consistently presented by that
Government as a rkgime instituted by the

dahirs of 1920,which.. . have established a
monopoly.. . It contends that this regime,
being stillin operation, constitutes a situation
subsequent to the crucial date, and that this
situation therefore faII wsithin the Court's

compulsory jurisdiction.

The Court cannot accept this view. The
situation which the Italian Government
denounces as unIawhI is a legal position
resulting from the legislation of 1920; .,. In

those dahirs are to be sought the essential
facts constituting the aIIeged rnonopclizatiun
and, consequentIy,the factswhich reaIIygave
rise to the dispute regarding this
monopolization. But these dahirs are 'facts'

which,by reason of theirdate, fall outsidethe
Court's jurisdiction."179

3.38 The pertinence of these seminal holdings of the Court to

rhe currentproceedings iscompeIIing. Thefacts essentiallyat
issue were, in Phosphates ivlMuruccu, the dahirs of 1920;
the factsessentiaIIy ;Itissuearei, nthe current proceedings,
the I928 Treaty and its I930 Protocol of Exchange of
Ratifications. Just as it availedIraIynothing to dIege that,

because the facts at issue had continuing effects,
. ..
PhosphulesinMorocco(haiy v.France), prelim in^^ ObjeJudgment,1938,
P.C.I.JSeriA/B,No.74,pp.24-26. compulsoryjurisdiction obtained,so inthese proceedingsit
can avail Nicaragua nothing to aIIege that, because the
1928 Treaty and its 1930 Protocol of Exchange of
Ratifications have continuing effects, jurisdicrion obtains.
There wouId be no room for any evenmal Nicaraguan
argument that rheCourt has jurisdictionbecause "there is a

continuing and progressive illegalact" that was not fully
accomplished before 1932;the Court rejectedprecisely that
argument as Italy made it.

3.39 Nor is thereroom for anyNicaraguan argument that certain
more recenrdevelopments make the disputeitaIIegessubject

tothe jurisdictioof rhe Court, because such developments
arise out of facts prior to 6 January 1932, i.e., the
concIusion of the 1928 Treaty and its I930 Protocol of
Exchange Ratifications that settled the dispute regarding
sovereignty over certain territories and established the
maritime boundary between the two countries.Just as the
French reservation was "perfectly clear", so is that of

Colombia; and just as theFrench limitation of the Court's
jurisdiction had to be given effect, so must that of
Colombia. In both cases, the limitatio~~of the Court's
jurisdictionwas introduced inorder to prevent the revival
of oIddisputes (an objecrive thatparaIIeIsthe objectiveof
ArticIe VIof the Pactof Bogoti). Just asthe will of France

in accepting compulsoryjurisdictior-rhadtobe respected by
the Court, so must the wiII of Cololnbia in accepting
con-rpulsory jurisdiction be respected by the Court.
Confirmation, afterthe crucial date,offacts anterior to the
Declarations does not sufficeto give theCourt jurisdiction
over disputes arising out of facts anterior to those

Declarations.

3.41) Other cases of the Courtand itspredecessor have deaItwith
the issue of the effectof rileexcIusion from the Court's
jurisdictionofdisputes arising out offacts antecedent toa
specified date. In itsjudgmenton preliminary objections of 4 April I939 in, EIecrviciry Company of Sofia nnd
BUZ~QP~~'", the Cour~ addressed a Belgian decIarationof
10 March 1926 that afforded the Court jurisdiction over
disputes "arising after the ratification of the present
declaration withregard to situationsor factssubsequentto
79181
this ratification.. . The Bulgarian Government
reciprocally invoked this limitationratione temporis to
challenge jurisdiclion.The Parties agreed thatthe dispute
arose in 1937,But Bulgariacontended that,while the facts
complained of by Belgium aIi dated from a period
subsequent to 10 March 1926, the situation with regard to

which the dispute arose datedback to a period before that
date,whenawards of theBelgian-BulgarianMixedArbitral
Tribunal and the formula that they established for
calculationof electricitypriceswere rendered. The Court
did not accept Bulgaria'sview. It held that,"the dispute

between the Belgian Government and the Bulgarian
Government did notarise with regardto thissituation orto
the awards which established it". In the case of the
Eiec&icify Company cf Sofia md Bzltgclriathe CUUIT
would also recaIIwhat it said inthe Judgment of 14 June

1938 (Phosphatesin Mmcco)

