Written Statement of Nicaragua

INTERNATIONAL COURT OF JUSTICE

QUESTION OF THE DELIMITATION OF THE CONTINENTAL SHELF

BETWEEN N ICARAGUA ANDCOLOMBIA BEYOND

200 NAUTICAL MILES FROM TNEICARAGUAN COAST

(NICARAGUA V. OLOMBIA)

WRITTEN STATEMENT

OF THE REPUBLIC OFNICARAGUA TO THE PRELIMINARY

OBJECTIONS OF THE REPUBLIC OF OLOMBIA

19 January 2015 INTERNATIONAL COURT OF JUSTICE

QUESTION OF THE DELIMITATION OF THE CONTINENTAL SHELF

BETWEEN N ICARAGUA ANDCOLOMBIA BEYOND

200 NAUTICAL MILES FROM TNEICARAGUAN COAST

(NICARAGUA V. OLOMBIA)

WRITTEN STATEMENT

OF THE REPUBLIC OFNICARAGUA TO THE PRELIMINARY

OBJECTIONS OF THE REPUBLIC OF OLOMBIA

19 January 2015 TABLE OF CONTENTS

CHAPTER 1. INTRODUCTION...................................................................................1

CHAPTER 2. THE PACT OF BOGOTÁ......................................................................5
I. Applicable Law ......................................................................................................5

II. Colombia’s Position...............................................................................................6

III. Nicaragua’s Position...............................................................................................7

IV. Colombia’s Avoidance of Article XXXI and Strained Reading of Article LVI ....9
V. Colombia’s Unavailing Recourse to the Travaux Préparatoires .......................17

CHAPTER 3. THE COURT’S JURISDICTION ON THE BASIS OF THE 2001
APPLICATION...............................................................................................................21

I. In its 2012 Judgment the Court declined to exercise its jurisdiction to its full
extent.............................................................................................................................21

II. The basis for the Judgment having changed, the Court now may and must
exercise its jurisdiction to its full extent........................................................................24

III. Nicaragua’s request is not a request for interpretation .........................................32

CHAPTER 4. NICARAGUA’S CLAIMS ARE NOT BARRED BY RES JUDICATA
...........................................................................................................................................35

I. Res Judicata Applies Only to Issues That Have Actually Been Decided ............37

II. The Court Did Not Previously Decide the Questions Presented in This Case .....41

III. This Case Is Neither an Appeal Nor a Request for Revision of the November
2012 Judgment ..............................................................................................................49

CHAPTER 5. ADMISSIBILITY..................................................................................53
I. Admissibility pending a recommendation by the CLCS......................................55

A. The non sequitur................................................................................................55

B. The practical impasse........................................................................................64

C. Not an exclusively preliminary character .........................................................69
II. Nicaragua’s second request..................................................................................71

SUBMISSIONS................................................................................................................75

i CHAPTER 1. INTRODUCTION

1.1 The Republic of Nicaragua filed an Application on 16 September 2013

concerning the delimit ation of the continental shelf between Nicaragua and

Colombia beyond 200 nautical miles. The case was entered as the Question of the
Delimitation of the Continental Shelf between Nicaragua and Colombia beyond

200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia). By

Order of 9 December 2013 the Court fixed 9 December 2014 and 9 December

2015 as the time limits for the Memorial and Counter Memorial of Nicaragua and
Colombia respectively. Colombia filed preliminary objections to Nicaragua’s

Application on 14 August 2014.The O rder of the Court of 19 September 2014

fixed 19 January for the filing of Nicaragua’s W ritten Statement regarding
Colombia’s preliminary objections. This Written Statement is filed pursuant to the

said Order and within the time limit fixed by the Court.

1.2 In its Application Nicaragua requested the Court to adjudge and declare:

FIRST: The precise course of the maritime boundary
between Nicaragua and Colombi a in the areas of the
continental shelf which appertain to each of them beyond
the boundaries determined by the Court in its Judgment of
19 November 2012.

SECOND: The principles and rules of international law
that determine the rights and duties of the two States in
relation to the area of overlapping continental shelf claims
and the use of its resources, pending the delimitation of
the maritime boundary between them beyond 200 nautical
miles from Nicaragua’s coast.

1.3 Nicaragua based the jurisdiction of the Court on Article XXXI of the
American Treaty on Pacific Settlement (Pact of Bogotá or the Pact) of 30 April

1948. Additionally, Nicaragua also submitted that the subject -matter of its

Application remains within the jurisdiction of the Court established in the case

1concerning the Territorial and Maritime Dispute ( Nicaragua v. Colombia), on
which Judgment was delivered on 19 November 2012.

1.4 With regards to the Pact of Bogota, there are no relevant reservations in

force made by either Nicaragua or Colombia. On 27 November 2012 Colombia
gave notice that, in accordance with Article LVI of the Pact, it denounced it as of

that date. Colombia alleges that its notice of denunciation was of immediate effect

with res pect to any new appli cations brought against it after that date and
therefore that the Court is barred from adjudicating the present case. Additionally,

Colombia also refutes the Court’s inherent jurisdiction to decide this case and

alleges that Nicaragua’s claims are res judicata and constitute an attempt to

appeal and revise the 2012 judgment.

1.5 Colombia has not only presented preliminary objections to the jurisdiction

of the Court but has also claimed that Nicara gua’s requests are inadmissible,

among other things, because the Court cannot adjudicate on them because the

Commission on the Limits of the Continental Shelf (CLCS) has not made the
requisite recommendation on Nicaragua’s claim of an extended continental shelf.

1.6 This Written Statement is divided into the following chapters:

1.7 Chapter 2 will reply to Colombia’s first objection to the jurisdiction of the
Court and will demonstrate that Colombia’s strained reading of Article LVI of the

Pact of Bogota militates against the object and purpose of the Pact (the settlement

of disputes efficiently and definitively), the principle of good faith and does not
conform to the rules of treaty interpretation.

1.8 Chapter 3 is in response to Colombia’s second objection t o the inherent

jurisdiction of the Court. It will be shown that the Court has an inherent

jurisdiction to decide on the present dispute and that this jurisdiction is

2complementary and can be used in the alternative to that based on the Pact of
Bogota.

1.9 Chapter 4 deals wi th Colombia’s third and fourth preliminary objection

respectively claiming that Nicaragua’s case is res judicata and that it constitutes

an attempt to appeal and revise the 2012 J udgment. This chapter analyses the

relevant Court’s jurisprudence on res judicata and establishes that the subject -
matter of the present case has not been previously decided by the Court and does

not constitute either res judicata, and hence that it is not and could not be an

attempt to appeal or revise the 2012 Judgment.

1.10 Chapter 5 addresses Colombia’s fifth preliminary objection regarding the
inadmissibility of Nicaragua’s requests due to the lack of a prior recommendation

by the CLCS. It will be shown th at Colombia’s hypothesis has no legal basis i n

the Law of the Sea or in general international law, and that the absence of action
by the CLCS does not prevent the Court f rom deciding this case, nor can this

Judgment affect any future decision by the CLCS.

1.11 Finally, this pleading concludes with Nicaragua’s Submissions.

34 CHAPTER 2. THE PACT OF BOGOTÁ

2.1 Both Nicaragua and Colombia signed the American Treaty on Pacific

Settlement (Pact of Bogotá) on 30th April 1948. Nicaragua ratified the Pact on

21st June 1950 and deposited its instrument of ratification on 26th July of the

same year with no relevant reservation to this case. Colombia ratified the Pact on
14th October 1968 and deposited its instrument of ratification on 6th November

of the same year with no reservations.

2.2 On 27 November 2012 Colombia gave notice that it denounced the Pact

claiming “an immediate and full effect with regard to any procedures that any
Party might want to initiate subsequent to the transmission of the notification,

that is, 27 November 2012” . 1

I. Applicable Law

2.3 The jurisdiction of the Court in this case is based on Article XXXI of the

Pact of Bogotá. This provision reads as follows:

“In conformity with Article 36, paragraph 2, of the
Statute of the International Court of Justice, the High
Contracting Parties declare that they recognize, in
relation to any other American State, the jurisdiction of
the Court as compulsory ipso facto, without the necessity

of any special agreement so long as the present Treaty is
in force, in all disputes of a juridical nature that arise
among them concerning:(a) the interpretation of a
treaty;(b) any question of international law;(c) the
existence o f any fact which, if established, would
constitute the breach of an international obligation;(d)

the nature or extent of the reparation to be made for the
breach of an international obligation.”

1
Preliminary Objections, pp. 23-24, para. 2.44. (hereinafter PO)

5 2.4 As to the denunciation of the Pact of Bogotá, Article LVI provides:

“The present Treaty shall remain in force
indefinitely, but may be denounced upon one year’s
notice, at the end of which period it shall cease to be in

force with respect to the state denouncing it, but shall
continue in force for the remaining signatories. The
denunciation shall be addressed to the Pan American
Union, which shall transmit it to the other Contracting

Parties.

The denunciation shall have no effect with respect to
pending procedures initiated prior to the transmission of
the particular notification” .

II. Colombia’s Position

2.5 Colombia contends that the Court lacks jurisdiction under the Pact of

Bogotá ratione temporis because Nicaragua’s Application was filed after the

transmission to the General Secretariat of the Organization of American States

(OAS). (successor of the Pan American Union) of Colombia’s notice of
3
denunciation of the Pact “as of today” (27 November 2012) . Colombia asserts

that according to the notice given and pursuant to the text of the second
paragraph of A rticle LVI of the Pact, the notice of denunciation “did have an

immediate and full effect with regard to any procedures that any Party might

want to initiate subsequent to the transmission of the notification, that is,

27 November 2012” . 4

2 See the text of the Pact of Bogotá in its four authentic languages (Spanish, English, French and
Portuguese) in Annex 18 of Colombia’s PO. (hereinafter the Pact)
3 PO, p. 27, para. 3.1, 3.3.
4 PO, pp. 23-24, para. 2.44.

6III. Nicaragua’s Position

2.6 Nicaragua considers that the application of Articles 31 -33 of the Vienna

Convention on the Law of Treaties, which reflect customary international law , 5

to Article LVI of the Pact of Bogotá leads to exactly the opposite conclusion

from that drawn by Colombia.

2.7 Colombia position is wrong because it fails to take into account the

relationship between Article XXXI and Article LVI, and the effect of this

relationship on Applications filed within one year of a denunciation of the Pact.

2.8 Under Article XXXI of the Pact, the Parties “recognize, in relation to any

other American State (Party) the jurisdiction of the Court as compulsory ipso

facto, without the necessity of any special agreement so long as the present

Treaty is in force”.

2.9 Article LVI, first paragraph, in turn, declares that the Pact shall remain in

force indefinitely and acknowledges that the Parties have the faculty of

denouncing it “upon one year’s notice, at the end of which period it shall cease

to be in force with respect to the State denouncing it”.

2.10 Thus, by virtue of Article LVI, the Pact remained ‘in force’ for Colombia

until one year after Colombia gave notice of its denunciation. And according to

Article XXXI Colombia’s acceptance of the compulsory jurisdiction of the

Court remained effective “for so long as the present Treaty (i.e. the Pact) is in
force”, that is, until one year after Colombia’s denunciation.

2.11 Indeed, the Court itself has recognized that a State’s consent to

compulsory jurisdiction under Article XXXI of the Pact of Bogotá “remains

5
PO, p. 35, para. 3.14.

7valid ratione temporis for as long as that instrument itself remains in force

between those States”. 6

2.12 Notice of Colombia’s denunciation was given on 27 November 2012.

Hence, under Article LVI’s express terms, the Pact remained i n force for

Colombia until 27 November 2013. And hence, because Article XXXI provides
that Colombia’s declaration remained in force “so long as the present Treaty is

in force”, that declaration was necessarily in force at all times prior to

27 November 2013.

2.13 Therefore, between 27 November 2012 and 27 November 2013 there was

nothing to prevent Nicaragua from filing an Application with the Court and

thereby establishing the Court’s jurisdiction. Colombia’s acceptance of the

Court’s compulsory jurisdiction wa s valid ratione temporis on 16 September
2013, when Nicaragua’s Application was filed. It is a principle well recognized

in the Court’s jurisprudence that once properly seised, (at the date of the filing of

an Application), the Court’s jurisdiction continues independently of any changes
7
that may occur in relation to the bases of that jurisdiction .

2.14 This interpretation fits perfectly with the rule codified in Article 31 of the

Vienna Convention on the Law of Treaties ( VCLT), according to which a treaty
“shall be interpreted in good faith in accordance with the ordinary meaning to be

given to the terms of the treaty in their context and in the light of its object and

purpose”.

2.15 Nicaragua’s interpretation of Article LVI corresponds to the object and

purpose of the Pact (the settlement of disputes efficiently and definitively) and

6 See Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 84, para. 34.
7 See Nottebohm case (Preliminary Objections), Judgment of November 18th, 1953, I.C.J.
Reports 1953, pp. 111, 122-123; Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 28-29,
para. 36.

8 the principle of good faith. The Pact of Bogotá is a treaty, as indicated in its title,

“on pacific settlement”. “It is moreover quite clear from the P act”, the Court

once observed, “that the purpose of the American States in drafting it was to
8
reinforce their mutual commitments with regard to judicial settlement” .

IV. Colombia’s Avoidance of Article XXXI and Strained Reading of

Article LVI

2.16 Colombia arrives at its erroneous conclusion – that its denunciation of

the Pact had immediate effect in regard to Nicaragua’s Application – by ignoring

the relationship between Article XXXI and Article LVI, and by then giving an

artificial interpretation to Article LVI that completely contradicts Ar ticle XXXI.

Colombia invokes, in support of its argument, the second paragraph of Article
LVI, which provides that: “The denunciation shall have no effect with respect to

pending procedures initiated prior to the transmission of the particular

notification”. It should be plain, however, that this language cannot defeat the

Court’s jurisdiction under Article XXXI and the first paragraph of Article LVI.

2.17 There is nothing in the second paragraph of Article LVI that negates the
effectiveness of Colombia’s accep tance of the Court’s compulsory jurisdiction

under Article XXXI for “so long as the present Treaty is in force”. Nor is there

anything in Article LVI, second paragraph that negates the provision in Article

LVI, first paragraph (which immediately precedes t he sentence upon which

Colombia apparently relies) that it is not until one year after a notice of

denunciation is given (in this case, until 27 November 2013) that the Treaty
“shall cease to be in force with respect to the state denouncing it (in this cas e,

8The Court reproduced literally the intervention of the Colombian delegate at the meeting of
Committee III of the Conference, held on 27 April 1948, explaining that the sub-committee
which had prepared the draft took the position “that the principal procedure for the peaceful
settlement of conflicts between the American States had to be judicial procedure before the

International Court of Justice” (Border and Transborder Armed Actions (Nicaragua v.
Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 90, para. 46).

