Volume I Written Statement

INTERNATIONAL COURT 017 JUSTICE
TERRITORIAL AND MARITIME DISPUTE
(NICARAGUA v. COLOMBIA)
WRITTEN STATEMENT OF THE
GOVERNMENT OF NBC1ARAGUA
26 JANUARY 2004
TABLE OF CONTlENTS
INTRODUCTION ................................................................................... 1
CHAPTER I: THE LEGAL STATUS OF THE 1928 TREATY ...... 11
I . INTRODUCTION .................... ..................................................... 11
11 . INVALIDITY OF THE 1928 TREATY .................................................... 12
A . THE 1928 TREATY WASCONCLUDED INMQMFEST VIOLATIONOF THE
NICARAGUAN COPV'STITUTION .............................................................. I2
B . THE N~CA RAGLM N GOVERNMENT DID hrO7 HA VE THE INTERNA TIQNA L
CAPA~~ . TO BE BOUND BY TREA TIET ................................................ 15
111 . THE CONTENT AND JURIDICAL ANALYSIS (IF THE 1928 TREATY .... 22
A . THE E.VENT OF THE A RCI-JIPELA GO OF SA.V ANDRE ...................... 22
R . REFERENCE TO THE^^" MERIDIAN IN THE PROTOCOL OF
R4 TIFICA TION OF THE 1 928 TREA TY .................................................. 32
1 . The understanding in 1 930 .................................................... 33
2 . From 1930 to 1969 ................................ ... ................................ 39
3 . First round of negotiations 1977 .............................................. 40
4 . Second round of negotiations 1995 ......................... .... 41
5 . Third round of "negotiations" 200 1 ......................................... 46
TV . BREACH OF TREATY ...................... ...................................... 48
CHAPTER TI: PRELIMWARY OBJECTIONS RELATED TO
THE PACT OF BOGOTA .................................................................... 51
CHAPTER 111: PRELIMINARY OBJECTIONS RELATED TO
THE OPTIONAL CLAUSE ................................................................. 85
I . FIRST PRELIMINARY OBJECTION: COLOMBIA CONTENDS THAT BY
REASON OF THE DISPUTE BETWEEN NICARAGIJA AND COLOMBIA
HAVING BEEN SETTLED AND ENDED. THERE IS NO DISPUTE BEFORE THE
COURT TO WHICH lURISDICTlON UNDER THE OPTIONAL CLAUSE
DECLARATIONS COULD ATTACH ................................,.................... 85
11. SECOND PRELIMINARY OEJE~ION: THERE IS NO JURISDICTION
UNDER THE OPTIONAL CLAUSE BECAUSE COLOMBIA'S DECLARATION
WAS NOT IN FORCE ON THE DATE OF THE FILING OF NICARAGUA'S
APPLICATION ........................... .. ................................................... 86
111. TH~RD PRELIMINARY OBJECTION: IF FOUND TO BE IN FORCE, THE
TERMS OF COLOMBIA'S 1 937 DECLARATION EXCLUDE NICARAGUA'S
CLAIMS, BECAUSE THE ALLEGED DISPUTE ARISES OUT OF FACTS PRIOR TO
6 JANUARY 1932 ................................................................................ 105
A. THE SUBJECT MATTER OF THE DISPUTE ..................... ............ 1 06
B, THE RELEVANT RUL ES APPLICABLE TO THE JURISD~CTION OF THE
COURT 3 RA TIONE TEMPORIS.. ........................................................ 1 12
IV. FOURTH PRELIMINARY OBJECTION: COLOMBIA'S ACCEPTANCE BY
CONDUCT OF AN OBLIGATION TO GIVE REASONABLE NOTICE OF
TERMINATION ......................, ............ .... ........................................... 126
A. THE PUBLIC STA TEMENTS R Y PRFSJDENTALEM'N LACA YO IN 2001
............................., ....................................................................... 127
B. NEGOTIA TILINS A T FOREIGN MINSTER LEVEL IN 2001.. ................ 128
CHAPTER IV: THE EXISTENCE OF A DISPUTE IN THE
CONTEXT OF BOTH THE PACT OF BOGOTA AND THE
OPTIONAL CLAUSE JURISDICTION ........................... ....,...... 133
SUBMISSIONS ......................... ................................................... 141
LIST OF ANNEXES ............................... ......... ................................ 143
WRITTEN STATEMENT OF THE
GOVERNMENT OF NICARAGUA
INTRODUCTION
1. The case concerning the Terriforilrl and Maritime Dispute (Nicnrulgua v.
Colombia) was brought before the Court by means of an Application
filed by The Republic of Nicaragua against the Republic of Colombia on
6 December 2001. The Order of the Court of 26 February 2002 fixed 28
April 2003 for the filing of the Nicaraguan Memorial and 28 June 2004
for the filing of the Colombian Counter-Memoriul. Nicaragua filed her
Memorid within the time limit fixed by the Court. Colombia for her part
on 21 July 2003 fiIed not only preliminary objections to the jurisdiction
of the Court but also a request that the Coua adjudge and declare the
controversy ended.
2. The Order of the Court of 24 September 2003 fixed 26 January 2004 as
the time Iimit within which the Republic of Nicaragua may present a
written statement of her observations and submissions on the preliminary
objections made by the Republic of Colombia. This Written Statement is
filed pursuant to this Order.
3. The case filed by the Republic of Nicaragulk against the Republic of
Colombia concerns a dispute over title trl territory and maritime
delimitation in the Caribbean Sea. On 24 March 1928 Nicaragua signed a
treaty with Colombia concerning Territorial Questions at Issue between
the Parties. These questions involved inter alia sovereignty over the
Archiwlago of San Andrks that was claimed by both Parties. The
Nicaraguan Congress ratified this Treaty on 6 March 1930. The position
of Nicaragua is that this Treaty was invalid ab initio because it openly
violated the Constitution in force at that time that prohibited any
disposition of Nicaraguan Territory and also that this signature and
ratification were concluded whilst Nicaragua was under the occupation of
the United States of America and her Government was deprived of its
international capacity and could not freely consent to be bound by
treaties. Furthermore, that the occupying State had a special national
interest in the conclusion of the f re at^.'
4. In the event that this Treaty was found to have been validly concluded
then the position of Nicaragua is that the unilateral interpretation
Colombia made of it in 1969 constituted a violation and a breach of the
Treaty that entitled Nicaragua to invoke the breach as a ground for
termination. These issues are dealt with in paragraphs 1.85 to 1.92 below,
and in the Nicaraguan Memorial in paragraphs 2.254 to 2.263, Section
ZV, Chapter II. In short, when the Nicaraguan Congress ratified the
Treaty in 1930, two years after its signature, and more than a year after
the Colombian Congress had ratified the Treaty, it added that it was
ratifying it in the understanding that the Archipelago of San Andrks did
not extend west of the Meridian 82" W. The reason that the Nicaraguan
Congress had for adding this understanding was that it was afraid that if
this issue was not clarified, Colombia might contend in the future that the
Archipelago comprehended all islands and cays off the Nicaraguan
Atlantic Coast. This Meridian lies between 70 and 100 miles fiom the
Nicaraguan coast and around 20 miles from San Andres. It is plainly
untenable that in 1930 this understanding could possibly have been made
with the intention of fixing limits in what at the time were considered to
be the high seas over which no nation had sovereignty or other exclusive
rights. The unilateral interpretation that this Meridian constitutes a
maritime boundary made by Colombia in 1969, nearly 40 years after the
ratification of the 1928 Treaty, is an open breach of a Treaty that in its
I See below para. 1 .15.
own words aimed to resolve the "territorial conflict pending between" the
parties.
5. The further contention of Nicaragua is that in the event that the Treaty is
considered still in force -in spite of its original invalidity or its
subsequent breach- then the unilateral interpretation made by Colombia
of the "understanding" added by the Nicaraguan Congress when ratifying
it, did not involve the fixing of maritime limits but was merely an
aliment effecting the allocation of islands.
6. At issue is also the determination of the extent of the Archipelago of San
AndrCs. According to the interpretation made by Colombia the
Archipelago of 17 square miles2 extends for hundreds of miles from the
Island of San Andrks. Nicaragua conlends that the Archipelago as defined
in Article 1 of the 1928 Treaty does not include cays and reefs that were
expressly excluded from the Treaty or to cays and reefs that could not
have been considered as geographically forming part of the Archipelago
in 1 92g3.
7. Colombia has tried to portray the position of Yicaragua as a new claim
stemming from the Government in power in Nicaragua during the 1980s.
This is not true. Colombia claimed for the first time in June 1969 that the
line of allocation of islands that was understood to be part of the 1928
Treaty at the moment of ratification was really a line of delimitation of
maritime areas. This was contradicted by Nicaragua just a few days
later4. The issue of the sovereignty over the citys that are not considered
part of the San Andr6 Archipelago flared up when the negotiations of
According to Encyclop~dia Britunnica 2001, Standard Ed. CD-ROM, 1 994-
2000, Publisher Britannica.com Inc.
See below paras. 1.26, 1.31, 1.33, 1.35, 1.41, 1.43, 1.44 and 1.45.
See below para. 1.64 and 2.38.
Colombia and the United States of America over the claim of sovereignty
over the cays began in June 19715. The issue of the invalidity of the
Treaty also stems from before 1980. On 8 September 1972 Colombia and
the United States entered into a Treaty regarding the Quitasueiio bank
and the small cays emerging from the banks of Roncador and Serrana, On
8 October 1972 the Foreign Minister of Nicaragua, Mr. Lorenzo
Guerrero, sent two protest notes to the signatories of that Treaty. The
texts of both letters have the following paragraph:
"Without, for the moment, going into the validisy of the
Bdrcenas Meneses- Esgeserra Treaty, its historical and legal
background, nor the circumstances surrounding its
conclusiaiz, Nicaragua reiterates that the banks located in
that zone are part of her continental shelf, and because of
this it is willing to use all peaceful procedures
contemplated by International Law to safeguard its
legitimate right^."^ (Emphasis added)
8. The jurisdiction of the Court is founded on Article 36, paragraphs 1 and 2
of the Statute. In accordance with the provisions of Article 36 paragraph
1 of the Statute, the Court has jurisdiction based on Article XXXT of the
American Treaty on Pacific Settlement pact of Bogota) adopted in
Bogota, Colombia on 30 April 1948 and to which Nicaragua and
Colombia are parties. The jurisdiction of the Court is also founded on the
Declarations made by both. Parties accepting the compulsory jurisdiction
on the basis of Article 36 paragraph 2 of the Statute of the Court.
%M, Vol. I, paras. 2.158,2.159and2.165.
NM, Vol. 11, Annexes 34 and 35,
9. ThejuncturethatdecidedtheGovernmentofNicaraguatobringthiscase
before the Court was the ratification by Honduras on 30 November 1999
of the 2 August 1986 Treaty of delimitation with colombia7. The
Nicaraguan Government then publicly announced at the highest level that
it would bring a case against Colombia. The only reason why it was not
done immediately was because it was a heavy burden for Nicaragua in
human and economic resources to have two cases going simultaneously
in the Court at the same pace. The case against Colombia was originally
planned to be brought to the Court at the beginning of the year 2001 after
Nicaragua had filed her Memtlriul against Honduras in the case
concerning Maritime Delimitation hemeen Rricaraguu and I-londuras in
the Curih bean Sea (Mcaragua v. Honduras).
10. The case was not brought before the Court as planned at the beginning of
the year 2001 because the Colombian Foreign Minister requested his
Nicaraguan counterpart not to bring the case immediately but to tirst give
an opportunity for negotiations. What the Nicaraguan Foreign Minister
did not know was that the real object or the request was for the
Colombian Authorities to gain time to go through the necessary internal
legal process for withdrawing the acceptance of the jurisdiction of the
Court made in her Declaration of 30 October 1937 in accordance with
Article 36, paragraph 2, of the Statute of the C:ourt. ' In effect, less than
24 hours before Nicaragua filed her Application on 6 December 2001,
Colombia attempted to withdraw her 1 937 Ileclaration. In fact, when
Nicaragua filed her Application she was not aware that the Secretary
General of the United Nations had receivecl a letter from Colombia
notifying the intention of withdrawing the Declaration. Due to the time
7 AppJication ofhricmapa, para. 7.
8 The reasons for the delay are given in the Aflridavit of the Foreign Minister of
Nicaragua during the year 200 1. See NWS, Vol. 11, Annex 22.
difference between The Hague and New York it is even probable that as
the Registrar was receiving the Application, the Secretary General was
only just circulating notice of this action by Colombia.
