INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
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Website: www.icj-cij.org Twitter Account: @CIJ_ICJ
2016/1 Summary
17 March 2016
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua v. Colombia)
Summary of the Judgment of 17 March 2016
1.INTRODUCTION
The Court recalls that, in the present proceedings, Nicaragua seeks to found the Court’s
jurisdiction on Article XXXI of the Pact of Bogotá. According to this provision, the parties to the
Pact recognize the Court’s jurisdiction as compulso ry in “all disputes of a juridical nature”.
Alternatively, Nicaragua maintains that the Court h as an inherent jurisdiction to entertain disputes
regarding non-compliance with its judgments and that, in the present proceedings, such an inherent
jurisdiction exists, given that the current disput e arises from non-compliance by Colombia with its
Judgment of 19November2012 in the case con cerning Territorial and Maritime Dispute
(Nicaragua v. Colombia) (I.C.J. Reports 2012 (II), p. 624) (hereinafter the “2012 Judgment”).
The Court notes that Colombia has raised five pr eliminary objections to its jurisdiction. In
its written observations and final submissions during the oral proceedings, Nicaragua requested the
Court to reject Colombia’s preliminary objections in their entirety.
II.F IRST PRELIMINARY OBJECTION
In its first preliminary objection, Colombiaargues that the Court lacks jurisdiction ratione
temporis under the Pact of Bogotá, because th e proceedings were instituted by Nicaragua on
26 November 2013, after Colombia’s notice of denunciation of the Pact on 27 November 2012.
The Court recalls that, in Colombia’s denunciation of the Pact of Bogotá, it is stated that the
denunciation “takes effect as of today with regard to procedures that are initiated after the present
notice, in conformity with [the] second paragr aph of ArticleLVI”, which stipulates that the
denunciation shall have no effect with respect to pending procedures initiated prior to the
transmission of the particular notification. The Court notes that Nicaragua’s Application was
submitted to it after the transmission of Colombia ’s notification of denunciation but before the
one-year period referred to in the first paragraphof ArticleLVI had elapsed. According to that
provision, at the end of the notice period in question, the Pact shall cease to be in force with respect
to the State denouncing it, but shall continue in force for the remaining signatories. - 2 -
Colombia contends that the natural implic ation of the express provision in the second
paragraph of ArticleLVI of the Pact is that denun ciation is effective with regard to procedures
initiated after the transmission of a notification. It refutes the suggestion that its interpretation of
the second paragraph of Article LVI would deny effet utile to the first paragraph of that provision.
Even though Colombia accepts that its interp retation would mean that none of the different
procedures provided for in ChaptersTwo to Five of the Pact could be initiated by, or against, a
State which had given notification of denunciation du ring the year that the treaty remained in force
in accordance with the first paragraph of Article LVI, it maintains that important substantive
obligations contained in the other Chapters of th e Pact would nevertheless remain in force during
the one-year period, so that the first paragraph of Article LVI would have a clear effect. Colombia
argues that its interpretation of ArticleLVI is confir med by the fact that if the parties to the Pact
had wanted to provide that denunciation would not affect an y procedures initiated during the
one-year period of notice, they could easily have said so expressly, namely by adopting a wording
similar to provisions in other treaties. Finally, it ma intains that its interpretation is “also consistent
with the State practice of the parties to the Pact” and the travaux préparatoires.
Nicaragua contends that the jurisdiction of th e Court is determined by ArticleXXXI of the
Pact of Bogotá, according to which Colombia a nd Nicaragua had each recognized the jurisdiction
of the Court “so long as the present Treaty is in fo rce”. How long the treaty remains in force is
determined by the first paragraph of Article LVI, which provides that the Pact remains in force for
a State which has given notification of denunciation fo r one year from the date of that notification.
Since the date on which the jurisdiction of the C ourt has to be established is that on which the
Application is filed, and since Nicaragua’s Application was filed less than one year after Colombia
gave notification of its denunciation of the Pact, it follows according to Nicaragua that the
Court has jurisdiction in the present case. Nicara gua adds that the Colombian interpretation would
remove from the effect of the first paragraph of Article LVI all of the procedures for good offices
and mediation (ChapterTwo of the Pact), inves tigation and conciliation (ChapterThree), judicial
settlement (Chapter Four) and arbitration (Chapter Five), which together comprise forty-one of the
sixty articles of the Pact. Of the remaining provisions, several are provisions which have entirely
served their purpose and would fulfil no function during the one-year period of notice, while others
are inextricably linked to the procedures in Ch aptersTwo to Five and impose no obligations
independent of those procedures. Finally, Nicaragua denies that the practice of the parties to the
Pact of Bogotá or the travaux préparatoires support Colombia’s interpretation.
The Court recalls that the date at which its jurisdiction has to be established is the date on
which the application is filed with the Court. By Article XXXI of the Pact of Bogotá, the Parties
recognize as compulsory the jurisdiction of the Court, “so long as the present Treaty is in force”.
The first paragraph of Article LVI provides that, following the denunciation of the Pact by a State
party, the Pact shall remain in force between the denouncing State and the other parties for a period
of one year following the notification of denunciation. The Court is of the opinion that it is not
disputed that, if these provisions stood alone, they would be sufficient to confer jurisdiction in the
present case. The Pact was still in force betwee n Colombia and Nicaragua on the date that the
Application was filed, and the fact that the Pact subsequently ceased to be in force between them
would not affect that jurisdiction. The only question raised by Colombia’s first preliminary
objection, therefore, is whether the second paragrap h of ArticleLVI, which stipulates that “[t]he
denunciation shall have no effect with respect to pending procedures initiated prior to the
transmission of the particular notification”, may be subject to an acontrario reading, countering
what would otherwise have been the effect of th e first paragraph as to require the conclusion that
the Court lacks jurisdiction in respect of the pr oceedings, notwithstanding that those proceedings
were instituted while the Pact was still in force between Nicaragua and Colombia. That question
has to be answered by the application to the relevant provisions of the Pact of Bogotá of the rules
on treaty interpretation enshrined in Articles 31 to 33 of the Vienna Convention, which reflect rules
of customary international law. - 3 -
The Court observes that it is not the denunciation per se that is capable of having an effect
upon the jurisdiction of the Court under Article XXXI, but the termination of the treaty (as between
the denouncing State and the other parties) which results from the denunciation. That follows both
from the terms of Article XXXI and from the ordinary meaning of the words used in Article LVI.