9Colombia)”. Thus, there is nothing in the one -sentence second paragraph of

Article LVI to challenge the conclusion that Colombia’s obligation under Article

XXXI was in effect on 16 September 2013, when Nicaragua’s application was
filed. To read the language otherwise, as Colombia apparently does, would not

only be illogical, and not in keeping with the plain text, but would also be in

direct contradiction of the other provisions of the Pa ct quoted above, to wit,

Article XXXI and LVI, first paragraph; and this would be inconsistent with the
rules of treaty interpretation set forth in Articles 31 to 33 of the VCLT.

2.18 On the other hand, the second paragraph of Article LVI cannot apply to

expressions of consent under Article XXXI because the acceptance of the

jurisdiction of the Court are not “pending procedures”. These expressions of will
under Article XXXI are binding undertakings made by the Parties, which are

self-contained and became fully perfected international obligations immediately

upon ratification of the Pact and its entry into force. They were completed acts,

and their legal consequences took effect at that time. There was nothing
“pending” about them. They do not constitute the “pending procedures” to

which the final paragraph of Article LVI applies.

2.19 Besides, the second paragraph of Article LVI does not address “pending

procedures” initiated after a notice of denunciation has been circulated. Nor does
it define “pending procedures”. It merely states that some procedures, i.e., those

initiated prior to the notice, would not be affected. Colombia’s a contrario
9
reading of the paragraph cannot stand against the express language of Articles

XXXI and LVI, first paragraph, which ensure the effectiveness of Colombia’s
acceptance of the Court’s compulsory jurisdiction for twelve months after

notification has been given.

9
Actually, Colombia proposes the Court to endorse the principle inclusio unius, exclusio
alterius, although it takes care not to mentionit. See PO of Colombia, p. 38, para. 3.20.

102.20 Colombia contends that its interpretation of the second paragraph of

Article LVI assures its effet utile and avoids a resul t that would be ‘manifestly
10
absurd or unreasonable’ . It is just the opposite. The first paragraph of Article
LVI is there, clearly affirming that the Pact “may be denounced upon one year’s

notice, at the end of which period it shall cease to be in force w ith respect to the

state denouncing it”. If Colombia’s interpretation of this paragraph (declaring

unconditionally that the Pact shall be in force one year from the date of the

notification of the decision to denounce it), were to be followed, it is that
paragraph that would become useless, without effet utile, a result ‘manifestly

absurd or unreasonable’. The effet utile of the second paragraph of Article LVI,

according to Colombia, implies effectively disposing of the general rule

established in the first paragraph.

2.21 Colombia is aware of the weakness of its manoeuvre. It attempts to
insulate the one -sentence second paragraph of Article LVI from the annoying

first paragraph, which contradicts Colombian argument, and it tries to

“harmonize” them by proposing that the first paragraph concerns the provisions

of the Pact other than the settlement procedures while the second paragraph is

applicable to those settlement procedures. That interpretation would leave alive
only the ‘procedures’ initiated before the gi ving of notice of denunciation of the

Pact and still pending at the date on which denunciation takes effect. 11

2.22 Colombia unconvincingly strives to minimize the body of provisions in

the Pact that are covered by the first paragraph of Article LVI. But it mak es no
sense to devote the principal rule (in Article LVI, first paragraph) on the effects

of the denunciation to those provisions that are peripheral to the main purpose of

the Pact, while leaving the second paragraph to govern the effects of the most

10
11PO, pp. 35-36, para. 3.15.
PO, pp. 34-39, para. 3.13-3.22

11important issues, namely, the settlement procedures, which are the Pact’s raison
12
d’être, covering 41 of its 60 Articles .

2.23 Can it be argued convincingly that the first paragraph of Article LVI was

created in order to preserve the application of Articles I -VIII and L-LX of the

Pact for a year after the giving of notice of denunciation? Is it credible that all

the other provisions of the Pact –, that is, the settlement procedures – were
intended to be subject to an exception created obliquely by Article LVI second

paragraph, of such extensive application that it would eclipse the general rule set

out in Article LVI first paragraph (as well as negate the language of Article

XXXI)? Most of Articles I-VIII and L-LX, by their very nature, have nothing to

do with the de nunciation clause. An interpretation such as the one Colombia
now proposes would be incompatible with the principle of good faith. The Pact

of Bogotá, which Bogotá now denounces, is, as indicated in its title, a treaty “on

pacific settlement” and its objec t and purpose includes the creation of stable

expectations about the availabi lity of recourse to the Court and the specified
settlement procedures.

2.24 Underlining the distinction between the acceptance of the jurisdiction of

the Court through unilateral declarations made under Article 36 (2) of the Statute

and the acceptance of such jurisdiction by the States Parties in the Pact of
Bogotá, former President Eduardo Jiménez de Aréchaga wrote :

“8. Unilateral declarations made under Article 36 (2) of
the Statute without time limits may be withdrawn a
reasonable time after giving notice on such intention, and
new reservations may be introduced at will. On the other

hand, the relationship created by Article XXXI has
significant legal differences from the normal regime of
the optional clause. As to withdrawal, the Pact of
Bogotá, once accepted by an American State, it
continues in force indefinitely, and may be denounced

12
Articles IX to XLIX of the Pact.

12 only by giving one year’s not ice, remaining in force
during all that period (Article LVI of the Pact of Bogotá).
This means that the withdrawal of the acceptance of

compulsory jurisdiction as soon as the possibility of a
hostile application looms in the horizon has been
severely restricted” (emphasis added) . 13

2.25 In short, in contradiction with the recognized rules of treaty

interpretation, the Colombian interp retation of Article LVI of the Pact deprives

its first paragraph of content. As the Court recalled, the principle of

effectiveness has an important role in the law of treaties and in the jurisprudence
14
of the Court . Any interpretation that would render part of a disposition
15
superfluous or diminish its practical effects is to be avoided .

2.26 Moreover, in no part of the Pact is it said th at the decision to denounce
the Pact shall have immediate effects. Such a suggestion would work against the

ordinary meaning of the words considered in their own context, taking into

account the object and purpose of the Pact and the principle of good faith.

2.27 Colombia calls the attention to the fact that no State - including

Nicaragua- advanced any objection at the time nor subsequently within the

framework of the O.A.S., to the terms or mode of Colombia’s behaviour 16. But

neither Nicaragua, nor any other Bo gotá Pact Contracting Party, was obliged to

object expressly to the Colombian statement giving notice of its decision to

denounce the Pact in order to avoid what Colombia erroneously argues are the

13E. Jiménez de Aréchaga, “The Compulsory Jurisdiction of the International Court of Justice
under the Pact of Bogotá and the Optional Clause”, International Law at a Time of Perplexity:
Essays in honour of Shabtai Rosenne, Martinus Nijhoff, 1989, pp. 356-357.
14Territorial Dispute (Libyan Arab Jamahiriya/Chad), Merits, Judgment, I.C.J. Reports 1994, p.
23, para. 47, pp. 25-26, para. 51-52; Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the
Court, Judgment, I.C.J. Reports 1998, p. 455, para. 52.
15
Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime
Consultative Organization, Advisory Opinion of 8 June 1960, I.C.J. Reports 1960, pp. 159-171;
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v, Russian Federation) Preliminary Objections, Judgment, I.C.J.
Reports 2011, pp. 125-126, para. 133-134.
16PO, p. 25, para. 2.46; p. 45, para. 3.32.

13consequences of that notice. Instead, Nicaragua’s response has been to exercise

the right acknowledged by Articles XXXI and LVI to file an Application against

Colombia within the stipulated period before the Colombian denunciation

became effective.

2.28 Nicaragua’s interpretation of the second paragraph of Article LVI ,

according to which that paragraph does not vary or create an exception to the

rule established by the first paragraph of Article LVI, is more consistent with: 1)

the denunciation clauses adopted by the treaties on the same matter, constituting

the Pan-American acquis ; and 2) the denunciation clauses adopted in other

multilateral treaties, universal and regional. If anything is revealed by the list of

treaties referred to by Colombia to support its cause, it is that all the clauses

mentioned – without exception – declare the continuing application of the treaty

for a period of three, six or twelve months after notification of the

denunciation . 18

2.29 Colombia resorts to relying on declarations accepting the compulsory

jurisdiction of the Court under Article 36.2 of the Statute to show that some of

17Treaty on Compulsory Arbitration of 29 January 1902, Article 22: “(if) any of the signatories

wishes to regain its liberty, it shall denounce the Treaty, but the denunciation will have effect
solely for the Power making it, and then only after the expiration of one year from the
formulation of the denunciation. When the denouncing Power has any question of arbitration
pending at the expiration of the year, the denunciation shall not take effect in regard to the case
still to be decided”; General Treaty of Inter-American Arbitration of 5 January 1929, Article 9:
“(this) Treaty shall remain in force indefinitely, but it may be denounced by means of one year’s
previous notice at the expiration of which it shall cease to be in force as regards the Party
denouncing the same, but shall remain in force as regards the others signatories”. See Article

LVIII of the Pact disposing the Pact as successor of a series of treaties, the General Treaty of
1829 among them.
Colombia observes that: “A comparison between the language of the second paragraph of
Article LVI and denunciation provisions in some other multilateral treaties involving dispute
settlements procedures also reveals that it is not unusual for treaties to separate the effect of
denunciation in general from the effect on procedures available under the treaty” (PO of
Colombia, p. 41, para. 3.24). Nevertheless the treaties Colombia mentions as examples (pp. 41-
44, para. 3.25-3.28) play more against than in favour of its position. All the clauses honour the

procedures instituted before the denunciation takes effect and in all cases the denunciation takes
effect one year, six or three months after the notification. There is not a single case of immediate
effect to a denunciation clause.

14them include clauses of termination with immediate effects. 19 Colombia’s

reliance is inappropriate, considering the terms of these declarations, which,

unlike the Pact of Bogota, expressly allowed for termination with i mmediate
effect , and having regard to the difference between them and the basis of

jurisdiction established by the Pact. This fundamental difference was clearly

observed by the Court more than twenty-five years ago.

2.30 In the case concerning Border and Trans border Armed Actions

(Nicaragua v. Honduras) the Court rejected the interpretation proposed by

Honduras and observed that:

“…Even if the Honduran reading of Article XXXI be
adopted, and the Article be regarded as a collective
declaration of acceptance of compulsory jurisdiction

made in accordance with Article 36, paragraph 2, it
should be observed that that declaration was incorporated
in the Pact of Bogota as Article XXXI. Accordingly, it
can only be modified in accordance with the rules
provided for in the Pact itself. Article XXXI nowhere
envisages that the undertaking entered into by the parties

to the Pact might be amended by means of a unilateral
declaration made subsequently under the Statute, and the
reference to Article 36, paragraph 2, of the Sta tute is
insufficient in itself to have that effect.

The fact that the Pact defines with precision the

obligations of the parties lends particular significance to
the absence of any indication of that kind. The
commitment in Article XXXI applies ratione materiae to
the disputes enumerated in that text; it relate s ratione
personae to the American States parties to the Pact; it
remains valid ratione temporis for as long as that

19
PO, pp. 39-41, para. 3.23.

15 instrument itself remains in force between those
States” .0

2.31 By contrast with a den unciation under the optional clause of Article

36(2) of the Statute, which is a purely unilateral matter, the effects of the
denunciation of the Pact of Bogotá under Article XXXI are determined by the

treaty rules – Article LVI of the Pact in the present c ase. A denunciation not

complying with the rules therein is ineffective.

2.32 The point was reiterated by former President Jiménez de Aréchaga in his

article The Compulsory Jurisdiction of the International Court of Justice, where

he wrote:

“
6. Despite these apparent analogies between Article
XXXI of the Pact of Bogotá and Article 36 (2) and 36 (3)
of the Statute, the Yearbook of the Court does not list
Article XXXI among the declarations recognizing as

compulsory the jurisdiction of the Cour t. On the
contrary, it lists the Pact of Bogotá among ‘other
instruments governing the jurisdiction of the Court’. This
is a correct classification, because Article XXXI of the
Pact of Bogotá, despite its terminology, falls in substance
within paragraph 1 of Article 36 of the Statute, referring

to treaties and conventions in force, and not under
paragraphs 2, 3 and 4 of Article 36.

7. This is so because Article XXXI has the legal effect of
‘contractualizing’, that is to say, of transforming among
the American States which are Parties to the Pact, the

loose relationship which arises from the unilateral
declarations under 36 (2), into a treaty relationship. This
treaty relationship thus acquires, between those States,
the binding force and stability which is characteristic of a
conventional link, and not the regime of the optional
clause. In this way, the Latin American States which

20
Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 84, para. 34.

16 have accepted the Pact of Bogotá have established, in
their mutual relations, and in view of the close historical
and cultural tie s between the compulsory jurisdiction of

the Court on much stronger terms than those resulting
from the network of declarations made under Article 36
(2) of the Statute. This is confirmed by two main features

of the optional clause regime: the possibi21ty of
withdrawals and of new reservations” .

V. Colombia’s Unavailing Recourse to the Travaux Préparatoires

2.33 According to Colombia the travaux préparatoires of the Pact of Bogotá
22
confirm its interpretation of Article LVI . Colombia traces the origin of the

second paragraph of Article LVIback to a U.S. draft presented during the Eighth
23
American International Conference, held in Lima (9 to 27 December 1938) .

Colombia relates how the draft advanced from one version to another, with

minor formal modifications, and resulted in the last draft of the Inter -American

Juridical Committee, dated 18 November 1947, which was taken as the basis of
24
the discussion in the IX Inter -American Conference of Bogotá . There

21E. Jiménez de Aréchaga, “The Compulsory Jurisdiction of the International Court of Justice
under the Pact of Bogotá and the Optional Clause”, International Law at a time of perplexity:

22says in honour of Shabtai Rosenne, Martinus Nijhoff, 1989, pp. 356-357.
23PO, pp. 46-58, para. 3.33-3.53.
PO, pp. 49-52, para. 3.39-3.45. According to the last sentence of Article XXII of a US project
of 16 December 1938: “Denunciation shall not affect any pending proceedings instituted before
notice of denunciation is given”.
24PO, pp. 52-55, para. 3.46-3.49.

17 25
Article XXVI, paragraph 3, of the project became Article LVI of the Pact, with
26
a text slightly modified by the Drafting Committee .

2.34 However, there is no element in this story that endorses the Colombian

understanding of the second paragraph of Article LVI of the Pact. The provision

is there in the text of the Pact: but no one seems to have taken any particular

notice of it or asked or commented about its meaning. There was no debate in

the Commission, nor any explanation of the reasons behind the wording or

Article LVI in th e reports attached to the drafts. This is a very surprising

situation if its purpose was, as Colombia contends, radically to modify the scope

of the denunciation clauses that were traditional in the Inter-American system.

