Non Corrigé Traduction
Uncorrected Translation
CR 2010/19 (traduction)
CR 2010/19 (translation)
Mercredi 20 octobre 2010 à 9 h 30
Wednesday 20 October 2010 at 9.30 a.m. - 2 -
10 Le PRESIDENT : Veuillez vous asseoir. L’audience est ouverte. La Cour se réunit ce matin
pour entendre le premier tour de plaidoiries du Nicar agua et ensuite le premier tour de plaidoiries
de la Colombie. Avant de donner la parole au premier orateur, je voudrais indiquer que le
juge Abraham, pour des motifs qu’il m’a fait connaître, n’est pas en mesure de siéger aujourd’hui.
Je donne à présent la parole à S. Exc. M. Carlos José Argüello Gómez, agent de la République du
Nicaragua.
M.ARGUELLO GOMEZ: Monsieur le président, Mesdames et Messieurs de la Cour,
bonjour. C’est toujours un honneur de plaider devant vous.
1. La présente affaire constitue malheureusem ent un exemple flagrant d’une tentative visant
à jeter le discrédit sur l’un de vos arrêts. Le Nicaragua s’indign e de cette manŒuvre ourdie par le
Honduras pour vous amener à réexaminer une affa ire que vous avez tranchée il y a trois ans à
peine. La présence à l’audience aujourd’hui de M. Samuel Santos, ministre des affaires étrangères
du Nicaragua, souligne l’importance que le Nicaragua attache à cette question.
2. Monsieur le président, il y a onzeans, le 8décembre1999, le Nicaragua a déposé une
requête, priant la Cour «de déterminer le tracé de la frontière maritime unique entre les mers
territoriales, les portions de plateau continenta l et les zones économiques exclusives relevant
respectivement du Nicaragua et du Honduras» (Différend territorial et maritime entre le Nicaragua
et le Honduras dans la mer des Caraïbes (Nicar agua c. Honduras), arrêt, C.I.J. Recueil 2007 (II) ,
p. 666, par. 17).
3. Au cours des huitannées pendant lesquelles l’affaire était pendante devant la Cour, les
deux Parties ont eu l’occasion de présenter tous les arguments et questions de fait ayant trait aux
questions soumises à la Cour.
4. La Cour a été priée par les deux Parties, dans leurs conclusions finales, de déterminer une
frontière maritime unique pour toutes les zones en litige.
5. Il est pertinent de rappeler que le H onduras, dans les premières conclusions qu’il a
présentées dans son contre-mémoire, avait fait valoir que
«[l]a frontière, aux fins de la délimitati on des zones contestées du plateau continental
et de la zone économique exclusive dans la région, [était] une ligne qui part[ait] du
point précité de la limite des 12milles, en direction de l’est, et qui longe[ait] le
e e
15 parallèle (14°59,8') jusqu’à la longitude du point de départ (82 méridien) de la - 3 -
frontière maritime établie par le traité de 1986 entre le Honduras et la Colombie»
(ibid., p. 667-668, par. 18).
6. En d’autres termes, le Honduras a modifi é sa position initiale et a omis, dans ses
e
conclusions finales, de préciser que la ligne de délimitation s’arrêtait au 82 méridien, demandant
11 que la frontière maritime unique à déterminer par la Cour s’étende «jusqu’à atteindre la juridiction
d’un Etat tiers» ( Différend territorial et maritime entre le Nicaragua et le Honduras dans la mer
des Caraïbes (Nicaragua c. Honduras), arrêt, C.I.J. Recueil 2007 (II) , p. 667-668, par. 18). Voilà
qui rend d’autant plus surprenante son actue lle demande à fin d’intervention fondée sur de
e
prétendus intérêts qu’il détiendrait dans des zones situées à l’est du 82 méridien.
7. Il est donc évident, à la lecture de leur s conclusions, que les Par ties ne demandaient pas
une délimitation partielle de leurs espaces ma ritimes dans la mer des Caraïbes mais une
délimitation complète de ceux-ci. Et c’est exactem ent dans ce sens que la Cour a statué dans son
arrêt du 8 octobre 2007. La Cour a fixé un point de départ pour la délimitation et a ensuite indiqué
que cette ligne, après avoir décrit un arc de cercle autour de certaines cayes attribuées au Honduras,
suivrait une bissectrice le long d’un azimut déterminé par la Cour, jusqu’à atteindre la zone dans
laquelle les droits d’Etats tiers pourraient être en cause (ibid., p. 759-760, par. 320).
8. Le Honduras ne saurait détenir le moindre intérêt de nature juridique au sud de cette
bissectrice. Les zones de délimitation éventuelles, qui sont en litige entre le Nicaragua et la
Colombie, sont toutes situées au sud de cette ligne.
9. M. Pellet examinera ces points plus en détail, mais je vais vous en faire une démonstration
préalable à l’aide de la carte qui est projetée à l’écran.
10. (CAG 1) La figure3-1 de la réplique du Nicaragua illustre la zone de délimitation
générée par l’ensemble des côtes continentales du Nicar agua et de la Colombie. Elle ne représente
naturellement pas les zones sur lesquelles le Nicar agua fait valoir des prétentions, mais toute la
zone sur laquelle des titres sont susceptibles d’être générés par les deux côtes continentales. Cette
carte a été brandie comme une indication que le Nicaragua prétendait engloutir le Panama et
d’autres pays voisins. Mais quiconque connaît un peu la délimitation maritime comprend l’objet de
cette illustration. En tout état de cause, cette carte ne présente aucun intérêt juridique pour le
Honduras étant donné qu’elle ne concerne que d es zones situées exclusivement au sud de la
frontière maritime définie par la Cour. Nous a vons superposé à l’écran la ligne de délimitation - 4 -
définie par la Cour (CAG 1). Sur ce schéma figure aussi la limite extérieure de la délimitation du
plateau continental revendiquée par le Nicaragua. Elle se trouve fort loin, à l’est et au sud, de la
ligne tracée par la Cour entre le Nicaragua et le Honduras.
11. Cette carte, plus éloquente qu’un long di scours, montre à l’évidence que le Honduras n’a
aucun intérêt juridique à l’égard de l’une ou l’autre des questions soumises à la Cour.
