Dissenting opinion of Judge Bennouna | INTERNATIONAL COURT OF JUSTICE

923

DISSENTING OPINION OF JUDGE BENNOUNA

[Translation]

The not exclusively preliminary character (Rules of Court, Art. 79, para. 2)
of the objection raised by Colombia on the basis of Article VI of the Pact of
Bogotá, excluding matters governed by agreements or treaties in force — The
validity of the 1928 Treaty between Colombia and Nicaragua — Consideration
of the issue of the invalidity of the 1928 Treaty, allegedly signed under coercion,

falls within the merits of the case — The preliminary objection raised by Colom-
bia to the Court’s jurisdiction on the basis of the optional declarations of the
Parties (Statute, Art. 36, para. 2) — The optional declarations, a distinct and
autonomous title of jurisdiction — The persistence of a dispute between the
Parties over the validity of the 1928 Treaty between Colombia and Nicaragua
— Afforded two titles of jurisdiction, the Court opts for that presenting less
difﬁculty.

With regard to the ﬁrst objection to the jurisdiction of the Court raised
by the Republic of Colombia on the basis of Articles VI and XXXI of the
Pact of Bogotá, I am unable to subscribe to the ﬁrst decision in the

operative part of the Judgment whereby the Court upholds that objection
in so far as it concerns sovereignty over the islands of San Andrés, Provi-
dencia and Santa Catalina (operative clause, paragraph (1) (a)).
Furthermore, I cannot accept the way in which the Court has dealt
with the second preliminary objection raised by Colombia, on the basis
of the Parties’ declarations recognizing the compulsory jurisdiction of the

Court (Statute, Art. 36, para. 2). By upholding this objection, the Court
has once again denied its jurisdiction over the three islands.
In this opinion, I shall address these two aspects in turn, explaining the
reasons which prevented me from subscribing, in those respects, to the
operative part of the Court’s Judgment and the reasoning therein.
1. In my view, the Court could not uphold the objection to its jurisdic-

tion raised by Colombia regarding sovereignty over the islands of San
Andrés, Providencia and Santa Catalina, inasmuch as this objection does
not possess, in the circumstances of the present case, an exclusively pre-
liminary character within the meaning of Article 79, paragraph 9, of the
Rules of Court. In fact it concerns, as we shall see, “both preliminary

aspects and other aspects relating to the merits” (Military and Paramili-
tary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986 , p. 31, para. 41).
It should be recalled that Article XXXI of the Pact of Bogotá, which
attributes jurisdiction to the Court, adopted word for word Article 36,
paragraph 2, of the Statute, with a restrictive clause being added in Arti-

cle VI whereby:
“The aforesaid procedures, furthermore, may not be applied to

95 TERRITORIAL AND MARITIME DISPUTE (DISS.OP. BENNOUNA ) 924

matters already settled by arrangement between the parties, or by

arbitral award or by decision of an international court, or which are
governed by agreements or treaties in force on the date of the con-
clusion of the present Treaty.”

Article XXXIV then draws the following conclusion from Article VI: “If

the Court, for the reasons set forth in Articles V, VI and VII of this
Treaty, declares itself to be without jurisdiction to hear the controversy,
such controversy shall be declared ended.”
The Court rightly considered that, while it was for it to rule on its own
jurisdiction by examining whether the 1928 Treaty and the 1930 Protocol

had settled the dispute brought before it, it was not, however, up to it
under the Statute to declare the dispute ended (Judgment, para. 59).

In the jurisdictional phase, it is therefore for the Court, on the basis of

the Pact of Bogotá, to examine whether the 1928 Treaty and the 1930
Protocol settled the dispute, in full or in part, in order to assess subse-
quently its jurisdiction to deal with the issue.
The restriction on the Court’s jurisdiction established by Article VI of
the Pact of Bogotá concerns matters “governed by agreements or treaties

in force”, namely all those which bind the Parties in so far as the latter
have complied with the formal requirements for their entry into force,
which was the case when the 1930 Protocol was adopted; the consent
thus given must still have been extant in 1948, when the Pact of Bogotá
was signed.