1 1. The other basis of jurisdiction invoked by Nicaragua is Article XXXI of
the Pact of Bogotti In a sui generis interpretation of the Pact, Colombia,
allegedly in application of article 79 of the Rules, requests the Court to
adjudge and declare that pursuant to Articles VI and XXXIV, the Court
does not have jurisdiction to hear the controversy and, furthermore,
declare the controversy ended. Nothing in the Pact of Bogotii indicates
that this declaration, if it is found by the Court to be applicable, should be
made in the phase of a judgment on preliminary objections. Precisely in
application of article 79 of its Rules the Court cannot declare a
controversy ended in the preliminary objections phase of this case. The
only way the Court's Rules allow it to declare a controversy ended is by
going into the merits of the case. Colombia is well aware of this and that
is why, in spite of the express mandate of Article 79, paragraph 7, of the
Rules of Court to the effect that the pleading shall be confined to those
matters that are relevant to the objection, the Colombian Pleading goes
extensively into the merits. A simple browse through the pleading
introduced by Colombia as preliminary objections will show that
considerably more than half of the substance of those pleadings is
devoted to arguments on tlre merits of the present case.
12. Colombia's akkempt to escape the jurisdiction of the Court must be seen
against the background of the permanent threats of the use of force to
maintain her alleged rights to the San Andr6s archipelago, the cays in
dispute and the continental shelf and the waters east of the 82" W
Meridian. Apart from the threatening reality of the permanent patrol of
the Colombian Navy over the area in dispute, de facto barring the use by
Nicaragua and her people of these resources, Colombia at the highest
level threatened Nicaragua with the use of force. On 24 April 2003, that
is just a few days before Nicmgua filed her Memorial against Colombia,
her President, Mr. ~lvaro Uribe stated in an interview that if Nicaragua
started oil explorations "we would proceed to stop it with the Navy, of
course we w~uld."~
13. The following day Vice Admiral David Rent hioreno, Inspector General
of the Colombian Navy, stated:
"(T)here is a security mechanism in the area of San Andrts
and Providencia that permits the count~y to bar the illegal
use of our jurisdictional maritime waters
6-.)
The officer added that the Specific Command of San
Andrks and Providencia, naval units, navy infantry troops
and a component of the Air Force guarrmtee the security of
San Andrks.
El Tiempo stated that the Navy patrols San Andrb with a
reconnaissance plane, several patrol borlts, two frigates and
about 600 troops from the Marine Corps.
The Navy plans the construction of a coast guard station
and a radar for San Andr6s in order to increase the scale of
the operations.""
9 NWS, Vol. 11, Annex 8.
10 NWS, Vol. 11, Annex 9.
14. The Colombian Minister of Defence, Ms. Marta Lucia Ramirez, during a
visit to the San Andris Archipelago a few months later in the company of
Colombian President Uribe, reiterated the Government's intention of
building a coast guard station:
"This objective is a priority of the Ministry of Defence for
the coming year. It is a plan in which we expect to work
together with the Authorities of San And& and the local
leaders because the coast guard station has an strategic
importance for exerting maritime sovereignty.""
These examples are only some of the more recent cases of military
threats by Colombia. But these menaces have been a constant since the
dispute erupted in 1969. The details of this initial phase of the dispute are
described in the Nicaraguan ~ernorial'~. In brief, Nicaragua granted a
concession for oil exploration to Western Caribbean Petroleum Co. on 17
February 1967 that extended to maritime areas east of the 82" Meridian
W. Colombia protested this concession in a diplomatic note dated 4 June
1969. The diplomatic note was fallowed by the announcement of military
manoeuvres in the area in dispute;
"...the National Navy has ordered that two
destroyers.. .should permanently patrol the maritime area in
dispute in order to enforce respect for the sovereignty over
the cays.. .
7-13
16. In order to understand fully the implications of this announcement, the
military situation must be understood. The Nicaraguan National Army
I I NWS, Vol. 11, Annex 10.
l2 NM, Vol. I, paras. 2.204,2.205 and 2.212.
'3 N WS, Vol. 11, Annex 1 1.
8
(Guardia N'acional) did not have in 1969, any patrol boats that could go
beyond the islands and cays located near to the mainland coast. The
presence of two Colombian destroyers, added to the usual patrol boats
displayed in the area, was a formidable threat for Nicaragua.
17. The conduct of Colombia speaks for itself. On the one hand Colombia is
attempting to avoid the jurisdiction of the Coul't alleging, inter alia, that
the controversy has been already settled by mangement between the
Parties when it obviously has not. On the other hand Colombia has been
using force and the threat of the use of force in order to impose her
unilateral interpretation of a Treaty she claims to be in force.
18. The allegation of Colombia hat the dispute hiis already been settled by
arrangement between the Parties is belied by her conduct. In 1977 the
then President of Colombia, Mr. Alfonso Lbpez Michelsen, announced
publicly that negotiations would be started with Nicaragua in order to
reach a maritime delimitation in the Caribbean. This announcement was
followed by several visits of Colombian Ambassador Julio l,ondofio to
Managua to discuss the issues with the Foreign Minister of ~icara~ua".
Nearly 20 years later, in September 1995, the then President of
Colombia, Mr. Ernesto Samper Pizano, and his Foreign Minister, Mr.
Rodrigo Pardo Garcia-PeRa, announced that negotiations would begin
with Nicaragua on maritime delimitation and other pending issues.'5
19. Finally, there were offers of diplomatic negotiations by the Colombian
Authorities in 2001. Of course, as pointed out in paragraph 10 above, this
offer turned out to be simply a manoeuvre for gaining the necessary time
l4 See below, para. 1 -67.
l5 See below, para. 1 -70.
for attempting to withdraw her acceptance of the Court" jurisdiction on
the basis of her optional clause dedarationI6.
20. This Written Statement deals with the Colombian PP-eliminary Objections
in the following manner:
Chapter I summarizes Nicaragua's position on the legal status of the 1928
Treaty.
Chapter I1 deals with the Prelimi~zary Objections related to the Pact of
Bogot&
Chapter III deals with the Preliminary Objectiom related to the Optional
Clause Declarations.
Chapter TV deals with the existence of a dispute in the context of both the
Pact of Bogoti and the Optional Clause jurisdiction.
16 See below, paras. 1.82- 1.84.
10
CHAPTER I
THE LEGAL STATUS OF THF, 1928 TREATY
I. Introduction
1.1 Chapter II of the Nicaraguan Memorial deals at length with the legal
status of the Bkrcenas-Esguerra Treaty of 1928. Nicaragua will not
reiterate the statements of facts and other arguments on the merits that are
dealt with throughout the more than 120 pages of that Chapter. But as
pointed out in the Introduction, more than half the Colombian
Preliminary Objections are really arguments on the facts and merits of
the case. This makes it necessary to put the record straight even if it
involves going into facts and arguments that should properly be left to the
merits.
Section I of Chapter JI of the Nicaraguan Memorial explains in detail the
historical background and contemporaneous events that led to the
signature and ratification of the 1928 Treaty. The contents of this Section
will not be reiterated in this Statement except by cross-reference.
Therefore the present Chapter will involve the following issues on the
merits that are raised by Colombia in her Prdiminaiy Objections: (i) The
reasons for the invalidity of the 1928 Treaty; (ii) The content and
juridical analysis of the Treaty; and, (iii) The reasons why the Treaty, in
the eventuality -which Nicaragua does not accept- that it is considered to
have entered into force, has been terminatecl as a consequence of its
breach by Colombia.
II. Invalidity of the 1928 Treaty
1.3 In the Submissions of the Nicaraguan Memorial, the Court is requested to
adjudge and declare that,
"(4) the Barcenas-Esguerra Treaty siped in Managua on
24 March 1928 was not legally valid and, in particular, did
not provide a legal basis for Colombian claims to San
Andrds and Providencia."
1.4 The legal basis for the Nicaraguan request is twofold. Firstly, with full
Colombian knowledge of the fact, the Treaty was concluded in open
violation of the Nicaraguan Constitution of 191 1 that was in force in
1928. Secondly, the Nicaraguan Government at the time the Treaty was
concluded, did not have the international capacity to freely express its
consent to be bound by treaties.
A. THE 1928 TREATY WAS CONCLUDED IN MANIFEST VIOLATION OF THE
NICARAGUAN CONSTITUTION
1.5 The question whether the conclusion of the 1928 Treaty was in manifest
violation of the Nicaraguan Constitution is dealt with in paragraphs 2.103
to 2.12 1 of the Nicaraguan Memorial. Colombia deals with this question
in paragraphs 1 .lOS to 1.1 11 of her Preliminary Objections.
1.6 The arguments of Colombia against this Nicaraguan claim are that:
(i) Yhe alleged violation of the Nicaraguan Constitution was not
only not ((sic) manifest to Colombia or any third State-'';
(ii] "the Constitution then in force (did not) specify that the San
Andrts Archipelago was part of the territory of Nicaragua; in
point of fact, no Constitution of Nicaragua has ever so
provided." (CPO, Vol. I, para. 1.1 10:)
The Nicaraguan Constitution in force in 1928 was the Constitution of
191 1. The meaning of the Nicaraguan Constitutional provisions relevant
to this case were put before the Central American Court of Justice in a
case brought by EI Salvador. El Salvador alleged that the ChamorroBryan
Treaty concluded by Nicaragua with the United States in 1914,
whereby Nicaragua leased part of her territory to the United States,
violated the Nicaraguan Constitution. The Court on 9 January 1917
concluded that entering into the Treaty indeed violated the Nicaraguan
Constitution that "required the maintenance of territorial integrity."I7
1.8 This decision was we11 known locally md even internationally. It was
published, for example in its entirety in the American Journal of
International ~aw]'. It involved a Treaty to which the United States was
a party and not just a question of a minor local dispute. Thus Colombia
was very well informed of these Constitutional provisions, as were third
States like the United States, which was really the Colombian counterpart
in the negotiations and conclusion of the 1928 'haty''.
1.9 The question why the Nicaraguan Constitution in force in 1928 did not
specify that San Andrks was part of the Nicaraguan territory is not
surprising or meaningful. No Constitution of Nicaragua has ever
expressly referred by name to any of the islands appertaining to her
17 NM, Vol. 1, para. 2.1 10.
18 The Anlei-icun Jotma1 of ~n~ernationa/ Law. Val . 11. 1 91 7, p. 650 at pp. 674-
73 0.
l9 NM, Vol . I, Sec. I, Cliap. 11.
territory. The Nicaraguan Constitutions, including that of 1 9 1 1,
traditionally referred in general to the "adjacenty'. There is no specific
mention of San Anws as there is no specific mention of any other island
claimed by Nicaragua such as the Corn Tslands (Islus del Maiz) or the
Miskita Cays.
1.10 But the point is of no relevance. Colombia was perfectly aware of the
Nicaraguan claim to San Andris. She cannot even avoid recognizing the
fact in her Preliminary Objections. Just by reading paragraphs 1 1 to 13 of
the Introduction to Colombian Preliminav Objections it becomes clear
that Colombia was aware that Nicaragua considered San AnMs to be
part of her territory and that this claim arose from her claim to
sovereignty over the Atlantic Coast based on the uti pussidetis iuris of
1821.
1 .I 1 Colombia misleadingly states, "In 1913 Nicaragua for the first time
advanced claims to certain islands of the Archipelago of San Ar~dds."~'
Presumably this statement is an attempt to set the foundations for later
arguing that the 191 1 Constitution preceded the claim of Nicaragua to
San And& and that was then the reason why these islands were not
specifically mentioned in the Constitution.
1.12 One example giving the lie to this statement is the Arbitral Award of
French President Loubet of 1900. The Award concerned territorial claims
by Colombia and Costa Rica. Colombia had included San hdks among
her claims against Costa Rica. Costa Kca had no claims to San AnWs
and did not contest the issue and President Loubet decided for Colombia.
Nicaragua was not a Party to the Arbitration and protested the decision
declaring San Andrks to be under Colombian sovereignty. The French
20 CPO, Vol. I, Introduction, para. 13.
14
Minister of Foreign Affairs, ThCophile Delcasse, on 22 October 1900,
acknowledged the rightness of the protest and confirmed "the rights of
Nicaragua over these islands stand unaltered and intact as heret~fore".~'
1.13 As stated in paragraph 1.10 above, the claims of Nicaragua over the
Archipelago are based on the uti possideiis iuris of 1821 and naturally
date from that time. This question will of corn be addressed when the
merits of this case are before the Court. At this point the example of the
Loerbei affair is given as simple and incontrovertible proof of the specious
nature of the Colombian statements.
1.14 In sum, the Treaty, plainly and manifestly surd to the knowledge of
Colombia, violated the Nicaraguan Constitution.
B. THE NICARAGUAN GOVERNMENT DID NOT HAVE TIIE INTERNATICINAI,
CAPACI'I'Y TO BE BOI.IND BY TI~EATIES
1 .I5 The position of Nicaragua on the question of the invalidity of the 1928
Treaty is that at the time of its conclusion, Nicaragua did not have the
legal capacity to freely express her consent to be bound by that Treaty.