12 12. Monsieur le président, Mesdames et Mess ieurs de la Cour, la majorité des membres
actuels de la Cour étaient également présents sur le siège au moment où l’arrêt du 8 octobre 2007 a
été rendu et sont donc parfaitement informés de la situation. Quoi qu’il en soit, les choses sont très
claires —même au terme d’une lecture rapide de cet arrêt— au regard de ce que fait valoir à
présent le Honduras. Je ne prolongerai donc pas mon exposé pour répondre à des questions qui ne
revêtent aucune pertinence pour la présente affaire.
13. Lundi, l’agent du Honduras a demandé à la Cour de contribuer à établir la certitude, la
stabilité et le caractère définitif des frontières dans la région, comme si elle ne l’avait pas déjà fait
à l’égard du Nicaragua et du Honduras dans son arrê t d’octobre 2007. Ce qui est véritablement en
cause ici, c’est la certitude, la stabilité et le caractère définitif des arrêts de la Cour, et en particulier
de l’arrêt qu’elle a rendu en octobre 2007.
14. Monsieur le président, tout ce que j’ai fait valoir jusqu’à présent répond amplement à la
requête et aux arguments présentés jusqu’ici par le Honduras, mais M.Pellet complétera mon
exposé en passant en revue les principales ques tions juridiques que soulève une requête à fin
d’intervention utilisée pour réintroduire, par la petite porte, une affaire qui a été tranchée avec toute
l’autorité de la chose jugée.
15. Monsieur le président, je vous remercie et vous prie de bien vouloir appeler M. Pellet à la
barre. Je vous remercie de votre attention.
Le PRESIDENT : Je remercie S. Exc. M. l’ambassadeur Carlos José Argüello Gómez, agent
de la République du Nicaragua.
J’appelle à présent M. Alain Pellet à la barre.
1
CR 2010/18, p. 18, par. 19 (M. López Contreras). - 5 -
M. PELLET:
2
1. Mr. President, Members of the Court, let me begin where my friend Paul Reichler ended
his oral argument last Friday on Costa Rica’s intervention by saying how lost I am too at finding
myself in a Nicaraguan courtroom team without th e presence of Ian Brownlie, with whom I have
worked for so long and who, since the mid-1980s initiated me into the mysteries of proceedings
before the Court. We sometimes disagreed yet this did not prevent strong ties developing between
us, here, in the International Law Commission and elsewhere . . . I also share in the tribute paid to
13 him by Professor Sánchez Rodríguez and in partic ular express my sympathy to the representatives
of the Republic of Honduras.
2. Mr. President, applications to intervene co me up regularly and are not alike. Or rather,
they seem alike whereas, when looke d at closely, not negligible di fferences appear. This is the
case of both the one we are concerned with here today and the one submitted to you by Costa Rica
last week. In both cases, the applicant for interv ention clearly wishes to convince you that “it has
an interest of a legal nature which may be affect ed”. In both cases, it does so by attributing to the
Parties’ submissions a significance they certainly do not have and by seeking to turn the treaties
concluded with Colombia to its advantage. A nd in both cases, the State applying to intervene is
endeavouring to convince you that, in fact, you shou ld rule on the course of its own boundary with
the Parties.
3. But there the similarities end. Even if they are important, so are the differences — among
other things because, while Costa Rica is seeking to intervene without being bound by the future
judgment of the Court, Honduras claims to do so, at least in its principal claim, as a party. But also
and above all because, while Costa Rica uses its intervention as a pretext for questioning its
well-established boundary with Colombia, confir med by long and peaceful practice, Honduras,
meanwhile, in applying to intervene, is challengi ng nothing less than a judgment of the Court, the
one you delivered on 8 October 2007 in the case of the Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea.
2
CR 2010/16, pp. 28-29, para. 36 (Reichler). - 6 -
4. As a possible way out, Honduras, eagerly supported by Colombia, brandishes the Treaty it
concluded with it on 2 Au gust 1986. This agreement alters nothing in the case: Honduras cannot
have attributed to a third State maritime areas appertaining to Nicaragua and cannot assert, in
disregard of res judicata, any “legal interest” at stake for it in the case in which it is seeking to
intervene.
5. Before coming to this point— the only one which seems to me worth serious
discussion — I would first like to point out, at the risk of disappointing counsel of Honduras, that I
shall only reply briefly to an argument which they developed at length: because they dwelt on the
two alternative capacities in which the country they represent is claiming to intervene— that of
3
14 “intervening party” or that of intervener “ tout court” . With due respect, this seems to me quite
irrelevant: even accepting that the two forms of intervention are possible, both of them would
continue to be governed by Article62 of the Statute and would have to meet the sine qua non
condition (or conditions) laid down by this provision: the State applying to intervene must be able
to show “an interest of a legal nature” which may be affected “in a dispute” submitted to the Court:
this must be an interest of a legal nature; and it must be at issue in a dispute between other States
also. Whether it is a single condition consisting of two indissociable elements or two different but
complementary conditions, the result is the same: it (or both of them) must be met. I will lump
these two requirements together under the single h eading of “the condition of Article62”, yet
making it quite clear that both of them, indissociably, form part of it. This condition of Article 62
has not been met in this case.
6. Professor Boisson de Chazournes seeks to release Honduras from this by asserting, most
insistently, that this obligation is a matter for subjective assessment only by the party seeking to
intervene: “it is ... enough for a State to consider that ‘one’ of its legal interests is affected in a
pending case for it to be in principle authorized . . . to exercise its right of intervention” 4. “Right of
intervention . . .”, a deceptive expression to say the least: right to apply to intervene , yes — and it
is a right which a State considering it has an inte rest of this kind may freely choose to exercise or
3
CR 2010/18, pp. 28-31, paras. 19-29 Boisson de Chazournes); ibid., p. 36, paras. 19-20, p. 41, para. 36 or p. 45,
para. 48 (Wood).
4Ibid., p.25, para.13— emphasis in the text ; underlining added; see, aibid., p.21, paras.5-6, pp.22-23,
paras. 7-9, p. 24, para. 10, p. 12, paras. 12-13, p. 27, para. 16, p. 29, para. 25 (Boisson de Chazournes). - 7 -
5
not; the Court pointed this out in the Cameroon v. Nigeria case of which my amiable opponent
offers an interpretation which does not hold water 6. But “[t]the Court [shall] decide”, as indicated
by Article62(2); hence what is subjective b ecomes objective, since it is naturally for your
esteemed Court to objectively determine whether the legal interest relied on is real and whether it is
affected in the case in relation to which it is presented in incidental proceedings. And it is not
7
15 enough, as SirMichael Wood claims, for a State to “advance overlapping claims” to entitle it to
intervene; those claims must also be credible enough to be co nstrued as a genuine legal interest at
issue for the State applying to intervene.