"... [tlheonly situations or facts which musr
be taken into account from the standpoint of
the compulsoryjurisdiction.. .arethose which
must be consideredas being the sourceof the

dispute. No such relation existbetween the
presentdispute and the awards of the Mixed
Arbitral Tribunal. The latter constitute the
source of the rights claimed by the Belgian
Company, but they did not give rise to the
dispute, since the Parties agree as to their

binding cl~aracterand rkat their application
gave rise ro no difficrrItyuntil the acts

lSEleclricIryCompanyofSofid andBulgaria (Bulgaria).Judgment,Preliminary
181eclioSeriesA/No. 77pp.64-85.
Objections,SeA/&No. 77,p.81.ulgaria(Belv.Bulgaria),Judgment,Preliminaty complained of... A situation or factin regard
to whicha dispute is saidto have arisen must
be the realcause of the dispute.Jn the present
case iris the subsequent acts with which the

Belgian Government reproaches the BuIgarian
aurhorities.. These are facts subsequent to
the material date. ,Accordingly, the Court
considers that the argument based on the
limitation ratione temporis in the Belgian

declaration isnot well-founded"ls2.

3.41 It isclearthat thisjr~dgment iswholly compatible with that
of the Cor~rtin Phosphnfes in Morocco, on which the Court
relied; thefacts,but not the law, varied.h reaffilming the

rationaleofPhosphatesin Morocco,theCourt held that, on
the facts, the EIec~icip Company case was to be
distinguished, because the real cause of the dispute, the
source of the disputeand the centre point of the argument,

post-dated rather than pre-dated the declaration at issue.
But in the instant proceedings between Nicaragua and
Colombia,the real cause of thealleged dispute, the source
of the alleged dispute and the centre pointof the argument
are the same facrs that were the object of the dispute

definitiveIy sertled by he 1928 Treaty and its 1930
ProtocoI of Exchange ofRatifications, i-e.,they pre-dated 6
January 1932, the date to which the reservation in he
Colombian Declaration ar issue refers. It was with the
conclusion of 'that Treaty and its ratification that the
matters at issue-then and today- between the Parties were

settled.By contrast, as observed by the Court, neither of
the parties in Electrici~ Company ever impugned the
awards of the Mixed Arbitral Tribunal, with the
consequence that the real cause and source of the dispute
then was not the awards' very existence or their legal

value. In the instanproceedings,Nicaraguadoes purportro
impugnthe I928 Treatyand its 1930 ProtocoI.

IS2
13bjec1ioSnresA/B1%.77,p.82.wIgar(BdgiIiY.Bxllgutia),,l&enPieIitninnly3.42 In the case cor~cerningRighfs of Passage over Ifidinn
~errito~y h~e~nternational Coua of Justice passed upon
a preliminary obiection raised by India, in respect of a
reservation iatione temporisto ~ndia'sDeclaration of 28

February 1940 by which itacceptedjurisdiction "over all
disputes arising after February 5th,1930, with regardto
situationsor facts subsequentto the same date"lS4.Portugal
maintained that the dispute arose in 1954, and that the
situationsor facts "arereally nothing but those giving rise

to the dispute" which also dated from 1954'85. India
maintained thattheclaims relafing to passage were raised
by PortrrgaI before 5 Februa~y 1930. As to whefher the
dispute concerned facts or situations prior to the date

present in India's DecIaration,the Court observed that rhe
fkts or situations to which regard must be had are only
those which must be considered "asbeing the source of the
dispute",those which are its "reacause"'"".The Coun had
not been askedfor any finding whatsoever with regard to

the past prior to that date (5 February 1930) and,
consequently,the Indian objectionwas rejected.

3.43 It is clear that thejudgment in the Rights of Passagcase is

consistent with the law as set out in Phosphates in
Morocco. Again, thelaw isconstant,it is the facthatvaried.
In Rights ofPassage, regardless of the date on which the
disprrreactually arose, the facts giving rise it took place
after rhe date mentioned in the reservarion present in

India's Declaration. But in the case brought before the
Court by Nicaragua, the facts thatgave rise to the dispute
over sovereignty over the ArchipeIago of San Andrks and
dated questions took place before 6 January 1932,the date
mentioned in the reservation present in Colombia's

atpp.33-35.assagoveIndim Territoty (Porv.IndiaMeritsI.C.Report1960,
18Ibid .,4.
Ibid,,p1.
ls{bid, p.35. Declaration.Here,the existingdifferencesbetween the
Partieswere resolvedby the 1928 Treaty and itsI930
Protocol.Moreover, what Nicaragua quests from fhe
Court is precisealyfindingthatthe 1928Treaty and its
1930 ProtocoIisinvalidandnullessentiallyonthe ground
ofthe pressureallegeto havebeen exerted bytheUnited

States upon the~ovemrnent of Nicaragua in theyeais
1927-1930, is,,facts predatingtheaforementioneddate,
Such findinisclearlybeyondthejurisdictionofthCourt.