The incapacity of the Nicaraguan Government 10 act freely is
documented in great detail in Nicaragua's Memorial in Section I of
Chapter I1 and will not be repeated in this Statement. Suffice it to quote
paragraph 2.1 32 of the Nicaraguan Memorial:
"(T)he situation of Nicaragua at the time of the signing and
ratification of the Barcenas-Esguerra 'Treaty was that her
- -
'' NM, Vol. 1, para. 1.108 at p. 53, fn. 89.
territory was under the military occupation and the de facto
financial and political control of the United States. The
following facts, for example, are irrefutable and based
directly on documents made public by the State Department
of the United States and detailed above in Section I,
paragraphs 2.4 1 -2 -8 1 :
- there were more than 5000 United States marines
occupying Nicaragua at the time the Treaty was concluded;
- the chief of the National Guard of Nicaragua was a
United States General and the officers were United States
marines;
- the elections were run under the absolute control
of the United States marines. The President of Nicaragua
was forced to bypass Congress and dictate an
unconstitutional Executive Decree giving absolute powers
over the elections to the United States marines. This
unconstitutional Decree was dictated on 21 March 1928
three days before the conclusion sf the also
unconstitutional Bhcenas-Esguerra Treaty of 24 March
1928;
- customs revenues were collected by an oMicer
appointed by the State Department;
- finances were controlled by persons designated de
fucto by United States General McCoy; and
- the only Bank and the only railroad in Nicaragua
were under the control of persons appointed with the
approval of the State Department." (Footnotes omitted)
1.16 The Colombian Preliminary Objections simply dismiss the historical
record with political invective:
"On 19 July 1979, the Sandinista Movement came to power
in Nicaragua. Thereafter, a process to increase Nicaragua's
military power and armaments -unprecedented in Central
American history- began and ... Some seven months later,
Nicaragua purported to question the territorial and maritime
settlement reached half a century earlier with the EsguerraBArcenas
Treaty of 1928 and its Protocol of Exchange of
Ratifications of 1 930."'~
1.1 7 This portrayal is carried over to Nicaragua's Memorial,
"In its Memorial, Nicaragua adopts and expands upon the
'patriotic and revolutionary' analysis in its White Paper' of
1980.'"~
1.18 In sum, the Colombian arguments are ad homir~em, attempting to portray
the whole issue of the invalidity of the Treaty as a matter of
"revolutionary" zeal: "The alleged nullity c~f the 1928 Treaty was;
discovered by the Revolutionary Junta in 1 980.. .
3524
1.19 In relation to the Colombian portrayal of the Nicaraguan Government in
1980, Nicaragua merely points out that Colombia might get a better focus
upon the situation by considering the 1986 Jutlgment of the Court in the
case concerning Miditag and Paramilitary activities in and against
Nicaragua (Nicaragua v. United States of Ame~icu). This might also give
'' CPO, Vol. I, para. 1.93.
23 CPO, VOI. I, para. 1.99.
24 CPO, VoI. I, para. 1 .105.
her an insight into what was happening in Nicaragua in 1928 to 1930
when she was occupied by the United States.
With respect to the subject of the conduct of the Parties it is necessary to
set the record straight and point out how different the conduct of
Nicaragua and Colombia has been. Although Nicaragua is not a party to
the Vienna Convention of 1969, she has respected the norms of that
Convention that reflect customary law. Specifically Nicaragua was
careful where applicable to follow the procedure set forth in articles 65
and 67 of the Vienna Convention on the Law of Treaties. Thus, when the
Nicaraguan Government declared the invalidity of the Bircenas-Esguerra
Treaty, the statement was read before all the diplomatic corps accredited
in the country including the Ambassador of Colombia The Statement
also explained the reasons on which the declaration was based and the
measures that it planned to take. These measures were spelled out in the
announcement of the declaration of invalidity of the Treaty. The
announcement of the Nicaraguan Government stated:
"It is our firm desire and purpose to solve this problem,
which unfortunately seems to place at odds two brother
peoples, in a bilateral manner and within the strictest norms
of respect and friendship recognized by International Law,
without implying in any way that Nicaragua gives an
validity to the Bacenas Meneses-Esguerra Treaty, but
instead simply that we are defenders to the utmost of the
unity and harmony of Latin America, the regional
community of which our two nations fom a part.''5
25 Nicaragua's White Paper on the case of San Andks and Providencia. Libro
Blanco sobre el caso de Sun Andrds y Pruvidenciu, Ministerio de Relaciones
It is true that Nicaragua unilaterally declared that the Treaty was null and
void but, aside from the declaration itself, Nicaragua has not taken a
single unilateral step that affects the situation. 'fiat is to say, Nicaragua
has not attempted, following her declaration, to take over San Andks or
dictate the policy of those islands. It was perfecfly clear to Nicaragua that
the only way to achieve this goal was through the mechanisms provided
by international law. If Nicaragua did not do this in the 1980s, following
the declaration of invalidity, it was clearly because of the difficult
situation the country was going through at the time. It was very dificult
for the Nicaraguan Government in that period to consider recourse to
judicial or arbitral solutions, when it had its hands full on all fronts,
including several cases pending before the Court. It was not until the
nineties, and specifically after having concluded the last matter
Nicaragua had before the Court which ended with the Judgment in 1992
in the case concerning Land, Island and Mariiime Frontier Dispute (El
SaEvador/Honduras: Nicaragua intervening), that Nicaragua for the first
time was able to seriously think about confrorlting this case. In fact, in
1995 Nicaragua and Colombia began negotiaticrns that were fmstrated by
internal apposition in ~olombia.~~
1.22 The conduct of Colombia has been very different from that of Nicaragua.
First, shc self-servingly interpreted the 1928 Treaty -in effect, inventing a
non-existent border that severs more than half of Nicaragua's maritime
spaces along her entire Caribbean coast. Secondly, this interpretation,
which had radical and serious consequences that violently affected the
situation, was not submitted to bilateral dialogue or resolution by a third
party, but instead Colombia imposed respect for this self serving
. - - - - - - -- - - -
Exteriores de la Repiblica de Nicaragua, Managua. 4 Feb. 1980, p. 4. NM, Vol.
I I Annex 73.
" See below paras. 1 .70- 1.79.
interpretation by the use of force and by the threat of the use of force. In
fact, the Prelirnimry Objections themselves are a continuation of this
policy of refusing to solve the dispute in conformity with international
law. There was nothing to prevent Colombia from submitting her
"interpretation" of the Treaty to a third body before imposing it by force.
Nicaragua, quite to the contrary, has not tried to impose her will through
de facto actions but rather has resorted to peaceful means of
1.23 Again, Nicaragua whishes to make clear that these questions are briefly
dealt with in this Section since Colombia devotes more than 90 pages out
of the 145 pages of text of her Preliminary Objections to discussing
them; however, Nicaragua reiterates that they belong to the very
substance of the case, not to the present preliminary stage.
1.24 The other aspect of the Colombian characterization of the Nicaraguan
Declaration of Invalidity of the 2928 Treaty is that it was simply a
revolutionary matter that exploded ex nihilo by spontaneous combustion
in 1980. This is simply not true. The Introduction to this Written
Statement quotes a Diplomatic Note sent by the Nicaraguan Foreign
Minister in 1972 to both Colombia and the United States in which he
expresses Nicaragua's position that there is a question pending with
respect to the '*validity of the Bkcenas Meneses-Esguerra Treaty, its
historical and legal background, nor the circumstances surrounding its
conclusion". Later, when there was a discussion in Nicaragua abut the
Colombian offer of negotiations:* Dr. Alejandm Montiel Argfiello, the
then Foreign Minister of Nicaragua, reiterated in a press interview on 30
27 The question of the conduct of the Parties can be seen below in paras, 1.46-
1.84 and 3.91-3.104.
28 See below para. 1.67.
January 1977, that the question of the validity o F the 1928 Treaty was not
a closed subject.
"With regards to the Bkcenas Meneses-Esguerra Treaty, this
Chancellery submitted it for study, both from the historical point
of view, as well as the judicial and geographical aspects. I cannot
say in advance what the results of that study will be, as my
opinion is that on international affairs that affect the nation's
sovereignty, no anticipated conclusions should be formulated
because in many cases lead to a lost litigations. AH Nicaraguans
who have knowledge of the subject, can collaborate with this
study, or provide data and wgumenls. Besides, as you will
understand, Mr. Journalist, any opinion that I may give as
Chancellor, will compromise Nicaragua's position; yet, a private
individual can express any opinion without causing any
The Nicaraguan Government in 1980 only drew the logical conclusions
from the traditionally existing position on this issue. The three
Nicaraguan Governments that have followed the Governments of the
1980s have maintained this position. It has heen a consistent national
policy.
Montiel Argiiello, Alejandro. Didogos con el Camciller. Ministerio de
Relaciones Exteriores. lmprenta National. Managua, pp. 14- 16. NWS, Vol. 11,
Annex 2.
111. The Content and Juridical Analysis of The 1928 Treaty
This Section is devoted to two central questions that are at issue between
Nicaragua and Colombia. The first question refers to the extent of the
Archipelago of San And& that was recognized as under Colombian
sovereignty in the 1928 Treaty. Colombia contends that this Archipelago,
with an area of 17 square miles3', extends over hundreds of miles in the
Caribbean Sea and that it generates thousands of square miles of
maritime areas to the benefit of Colombia and the detriment of
Nicaragua. This is dealt with in Subsection A below. The second issue is
the Colombian interpretation, made for the first time in 2969, that the
language used in the Protocol of Exchange of Ratifications of the 1928
Treaty, implied a radical change in the nature of this instrument that was
converted from a treaty concerning sovereignty over territory, into a
treaty of delimitation in the high seas; a maritime delimitation covering a
distance of more than 250 nautical miles. This is dealt with in Subsection
B, below.
A. mE EXTENT OF THE ARCHIPELAGO OF SAN ANDES
1.26 The Memorial of Nicaragua maintains that the Archipelago of San
Andrks only includes the islands of Sm Andrks and Providencia and
adjacent islets and cays, but does not include, among others, the features
of Sermna, Roncador, Quitasuefio, Serranilla and Bajo ~uevo?' The
Memorial concludes that the features of Roncndor, Serrana and
30 See above fn. 2.
3' NM, Vol. I, paras. 2.139 ff.
Quitasueiio, which were "explicitly excluded from the BBrcenas-Esguerra
Treaty are not legally or geographically part of the Archipelago of San
Andres and ~rovidencia'?~ The Memorial further observes that,
"The Barcenas-Esguerra Treaty did not mention Serranilla
or Bajo Nuetro, since at that time Colombia was not
claiming these features. The fact that these features are not
mentioned in the treaty, and that they are located
respectively 165 and 205 nautical miles from the nearest
island of the Archipelago of San Anclrks, the Island of
Providencia, is proof that they are nor. geographically or
legally part of the 'Archipelago of Sm AndrCs'. They
appertain to Nicaragua since tl~ey are located on her
continental shelf and, as a result of the application of the wfi
possidetis iuris, they also appertain to Nicaragua given
their greater proximity to her mainland" 33
1.27 On the other hand, in the Preliminary Objeclions Colombia maintains
that the Archipelago of San Andks includes the features of Serrana,
Roncador, QuitasueAo, Serranilla and Bajo ~uevo.~~ Colombia asserts
that her position is supported by geographical, historical and legal
arguments.'5 As will be shown in the following paragraphs none of these
arguments is convincing or supported by any tangible evidence.
WM, Val. I, para. 2.187. " NM, Vol. I, para. 2.188 (footnote omitted). " See, for instance, CPO, Vol. 1, paras. I.72,2.26 and 2.27.
35 CPO, Vol. 1, paras. 2.26 and 2.28.
1.28 As far as geographical and historical arguments are concerned, the
Preliminary Objections observe that:
"Geographically and historically the Archipelago of San
Andres was understood as comprising the string of islands,
cays, islets and banks stretching from Albuquerque in the
south to Ser~anilla and Bajo Nuevo in the north -including
the Islas Mangles (Corn Islands)- and the appurtenant
maritime areas. It is apparent from a glance at Map No. 3
that those features constitute a single island chain which
forms the
1.29 Colombia does not adduce any evidence that historically the Archipelago
was understood in this sense. On the other hand, Nicaragua in the
Memorial presents proof that the Archipelago historically was considered
ta consist only of the islands of San Andks, Providencia, Smta Catalina
and the Corn Islands, surrounded by several islets and cays of the same
typc3'
1.30 The Colombian assertion that the Archipelago of Sm Andrks as defined
by Colombia is a string of islands, islets and banks or constitutes a single
island chain stretches the ordinary meaning of the terms 'string' and
'single chain'. As can be appreciated from Map No. 3 to which Colombia
refers, the features of Serrana, Roncador, Quitasueiio, Semnilla and Bajo
Nuevo are scattered far and wide apart over a large area of the Western
Caribbean. For instance, the bank of Serrana lies 80 nautical miles from
Providencia, the closest island of the Archipelago, and Low Cay on the
36 CPO, Vol. I, para. 2.26. The reference to Map No. 3 concerns Map No. 3
contained in CPO, Vol. 111.