7. Whether Honduras wishes to intervene as a pa rty or not in our case is scarcely important.
It cannot do so in either of these two capacities: the interest it relies on is fanciful and based on
challenging the res judicata of the 2007 Judgment. And invoking the 1986 Treaty cannot alter this
conclusion at all. These, Mr. President, are the two points which, with your permission, I propose
to deal with in turn.
I.T HE IMPUGNMENT OF RES JUDICATA
8. Mr. President, in its Application 8, as in its oral arguments on Monday, Honduras
9
virtuously declared that it “fully accepts the res judicata of the 2007 decision of the Court” .
Having said this, it seeks ⎯ not a little insidiously ⎯ to persuade the Court to have a rethink and
questions both the operative part of the 2007 Judgme nt and the reasons forming its indispensible
basis.
[Slide 1: Extracts from the operative part of the 2007 Judgment]
9. To remove any ambiguity, I feel it would be helpful to recall what the Court decided on
that occasion, which is relevant for assessing the le gal interest asserted by Honduras in support of
its claim to intervene in the case between Nicaragua and Colombia. The passage which interests us
reads as follows:
5
Land and Maritime Boundary between Cameroon and Nige ria, Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 324, para. 116.
6
CR 2010/18, p. 22, para. 7 (Boisson de Chazournes).
7
Ibid., p. 44, para. 44 (Wood).
Application for permission to intervene, p. 4, para. 15.
CR 2010/18, p. 16, para. 12 (López Contreras); see also, ibid., p. 37, para.22 (Wood). - 8 -
“from point E, the boundary line shall follow th e 12-nautical-mile arc of the territorial
sea of South Cay in a northerly direction until it meets the line of the azimuth at point
F (with co-ordinates 15° 16' 08" N and 82° 21' 56" W). From point F, it shall continue
along the line having the azimuth of 70° 14' 41.25"N until it reaches the area where
the rights of third States may be affected.” (Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,
I.C.J. Reports 2007 (II), pp. 760 and 763, para. 321.3 in fine.)
16 [Slide 2: Course of the maritime boundary line]
10. This is probably easier to understand if we see it on a sketch. It is the one on page 761 of
the Court’s 2007 Judgment, to which a few explanatory comments have been added:
⎯ points E and F mark the two ends of the last segment of the maritime boundary which skirts the
cays which the Court determined as falling within Honduran sovereignty;
[Slide 2.1]
⎯ point F is also the one where the line reverts to the direction of the azimuth followed since the
starting-point of the single maritime boundary betw een the two States, interrupted by the need
to give effect to the cays attributed to Honduras; and
[Slide 2.2]
⎯ we have added an arrow at the end of the dotted line on the Court’s illustrative sketch.
11. This arrow merely signifies that the azimuth of 70° 14' 41.25" continues until it reaches
“the area where the rights of third States may be affected” ⎯ to quote the actual words of the Court
(ibid.), which gave a long explanation involving a detaile d examination of the rights of third States
which might be affected ⎯ and, in particular, those of Colombia. And this reply refutes the
Honduran claim to intervene in the present case. Yet this places me in an uncomfortable position,
Mr.President: either I reread whole chunks of yo ur 2007Judgment; or I decide not to reply to
Honduras in full since, in fact, it is against thaJudgment that it is waging war and because the
reply to its arguments is found in your Judgment itself in whole, complete and limpid form.
[End of slide 2]
12. If I were in your place, Members of the Court, I would not be best pleased if someone
were to reread at this podium long passages from a judgment of the Court, a recent one moreover,
and one which many of you helped to draft. But at the same time, it is difficult for me to simply
invite you to reread your Judgment and act like Lewis Carol’s cat, fading away with a grin ⎯
content that you have already demonstrated... wh at I should demonstrate. As this, however, is - 9 -
what you did and as I have to justify my presence at this podium, I have chosen an approach
17 midway between: in your folders (under tab No.4) you will find a table placing Honduras’s
allegations side by side with the replies you made to them in advance (the table is first in French,
then in English); and I shall simply draw some conclusions from this.
13. Two things emerge very clearly from this:
⎯ the first is that, in 2007, the Court determined the whole maritime boundary between Nicaragua
and Honduras;
⎯ the second is that, in particular, it took great pain s to show that its Judgment did not affect the
interests of third States and those of Colombia quite specifically.
14. On the first point, it is deliberately misleading to assert that “the Court, in its Judgment
of 8October2007 on the Territorial and Maritime Dispute between Nicaragua and Honduras in
the Caribbean Sea has already determined part of the maritime boundary between Nicaragua and
10
Honduras” . It has not determined part but all of that boundary. As regards the endpoint of the
line, it had three possibilities which it set out very clearly:
(1) it could “say nothing”, stating “only that the lin e continues until the jurisdiction of a third State
is reached”;
(2) it could “decide that the line does not extend beyond the 82nd meridian”; or
(3) it could “indicate that the alleged third-States rights said to exist east of the 82nd meridian do
not lie in the area being delimited” (I.C.J. Reports 2007, p. 758, para. 314).
It is the third solution it chose after ensuring that the rights of third States could not be affected and,
in so doing, it was the whole maritime boundary between the two States that it drew; there is
nothing else left for it to delimit in relations between Honduras and Nicaragua.
18 15. Notwithstanding Sir Michael’s learned terminological quibbles 11— over which I shall
refrain from wrangling— I do not see how he can assert that it is not the case when, in the
operative paragraph itself since he is so set on it (too much so too, as we will see), the Court
expressly said:
10
Application for permission to intervene, p. 2, para. 7; see also, CR 2010/18, p. 16, para. 11 (López Contreras);
ibid., p. 33, para. 7 and p. 39, para. 27 (Wood).
11
CR 2010/18, pp. 38-39, paras. 25-31 (Wood). - 10 -
“From pointF, it [the single maritime boundary between Nicaragua and
Honduras] shall continue along the line having the azimuth of 70° 14' 41.25" until it
reaches the area where the rights of third States may be affected.” ( Land and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), I.C.J. Reports 2007(II), p.763, para.3) of the operative
paragraph; emphasis added.)