The first paragraph of Article LVI provides that the treaty may be terminated by denunciation, but
that termination will occur only after a period of on e year from the notification of denunciation. It
is, therefore, this first paragraph which dete rmines the effects of denunciation. The second
paragraph confirms that procedures instituted be fore the transmission of the notification of
denunciation can continue irrespective of the de nunciation and thus that their continuation is
ensured irrespective of the provisions of the fi rst paragraph on the effects of denunciation as a
whole.
The Court considers that Colombia’s interp retation of the second para graph of ArticleLVI
runs counter to the language of ArticleXXXI. It is of the view that the second paragraph of
ArticleLVI is open to another interpretation— one which is compatible with ArticleXXXI—
according to which, whereas proceedings institu ted before transmissi on of notification of
denunciation can continue in any event and are thus not subject to the first paragraph of
Article LVI, the effect of denunciation on proceedin gs instituted after that date is governed by the
first paragraph. Since the first paragraph provi des that denunciation terminates the treaty for the
denouncing State only after a period of one year has elapsed, proceedings instituted during that
year are instituted while the Pact is still in force. They are thus within the scope of the jurisdiction
conferred by Article XXXI. The Court adds that the result of Colombia’s proposed interpretation
of the second paragraph of Article LVI would be that, during the year following notification of
denunciation, most of the Articles of the Pact, c ontaining its most important provisions, would not
apply between the denouncing State and the other par ties. Such a result is difficult to reconcile
with the express terms of the first paragraph of ArticleLVI, which provides that “the present
Treaty” shall remain in force during the one-year period without distingui shing between different
parts of the Pact as Colombia seeks to do. The Court further observes that Colombia’s
interpretation is not compatible with the object and purpose of the Pact of Bogotá, which is to
further the peaceful settlement of disputes thr ough the procedures provided for in the Pact.
Although Colombia argues that the reference to “reg ional . . . procedures” in the first paragraph of
Article II is not confined to the procedures set out in the Pact, Article II has to be interpreted as a
whole. It is clear from the use of the wo rd “consequently” at the beginning of the second
paragraph of ArticleII that the obligation to r esort to regional procedures, which the parties
“recognize” in the first paragraph, is to be given effect by employing the procedures laid down in
Chapters Two to Five of the Pact.
The Court remains unconvinced by Colombia’s argument that, had the parties to the Pact of
Bogotá wished to provide that proceedings ins tituted at any time before the expiry of the
one-yearperiod stipulated by the first paragraph of ArticleLVI would be unaffected, they could
easily have made express provision to that effect. Colombia’s argument regarding State practice in
the form of the denunciation of the Pact by El Salvador in 1973 and Colombia itself in 2012,
together with what Colombia d escribes as the absence of any reaction to the notification of those
denunciations, does not shed any light on the question currently before the Court. As for the
travaux préparatoires, they give no indication as to the precise purpose behind the addition of what
became the second paragraph of Article LVI.
For all of these reasons, the Court considers that Colombia’s interpretation of ArticleLVI
cannot be accepted. Taking Article LVI as a whole, and in light of its context and the object and
purpose of the Pact, the Court concludes that Article XXXI conferring jurisdiction upon the Court
remained in force between the Parties on the date that the Application in the present case was filed.
The subsequent termination of the Pact as between Nicaragua and Colombia does not affect the
jurisdiction which existed on the date that the pr oceedings were instituted. Colombia’s first
preliminary objection must therefore be rejected. - 4 -
III. ECOND PRELIMINARY OBJECTION
In its second objection, Colombia argues that, even if the Court does not uphold the first
objection, the Court still has no jurisdiction under the Pact of Bogotá, because there was no dispute
between the Parties as at 26 November 2013, the date when the Application was filed.
The Court notes that the existence of a dis pute between the parties is a condition of the
Court’s jurisdiction. Such a dispute, accordi ng to the established case law of the Court, is “a
disagreement on a point of law or fact, a conflic t of legal views or of interests between two
persons”. It does not matter which one of them advances a claim and which one opposes it. What
matters is that “the two sides hold clearly opposite views concerning the question of the
performance or non-performance of certain” interna tional obligations. The Court further recalls
that “[w]hether there exists an international di spute is a matter for objec tive determination” by the
Court. “The Court’s determination must turn on an examination of the facts. The matter is one of
substance, not of form.” In principle, the critical date for determining the existence of a dispute is
the date on which the application is submitted to the Court.
The Court recalls that Nicaragua makes two distinct claims one that Colombia has
violated Nicaragua’s sovereign rights in its mar itime zones, and the other that Colombia has
breached its obligation not to use or threaten to use force. It examines these two claims separately
in order to determine, with respect to each of th em, whether there existed a dispute at the date of
filing of the Application.
With regard to Nicaragua’s first claim, the Court pays particular attention to the views
expressed by the two States in the declarations a nd statements made by their senior officials on the
question of their respective rights in the maritime areas covered by the 2012Judgment; the
incidents at sea involving Colombian vessels or aircra ft alleged to have taken place in those areas;
and the Parties’ positions on the imp lications, in terms of the extent of their maritime spaces, of
Colombia’s Decree on the establishment of an “Integral Contiguous Zone”.
Considering, first, the declarations and statem ents of the senior officials of the two States,
the Court observes that, following the delivery of the 2012Judgment, the President of Colombia
proposed to Nicaragua to negotiate a treaty con cerning the effects of that Judgment, while the
Nicaraguan President, on a number of occasions, e xpressed a willingness to enter into negotiations
for the conclusion of a treaty to give effect to the Judgment, by addressing Colombia’s concerns in
relation to fishing, environmental protection and drug trafficking. The Court considers that the fact
that the Parties remained open to a dialogue does not by itself prove that, at the date of the filing of
the Application, there existed no dispute be tween them concerning the subject-matter of
Nicaragua’s first allegation. The Court notes that Colombia took the view that its rights were
“infringed” as a result of the mar itime delimitation by the 2012 Judgment. Nicaragua, for its part,
insisted that the maritime zones declared by the Court in the 20 12Judgment must be respected.
