Written reply of Colombia to the questions put by Judge Cançado Trindade at the public sitting held on the morning of 2 October 2015

REPUBLICADECOLOMBIA
I\IIINISTERIO DE RELA.CIONES EXTERIORES

The Ha!,'ll, October20 15

Sir,

With reicrence to the oral proceedings on preliminaryobjections in the case conceming
Alleged Violations q{'So1•ereignRights and Afaritime Spaces in the Caribbean Sea (Nicl'.gua

Colombia), 1have the honourto referto thequestionsfonnulated by Judge CançadoTrindadeat
theend ofthe hearingheld on 2 October2015,at 10a.m.

In that regard, within the time limit indicated by the President, please find enclosed
herewithCo lombia'swrittenreplyto the above-mentionedquestions.

Accept,Sir,theassurancesofmy highestconsideration.

CARLOS GUSTA' 0 ARRIETA PADILLA

Agent oft11Repub~ Colombia

H.E. PHILIPPE COUVREUR
Registrar

InternationalCourt ofJustice
TheHague REPÛBLICADE COLOMBIA

MINISTERIO DE RELACIONES EXTERIORES

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International Court ofJustice

Allcged ViolationsfSovereign Rights and Maritime Spaces in the Caribbcan Sea

(Nicaragua v. Colombia)

The Republic ofColombia's response to the questions put to the Parties by

Judge Cançado Trindade at the hearing on 2 October 2015

At the hearing on 2 October 2015 Judge Cançado Trindade addressed the following questions to

both Parties:

In the course of the proceedings along this week, both contending Parties referred to the relevant
case lawqf contempormy international tribunats, inparticular in respect of the question of their
inherent powers or facultés. Having listened attentive/y to their oral arguments, 1 have three

questions to address to both Parties, so as to obtainfurther precisions,tua/level, from
both qfthem, in the context qfthe cas d'espèce.

"First: Do the inherent powers or facultésqf contempormy international tribunats ensue from
the exercise itse(f,ach of them, of their internationaljudicial function?

Second:Do the distinct bases of jurisdiction of contempormy international tribzmals have an
incidence on the extent oftheir compétencede la compétence?

Third: Do the distinct bases ofjurisdiction of contemporary international tribunals condition the
operation of the corresponding mechanisms qf supen,ision of compliance with their respective
judgments and decisions?"

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CR2015/25, p. 47. REPÛBLICA DE COLOMBIA
MINISTERIO DE RELACIONES EXTERIORES

General

1. The questions appropriately invite a response "in the context of the cas d'espèce",that is,

in the contcxt of the present procecdings beforc the International Court of Justice. These

proccedings do not concem •contempornry international tribunals' in general or questions

of"inherent powers" at a conceptuallevel.

2. Each court or tribunal is govemed by its own particular statutory provisions and rules.

This applies in respect of each of the questions asked by Judge Cançado Trindade.

First: Do the inherent powers or facultés of contemporary international tribunals ensue

from the exercise itself, by each of them, of their international judicial fonction?

3. ln the present proceedings, Nicaragua has raised issues concerning an alleged 'inherent

jurisdiction' and/or supervision of compliance of the International Court of Justice. In

this regard, Colombia recalls the position it has taken, in its Fourth and Fifth Prelirninary

Objections, on these claims ofNicaragua. 2 In essence, and as is confinned by the Court's

case-law, in addition to the powers expressly conferred upon it by the Statute, the

International Court has such "inherent powers" as are necessary in the interests of the

good administration of justice for the proper conduct of cases over which it has

jurisdiction. As stated by Counse] for CoJombia, "[t]he expression 'inherent power'
imp1iesthat, in the case that there exists a jurisdiction welJ estab1ishedon the basis of the

consent of the parties, this incJudescertain powers necessary for its exercise."

4. There is no such thing as an 'inherent jurisdiction' enabling the Court to take jurisdiction

over new cases, as urged upon the Court by Nicaragua. "The competence to decide on

2CPO, Chapters 5and 6 (pp. 131-164); CR2015/22, pp. 59-66 (Treves); CR 2015/24, pp. 32-38 (Treves),

pP ·9-40, paras. 5-6 and p. 43, pJ9 (Bundy).
· «L' expression <ouvoir inhérent» implique quemt cas oiiilexiste une comptence bien établie basée
sur le consentement des parties, celle-ci comprend certains pouvoirs nécessaires à son e»In :CR.
2015/22, p. 60, para. 3 (Treves).