37 NM, Vol. I, para. 2,141.
bank of Bajo Nuevo lies 205 nautical miles from that same island.3p As it
was already pointed out in the Nicaraguan Memorial, all of these features
are situated on top of isolated banks?9 This is further proof that
geographicalIy and geomorphologically, these features are separate and
do not form a single unit.
1.3 1 Practice contemporary to the conclusion of the 1928 Treaty shows that
these features also did not constitute a single archipelago in legal terms.
The definition of the term 'archipelago' was the subject of some debate at
The Hague Codification Conference of the League of Nations of 1930.
The report af the Second Sub-Committee noted in this respect:
"With regard to a group of islands (archipelago) and islands
situated along the coast, the majority of the Sub-committee
was of [sic] opinion that a distance of ten miles should be
adopted as a basis for measuring the territorial sea ouhvavd
in the direction of the high sea.'"
1.32 The features of Semna, Roncador, Quitasueiia, Smanilla and Bajo
Nuevo are at a much larger distance from the islands of San And& and
Providencia than the 10 miles proposed at The Hague Conference.
1.33 The legal concept of archipelagos, and archipelagic States, has been
further developed under the modem law of the sea. This development of
the law is net of relevance for the definition of the Archipelago of San
Andres under the 1928 Treaty. However, Yicaragua would like to
38 For figures on the other features concerned see NM, Vol. I, paras. 3.1 1 8-
3.123. " NM, Vol. I, paras. 3.1 15 ff.
40 League of Nations, Acts of the Conference for .?he Cod@cutiotv of
Inlernational Law, Vol. III Minutes of the Second Commiftee: Tmitorial
Waters, p. 219. The subject of archipelagos was not discussed further in the
plenary of the Conference.
observe that none of the islands in the area of relevance for the
delimitation can be considered to form part of an archipelago in the
present day legal sense and that the establishment of straight archipelagic
baselines between any of the islands in the area of relevance for the
delimitation between Nicaragua and Colombia is not permitted.
1.34 Colombia also argues that traditianally and historically "the cays" -no
specification is given which cays are exactly concerned- have been the
fishing grounds for the people of the Archipelago of San ~n&&s!' The
Preliminq Objections do not corroborate this statement with any
evidence, just as they fail to substantiate that these activities historically
were regulated by Colombia. In any case the mere fact of fishing
activities of nationals in a specific area is not relevant for establishing a
title to territory.
1.35 Finally, Colombia maintains that published maps show that the islands
comprising the Archipelago of San AnMs also include the features ef
Serrana, Roncador, Quitasuefio, Semilla and Bajo ~uevo.~' A first
point to be noted in respect of these maps is that they have been
published by Colombia. There was no map annexed to the 1928 Treaty,
which defmes the extent of the Archipelago of San Andds. It is the text
of this Treaty that first of all is relevant and not the maps referred to by
Colombia. As will be argued below in paragraph 1.43, the text of the
Treaty indicates that the Archipelago of Sm And& as defined for the
pwposes of the Treaty does not comprise the features of Serrana,
Roncador, Quitasuefio, Serranilla and Baio Nuevo.
4' CPO, VoI. I, para. 1.15.
42 CPO, VOI. I, para. 2.27.
1.36 Careful inspection of the mags presented by Colombia indicates that it is
far from clear from these maps what islands and other features Colombia
considered to be included in the Archipelago of San Andres. For instance,
the insert of the Map pubIished in 1931, to which Colombia refers in
paragraph 2.27 of the Preliminay Objections and which is reproduced as
Map 4 bis in Volume I11 of the same, does not indicate which islands are
included in the archipelago by attaching a label to each of the features
included in the mag. The placement of the IabeI 'Rep6bIica de
Nicaragua' to the west of the islands of San Andrks and Providencia, and
not further to the north also suggests that Colombia at that time
considered that the 1928 Treaty was concerned with these islands and not
the various banks located further to the north.
A note included in the insert to the 193 1 Map makes it even clearer that
the insert does not prove which islands and cays were included in the
Archipelago of San Andrks. The note states that within the limits of the
insert certain islands are not included. This concerns among others the
rock of Vigla to the north of the mouth of the Magdalena River, which is
located on the Colombian mainland coast bordering the Caribbean Sea. If
the Colombian assertion that the insert sllows the extent of the
Archipelago of San Andrks is accepted this note would imply that the
rock of Vigia is part of the Archipelago. This clearly is not the case, and
this fact indicates that the features included in the insert also do not of
necessity form part of the Archipelago. The observations in respect of the
insert reproduced as Map 4 his also apply to the inserts of Colombian
maps reproduced as Maps 5 bis to 8 bi,~ in Volume I11 of the Preliminary
Objections of Colombia.
1.38 The inserts included in the Colombian maps reproduced as Maps 9 bis to
I I bis in Volume 111 of the Preliminaty Objections do not make any
reference to the Archipelago of San And& and Providencia. Thus, these
maps do not provide any indication of the extent of the Archipelago of
San Andrks.
1.39 Colombia asserts that, legally, Nicaragua had already acknowledged in
the 1928 Treaty that Roncador, Quitasuefio and Serrana were part of the
Archipelago of San Andris and Providencia. To reach this conclusion,
Colombia gives a specific interpretation of the 1928 Treaty. Colombia
argues that article I of the Treaty refers to the islands of San Andks,
Providencia and all the other islands, islets and cays that form part of the
said archipelago of San Andrds. Colombia further argues that the
inclusion of a reference to Roncador, Quitasueiio and Sema in the
following paragraph of this article implied a recognition by Nicaragua
that these features formed part of the Archipelago and would, but for that
statement, have been dealt with as the islands mentioned in the first part
of article
1.40 In the Memorial, Nicaragua already has set out the reasons for rejecting
that she had renounced her sovereignty over the features of Serrana,
Roncador and QuitasueAo under the terms of the 1928 ~reaty.~ The
Prelimipsary Objections of Colombia necessitate some further comment
on this point.
1 -41 The Colombian argument starts from the proposition that the definition of
the Archipelago of San And& in the 1928 Treaty includes the features of
Roncador, Quitasueiio and Serrana. Nicaragua considers that this
interpretation of Article I of the 1928 Treaty is mistaken. As can be
appreciated, this definition only refers to three islands by name, to wit
43 CPO, Vol. I, para. 2.27.
44 NM, Vol. 1, paras. 2.149 ff.
San Andrds, Providencia and Santa Catalina. Other features are included
on the basis of their forming a part of the Archipelago of San Andres. As
was argued in paragraph 1.29 above, historically, the Archipelago was
not considered to include the features of Serrana, Roncador and
Quitasueiio. This makes it impossible to accept that they are included in
the definition under the 1928 Treaty solely by ;I general reference to the
Archipelago of San Andrks. In this connection, it can be noted that the
Court in a similar situation, involving the islets of Ligitan and Sipadan,
observed that,
". . .the relations between the Netherlands and the Sultanate
of Bulungan were governed by a series of contracts entered
into between them. The Contracts of 32 November 1850
and 2 June 1878 laid down the limits of the SuItanate.
These limits extended to the north of the land boundary that
was finally agreed in 1891 between tl~e Netherlands and
Great Britain. For this reason the Netherlands had
consulted the Sultan before concludi~~g the Convention
with Great Britain and was moreover obliged in 1893 to
amend the 1878 Contract in order to take into account the
delimitation of 1891. The new text stipulated that the
islands of Tarakan and Nanukan, and that portion of the
island of Sebatik situated to the south of the boundary line,
belonged to Bulungan, together with "the small islands
belonging to the above islands, so far as they are situated to
the south of the boundary-line". The Court observes that
these three islands are surrounded by many smaller islands
that could be said to "belong" to them geographicaI1y. The
Court, however, considers that this cannot apply to Ligitan
and Sipadan, which are situated more than 40 nautical
miles away from the three islands in question.'"5
1.42 Roncador, Quitasueiio and Serrana are located at a similar or larger
distance from the islands mentioned by name in Article I of the I928
Treaty as Ligitan and Sipadan from Tarakan, Nanukan and Sebatik.
1.43 Having concluded that the definition of the Archipelago of San AndrQ in
Article 1 of the 1928 Treaty does not include Roncador, Quitasueiio and
Senana, the question remains if the explicit reference to these features in
the Treaty brings them within this definition, as is argued by Colombia.
There is nothing in the treaty to suggest that this is the case. As the title
of the treaty indicates, it is concerned with territorial questions between
Colombia and Nicaragua. Similarly, the preamble of the treaty refers to
the territorial dispute pending between them. This indicates that the treaty
was not only concerned with features forming part of the Archipelago of
San Andres, but also with other territory. Furthermore, the second section
of Article I of the treaty provides 'The Roncador, Quitasuefio and Serrana
cays are not considered to be included in this Treaty '." Thus, it does not
state that these three features are included in the Archipelago. If it had
been the intention of the drafters of the Treaty to provide that these
features formed part of the Archipelago, the second section of Article I
could be expected to have provided that Roncador, QuitasueiIo and
Serrana were not considered '"to be included in the definition of the
Archipelago of San And& for the purposes of this Treaty.'"
1.44 These arguments concerning the definition of the Archipelago of San
AndrCs apply a fortiori to Serranilla and Bajo Nuevo. These features are
45 Case concerning Sovereignly over Pulm Ligitm and Pulau Sipadan
{Jndonssia/Maqsia), Judgment, para. 64.
46 Emphasis added.
at an even greater distance from the islands mentioned by name in Article
I of the 1928 Treaty, and historically they also were not considered to be
part of the Archipelago. Unlike the other three features no reference
whatsoever is made to Bajo Nuevo and Serranilia in the 1928 Treaty.
Consequently, the Colombia1 assertion that these features are included in
the definition of the Archipelago of San And& of the 1928 ~reaty~~ has
to be rejected. As was set out in the Memor.ia2, through application of the
principle of uti possidetis iuris the features of bncador, Quitasuefio,
Serma, Serranilla and Baja Nuevo appertain to ~icara~ua.~* As was
argued, thew is no explicit mention of these features in the acts of the
Spanish Crown. In this case, the application of the ziti possidefis iuris
principle should be understood in terms of attachment to or dependence
on the closest continental territory, that of ~icara~ua.~~
1.45 Nicaragua and Colombia also differ over the effect of the reference to the
features of Roncador, Quitasueiio and Semma in the 1928 Treaty.
Colombia considers that this provision implies that between them
Nicaragua and Colombia agreed that they did not belong to ~icara~ua.~'
On the other hand, Nicaragua in the Memorial concludes that this
provision did not have as a consequence the re1 inquishment by Nicaragua
of her rights but rather that there was a third party involved, the United
states.'' This conclusion is based on the wording of the provision
concerned and its drafting history.52 The fact that Nicaragua did not
intend to renounce her rights over the features of Roncador, Quitasueiio
and Serrana by the 1928 Treaty is confirmed by the circumstances
47 PCO, Vol. I, para. 2.25.
48 NM, Vol. I, paras. 2.179-2.188.
49 NM, Vol. I, para. 2.1 79.
50 CPO, Vol. 1, para. 2.29. " NM, Vol. I, para. 2.1 56.
52 NM, Vol. I, paras. 2.140-2.155.
surrounding the conclusion and ratification of the Saccio-Vhzquez Treaty
of 1972 between Colombia and the United States under which the United
States renounced her rights to these features. As is recounted in detail in
the Memorial, Nicaragua made every effort to safeguard her rights in
respect of the three features during this whole process.53 In conclusion,
the Memorial observes that,
", . .the United States relinquished all her hypothetical rights
over the cays through the Saccio-Vizquez Treaty, but she
did not do so by acknowledging Colombia's rights. To the
contrary, when ratifying the Treaty, the United States was
careful to express her neutrality regarding the legitimate
interests of third parties, particularly Nicaraglla, stating
clearly that the treaty did not grant Colombia more rights
than those she possessed before, nor did it prejudice the
rights of N i~ara~ua''.~~
B. REFERENCE TO THE 82O MERIDIAN IN THE PROTOCOL OF RATIFICATION OF
THE 1928 TREATY
1.46 In her Memorial Nicaragua devotes more than 30 pages (pages 146 to
177) to explaining the history and purpose of the reference to Meridian
82" W that was made by the Nicaraguan Congress when it ratified the
1928 Treaty. Nicaragua understands that the question of the interpretation
of this reference is an essential part of the decision on the merits of the
case and not one that can be decided during the phase of the question of
53 NM, Vol. 1, paras. 2.1.62-2.1 78.
54 NM, VoI. I, para. 2.1 78,
Preliminary Objections. Nicaragua in this section will first briefly review
again the history and purpose of this reference to Meridian 82" W made
in 1930 to show that it was not intended as a delimitation of maritime
areas, Then it will be undeniably shown that the subsequent practice of
the Parties, far from confirming the allegations of Colombia (CPO, Vol.