3.44 According totheCourt'sconclusio insightsqfPassuge,
thecriticafactsareonlythosethat relateto the sourof
thedispute,to it"realcause".Inthe instanproceedings,

the source of the alleged disput t, real cause, is
constitutedbythe differencebetween the two countries
regardingsovereigntyoverthe Mosquito Coast, the IsIas
Mangles(Corn Islands),and th1913 claim ofNicaragua
to the Archipelago ofSan Andris, a11of which were
disposedof in1928,andrhe existence ofa treatin force
ratifiedin 1930 that dtfinitiveIsettled thedispute,

resolvingthequestion of sovereigntover the Mosquito
Coast, the Islas Mangles (Corn Islands) and the
Archipela ogoSan Andds, and estabIishina maritime
boundarybetweenColombiaandNicaragua. Clearly,they
arefactspredatin6January 1932.

3.45 A fourth and mostrecentcase of relevanceis theCase
co~rcerningtheLegalitofthe Use ofForce (Yugoslaviav.

Belgiurn) 1nY'.goslavi su'msission jurisdictiwas
based on declarationsfileunder the Optional Clause.
Yugoslavia'sDeclarationhad been depositedon26 April
1999,accepting the Court'sjurisdiction "iall disputes
arisinor whichmayarise aflerthesignatureofthe present
Declaration,with regard to the situationsor facts subseque~~tto this signature..."188.The 1958Declaration of
Belgium accepted jurisdiction "in legal disputes arising
after13 July 1948 concerning situationsorfacts subsequent
tothat date".'8The Courtnoted that, whileBelgium based

no argument on thelimit ratione temporis in theYugoslav
Declaration, the Court must nonetheless consider what
effectsitmight have prima facie on itsjurisdiction in the
case'8 Th.us, in order to asses s hether the Corrrt had
jurisdiction, it was su ficient to determine whether the

dispute brought before the Collrtarose before or after25
ApirI1999.

3.46 The Court observed that YugosIavia7s AppIication was

directed,inessence,againstthe bombingof its territory, to
which the Courtwas asked to put an end. The Court found
that iwas an established factthatthe bombingsin question
began on 24 March I999 and had been conducted
continuously since, and that a legal dispute between

YugosIavia and Belgium(and o~her NATO Members) over
the Iegalityof the bombings arose well before 25 April
1999. The fact that the bombings continued thereafterand
that thedispute concerning them persisted did not alter the
date on which the dispute arose.The Court then recaIled

that itisfor each State, in formulating its declaration, to
decide upon the limits it placesupon its acceptance of the
jurisdictionof the Court: "[tlhisjurisdictiononly exists
withinthe limitswithin which ithas been accepted"(citing
Phosphates in ~orocco)'~~. The Court went on to recall

rhat thePermanent Court in Phosphates in Morocco held
that, as a resuIt of the condition of reciprocity stipulated by
Article 36, paragraph 2 of rhe Statute of the Corlrt, any
Iimitationratione temporis anached byone of the Parties to
its declaration holds good as between the ~arties'~'.

I8Case concerningtheLegaojthe UsofForce (Yugoslaviav.Bel),equestfor
Indicationof ProvisionalMeasureof2rJune 1999,1.C.J Reports 1999,Vol I, p.
IsIbidp.133para24.
Iw[bid p135para 30. ProfessorJames~mw fordIglobserve?thatthe international
Court of Justice thus refed to he judgment in
Ph~spharrei sMorocco "withapparent approval".

347 Likewise, infourother casesconcerning The LegaJityof
the Use ofForce {I.'ugosIav~v. Spain, v. the United

Kingdom, v. Canada,and v.TheNetherlands) theCourt,in
the Ordersof 2 June 1999that resolved the request for
provisional measures invoked by Yugoslavia, confirmed
the continuingforceofthe legal rationalestablishedinthe
judgment inthecaseof Phosphatesin Morocco asfaIIows:

".. [T]k Courtred Id in itJudgmentof 4

December 1998in the case conttrning
FisPreviesttrisdic fSpao~ r.Ca~adc~) It
is for each State, in formulating its
declmtion, to decideuponthelimits itplaces
uponits acceptanceof the jurisdictiof the
Court: "t]hisjurisdictiononly existswithin

the limitswithinwhich ithas been accepted'
(Phosphates in Morocco, Judgme~lt, 1938,
P.C.J.J.Series AJB,Nu. 74,p. 23)' f..C.,X
Repurrs1998,p. 4.53,pam. 443;