2 REPÛBLICA DE COLOMBIA

MINISTERIO DE RELACIONES EXTERIORES

the mcrits of a diflcrcncc is only cstablished on the basis of titlcs provided for in the

Statutc."4

5. Thus, in Nue/car Tests, the International Court of Justice underlined that inherent powers

serve the excrcise of jurisdiction on the merits and that this jurisdiction must be clearly

established on the basis of consent.5

Second: Do the distinct bases of jurisdiction of contemporary international tribunats have
an incidence on the extent of their compéte11cd eela compéte11ce?

6. Tite question of compétencede la compétence has not been an issue in the present case. lt

refers to an international court's or tribunal's competence to decide upon its own

jurisdiction. With respect to the Court, whose powers derive from the Statute, Article 36,

paragraph 6, of the Statute provides express!y that in the event of a dispute as to whether

the Court has jurisdiction, the matter shaH be decided by the decision of the Court. Titis is

an express power, and in and of itself in no way gives rise to an inherent power or

jurisdiction. Even if judicial character and general international law may, in the absence

4 «La compétenceàjuger sur le fond d'un différendne s'établitque sur la base des titres de compétence

prévuspar le Statut. »CR 2015/22, p. 61, para. 6 (Treves), citing G. Guillaume : « De l'exécutiondes
décisions de la Cour internationale de Justice » (1997), dans La Cour internationale de Justice1à'aube
du XXIe siècle, Le regard d'unjuge, Pédone,Paris, 2003, p. 179.
s Nuclec1rTests (Austra/ia v. France), Judgment, I.CJ. Reports /974, p. 259, para. 23; Nuclear Tests
(New Zea/and v. France), Judgment, I.C.J. Reports1974, p. 463, para. 23"ln this connection,itshould

be emphasized that the Court possesses an inherent jurisdiction enabling it to take such action as may be
required, on the one band to ensure that the exercise of its jurisdiction over the merits, if and when
established,shaHnot be frustrated, and on the other, to provide for the orderly seulement of ail matters in
dispute, to ensure the observance of the 'inherent limitations on the exercise of the judicial fonction' of

the Court, and to 'maintain itsjudicial character' (Northem Cameroons, Judgment, I.C.J. Reports 1963,at
p. 29). Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever
findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as
ajudicial organ established by the consent of States, and is conferred upon it in order that its basicjudicial
fonctions may be safeguarded." See also Application for Revisio11and Interpretation of the Judgment of

24 Februmy 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)
(1imisia v. Libycm Arab Jamahiriya), Judgment, /. C. J. Reports 1985, p. 192 at pp. 197-198, para. 10
("The Court does of course have the power to correct, in one of its judgments, any mistakes which might
be described as 'erreurs matérielles'. ")

3 REPÛBLICA DE COLOMBIA

MINISTERIO DE RELACIONES EXTERIORES

of an express provision, be sufficient to establish that a court or tribunal is competent to

adjudicate on its own jurisdiction, this would not mean that such considerations give rise
to an inherent power or jurisdictio1•erthe merilof a case that it does not otherwise

have.

Third: Do the distinct bases of jurisdiction of contemporary international tribunats
condition the operation of the corresponding mechanisms of supervision of compliance
with their respective judgments and decisions?

7. Yes. Insofar as any specifie international court or tribunal has a mechanism of
supervision of comp1iancewith its judgments and decisions, such a mechanism must be

found in the instrument which created it and established itsjurisdIntthe case of the

International Courtof Justice, the extent to which "mechanisms of supervision of

compliance with ... judgments and decisions" exist is exclusively govemed by statutory
provisions. TheStatute does not provide such a mechanism, but the Charter, of which the

Statute is an integral part, assigns such competence to the Security Council and provides

mechanisms and procedures for giving effect to judgments. The Pact of Bogotâ (in
particular, Article L), reflects thee Parties' understanding that the Court is not the

venue for matters of supervision of compliance.

9 October 2015

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