The Court holds that it is apparent from these st atements that the Parties held opposing views on
the question of their respective rights in the maritime areas covered by the 2012 Judgment.
With regard to Colombia’s proclamation of an “Integral Contiguous Zone”, the Court notes
that the Parties took different positions on the legal implications of such action in international law.
While Colombia maintained that it was entitle d to such a contiguous zone as defined by
Decree 1946 under customary international law, Nicaragua contended that Decree 1946 violated its
“sovereign rights and maritime zones” as adjudged by the Court in the 2012 Judgment.
Regarding the incidents at sea involving vessels or aircraft of Colombia alleged to have
taken place before the critical date, the Court considers that, although Colombia rejects Nicaragua’s
characterization of what happened at sea as “incid ents”, it does not rebut Nicaragua’s allegation
that it continued exercising jurisdiction in the maritime spaces that Nicaragua claimed as its own on
the basis of the 2012 Judgment. - 5 -
Finally, the Court notes that, although Nicaragua did not send its formal diplomatic Note to
Colombia in protest at the latter’s alleged violations of its maritime rights at sea until
13September2014, almost ten months after th e filing of the Application, in the specific
circumstances of the present case, the evidence clearly indicat es that, at the time when the
Application was filed, Colombia was aware that its enactment of Decree1946 and its conduct in
the maritime areas declared by the 2012 Judgment to belong to Nicaragua were positively opposed
by Nicaragua. Given the public statements made by the highest representatives of the Parties,
Colombia could not have misunderstood the position of Nicaragua over such differences.
Based on the evidence examined above, the C ourt finds that, at the date on which the
Application was filed, there existed a dispute co ncerning the alleged violations by Colombia of
Nicaragua’s rights in the maritime zones which, acc ording to Nicaragua, the Court declared in its
2012 Judgment appertain to Nicaragua.
The Court then turns to the question of the exis tence of a dispute with regard to Nicaragua’s
second allegation, namely that Colombia, by its co nduct, has breached its obligation not to use or
threaten to use force under Article2, paragra ph4, of the Charter of the UnitedNations and
customary international law.
Although Nicaragua refers to a number of in cidents which allegedly occurred at sea, the
Court observes that, with regard to those which allegedly occurred before the critical date, nothing
in the evidence suggests that Nicaragua had indicat ed that Colombia had violated its obligations
under Article 2, paragraph 4, of the Charter of the United Nations or under customary international
law regarding the threat or use of force. On the contrary, members of Nicaragua’s executive and
military authorities confirmed that the situation at sea was calm and stable. Furthermore, the Court
observes that the alleged incidents that were sai d to have occurred before Nicaragua filed its
Application relate to Nicaragua’s first claim rather than a claim concerning a threat of use of force
under Article 2, paragraph 4, of the Charter of the United Nations and customary international law.
Given these facts, the Court considers that, at th e date on which the Application was filed, the
dispute that existed between Colombia and Ni caragua did not concern Colombia’s possible
violations of Article2, paragraph4, of th e Charter of the United Nations and customary
international law prohibiting the use or threat of use of force.
In light of the foregoing considerations, the C ourt concludes that, at the time Nicaragua filed
its Application, there existed a dispute concer ning the alleged violations by Colombia of
Nicaragua’s rights in the maritime zones which, acc ording to Nicaragua, the Court declared in its
2012Judgment appertain to Nicaragua. Conse quently, Colombia’s second preliminary objection
must be rejected with regard to Nicaragua’s first claim and upheld with regard to its second claim.
IV. THIRD PRELIMINARY OBJECTION
Colombia contends in its third objection that the Court does not have jurisdiction under the
Pact of Bogotá, because, at the time of the filing of the Application, the Parties were not of the
opinion that the purported controversy “[could not ] be settled by direct negotiations through the
usual diplomatic channels”, as is required, in Colombia’s view, by Article II of the Pact of Bogotá,
before resorting to the dispute resolution procedures of the Pact.
Referring to the 1988 Judgment in the Border and Transborder Armed Actions (Nicaragua v.
Honduras) case, Colombia claims that recourse to th e pacific procedures of the Pact would be in
conformity with ArticleII only if an attempt at negotiating a settlement had been made in good
faith, and it is clear, after reasonable efforts, that a deadlock had been reached and that there was no
likelihood of resolving the dispute by such mean s. Colombia asserts that, contrary to what
Nicaragua claims, the term “in the opinion of the parties” in Article II should refer to the opinion of
both parties, as stated in the English, Portuguese a nd Spanish versions of the Pact, rather than the - 6 -
opinion of one of the parties. Colombia contends that, based on the conduct of both itself and
Nicaragua, it could not be concluded that the alle ged controversy, in the opinion of the Parties,
could not be settled by direct negotiations through the usual diplomatic channels at the time of
Nicaragua’s filing of the Application.
For its part, Nicaragua rejects the interpre tation of ArticleII advanced by Colombia,
maintaining that Colombia misreads the Court’s 1 988 Judgment. Relying on the French version of
the Pact, Nicaragua argues that Article II of the P act requires the Court to determine whether, from
an objective standpoint, one of the parties was of the opinion that the dispute could not be settled
by direct negotiations.
The Court recalls that in the 1988 Judgment, it decided that, for the purpose of determining
the application of Article II of the Pact, it was not “bound by the mere assertion of the one [p]arty
or the other that its opinion [was] to a particular effect”. The Court emphasized that “it must, in the
exercise of its judicial function, be free to make its own determination of that question on the basis
of such evidence as is available to it”. The Cour t made clear that the parties are expected to
provide substantive evidence to de monstrate that they considered in good faith that their dispute
could or could not be settled by direct negotiati ons through the usual diplomatic channels. The
critical date at which “the opinion of the parti es” has to be ascertained for the application of
Article II of the Pact is the date on which proceedings are instituted. Moreover, the Court took note
of the discrepancy between the French text and th e other three official texts (English, Portuguese
and Spanish) of Article II; the former refers to the opinion of one of the parties (“de l’avis de l’une
des parties”), while the latter three refer to the opinion of both parties. The Court, however, did not
consider it necessary to resolve the problem posed by that textual discrepancy before proceeding to
the consideration of the application of Article II of the Pact in that case. It proceeded on the basis
that it would consider whether the “opinion” of both parties was that it was not possible to settle the
dispute by negotiation, subject to demonstration of evidence by the parties. Consequently, in the
present proceedings, the Court will begin by determining whether the evidence provided
demonstrates that, at the date of Nicaragua’s filin g of the Application, neither of the Parties could
plausibly maintain that the dispute between them could be settled by direct negotiations through the
usual diplomatic channels.