.. asfhePermanent Court heId in its
Judgment of 14 June1938 in thePhosphates
inMorocco case (PreliminaryObjections),'it
isrecognized that,as a consequence of the
condition of reciprocity stipulated in

paragraph2 of Article36 ofthe Statuteof the
Court', any limitation ratione femporis
attached by one of the parties to its
declaration of acceptance of the Cow's
jurisdicrion'hoI& good as between the

'" 1, Cmwford,TIntanational CommissionArticlon StatResponsibility,
Introduct,m andCommentariesCambriUniversPmy 2002p.23. parties' (Phasphufes in Morocco, f~dgment,

f 938, P.C.LJ ,SeriesA/& Nu- 74,p. 10);

...moreover, asthe presen Ctourt noted in its
Judgment of 11 June L988 in the case

concerning the Land and Maritime Bounda~y
between CameroonandNigeria {Cameroonv.
Nigeria), '[als early as 1952, it held in the

case concerning Anglo-Iranian Oil Co, that,
when declarations are made on condition of
reciprocity jurisdiction is conferred on the

Court only to the extent to which the two
declarations coincide in conferringit' (I.C.JI
Reptlrrs f952, p. 103) (1.C.J Reports 1998, p.

298,para. 43)". I"

3.48 The question atissue in the cases concerning The Legaliq

ofrhe Use ofForce was whether the disputearoseafter the
date of the DecIararionrather than -as between Nicaragua
and Colombia- whether the facts out of which rhe aIIeged

dispufearose antedate or post-date the datecontained in the
Declaration. But what is important for present purposes is
that the Court found recent reason to sustain, "with

apparent approval", the rationale and continued vitalityof
the cardinalcaseof Phosphatesin Morocco.

3.49 As clear as the Court's jurisprudence is in this case, the
terms of Colombia'sDeclaration, were it held to bein force
on the date of Nicaragua's Application, and its limitation

"I The qr~otedpsissagebeafounda1:egalivofUse DJForce (YrgosImiY.Spoi~).
ReqrresifindiccitofProvisionMeffsixreOrdereJ2June 195'LC1 R~porrs1999,
Vat. I., 770-7 7,para25;tt.galiv Use ofForcefl'tcgoslY.Uniredking don^},
RequestfoItrdicu~uJProvisionMeasures,Order of2 Ju1999,ICJ. Reporf1999.
VoI.I, pp.835-83p,n. 25kguiiioJUse ofForce(Yuga~lavY.Canada},Requestfor
~ndicniionofProviszonaiMeasures,Order of2June ..,! Reporis 1999,VI,pp.
indicarrdf'rt>visionMe~trres.Orderof2 Jurre1999.LC.J.Reporis 1899.Vpp.11,
552-553para30. ratione temporis,arealso clear,aswe11 asthe intentionthat
inspiredit. The Colombian Declaration only accepted the
Court's jurisdiction over disputes arising out of facts
subsequer-rtt6 January 1932.That was Colombia's wilI, it
was the Iirnit ofits consen1 10 the Couc's jurisdiction.
Colombia's intention in including rhe reservation was

precisetl oyavoid the revival of already settIed disputes,
such astheone that hadbeen settled wirhNicaraguaby the
1928Treaty and its Protocol ofExchange of Rarifications
of 1930and thatNicaraguanow purportsto reopen.

3.50 From the foregoing it is evidentthat:

(a)In the case of StatesPartiesto the Pact of Bogota that
have also entered Declarations of acceptanceof the
Court'sjurisdiction under theOptional Clause,the Pact
isgoverning.

@f As has been shown above (Chapier II), by virtue of
ArticIes VI and XXXIV of the Pacr of Bogofi, the

Court is without jurisdictioto hear theaIIegeddispute
brought before it by Nicaragua and fherefure rhe
con rover-symust be declared ended.

(cj Thus,there isno dispute leftbefore theCourt to which
jurisdiction underany Optional Clause Declarations of

the Partiescould attach.

(d)In any case, since Nicaragua argues that a titleof
jurisdiction exists by virtue of the operation of the
Declarations of both States under the Optional Clause,
Colombia has addressed this contention and shown thar the Court'sjurisdiction in these pruceedings cannot be
based on Article 36, paragrap2,ofthe Statute.

(e) First,Colombia's Declarationof 1937was not in force
on the date ofNicaragua'sApplication because it had
been terminated prior to that date with immediate

efkct.ConsequentIyrhe requirernentthat forthe Court
tu havejurisdicrion bothStatesmust accept the Court's
jurisdiction under Article 36, paragrrrph 2, is not
satisfied.