2.35 No mention of this provision can be discovered in the reports of the

Committee, nor in the minutes of the Conference. The only line reference to

Article LVI is attributed to the Mexican delegate, Sr. Enríquez, Rapporteur of

the Third Commission (on Disputes Settlement and Collective Secur ity), who

explained to the members of the Coordination Commission the features of the

draft. He told his audience that Article LVI was taken from the General Treaty
27
of Inter American Arbitration, of 5 January 1929 .

2.36 Article 9 of that 1929 Treaty provides: “(this) Treaty shall remain in

force indefinitely, but it may be denounced by means of one year’s previous

notice at the expiration of which it shall cease to be in force as regards the Party

25Article XXVI, paragraph 3: “The present Treaty shall remain in effect indefinitely, but it may
be denounced by means of notice given to the Pan American Union one year in advance, at the
expiration of which it shall cease to be in force as regards the Party denouncing the same, but

shall remain in force as regards the other signatories. Notice of denunciation shall be transmitted
by the Pan American Union to the other signatory governments. Denunciation shall not affect
26y pending proceedings instituted before notice of denunciation is given”.
PO of Colombia, pp. 55-57, para. 3.50-3.52: “The denunciation will not have any effect on
27oceedings pending and initiated prior to the transmission of the particular notification”.
IX Conferencia Internacional Americana, Bogotá, Colombia, Marzo 30-Mayo 2 de 1948,
Actas y Documentos, vol. II, MRE de Colombia, Bogotá, 1953, p. 541. The Rapporteur incurs a
lapsus linguae mentioning Article 16, instead of Article 9, which is the last one of the 1929
Treaty.

18denouncing the same, but shall remain in force as regards the others signatories”.

Nothing more, nothing less.

28
2.37 The Pact of Bogotá was the successor of the 1929 Treaty . Any addition
to this text must be interpreted as a corollary of the rule, unless an explicit

intention to the contrary could be proved. Colombia fails to do so. The 1929

Treaty, like the Pact of Bogota, plainly specifies that the Treaty remains in full

force for one year after denunciation. In the case of the Pact of Bogota, that

necessarily means that Article XXX I remained in full force, as between
Colombia and Nicaragua, for a full year after Colombia’s denunciation. That is,

until 27 November 2013.

2.38 In conclusion, Article LVI, second paragraph, cannot negate the

jurisdiction of the Court based on Article XXXI be fore twelve full months have
passed since the date of denunciation. Nicaragua’s Application, filed on 16

September 2013, thus vests the Court with jurisdiction.

28
See Article LVIII of the Pact of Bogotá.

1920CHAPTER 3. THE COURT’S JURISDICTION ON THE BASIS

OF THE 2001 APPLICATION

3.1 The very particular circumstances of the case are such that the Court can –

and should – exercise its jurisdiction on an additional ground based on its inherent

jurisdiction, which comes as a complement to Article XXXI of the Pact of
Bogotá. 29

3.2 In its 2007 Judgment concerning the Preliminary Objections raised by

Colombia in the case concerning the Territorial and Maritime Dispute introduced

by Nicaragua, the Court unanimously rejected “the objection to its jurisdiction in

so far as it concerns the maritime delimitation between the Parties” and found that
it had “jurisdiction, on the basis of Article XXXI of the Pact of Bogotá, to

adjudicate upon the dispute concerning the maritime delimitation between the

Parties.” However, in the 2012 Judgment it declined to exercise jurisdiction with

regards to the maritime delimitation beyond 200 miles from Nicaragua’s coast in

view of the situation prevailin g at the time of the Judgment (I ); but this situation,
which was the basis for the 2012 Judgment has now changed and the Court may

and must fully exercise its jurisdiction (II ). In doing so, the Court will not

interpret or revise its previous Judgment: it will simply draw the consequences of

its own previous decision (III).

I. In its 2012 Judgment the Court declined to exercise its
jurisdiction to its full extent

3.3 As a consequence, in its Judgment of 19 November 2012, the Court
expressed the view that

29See PCIJ, Judgment, 4 April 1939, The Electricity Company of Sofia, Series A/B, No. 77, p. 76.
30
ICJ, Judgment, 13 December 2007, Territorial and Maritime Dispute (Nicaragua v. Colombia),
Preliminary Objections, Reports 2007, pp. 875-876, paras. 142 (1) (c) and (3) (b).

21 “the claim to an extended continental shelf falls within the
dispute between the Parties relating to maritime
delimitation and cannot be said to transform the

subject‑matter of that31ispute. Moreover, it arises directly
out of that dispute”,

3.4 Then, it concluded

“that the claim contained in final submission I (3) by
Nicaragua is admissible. The Court further note [d] that in

deciding on the admissibility of the new claim, the Court
is not addressing the issue of the validity of the legal
grounds on which it is based.” 32

3.5 However,

“(2) By fourteen votes to one, [the Court]

Finds admissible the Republic of Nicaragua’s claim
contained in its final submission I (3) requesting the Court
to adjudge and declare that ‘[t]he appropriate form of

delimitation, within the geographical and legal framework
constituted by the mainland coasts of Nicaragua and
Colombia, is a continental shelf boundary dividing by

equal parts the overlapping entitlements to a continental
shelf of both Parties’

[…and]

(3) Unanimously,

Finds that it cannot uphold the Republic of Nicaragua’s
claim contained in its final submission I (3).” 33

31ICJ, Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v. Colombia),
Reports 2012, p. 665, para. 111.
32Ibid., p. 665, para. 112.
33Ibid., p. 719, para. 251(2) and (3). In its third Submission, Nicaragua had “requested the Court
to define ‘a continental shelf boundary dividing by equal parts the overlapping entitlements to a
continental shelf of both Parties’.” (ibid., p. 664, para. 106).

223.6 The cautious t erminology adopted by the Court deserves to be noted.
34
Contrary to the usual formula in comparable circumstances including in sub -
35
paragraphs (4), (5) and (6) of the dispositif of the 2012 Judgment, it does not

“reject” Nicaragua’s final submission I (3), which it carefully and expressly

declared admissible; it simply finds tha t “it cannot uphold” this claim. Thus in

paragraph 131 of the Judgment: “The Court concludes that Nicaragua’s claim

contained in its final submission I (3) cannot be upheld.” 36

3.7 The reason for this is explained in paragraph 129 of the Judgment:

“129. However, since Nicaragua, in the present
proceedings, has not established that it has a continental

margin that extends far enough t o overlap with
Colombia’s 200 nautical mile entitlement to the
continental shelf, measured from Colombia’s mainland

coast, the Court is not in a position to delimit the
continental shelf boundary between Nicaragua and

Colombia, as requested by Nicaragua, e 37 ven using the
general formulation proposed by it.”

34See e.g.: I.C.J., Judgment, 20 November 1950, Colombian-Peruvian asylum case, Reports 1950,

p. 288; Judgment, 5 February 1970, Barcelona Traction, Light and Power Company, Limited,
Reports 1970, p. 51, para. 103; Judgment, 20 July 1989, Elettronica Sicula S.p.A. (ELSI), Reports
1989, p. 81, para. 137(3); Judgment, 12 November 1991, Arbitral Award of 31 July 1989, Reports
1991, p. 75, para. 69(1); Judgment, 5 December 2011, Application of the Interim Accord of 13
September 1995 (the former Yugoslav Republic of Macedonia v. Greece), Reports 2011, p. 693,
para. 170(3) or Judgment, 3 February 2012, Jurisdictional Immunities of the State (Germany v.
Italy: Greece intervening), Reports 2012, p. 155, para. 139(5).
35 Where the Court “Decides that the line of the single maritime boundary delimiting the

continental shelf and the exclusive economic zones of the Republic of Nicaragua and the Republic
of Colombia shall follow geodetic lines connecting the points with co‑ordinates :…” (ICJ,
Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v. Colombia),
Reports 2012, p. 719, para. 251 (4)); “Decides that the single maritime boundary around
Quitasueño and Serrana shall follow,…” (p. 720, para. 251 (5); and “Rejects the Republic of
Nicaragua’s claim contained in its final submissions requesting the Court to declare that the
Republic of Colombia is not acting in accordance with its obligations under international law…”
(p. 720, para. 251 (6)).
36
I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
37lombia), Reports 2012, p. 670, para. 131 – italics added.
Ibid., p. 669, para. 129.

23 3.8 In other words, the Court has not rejected this particular Nicaraguan claim;

it has not simply upheld it in this Judgment, thus recognizing that the issue – as

submitted by Nicaragua in its Application – is still pending between the Parties. In

this respect, it can also be noted that in paragraph 112 of its Judgment the Court

expressly indicated “that in deciding on the admissibility of the new claim, the

Court is not addressing the issue of the validity of the legal grounds on which it is
38
based.” Nowhere else in the Judgment is a decision made on the maritime

delimitation between the Parties beyond 200 nautical miles.

II. The basis for the Judgment having changed, the Court now may and
must exercise its jurisdiction to its full extent

3.9 As the Court recalled in several circumstances, it “possesses an inherent

jurisdiction” ;9

“Such inherent jurisdiction […] derives from the mere

existence of the Court as a judicial organ established by
the consent of States, and is conferred upon it in order that
its basic judicial functions may be safeguarded.” 40

3.10 Being a court of justice, the ICJ has an inherent duty to “exercise that
41
jurisdiction to its full extent”. And it would be disingenuous to argue that no

provision in the Rules or the Statute of the Court conf irms such inherent

jurisdiction since as a matter of definition “inherent jurisdiction” is not explicitly

38
Ibid., p. 664, para. 112 – italics added.
39 I.C.J., Judgment, 20 December 1974, Nuclear Tests (Australia v. France), Reports 1974, pp.
259-260, para. 23; (New-Zealand v. France), ibid., p. 463, para. 23. See also Judgment, 2
December 1963, Case concerning the Northern Cameroons (Cameroon v. United Kingdom),
Preliminary Objections, Reports 1963, p. 29 or Advisory Opinion, 1 February 2012, Judgment No.
2867 of the Administrative Tribunal of the International Labour Organization, Reports 2012, p.
30, para. 46.
40
(Australia v. France), ibid., pp. 259-260, paras. 22-23; (New-Zealand v. France), ibid., p. 463,
para. 23. See also: I.C.J., Judgment, 2 December 1963, Northern Cameroons (Cameroon v. United
41ngdom), Separate Opinion of Judge Fitzmaurice, Reports 1963, p. 103.
I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Reports 2012, p. 671, para. 136. See also e.g.: Judgment, 3 June 1985, Continental
Shelf (Libyan Arab Jamahiriya/Malta), Reports 1985, p. 23, para. 19.

24provided for, but it stems from the very nature of the ICJ as a court of law and is

implied in the texts determining the jurisdiction of the Court.

3.11 Based on such inherent jurisdiction, in the Corfu Channel case, “the Court

has arrived at the conclusion that it has jurisdiction to assess the amount of t he

compensation” which was owed by Albania to the United Kingdom during further

proceedings on this subject. 42And this was decided precisely because, in a way

similar to the insufficiency of the evidence offered by Nicaragua in the present

case, the Albani an Government had “not yet stated which items, if any, of the

various sums claimed it contest[ed], and the United Kingdom Government ha[d]

not submitted its evidence with regard to them.” 43

3.12 Leaving aside interpretation and revision, there exists, as Colombi a

recognizes, a “third […] exceptional case, for example, one in which non-

compliance with a respondent’s unilateral commitment – which, in the Court’s

view, has caused the object of the dispute to disappear – will affect the very

‘basis’ of the Court’s Judgment. That was the situation confronted by the Court in
44
the Nuclear Tests cases.”

3.13 In its 1974 Judgments in the Nuclear Tests cases, the Court observed that

“[o]nce the Court has found that a State has entered into a commitment

concerning its future conduct it is not the Court’s function to contemplate that it

will not comply with it.” 45 It is therefore on the understanding that France would

respect its commitments that the Court found that the claims of Australia and New

Zealand “no longer ha[d] any objec t” and “that the Court [was] therefore not

called upon to give a decision thereon” 46. But the Court had made clear “that if

42
43I.C.J., Judgment, 9 April 1949, Corfu Channel case, Reports 1949, p. 26.
44Ibid.
PO, p. 68, para. 4.7.
45See I.C.J., Judgment, 20 December 1974, Nuclear Tests (Australia v. France), Reports 1974, p.
272, para. 60; (New Zealand v. France), ibid., p. 477, para. 63.
46Ibid. (Australia), p. 272, para. 62, (New-Zealand), p. 478, para. 65.

25the basis of this Judgment were to be affected, the Applicant could request an

examination of the situation in accordance with the pr ovisions of the Statute…” 47

And it is on this basis that, in 1995, the Court dismissed New -Zealand’s “Request

for an examination of the situation” since it considered in that case that

“the basis of the Judgment delivered on 20 December
1974 in the Nuclear Tests (New Zealand v. France) case
has not been affected; […] the ‘Request for an
Examination of the Situation’ submitted by New Zealand

on 21 August 1995 does not therefore fall within the
provisions of paragraph 63 of that Judgment; and […] that
Request must consequently be dismissed.” 48

3.14 Indeed, in the present case, the Court had not expressly envisaged “an
examination of the situation” in its Judgment of 19 November 2012. However, the

issue is not whether the Court made a formal “reservation” of the nature of

paragraph 63 in the Nuclear Tests Judgment (in New -Zealand v. France). The

relevant questions are different: on what basis did the Court make this declaration

and what reasons prompted the Court to make that “reservation” ? How are the

answers to these question applicable in the present case? In effect, the possibility

of an examination of the situation in the Nuclear test cases was not created by
paragraph 63 of the 1974 New -Zealand Judgment: in this passage the Court

implicitly refers to a general pr inciple that the commitments taken by a Party

appearing before the Court are presumed to be respected. Thus, when the Court

finds that it has jurisdiction to decide on a dispute submitted to it and that the

Application is admissible, this implies that the Parties: (i) have accepted that the

47Ibid. (Australia), p. 272, para. 60, (New-Zealand), p. 477, para. 63.
48I.C.J., Order, 22 September 1995, Request for an Examination of the Situation in Accordance
with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New
Zealand v. France) Case, Reports 1995, pp. 306, para. 65.

26dispute be settled by the Court in its entirety; and (ii) commit themselves to
49
comply with the Judgment.