It is true that Article VI does not stipulate that such treaties must
be valid, but the condition is implied; it assumes that the expression
of consent was not affected, originally or subsequently, by one of the
defects established by the law of treaties which entail the absolute or
relative nullity, according to the circumstances, of the legal instrument

concerned.
It is regrettable that the Court did not make the essential distinction
between the entry into force of a treaty and its validity, and maintained
throughout its reasoning a certain ambiguity in its use of these notions,
which nonetheless correspond to distinct legal concepts (Judgment,

paras. 73-81).
Nicaragua, in its Memorial of 28 April 2003, disputed the validity of
the 1928 Treaty, regarding it as null and void inasmuch as the country
was under military occupation by the United States of America at the
time when it was concluded, and deprived of its capacity freely to express

its consent to be bound by international treaties (Memorial of Nicaragua,
Vol. I, p. 116, part B).
Nicaragua expressly referred to Article 52 of the Vienna Convention
on the Law of Treaties of 23 May 1969, which is said to reﬂect a custom-
ary rule that is as such binding on the Parties (ibid., para. 2.123).

According to that provision: “A treaty is void if its conclusion has

96 TERRITORIAL AND MARITIME DISPUTE (DISS. OP.BENNOUNA ) 925

been procured by the threat or use of force in violation of the principles

of international law embodied in the Charter of the United Nations.”
It has been established that this cause of invalidity, vitiating the con-
sent given under coercion through the threat or use of force, is an abso-
lute one, in the sense that it cannot be mitigated in any way, for example
by the subsequent conduct of the Party concerned. In its commentary,

the International Law Commission justiﬁed this as follows:
“The effects and the implications of coercion in international rela-

tions are of such gravity that the Commission felt that a consent so
obtained must be treated as absolutely void in order to ensure that
the victim of the coercion should afterwards be in a position freely to
determine its future relations with the State which coerced it.”

(Yearbook of the International Law Commission , 1966, Vol. II,
p. 239.)

Yet the Court, with scant regard for the characteristics of the kind of
invalidity invoked by Nicaragua, has merely observed that “for more
than 50 years, Nicaragua has treated the 1928 Treaty as valid and never
contended that it was not bound by the Treaty” in order to infer that
“the 1928 Treaty was valid and in force on the date of the conclusion of

the Pact of Bogotá in 1948” (Judgment, paras. 79 and 81). It is true that
it was only on 4 February 1980, with the publication of the “White
Paper” addressing the issue of San Andrés and Providencia (Memorial of
Nicaragua, Vol. II, Ann. 73), that Nicaragua invoked for the ﬁrst time
the ab initio invalidity of the Bárcenas-Esguerra Treaty and explained its

position in that document, maintaining that it was only after 19 July
1979, when the Sandinista movement came to power, that it could act
freely once again. (After the withdrawal of the last United States troops
in 1933, the “Somoza” régime is said to have lacked room for manoeuvre
at the international level.)

It is surprising that the Court should have despatched in this way Nica-
ragua’s arguments regarding the invalidity of the 1928 Treaty, without
examining a series of questions which clearly have a bearing on the merits
of the case, such as the relevance of the rule prohibiting the threat or use
of force in 1928, a date concomitant with the adoption of the Pact of

Paris or Kellogg-Briand Pact, or indeed the legal and factual context in
which the Treaty was concluded (see ibid., Vol. I, pp. 129-132,
paras. 2.151-2.156).
Nicaragua did not merely invoke the occupation of the country by
“more than 5,000 United States marines...atthe time the Treaty was

concluded” (ibid., p. 121, para. 2.132), which would only have been a
general reference to coercion; it went further and expressly referred to the
1928 Treaty, which it regards as having been “negotiated between Colom-
bia and the United States and imposed on Nicaragua” (ibid., p. 123,
para. 2.136).