0 Second,even if Colombia's 1937Declaration were held
tobe in forceon the date of Nicaragua's Application-

quod non-, as shown, the explicit terms of the
reservationcontained thereinexclude from the Court's
jurisdictioal1the matters brought before the Courtby
Nicaragua. On any objective view,the aifeged dispute
raised -by Nicarag~ra is one "arising out of facts"
antecedenttu 6 January 1932.

(g,I) fact,Nicaragua's Application invuives in srrbsbnce
an attempt to reopen a dispute already settled in the
1928 Treaty and its Protocol of Exchange of
Ratificationsof 930.

3.51 The precedin considerations set out inthis C.hapter
dernonstrate that rhe Court is without jurisdiction tu
entertain Nicaragua's Application under Article 36,
paragraph2, of the Statute. CHAPTER IV

SHORT SUMMARY OF COLOMBIA'S REASONING IN
THESE PRELIMINARYOBJECTIONS

4.1 Consistently with the Court's Practice Direction 11
Colombia sets oubelow a short summary of its reasoning
inthese PreliminaryObjections.

I,General

4.2 Derived from titlesof theSpanish Empire, Colombia had
rights over the Mosquito Coast comprised between the
Cape Gracias a Dios and the SanJuan River and over the

Archipelagoof San Andres of which the Islas Mangles
(CornIslans)werepart.

4.3 Ever since the break up of the Spanish Empire in the
earlyyears ofthe nineteenthcentury sovereignty over the
Archipelago of San Andrks has been vested in and

exercised by Colombia, and Colombia alone, ina public,
peaceful and uninterrupted manner. The sole exception
was a temporary madus vivendi enshrined in the 1928
Agreement betweenColombia and rhe United Srates at a
time when those two States had a difference about
sovereignty over three of the cays forming part of the
ArchipeIag (o hich difference was resolved by the

United States renouncing aI1cIairnto thecays by treaty
in 1972).

4.4 Throughout the period since Nicaragua's own
independence in 1821 and continuing up to the present
time, none ofthe islandsisletor cays oftheArchipelago of San ~ndds'~~ has been underNicaraguan sovereignty
or,muchless,administeredbyNicaragua.

4.5 AIthough thishistorydemonstratesColombia'stitletothe
Archipelago,the presentationof the antecedentsto the
matters-mw purported to be reopened befotheCourt-

byNicaraguais tendentious,unconvinci andgessentiaIly
irrelevant.

4.6 This isbecause w,hen in 1913 -in addition to the
differencesbetweenthe two Stateconcerning sovereignty
over the Mosquito Coast and the IsIas Mangles (Corn

Islands)-Nicaragua fortheiirsttimeadvanced claims to
certainislandof theArchipelagoof San Andrks, thetwo
States,after 15 years of negotiations,settled all the
aforementioned mattersby concludingthe 1928 Treaty
Concerning Territorial Questions at Issue be tween
Colombia andNicaragua and itsProtmoIofExchange of
Ra~ificatimof 1930.The1928Treaty andits 1930Protocol

wasregisteredwiththe League ofNationsbyColombia on
1G August 1930and by Nicwagua on 25May 1932.

By that Treaty and its Proroc01 of Exchange of
Ratificationso1930

(a) NicaraguarecognizedCo!ombiaqs sovereigntyover

the islandsofSan Andrds,hvidencia and Santa
Catalinaandoveralltheotherislandssletand cays
formingpartofthesaidArchipelagoofSanAnd&;

(b) ColombiarecognizedNicaragua'ssovereignty over
theMosquito Coast andthe TslasMangles(Corn
Islands);

(c) Nicaragurecogniza edd aged thatsovereignty
overthecays of Runcador,QuitasueTioandSerrana,
constitutingpatof theArchipela wgosa mamr

'%SeeFootnoNo.5. soIeIy between CoIornbiaand the United States, to
the exclusionofNicaragua;and

(d)the two States agreed upon the 82"WMeridian as
the boundary between Colombia and Nicaragua.

4.7 Both States conducted themselves consistently with the
Treaty of 1928 and its Protocol of 1930. Nevertheless
Nicaragua in 1969 -without questioning the validity or
effectivenessof the 1928 Treaty- purported to carry out
activitiein areas to the east of the agreed maritime
boundary alor-~the 82"W Meridian. A decade later, in

1980, after the Treaty had been in force for 50 years,
Nicaragr~aur-rilatel-purported to discIai itny declaring
it null and void. Colombia rejecred these attempts and
continued toapply the 1928 Treaty and its 1930 Protocol
unintemptedIy. Natural1y, Colombia continued to exercise
itsovereigntyand jurisdiction over the ArchipelagofSan

Andrks and its appurtenantmaritime areas,as ithadbeen
doingfor almost two centuries.