I, para. 2.56), completely contradicts them: Two different Colombian
Governments -one in 1977 and another in 1995- negotiated with
Nicaragua the issues now before the Court and. in particular, recognized
publicly and unambiguously that a maritime delimitation with Nicaragua
was needed and hence that the 82" W Meridian was not a line of
delimitation.
I. Tke understanding in 1930
1.47 The 1928 Treaty is crystal clear. Its Preamble states the purpose of the
Treaty:
"The Republic of Colombia, and The Republic of Nicaragua
dcsirous of putting an end to the territorial dispute between
them and to strengthen the traditional ties of friendship
which unite them, have decided to conclude the present
Treaty. . ."
1.48 The unambiguous purpose was to put an end to a territorial dispute and
not to achieve a maritime delimitation.
1.49 The pertinent Article of the Treaty does not in any way contradict its
Preamble.
"Article I. The Republic of Colombia recognizes the
full and entire sovereignty of the Republic of Nicaragua
over the Mosquito Coast between Cape Gracias n Dios and
the San Juan River, and over Mangle Grande and Mangle
Chico Islands in the Atlantic Ocean (Great Corn Island and
Little Corn Island). The Republic of Nicaragua recognizes
the full and entire sovereignty of the Republic of Colombia
over the islands of San Andrks, Providencia, and Santa
Catrtlina and over the other islands, islets and reefs forming
part of the San Andres Archipelago. The present Treaty
does not apply to the reefs of Roncador, QuitasueAo and
Serrana, sovereignty over which is in dispute between
Colombia and the United States of ~merica."~'
1.50 The Treaty simply recognizes sovereignty over territory and no mention
is made of maritime delimitation.
1.5 1 It could not have been othenvise. In 1 930 Nicaragua claimed a 3 -mile
territorial sea and Colombia had just raised her claim to a territorial sea of
6 miles. Neither Party claimed fishing rights beyond this area and much
less had claims to a continental shelf nor to any of the other entitlements
to sea areas that developed after the 1945 Truman Proclamation. To
assert that in 1930 Nicaragua and Colombia were fixing maritime limits
that were located nearly 60 miles from the nearest territory of Nicaragua
and dozens of miles from the San Andrks Archipelago is simply a
historical absurdity.
1.52 Colombia herself recognizes this in her Preliminary Objections. In
paragraph 2.53 Colombia admits that, "No doubt, in 1930 Meridian 82'
W could not be understood as a maritime boundary in the modern sense
of the word." And yet this boundary, that is not "a maritime boundary in
s5 NM, Vol. 11 Annex 19.
the modern sense", is used by Colombia to take over more than half of
the continental shelf and the exclusive economic zone of Nicaragua.
1.53 Colombia tries to seek a way out of this conundrum in what she refers to
as the trmaurc pr~parafoires of the ratification process of the 1 928 Treaty
in the Nicaraguan Congress. The real travam- pre'paratoires were the
negotiations that led to the signing of the 'Treaty on 24 March 1928 and
these never referred to my then inexislent maritime dispute but only to
the territorial dispute. Colombia attempts to brush this off admitting that,
"It is true that the 1928- 1930 settlement related in the first
place to sovereignty over land.. .However, if this settIement
had been restricted to territorial sovereignty and had left
open the issue of the maritime division, it would not have
achieved the purpose of the negotiation. which was, as was
repeatedly recalled in the Nicaraguan Congress, the final
and complete settlement of the dispute between the two
countries.7356
1.54 This statement by Colombia is simply not true. The negotiations on
sovereignty over land were the only negotiations that took place under the
very constraining auspices of the United States. Colombia does not offer
and cannot offer records of any negotiations ever referring to maritime
delimitation. There were discussions in the Colombian Congress prior to
the offer she made to Nicaragua of what finally came to be the 1928
Treaty. These authentic travam pr~parutoires of the 1 928 Treaty do not
have any mention of disputes over maritime areas but only of territorial
sovereignty. In the period between 1928 and 1930 there could not have
been a maritime issue when San Andr6s is located at a distance of more
56 CPO, Vol. 1, para. 2.41.
than 105 miles from the mainland of Nicaragua and 385 miles from that
of Colombia.
1.55 In any case the whole approach of Colombia is preposterous. Simply on
the basis of certain words used by some Nicaraguan Senators during the
ratification discussions Colombia cannet demonstrate that the purpose of
a Treaty putting an end to a territorial dispute in unambiguous wording
has been changed to a Treaty establishing limits in what was considered
the high seas in 1930. The words af some Nicaraguan Senators that do
not even have the real meaning read into them by Colombia is her whole
basis for stating that the purpose of Meridian 82 W was conceived as,
"a dividing line, as a line separating whatever Colombian
or Nicaraguan jurisdictions or claims then existed or might
exist in the f~ture."~"
1.56 This is the whole argument of Colombia in her attempt to prove that the
Meridian was conceived as a maritime delimitation. She asserts that the
Parties regarded the Meridian as separating whatever jurisdictions or
claims then existed between them, but she does not indicate what these
claims or jurisdictions of the Parties were in 1930. There is no proof
whatsoever that Nicaragua or Colombia in 1930 had any claims to
maritime areas beyond their respective claims to a territorial sea.
Colombia does not offer and cannot offer any proof to back this
contention. To salvage this abysmal gap, Colombia goes to the extreme
absurdity of alleging that the Nicaraguan Senators had a crystal ball to
the future and that this Meridian was set as a limit to any jurisdictions or
claims that might exist in the future.
57 GPO, Vol. I, para. 2.53.
1 -57 Colombia asserts that the debate in the Nicaraguan Congress,
"...leaves no doubt as to the meaning of the 82" W
Meridian within the 1930 Protocol of Exchange of
Ratifications: a border, a dividing line of the waters in
dispute, a delimitation, a demarcation of the dividing line
(limite, linea divisoriu de las apas en dispufcs,
delimi facih, demnrcacidn de bu linea divisoria)- in other
words: a maritime
1.58 The only phrase cited that might be construed as incompatible with the
purpose of the Treaty is that used by one Senator when he imprecisely
spoke of a dividing line of the waters in dispute. The fact that others used
the word delimitation or border is perfectly understandable: they were
putting a limit to the archipelago. The more precise modern English
terminology that would now be used to describe clearly the purpose of
the Meridian would be that of "a line of allocation of islands'" me
Nicaraguan Senators were not modem experts on these matters and even
nowadays it is quite conceivable that laymen on these matters might also
use this erroneous phrase.
1.59 Paragraph 2.1 92 of the Nicaraguan Memorial deals with the moment
during the discussions in the Nicaraguan Senate when the Nicaraguan
Minister of Foreign Affairs was called to explain the purpose of the
understanding that was being proposed be made as part of the ratification
of the 1928 Treaty. The Minister explained to rhe Senators,
"that the explanation does not reform the Treaty, because it
only intends to indicate a limit between the archipelagoes
CPO, Vol. 1, para. 2.4 1.
that had been reason for the dispute and that the Colombian
Government had already accepted that explanation by
means of its Minister Plenipotentiary, only declaring, that
this explanation be made in the ratification act of the
Treaty: that this explanation was a necessity for the future
of both nations because it came to indicate the geographic
limit between the archipelagoes in dispute without which it
would not be defined the matter completely; and that
therefore he requested to the Honourable Chamber the
approval of the Treaty with the proposed explanation.. ."59
1.60 The words used by the Minister indicate that the purpose of the proposed
Declaration (or "explanation") to be made upon ratification was to put a
limit "between the archipelagoes". This expression is probably a good
definition of the meaning of the phrase "a line of allocation of islands".
1.61 This condition was included in the Congressional Decree of ratification
of 6 March f 930, which was promulgated by the President of Nicaragua
in the Gazette, the oficial bulletin of the Republic of Nicaragua on 22
July 1930.~ This decree ratifies the Treaty,
'"...in the understanding that the San And& archipelago
mentioned in the first clause of the Treaty does not extend
to the West of Meridian 82 of Greenwich in the chart
published in October 1885 by the Washington
Hydrographic Office under the authority of the Secretary of
the Navy of the United States of North America."
59 NM, Vol. 11, Annex 80. NWS, Vol. 11, Annex 24b.
MI La Gaceia, Diario Oficial, Aiio, XXXIV, Managua, D.N., Wednesday, 2 July
1930, No 144, pp. 1 145- 1 146.
1.62 It should not go unobserved that Colombia offers no records or frclvawc
pr&pararoires of her own but relies entirely on the words used by certain
Nicaraguan Senators. Colombia cannot produce these records because
neither those preceding the signature of the 1928 Treaty nor those
following the Nicaraguan ratification with the understanding on the 82
Meridian provoked any discussions about maritime delimitation in the
Colombian Minister of Foreign Affairs or in her Congress.
1.63 During the next nearly 40 years after the ratification, Colombia did not
claim that the Meridian was a Iine of delimitation of maritime areas. The
maps presented by Colonlbia are advanced as the only practice
purportedly proving that Colombia understood the Meridian as a
maritime limit. No proof is offered of any other kind: no legislation, no
fishing practice, nothing but maps. The question of the maps is dealt in
paragraphs 1.36 to 1.38. At this point suffice it to say that none of the
maps presented at least up to 1958; have any indication of a maritime
limit.
1.64 The question of the interpretation of the meaning of the 82' Meridian
first came out in the open when Nicaragua granted an oil exploration
concession in 1967 to Western Caribbean Petroleum Co. This concession
was partially located in maritime area? to the east of the 82" West
Meridian. Colombia protested this concession on 4 June 1969 and for the
first time asserted that this Meridian of longitude was a delimitation line
of the maritime areas of Nicaragua and Colombia. This Colombian
interpretation was i mrnediately refuted by ~icara~ua~'.
61 NM,Vol. IT, Annex 29.
1.65 Nonetheless, since that period Colombia has imposed this limit by force
of arms. To declare a treaty void is not in itself an international illegality
as Colombia asserts in paragraph 1.1 11 of her Preliminmy Objections.
On the other hand, to unilaterally interpret a treaty on the flimsiest of
basis, 40 years after its ratification, and then impose that reinterpretation
by use of force is an international illegality and a true outrage.
1.66 The truth in this whole issue is that with the development of the law of
the sea, particularly after the first United Nations Conference on the Law
of the Sea in 1958, Colombia saw a chance of gaining enormous
maritime areas at the expense of Nicaragua. Even if her tittle to San
AndrCs were valid and upheld Colombia decided that to invoke the
Meridian was a safe bet compared to what maritime areas she could hope
to get in any equitable delimitation between the 17 square milesb2 of the
Archipelago of San And& and the extensive coast line of Nicaragua.
1.67 In 1977 the Government of Colombia commissioned Ambassador Julio
Londoiio Paredes to negotiate with the Government of Nicaragua on the
question of the territorial and frontier dispute in the Caribbean Sea. In
carrying out this mandate, Ambassador Londoiio met on several
occasions with the then Foreign Minister of Nicaragua, Dr. Alejandro
Montiel Argiiello. No agreement was reached and Nicaragua decided to
bring to an end the negotiations because the Colombian offer was
unacceptable to Nicaragua as is explained in the affidavit of Dr. MontieI
Argkllo on the subject of these negotiations.63 The revolution that
62 See above, paragraph 1.25.
NWS, VOI. 11, Annex 20.
began in 1978 in Nicaragua put the lid on any possibility of reviving the
subject of negotiations with Colombia until the I 990s.
1.68 The nature and existence of these first negotiations can be verified with
the declarations given by the then President of Colombia, Mr. Alfonso
L6pez Michelsen. In March 1977 President L6pez stated: "We aspire to
reach agreements on delimitations by direct negotiation not only with
Nicaragua but also with Venezuela which is more difficult.. .
3164
1.69 President L6pez made this statement on the occasion of a State visit to
Nicaragua's neighbour, Costa Rica, with the object of signing a treaty of
maritime delimitation in the Caribbean. Although this Treaty was
protested by Nicaragua and has not yet been ratified by Costa Rica the
fact that the statement was made in this context makes it even more
forceful and its meaning perfectly clear.