The Court obviously could not undertake, in the jurisdictional phase,
an investigation into whether or not coercion was exerted on the State,

97 TERRITORIAL AND MARITIME DISPUTE (DISS.OP. BENNOUNA ) 926

without entering into the merits of the dispute. Such an investigation

involves not only analysing the legal situation at the time concerning the
prohibition of the threat or use of force, but also examining the circum-
stances obtaining when the Treaty was concluded and the respective
claims of the Parties immediately before its signature. All of these are
questions which would oblige the Court to settle certain aspects of the

dispute on the merits.
In any event, the Court was not equipped to debate the matter and was
unable to do so seriously and in depth, as the Parties did not carry
through to completion their legal arguments on the issue; at the hearings,
Nicaragua expressly reserved the right to return to the subject in the mer-

its phase:
“These questions will be developed more extensively when the

merits of this case are under consideration.
.............................
The question that will be before the Court during the merits phase

is whether a treaty brought about by means contrary to the Treaty
of Paris of 1928 — and all the other similar instruments of interna-
tional law adopted since then — is to be considered valid.”
(CR 2007/19, pp. 11-12, paras. 15 and 17 (Arguëllo).)

This can only signify that the Applicant put forward an argument on the
merits in its Memorial, and informed the Court, when it encountered an

objection to the Court’s jurisdiction from the other Party, that it reserved
the right to develop and address that argument more thoroughly, once it
knew the outcome of the decision on jurisdiction.
In the Ambatielos case, the Court held that “[t]he point raised here has
not yet been fully argued by the Parties, and cannot, therefore, be

decided at this stage” (Ambatielos (Greece v. United Kingdom), Prelimi-
nary Objection, Judgment, I.C.J. Reports 1952 , p. 45). In such an event,
the Parties are free to return to the argument in question in the subse-
quent merits phase.
The Court was even more speciﬁc in the Barcelona Traction case:

“[T]he Court may ﬁnd that the objection is so related to the mer-
its, or to questions of fact or law touching the merits, that it cannot

be considered separately without going into the merits (which the
Court cannot do while proceedings on the merits stand suspended
under Article 62), or without prejudging the merits before these have
been fully argued.” (Barcelona Traction, Light and Power Company

Limited (Belgium v. Spain), Preliminary Objections, Judgment,
I.C.J. Reports 1964, p. 43; emphasis added).
In any event, we are dealing here with exactly the kind of situation for

which Article 79, paragraph 2, of the Rules of Court provides, that of an
objection which does not possess an exclusively preliminary character.

98 TERRITORIAL AND MARITIME DISPUTE (DISS.OP .BENNOUNA ) 927

Indeed, the objection raised by Colombia is not merely “touching upon”

the merits, as the Permanent Court of International Justice put it in the
case concerning Certain German Interests in Polish Upper Silesia (Juris-
diction, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6 , p. 15), thereby
enabling itself to settle the issue in limine litis, inasmuch as it concerned
the merits in an incidental and very secondary way.

In the present case, the Court, in ruling on the objection at this stage,
both settles part of the dispute and disposes of the principal argument
put forward by the Applicant therein. As the Court pointed out in the
case concerning Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie

(Libyan Arab Jamahiriya v. United Kingdom) : “The objection raised by
the United Kingdom on that point has the character of a defence on the
merits. In the view of the Court, this objection does much more than
‘touch[ing] upon subjects belonging to the merits of the case’.” (Prelimi-

nary Objections, Judgment, I.C.J. Reports 1998 , p. 29, para. 50.)
By referring in this way to the above-mentioned Judgment of the PCIJ
in the Certain German Interests in Polish Upper Silesia case, the Court
shows that this is a test which it should apply to any objection in order to
rule on its exclusively preliminary character or otherwise. For if any

party could nip in the bud an argument on the merits at a point when the
other party had not had the opportunity to discuss it fully, as is its right,
the question would arise as to whether international justice had been pre-
vented from performing its principal task, which is to settle a dispute
once the States have exhausted all their arguments on the subject. It is the

very credibility of the International Court of Justice as the principal judi-
cial organ of the United Nations which is at stake here.