4.8 Two decades laterin its Memorial of 2003,Nicaragua for
the first time purports to allege that "Colombia's
interpretation of the 82"W Meridian as a maritime

boundary" in 1969, arnounted to a breach of the I928
Treaty and has thus entitled Nicaragua to unilateraIIy
terminate it. However, whar happened in thatyear was, as
mentioned in the preceding paragraph, thatNicaragua for
the first time carried out activities to rhe eastof the
maririrn~boundaryagreedalong The 82' W Meridian, thus

generatinga protest by Colombia in which it did no more
than assert the agreementas it waconceived by Nicaragua
in 1930 and agreed by both parties at that time, and as
reflectedin officialmaps published by Colombia from
1931 onwards which occasioned no protest from
Nicaragua. Colombia has consistently continuedtoexercise

its sovereigntyand jurisdictionover the maritime areas
perraining to the Archipelago up to the aforementioned
meridian.4.9 At no time previousIy, did Nicaragua put forward an
argument offhis nature. Nicaragua waited 34 years before
advancing this fanciul argument of theTreaty's unilateraI
termination by its alIeged breach by Colombia. The

purpose ofso exrraordinaryclaim by Nicaraguais to vitiate
Colombia'svalid objections fojurisdiction. WeretheCourt
to sustainsuch an argument, it would permit a State to
evade limitations on the jurisdictofnthe Court by means
, ofa spuriousclaim.

4.10 Nicaragua now seeks to reopen matters that
were already
settledby arrangement between Colombia and Nicaragua
and which aregovernedby the 1928Treaty and its Protocol
of Exchange ofRatifications of1930, namely sovereignty
over theArchipeIago and the maritime boundary between
Colombiaand N icaagrra.

4.I I Nicaragua seeks to found the jurisdictioof the Court for
this purpose upon ArticleXXXI of the Pactof Bogoti "in
accordance with the provisions of ArticI36, paragraph I,
of theStatute", and upon Article 36, paragraph 2, of the
Statuteofthe Court (theOptionalClause).

11.Colombia's FirstPreliminary Objection

4.12 Within the frameworkof Article 79, paragraph 1, of the
Rules of Court, this isan "objection the decision upon
which is requested before any fimher proceedings on the
merits."

4.13 Nicaragua cannot soIe1yrely on Article XXXI ofthe Pact

of Bogofi.By virtue of the 192Treaty and theProtocolof
Exchange of Ratificationsof1930, which isvalid and in
force,the matters which Nicaragua seeks to place before
the Court.a)have alreadybeen settledand aregovemed by
that Treatyand its Protocol,which (b) was uncontestably
and inconteslably inforce in 1948 on the date of the mnclr~sionof the Pact.ArticleVI of thePact stipulatesthat,
consequently, on each of these grounds, Articl XeXXI
"maynot be applied".

4.14 Moreover, by virtue ofArticles VI and XXXIV of thePact
of Bogota, the Court has to declare the controversy

"ended".

111.Co1ombia7sSecond Preliminary Objection

4.15 The Court hasalready heid rharwhen an Applicant invokes
boththe Pact of 3ogot6 and Optional Clause Declarations
itisthe PactofBogotawhich governs. Moreover, by virtue
of Articles VT and XXXIV of the Pacr, the Court is

requiredto declarethe controversy "ended".Therefore, by
reason of the dispute between Nicaragua and Colombia
havingbeen settledand ended,there isno dispute lebefore
the Court towhich jurisdictiounder the Optional Clause
Declarationscouldattach.

4.16 Inany event,the Court has nojurisdictiounder Article 36,

paragraph 2, ofthe Statute of the Court (the 'Optional
Clause').TI-riis fotworeasons.

4.17 First, when Nicaragua submitted its Applicationthere was
no Colombian Declaration under the OptionaI Clause:
Colombia's Declaration of 1937 had ajready been

withdrawn with immediate effect.

4.18 Consequently, the requirement thatfor he Court to have
jurisdiction both States must accept the Court'sjurisdiction
under Article36, paragraph 2, is nsatistied.

4.19 Second,even if Colombia's1937 Declaration werein force
(which Colombia denies) che Court'sjurisdictionwouId in

any event beIirnitedbyitsterms.4.20 Those terms include a reservation limiting Ihe application
of the Declaration to "dispufes arising out of facts
subsequentto 6 January 1932".