4. Second round of negotiations 1995
1.70 In 1995 Nicaraguan and Colombian delegations headed by their
respective Ministers of Foreign Affairs were attending a meeting in the
headquarters of the United Nations in New York. On that occasion, the
Colombian Foreign Minister, Mr. Rodrigo Pardo Garcia-Pefia, invited the
Nicaraguan Foreign Minister Mr. Ernesto Leal Sanchez to n lunch
meeting. The Ambassador of Colombia to the United Nations at that
time, Mr. Julio Londofio Paredes, was also present at that lunch. It must
be recalled that Ambassador LondoAo had been in charge of the
Colombian negotiations with Nicaragua in 1977 (see paragraph 1.63
above). The other participant was Ambassador Mauricio Herdocia
64 NWS, Vol. IT, Annex 12.
Sacasa, then legal and political advisor to the Nicaraguan Foreign
Minister.
1.71 An affidavit of former Minister of Foreign Affairs, Mr. Ernesto Leal, is
joined to the present Written Statement; it explains the substance of the
negotiations that took place in that meeting and at a subsequent meeting
at the level of the Presidents of Nicaragua, Mrs. Violeta Barrios de
Charnono and that of Colombia, Mr. Ernesto Samper Pizano. This took
place in the context of the IX Summit of Heads of State and Government
of Latin American Countries (Rio Group) that was held in Quito,
Ecuador, on 4 September 1995.
I .72 The purpose of these meetings, as expressed by the former Minister, Mr.
Leal in his affidavit,
"was to begin discussions about the negotiations related to
the territorial and maritime differences between Colombia
and Nicaragua in the Caribbean Sea, in order to improve
the political environment and remove all the obstacles that
affect the friendly and cooperative relationship that could
exist between both countries.
In this opportunity, Colombia was willing to review with
Nicaragua the issues related to Meridian 8Z0, indicating that
this subject was easier to treat than the San Andks topic,
affirming that prominent Colombian personalities
recognized that the Colombian thesis of Meridian 82" was
questionable under the view of International Law and
International Courts' judgments. That position facilitated
the treatment of the subject, The Nicaraguan representaticln
expressed that the San And& issue was as important as the
subject of Meridian 82", they also expressed that these
subjects where closely interconnected, but that the
conversations could begin with the first matter, but in a
global context, and without implying any renunciation,
having them in a very quiet environment far from the
pre~s.~*~~
1.73 The Colombian Foreign Minister explained the purpose of the
negotiations in an article published on 10 September 1995 in the
newspaper "El Tiempo'', section 'Vnvited Editor", under the title
"Towards a Good Neighbourhood" In this context, he wrote:
"What is it about? It is about initiating an ample dialogue
over all the matters that are obviously pending or require
mutual work: on the issues that are not defined or settled
by the agreements in force, among them, the EsguerraBhrcenas
Treaty. For two bordering countries, such a
dialogue is simply e~sential."~
1.74 Mr. Pardo further noted that these negotiations will
". . ,analyse in a cordial and constructise conversation, the
arguments of the parties about the character of the Meridian
82. The conversations that the Ministries of Foreign Affairs
of both counnies will soon begin, based on a Presidential
mandate, will consequently include this important
subject."h7
65 NWS, Vol. 11, Annex 2 1.
66~~~, Val. [I, Annex 4.
67 N WS, Vo1.11. Annex 4.
1.75 The Foreign Minister ended his note indicating that:
"From the point of view of the national interests and the
cooperation between both countries, to clear out my doubt
on the nature of Meridian 82", will contribute to clear out
the s~ene~.'~'
The importance of these events and these statements cannot be over
emphasized. At a distance of nearly 20 years, first in 1977 and then in
1995, two different Colombian Presidents and Governments, publicly
announced negotiations with Nicaragua on maritime delimitation and
other issues presently before the Court. Colombia now denies that any
issues were left pending by the 1928 Treaty and yet two different
Colombian Governments tell a radically different story.
1.76 The distinguished Colombian, Judge Rafael Nieto Navia, former Judge
and president of the Interamerican Court of Human Rights and until
recently Judge of the Tribunal for the Former Yugoslavia in The Hague,
had this to say about the public statements of the highest authorities of his
country.
"I heard the President say in the television ... that the
Ministers of Foreign Affairs of Colombia and Nicaragua
will have to meet to talk 'about the nature of Meridian 82'
west of Greenwich, indicated by the Esguem-Bhrcenas
Treaty as a boundary of the Archipelago of San Andrks . . .
And, if this is accepted, taking into consideration that the
Treaty says that the Archipelago will not extend to 'the
west', it is obvious that if it is negotiated, it is to discuss to
the east, that is, the zone that has been traditionally
68 NWS, Vol. 11, Annex 4.
Colombian.,. What did the President mean with the
'nature' of the Meridian? Well, he is referring, as it is
obvious, to whether the Meridian is or is not a limit. He is
doubting that characteristic. He is giving an opportunity for
the Nicaraguan maritime and sub-maritime areas, to go east
of the Meridian ... Attention, Mr. President, what you are
saying represents the official position of Colorn bia.
Tomorrow, Nicaragua will put out these declarations before
the International ~ourt."'~
1.77 In fact, what Judge Nieto anticipated is precisely what Nicaragua is now
doing: putting these declarations before the International Court.
1 -78 Unfortunately, the political pressure created inside Colombia by the
announcement of these negotiations apparently forced the Government of
Mr. Samper to go back on the agreement to negotiate and further
meetings were cancelled.
1.79 This event was highlighted by Nicaragua in her Application of 6
December 200 1 :
"Diplomatic negotiations have failed. The last real attempt
at the highest level occurred on 6 September 1995, on
occasion of the IX Meeting of Heads of States and
Governments of the Group of Rio in Quito, Ecuador. At
that meeting, the President of Coloml~ia, His Excellency
Mr. Ernesto Samper, declared that he was instructing his
Minister of Foreign Affairs to meet with his Nicaraguan
counterpart before the end of that month of September in
69 NWS, VOI. IS, Annex 3.
order to discuss the bilateral issues that separated their
countries. In the words of President Samper, these issues
included 'possible differences that existed on the subject of
frontiers' CposibIes difeerencias que existen en materia de
limites). This meeting was cancelled at the request of
Colombian Minister of Foreign Affairs, who stated on 12
September 1995 that Colombia would never discuss with
Nicaragua the Caribbean possessions because 'this was a
matter that had been totally decided by an international
treaty'. Five days later, the Minister of Defence of
Colombia, accompanied by high-ranking members of the
Colombian military, members of Government and
Congress, presided over a so-called act of sovereignty that
consisted of a naval demonstration on the 82 Meridian at
the altitude of parallel 12. On 6 August 1996 the Minister
of Foreign Affairs of Colombia asserted that the question of
sovereignty over Providencia and San Andrks 'is not
subject to discussions' and on the 14~~ of that same month
reiterated "hat there was nothing to talk about' in this
affair."
5. Third round of "negotiofions " 2001
1.80 Mention is made of these conversations between the then recently
appointed Foreign Minister of Nicaragua, Mr. Francisco X. Aguirre
Sacasa and his Colombian counterpart Mr. Guillermo FemAndez de Soto,
not because of their importance in demonstrating that Colombia agreed in
2001 that there were pending territorial and delimitation issues to be
negotiated with Nicaragua, but to bring to light the conduct of Colombia
towards Nicaragua in relation to the bringing of this case before the
Court.
1.81 The facts are as follows. A few weeks after Honduras ratified on 30
November 1999 the delimitation Treaty of 2 August 1986 the then
President of Nicaragua Mr. Arnoldo Alemhn Lacayo publicly announced
that Nicaragua would be filing an Application with the International
Court of Justice against ~olornbia.~~ This announcement was repeated on
several occasion^.^' Ambassador Londoiio, Agent of Colombia, in an
interview given shortly after the Application of this case was filed,
recognized that they were aware that Nicaragua was going to bring this
case because "they had been announcing it for the past two years".72
1.82 The fact that this case was being brought to the Court was well known by
Colombia. The Nicaraguan Foreign Minister during the year 2001, Mr.
Aguirre, in an affidavit73 tells the story of how his Colombian
counterpart, Mr. Fernhndez de Soto, requested that the filing of the
Nicaraguan Application he postponed in order to give an opportunity for
negotiations on the territorial and delimitation questions pending between
their respective States. Mr. Aguirre agreed in good faith only to later
receive the surprise that the purpose of that request and the offers of
negotiations were only made in order to gain time for Colombia to
complete the legal and political steps she needed to take in order to
withdraw her 1937 acceptance of the jurisdiction of the Court.
1.83 These attempts by Colombia to abuse the good faith of the Nicaraguan
Authorities in order to gain time for withdrawing her acceptance of her
70 NWS, Vol. 11, Annex 13.
7' NWS, VOI. 11, Annexes 1 4, 15 and 1 6.
72 NWS, VOI. 11, Annex 7 and see below, paras. 3.103-3.104.
73 NWS, VoI,lI, Annex 22.
optional clause Declaration are -to borrow a Colombian self-righteous
statement74- an outrage.
1.84 The consequence of this conduct by the Government of Colombia is that
it was estopped from changing the jurisdictional status quo without
reasonable notice. In the event, a notice of less than 24 hours could not
by any definition be considered reasonable. The legal consequences of
the Colombian conduct are dealt with below in Chapter III, Section IV.
IV. Breach of Treaty
1.85 The 5'h Submission of the Nicaraguan Memorial requests the Court to
adjudge and declare that:
"(I)n case the Court were to find that the BircenasEsguem
Treaty had been validly concluded, then the
breach of this Treaty by Colombia entitled Nicaragua to
declare its termination."
1.86 This question is dealt with in paragraphs 2.254 to 2.263 of the
Nicaraguan Memorial. The premise for this declaration of termination is
that the Meridian 82O W is not a line of delimitation of maritime areas but
a line of allocation of sovereignty ova islandsmT5 If this premise is correct
then the question is whether the unilateral interpretation of Colombia in
1969, that has been followed since then with what amounts to a blockade
against the use by Nicaragua and hex citizens of the resources of the
74 CPO, VOI. I, para. 1 .I 1 1.
75 See above Sec. 111, para. 1.58.
maritime areas east of Meridian 82" W, amounts to a material breach of
the Treaty.
1.87 The answer to this question is an issue concerning the interpretation of a
treaty, which clearly falls within the jurisdiction of the Court. It is
precisely the first type of legal dispute to which Article 36 (2) of the
Statute of the Court refers. If the answer is, as Nicaragua contends, that
Colombia has interpreted this Treaty in a self-serving manner and not
according to its objectives or the clear meaning of its text, then we enter
into the question of determining if this interprt:tation would constitute a
breach of an international obligation. This last issue would fall under the
third type of legal dispute contemplated by Article 36 (2) of the Statute.
1 ,S8 In any case, what is clear is that this issue is patently a matter that must
be decided in the merits phase of this case. At this stage it will suffice to
offer a rebuttal of certain allegations of Colombia.
1.89 Firstly, Colombia asserts in paragraph 1.1 16 of her Preliminaqy
Objections that,
"As a matter of law, even if it were true that Colombia
'unilaterally converted' the 82" W Meridian into a
maritime boundary, a party's advancing an argument
concerning the construction of a treaty cannot constitute of
itself a 'material breach' of it."
19 The question clearly is that Colombia not only converted a Treaty that
was aimed at resolving the "territorial dispute pending between them''
into a new territorial and delimitation dispute, but that Colombia has not
limited her "construction" of the Treaty to paper and diplomatic
conversations. To take a Treaty involving the determination of
sovereignty over territory, and by "construction" determine that in fact
the Treaty was also a Treaty of delimitation of a 250 nautical mile
maritime border, cmot be anything other than a material breach of it.
1 -9 1 Colombia quotes, in paragraph 1.1 17, article 45 of the Convention on the
Law of Treaties to attempt to prove that Nicaragua has lost her right to
invoke this ground of termination because she has acquiesced in this
interpretation. This interpretation was first asserted by Colombia in 1969
and Nicaragua immediately protested and has reiterated this protest at
every adequate opportunity. There cannot be any question of
acquiescence.
f -92 Colombia sees this acquiescence in a series of maps she has filed with her
Preliminary Objections, This question is dealt with above in paragraphs
1.36 to 1.38. For present purposes Nicaragua points out that these maps
prove none of the assertions of Colombia. On the other hand it must be
reiterated that the only evidence for acquiescence advanced by Colombia
consists of those maps. There are no acts of sovereignty by Colombia
such as laws or decrees defining her maritime areas or the granting of
fishing or oil exploration concessions before 1969.