Certainly, international justice should not be impeded by frivolous
arguments of a delaying kind, where these are obviously devoid of rel-

evance. When this is so, the Court should draw attention to the fact and
not take them into account:

“There can be little doubt, as is implied in the Charter of the
United Nations and recognized in Article 52 of the Vienna Conven-
tion on the Law of Treaties, that under contemporary international
law an agreement concluded under the threat or use of force is void.
It is equally clear that a court cannot consider an accusation of this

serious nature on the basis of a vague general charge unfortiﬁed by
evidence in its support.” (Fisheries Jurisdiction (United Kingdom v.
Iceland), Jurisdiction of the Court, Judgment, I.C.J. Reports 1973 ,
p. 14, para. 24.)

But that is not the situation in the case between Nicaragua and Colom-
bia, since the reality of the military occupation of Nicaragua, at the time

when the territorial treaty was concluded, has not been disputed, and
because it happens that the rule prohibiting the use of force was devel-

99 TERRITORIAL AND MARITIME DISPUTE (DISS. OP.BENNOUNA ) 928

oping at just the same time. That may be seen as a presumption in favour

of the non-futility of the arguments challenging the treaty, without pre-
judging any decision on its validity, once the debate on the merits has
been completed.
Ultimately, the test of the “not exclusively preliminary character” of an
objection has as much to do with the nature as with the scope of those

aspects of the merits of the case which it concerns, especially the question
of whether, by ruling in the preliminary phase, the Court will thus dis-
pose entirely of certain rights claimed by the Applicant. As the Court
emphasized in the Lockerbie case:

“That objection relates to many aspects of the dispute. By main-
taining that Security Council resolutions 748 (1992) and 883 (1993)

have rendered the Libyan claims without object, the United King-
dom seeks to obtain from the Court a decision not to proceed to
judgment on the merits, which would immediately terminate the pro-
ceedings. However, by requesting such a decision, the United King-
dom is requesting, in reality, at least two others which the decision

not to proceed to judgment on the merits would necessarily postu-
late: on the one hand a decision establishing that the rights claimed
by Libya under the Montreal Convention are incompatible with its
obligations under the Security Council resolutions; and, on the
other, a decision that those obligations prevail over those rights by

virtue of Articles 25 and 103 of the Charter.
The Court therefore has no doubt that Libya’s rights on the merits
would not only be affected by a decision, at this stage of proceed-
ings, not to proceed to judgment on the merits, but would constitute,
in many respects, the very subject-matter of that decision.” (Ques-

tions of Interpretation and Application of the 1971 Montreal Con-
vention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom), Preliminary Objections, Judgment,
I.C.J. Reports 1998, pp. 28-29, para. 50.)

To paraphrase that Judgment, it could be said that by requesting a deci-
sion not to proceed to judgment on the merits, which would terminate
the proceedings as far as the three islands in question are concerned,

Colombia is requesting, in reality, at least two others which the decision
not to proceed to judgment on the merits would necessarily postulate: on
the one hand, that the rule establishing the absolute invalidity of a treaty
concluded under coercion through the threat or use of force was not
applicable at the time when the 1928 Bárcenas-Esguerra Treaty was con-

cluded; and, on the other, that the subsequent conduct of Nicaragua
between 1928 and 1979 (when the Sandinista Government came to power)
now prevents it from challenging any defect of consent by which that
Treaty might have been affected.
It is clear that the Court has not applied in this case the test which has

emerged from its jurisprudence, in that it has not assessed either the rel-
evance of the arguments invoked by Nicaragua or the impact on the mer-

100 TERRITORIAL AND MARITIME DISPUTE (DISS.OP .BENNOUNA ) 929

its of the case of its own decision at this stage of the proceedings. The

Court has taken a shortcut by emphasizing the implicit acquiescence of
Nicaragua to the Treaty, which supposedly prevents it from subsequently
challenging that instrument, knowing full well that if its absolute invalid-
ity could be demonstrated on the merits, such a path would only lead, at
that stage, to a dead end.