4.21 Nicaragua's AppIicarion involvesin substance an atternpr
to reopena dispure alreadysettledin the 1928 Treaty and

its Protocol of Exchange of Ratifications of 1930.
Nicaragua's challengeisto themeaning, and even the very
existencein law,of that Treatyand Protocol,which are at
the hearof the allegeddisputewhich Nicaragua isseeking
tobringbefore theCourt.

4.22 The alleged disputeis thus, one which arisesout of facts
which pre-date 6 January 1932. And conskquentIy, it
wouId fa11 outside the scope of CoIombia's 1937
Dec1aratio1if that Declarationwere to be found to be in
forceon thedareofNicaragua A'pplication. CHAPTER V

COLOMBIA'SSUBMISSIONS

For tbe reasons set out in the preceding Chapters, Colombia

respectfuIIvrequestthe CourL in a~~ficationof Articl79 of the
Rulesof Court.toadiudge and declarethat:

(I) underthe Pact of Bogoti,and in particulainpursuanceof
ArticlesVI and XXXIV, the Court declaresitselfto be

withoutjurisdictionthear the controversysubmittedto itby
Nicaragua underArticleXXXI, and declaresthatcontroversy
ended;

(2)under ArticIe36,paragraph2, oftheStatuteof theCourt,the

Court has no jutisdiction to entertain Nicaragua's
Application;andthat

(3) Nicaragua'Applicationis dismissed.

TheHague,28July2003.

JulioLONDONO PAREDES
Agent oftheRepublic ofCoIornbia VOLUME 11:LISTOF ANNEXES

Annex 1 Colombia's Maritime Delimitation Treaties in
the Caribbean.....................................1...........................
a) Treaty Concerning TerritorialQuestions at

IssuebetweenColombia andNicaragua,24
March 1928,and its ProtocoIof Exchange
of Ratificationsof 5 Ma1930 ...............................
b) Treaty on the Delimiration of Marine and
Submarine Areas and Related Matters

between the RepubIicaf Colombia andthe
Republicof Panama, 20 November 1976 ............
c) Treatyon Delimitatiof MarineandSubmarine
Areas and Maritime Cooperation between

the Republicof Colombia andthe Republic
ofCosta Rica, 17March 1977 ...............................
d) Treatyon the Delimitation of Marine and
SubmarineAreas and Maritime Cooption
between theRepublic ofColombiaand the

DominicanRepublic, 13January 1978 .............
el Treaty on DeIimitation of the Maritime
Boundaries between the Republic of
Colon-rbiaand the Republic of Haiti, 17
.......................................................
February I978 21
f) Trealy Concerning Maritime Delimitation
between the Republic of Colombia and the
Republicof Honduras, 2 August 1986 .............

g) Treaty on Maritime Delimitation between
the Republic of Colombia and Jamaica, 12
November 1993 .............................-31..................

Annex2 RoyaIOrderof20November1803 .......................Annex3 DiplomaticNote of 5 Novemher 1890, ad-

dressedtoNicaqp's ForrtiMTab hhkkr by
Colombia's ForeignAf'faiMiniste........................
Annex 4 DiplomaticNote of 9 August191 3,addressed
to Nicaragua's Foreign'AffairsMinister by
Colombia's Foreiw AffairMiniste......................

Annex 5 Diplomatic Note -of 18 March 1925 and
accompanying draftof Treaty presented to
Nicaragua" Foreign AFf'airs Minister by
Colombia'sAmbassador inManagua ..............7.....

Annex6 DiplomaiicNote of 28 March 1925,addressed
to Colombia'sAmbassador in Managua by
Nicaragu aoreignA flaiMriniste.............51.......
Annex7 Record of sessionXLVIIIof theChamber of
the Senate of theNicaraguan Congr~ss,4

Marclr193 ..................................5..................
Annex8 Recwdof session XLIX oftheChamber of he
Senate of theNicaraguanCongress, 5 March
1930........................................57...................
....

Annex9 Record of session LVIIIof the Chamberof
Deputies ofthe NicaraguanCongress, 1 April
1930 ........................................1............
...
Annex10 OfficialPublicatioin Nicaraguaofthe 1928

Treaty Concerning TerritorialQuestions at
IssueBetweenColombia and Nicaraguaandits
ProtocolofExchange ofRatificatioof 1930 ......9.
Annex I1 Indeoxfthe 1930 Treaty SeriesofthLeague
of Nation....................................5....................