50
3.15 The present case is particularly concerned with the first aspect. It is

undeniable that, in its 2012 Judgment, the Court decided that it was seized of the

issue of the delimitation of the continental shelf beyond 200 nautical miles:

“In the Court’s view, the claim to an extended continental

shelf falls within the dispute between the Parties relating
to maritime delimitation and cannot be said to transform

the subject ‑matter of that dispute. Moreover, it arises
directly out of that dispute. What has changed is the legal
basis being advanced for the claim (natural prolongation

rather than distance as the basis for a con tinental shelf
claim) and the solution being sought (a continental shelf
delimitation as opposed to a single maritime boundary),

rather than the subject ‑matter of the dispute. The new
submission thus still concerns the delimitation of the
continental shelf, although on different legal grounds.” 51

3.16 As a consequence,

“112. The Court concludes that the claim contained in
final submission I (3) by Nicaragua is admissible. The

Court further notes that in deciding on the admissibility of

49
See P.C.I.J., Judgment, 17 August 1923, S.S. “Wimbledon”, Series A, No. 1, p. 32; I.C.J.,
Judgment, 20 December 1974, Nuclear Tests (Australia v. France), Reports 1974, p. 272, para. 60;
(New Zealand v. France), ibid., p. 477, para. 63; I.C.J., Judgment, Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and
Admissibility, Reports 1984, pp. 437-438, para. 101 or I.C.J., Judgment, 10 December 1985,
Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case
concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab

50mahiriya), Reports 1985, p. 229, para. 67.
While the second aspect is more particularly relevant in the case concerning Alleged Violations
of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) (see
51lombia’s Preliminary Objections dated 19 December 2014).
I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Reports 2012, p. 665, para. 111.

27 the new claim, the Court i s not addressing the issue of the
validity of the legal grounds on which it is based.” 52

This is an important statement since: (i) it shows that the
delimitation of the extended continental shelf was part of
the dispute submitted to the Court and for which it had

jurisdiction; and (ii) it confirms that the Court h53 not
decided on the merits of this part of the case.

54
3.17 As recalled above and as the Court itself reiterated in the 2012

Judgment: “As the Court held in the Continental Shelf (Libyan Arab

Jamahiriya/Malta) case, ‘[t]he Court must not exceed the jurisdiction conferred

upon it by the Parties, but it must also exercise that jurisdiction to its full extent’
55
(Judgment, I.C.J. Reports 1985, p. 23, para. 19).”

3.18 In the present case, the Court did not uphol d Submission I (3) of

Nicaragua because it considered that Nicaragua had not completely fulfilled all

required formalities. It stated that, “[g]iven the object and purpose of UNCLOS

[United Nations Convention on the Law of the Sea] , as stipulated in its Preamble,

the fact that Colombia is not a party thereto does not relieve Nicaragua of its
56
obligations under Article 76 of that Convention.” and it then observed:

“that Nicaragua submitted to the Commission only
‘Preliminary Information’ which, by its own ad mission,
falls short of meeting the requirements for information on

the limits of the continental shelf beyond 200 nautical

52
53Ibid., para. 112; see also in the dispositif paras. 251 (2) and (3), quoted above at para. 3.5.
See para. 3.3 above.
54See para. 3.9 above.
55 I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Reports 2012, p. 671, para. 136; see also e.g.: I.C.J., Judgment, 18 November 1953,
Nottebohm case (Preliminary Objection), Reports 1953, p. 122; I.C.J., Judgment, 26 February
2007, Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Serbia and Montenegro), Reports 2007, p. 90, para. 116 ; or ICSID,
Compañia de Aquas del Aconquija, S.A. and Compagnie Générale des Eaux v. Argentine
Republic, ICSID Case No. ARB/97/3, Decision on Annulment, 3 July 2002, ICSID Review–FILJ,
5603, p. 135, para. 112.
Reports 2012, p. 669, para. 126.

28 miles which ‘shall be submitted by the coastal State to the

Commission’ in accordance with paragraph 8 of Article 76
of UNCLOS (see paragraph 120 above). Nicaragua
provided the Court with the annexes to this ‘Preliminary
Information’ and in the course of the hearings it stated that
the ‘Preliminary Information’ in its entirety was available

on the Commi57ion’s website and provided the necessary
reference.”

3.19 The Court thus invited Nicaragua to complete its submission to the CLCS.

3.20 As explain ed in more details in Chapter 5 of these Observations,

Nicaragua accepted the invitation and took the necessary steps to comply with the

Court’s requirement:

“On 24 June 2013, the Republic of Nicaragua submitted to
the Commission on the Limits of the Continental Shelf, in
accordance with Article 76, paragraph 8, of the
Convention, information on the limits of the continental

shelf beyond 200 nautical miles from the baselines from
which the breadth of its territorial sea is measured in the
southwestern part of the Caribbean Sea.

[…]

Upon completion of the consideration of the Submission,
the Commission will issue recommendations pursuant to
Article 76 of the Convention.” 58

3.21 Therefore, in accordance with the Court’s Judgment, Nicaragua has now

submitted the necessary information to the CLCS in accordance with paragraph 8
of Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS)

57Ibid., para. 127.
58CLCS, Notification, 1 July 2013, “Receipt of the Submission made by the Republic of
Nicaragua to the Commission on the Limits of the Continental Shelf”, doc. CLCS.66.2013.LOS, p.
1.

29and the Court is now in a position to completely and definitively settle the dispute

between Nicaragua and Colombia brought by Nicaragua in 2001.

3.22 Recourse by the Court to its inherent power to completely settle the

disputes submitted to it is all the more crucial because Colombia has proclaimed

its firm intention to avoid its obligation to peacefully settle its dispute with

Nicaragua. Thus, it observes in its Preliminary Objections:

“This request seems to be an attempt to induce Colombia

to engage in a discussion based on the assumption that
there are overlapping continental shelf claims beyond 200
nautical miles from Nicaragua’s coasts. Colombia declines
to engage in such discussion, and wishes, at the outset, to
state that in its view there are no overlapping claims

beyond 200 nautical miles from the baselines of
Nicaragua. Whether there are or not, Nicaragua had its
opportunity to present its case and failed. The issue has
been definitively decided by the Judgment of 19
November 2012 and is res judicata.” 59

3.23 Nicaragua deals with the non-issue of res judicata in Chapter 4 below. For
the rest, what results from Colombia’s position as expressed in the above

quotation is that it squarely refuses to resort to any means for definitively settling

its dispute with Nicarag ua concerning the delimitation of the Parties’ respective

continental shelf beyond 200 nautical miles from Nicaragua’s coast; and it goes so

far as to deny the existence of any dispute between the Parties on this issue. Yet, it
cannot have it both ways and contend at one and the same time that there was no

dispute on this point and that this same point has been settled as res judicata.

3.24 Moreover, by declining to even engage in a discussion concerning this still
pending issue, Colombia is in breach of its per emptory obligation to settle its

“international disputes by peaceful means in such a manner that international

59
PO, p. 169, para. 7.26.

30peace and security, and justice, are not endangered.” in accordance with Articles

2(3) and 33 (1) of the Charter. In its Judgment of 27 June 1986, the Court firmly

recalled this

“further principle of international law, one which is
complementary to the principles of a prohibitive nature
examined above, and respect for which is essential in the
world of today: the principle that the parties to any

dispute, particularly any dispute the continuance of which
is likely to endanger the maintenance of international
peace and security, should seek a solution by peaceful
means. Enshrined in Article 33 of the United Nations

Charter, which also indicates a num ber of peaceful means
which are available, this principle has also the status of
customary law.” 60

3.25 Colombia’s refusal to definitely settle its dispute with Nicaragua as to the

delimitation of their respective maritime spaces, together with threatening to u se
force in case Nicaragua would endeavour to enforce its rights, 61 makes it

particularly indispensable for the Court to exercise its inherent function to fully

settle the dispute between the two States concerning their respective continental

shelf. This is also in line with the commitment taken by Colombia when it

accepted the jurisdiction of the Court to accept such a full settlement. The ICJ has

therefore an inherent power to examine the situation in view of Colombia’s

calling into question the very basis of its previous Judgment.

3.26 Therefore, if the Court were to find that it has no jurisdiction on the basis

of the Pact of Bogotá, which is relied on by Nicaragua as a basis of jurisdiction in

the present case, as a consequence of the denunciation of the Pact by Colombia,

that denunciation would not constitute an obstacle to the presentation of the

60I.C.J., Judgement, 27 June 1986, Military and Paramilitary Activities in und against Nicaragua
(Nicaragua v. United States of America), Reports 1986, p. 145, para. 290.
61See the Memorial of Nicaragua in the case concerning the Question of the Delimitation of the
continental shelf between Nicaragua and Colombia beyond 200 nautical miles from the
Nicaraguan coast, 3 October 2014, pp. 70-78.

31 claims set forth by Nicaragua in its Application in the present case, due to the

inherent power the Court possesses to completely settle the disputes submitted to

it and for which it still holds jurisdiction.

III. Nicaragua’s request is not a request for interpretation

3.27 To be clear and for the avoidance of any doubt: Nicaragua does not
request an interpretation by the Court of its Judgment of 2012 under Article 60.

The present dispute is not “a difference of opinion or views between the parties as

to the meaning or scope of a judgment rendered by the Court” 62. Therefore, the

object of Nicaragua’s Application is not “to obtain clarification of the meaning

and the scope of what the Court has decided with binding force, [but] to obtain an

answer to questions not so decided” 63 and which the Court has found

admissible. 64

3.28 Nor does Nicaragua ask the Court to reaffirm what it has already decided

in its 2012 Judgment: this is res judicata and Article 59 of the Statute imposes

upon Colombia an unconditional duty to comply without restriction or undue

delay. And Nicaragua would have nothing to gain in asking the Court to simply

repeat what it has already very clearly decided. Nicaragua requests the Court to

62
I.C.J., Judgment, 11 November 2013, Request for Interpretation of the Judgment of 15 June
1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v.
Thailand), para. 33, quoting Request for Interpretation of the Judgment of 15 June 1962 in the
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand),
Provisional Measures, Order of 18 July 2011, I.C.J. Reports 2011 (II), p. 542, para. 22).
63I.C.J., Judgment, 27 November 1950, Request for Interpretation of the Judgment of 20
November 1950 in the Asylum Case (Colombia v. Peru), Reports 1950, p. 402. See also Judgment,
25 March 1999, Request for Interpretation of the Judgment of 11 June 1998 in the Case
concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.

Nigeria), Preliminary Objections (Nigeria v. Cameroon), Reports 1999 (I), pp. 36-37, para. 12, and
Judgment, 11 November 2013, Request for Interpretation of the Judgment of 15 June 1962 in the
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand),
64ra. 55.
I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Reports 2012, p. 665, para. 112 and p. 719, para. 251(2).

32exercise to its full extent the jurisdiction which it recognized itself to hold in
accordance with the Pact of Bogotá in 2001 and to delimit the continental shelf

between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan

coast. Such inherent power constitutes an alternative basis for its jurisdiction in

the present case.

3.29 The submissions of the present chapter are limited to the following:

- that the Court has jurisdiction to decide the maritime boundary between
the Parties beyond 200 nautical miles from the baselines from which the breadth
of the territorial sea is measured;

- that, since the Court has not rejected Nicaragua’s submissions in this

respect in its 2012 Judgment nor decided on them this element of the dispute is
not res judicata;

- that, therefore, the Court has remained seized of the issue;

- that it has an inherent jurisdiction to finally decide on this part of the

dispute; and

- that this basis for the jurisdiction of the Court in the present case, does
not substitute for the basis constituted by Article XXXI of the Pact of Bogotá but
complements it and can be used in the alternative.

3334 CHAPTER 4. NICARAGUA’S CLAIMS ARE NOT BARRED
BY RES JUDICATA

4.1 Colombia’s third preliminary objection is that the Court lacks jurisdiction

because Nicaragua’s claims in this case ostensibly constitute res judicata. As

Colombia sees it: “Since the Court in its Judgment of 19 November 2012 upheld
the admissibility of Nicaragua’s I(3) claim [concerning the delimitation of the

continental shelf beyond 200 M] but did not uphold it on the merits, Nicaragua’s
65
Application of 16 September 2013 is barred by the doctrine of res judicata.”

4.2 Colombia is mistaken. The bar imposed by res judicata – literally, “that

which has been adjudicated” – applies only to matters that were actually decided

in an earlier case. Yet, the Court’s November 2012 Judgment distinctly did not

decide the question presented in this case; namely, where is the continental shelf
boundary between Nicaragua and Colombia in the area beyond 200 M from

Nicaragua’s baselines? To the contrary, the Court specifically declined to make

that determination, finding that it was not in a position to effect the requested

delimitation at that time.

4.3 The plain wording of the Court’s November 2012 Judgment underscores

the limited and conditional nature of its prior determination. At paragraph 129, the

Court stated: “[S]ince Nicaragua, in the present proceedings , has not established
that it has a continental margin that extends far enough to overlap with

Colombia’s 200‑nautical‑mile entitlement to the continental shelf, measured from

Colombia’s mainland coast, the Court is not in a position to delimit the

65
PO of Colombia, para. 5.4.

35continental shelf boundary between Nicaragua and Colombia, as requested by

Nicaragua”. 66

4.4 On this basis, and this basis alone, the Court concluded that “Nicaragua’s
67
claim contained in its final submission I (3) cannot be upheld.” This same

formulation is echoed in the dispositif , in which the Court “[f]inds that it cannot

uphold the Republic of Nicaragua’s claim contained in its final submission I
68
(3).”

4.5 Accordingly, since the issue this case presents has not previously been

decided, res judicata poses no bar to the Court’s jurisdiction.

4.6 The balance of this Chapter is divided into three sections. Section I

reviews the Court’s jurisprudence on res judicata for purposes of correcting

critical omissions from Colombia’s discussion of the applicable law, and making

clear when the doctrine does and does not apply. Section II applies the law to the

November 2012 Judgment and shows that res judicata has no application in this

case. Finally, Section III addresses and disposes of Colombia’s fourth preliminary
objection, which argues that this case is an impermissible attempt to appeal and

revise the Court’s November 2012 Judgment. The fourth preliminary objection

fails for the same reasons as Colombia’s argument about re s judicata; that is, it

assumes the issues in this case were previously decided with binding force. As

will be shown in the balance of this Chapter, they were not.

66Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p.
669, para. 129 (emphasis added).
67Ibid., p. 670, para. 131.
68Ibid., p. 719, para. 251(3).

36 I. Res Judicata Applies Only to Issues That Have Actually Been
Decided

4.7 Colombia’s treatment of the law begins with the statement that “[ r]es

judicata bars reopening a judgment in circumstances in which there is an identity

between ‘the three traditional elements … persona, petitum, causa petendi’.” It 69

then proceeds to show how, in Colombia’s vie w, these three elements of the
70
doctrine are satisfied. In focusing exclusively on the persona, petitum and causa

petendi requirements, however, Colombia bypasses the most fundamental

condition for the application of res judicata: that the issue in dispute have

previously been decided. Stated differently, while the persona, petitum and causa

petendi requirements are necessary to the application of res judicata, they are not

sufficient. Even if they are satisfied, res judicata does not apply unless the

question raised in a subsequent case has been disposed of “finally” and “for
71
good”.