The Court observes that, through various communications between the Heads of State of the
two countries since the delivery of the 2012 Judgmen t, each Party had indicated that it was open to
dialogue to address some issues raised by Colombia as a result of the Judgment. The Court notes,
however, that the subject-matter for negotiation is different from the subject-matter of the dispute
between the Parties. According to Nicaragua, ne gotiations between the Parties should have been
conducted on the basis that the pr ospective treaty would not affect the maritime zones as declared
by the 2012 Judgment. In other words, for Nicaragua , such negotiations had to be restricted to the
modalities or mechanisms for the implementation of the said Judgmen t. Colombia did not define
the subject-matter of the negotiations in the same way. In the words of its Foreign Minister, it
intended to “sign a treaty that establishes the boundar ies and a legal régime that contributes to the
security and stability in the region”.
The Court notes that the Parties do not dis pute that the situation at sea was “calm” and
“stable” throughout the relevant period. That fact , nevertheless, is not necessarily indicative that,
in the opinion of the Parties, the dispute in the present case could be settled by negotiations. From
the inception of the events following the deliver y of the 2012Judgment, Nicaragua was firmly
opposed to Colombia’s conduct in the areas th at the 2012Judgment declared appertain to
Nicaragua. Colombia’s position on the negotiation of a treaty was equally firm during the entire
course of its communications with Nicaragua. No evidence submitted to the Court indicates that,
on the date of Nicaragua’s filing of the Applicati on, the Parties had contemplated, or were in a
position to hold, negotiations to settle the dispute concerning the alleged violations by Colombia of
Nicaragua’s rights in the maritime zones which, acc ording to Nicaragua, the Court declared in its
2012 Judgment appertain to Nicaragua. - 7 -
Given the above considerations, the Court c oncludes that, at the date on which Nicaragua
filed its Application, the condition set out in Ar ticleII was met. Therefore, Colombia’s third
preliminary objection must be rejected.
V. F OURTH PRELIMINARY OBJECTION
The Court recalls that Nicaragua claims two bases for the jurisdiction of the Court. It states
that, should the Court find that it has no jurisdic tion under Article XXXI of the Pact of Bogotá, its
jurisdiction could be founded on “its inherent power to pronounce on the actions required by its
Judgment”. In its fourth preliminary objection, Co lombia contends that the Court has no “inherent
jurisdiction” upon which Nicaragua can rely and th at Nicaragua’s claim can find no support either
in the Statute of the Court or in its case law.
The Court notes that the “inherent jurisdicti on” claimed by Nicaragua is an alternative
ground that it invokes for the establishment of the Court’s jurisdiction in the present case.
Nicaragua’s argument, could, in any event, apply on ly to the dispute that existed at the time of
filing of the Application. Since the Court has founded its jurisdiction with regard to that dispute on
the basis of ArticleXXXI of the Pact of Bogotá, it considers that there is no need to deal with
Nicaragua’s claim of “inherent jurisdiction”, a nd therefore will not take any position on it.
Consequently, there is no ground for the Cour t to rule upon Colombia’s fourth preliminary
objection.
VI. FIFTH PRELIMINARY OBJECTION
According to Colombia’s fifth objection, th e Court has no jurisdiction with regard to
compliance with a prior judgment.
The Court notes that Colombia’s fifth prelimin ary objection is directed first at Nicaragua’s
alternative argument that the Court has an inhere nt jurisdiction in relation to the present case.
Colombia submits that, even if the Court were to find contrary to Colombia’s fourth preliminary
objection that it possesses an inherent jurisdiction, su ch “inherent jurisdiction” does not extend
to a post-adjudicative enforcement jurisdiction. The Court has already held that it does not need to
determine whether it possesses an inherent jurisdiction, because of its finding that its jurisdiction is
founded upon ArticleXXXI of the Pact of Bogotá. Accordingly, it is unnecessary to rule on
Colombia’s fifth preliminary objection in so far as it relates to inherent jurisdiction. Nevertheless,
Colombia indicated in its pleadings that its fi fth preliminary objection was also raised as an
objection to the jurisdiction of the Court under Artic leXXXI of the Pact of Bogotá. Colombia
argues that “[e]ven assuming... that the Cour t still has jurisdiction in the instant case under
Article XXXI of the Pact of Bogotá, such jurisd iction . . . would not extend to Nicaragua’s claims
for enforcement by the Court premised on Colomb ia’s alleged non-compliance with the Judgment
of 2012”. Since the Court has concluded that it has jurisdiction under ArticleXXXI, the fifth
preliminary objection must be addressed in so fa r as it relates to jurisdiction under the Pact of
Bogotá.
Colombia’s fifth preliminary objection rests on the premise that the Court is being asked to
enforce its 2012 Judgment. The Court agrees with Colombia that it is for the Court, not Nicaragua,
to decide the real character of the dispute before it. Nevertheless, as the Court has held, the dispute
before it in the present proceedings concerns the alleged violations by Colombia of Nicaragua’s
rights in the maritime zones which, according to Nicaragua, the Court declared in its
2012Judgment appertain to Nicaragua. As betw een Nicaragua and Colombia, those rights are
derived from customary international law. Th e 2012Judgment of the Court is undoubtedly
relevant to that dispute in that it determines the maritime boundary between the Parties and,
consequently, which of the Parties possesses sovere ign rights under customary international law in - 8 -
the maritime areas with which the present case is concerned. In the present case, however,
Nicaragua asks the Court to adjudge and declare th at Colombia has breached “its obligation not to
violate Nicaragua’s maritime zones as delimited in paragraph251 of the Court[’s] Judgment of
19November2012 as well as Nicaragua’s sovereig n rights and jurisdiction in these zones” and
“that, consequently, Colombia has the obligation to wipe out the legal and material consequences
of its internationally wrongful acts, and make full reparation for the harm caused by those acts”.