Annex 12 Indexof the I931-932 TreatySeriesof the
kgue of Nations.............................79.........................
Annex 13 AIphabeticdIndex of the1930-1933 General
Indexof the TreatySeriesof the League of

Nations.....................................83..................
Annex 14 Diplomatic Note of 13 September 1929,
addresseto the AmericanMinisterinBogota
byColombia' s oreigAffairsMiniste...........87.......Annex 15 Telegram of 4 October 1919,addressed to the

Secretary of Stateof the United States by the
AmericanMinister in Bogoti .......................91............
Annex 16 Exchange of Notes between Colombia and the
United States, concerning the status of

Qnitasrrefio,Roncador and Serrana,of I0 April
I928 ...............................................5......
........
Annex 17 Treaty bemeen the Government of the

RepnbIic of Colombia and the Government of
the United Statesof Amelia concerning the
statusof Quita Sueno, Roncador and Serrana,
signedon8 September I472 ............... ......01

Annex 18 Diplomatic Note of 4 June 1469 addressed to
Nicamgrra's Foreign Affairs Minister by
Colombia'sAmbassadorinManagria ................0...
Annex 19 DipIomaticNote of 5 February I980 addressed

to Nicaragrra's Foreign Affairs Minister by
Colombia's Foreign AffaitsMinister..........................107
Annex 20 American Treaty on Pacific Settlement, "Pact

of Bogota", 30 April 1948 (Official Text in the
EngIishand SpanishLanguages) .....................I...
Annex 21 Approvalof Article VI of the Pact of Bogoti.........7

Annex 22 Approval of ArticIe XXXIV of the Pact of
Bogota ................. .......................1...1...

Annex 23 U~~iredNations Depository Notification of
Nicaragua's reservation ro itsDeclaration of
acceptance of the compuIsory jurisdicrion of
the International Court of Justice dated 7
November 2001 ................... ..............1..3..

Annex 24 United Nations Depository Notification of
Nicaragua's reservation to its Declaration of
acceptance of the compuIsoryjurisdiction of
the LnternationaICourt of Justice dated 5
December2001(Reissued) ........................147............. VOLUME 111:LIST OF MAPS

Map 1 TheGeographical Area............................1...........

Map 2 Colombia Maritime Boundary Treaties in the
CaribbeanSea ....................................3.............

Map 3 The ArchipeIagoof SanAndrks ....................5........

Map 4 Mapof the Republicof Colombia 193 1 ...................

Map 4 bis Inset Map of the RepubIicof Colombia 1931

("ArchipeIagoof §an AndresbeIongingto the
RepubIic of Colombia"- Boundary between
ColumbiaandNicaragua) ...................................

Map 5 Mapof the RepubIic ofColombia1939 ............1I....

Map 5 b& Inset Map of the RepubIicof Colombia 1939
rArchipeiago ofSan hdrks beIongingrofhe
Repub1 ic of CoIon~bia"-Boundary between
Colombiaand Nicaragua) ........................13...........

Map 6 Mapof the RepubIicof Colombia 1950 ............I5.....

Map 6 bis Inset Map of theRepublic of CoIombia 1950
("Archipelagoof San AnMs andPmvidencia3-
Boundarybemeen CoIombiaand Nicaragua) .......17..

Map 7 Mapof the Republicof Cobrnbia 1951 ............19....

Map 7 bis Inset Mapof the Republic of CoIombia 1951
("Archipelago of San Andris and

ProvidenciaW-Boundary berween CoIombia
and Nicaragua)...................................I...........

Map8 Mapofthe RepubIic of CoIombiaI958 .............3...Map 8 bis Inset Map of the Republic of Colornbia 1958
("ArchipeIagu of San Andris and
Providencia"- Boundary between CoIornbia
and Nicaragua)...............................................

Map9 Mapof rheRepublicof CoIcrnbiaI963 ..................

Map9 his Inset Mapof the Republic of CoIombia 1963

CSituation of the InsuIar Territories of
Colombia"- Boundary betweenCoIornbiaand
Nicaragua)....................................................

Map 10 Mapof theRepr~bIic of CoIornbia 1967..............1...

Map 10 his Inset Map of the RepubIicof CoIombia 1967
("Situation of the InsuIar Territories of

Co1ombia"-Boundary between CoIombiaand
Nicaragua).....................................................

Map 11 Physical and PoIiticaIMap of the Repubiic of
CoIornbia 1971...................................35.......................

Mapllbis lnser PhysicaI and PoIiricaI Map of the
Republicof CoIornbia 1971("Sihrafionof the
Insular Territories of Colombia"- Boundary

betweenColombiaand Nicaragua) .................37..........