4.8 This basic rule is evident from the plain language of the first case

Colombia cites in its discussion of the law: Interpretation of Judgments Nos. 7

and 8 Concerning the Case of The Chorzów Factory (Germany v. Poland). In that

case, Germany requested the PCIJ to rule that its earlier decision precluded

Poland from acting to remove from the land registers the name of the
Oberschlesische Stickstoffwerke A. -G. as owner of the Chorzów factory. The

Court upheld the German contention, stating:

“The Court’s Judgment No. 7 is in the nature of a

declaratory judgment, the intention of which is to ensure

69PO, para. 5.35 (citing Interpretation of Judgments Nos. 7 and 8 Concerning the Caw of The

Chorzów Factory (Germany v. Poland), PCIJ Series A. No. 13, Judgment No. 11 of 16 December
7027, p. 20).
71Ibid., paras. 5.41-5.70.
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application:
1962), Judgment, I.C.J. Reports 1964, p. 6, 20; RRT KOLB , HE INTERNATIONAL C OURT OF
JUSTICE (2013), p. 761.

37 recognition of a situation at law, once and for all and with

binding legal force between the Parties; so that the legal
question thus established cannot again be called into
question insofar as the legal effects ensuing therefrom are
concerned.” 72

To be barred from “again be[ing] called into question,” the “legal question” must

therefore have been “established,” or answered. When it has not been, res judicata

does not apply.

4.9 Perhaps the most thorough discussion of the scope and purpose of the

doctrine appears in the Court’s 2007 Judgment in the Genocide Case (Bosnia and

Herzegovina v. Serbia and Montenegro), which presented the question of the res

judicata effect of the Court’s jurisdictional determinations made in its earlier 1996
Judgment on Preliminary Objections. In analysing whether res judicata applied,

the Court underscored the requirement that the issue presented in the latter case

must truly have been decided in the prior case.

4.10 In the opening paragraphs of the relevant section of the Judgment, the

Court stated that the

“principle [of res judicata ] signifies that the decisions of
the Court are not only binding on the Parties, but are final,
in the sense that they cannot be reopened by the parties as
regards the issues that have been determined, save by

procedures, of an exc eptional nature, specially laid down
for that purposes [in Articles 59 and 60 of the Statute of
the Court].” 73

72PO, para. 5.36 (emphasis added) (citing Interpretation of Judgments Nos. 7 and 8 Concerning
the Caw of The Chorzów Factory (Germany v. Poland), PCIJ Series A. No. 13, Judgment No. 11
of 16 December 1927, p. 20).
73Case Concerning Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007,
p. 51, para. 115 (emphasisadded).

384.11 In discussing the application vel non of the doctrine to its 1996 Judgment

on jurisdiction, the Court observed that “if any question arises as to the scope of

res judicata attaching to a judgment, it must be determined in each case having

regard to the context in which the judgment was given.” 74Critically, the Court

then stated:

“For this purpose, in respect of a particular judgment it
may be necessary to distinguish between, first, the issues
which have been decided with the force of res judicata, or

which are necessarily entailed in the decision of those
issues; secondly any peripheral or subsidiary matters, or
obiter dicta; and finally matters which have not been ruled
upon at all. … If a matter has not in fact been determined,

expressly or by necessary implication, then no force of res
judicata attaches to it; and a general finding may have to
be read in context in order to ascertain whether a particular
matter is or is not contained in it.”75

4.12 In his Separate Opinion in the Genocide Case , Judge Owada emphasized

that in applying the res judicata rule, “it is indeed essential that we avoid an
automatic application of the rule and try to determine the scope of what has been

decided as res judicata in the concrete context of the case”. 76

4.13 The Haya de la Torre case presents a useful demonstration of the rule that

even closely related issues not actually determined in one case remain amenable

to adjudication in another. Haya de la Torre had been preceded by the Asylum

case in which the Court determined that the asylum Colombia granted to Mr.

Haya de la Torre was contrary to the provisions of the 1928 Havana Convention.
In the subsequent Haya de la Torre case, Colombia asked the Court to adjudge

and declare that the Court’s prior judgment did not require it to surrender Mr.

74Ibid., p. 56, para. 125 (citation omitted).
75Ibid., p. 56, para. 126 (emphasisadded).
76Ibid., Separate Opinion of Judge Owada, p. 290, para. 15. See also ibid., Joint Dissenting
Opinion of Judges Ranjeva, Shi and Koroma, p. 267, para. 3 (stating: “simply put, res judicata
applies to a matter that has been adjudicated and decided. A matter that the Court has not decided
cannot be qualified as res judicata”).

39Haya de la Torre to Peruvian authorities, notwithstanding the fact that the Court

had already determined that the asylum was illegal.

4.14 In its Judgment, the Court looked to its Judgment in the Asylum case and
determined that the question of whether or not Colombia was obliged to surrender

Mr. Haya de la Torre to Peru

“was not submitted to the Court and consequently was not
decided by it . It is not therefore possible to deduce from
the Judgment of November 20th [1950] any conclusion as
to the existence or non -existence of an obligation to

surrender the refugee. In these circumstances, the Court is
not in a position to state, merely on the basis of the
Judgment of November 20th, whether Colombia is or is
not bound to surrender the refugee to the Peruvian
authorities.”77

4.15 The Court therefore proceeded to address the question of the leg al
consequences flowing from its prior determination of the irregularity of the

asylum granted to Mr. Haya de la Torre. 78

4.16 As will be shown in the next section of this Chapter, the circumstances of

this case are analogous. As in Haya de la Torre , the question presented here

(namely, the location of the continental shelf boundary between Nicaragua and
Colombia in the area beyond 200 M from Nicaragua’s baselines) was not decided

in the Court’s November 2012 Judgment. And also as in Haya de la Torre , it is

impossible to deduce from the November 2012 Judgment any conclusions as to

the location of that boundary. Res judicata therefore imposes no bar to
Nicaragua’s claims in this case.

77
78Haya de la Torre Case, Judgment, I.C.J. Reports 1951, p. 79.
Ibid., pp. 80-83.

40II. The Court Did Not Previously Decide the Questions Presented in This
Case

4.17 In arguing that res judicata bars Nicaragua’s claims in this case, Colombia

expends the majority of its energy recapitulating the Parties’ earlier argumentation

on the issues concerning delimitation beyond 200 M from Nicaragua’s
79
baselines. It describes in great detail the sequence and evolution of the written
pleadings, as well as the content of the arguments at the oral hearings (largely

between Professor Lowe and Mr. Cleverly on behalf of Nicaragua, and Mr. Bundy

on behalf of Colombia). Colombia’s devotion to these issues is, with respect,

misplaced. What the Parties argued in the Territorial and Maritime Dispute is

beside the point on the critical issue here: whether or not the Court decided the

issues concerning the delimitation of the continental shelf boundary beyond 200
M from Nicaragua’s coast in its November 2012 Judgment.

4.18 On that dispositive issue, Colombia is notably more reserved. With respect

to what the Court decided in response to the arguments with which it was

presented – what “res” was in fact “judicata” – Colombia largely confines itself to

the contention, echoed in several different paragraphs, that “[s]ince the Court in
its Judgment of 19 November 2012 upheld the admissibility of Nicaragua’s I(3)

claim [concerning the delimitation beyond 200 M] but did not uphold it on the

merits, Nicaragua’s Application of 16 September 2013 is barred by the doctrine of
80
res judicata.”

4.19 With this studied turn of phrase, Colombia seeks to elide the key
distinction between deciding a claim on the merits, on the one hand, and what the

Court actually did in declining to “uphold” Nicaragua’s earlier claim, on the other.

79PO, para. 5.6-5.26.
80Ibid., para. 5.4. See also ibid. Argument Heading 5(C)(2), at p. 101 (“The Court did not uphold

Nicaragua’s I(3) claim on the merits”); para. 5.34 (“Thus the Court, by deciding that the claim was
admissible and not upholding it on the merits … produced a res judicata.”).

41An examination of the November 2012 Judgment makes plain that the Court’s

decision not to “uphold” Nicaragua’s claim did not, in fact, entail a determination

of Nicaragua’s request to delimit the continental shelf beyond 200 M on the

merits.

4.20 As noted, the dispositif of the November 2012 Judgment states that the

Court “cannot uphold the Republic of Nicaragua’s claim contained in its final
81
submission I(3)”. The Court’s use of the phrase “cannot uphold” is itself telling.

The Court did not “reject” Nicaragua’s submissi on; nor did it use other wording

indicative of a substantive determination of Nicaragua’s claims. In particular, the

Court did not decide that Nicaragua has no continental shelf rights beyond 200 M,

or that, as a consequence, no basis exists for a delimita tion in that area between

Nicaragua and Colombia.

4.21 Moreover, read against the backdrop of the Court’s clearly expressed

reasoning, it is evident that the Court’s decision not to “uphold” Nicaragua’s

claim was not intended to dispose of the question concerni ng the existence of the

Parties’ continental shelf rights beyond 200 M from Nicaragua’s coast, or the

location of the Parties’ continental shelf boundary in that area “finally” or “for
82
good”. To the contrary, the Court specifically declined to make any su ch

determination because Nicaragua had not yet made its final submission to the

Commission on the Limits of the Continental Shelf (“CLCS”).

4.22 The Court began its analysis by addressing whether Nicaragua’s claim for

delimitation of a continental shelf extending beyond 200 M was admissible. As
83
Colombia correctly observes, it concluded that the claim was indeed admissible.

81Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p.

828, para. 251(3).
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application:
1962), Judgment, I.C.J. Reports 1964, p. 6, 20; RRT K OLB, THE INTERNATIONAL COURT OF
83STICE (2013), p. 761.
PO, para. 5.27.

42At the same time, the Court made it clear that in deciding the issue of

admissibility, it was “not addressing the issue of the validi ty of the legal grounds

on which it is based”. 84

4.23 The Court then turned to the question not of the location of the continental

shelf boundary, or even the principles applicable in making that determination,

but rather “whether it [was] in a position to deter mine ‘a continental shelf

boundary dividing by equal parts the overlapping entitlements to a continental
85
shelf of both Parties’ as requested by Nicaragua”. Because of the circumscribed
nature of the question that the Court posed – that is, whether it was “in a position

to determine” the Parties’ overlapping entitlements in the continental shelf – it

specifically refused to decide certain other questions the Parties had addressed in

their written and oral submissions. Regarding their disagreement as to the nature

and content of the rules governing the entitlements of coastal States to a

continental shelf beyond 200 M, for example, the Court stated: “At this stage, in

view of the fact that the Court’s task is limited to the examination of whether it is

in a p osition to carry out a continental shelf delimitation as requested by
Nicaragua, it does not need to decide whether other provisions of Article 76 of

UNCLOS form part of customary international law”. 86

4.24 The Court ultimately concluded that it was not in a pos ition to determine

the continental shelf boundary between the Parties as requested by Nicaragua. In

so finding, the Court first noted that the information Nicaragua had submitted to

the CLCS was “only Preliminary Information” which “falls short of meeting the

requirements for information on the limits of the continental shelf beyond 200 M

84Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012,
p. 665, para. 112.
85Ibid., p. 665, para. 113.
86Ibid., p. 666, para. 118.

43which ‘shall be submitted by the coastal State to the Commission’ in accordance
with paragraph 8 of Article 76 of UNCLOS”. 87

4.25 The Court then determined that “since Nicaragua , in the present

proceedings, has not established that it has a continental margin that extends far

enough to overlap with Colombia’s 200‑nautical ‑mile entitlement to the

continental shelf, measured from Colombia’s mainland coast, the Court is not in a

position to delimit the continental shelf boundary between Nicaragua and

Colombia, as requested by Nicaragua”. 88

4.26 The Court further underscored the circumscribed nature of its ruling by

stating that, in view of its decision that it was not in a position to deli mit the

continental shelf boundary, it “ need not address any other arguments developed

by the Parties, including the argument as to whether a delimitation of overlapping

entitlements which involves an extended continental shelf of one party can affect
89
a 200‑nautical‑mile entitlement to the continental shelf of another party”.

4.27 The Court thus made it abundantly clear that it had not decided whether
Nicaragua has continental shelf rights beyond 200 M that overlap with

Colombia’s continental shelf rights emana ting from its mainland coast, nor the

location of any continental shelf boundary between the Parties in that area, nor

even the general rules applicable to the delimitation. The Court concluded only

that in that particular proceeding, it could not resolve that dispute. Colombia is

therefore plainly incorrect when it asserts that each of the grounds Nicaragua

states for its claims in the present case “was decided in the Court’s Judgment of
90
19 November 2012”.

87Ibid., p. 669, para. 127. As Nicaragua noted in its Application, it submitted its final information
to the Commission on the Limits of the Continental Shelf on 24 June 2013. Application, para. 5.
88Ibid., p. 669, para. 129 (emphasis added).
89Ibid., pp. 669-670, para. 130 (emphasisadded).
90PO, para. 5.41.

444.28 In the end, the Court’s language from the Genocide Case provides perhaps

the clearest demonstration of the fact that res judicata does not apply here. In the

process of rejecting Respondent Serbia and Montenegro’s arguments based on
cases in which the Court had addressed jurisdictional issues even after having

delivered a previous judgment on jurisdiction, the Court stated:

“The essential difference between the cases mentioned in
the previous paragraph and the present case is this: the
jurisdictional issues examined at a late stage in those cases

were such that the decision on them would not contradict
the finding [] made in the earlier judgment . … By
contrast, the contentions of the Respondent in the present
case would, if upheld, effectively reverse the 1996
Judgment; that indeed is their purpose.” 91

4.29 The touchstone for determining whether or not res judicata applies is thus
whether a decision on the issue raised in a later proceeding would “contradict” the

finding in an earlier determination; that is, whether a finding in favour of the party

pressing t he claim would effectively “reverse” the earlier judgment. That is

plainly not the case here. A decision on Nicaragua’s claims in the current

proceedings would not contradict the Court’s findings in the November 2012
Judgment; nor would a decision upholding Nicaragua’s contentions effectively

reverse that Judgment. Res judicata therefore does not bar the Court’s jurisdiction.

4.30 Colombia’s res judicata argument is not assisted by its effort to enlist the

Haya de la Torre case to its aid. As Colombia purports to see it, that case actually
helps it because the key fact that allowed the subsequent litigation to proceed was

allegedly that Peru had not raised the relevant issue – namely, whether Colombia

was obligated to surrender Mr. Haya de la Torre to Peruvian authorities – in the

91
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007,
p. 96, para. 128 (emphasisadded).

45 92
prior Asylum case. Yet, the plain language of the Court’s opinion refutes

Colombia’s argument by making clear that this was not the decisive point. Rather,

the critical fact was that the issue had not previously been decided. According to

the Court, the relevant “question was not submitted to the Court and consequently
93
not decided by it .” To be sure, the Court did state that the question raised was

“new,” but this merely explained why no prior decision had been rendered; it was
94
not itself the reason res judicata did not apply. Here too the question presented

has not previously been decided.