Nicaragua does not seek to enforce the 2012 Judgment as such. The Court is not, therefore, called
upon to consider the respective roles accorded to the Meeting of Consultation of Ministers of
Foreign Affairs (by ArticleL of the Pact of Bogotá), the Security Council (by Article94,
paragraph 2, of the Charter) and the Court.
Colombia’s fifth preliminary objection must therefore be rejected.
VI. O PERATIVE CLAUSE
T HE C OURT ,
U(a1n)imously,
Rejects the first preliminary objection raised by the Republic of Colombia;
(b) By fifteen votes to one,
Rejects the second preliminary objection raised by the Republic of Colombia in so far as
it concerns the existence of a dispute regarding th e alleged violations by Colombia of Nicaragua’s
rights in the maritime zones which, according to Nicaragua, the Court declared in its
2012 Judgment appertain to Nicaragua;
IN FAVOUR : President Abraham; Vice-President Yusuf; Judges Owada, Tomka,
Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde,
Bhandari, Robinson, Gevorgian; Judge ad hoc Daudet;
AGAINST : Judge ad hoc Caron;
U(c)nimously,
Upholds the second preliminary objection rai sed by the Republic of Colombia in so far
as it concerns the existence of a dispute regarding alleged violations by Colombia of its obligation
not to use force or threaten to use force;
(d) By fifteen votes to one,
Rejects the third preliminary objection raised by the Republic of Colombia;
IN FAVOUR : President Abraham; Vice-President Yusuf; Judges Owada, Tomka,
Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde,
Bhandari, Robinson, Gevorgian; Judge ad hoc Daudet;
AGAINST : Judge ad hoc Caron;
U(e)nimously,
Finds that there is no ground to rule upon the fourth preliminary objection raised by the
Republic of Colombia; - 9 -
(f) By fifteen votes to one,
Rejects the fifth preliminary objection raised by the Republic of Colombia;
IN FAVOUR : President Abraham; Vice-President Yusuf; Judges Owada, Tomka,
Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde,
Robinson, Gevorgian; Judges ad hoc Daudet, Caron;
AGAINST : Judge Bhandari;
(2) By fourteen votes to two,
Finds that it has jurisdiction, on the basof ArticleXXXI of the Pact of Bogotá, to
adjudicate upon the dispute between the Republic of Nicaragua and the Republic of Colombia
referred to in subparagraph 1 (b) above.
IN FAVOUR : President Abraham; Vice-President Yusuf; Judges Owada, Tomka,
Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde,
Robinson, Gevorgian; Judge ad hoc Daudet;
AGAINST : Judge Bhandari; Judge ad hoc Caron.
Judge ANÇADO TRINDADE appends a separate opinion to the Judgment of the Court;
Judge BHANDARI appends a declaration to the Judgment of the Court; Judge ad hoc C ARON
appends a dissenting opinion to the Judgment of the Court.
___________ Annex to Summary 2016/1
Separate opinion of Judge Cançado Trindade
1. In his Separate Opinion, composed of el even parts, Judge Cança do Trindade presents the
foundations of his personal position on one issue rais ed by the contending parties, Nicaragua and
Colombia, before the International Court of Justi ce (ICJ), in the course of the proceedings (written
and oral phases) in the present case of Alleged Violations of Sovereign Rights and Maritime
Spaces in the Caribbean Sea. The issue, concerni ng the fourth preliminary objection raised by
Colombia, concerns the inherent powers or facu ltés of contemporary international tribunals, the
case-law of which was invoked by both contending parties before the ICJ.
2.Judge CançadoTrindade begins by obser ving (partI) that, in the present Judgment, the
ICJ, having found that it has jurisdiction under th e Pact of Bogotá, dismissing Colombia’s first
preliminary objection, could and should have shed some light on the points at issue made by the
contending parties,— Nicaragua’s claim of “i nherent jurisdiction” and Colombia’s fourth
preliminary objection,— even if for dismissing th is latter as well, rather than, in a minimalist
posture, elliptically saying that “there is no ground” for it to deal with the issue (para.104 of the
Judgment).
3.Given the importance that he attaches to this particular issue, recurrent in the practice of
international tribunals, and given the fact that it was brought to the attention of the ICJ in the cas
d’espèce, he felt obliged to leave on the records, fi rst, the positions of the parties and the treatment
dispensed to it (parts II-III), and, in sequence, the foundations of his own personal position on it, in
its interrelated aspects (partsIV-X), namely: a) inherent powers beyond State consent; b)the
teleological interpretation (ut res magis valeat quampereat) beyond State consent; c) compétence de
la compétence / Kompetenz Kompetenz beyond St ate consent; d)recta ratio above voluntas,
human conscience above the “will”; e) inherent powers overcoming lacunae, and the relevance of
general principles; f)inherent powers and ju ris dictio, beyond transactional justice; and
g) inherent powers and supervision of compliance with judgments.
4.Judge CançadoTrindade contends that th is is a matter which cannot simply be eluded,
being “of relevance to the operation of contemporary international tribunals, in their common
mission of the realization of justice” (para.4) . After recalling the written submissions of both
parties, as well as the responses given by Nicaragua and Colombia to the three questions he put to
both of them in the public sitting of the Court of 02.10.2015 (paras. 5-12), he points out the broader
scope of inherent powers sustained by Nicaragua (p ara.13). The ICJ, in his view, should have
pronounced upon the issue (the distinct outlooks to it), rather than having “abstained from doing
so” in a “rather minimalist outlook”,— which he does not share,— of the exercise of the
international judicial function (para. 15).
5.Judge CançadoTrindade stresses that the issue of inherent powers or facultés has, in
effect, been raised time and time again before inte rnational tribunals (para.16). He refers to his
own previous Separate and Dissenting Opinions dealing with it (paras. 16-18, 20-22, and 24-26) —
both in the ICJ and, earlier on, in the Inter-A merican Court of Human Rights (IACtHR)— in its
distinct aspects, and remarks that inherent powers and beyond State consent: “Even in the absence
of an express provision thereon, international tribunals are entitled to exercise their inherent powers
in order to secure the sound administration of justice” (para. 19). - 2 -
6. This brings him to the question of the tele ological interpretation, pursuant to the principle
of effet utile, or ut res magis valeat quam pereat. In his understanding, the teleological
interpretation, which he supports, “covers not onl y material or substantive law (e.g., the rights
vindicated and to be protected) but also jurisdictional issues and procedural law as well” (para. 22),
as shown by the relevant case-law of both the Eu ropean Court of Human Rights (ECtHR) and the
IACtHR (paras. 23-26).