I am consequently of the opinion that the Court’s decision is, on the
one hand, premature, as there was no urgency to act in this way and, on
the other, unwise, since it deals in a cavalier fashion with the issue of
States’ capacity to enter into commitments, which lies at the heart of con-
temporary international law and its universal nature. Beyond the dispute

between Nicaragua and Colombia, such a decision to rule on the validity
of a treaty in the jurisdictional phase, and as a result to settle the issue of
sovereignty over the three islands in question, constitutes an unfortunate
precedent, because it prejudices the outside world’s perception of the role

and function of the Court. Those who thought they were banishing in
this way any doubts over territorial treaties, which might have a destabi-
lizing effect, did not consider for a moment what would be the scope of
the damage caused to the Court by a hasty decision in this jurisdictional
phase.

For my part, I remain convinced that it was possible to safeguard the
stability of territorial treaties while protecting the credibility of the Court.
It would have been sufﬁcient to analyse the Treaty itself, according to its
ordinary meaning, where it deals with the issue of Colombia’s sover-
eignty over the three islands, while reserving a ﬁnal decision for the mer-

its phase, once the questions of fact and law regarding the validity of the
1928 Treaty had been assessed.
How would that have changed the position of Colombia, which in any
case has a presence in the San Andrés archipelago? In reality, not at all.
On the other hand, by postponing its decision, the Court would have

ensured that it was fully in accordance with international law and given it
the seal of legitimacy, by reference to the whole historical background of
the case.
2. When it turns to consideration of the second preliminary objection
which Colombia raised, regarding its jurisdiction on the basis of the dec-

larations made by the Parties under Article 36, paragraph 2, of the Stat-
ute, as invoked by Nicaragua, the Court notes that there are here “two
distinct bases of the Court’s jurisdiction which are not mutually exclu-
sive” (Judgment, para. 136) and even that “the scope of its jurisdiction
could be wider under the optional clause than under the Pact of Bogotá”

(Judgment, para. 137).
It might thus have been expected that the Court would examine the
declarations themselves, including any reservations they contain, quite
separately from the conclusions that it reached in its analysis of the Pact
of Bogotá.

But that was not the case. It is, to say the least, surprising to see the
Court, on the contrary, rely on the conclusions that it drew from the Pact

101 TERRITORIAL AND MARITIME DISPUTE (DISS. OP.BENNOUNA ) 930

of Bogotá in order to uphold the objection raised by Colombia to the

optional declarations:

“Given the Court’s ﬁnding that there is no extant legal dispute
between the Parties on the question of sovereignty over the islands
of San Andrés, Providencia and Santa Catalina, the Court cannot
have jurisdiction over this question either under the Pact of Bogotá
or on the basis of the optional clause declarations.” (Judgment,

para. 138.)

Yet, if the two bases of jurisdiction are distinct and not mutually exclu-
sive, it is difﬁcult to see how the Court can apply its conclusion regarding
the absence of a dispute, as drawn from the Pact of Bogotá, to the
optional declarations based on Article 36, paragraph 2, of the Statute. In

the ﬁrst case, the Pact of Bogotá excludes matters “already governed by
agreements or treaties in force on the date of the conclusion of the
present Treaty”, whereas in the second case, the optional declarations
apply to “legal disputes concerning...a ny question of international
law”. And it is incontrovertible that the dispute between the Parties over