As regards these two States (Nicaragua and Ho nduras), the maritime boundary is completely
determined without the endpoint itself having to be fixed by precise co-ordinates as this would
have involved the rights of a third State (which is not Colombia, but Jamaica — I shall come back
to this). All the Court could say (and did say) is that, as regards the endpoint of the boundary
between Nicaragua and Honduras, it is situated on th e azimuth. This is sufficient for determining
the whole boundary between these two countries.
16. I would add that, in so doing, the Cour t fully discharged its function, which is to
“decide... such disputes as are submitted to it” — not to leave them pending. And this is
especially true of frontier disputes. In accordance with the celebrated dictum of the 1962 Judgment
in the Temple case:
“In general, when two countries establi sh a frontier between them, one of the
primary objects is to achieve stability and finality. This is impossible if the line so
established can, at any moment, and on the basis of a continuously available process,
be called in question . . .”. ( Temple of Preah Vihear (Cambodia v. Thailand), Merits,
Judgment, I.C.J. Reports 1962, p. 34.)
This is equally true when the frontier settlement follows from a judicial decision, which— as is
well known — is “only an alternative to the dir ect and friendly settlement of such disputes” ( Free
Zones of Upper Savoy and the District of Gex, Order of 19 August 1929, P.C.I.J., Series A, No. 22,
12
p. 13) . Furthermore, in its 2007Judgment, the Court, as the Agent of Nicaragua has just
reminded us, responded to the expectations of Hondu ras itself which, in its submissions, had asked
it to fix the maritime boundary between the two States according to a sp ecified line “until the
19 jurisdiction of a third State is reached” ( I.C.J. Reports 2007 (II) , p.669, para.19). After a long
explanation, this is what your distinguished Court did in the operative part of the 2007 Judgment.
17. In this respect, there is a very striking contrast between its position in this 2007 Judgment
and the one in the Cameroon v. Nigeria case regarding the intervention of Equatorial Guinea. In
the latter case— as in Nicaragua v. Honduras, the Court pointed out that problems might arise
12
See also Aerial Incident of 10August1999 (Pakistv. India), Jurisdiction, Judgment, I.C.J. Reports 2000 ,
p. 33, para. 51. - 11 -
13
concerning the rights and interests of third States ; and, in both cases, it fixed the end portion of
the maritime boundary by indicating the directi on a specific azimuth line was to follow, without
14
indicating a specific endpoint, in order to preserve the rights of third States . But while, of the
three possible solutions it listed in its 2007Judgment, it opted for the third one in Nicaragua v.
Honduras, it chose the first, consisting of sayi ng nothing, as regards the maritime boundary
between Cameroon and Nigeria. In its 1998 Judgment, it noted that
“the geographical location of the territories of the other States bordering the Gulf of
Guinea, and in particular Equatorial Guinea and Sao Tomé and Principe,
[demonstrated] that it is evident that the prolongation of the maritime boundary
between the Parties . . . will eventually run into maritime zones where the rights and
interests of Cameroon and Nigeria will overlap those of third States” ( Land and
Maritime Boundary between Ca meroon and Nigeria (Cameroon v. Nigeria),
Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 324, para. 116).
15
And this prompted it to issue a species of invitation to intervene to these States , then to refrain
from giving any details whatever regard ing the extension of the azimuth line 16. In its
2007Judgment by contrast, it pointed out that th e line it was fixing could not “affect Colombia’s
rights” ( Land and Maritime Dispute between Nicar agua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J.Reports 2007(II), p.758, para.316), and it expressly
stated that it “may”: a “may” to which Sir Mich ael ventures, without a smile, to ascribe a simple
20 “methodological” meaning 17— it therefore declares that it may, as I was saying — it may, because
it has assured itself that this was possible— declare that “the maritime boundary [between
Nicaragua and Honduras]... extends beyond th e 82ndmeridian without affecting third-State
rights” (ibid., I.C.J. Reports 2007 (II), p. 759, para. 319) — “declare”, this is not “methodological”
at all; it is, on the contrary, very “res judicata”!
13See Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
Objections, Judgment, I.C.J. Reports 1998 , especially p.324, para.116, and Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment , I.C.J. Reports 2007 (II) , p.756,
para. 312.
14
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002 , p.448, para.307, and p.457, para.325IV(D) (operative paragraph); and
Land and Maritime Dispute between Nicara gua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),
Judgment, I.C.J. Reports 2007(II), p. 759, para. 319, and para. 321.3 (operative paragraph).
15
Ibid.
16Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening), Judgment, I.C.J. Reports 2002, p. 448, para. 307, and p. 457, para. 325 IV (D).
17CR 2010/18, p. 39, para. 30. - 12 -
18. This is really enough to establish that Honduras cannot assert any interest of a legal
nature which might be affected by the judgment to be made in the case between Nicaragua and
Colombia: regardless of what decision the Cour t makes, its maritime boundary with Nicaragua is,
completely and definitively, determined by the 2007 Judgment which was delivered after Honduras
had amply informed the Court not only of its own rights and interests, but also of those of
18 19
Colombia ⎯ Honduras, in its written and oral pleadings at the time, having displayed extreme
concern for Colombia’s interests.
[Slide 3: begin with the map in slide 2]
19. Moreover, the Court was not unaffected by this; it quite specifically considered
Colombia’s interests, with respect to which it drew two essential conclusions:
[Slide 3.1: Colombia’s interests according to the 2007 Judgment]
(1)Even if the Honduran interpretation of th e 1928Barcenas-Esguerra Treaty relating to the
course of the maritime boundary between Colomb ia and Nicaragua was correct, on Honduras’s
own admission, “at most, the line set by this Treaty continues along the 82nd meridian up to the
15th parallel” ( I.C.J. Reports 2007 (II) , p.758, para.351); yet, the Court points out, the
delimitation line it adopted (the one which follo ws the azimuth) “will lie well north of the 15th
parallel when it reaches the 82nd meridian. Thus , contrary to Honduras’s argument, the line
drawn above would not cross the 1928 Treaty line and therefore could not affect Colombia’s
rights” (ibid.).
21 [Slide 3.2]
(2) Still following the caveats of Honduras, the over- zealous defender of Colombian interests, the
Court also shows its awareness that “any extension of the delimitation line” in the Land and
Maritime Dispute between Nicaragua and Honduras case might well “prejudice Colombia’s
rights under that Treaty” ( I.C.J. Reports 2007 (II) , p.758, para.316). It nevertheless takes a
20
very strong position on this: reserving any rights of third States , it points out, with the utmost
18
See, in particular, Counter-Memorial, pp. 21-22, paras. 2.15-2.16; pp. 145-146, paras. 7.42-7.43 or Rejoinder,
p. 96, para. 5.42.