7.After disclosing the pitfalls of State volunt arism in judicial settlement of international
disputes, he stressed that, in his understanding,
“unlike what the ICJ has usually assumed, St ate consent is not at all a ‘fundamental
principle’, it is not even a ‘principle’; it is at most a rule (embodying a prerogative or
concession to States) to be observed as the initial act of undertaking an international
obligation. It is surely not an element of treaty interpretation. Once that initial act is
performed, it does not condition the exercise of a tribunal’s compulsory jurisdiction,
which preexisted it and continues to operate unaffected by it” (para. 27).
8.Moving to another aspect, at epistemological level, Judge Cançado Trindade then states
that the understanding, which he sustains, that recta ratio stands above voluntas, human conscience
above the “will”, is in line with jusnaturalist thi nking, going back to the lessons of the “founding
fathers” of the law of nations (as from the XVIth-century lessons of Francisco de Vitoria), based on
a lex praeceptiva, apprehended by human reason, and certainly not derived from the “will” of
subjects of law (States and others) themselves. And he adds that
“The way was thus paved for the apprehension of a true jus necessarium,
transcending the limitations of the jus vol untarium. The lessons of the “founding
fathers” of our discipline are perennial, are endowed with an impressive topicality. (...)
Contrariwise, the voluntarist conception, obsessed with State consent or ‘will’,
has proven flawed, not only in the domain of law, but also in the realms of other
branches of human knowledge. The attachment to power, oblivious of values, leads
nowhere. As to international law, if, — as voluntarist positivists argue, — it is by the
‘will’ of States that obligations are created, it is also by their ‘will’ that they are
violated, and one ends up revolving in vicious circles which are unable to explain the
nature of international obligations” (paras. 28-29).
9.Judge CançadoTrindade then reviews the international legal doctrine in this line of
thinking (paras.30-37),— which is his own,— as well as his Separate and Dissenting Opinions
within the ICJ to this effect (paras. 38-40), and then adds:
“It seems most regrettable that, still in our days, the obsession with reliance on
State consent remains present in legal pr actice and international adjudication,
apparently by force of mental inertia. In my perception, it is hard to avoid the
impression that, if one still keeps on giving pride of place to State voluntarism, we
will not move beyond the pre-history of judicial settlement of disputes between States,
in which we still live. May I here reiterate that recta ratio stands above voluntas,
human conscience stands above the ‘will’” (para. 41).
10.Moving to the issue of the compétence de la compétence (Kompetenz Kompetenz)
beyond State consent, Judge CançadoTrindade pointed out that international human rights
tribunals (like the IACtHR and the ECtHR), in particular,— the case-law of which has been - 3 -
invoked by the contending parties in the course of the proceedings before the ICJ in the present
case of Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, — have
succeeded in
“liberating themselves from the chains of State consent, and have thereby succeeded
in preserving the integrity of their respectiv e jurisdictions. They have consistently
pursued a teleological interpretation, have asserted their compétence de la
compétence, and have exercised their inherent powers.
(...) They rightly understood that their compétence de la compétence, and their
inherent powers, are not constrained by State consent; otherwise, they would simply
not be able to impart justice.
Those two international tribunals opposed the voluntarist posture, and insisted
on their compétence de la compétence, as gua rdians and masters of their respective
jurisdictions. The ECtHR and the IACtHR contributed to the primacy of
considerations of ordre public over the subjec tive voluntarism of States. (...) In sum,
for taking such position of principle, the IACtHR and the ECtHR rightly found that
conscience stands above the will” (paras. 43-45).
11.As to international criminal tribunals, — he proceeds,— the ad hoc International
Criminal Tribunal for the Former Yugoslavia (ICTY) has likewise relied on its own compétence de
la compétence (paras.46-47). Moreover, internati onal tribunals have made use of their inherent
powers or facultés in distinct situations (paras. 48-55), such as in filling lacunae of their interna
corporis (para.56). There seems, in effect , to be general acknowledgment nowadays of the
multiplicity of possible situations of the use of inherent powers by international tribunals, keeping
in mind in particular the distinct functions proper to each international tribunal. In sum,
“contemporary international tribunals have resorted to the inherent powers which
appear to them necessary to the proper exerci se of their respective judicial functions.
They have shown their preparedness to make use of their inherent powers (in deciding
on matters of jurisdiction, or handling of evidence, or else merits and reparations), and
have not seldom made use of them, in distin ct situations, in order to secure a proper
and sound administration of justice” (para. 58).
12.In Judge Cançado Trindade’s perception, the concern of international tribunals is “to
endow their own respective judicial functions with the inherent powers needed to ensure the proper
and sound administration of justice” (paras.59-60). It is their understanding that “their task goes
beyond peaceful settlement of disputes, as they also say what the Law is (juris dictio)”
(paras. 61-62). They have gone beyond traditional transactional justice. There is support for their
larger conception of saying what the Law is (juris dictio), — thus contributing also to the progressive
development of international law,— e.g., in the relevant case-law of international human rights
tribunals and international criminal tribunals (para.63). It is also implicit in the notion of “pilot
judgments/arrêts pilotes”in the work specifically of the ECtHR (para. 66).
13.As to the remaining aspect of inherent powers and supervision of compliance with
Judgments (a point raised by the two contending parties, on distinct grounds, before the ICJ),
JudgeCançado Trindade ponders that the fact th at an international tribunal can count on the
assistance of another supervisory organ for seeking compliance with its own judgments and
decisions, in his view does not at all mean that, once it renders its judgment or decision, it can
remain indifferent as to its compliance (para. 67). - 4 -
14.The fact, for example, that Article94(2 ) of the U.N.Charter entrusts the Security
Council with the enforcement of ICJ judgments and decisions, in his view, “does not mean that
compliance with them ceases to be a concern of the Court. Not at all. Moreover, the Security
Council has, in practice, very seldom done anything at all in that respect.” It is important to avoid
the additional breach of non-compliance; this “remai ns a concern of the ICJ as well as of all other
international tribunals” (para. 68).