the validity of the 1928 Treaty relates to a “question of international
law”. It is even less possible in this instance to settle the issue of the valid-
ity of the Treaty in the jurisdictional phase, as the Court did when con-
sidering the ﬁrst preliminary objection.
The optional declarations, as a distinct and autonomous title of juris-

diction, must be considered in themselves in order to establish if they still
bind the Parties and if they contain any reservations which affect their
scope. The Court felt free to dispense with the exercise (Judgment,
para. 139) of assessing the withdrawal by Colombia of its declaration in
extremis (just before Nicaragua’s Application was ﬁled) and the reserva-

tion ratione temporis included in Colombia’s declaration of 30 October
1937, limiting its scope to “disputes arising out of facts subsequent to
6 January 1932”. Instead of following this line of enquiry, which would
probably have led it to base its jurisdiction on the declarations, the Court
has opted to brush them aside by applying to them the restriction con-

tained in Article VI of the Pact of Bogotá, which manifestly had neither
that object nor that end in view.
This ultimately makes one wonder if the Court is not indirectly con-
curring with Colombia’s argument that jurisdiction by virtue of the Pact
of Bogotá is exclusive of all other bases of jurisdiction and, in this case,

of that based on the optional declarations. And indeed, these are deemed
irrelevant by reference to the absence of a dispute on the basis of Arti-
cle VI of the Pact of Bogotá. Yet that argument was expressly dismissed
by the Court, relying on its jurisprudence (Judgment, paras. 135 and
136), according to which:

“the multiplicity of agreements concluded accepting the compulsory

jurisdiction is evidence that the contracting Parties intended to open
new ways of access to the Court rather than to close old ways or to

102 TERRITORIAL AND MARITIME DISPUTE (DISS.OP .BENNOUNA ) 931

allow them to cancel each other out with the ultimate result that no
jurisdiction would remain” (Electricity Company of Soﬁa and Bul-
garia (Belgium v. Bulgaria), Judgment, 1939, P.C.I.J., Series A/B,
No. 77, p. 76).

It is curious to note that, after this reference to its predecessor, the Court

manages to come to the very conclusion that it was supposed to avoid,
with the two titles relied on for its compulsory jurisdiction cancelling
each other out, leaving it with no jurisdiction to rule on the three islands
in question.
The Court was certainly concerned not to contradict itself in the same

Judgment when dealing with the two objections to its jurisdiction in turn,
but the jurisprudence in fact provides a means to avoid this contradic-
tion, by opting for the legal title which clearly confers jurisdiction and
not addressing the one which could give rise to difﬁculties — as is the
case with the Pact of Bogotá, which refers to an agreement whose validity

is in dispute. Thus as was emphasized by Shabtai Rosenne:

“Where more than one title of jurisdiction is invoked in the instru-
ment instituting the proceedings, and any one of them is sufﬁcient to
found the jurisdiction of the Court in the case, the Court will, if nec-

essary, choose the one which is more convenient, and ignore the one
which may give rise to difﬁculty.” (The Law and the Practice of the
International Court: 1920-2005 , Vol. II, Jurisdiction, 4th edition
(2006), p. 926.)

The Permanent Court of International Justice provided a deﬁnition of
a legal dispute which has often been used in the jurisprudence of the

present Court: “a disagreement on a point of law or fact, a conﬂict of
legal views or of interests between two persons” (Mavrommatis Palestine
Concessions, 1924, Judgment No. 2, P.C.I.J., Series A, No. 2, p. 11).

It is therefore a difference between the subjective interpretations of the
States concerned. True, the Court has held that “[w]hether there exists an
international dispute is a matter for objective determination”, explaining
that what it meant by this was that “[t]he mere denial of the existence of
a dispute does not prove its non-existence” (Interpretation of Peace Trea-

ties with Bulgaria, Hungary and Romania, First Phase, Advisory Opin-
ion, I.C.J. Reports 1950 , p. 74). It is for the Court to ascertain “objec-
tively” whether the dispute in question falls within the categories estab-
lished by the title of jurisdiction that is relied upon.