19
See, in particular, CR 2007/8, p.10, para. 2 (JiménezPiernas); ibid., p.23, para and p.46, para.35
(Quéneudec).
20See, in particular, I.C.J. Reports 2007 (II), p. 759, para. 318. - 13 -
clarity, that a delimitation between Hondur as and Nicaragua extending “east beyond the 82nd
meridian and north of the 15th parallel (as the bisector adopted by the Court would do [does])
would not [does not] actually prejudice Colombia’s rights because Colombia’s rights under this
Treaty do not extend north of the 15th parallel (I.C.J. Reports 2007 (II), p. 759, para. 316) ⎯ I
am quoting your Judgment but replacing the cond itional by the present since, on the basis of
this argument, such was, effectively, the delimita tion adopted by the Court. I shall return in a
few moments more specifically to the implications ⎯ or rather the absence of implications, of
the 1986 Treaty with a view to assessing the inte rests relied on by Honduras in support of its
intervention.
[Slide 3-3]
20. But for the moment, it would be hard to be clearer: whatever the Court decides in the
present case, the boundary between Nicaragua and Honduras, which is completely delimited, is not
such as to be called into question. Furthermore, and more specifically, its decision cannot affect
Colombia’s rights, such as those resulting from the 1986 Treaty with Honduras or from the 1928
Treaty with Nicaragua; and this is true even if one were to give this one ⎯ the 1928 Treaty ⎯ the
extreme interpretation Honduras had put forwar d, in its eagerness to defend Colombia’s
interests ⎯ an interpretation which Nicaragua considers i ndefensible (but that is not on the agenda
for today).
[End of slide 3].
22 21. The fact is that, using a skilfully crafted form of words in paragraph15 of its
Application, Honduras is seeking to circumvent res judicata. It denies seeking to “challeng[e] the
effect of the operative part of the Judgment of 8 October 2007 as res judicata” 21, at the same time
hinting that the reasoning is a different story.. . Then, on Monday, SirMichael, less allusively
(but at great length 22), was more overtly defensive on this point: “the res judicata of the
23
2007 Judgment is contained in, and limited to, the dispositif set forth in paragraph 321” .
21
CR2010/18, p.38, para.25, or p.39, para.27 (Wood); see also Application for permission to intervene, p.4,
para. 15.
22
Ibid., pp. 38-40, paras. 27-30.
23Ibid., p. 38, para. 25. - 14 -
22. However, according to time-honoured case law, going back to the Pious Fund of the
Californias case:
“all the parts of the judgment or the decree concerning the points debated in the
litigation enlighten and mutually supplement each other, and... all serve to render
precise the meaning and the bearing of the dispositif (decisory part of the judgment)
and to determine the points upon which there is res judicata and which thereafter can
not be put in question” .24
And this has since been consiste ntly confirmed in applications for interpretation or revision of
judgments in particular, and was restated in the clearest terms ⎯ referring to the authority of the
P.C.I.J. in the Factory at Chorzów case ⎯ by the Court of Arbitration in the Delimitation of the
Franco-British Continental Shelf case:
“The Court of Arbitration considers it to be well settled that in international
proceedings the authority of res judicata, that is the binding force of the decision,
attaches in principle only to the provisions of its dispositif and not to its reasoning. In
the opinion of the Court, it is equally clear that, having regard to the close links that
exist between the reasoning of a de cision and the provisions of its dispositif, recourse
may in principle be had to the reasoning in order to elucidate the meaning and scope
of the dispositif[ ]. ... Furthermore, if findings in the reasoning constitute a
condition essential to the decision given in the dispositif, these findings are to be
considered as included amongst the point s settled with binding force in the
decision.” 26
This is also the position of the present Court which considers that res judicata extends not only to
the dispositif, as it does of course, but also to the “reasons... in so far as these are inseparable
23 from the operative part” ( Request for Interpretation of the Ju dgment of 11June 1998 in the Case
concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria), Preliminary Objections (Nigeria v. Cameroon), Judgment, I.C.J.Reports1999 , p.35,
27
para. 10) . This is moreover exactly what the Court said in another 2007Judgment, delivered in
the Genocide case and cited by Sir Michael. In it, the Court referred, even more clearly in the
English version than in the French, to: “the issu es . . . which are entailed in the decision of those
24
The Pious Fund case (United States of America v. Mexico), Arbitral Award, R.S.A. Vol.IX, p.12. English
translation, Report of Jackson H. Ralston, Agent of the United States and of Counsel in the matter of the case of the Pious
Fund of the Califomias, etc., Part I, p. 13.
25
See Factory at Chorzów, Merits, Judgment, P.C.I.J., Series A, No. 13, p. 11.
26Arbitral Award, 14March 1978, Delimitation of the Continental Shelf between the United Kingdom of Great
Britain and Northern Ireland and the French Republic, R.S.A., Vol. XVIII, pp. 365-366, para. 28.
27See also, Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Application for
permission to intervene, Judgment, I.C.J. Reports 2001, p. 596, para. 47, and Shabtai Rosenne, The Law and Practice of
the International Court, Vol. III, Martinus Nijhoff publishers, 2006, p. 1603. - 15 -
issues” (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(I) , p.95,
para. 126), and added that “a genera l finding may have to be read in context in order to ascertain
whether a particular matter is or is not contained in it” (ibid., emphasis added).
23. The reasoning of the 2007 Judgment (the Nicaragua v. Honduras Judgment this time) to
which I have referred constitutes the essential b asis of the Court’s decision on the end of the
maritime boundary between Nicara gua and Honduras and clarifies any possible obscurity in the
decision,— which there is not, despite SirMich ael’s zealous efforts to obfuscate its meaning.
Because, I reiterate, even sticking to the third point of the dispositif, without referring to the
reasoning underpinning it, the positio n would be clear: this boundary has been determined in its
entirety and Honduras cannot assert any legal interest which might be affected by the Court’s
future judgment in the Nicaragua v. Colombia case— save by necessarily impugning the res
judicata of the 2007 Judgment:
28
⎯ the wording of paragraph 3 of the dispositif, which I analysed a few moments ago , is crystal
clear: the line of the azimuth (which forms the maritime boundary between Honduras and
Nicaragua) continues “until it reaches...”; “until” is not “towards”, it is... until! It means
“until it reaches” the zone indicated where its endpoint is located;
⎯ and the sketch-maps which illustrate this dispositif, on pages761 and 762 of the Judgment,
leave no doubt whatever as to its meaning.