4.31 In this respect, the situation presented here is analogous to Nicaragua’s

request for US$370 million representing the minimum valuation of direct

damages in the case concerning Military and Paramilitary Activities in and

against Nicaragua (Nicaragua v. United States of America). In its 1986 Judgment

on the merits, the Court determined that, based in part on the fact that Nicaragua

had not established an entitlement to the requested amount with “certainty and

precision”, it “does not consider that it can acceded at this stage to the request
95
[made by] Nicaragua.” Nevertheless, the Court’s determination did not preclude

Nicaragua from establishing its c laim to damages with the requisite certainty and
96
precision at a subsequent phase of the proceedings. The result should be the

same here.

4.32 Neither is Colombia assisted by its argument that Nicaragua is somehow
97
impermissibly seeking “to circumvent the doctrine of res judicata” by relying on

92PO, para. 5.53.
93Haya de la Torre Case, Judgment, 1951, I.C.J. Reports 1951, p. 80. Later in the same paragraph,
the Court stated “the question of the surrender of the refugee was not decided by the Judgment of
November 20th. … There is consequently no res judicata upon the question of surrender.” Ibid.
94Ibid., p. 79.
95
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
96ited States of America), Judgment, I.C.J. Reports 1986, p. 143, para. 285.
97Ibid., para. 292(15).
PO, para. 5.78.

46“new geological and geomorphological facts”. 98 In making this argument,

Colombia misrepresents the realities of the situation in two significant respects.

First, Nicaragua does not rely on new information to avoid the application of res
judicata. For the reasons already amply explained, res judicata simply has no

application to this case; there is therefore no question of Nicaragua seeking “to

circumvent” it.

4.33 Second, Nicaragua is not seeking to rely on new geological and

geomorphological facts as such. To the contrary, what has changed since the

Court’s November 2012 Judgment is that on 24 June 2013 Nicaragua fulfilled its

procedural obligation under UNCLOS Article 76(8) to make its submission to the

CLCS concerning the precise location of the outer limits of its continental margin.
That submission indisputably satisfies the Commission’s informational

requirements as contained in its Scientific and Technical Guidelines, and shows

definitively that Nicaragua has a continenta l margin that overlaps with

Colombia’s 200‑nautical‑mile entitlement to the continental shelf. The Court will

therefore now have all the information it requires to exercise its mandate to settle
disputes.

4.34 The conclusion that res judicata is inapplicable to Nicaragua’s claims in

this case is still further confirmed by reference to the purposes of the doctrine. As

the Court has explained:

Two purposes, one general, the other specific, underlie the
principle of res judicata, internationally as nationally.

First, the stability of legal relations requires that litigation
come to an end. The Court’s function, according to Article
38 of its Statute, is to ‘decide’, that is, to bring to an end,
‘such disputes as are submitted to it’. Secondly, it is in the

98
Ibid., para. 5.77.

47 interest of each party that an issue which has already been
adjudicated in favour of that party be not argued again.” 99

4.35 Permitting Nicaragua to press its claims, and rejecting Colombia’s
preliminary objection, would be entirely consistent with both of these purposes. In

contrast, accepting Colombia’s res judicata plea would seriously undermine these

same goals. With respect to the first – fostering stable legal relations by deciding

disputes – the fact is, as discussed above, that the Court did not previously decide

the dispute now before it. To the contrary, it w as left open. As such, it continues
to present an obstacle to stable legal relations between Nicaragua and Colombia,

which remain sharply divided on the merits of the question concerning their

respective, and in Nicaragua’s view overlapping, entitlements i n the continental

shelf beyond 200 M from Nicaragua’s coast. Without action by the Court, the

dispute will continue to fester and impede stable legal relations between the two
States.

4.36 With respect to the second purpose res judicata serves – the interests of

the party in whose favour an issue has already been adjudicated in having that

issue not be argued again – the same points apply. The issue has not been
adjudicated in favour of either Nicaragua or Colombia; it remains unanswered.

The Parties’ interest in having their dispute disposed of “finally” and “for good”,

and in having a secure and durable solution, therefore predominates.

4.37 For all these reasons, Colombia’s third preliminary objection must be
rejected.

99
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007,
p. 90, para. 116.

48III. This Case Is Neither an Appeal Nor a Request for Revision of the
November 2012 Judgment

4.38 Colombia’s fourth preliminary objection is that the current case represents

an impermissible attempt to appeal and revise the November 2012 Judgment, and

that the Court is therefore without jurisdiction. Colombia is mistaken. This aspect

of Colombia’s submission is little more than a repackaged version of its res
judicata argument. It therefore fails for precisely the same reasons articulated

above: the issues presented in this case were not decided by the Novem ber 2012

Judgment. What was undecided cannot be “appealed” or “revised”. Nicaragua’s

Application therefore cannot fairly be read to request either one.

4.39 The fallacy of Colombia’s fourth preliminary objection is evident from the

very first paragraph of the argument, in which Colombia states its predicate.

Concerning the 2012 Judgment, Colombia says: “[The Court] did, however, effect

a full and final delimitation of the maritime boundary between the Parties,
including the continental shelf and the exclusive e conomic zone.” 100 As

demonstrated above, this is plainly false. Although the Court did delimit the

maritime boundary within 200 M of Nicaragua, it made no determination with

respect to the continental shelf boundary beyond 200 M. There is, moreover,

nothing in the Judgment to even suggest that the Court considered that it had in
any way decided the entire course of the Parties’ maritime boundary, and

completely resolved the dispute before it.

4.40 To the contrary, the Court made it clear that the question of the
delimitation beyond 200 M from Nicaragua’s baselines remained unanswered. To

the elements of the November 2012 Judgment discussed already above, still more

can be added. In particular, after deciding that it was not in a position to delimit in

the area beyond 200 M, the Court then turned to the delimitation that it was in a

100
PO, para. 6.1

49position to effect in Section V of its Judgment. The manner in which it introduced

the issue it was deciding is telling:

“In light of the decision it has taken regarding Nicaragua’s

final submission I(3) (see paragraph 131 above), the Court
must consider what maritime delimitation it is to effect.
Leaving out of account any Nicaraguan claims to a
continental shelf beyond 200 nautical miles means that
there can be no question of determining a maritime
boundary between the mainland coasts of the Parties, as

these are significantly more than 400 nautical miles apart.
There is, however, an overlap between Nicaragua’s
entitlement to a continental shelf and exclusive economic
zone extending to 200 nautical miles from its mainland
coast and adjacent islands and Colombia’s entitlement to a

continental shelf and exclusive economic zone derived
from the islands over which the C101t has held that
Colombia has sovereignty ….”

4.41 The significance of the phrase “[l]eaving out of account any Nicaraguan

claims to a continental shelf beyond 200 nautical miles” is self -evident. Having

previously determined that it was “not in a position” to delimit in that area, the
Court carefully set the issue to one side (by leaving it “out of account”) and

proceeded to effect only the delimitation it was in a position to do. In so doing, it

made no substantive determination on the merits of the issue and left it open for

determination in subsequent proceedings.

4.42 Since, contrary to Colombia’s core contention, the November 2012

Judgment did not “effect a full and final delimitation of the maritime boundary

between the Parties,” and, in particular, did not decide the issue of the continental

shelf boundary beyond 200 M from Nicaragua’s baselines, there is no relevant
decision Nicaragua could even arguably be said to be seeking to appeal or revise.

101
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012,
p. 670, para. 132 (emphasis added).

504.43 In light of the above, Colombia’s specific arguments about Nicaragua ’s

ostensible effort (1) to appeal the November 2012 Judgment, and (2) to revise it

can be disposed of promptly.

4.44 With respect to Colombia’s argument that Nicaragua impermissibly seeks

to appeal the 2012 Judgment, Colombia itself makes it emphatically clea r that this

contention stands or falls together with its assertion that the November 2012

Judgment decided the issues in this case with the force of res judicata. It states:

“By trying to re -litigate matters that have been decided with the force of res
judicata, Nicaragua is actually trying to appeal the Court’s Judgment.” 102Yet, as

explained earlier in this Chapter, the issues presented in this case were distinctly

not previously “decided with the force of res judicata.” That being the case, there

is no binding decision Nicaragua might be said to be appealing.

4.45 With respect to Colombia’s argument that Nicaragua is seeking to revise

the November 2012 Judgment, much the same can be said. Colombia asserts:

“Nicaragua’s Application purports to adduce a new fact, or facts, which

purportedly justify the Court revising its 2012 Judgment in which it had effected a
103
full and final delimitation of the maritime boundary between the Parties.” But,
of course, that is not true. As shown, the Court neither effected “a full a nd final

delimitation of the maritime boundary between the Parties”, nor made any other

binding determinations with respect to the continental shelf boundary beyond 200

M from Nicaragua’s baselines. Accordingly, there is no relevant decision the

revision of which Nicaragua could need to seek.

4.46 For these reasons, Colombia fourth preliminary objection must be rejected

together with its third. Because the Court’s 2012 Judgment did not produce a res

judicata, there is nothing for Nicaragua to either appeal or ask the Court to revise.

102
103PO, para. 6.13.
Ibid., para. 6.19.

5152 CHAPTER 5. ADMISSIBILITY

5.1 Nicaragua’s Application of 16 September 2013 contains two requests.

Paragraph 12 of the Application reads as follows:

“12. Nicaragua requests the Court to adjudge and declare:

First: The precise course of the maritime boundary
between Nicaragua and Colombia in the areas of the
continental shelf which appertain to each of them beyond
the boundaries determined by the Court in its Judgment of
19 November 2012.

Second : The principles and rules of international law that
determine the rights and duties of the two States in relation
to the area of overlapping continental shelf claims and the
use of its resources, pending the delimitation of the
maritime boundary between them beyond 200 nautical

miles from Nicaragua’s coast.”

5.2 As an alternative to its submission concerning the Court’s jurisdiction in

respect of Nicaragua’s Application, Colombia objects to the admissibility of both
the first and the second requests in Nicaragua’s Application. 104 As the Court put it

in the Oil Platforms case

“Objections to admissibility normally take the form of an
assertion that, even if the Court has jurisdiction and the
facts stated by the applicant State are assumed to be
correct, nonetheless there are reasons why the Court
105
should not proceed to an examination of the merits.”

5.3 That is the character of Colombia’s Preliminary Objections concerning

admissibility.

104
105PO, ch. 7.
I.C.J. Reports 2003, 161 at para. 29.

535.4 Colombia’s submission on admissibility has two components. Colombia
106
says that if the Court finds that it has jurisdiction

“7.2 Nicaragua's First Request is inadmissible because of
Nicaragua's failure to secure the requisite CLCS
recommendation.

7.3 Nicaragua's Second Request is inadmissible as a
consequence of the inadmissibility of its first request.
Even considering the second request independently of the

first, it would also be inadmissible because, if it were to be
granted, the decision of the Court would be inapplicable
and would concern a non-existent dispute.”

5.5 It is axiomatic that the burden of establishing Colombia’s submission that

the Court, which ex hypothesi has jurisdiction over Nicaragua’s Application,

should not exercise its jurisdiction lies upon Colombia: actori incumbit
107
probatio. The plea of i nadmissibility is distinct from the plea that the Court
108
lacks jurisdiction; and the Party putting forward a plea of inadmissibility must

persuade the Court that it is right to apply the relevant legal principles to the case

before it so as to lead to the result which that Party advocates, rather than the
result that the other Party advocates. In this respect it is like other submissions on

the law advanced by a party in support of its case, and it is unlike submissions on

106PO, paragraph 7.1, fn 265.
107See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p.
43 at p. 128 paragraph 204: “...it is well established in general that the applicant must establish its
case and that a party asserting a fact must establish it.” Cf., Bin Cheng, General Principles of Law
as applied by International Courts and Tribunals, (Cambridge, 1987), pp. 326-335; J Pauwelyn,

‘Evidence, Proof and Persuasion in WTO Dispute Settlement’, Journal of International Economic
law 1 (1998), 227-258; C Brown, A Common Law of International Adjudication, (2007),
108 92-95.
See Sir G Fitzmaurice, The Law and Procedure of the International Court of Justice, vol. II,
p. 439. Referring to Ambatielos (Merits) Judgment, I.C.J. Reports 1953, p.10, at 22-23 and
Nottebohm case (Preliminary Objection), Judgment, I.C.J. Reports 1953, p. 111 at p. 122.

54questions of jurisdiction, which a re for the Court itself to consider and settle

regardless of the submissions of the Parties. 109

I. Admissibility pending a recommendation by the CLCS

5.6 Colombia’s first submission is that, assuming that the Court has

jurisdiction over the question of the existence and limits of Nicaragua’s

continental shelf, the Court should nonetheless not examine the merits of
Nicaragua’s Application because of Nicaragu a's failure as yet to secure the

requisite CLCS recommendation.

5.7 As a reason why the Court should not proceed to an examination of the

merits in this case, Colombia’s submission is (A ) based upon a non sequitur , (B)

leads to a practical impasse, and (C) is in any event a matter for the merits phase
rather than a preliminary objection.

A. The non sequitur

5.8 The non sequitur is evident. Paragraphs 7.4 to 7.23 of Colombia’s

Preliminary Objections paraphrase the UNCLOS provisions on the competence of

the Commission on the Limits of the Continental Shelf and include the assertion

that

“The ICJ cannot consider the Application by Nicaragua
because the CLCS has not ascertained that the conditions
for determining the extension of the outer edge of
Nicaragua's continental shelf beyond the 200-nautical mile
line are satisfied and, consequently, has not made a
110
recommendation.”

109See, e.g., Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J.

110orts 1998, p. 432, at p. 450, para. 37.
PO, paragraph 7.15.

555.9 Colombia offers no persuasive reasoning to explain why the fact that the

CLCS has a limited (and essentially advisory) competence – in the words of

UNCLOS Article 76(8), the competence to “make recommendations to coastal
States on matters related to the establi shment of the outer limits of their

continental shelf” (emphasis added) – should entail the inadmissibility as a matter

of international law of Nicaragua’s Application to the International Court in this

case. It offers no reason why the International Court of Justice should be obliged
to step aside and wait on action by the CLCS before hearing Nicaragua’s

Application.

5.10 Colombia’s submission is contrary to legal principle. As a matter of

customary international law, clearly and repeatedly affirmed in the case- law of
this Court, the rights of a coastal State over the continental shelf are inherent.