15.In the case of the ICJ in particular, it h as been mistakenly assumed that it is not the
Court’s business to secure compliance with its own judgments and decisions. Article 94 (2) of the
U.N.Charter does not confer an exclusive aut hority to the Security Council to secure that
compliance, and a closer look at some provisions of the Statute shows that “the Court is entitled to
occupy itself with compliance with its own judgments and decisions” (para6 .9).
Judge Cançado Trindade considers that what is thus to be criticized “is not judicial law-making (as
often said without reflection), but rather judicial inactivism or absenteeism,— in particular in
respect of ensuring compliance with judgments and decisions” (para. 70).
16. He then observes that, for their part, ECtHR counts on the assistance of the Committee of
Ministers, and the IACtHR has resorted to post-adjudicative hearings (para. 71). The powers of the
Committee of Ministers to supervise the executi on of the ECtHR’s judgments are not exclusive
either; the Court can be concerned with it, as the ECtHR itself has expressly acknowledged. In
sum, in his understanding, “no international tribunalcan remain indifferent to non-compliance with its
own judgments. The inherent powers of internationaltribunals extend to this domain as well, so as to
ensure that their judgments and decisions are duly complied with” (para. 72). And he adds:
“In doing so, international tribunals ar e preserving the integrity of their own
respective jurisdictions. Surprisingly, international legal doctrine has not yet dedicated
sufficient attention to this particular issue. This is regrettable, as compliance with
judgments and decisions of international tribuna ls is a key factor to foster the rule of
law in the international community. And, from 2006 onwards, the topic of ‘the rule of
law at the national and intern ational levels’ has remained present in the agenda of the
U.N. General Assembly , and has been attracting increasing attention of member
States, year after year.
(...) The path to justice is a long one, and not much has been achieved to date as
to the proper conceptualization of the supe rvision of compliance with judgments and
decisions of international tribunals. Instead , the force of mental inertia has persisted
throughout decades. It is time to overco me this absenteeism and passiveness.
Supervision of such compliance is, after all, a jurisdictional issue. An international
tribunal cannot at all remain indifferent as to compliance with its own judgments and
decisions” (paras. 73 and 75).
17. Last but not least, coming to his brief epilogue, Judge Cançado Tr indade notes that, the
handling by the Court, in the present case, of “the question raised by the fourth preliminary
objection of Colombia does not reflect the richness of the proceedings in the cas d’espèce, and of
the arguments presented before the ICJ (in the written and oral phases) by both Nicaragua and
Colombia (para. 76).
1
Articles 41, 57, 60 and 61 (3).
2Cf. General Assembly resolu tions61/39, of18.12.2006; 62/70, of 06.12.2007; 63/128, of11.12.2008; 64/116,
of16.12.2009; 65/32, of06.12.2010; 66/ 102, of09.12.2011; 67/97, of14.12.2012; 68/116, of16.12.2013; 69/123,
of 10.12.2014; and 70/118, of 14.12.2015. - 5 -
18.Their submissions should, in his view, “h ave been fully taken into account expressly in
the present Judgment, even if likewise to dismiss the fourth preliminary objection at the end. After
all, the parties’ submissions in the present case of Alleged Violations of Sovereign Rights and
Maritime Spaces in the Caribbean Sea, raise an important question, recurrently put before the
Court, which continues to require our reflection so as to endeavour to enhance the realization of
justice at international level” (para. 77).
19. The fact that the Court has found, in th e present Judgment, that it has jurisdiction
under the Pact of Bogotá (dismissing Colombia’s first preliminary objection), in
Judge Cançado Trindade’s view “d id not preclude it from having considered the arguments of the
two contending parties on such an important issu e as its inherent powers or facultés (to pronounce
3
on the alleged non-compliance with its 2012Judgment) ” (para.78). He feels obliged to do so,
even if considering that the fourth preliminary objection is unsustainable and was thus to be
likewise dismissed, rather than having simply said— as the Court has done, “in an elusive
4
way”, — that “there is no ground” to pronounce upon it .
20.The consideration of the use of inherent powers or facultés by contemporary
international tribunals beyond State consent, has prompted Judge Cançado Trindade, in the present
Separate Opinion, to bring to the fore his understanding that
“recta ratio stands above voluntas. Th ere is need to overcome the voluntarist
conception of international law. There is need of a greater awareness of the primacy
of conscience above the ‘will’, and of a constant attention to fundamental human
values, so as to secure the progressive de velopment of international law, and,
ultimately, to foster the realization of justice at international level” (para. 82).
Declaration of Judge Bhandari
In his declaration JudgeBhandari recalls that he has joined the major ity with respect to the
first four preliminary objections raised by Colombia. However, he differs from the majority in that
he would uphold Colombia’s fifth preliminary objection and thus refuse to allow the present case to
proceed to the merits phase. JudgeBhandari r ecalls that according to the fifth preliminary
objection, Nicaragua’s claim constitutes an improper attempt to have the Court enforce one of its
prior judgments. According to Article94(2) of the UnitedNations Charter and ArticleL of the
Pact of Bogotá, it is clear that the appropriate avenue for an aggrieved party to seek enforcement of
an ICJ judgment is the UnitedNations Security Council. Though both Nicaragua and Colombia
have clearly framed this case as a request to enforce the 2012 Judgment, the Court has nevertheless
declared in the present Judgment that the real character of the dispute involves alleged violations of
customary international law by Colombia. Though it is correct, as a matter of law, that it is for the
Court not the Parties to ultimately determine the true essen ce of the dispute, Judge Bhandari
disagrees with the majority’s factual conclusion that Nicaragua’s present claim does not seek to
enforce the 2012 Judgment. The majority cites pa ragraph 79 of the present Judgment in support of
its conclusion that the dispute does not arise directly out of the 2012Judgment. However,
paragraph 79 and the analysis preceding it deal with the Court’s analysis of a completely separate
issue underpinning an altogether different pr eliminary objection raised by Colombia namely,
whether there existed a dispute between the Pa rties when Nicaragua filed its Application which
has no bearing on the present inquiry. Moreover, there is abundant evidence on record, which the
3
Cf. paras. 17 and 102 of the present Judgment.