24 24. As regards sketch-maps, those Honduras in cluded in its judges’ folder on Monday call
for some comment.
[Slide 4: Honduras’s judges’ folder (MW3); sketch-map No. 8 in the 2007 Judgment]
25. Let us begin with the one at tab8 (not ta b8 in our folder but in Honduras’s folder on
Monday). It reproduces one of the two sketch-map s included in the 2007 Judgment to illustrate its
dispositif. There are two things to note. First th e arrow— which confirms that the maritime
boundary set by the Judgment quite clearly does not stop at the 82nd meridian. Yet also, and more
28See supra, paras. 10-15. - 16 -
important, the fact that Honduras chose to include this sketch-map— but not the other one now
being shown on the screen:
[Slide 5: 2007 Sketch-map No. 7 ⎯ 2007 Judgment]
26. Whereas in fact
⎯ the sketch-map which Honduras has reproduced is merely an enlargement of a small part of the
first one — the one it has not produced and which you can see here;
⎯ the map you can see on the screen (and which is also at tab 6 of the judges’ folder for today),
contains a dashed line (inciden tally, the dashes start after the 82nd meridian) which extends a
long way northeast and points towards a third State;
⎯ which is in fact not Colombia, but Jamaica.
[Slide 6: Honduras’s judges’ folder (LBC 1); map showing the location of oil concessions]
27. And, extraordinarily, none of the five sketch-maps Honduras has provided you with
shows that line, crucial though it is (with one qualification to which I shall return in a moment).
28. The sketch-map on screen now is particularly interesting. Under the pretext of informing
the Court of the “factual... reality” 2, Honduras had no hesitation in reproducing a diagram
supposed to illustrate the sites of oil concessions, one it had already produced at the time of the
2007 oral arguments, nor in leaving the words “The Honduran Line” on it. This is bold...
Foolhardy even, when the line from the 2007Judgment which is resjudicata is superimposed on
it ⎯ which shows that Honduras quite clearly could not grant anything whatsoever south of that
25 line. Here we have a particularly striking illustration of Honduras’s impugnment of the line
decided by the Court.
[Slide 7: Honduras’s judges’ folder (CLC1) (map showing the zone to be delimited between
Nicaragua and Honduras in the Application for permission to intervene)]
29. The other sketch-maps given to you on Monday lead to the same conclusions. On this
one for example, Honduras has shown the rectangle over which it claims it can assert rights (on
which I shall expand presently), but not the line from the Judgment— which we had added. A
further small remark: the red line which purpor tedly represents the line fixed by the 1986Treaty
29
CR 2010/18, pp. 52-53, para. 13 (Boisson de Chazournes). - 17 -
between Colombia and Honduras is shown as passing ju st above— north— of the 15thparallel.
In fact, as I shall explain in a minute, the line established by the Treaty passes slightly below—
south of that parallel.
[Slide 8: Honduras’s judges’ folder (MW1) (ske tch-map showing the lines in the 1986 Maritime
Delimitation Treaty between Honduras and Colomb ia and in the 1993 Maritime Delimitation
Treaty between Colombia and Jamaica)]
30. The same comment applies to Monday’s “MW1” sketch-map, which is identical, save for
the rectangle, on which the addition of the line from the Judgment is equally eloquent: so much for
res judicata!
[Slide 9: Honduras’s judges’ folder (MW2) (repr oduction of fig.3.1 in Nicaragua’s Reply of
18 Sep. 2010, Vol. II)]
31. Honduras makes much of this map who se significance it partly outlines, as Costa Rica
30
did last week : this is obviously the relevant zone fo r the purposes of the delimitation between
Colombia and Nicaragua and the horizontal limits of that zone, which is the zone shown in pink on
the map, are not the limits Nicaragua sought from the Court — it made no conclusion on that point
and the question is not in issue. It is regre ttable that SirMichael Wood has very incompletely
quoted what my colleague and friend Paul Reichler said on this topic last week: “The consequence
of the adoption by the Court of this boundary with Colombia, is that, as between those two States
26 only, the waters on the Nicaraguan, or western si de of the boundary would appertain to Nicaragua
not Colombia . . .” 31. Sir Michael stopped there to pose a question, “What does that mean?” 3, a
question which supposedly reflected his “grave concerns” — whereas in fact counsel for Nicaragua
had given the answer in advance:
“the boundary would appertain to Nicaragua not Colombia, except for the enclaved
areas around Colombia’s islands.
This boundary between Nicaragua and Colombia would not have any impact on
the rights of Costa Rica, Panama or any other third State. It is ‘relational’— to use
ProfessorCrawford’s word— only to Nicaragua and Colombia; it is a boundary
relative only to Nicaragua and Colombia. Ni caragua has never intended it to be
3CR 2010/12, p. 39, para. 26 (Lathrop); ibid., p. 52, para. 13 (Ugalde).
31
CR 2010/18, p. 36, para. 17 (Wood quoting Reichler, CR 2010/16, p. 22) (original emphasis).
3Ibid., (Wood). - 18 -
applicable to any third State, as it thought it had made perfectly clear in its written
33 34 35
pleadings , and certainly emphasized in the first round . . . ” .
“What does that mean?” Had my opponent cited wh at Mr. Reichler said in full, he would know, it
is very clear: it means that Nicaragua wishes the rights of the third States to be fully safeguarded in
this case, as they were by the 2007 Judgment for the countries which were then third States.
32. But let us return to our sketch-map a nd the conclusions which Honduras draws from it.
It shows the very opposite of what it would have it say. In essence this sketch-map is the only one
on which, plainly through inadvertence, Honduras left the 2007 line— yet it is a Nicaraguan
map... And what it shows is that Nicaragua, for its part, is adhering strictly to the 2007 res
judicata. Nothing more, nothing less, as the Agent has already just said.