There can be no question, as the Court suggests in the case before us,
of acting as a substitute for the States in the “determination” of the dis-
pute, since that is said to be “an integral part of the Court’s judicial func-
tion” (Judgment, para. 138). It is, however, for the Court to take note of

the differences in the legal arguments presented and to consider if these

103 TERRITORIAL AND MARITIME DISPUTE (DISS. OP. BENNOUNA ) 932

correspond to one of the categories of dispute for which it has jurisdic-

tion.
The Court has always been ﬂexible in interpreting the deﬁnition of a
dispute, merely noting the existence of the States’ opposing arguments on
a point of law. It is difﬁcult to see how, in considering the second juris-
dictional title put forward by Nicaragua, it could conclude that no dis-

pute exists because its previous “acknowledgment of the fact that sov-
ereignty over the three islands was attributed to Colombia under the 1928
Treaty was made for the purposes of ascertaining whether or not the
Court had jurisdiction over the matter under the Pact of Bogotá” (Judg-
ment, para. 138), when its jurisdiction by virtue of the optional declara-

tions is completely distinct, unaffected by the restriction contained in the
Pact of Bogotá, and concerns a disagreement on a point of law, the
Parties differing on the validity of the 1928 Treaty, which constitutes a
“point of law” par excellence.

It is of little signiﬁcance whether Nicaragua’s arguments regarding the
1928 Treaty’s lack of validity, or Colombia’s dismissal of them, are well-
founded. The legal dispute exists nonetheless. Thus as the Court noted in
the case concerning East Timor (Portugal v. Australia) : “Portugal has,
rightly or wrongly, formulated complaints of fact and law against Aus-

tralia which the latter has denied. By virtue of this denial, there is a legal
dispute.” (Judgment, I.C.J. Reports 1995 , p. 100, para. 22.)

In reality, the reasoning of the Court is based on the presupposition
that it has decided on the attribution of sovereignty over the three

islands, when it was only meant to pronounce on its own jurisdiction
under the Pact of Bogotá. It was the Court’s duty, if the optional decla-
rations afforded it a clearer title of jurisdiction to examine the dispute
over the three islands, to give priority to them and so avoid this unprec-
edented situation whereby its response in relation to the ﬁrst title of juris-

diction (the Pact of Bogotá) doomed ipso facto the second title based on
the optional declarations.
The Court has found that it lacks jurisdiction because there is no
extant legal dispute, but the latter cannot simply be wiped out by a stroke
of the pen, since the Parties differed and continue to differ as regards the

validity of the 1928 Treaty. And yet, as Christian Tomuschat recalled in
his commentary on Article 36 of the Statute: “As far as can be seen, no
case has been rejected as not encapsulating a dispute.” (The Statute of the
International Court of Justice: A Commentary , ed. A. Zimmermann et
al., 2006, p. 597.)

I respectfully regard the precedent thus created as regrettable; indi-
rectly, it tends to give substance to a questionable doctrine according to
which there are inherent limitations to judicial settlement because of the
political nature or implications of certain disputes. In his day, Hersch

Lauterpacht explained this doctrine as follows:

104 TERRITORIAL AND MARITIME DISPUTE (DISS.OP .BENNOUNA ) 933

“The doctrine of the inherent limitations of the judicial process
among States is, ﬁrst and foremost, the work of international law-
yers anxious to give legal expression to the State’s claim to be inde-

pendent of the law.” (The Function of Law in the International Com-
munity, 1933, p. 6.)

Determined to maintain its credibility, the Court has, until now, shown
ﬁrmness in this respect, asserting that it “h[ad] never shied away from a
case brought before it merely because it had political implications or

because it involved serious elements of the use of force” (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1984, p. 435, para. 96).
That same concern for credibility has always required the Court to set-

tle the disputes brought before it by the parties and to answer the legal
questions presented by the authorized agencies of the United Nations
system. The Court could not even, according to Judge Higgins, shelter
behind “the current state of international law” in order to refuse to give

a ruling, as that would be nothing less than resorting to “the concept of
non liquet” which “is no part of the Court’s jurisprudence” (Legality of
the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996, dissenting opinion of Judge Higgins, p. 591, para. 36).