They exist ipso facto and ab initio. 111In the words of the Court in the Aegean Sea

Continental Shelf case,

“... legally a coastal State’s rights over the continental

shelf are both appurtenant to and directly derived from the
State’s sovereignty over the territory abutting on that
continental shelf. ..... This emerges clearly from the
emphasis placed by the Court in the North Sea Continental
Shelf cases on "natural pr olongation" of the land as a

criterion for determining the extent of a coastal State's
entitlement to continental shelf as against other States
abutting on the same continental shelf (I.C.J. Reports
1969, pp. 31 et seq.)... As the Court explained in the
above-mentioned cases, the continental shelf is a legal
concept in which "the principle is applied that the land

dominates the sea" (I.C.J. Reports 1969, p. 51, para. 96);
and it is solely by virtue of the coastal State's sovereignty
over the land that rights of exploration and exploitation in
the continental shelf can attach to it, ipso jure , under
international law. In short, continental shelf rights are

111
I.C.J. Reports 1969, p. 3 at p. 23 para. 19.

56 legally both an emanation from and an automatic adjunct
of the territorial sovereignty of the coastal State.”112

5.11 As a matter of customary international law Nicaragua has rights over its

continental shelf now, and has had such rights continuously since the time before

it acceded to the UNCLOS; and nothing in the UNCLOS purports, directly or
indirectly, to remove those rights.

5.12 In so far as the UNCLOS has any effect upon the exercise of a State’s pre-

existent rights under customary international law, it does so in limited terms. This

is clear from the plain words of UNCLOS Article 76. Paragraphs (1) to (6) of
UNCLOS Article 76 define a State’s continental shelf which is, in the words of

Article 76(1), the “natural prolongation of its land territory to the outer edge of the

continental margin”. UNCLOS Article 77(3), reflecting the rule of customary

international law on ipso facto and ab initio appurtenance, stipulates that the
rights of the coastal State over its continental shelf “do not depend on occupation,

effective or notional, or on any express proclamation.” The rights that Nicaragua

has over its continental shelf it has automatically, ipso jure, by operation of law.

5.13 Nicaragua has an obligation under UNCLOS Article 76(8) to submit
certain information on its continental shelf to the CLCS. The obligation to submit

information to the CLCS is an ancillary obligation, and there is no suggestion that

the existence or maintenance of a coastal State’s inherent continental shelf rights

is in any way dependent upon its fulfilment.

5.14 The CLCS is concerned only with the precise location of the outer limit of

the continental shelf. It does not grant or recognise the rights of a coastal State to

its shelf; nor is it empowered to delimit boundaries in the shelf. Its sole role is to

confirm the location of the outer limit of the shelf. This role is defined in the

112
Aegean Sea Continental Shelf case, I.C.J. Reports 1978, p. 3, para. 86.

57UNCLOS. UNCLOS Article 76(7) stipulates that the coastal State must delineate

the outer limit of its continental shelf beyond 200 nautical miles from its

baselines, and must do so by means of straight lines not exceeding 60 nautical
miles in length and connecting fixed points defined by coordinates of latitude and

longitude. The conditions that the fixed points must satisfy are set out in

UNCLOS Articles 76(4) and (5):

“4. (a) For the purposes of this Convention, the coastal

State shall establish the outer edge of the c ontinental
margin wherever the margin extends beyond 200 nautical
miles from the baselines from which the breadth of the
territorial sea is measured, by either:

(i) a line delineated in accordance with paragraph 7 by

reference to the outermost fixed points at each of which
the thickness of sedimentary rocks is at least 1 per cent of
the shortest distance from such point to the foot of the
continental slope; or

(ii) a line delineated in accordance with paragraph 7 by
reference to fixed points not more than 60 nautical miles

from the foot of the continental slope.

(b) In the absence of evidence to the contrary, the foot of
the continental slope shall be determined as the point of
maximum change in the gradient at its base.

5. The fixed points comprising the line of the outer limits

of the continental shelf on the seabed, drawn in
accordance with paragraph 4 (a)(i) and (ii), either shall not
exceed 350 nautical miles from the baselines from which
the breadth of the territor ial sea is measured or shall not
exceed 100 nautical miles from the 2,500 metre isobath,
which is a line connecting the depth of 2,500 metres.”

5.15 The CLCS reviews the data submitted by each coastal State and makes
appropriate recommendations to the submitting State. 113An improper delineation

113
For an example concerning Ireland, see the Recommendations by the CLCS at
http://www.un.org/depts/los/clcs_new/submissions_files/submission_irl.h…..

58of the shelf’s outer limits giving a coastal State an excessively wide shelf would

benefit that State at the expense of the international community as a whole, which

is the beneficiary of the provisions by which UNCLOS im plements the principle

that the seabed beyond the limits of national jurisdiction is the ‘common heritage
114
of mankind’. The role of the CLCS is to protect the international community

from such excessive shelf claims. However, its recommendations are not bi nding

on the submitting State. If a State disagrees with the recommendations, it may
115
make a revised or new submission to the CLCS.

5.16 Only outer limits established by a coastal State “on the basis of”

recommendations of the CLCS are “final and binding” limits, according to

UNCLOS Article 76(8). The Court decided in its Judgment of 19 November 2012

that continental shelf outer limits that are not based upon CLCS recommendations

concerning the outer limits do not have a “final and binding” quality, even as
116
regards a State that is not a party to UNCLOS.

5.17 The “final and binding” quality of the outer limits of the continental shelf
(as opposed to the boundaries in the shelf between opposite of adjacent States,

which are no concern of the CLCS) depends upon ac tion by the CLCS. In

contrast, nothing in the UNCLOS suggests that the actual existence of rights over

the continental shelf and its resources depends upon the prior establishment of a

“final and binding” boundary, any more than the existence of sovereignt y over

land territory depends upon the final and binding determination of a land

boundary. Prior to the making of a CLCS recommendation and the setting of outer

limits for the continental shelf based upon it, it may be uncertain which of two (or

more) States has rights over any particular area; but that is not at all the same as

114UNCLOS Article 136 and Part XI, passim.
115UNCLOS Annex II, Article 8.
116Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012,
p. 624 at p. 669, para. 126.

59saying that neither State has any such rights until the ‘final and binding’

determination is made.

5.18 Further, a CLCS recommendation cannot prejudice matters relating to the

delimitation of continental shelf boundaries between Nicaragua and Colombia.

The recommendations relate only to the outer limits of the continental shelf,

which separate the continental shelf under national jurisdiction from the
117
international seabed area. The recommendations do not, and as a matter of law
cannot, relate to the maritime boundaries between adjacent or opposite States.

5.19 UNCLOS itself stipulates that

“The actions of the [CLCS] shall not prejudice matters

relating to the delimitation of bound118es betwe en States
with opposite or adjacent coasts.”

5.20 Rule 46 of the Rules of the CLCS repeats that point; and Annex I to the

Rules requires that in relation to submissions made by States in respect of

disputed areas the CLCS shall be “[a]ssured by the coastal St ates making the

submission to the extent possible that the submission will not prejudice matters
119
relating to the delimitation of boundaries between States.” The intention

appears to be precisely to avoid submissions to the CLCS becoming obstacles to
the settlement of maritime boundaries. This risk is further avoided by the CLCS

practice of not considering submissions relating to areas that are in dispute. 120

117See the statement by the Kenyan delegate to UNCLOS III at UNCLOS III, OR, vol. II, p. 161,
paragraph 17. Cf., S N Nandan and S Rosenne, United Nations Convention on the Law of the Sea
1982. A Commentary, vol. II, p. 847.
118
UNCLOS Annex II, Art. 9. It is unclear how Colombia thinks [Preliminary Objections
paragraph 7.16, 7.17] that the extent or limits of each States entitlement be determined by
119 CLCS.
120Rules of Procedure of the CLCS, Annex I, para. 2(b).
Paragraph 5 (a) of Annex I to the Rules of Procedure of the Commission on the Limits of the
Continental Shelf provides that the Commission will not “consider and qualify” submissions

605.21 The Court considered that at the time of its 2012 Judgment Nicaragua had

not submitted all of the inf ormation sought by the CLCS. The Court determined

that, for this reason, it was not in a position to delimit the continental shelf
121
boundary between Nicaragua and Colombia. Nicaragua has now submitted all

of the necessary information to the CLCS. Nicaragua has taken all possible steps

to remove the obstacles that the Court considered to stand in the way of it
reaching a decision on delimitation. Nicaragua respectfully submits that it is now

entitled to secure its inherent an pre -existing rights under international law to the

continental shelf and to have its boundary with Colombia in the shelf determined

by the Court.

5.22 Moreover, while Colombia may not concede the legal consequences of the

facts, it has not at any stage challenged the factual and geomorphological evidence
of the continuity of the seabed as the natural prolongation of Nicaragua’s territory.

It is completely obvious from maps and data relating to the seabed in the area, and

is a fact that is not questioned, that the seabed extends from the Nicara guan coast

in this way. There is no significant uncertainty on this matter. In the Bangladesh /

Myanmar Maritime Delimitation case, the ITLOS said that it “would have been

hesitant to proceed with the delimitation of the area beyond 200 nautical miles

had it concluded that there was significant uncertainty as to the existence of a
continental margin in the area in question” 122There was not; and the ITLOS did

proceed with the delimitation, holding that “[i]n view of uncontested scientific

evidence regarding t he unique nature of the Bay of Bengal and information

submitted during the proceedings, the Tribunal is satisfied that there is a

continuous and substantial layer of sedimentary rocks extending from Myanmar’s

where a land or maritime dispute exists unless all States that are parties to the dispute have given
their prior consent.
121Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012,
para. 129.
122ITLOS Judgment of 14 March 2012, para. 443.

61coast to the area beyond 200 nm.” 123 There is similarly no significant uncertainty

in the present case. Moreover, at the merits stage of the present case, Nicaragua

would be free to supply even further expert and scientific evidence that its

continental shelf extends well beyond 200 nautical miles, and if the Court had any

doubt, it could appoint its own technical expert(s) to verify the geomorphology of
the Western Caribbean seabed.

5.23 Colombia’s argument does not address these points. Rather, in paragraphs

7.4 – 7. 11 of its Preliminary Objections, Colombi a proposes a novel legal

doctrine: that the continental shelf rights of a State in Nicaragua’s position are an

“inherent but inchoate right” that can be transformed into an “entitlement” to a
continental shelf, or (Colombia’s submission is ambiguous) into an “entitlement

whose external limit is ‘final and binding’ under Article 76(8) and opposable erga

omnes.”. 124

5.24 Colombia offers neither authority nor reasoning in support of the

suggestion that such “inchoate rights”, falling short of an “entitlement”, exis t
anywhere in international law. Colombia makes no attempt to justify, by reference

to the travaux préparatoires or otherwise, the implication that such rights are

enshrined in UNCLOS Article 76 and/or that the continental shelf rights of a State

under cus tomary international law (whether or not a party to UNCLOS) are

restricted to these alleged “inchoate rights”. Indeed, Colombia does not even try to
explain what the concept means. If a State has (on Colombia’s argument)

‘inchoate rights’ over an area of s eabed, what does that mean? Can it object to

another State engaging in activities in the area that would violate the first State’s

rights if the ‘inchoate rights’ were perfected? Can it take any steps to deter or

prevent such activities, and if so, what steps?

123
124ITLOS Judgment of 14 March 2012, para. 446.
PO, para. 7.11.

625.25 Whatever the merits of this novel theory of ‘inchoate rights’, it is notable

that the Arbitral Tribunal in the Barbados / Trinidad & Tobago arbitration found

no obstacle to its jurisdiction over the maritime boundary in relation to that part of

the continental shelf extending beyond 200 M, 125 even though the effect of the

CLCS role had been expressly raised. 126 Nor is there any legal basis for the

suggestion that the role of a CLCS recommendation regarding the outer limits of

the continental shelf (not being boundaries between opposite or adjacent States)

could have this effect. It is also notable that the Tribunal in the Bangladesh/India

case, decided after this Court’s Judgment of 19 November 2012, adhered to the

view that “the delimitation of the con tinental shelf beyond 200 nm through
127
judicial settlement was in conformity with article 76 [of UNCLOS]”.

128
5.26 A recommendation is by definition a suggestion or proposal, an

indication of a course of action that is regarded as desirable or advisable. It is not
129
a binding decision with which the addressee is obliged to comply. UNCLOS

contains several provisions that require States to act on the basis of, or take into

account, recommendations of international bodies The provisions include those
130
relating to seal anes and traffic separation schemes, conservation measures in
131 132
the Exclusive Economic Zone (EEZ), and measures to prevent pollution.

5.27 In exceptional cases, such ‘recommendations’ have a certain prescriptive

character, despite their name; and where this is the case, UNCLOS says so. For

example, safety zones around offshore installations may not exceed 500 metres

125Award of 2006, paragraph 217.
126Award of 2006, paragraph 87.
127
Bay of Bengal Maritime Boundary Arbitration (Bangladesh / India), Award, 7 July 2014,
128agraph 458, http://www.pcacases.com/web/sendAttach/383.
See, e.g., the Oxford English Dictionary,
http://www.oed.com/view/Entry/159718?redirectedFrom=recommendation& .
129See, e.g., UNCLOS Article 21(2). Cf., O Jensen, The Commission on the Limits of the
Continental Shelf , (2014), ch. 3.
130Article 33.
131
132Article 61(3).
Article 207(1), (4),(5); Article 212.

63unless “authorized by generally accepted international standards or as
133
recommended by the competent international organization.” In such

exceptional cases the ‘recommendation’ does have a legally binding character,
and must be respected and applied by the State party to UNCLOS no matter how

carefully it has taken the recommendation into account and how powerful its

reasons might be for diverging from it.

5.28 In the case of CLCS recommendations, they have this prescriptive

character: but they have it only in the limited context of the establishment of
delineation lines that are both (i) the outer limits of the continental shelf,

separating it from the international seabed area, and are also (ii) ‘final and

binding’ lines. There is no indication that they have that character in relation to

basic continental shelf entitlements, or even to the establishment of provisional

(non-final) outer limits pending the making of a recommendation – let alone that
CLCS recommendations have any bearing whatever in relation to inter -State

maritime boundaries. Indeed, it is explicitly stipulated that CLCS

recommendations do not affect questions of continental shelf delimit ation

between adjacent or opposite States. It is, Nicaragua submits, self -evidently

incorrect as a matter of international law to suggest that a coastal State has no
rights over its continental shelf until such time as ‘final and binding’ outer limits

are established by adoption of CLCS recommendations.

B. The practical impasse

5.29 The practical impasse was pointed out in the Bangladesh / Myanmar

Maritime Boundary dispute, where Myanmar raised before the International

Tribunal for the Law of the Sea ( ITLOS) the argument that the CLCS must issue
its recommendations before the ITLOS could delimit the boundary. 134But in the

133
134Article 60(5). Cf., Article 208(3).
Counter-Memorial of Myanmar, para. 1.17.

64absence of the consent of all States concerned, the CLCS does not make

recommendations in situations where there are disputed claims to the outer
135
continental shelf. If the argument is accepted the result is an impasse: the
ITLOS would have to wait for the CLCS to act and the CLCS would have to wait

for the Tribunal to act.

5.30 The ITLOS rejected this absurdity. Its analysis, which referred to
international jurisprudence antedating its 2012 judgment, is worth quoting at some

length, It said:

“370. The Tribunal wishes to point out that the absence
of established outer limits of a maritime zone does not
preclude delimitation of that zone. Lack of agreeme nt on
baselines has not been considered an impediment to the

delimitation of the territorial sea or the exclusive
economic zone notwithstanding the fact that disputes
regarding baselines affect the precise seaward limits of
these maritime areas. ...