CHAPTER I1
PRELIMINARY OBJECTIONS RELATED TO THE PACT OF
BOGOTA
2.1 In the Application of 6 December 2001 the Republic of Nicaragua
invoked, in accordance with Article 36, paragraph 1 of the Statute of the
Court, Article XXXI of the American Treaty on Pacific Settlement (Pact
of Bogoth), adopted on 30 April 1 948, as one of the bases of jurisdiction
in the dispute submitted to the ~0u1-t'~.
2.2 According to Article XXXI of the Pact of Bogotb:
"In conformity with Article 36, paragraph 2, of the Statute
of the International Court of Justice, the High Contracting
Parties dcclare that they recognize, in relation to any other
American State, the jurisdiction of the C'ourt as compulsory
ipso fucto, without the necessity of any special agreement
so long as the present Treaty is in force, in all disputes of a
juridical nature that arise among them concerning: a) the
interpretation of a treaty; b) any question of international
law; c) the existence of any fact which, if established,
would constitute the breach of an international obligation;
or, d> the nature or extent of the reparation to be made for
the breach of an international obligation".
2.3 BoththeRepublicofNicaraguaandtheRepublicofColombiaarepartics
to the Pact of Bogoti. Nicaragua ratified the Pact on 21 June 1950
76 Application of Nicaragua, para. I ; N M, Vol. I, Introduction, para. 3.
5 1
without any pertinent reservation, and Colombia ratified it on 14 October
1 968 with no reservations.
2.4 Nevertheless, on 21 July 2003 the Republic of Colombia submitted to the
Court Preliminary Objections, requesting the Court to adjudge and
declare that:
". ..under the Pact of Bogot&, and in particular in pursuance
of Articles VI and XXXIV, the Court declares itself to be
without jurisdiction to hear the controversy submitted to it
by Nicaragua under Article XXX, and declares that
controversy ended"77.
2.5 According to Article VI of the Pact of Bogoti, the procedures established
in that Treaty,
"...may not be applied to 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 conclusion
of the present Treaty".
2.6 According to Article XXXIV of the Pact of Bogotil:
"If the Court, for the reasons set forth in Articles V, VI and
VII of this Treaty, declares itself to be without jurisdiction
to hem the controversy, such controversy shall be declared
ended".
77 CPO, Vol. I, Chap. V, p. 145.
2.7 Columbia affirms that "'matters were definitively settled" by the Treaty of
1928, and thus, "by instituting these proceedings Nicaragua is seeking to
reopen a matter which has long since been settled"7R. Nicaragua considers
that that conclusion is completely erroneous and this will be
demonstrated in the following paragraphs.
The main argument presented by Colombia in her efforts to establish that
the Court lacks jurisdiction is based on the join1 interpretation of Articles
VI, XXXI and XXXIV of the Pact of 80~0th''. According to Colombia
the Court should declare itself incompetent and declare the controversy
ended as it concerns a matter already settled by agreement between the
parties and governed by agreements or treaties in force when the Pact of
Bogotii was concluded. Colombia affirms that Nicaragua and Colombia
had signed the BArcenas-Esguerra Treaty in 1928 and ratified it through
the Protocol of Exchange of Ratifications in 1930, in order to resolve
territorial matters, including their maritime delimitation, and that thesc
agreements were in force when the Pact of BogotB was entered intoa0.
2.9 The Colombian argument is incorrect for many reasons; first among these
is that of the very interpretation of the pertinent articles of the Pact of
Bogota.
2.1 0 The text that ultimately became Article VI of the Pact was not part of the
lnteramerican Peace System Project adopted by the Interamerican
Juridical Committee, which was the basis For discussion at the IX
78 CPO, Vol. I, Introduction, para. 8.
79 Jbid, Introduction, paras. 27 ff; and paras. 2.5 ff.
Ibid, Introduction, paras. 14; and paras. 1.44 ff., 2.9, 2.35, 2.50, 2.63, 2.64;
4.6, 4.13, 4.14. The text of the Treaty and the Protocol of Exchange of
Ratifications are in Vol. 11, Annex 10. These instruments have already been
reproduced in the NM. Vol, 11, Annex 19.
lntemtional Conference of American states8', but rather emerged from a
proposal for an additional article put forth by per$'.
Jt is clear from the text -and this is confirmed by the trnvawx
pre'paratoires- that the limitation imposed by Article VI of the Pact refers
not to the jurisdiction of the Court, but rather to the operation of all
procedures foreseen by the Pact, as Colombia must recognizea3, and has
for its objective to avoid the use of the procedures contemplated in the
Pact, being used for the review of treaties or for bringing appeals against
final and enforceable j udgrnents.
The reservations formulated by countries such as Bolivia and Ecuador
when signing the Pact confirms that this was the purpose of Article Vl.
These reservations, as Colombia herself recognizes, intend '"t protect the
81 See the project, published under classification CB-6 in the 1X [nternaiional
Conference of American States, Proceedings and DocumentsJNovena
Conferencia Internacional Americana, Actas y Documentos, Vol. IV, MRE,
Actas y Docurnentos, Vol. IV, MRE, Bogoth, 1953, Third Commission,
Commission Documents, pp. 6-21. See pertinent part in NWS, Vol. 11, Annex
18.
82 Given that Article 11 of the project had recognised the commitment of the
parties to make use of the procedures established by the Treaty in case a
controversy could not be resolved, in the opinion of one of them, through direct
negotiations, the Peruvian delegation proposed to add several articles, one of
which reads as follows: "These procedures may not be applied either to matters
already settled by arrangement between the parties ox by arbitral or judicial
decisions, or which are governed by international agreements in force on the
date of the conclusion of the present Treaty". (The text in Spanish reads:
"Tampoco podrhn aplicarse dichos procedim ientos a 10s asuntos ya resueltos
por atreglo de las partes, o por solucion arbitral o judicial, o que se hallan
regidos por acuerdos internacionales en vigencia en la fecha de la celebracibn
del presente Tratado" (Proposal for Arnendmenrs to the Inferarnerican Peace
System Project, published under the classifications CB- I9 I /C.III-I 0 y CB-
1 991C. 111- 12, in IX International Conference of American States, Proceedings
and DocumentsMovena Conferencia Internacional Americana, Actas y
Documentos, Vol. IV, cit., Third Commission, Commission Documents, p. 69).
See NWS, Vol. 11, Annex 1 83,
$3 CPO, Vol. 1, paras. 2.10,2.13 and 2.20.
possibility that their existing territorial treaties with Chile and Peru,
respectively, might be opened to review"84. Bolivia intended to leave
open a means by which to apply the procedures of the Pact to
"controversies arising from matters settled by arrangement between
parties, when said umngements afecf the vita! interests of a ~tafe"~~
(emphasis added). For its part, the Ecuadorian reservation "leaves open
the possibility of the review of treaties" as stated in the report of the
Ecuadorian Senate's International Relations C:ommittee, to which the
Pact had been submitteds7.The fact that Peru put forth the proposal that
resulted in Article V1, and Chile supported the motion, was due to its
importance as a mechanism to prevent the review of treatiesg8.
84 C PO, Vol. 1, para. 2.1 5.
85 See Bolivian Reservation to the Pact of Bogot6. 86 "The Delegation of Ecuador, upon signing this Pact, makes an express
reservation with regard to Article V [Vi] and also every provision that
contradicts, or is not in harmony with, the principles proclaimed by or Ithe
stipulations contained in the Charter of the United Nations, the Charter of the
Organisation of American States or the Constitution of the Republic of
Ecuador". The text in Spanish reads: "La Delegaci6n del Ecuador, al suscribir
este Pacto, hace reserva expresa del Articulo V PI], y, ademls, de toda
disposition que est6 en puglia o no guarde amonia con 10s principios
proclamados o las estipulaciones contenidas en la Catta de las Naciones Unidas,
o en la Carta de la Organizaci6n de Estados Americanos, o en la Constitution de
la Repcblica del Ecuador" (IX International Conference of American States,
Proceedings and DocumentdNovena Conferencia I nternacional Americana,
Actas y Doczrmentos, Vol. 1, MRE, Bogota, 1943, Proceedings of the Seventh
Plenary Session, p. 232. See N WS, Vol. 11, Annex 1 7).
Rec~rd of the afternoon session of the Honourable Chamber of the Senate of
the Ecuadorian Congress (Acta de la Sesidn Pesperfina de lu Honornble
Ccirnara del Senado), October 3 I, 1949, Item XXV, First Discussion of Bill
number 157, Pact of Bogoth, pp. 1923 ff., cited by Colombia in CPO, Vol. I,
ara. 2.15, fn. 110.
'CPO, Vol. I, paras.Z.l1,?.12and2.16.
2.13 This is the only possible explanation for the fact that although her
proposal was acceptedg9, Peru formulated a reservation to Article
XXXTV, considering, inter alia, that the cases,
"resolved by settlement between the parties or governed by
agreements and treaties in force, determine, in virtue of
their objective and peremptory nature, the exclusion of
these cases from the application of every procedure''w.
2.14 To the Peruvian delegate who interpreted the quieta non movere it even
seemed inadmissible that there should be an intervention by the Court
declaring the controversy "ended" when, in accordance with Article VI, it
lacked jurisdiction. Obviously the Court may remove from its list of
cases a dispute if it finds no basis for its jurisdiction, but it would exceed
its competencies if it declared the controversy as such ended.
2.15 Colombia has not taken into account the need for caution when recurring
to the travaux prkparutoires of the Pact of Bogot5 called for by the Court
in the judgment handed down on 20 December 1988 -Border and
Transborder Armed Act ions. Jurisdic fion and Admissibility, (Nicaragua
v. Honduras)- when it warned that "not all stages of the drafting of the
89 There were only slight modifications in form that in no way affected the
substance of the article. Thus the reference to "arbitml or judicial decisions"
was changed to "aarbitral award or . . . decision of an international court (Inudo
arbiiral o ... sentencia de wl tribunal internacionuf)", the expression
"international agreements (acuerdos irzternacionaies)" was substituted for
"agreements or treaties (acuerdos o tpatados)", and the final allusion to "Treaty
( Tpatado)" was replaced by "Pact (Patio)".
The text in Spanish reads: "resuelta por arreglo de las partes o regida par
acuerdos o tratados vigentes, determinan, en virtud de su naturaleza objetiva y
perentoria, la exclusi6n de estos casos de la aplicacion de todo procedimiento-"
(IX Jntmational Conference of American States, Proceedings and
Documents/Novena Conferencia International Americana, Actas y Documentos,
Val. 1, cit., Acta de la SCptima Sesion Plenaria, p. 233). See NWS, Vol. TI,
Annex 17.
texts of the Bogoti Conference were the subject of detailed rec~rds"~'.
However, the same quotations Colombia uses to support her thesisv2 in
fact contradict it. Thus, when the delegate of Ecuador, Mr. Viteri,
suggests in the debates of the Third Commissio~~ at the Conference that a
formula be found to soften the terms of Article VI, the delegate of Peru,
Mr. BeIaGnde, rejects this suggestion as it concerns matters governed by
agreements or treaties in force, arguing that 1) "these 'treaties in force'
usually indicate the manner to settle rnatter~''~'', which would appear to
indicate that for the Peruvian delegate the final paragraph of Article VI is
intended to submit differences regarding treaties in force to the means of
settlement as set forth in the treaties them~elves~~; and, that, 2) to
attenuate the formula "would open the door to provoke a dispute, which
is exactly what we wish to avoid'(emphasis added)95. "An American
" lC.J Reporrs 1988, p.86, para. 37.
92 CPO, Vol. 1, paras. 2.10 ff.
93 The text in Spanish reads: "esos "ratados vigentes' generalmente indican la
manera de resolver las cuestiones".
91 "There is a treaty; surely that treaty has its procedures. That is why the last
part [of Afiicle VIj is important ...[ A] treaty that settles a problem generally
provides a procedure by virtue of which those difficulties can be settled.. .In this
way everything is ready, because that which is subject to treaties in force,
generally has its procedure, and that procedure, as we Rave agreed, should take
precedence over any other", concludes Mr. Belaunde. (Text in Spanish: "Hay un
tratado; seguramente ese tratado tiene sus proced~mientos. Por eso es que la
ultima parte [del Articulo VI] t iene tanta importancia ...( U)n tratado que resuelve
un problerna generalrnente establsce un procedimiento en virtud del cual esas
dificultades puedan resolverse ... De manera que esth todo listo, porque lo que
esth regido por tratados en vigencia generalmente tiene su pmedimiento; y ese
procedimiento, conforme lo hemos acordado, debe primar sobre cualquier otro")
(IX International Conference of American States, Proceedings and
Dacumen~ovena Conferencia International Americana, Actas y Ducrrme~tos,
Vol. IV, Corn isi6n Tercera, Sesi6n Tercera, pp. 135- 136). N WS, Vol. 11, Annex
I 8. See also excerpts in CPO, Vol. 11, Annex 2 1,
9s The text in Spanish reads: "seria abrir la puerta a provocar un litigio, que es
precisamente lo que queremos evitar"'.
peace system", adds Mr. Belainde, "should not only settle disputes, but
also prevent them7796.