[Slide 10: Honduras’s judges’ folder (MW4) (repr oduction of fig.3.1 of Nicaragua’s Reply of
18 Sep. 2010; Vol. II with the addition of the line in the 1986 Treaty and the median line claimed
by Colombia)]
27 33. The next— and last— sketch-map prompts the same comments. Honduras has added
the Colombian line allegedly based on equidistan ce and the line from the 1986 Treaty. This once
again strikingly confirms that what is in dispute between the Parties to the principal proceedings —
between Nicaragua and Colombia — does not and cannot present any legal interest for Honduras.
Everything happens beyond the line decided by res judicata in 2007. It is over. The Court has
decided. Honduras is no longer concerned at all. If there is a legal interest it can only be north of
the line based on the azimuth set by the 2007Judgment. There cannot be and is no interest of
Honduras which “may be affected by the decision” in the dispute which the Court has to determine
between Nicaragua and Colombia.
[End of slide 10]
II.T HE ABSENCE OF ANY LEGAL INTEREST SUCH AS TO JUSTIFY
INTERVENTION BY H ONDURAS
34. Members of the Court, the fact that Honduras´s Application for permission to intervene
is incompatible with the fundamental principle of res judicata precludes you from granting this
33
“MN, para. 3.92 (‘the only consistent principle to emerge from the case law is the principle that the Court lacks
the competence to make determinations which may affect the claims of third States’)”.
34
“CR 2010/13, p. 33, para. 16 (Reichler); emphasis added”.
3CR 2010/18, p. 36, para. 17. - 19 -
Application. The 1986Treaty can do nothing to al ter that fact. This is very much a secondary
argument but one to which Honduras clings as to a ra ft in a shipwreck — and I have no doubt that
Colombia will soon attempt (in vain) to throw it a lif eline. It is therefore only in the interests of
absolute clarity that I am going to try to show, briefly, that Honduras cannot, of course, defeat the
fundamental principle of res judicata by invoking the maritime delimitation treaty it concluded
with Colombia in 1986.
35. Honduras claims to justify this as follows:
“The 1986 Treaty between Honduras and Colombia vests rights in Honduras in
[the] maritime zone [north of the 15th parallel over which both these States allegedly
hold rights]. Thus, any claim by Nicara gua to maritime areas north of the
15th parallel is liable to affect the rights and interests of Honduras as a third State, as
the Court recognized in its Judgment in October2007. As such, Honduras has an
actual, present, direct and concrete interest of a legal nature in the delimitation of the
maritime areas in the zone to the nort h of the boundary line deriving from the
1986 Treaty” .6
36. First of all, I believe, it is necessary to set things properly in c ontext and not to confuse
28
the various roles. In its 2007Judgment the Court pondered any rights which third States might
have in the zone in which the delimitation sought by Nicaragua was to be made. It ensured that its
decision did not in any way affect the rights of those third States, which included Colombia.
Honduras, meanwhile, was a Party to the proceedings and is bound by the Judgment. Today, it is
Colombia which is a Party to the proceedings. Ho nduras is a third party and, as such, has made an
Application for permission to intervene. I am we ll aware that it is also applying to intervene as a
party but I fail to see how that exempts it from the requirement to comply with the 2007 Judgment
and to face the ensuing consequences.
37. This moreover is why it is a secondary issue. And since the arguments intended to
respond to it broadly rehearse those I have set out hi therto from a more general perspective, I shall
be brief.
[Slide 11: Honduras’s rectangle]
36
Honduras’s Application for permission to intervene, p. 3, para.12; see also CR 2010/18, p. 15, para. 7 (López
Contreras); ibid., pp. 42-43, para. 38, or pp. 43-44, paras. 40-43 (Wood). - 20 -
38. And the reasoning is simple, provided one re fers to a sketch-map. I am no great hand at
sketching maps, Mr. President, nor am I a great admirer of Napoleon, but on this point at least he
was right: “a small sketch is worth more than a long report”.
39. The slide now being shown reproduces Annex B to Nicaragua’s Written Observations. It
shows, hatched in green, a rectangle representi ng the legal interest on which Honduras seeks to
rely.
[Slide No. 11-1]
This rectangle has not been invented by Nicaragua . It is precisely described in paragraph17 of
Honduras’s Application for permission to intervene:
“The zone containing the interests of a legal nature which may be affected by
the Court’s decision in the case lies roughly in a rectangle the starting point of which
is the intersection of the 82ndmeridian a nd parallel14°59'08". Running eastwards,
the lower boundary follows that parallel to the 80th meridian and the eastern side of
the rectangle runs northwards along that meridian to the intersection with
parallel 16° 20'; from there the northern boun dary runs westwards along that parallel
until it intersects with the 82nd meridian and the western side of the rectangle runs
down that meridian to the starting point.”
I think Napoleon was right. It is clearer on the sketch-map!
29 40. That is how Honduras itself defines its own legal interest in intervening. There is
nothing else which concerns us.
[Slide No. 11-2]
41. This rectangle is shared throughout its le ngth between the parties to the case which gave
rise to the 2007Judgment. We are, if I may put it like this, “at the heart of res judicata”: the
2007line attributes this rectangle, with the force of res judicata , to Honduras— in the
northwest — and to Nicaragua — in the southeast.
42. I am well aware, Mr. President, that res judicata authority is only relative and that like all
judgments of the Court, the 2007 Judgment “has no binding force except between the parties and in
respect of that particular case”. And that it is therefore not binding on Colombia. For Colombia, it
is res inter alios judicata , just as the 1986Honduran-Colombian Treaty is res inter alios acta
vis-à-vis Nicaragua— as emphasized by Colombia in its Counter-Memorial: “The question of - 21 -
delimitation between Colombia and Nicaragua is the subject-matter of the present proceedings — a
37
matter which the Colombia-Honduras Agreement did not deal with” .
43. But that agreement has a role to play in our case, nonetheless: it indicates the boundary
which Colombia recognized was its legal interest in the zone to be delimited. Let us see what the
sketch-map tells us on which Mr.John Brown h as shown the line described in Article1 of the
1986 Treaty — which I shall now read out:
“The maritime boundary between the Republic of Colombia and the Republic of
Honduras is formed by geodesic lines which connecting [sic] the points located at the
following coordinates:
Point 1: Lat. 14° 59' 08" N Long. 82° 00' 00" W
Point 2: Lat. 14° 59' 08" N Long. 79° 56' 00" W”.