[.....]

373. The [United Nations Law of the Sea] Convention sets
up an institutional framework with a number of bodies to
implement its provisions, including the Commission, the
International Seabed Authority and this Tribunal.
Activities of these bodies are complementary to each other
so as to ensure coherent and efficient implementation of

the Convention. The same is true of other bodies referred
to in the Convention.

374. The right of the coastal State under article 76,
paragraph 8, of the Convention to establish final and
binding limits of its continental shelf is a key element in

the structure set out in that article. In order to realize this
right, the coastal State, pursuant to article 76, paragraph 8,
is required to submit information on the limits of its
continental shelf beyond 200 nm to the Commission,

135
See Annex I, paragraph 5 (a) to the Rules of Procedure of the Commission on the Limits of the
Continental Shelf.

65 whose mandate is to make recommendations to the coastal
State on matters related to the establishment of the ou ter
limits of its continental shelf. The Convention stipulates in
article 76, paragraph 8, that the “limits of the shelf
established by a coastal State on the basis of these
recommendations shall be final and binding”.

375. Thus, the Commission plays an i mportant role under
the Convention and has a special expertise which is
reflected in its composition. Article 2 of Annex II to the
Convention provides that the Commission shall be
composed of experts in the field of geology, geophysics or
hydrography. Arti cle 3 of Annex II to the Convention
stipulates that the functions of the Commission are, inter

alia, to consider the data and other material submitted by
coastal States concerning the outer limits of the
continental shelf in areas where those limits extend
beyond 200 nm and to make recommendations in
accordance with article 76 of the Convention.

376. There is a clear distinction between the delimitation
of the continental shelf under article 83 and the delineation

of its outer limits under article 76. Unde r the latter article,
the Commission is assigned the function of making
recommendations to coastal States on matters relating to
the establishment of the outer limits of the continental
shelf, but it does so without prejudice to delimitation of
maritime bo undaries. The function of settling disputes
with respect to delimitation of maritime boundaries is

entrusted to dispute settlement procedures under article 83
and Part XV of the Convention, which include
international courts and tribunals.

377. There is nothing in the Convention or in the Rules of
Procedure of the Commission or in its practice to indicate
that delimitation of the continental shelf constitutes an
impediment to the performance by th e Commission of its

functions.

378. Article 76, paragraph 10, of the Convention states
that “[t]he provisions of this article are without prejudice
to the question of delimitation of the continental shelf
between States with opposite or adjacent coasts”. This is

66further confirmed by article 9 of Annex II, to the
Convention, which states that the “actions of the
Commission shall not prejudice matters relating to
delimitation of boundaries between States with opposite or
adjacent coasts”.

379. Just as the functions of the Commission are without

prejudice to the question of delimitation of the continental
shelf between States with opposite or adjacent coasts, so
the exercise by international courts and tribunals of their
jurisdiction regarding the delimitation of maritime
boundaries, including that of the continental s helf, is
without prejudice to the exercise by the Commission of its
functions on matters related to the delineation of the outer

limits of the continental shelf.

[.....]

391. A decision by the Tribunal not to exercise its
jurisdiction over the dispute rela ting to the continental
shelf beyond 200 nm would not only fail to resolve a long-
standing dispute, but also would not be conducive to the
efficient operation of the Convention.

392. In the view of the Tribunal, it would be contrary to
the object and purpose of the Convention not to resolve
the existing impasse. Inaction in the present case, by the
Commission and the Tribunal, two organs created by the
Convention to ensure the effective implementation of its
provisions, would leave the Parties in a position where
they may be unable to benefit fully from their rights over

the continental shelf.

393. The Tribunal observes that the exercise of its
jurisdiction in the present case cannot be seen as an
encroachment on the functions of the Commission,
inasmuch a s the settlement, through negotiations, of
disputes between States regarding delimitation of the
continental shelf beyond 200 nm is not seen as precluding

examination by the Commission of the submissions made
to it or hindering it from issuing appropriate
recommendations.

67 394. For the foregoing reasons, the Tribunal concludes
that, in order to fulfil its responsibilities under Part XV,
Section 2, of the Convention in the present case, it has an
obligation to adjudicate the dispute and to delimit the
continental shelf between the Parties beyond 200 nm.
Such delimitation is without prejudice to the establishment

of the outer limits of the continental shelf in accordance
with article 76, paragraph 8, of the Convention.”

5.31 Nicaragua agrees with this approach. I t is especially applicable in the
present circumstances. Because the continental shelf beyond 200 nautical miles

from Nicaragua is disputed, the CLCS, under its own rules of procedure and

consistent practice, will not determine the location of the shelf’s outer limits or
issue recommendations to Nicaragua. Thus, the Court is in the same position as

the ITLOS when it confronted this matter in Bangladesh/Myanmar. It faces a

CLCS that is precluded from acting on Nicaragua’s submission, notwithstanding

that the submission is now complete. If the Court were to decline to act unless the
CLCS goes first, there would be no action of any kind. Neither the boundary

dispute between Nicaragua and Colombia, nor the outer limit s of Nicaragua’s

continental shelf would ever be established. The dispute would be rendered
permanent, and the stability of legal relations would never be achieved. This

would be a clear abdication of the Court’s duty to resolve legal disputes where its

jurisdiction is established. Yet this is precisely what Colombia is advocating by its

challenge to the admissibility of Nicaragua’s Application. Nicaragua does not,
however, understand the Court to have intended to subordinate the exercise of its

jurisdiction to the processes of the CLCS.

68 C. Not an exclusively preliminary character

5.32 In addition to the defects in Colombia’s arguments on admissibility,

addressed above, they have been made at the wrong time and in the wrong place.

They do not have an ‘exclusively preliminary character’, in the words of A rticle

79.9 of the Rules of Court, and therefore should not have been raised as
Preliminary Objections, but presented (if at all) in Colombia’s Counter Memorial.

5.33 Colombia cannot, merely by framing submissions that Nicaragua’s

continental shelf rights are ‘inchoate’, block any further discussion of these points

before the Court. To accept them as Preliminary Objections would be to permit a

highly controversial proposition by a Respondent State to function in limine as a

bar to all further argument on that very proposition.

5.34 The principle is well established in the jurisprudence of the Court. 136For

example, in the German Interests in Polish Upper Silesia case, the Court said:

“[T]he Court cannot in its decision on this objection in any
way prejudge its future decision on the merits. On the

other hand, however, the Court cannot on this ground
alone declare itself incompetent; for, were it to do so, it
would become possible for a Party to make an objection to
the jurisdiction – which could not be dealt with without

recourse to arguments taken from the merits – have the

136
See, e.g., Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392, at
paragraph 76; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America). Merits, Judgment. I.C.J. Reports 1986, p. 14, at paragraphs 37-44, 54; Oil
Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection,
Judgment, I.C.J. Reports 1996, p. 803, at paragraphs 53-54; Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United States of America), Preliminary Objections, Judgment, I.C.J.
Reports 1998, p. 115 at paragraphs 46-50; Land and Maritime Boundary between Cameroon and
Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 275, at paragraphs 107-109,
112-117; Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 412 at
paragraphs 120-130.

69 effect of precluding further proceedings simply by raising
it in limine litis; this would be quite inadmissible.”137

5.35 Similarly, in the Barcelona Traction case the Court, after
reviewing its jurisprudence and successive versions of its Rules relating to

preliminary objections, said:

“... It must not be overlooked ... that respondents are given
broad powers by this provision [sc., Article 65 of the
Rules of Court as they then stood], since mere ly by

labelling and filing a plea as a preliminary objection they
automatically bring about the suspension of the
proceedings on the merits (paragraph 3 of Article 62). This
assures the respondent State that the Court will give
consideration to its objection before requiring it to respond

on the merits; the Court takes no further step until after
hearing the parties (paragraph 5 of Article 62 -see the
discussion on this point by the Permanent Court in 1936,
P.C.I. J., Series D, Third Addendum to No. 2, pp. 646-
649). The attitude of the respondent State is however only

one of the elements that the Court may take into
consideration; and paragraph 5 of the Article simply
provides that, after the hearing, "the Court shall give its
decision on the objection or sha ll join the objection to the

merits".

In reaching its conclusion, the Court may decide that the
objection does not in fact have a preliminary character,
and that therefore, without prejudice to the right of the
respondent State to raise the same question at another

stage of the proceedings, if such there be, the objection
cannot be entertained as a "preliminary objection". Again,
the Court may find that the objection is properly a

137PCIJ, Ser. A, No. 6, at p. 15. It seems that the words “which would” should be understood to lie
before the words “have the effect of precluding” in the second sentence quoted. The French text
reads as follows: « Mais, d'un autre côté, la Cour ne saurait décliner sa compétence par ce seul fait,
car ainsi elle ouvrirait la porte à la possibilité pour une Partie de donner à une exception
d'incompétence, ne pouvant être jugée sans avoir recours à des éléments puisés dans le fond, un

caractère péremptoire, simplement en la présentant in limine litis, ce qui est inadmissible. »

70 preliminary one as, for example, to the jurisdiction of the
Court, and it may dispose of it forthwith, either upholding
it or rejecting it. In other situations ... the Court may find

that the objection is so related to the merits, or to questions
of fact or law touching the merits, that it cannot be
considered separately without going into the merits (which
the Court cannot do while proceedings on the merits stand
suspended under Article 62), or without prejudging the
merits before these have been fully argued. In these latter

situations, 138 Court will join the preliminary objection to
the merits.”

5.36 Nicaragua submits that in the present case, if Colombia’s Preliminary

Objections are not rejected outright, they should be joined to the merits in

accordance with the established principles laid down by the Court to govern its
procedure and now secured in Article 79 of the Rules of Court.

II. Nicaragua’s second request

5.37 Colombia’s second objection to admissibility concerns Nicaragua’s

Second Request, which is that the Court adjudge and declare the rules and
principles of international law that are applicable pending delimitation. Colombia

says that,

“7.27 The Second Request of Nicaragua is inadmissible
as an automatic consequence of the Court's lack of
jurisdiction over, or of the inadmissibility of, its First
Request. If, as submitted by Colombia, the Court has no

jurisdiction to decide on the request for the delimitation of
seabed areas beyond 200 nautical miles from the
Nicaraguan coast, or if the request to that effect is
inadmissible, there cannot be jurisdiction, or the request
cannot be admissible, to decide whatever issue pending a
decision on such delimitation.”

138
Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment,
I.C.J. Reports 1964, p. 6 at pp. 43-44.

715.38 This analysis is incorrect. It is common ground that there is no

delimitation of the continental shelf beyond 200 nautical miles between Nicaragua
and Colombia in existen ce at present. If the Court does not have jurisdiction to

effect such a delimitation, that situation will persist. If the Court does have

jurisdiction to indicate the continental shelf boundary, and the exact geographical

coordinates of a specific part of the boundary might be affected by a subsequent
recommendation of the CLCS or by action in response to such a recommendation,

that situation may similarly persist. In either event, there will be a period pending

the establishment of definitive outer limits for the continental shelf. Colombia is

wrong to say that there is no time -frame within which to apply the rules and
principles of international law identified by the Court in its decision on the

Second Request pending the decision on the First Request. 139

5.39 The question is whether during that period, the situation in relation to any

areas that are in dispute remains unregulated by international law, so that each
State can act as it chooses. Nicaragua submits that the answer is that the situation

is not unregulated by international law; and it asks the Court to declare what the

applicable principles of law are.

5.40 More particularly, Nicaragua will argue in its Memorial that the applicable
principles are not restricted to the basic principles regarding the settlement of

disputes and the non-use of force, as set out in the UN Charter. It will argue that

that there are more precise duties of restraint and cooperation incumbent upon

both States. Again, argument as to the content of these duties is a matter for the
merits stage, and not for Preliminary Objections.

5.41 Colombia also objects that Nicaragua’s Second Request is a disguised

request for provisional measures. It is not. There is a present dispute between the

139
PO, para. 7.30.

72Parties. There is, to use the often -quoted definition of t his Court in the

Mavrommatis case, a “disagreement on a point of law or fact, a conflict of legal

views or of interests between two persons.” 140 The dispute concerns the existence

and scope of the legal entitlement of Nicaragua to a continental shelf beyond 200

nautical miles from its baselines. Nicaragua maintains that it has such rights,

subject to delimitation with neighbouring States: Colombia denies that Nicaragua
has any such rights. But the dispute undoubtedly exists. Indeed, the Second

Request is not directed exclusively at Colombia’s conduct at all. It is a request for

guidance from the Court as to what each of the Parties to this case may and may

not do pending the delimitation of the maritime boundary between them beyond

200 nautical miles from Nicaragua’s coast; and that may include actions taken in

relation to third States, such as the licensing of exploration or exploitation

activities. Nicaragua seeks that guidance precisely in order to avoid a situation in
which one or other Party to the present case might overstep its rights under

international law.

5.42 Colombia objects further that there is “no evidence of an opposition of

views between Nicaragua and Colombia concerning a hypothetical legal regime to

be applied pendin g the decision on the maritime boundary beyond 200 nautical
141
miles of Nicaragua's coast.” Colombia also states, however, that “in its view
there are no overlapping claims beyond 200 nautical miles from the baselines of

Nicaragua.” 142 It is the denial by Colo mbia that Nicaragua has any legal rights –

or even, perhaps, any claims – more than 200 nautical miles from its coast that is

the matter on which the views of the two States are opposed, and which is the

basis of the dispute. The Second Request of Nicaragu a is thus an issue that is

subsumed within the dispute that is the subject-matter of this case.

140PCIJ Ser. A, No. 2, p. 11.
141PO, para. 7.33.
142PO, para. 7.26.

735.43 For these reasons Nicaragua submits that Colombia’s Preliminary
Objections are misconceived. Colombia attempts to inflate the role of the CLCS

beyond its expert technical function and to give it a priority over the Court in the

process of the determination of legal rights and duties. As is clear from the text of

the UNCLOS, however, the Court and the CLCS are addressing very different
aspects of the seabed, for d ifferent purposes and under different sources of

authority; and neither body would impede the work of the other by discharging its

responsibilities within the field allotted to it. Moreover, if there should be any
question of what the limits of each of those fields is, that is a question which

Nicaragua submits must be addressed during a proper hearing of this case, and not

dealt with as a Preliminary Objection.

74 SUBMISSIONS

For the above reasons, t he Republic of Nicaragua requests the Court to adjudge

and declare that the Preliminary Objections submitted by the Republic of

Colombia, both in respect of the jurisdiction of the Court and of the admissibility
of the case, are invalid.

CARLOS ARGÜELLO GÓMEZ

Agent of the Republic of Nicaragua

The Hague, 19 January 2015

75