In the case before us, the majority has sought to avoid a debate on the
merits about the validity of a treaty allegedly concluded under coercion
through the threat or use of force. By ruling at this stage on such a con-
troversial issue, without possessing all the information on which to base
its decision, the Court is exposing itself to criticism of the way in which it

performs its judicial function.
The complexity of the problems raised in this case cannot conceal the
questions that remain as regards the way in which the principal judicial
organ of the United Nations has dealt with certain principles and meth-

ods of the judicial settlement of international disputes.

(Signed) Mohamed B ENNOUNA .

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OPINION DISSIDENTE DE M. LE JUGE BENNOUNA

Caractère non exclusivement préliminaire (Règlement de la Cour, art. 79,
par. 2) de l’exception soulevée par la Colombie sur la base de l’article VI du
pacte de Bogotá, excluant les questions régies par les accords ou traités en
vigueur — Validité du traité de 1928 entre la Colombie et le Nicaragua —
L’examen de la question de la nullité du traité de 1928, prétendument conclu

sous la contrainte, relève du fond de l’affaire — Exception préliminaire de la
Colombie à la compétence de la Cour sur la base des déclarations facultatives
des Parties (Statut, art. 36, par. 2) — Déclarations facultatives, un titre de
compétence distinct et autonome — Persistance d’un différend entre les Parties
au sujet de la validité du traité de 1928 entre la Colombie et le Nicaragua — En
présence de deux titres de compétence, la Cour choisit celui qui pose le moins de
difﬁculté.

Pour ce qui est de la première exception à la compétence de la Cour
soulevée par la République de Colombie sur la base des articles VI et
XXXI du pacte de Bogotá, je ne peux pas souscrire à la première décision

du dispositif par laquelle la Cour retient cette exception, en ce qu’elle a
trait à la souveraineté sur les îles de San Andrés, Providencia et Santa
Catalina (dispositif, par. 1 a)).
Par ailleurs, je ne peux pas accepter le traitement réservé par la Cour
à la seconde exception préliminaire soulevée par la Colombie, sur la base
des déclarations des Parties reconnaissant la juridiction obligatoire de la

Cour (Statut, art. 36, par. 2). En retenant cette exception, la Cour a de
nouveau décliné sa compétence pour les trois îles.
Je vais me pencher successivement, dans cette opinion, sur ces deux
aspects, explicitant les raisons qui ne m’ont pas permis d’adhérer, à leur
sujet, au dispositif de l’arrêt de la Cour et à ses motifs.
1. A mon avis, la Cour ne pouvait retenir l’exception à sa compétence,

soulevée par la Colombie, concernant la souveraineté sur les îles de San
Andrés, Providencia et Santa Catalina, dans la mesure où cette excep-
tion n’a pas, dans les circonstances de l’espèce, un caractère exclusive-
ment préliminaire, au sens de l’article 79, paragraphe 9, du Règlement
de la Cour. Elle comporte en effet, comme on le verra, «à la fois des as-

pects préliminaires et des aspects de fond» (Activités militaires et para-
militaires au Nicaragua et contre celui-ci (Nicaragua c. Etats-Unis
d’Amérique), fond, arrêt , C.I.J. Recueil 1986, p. 31, par. 41).
Il convient de rappeler que l’article XXXI du pacte de Bogotá, qui
confère compétence à la Cour, a repris textuellement l’article 36, para-
graphe 2, du Statut en l’assortissant d’une disposition restrictive, à l’ar-

ticle VI, selon laquelle:
«Ces procédures ne pourront pas non plus s’appliquer ni aux

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