In other words, the 1986 Treaty provides, first, that the maritime boundary between Colombia and
Honduras follows — for 120 nautical miles — parallel 14° 59’ 08" N, which is very slightly south
of the southern edge of the rectangle which supp osedly illustrates Honduras’s legal interest. The
line then climbs northwards along meridian of lo ngitude 79º 56’ 00" W, “until it reaches the area
where the rights of third States may be affected” ( I.C.J.Reports 2007 (II), p.761, para.321.3,
30
operative part). (I would also point out that th e arrow on the Court’s diagram extends beyond the
80thmeridian), north of the Joint Regime Area established by the Treaty of 12November 1993
38
between Colombia and Jamaica, a treaty on which Colombia relies against Nicaragua .
44. Mr. President, Jamaica is not itself present in the proceedings. The Court obviously will
not cease safeguarding that country’s interests— as, moreover, it safeguarded them in its
2007Judgment, in which it stated that the mar itime boundary between Nicaragua and Honduras
“extends beyond the 82ndmeridian without affecting third-State rights” ( I.C.J.Reports 2007 (II),
p. 761, para. 319), but did not indicate the endpoint ( ibid., and operative part, p. 763, para. 321.3).
Patently, although it is not referred to, all of this concerns Jamaica which is not a party to the
principal proceedings and has not applied to intervene in them, a nd which was not a party to the
case giving rise to the 2007Judgment. That deci sion thereby fully safeguards the rights of that
37
CMC, p. 361, para. 8.53.
3See CMC, p.238, para.4.188; p.324 , para.7.28; p.350, para.8.26 orpp.358-359, paras.8.46-8.47; RC,
p. 194, para. 5.62; p. 195, para. 5.67; or p. 295, para. 8.45. - 22 -
country, which is doubly and entirely a third party. It is also why the Court could not, in any event,
set a tripoint to mark the endpoint of the mar itime boundary between Nicaragua and Honduras. To
set such a point would necessarily involve Jamai ca which is not a party to the principal
proceedings.
45. The boundary established by the 1986Treaty skirts the rectangle in which Honduras
seeks to assert a legal interest. I understand, Mr.President, why Honduras, with disdain for
Napoleonic precepts, refrained from annexing to its Application for permission to intervene any
sketch-map whatsoever illustrating its alleged legal interests and why the only map which, under
duress, it produced for that purpose last Monday (at tab1 of its judges’ folder) takes care not to
include the line from the 2007 Judgment. To do so would have shown all too clearly that it has no
right to intervene in the case between Nicaragua and Colombia— by its own admission, indeed:
the rectangle on which it relies speaks for itself, or rather, speaks against Honduras . . .
31 46. Are treaties sacrosanct? Indeed they are. But only on condition that they do not affect
the rights of third parties— regarding which they are res inter alios acta . Since although pacta
39 40
sunt servanda , it is also just as well established that pacta nec prosunt, nec nocent . It is valid
treaties which must be upheld, not treaties which se ek to dispose of the rights or, worse still, the
territory, of others. The 1986Treaty could not be relied on against Nicaragua since, far from
“objectively” establishing a boundary dividing territories which are not subject to any claim by a
third party, it encroaches on the sovereign ri ghts of that party— as the Court stated in its
2007 Judgment, which is res judicata for Honduras.
47. My friend and opponent Sir Michael Wood can but lament:
“assuming arguendo that Nicaragua’s claim were correct, Honduras would then find
itself with conflicting bilateral obligations . On the one hand, it has legal rights
vis-à-vis Colombia under the 1986Treaty. On the other, it could have conflicting
obligations under the 2007 Judgment vis-à-vis Nicaragua.” 41
39
Cf. Art.26 of the 1969Vienna Convention on the Law of Treaties. See CR2010/18, p.14, para.4 (López
Contreras).
40
Cf. Art. 34 of the Vienna Convention.
4CR 2010/18, p. 43, para. 39 (Wood). - 23 -
That may be so . . . But there is nothing the Cour t can do to console Sir Michael! It is his client,
Honduras, which has put itself in that position by concluding the 1986Treaty to the detriment of
Nicaragua, which this Court has already held that it should not have done.
48. As for Colombia, its concern is with its side of the 1986 line, which runs along parallel
14° 59’ 08", that is to say, by the zone south of that line 42. In that zone, Colombia can in these
proceedings assert the rights it believes it holds a nd Nicaragua can dispute them. But no legal
interest of Honduras is affected thereby. Th e Judgment of 8October 2007 clearly, firmly and
definitively circumscribed that alleged interest of Honduras— it is not in issue in the case which
Nicaragua has brought before the Court against Colo mbia and in respect of which the Court ruled
that it had jurisdiction in its 2007 Judgment — also a judgment of 2007, but of 13 December 2007.
[End of slide 11]
32 49. Mr. President, as the Court has forcefully stated of the of res judicata principle— it is
43
hard to understand how it can be characterized as “legal subterfuges” — its “fundamental
character appears from the terms of the Statute of the Court and the Charter of the United Nations”:
“That principle 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 determin ed, save by procedures [Articles 60 and 61
of the Statute], of an exceptional nature, specially laid down for that purpose . .
116. 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 Cour t’s function, according to Article38 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 interest of each pa rty that an issue which has already been
adjudicated in favour of that party be not argued again.” ( 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(II) ,
pp. 90-91, paras. 115-116).
50. By seeking to challenge th e Judgment of 8October 2007, in disregard of Article59 of
the Statute, Honduras is jeopardizing the stability of legal relations and is unfortunately forgetting
that “the terms of the Court’s Judgment are defi nitive and binding” and that “they stand, not as
something proposed to the Parties by the Court, but as something established by the Court”
(Application for Revision and Interpretation of the Judgment of 24February1982 in the Case
42
I.C.J. Reports 2007 (II), p. 759, para. 316.
43
CR 2010/18, 18 October 2010, p. 19, para. 2 (Boisson de Chazournes). - 24 -
concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab
Jamahiriya), Judgment, I.C.J. Reports 1985 , p.219, para.48). The 2007 rulings are not
recommendations or proposals made to the parties. They are binding on them and the proceedings
between Nicaragua and Colombia cannot serve as a pretext offered to Honduras for escaping them.
51. Members of the Court, I am most grateful to you for listening to what I have had to say,
which marks the end of the first round of oral argument of the Republic of Nicaragua.
33 Le PRESIDENT: Je vous remercie, Monsieur A llain Pellet. Votre exposé vient clore le
premier tour de plaidoiries du Nicaragua.
L’audience est levée à 10 h 40.
___________
Translation