4
Cf. para. 104 and resolutory point 1 (e) of the dispositif of the present Judgment. - 6 -
majority has not sufficiently accounted for, clearly demonstrating that Nicaragua’s present claim is
an obvious attempt to enforce the 2012 Judgment.
Dissenting opinion of Judge ad hoc Caron
JudgeCaron dissents in respect of the Court’s finding on Colombia’s second and third
preliminary objections inasmuch as the Court’s reasoning departs from its own jurisprudence and is
not supported by the evidence before it. Beyond the particulars of this case, it is of great concern to
JudgeCaron that in finding that it possesses jurisd iction, the Court’s reasoning undermines in his
opinion broader concepts underlying the peaceful settlement of disputes.
JudgeCaron recalls that the full title of the Pact of Bogotá is the “American Treaty on
Pacific Settlement” and observes that although there may not be a regimented staircase of
procedures in the Pact of Bogotá, peaceful settl ement within the scheme of the Pact carefully
climbs from dialogue in which each State’s concer ns are voiced to each other, upwards to the
various means by which settlement may be negotiate d and finally to the power of the Court or a
tribunal to decide “disputes of a juridical nature”. A disagreement is more than a pattern of
conduct that might imply a difference in views. As the Pact recognizes, communication is essential
because a disagreement cannot be settled unless there is a dialogue that defines what is in dispute.
Indeed, unless a dispute in this sense “exists”, then it is difficult to envision what is to be
negotiated.
JudgeCaron dissents from the Court’s Judgm ent because it fundamentally weakens this
scheme, reducing the complexity of the scheme for th e settlement of disputes set out in the Pact of
Bogotá into essentially a simple acceptance of th e Court’s jurisdiction. The Judgment, in
profoundly shifting the requirement that there be a dispute, holds that an applicant to the Court
need not have engaged in dialogue, and need not ha ve expressed its concerns to the other State.
Without such dialogue, the parties will not have had the opportunity to define the dispute, refine the
dispute, and one can hope narrow or even settle the dispute. As critically, if the applicant
need not have engaged in dialogue with the other party, then any du ty to negotiate as a practical
matter is substantially weakened. Internati onal disputes are complex and boundary disputes are
amongst the most difficult to resolve. The law gives answers, but not necessarily the most nuanced
answers, in such complex situations. It is essential that the Court or a tribunal possess the
jurisdiction to give the answer to a dispute wh en necessary or when called upon by both parties.
But it is only necessary, pursuant to the Pact of Bogotá, when the dispute between two States
“cannot be settled by direct negotiations” language in ArticleII of the Pact that the Court’s
jurisprudence holds to be a precondition to jurisd iction under the Pact. It is regrettable, in
JudgeCaron’s opinion, that the present Judgmen t in its holdings regarding the second and third
preliminary objections formally reaffirms, yet subs tantively negates, the requirement that a dispute
exists and the obligation to pursue negotiations.
More specifically as to the second preliminary objection, Judge Caron, applying the Court’s
previous jurisprudence as to the meaning and ex istence of a dispute, is unable to see how a
“dispute” as to the subject-matter invoked by Nicara gua in its Application existed at the requisite
date. In the present proceedings, Colombia’s second preliminary objection does not reach the point
of arguing that it did not positively oppose a claim of Nicaragua. Colombia’s second preliminary
objection argues a more fundamental point, namely , that Nicaragua never made a claim which
Colombia could oppose. This significant differen ce is not addressed by the Judgment. It can be
appropriate for the Court to infer positive opposition to a claim. It is not, in Judge Caron’s view,
appropriate to infer the assertion of the claim.
JudgeCaron concludes from a full review of the factual record that, prior to filing its
Application, Nicaragua made no claim that Colombia had breached its sovereign rights or maritime
spaces or had unlawfully threatened the use of force. In its analysis , the Court turns on its head its - 7 -
jurisprudence as to the requirement that a dispute exis t at the time an application is filed. In this
case, the Court does not ask whether the Applicant Nicaragua made in any form a claim of
legal violation prior to the lodgment of the Applica tion. Rather, it infers that the Respondent must
have been “aware” that the App licant positively opposed actions that the Respondent had taken.
According to JudgeCaron, this reasoning misappr ehends the Court’s jurisprudence regarding the
requirement that a dispute exist. This holding in practice signals the end of the application of a
reasoned requirement that a dispute exist.
More specifically as to the third preliminary objection, Judge Caron observes that the Court
in its Judgment proceeds from the basis of its 1988 holding that the reference to direct negotiations
in Article II of the Pact “constitutes . . . a conditi on precedent to recourse to the pacific procedures
of the Pact in all cases” (Border and Transbor der Armed Actions (Nicaraguav. Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Repo rts 1988, p.94, para.62). In so proceeding,
the Court holds that the test for determining wh ether settlement is not possible is “whether the
evidence provided demonstrates that, at the date of Nicaragua’s filing of the Application, neither of
the Parties could plausibly maintain that the dispute between them could be settled by direct
negotiations through the usual diplomatic channels”.
JudgeCaron dissents from the Court finding that “no evidence submitted to the Court
indicates that, on the date of Nicaragua’s filing of the Application, the Parties had contemplated, or
were in a position, to hold negotiations to settle the dispute concerning the alleged violations by
Colombia of Nicaragua’s rights in the maritime zones” and on that basis rejecting Colombia’s third
preliminary objection. In Judge Caron’s opinion, the Court’s conclusion is not only not supported
by the evidence, it is contradicted by the specific evidence cited by the Court.
JudgeCaron’s concluding observation is that the Court, in objectively determining the
subject-matter of the disputes before it, can be called upon to make fine distinctions. In the present
case, JudgeCaron notes that the Court has dis tinguished very finely between a claim for
non-compliance with a judgment of the Court and a claim for violation of the rights granted by
such judgment. The Judgment, however, in Judge Caron’s opinion makes clear that the Court is
not nearly as adept at distinguishing whether a certain piece of evidence bears on non-compliance
with the 2012 Judgment or on a violation of sovere ign rights and maritime spaces as defined in the
2012 Judgment. The ease with which these two claims overlap and the difficulty the Court has in
assessing the evidence will likely complicate the Court’s task at the merits phase of this case.
___________
Summary of the Judgment of 17 March 2016