2.16 Likewise, when the delegate from Cuba, Mr. Dihigo, after reminding his
listeners that "the first part of Article WI] says: me aforesaid
procedures, furthermore, shall not be applied to matters already settled. ..' ,
9,997 asks Mr. Belsthde: "Tf they are already settled, what is the problem. ,
Mr. Belalinde replies: "The danger lies in its being reopened, in wanting
to reopen them. If is the exception of res judicata" (emphasis added]98.
2.17 This insistence upon res judicata invites consideration of the frequent
inclusion in arbitration treaties among Latin America countries of clauses
prohibiting the reopening of issues already settled. This is also the
intention of Article VI of the Pact, as Colombia herself recognizes:
Article VI "is meant as a shield against any possible use of the
procedures provided for by the Pact in order to reopen previously settled
disputes"99.
% The text in Spanish reads: "un sistema americano de paz debe no s61o resolver
10s litigios, sino tambien iimpedir que se provoquen".
97 The text in Spanish reads: "La primera park del Articulo dice: 'Tampoca
pod& apliearse dichos procedirn ientos a 10s asuntos ya resueltos.. .' Si estan
resueltos, jcual es el problema?".
98 The text in Spanish reads: "El peligro esth en que se reabra, en que se quiera
reabrir. Es la excepcibn de cosa juzgada". IX International Canference of
American Skates, Proceedings and DocumentdNovena Conferencia
lntemacional Americana, Actm y Docwmeiztos, Vol. IV, Comisibn Tercera,
Sesibn Tercera, p. 136. NWS, Vol. 11, Annex 1 8, see also Excerpts in CPO, Vol.
11, Annex 2 1.
w CPO, Vol. 1, paras. 2.10,2.13 and 2.20; see also Introduction, para. 34.
Nicaragua does not seek a review of the Bhcenas-Esguerra Treaty nor of
any other instrument linked to it, contrary to that which is asserted by
~olornbia'~. Rather, Nicaragua holds: 1) that the aforementioned Treaty,
for a number of reasons as set forth in her ~emorial'", is not a valid
instrument; 2) that the Treaty, even if it were valid, which Nicaragua
does not accept, is affected by a cause of termination as a consequence of
its serious breach by ~olombia'~~; 3) that the Treaty does not include the
cays of Roncador, Serrana, Quitasuefio, Senmilla and Bajo ~uevo"~;
and 4) that a maritime delimitation is not the purpose of the Treaty nor of
the agreement reflected in the Protocol of Exchange of ~atifications'~.
2.19 These differences had not emerged at the date the Pact was concluded. As
Colombia recognizes: "When the Pact of BogoG was concluded in 1948,
there was a considerable number of outstanding disputes between various
American States but none whatsoever hetween Nicaragua and
~olornbia"'~~. However, these differences do exist today, are undeniable,
have been objectively established, have not been settled and the limit that
Article VI imposes to the use of the procedures of the Pact, does not
apply
2.20 Clearly, upon examining the Colombian objection, it is necessary to
distinguish between the different points that Colombia, in a selfinterested
fashion, attempts to present as a single and sole issue.
loo CPO, Val. I, Intrduction, paras. 8, 1 8 and 4. t 0,4.2 1
'*I NM, Vol. I, Chap. [I, Sec. 11, para. 2.102 ff.
Io2 Ihici, Chap. 11, Sec. IV, paras. 2.254 ff.
103 Ibid, Chap. 11, Sec. Ill, paras. 2.140 ff.
'04 Ibid, Chap. 11, Sec. 111. paras. 2.189 ff.
105 CPO, Vol. 1, para. 2.4.
2.21 The first such point is the validity and effectiveness of the 1928 Treaty
and the 1930 Protocol of Exchange of ~atifications'~. Whatever the
objective meaning one may wish to ascribe to the phrase "matters already
settled by arrangements between the parties (asuntos ya resueltos por
arreglos de las parfes)", to which Article VI of the Pact makes
reference107, the imperative that an agreement or treaty be in force at the
date of the conclusion of the Pact is explicit. This excludes from the
scope of the Mide those controversies that relate specifically to the
validity of the "arrangements between the parties" and, as a result, the
legal effect of the 1928 Treaty and the 1930 Protocol of Exchange of
Ratifications.
2.22 Further, the controversy regarding the invalidity of the Treaty emerged
after the Pact entered into force, although some of the events from which
it originates precede that date. The validity of the Treaty was challenged
by the Minister of Foreign Affairs of Nicaragua Mr. Loenzo Guerrero, in
the Notes No 053 and 054, of 7 October 1972Io8 and the controversy only
became apparent on 5 February 1980, once Colombia replied to the
Nicaraguan Declaration of Invalidity of the Treaty of the day beforelm.
2.23 In any case, Nicaragua does not believe that the Court can reach a
conclusion on this point without going into the merits of the case. This in
1[16 See NM, Vol. I, Chap. 11, Sec. I (paras. 2.4-2.101) and I1 (paras. 2.102-
2,138).
lo' See above para. 2.5.
lo' 4LWifh~~, for the moment, going into the validiy of the Bbcenas MenesesEsguerra
Tready, its his~orical rmd legal background, nor the circumsiances
wowdi ding its c~ncIusion, Nicaragua reiterates that the banks located in that
zone are part of her Continental Shel f..." (emphasis added). See the Note in NM,
Vol. 11, Annexes 34 and 35. See also Montiel Argiiello, Alejandro. op. cit., p.
15. NWS, Vol. [I, Annex 2.
'09 See the Colombian Note of 5 February 1980 in CPO, Vol. 11, Annex 19. The
Nicaraguan Declaration of 4 February I980 in NM, Vol. 11, Annex 73.
itself would make it impossible at this juncture to implement any of the
consequences that Article XXXlV of the Pact imposes if and when the
assumptions underlying Article VI are verified.
For Colombia, the 1928 Treaty is not only valid and in force, but its
purpose and provisions must be forcibly interpreted (and apparently there
is no room for discussion) in the sense determined by Colombia and
imposed on Nicaragua. A declaration of lack of jurisdiction by the Court
on the validity of the 1928 Treaty and its complementary instruments
cannot encompass the other points of the controversy, which are not
"matters already settled" and, even less so, those matters that were not
even considered at the time said Treaty and its complementary
instruments were entered into.
2.25 The Colombian claim is unfounded, and the Court should reject an
exegesis of Article VI of the Pact that considers settled those
controversies regarding the scope and interpretation of a treaty that
emerge, as in the present case, afier the conclusion of the Pact, alleging
that said controversies were the object of the agreement between the
parties. If the negotiators of the Pact had intended to exclude from its
scope of application those "new'" controversies that might emerge, and
that are related to matters already settled, they would have expressly
stated such an intention, something they clearly did not do.
2.26 That this is the case is indirectly confirmed by the declaration formulated
by the delegation of the Republic of Argentina to justify her reservations
to the Pact as concerns judicial procedures and arbitration:
"[Tlhe Delegation cannot accept the form in which the
procedures for their application have been regulated, since,
in its opinion, [hey should have beep1 established only for
conlroversies arising in the future and not originating in or
having any relation to causes, situations or facts existing
before the signing of [his instrument7' (emphasis addedjl lo.
2.27 Thus Article VI did not cover these differences, as Argentina would have
liked.
It is obvious that the purpose of Article VI of the Pact cannot have been
to remove from the scope of application of Article XXXI all differences
regarding the validity of a treaty in force. Article XXXI follows literally
the wording of Article 36, paragraph 2, of the Statute of the Court that
includes among the legal disputes that fall under its jurisdiction, "the
existence of any fact which, if established, would constitute a breach of
an international obligation". Apart from this type of dispute it must be
recalled that this Article also admits the jurisdiction of the Court in all
legal disputes concerning "the interpretation of a treaty" or of "any
question of international law".
2.29 Taking the above as a starting point, it is worth noting that the
termination of the Bkenas-Esguem Treaty as a result of a material
breach by Colombia is the outcome of something that occurred long after
the conclusion of the Treaty and of the Pact of Bogotii, namely the
Colombian claim in 1 969 that the 82" Meridian W, agreed in 1 93 0 as the
western limit of the San Andrbs Archipelago. constituted the maritime
border between herself and Nicaragua. According to Nicaragua, this
'I0 Pact of Bogoth. The text in Spanish reads: "la Delegacibn no puede aceptar la
forma en que se han peglamentado los procedimientos para su aplicaci6n, ya que
a su juicio debieron establecerse s6lo para las controversias que se originen en
el futuro y que no tengan su origen ni relacibn afguna con causas, situaciones o
hechos preexistentes a la firma de este instrumento". See Argentina's
reservation to the Pact of Bogoth.
radical shift in the common and authentic interpretation of the Treaty
constitutes a material breach which fulfils the conditions established by
the general principles of international law and Article 60 of the Vienna
Convention on the Law of Treaties, according to which Nicaragua has the
right to terminate the ~reat~l''.
2.30 Issues of international law linked to the interpretation of treaties attract
the other points in the Nicaraguan Application, namely the determination
of the insular components of the San Anrlres Archipelago in the
framework of the 1928 Treaty, and the interpretation of the reference
made to the 82' Meridian W in the 1930 l'rotocol of Exchange of
Ratifications.
2.3 1 These are differences that are very much alive and clearly raise questions
of international law related to the interpretation of Treaties that emerged
after the conclusion of the Pact in 1948. The claim that the Court is
incompetent to hear the case by invoking Article VI of the Pact is
unfounded.
2.32 It is to be recalled that in the past Colombia did not reject out of hand the
holding of negotiations with Nicaragua by alleging that the 1928 Treaty
had settled all controversies. In Chapter I, Section 111, paragraphs 1.67 to
1.79 above, there is a detailed account of the statements made by
Colombian Heads of State and Ministers of Foreign Affairs proving that
Colombia did not consider the issue of the 82" W Meridian as a line of
delimitation finally settled. Furthermore, there were at least two serious
offers of negotiations made by CoIomhia that openly included the
question of maritime delimitation. Colombian Presidents Lopez, in 1977,
and Samper, in 1995, made public announcements that negotiations on
lil NM, Vol. 1, Chap. 11, Sec. 1V (paras. 2.254-2.2611).
63
delimitation in the Caribbean Sea would begin with Nicaragua. That
these negotiations failed to produce results was due to the internal
opposition in Nicaragua in 1977'12 and to the internal opposition in
Colombia in 1995 ' 13.
2.33 The neighbouring countries have recognized the lack of definition of a
maritime limit and the existence of a dispute between Nicaragua and
Colombia. Colombia dares to point to the treaty signed with Costa Rica
on 17 March 1977 as one af the successful results of her maritime
delimitation policy in the Caribbean, asserting, "(1) has been applied
bona $des by the parties since the very moment of its signature""4.
Colombia pretends to ignore the fact that nineteen years after its
signature, in 1996, the Costa Rican Minister of Foreign Affairs, Fernando
Naranjo, stated in public that his countrqf would not ratify that Treaty
whilst Colombia did not settle her differences with ~icara~ua"~.
Colombia does not reveal the fact that in order to make possible the
ratification by Costa Kca of the maritime delimitation treaty concerning
the Pacific, of 6 April 1984, its Article 111 had to be modified, This
Article provided for the simultaneous ratification of both delimitation
Treaties: that of 1977 concerning the Atlantic and that 1984 concerning
the Pacific (see exchange of notes of 29 May 2000)"~.
'I2 NWS, Vol. 31, Annex 20.
NWS, Vol. 11, Annex 2 1.
114 CPO, Vol. I, para. 1.6. The text of the treaty in CPO, Vol. 11, Annex I, c. ' l5 NWS, Vol. 11, Annex 5. Ei Especiador, 15 de rnarzo de 1996, p. 9-A. Later
on, in the Final Document: of the Binational Commission Nicaragua-Costa Rica
(May 1 997) Minister Namjo reiterated "his Government's fim commitment
not to act about its boundary claim in the Northern Caribtean until the
Governments of Nicaragua and Colombia reach an agreement that will allow
them to overcome the differences originated between those two friendly
nations" See NWS, Vol. 11 Annex 26.
'I6 NWS, WOI. TI, Annex 27.
2.34 The controversy regarding the meaning of "San Andrds ~rckipela~o""~
to the effect of considering the Cays of Roncador, Serrana, Quitasuefia,
Serranilla, Bajo Nuevo, Cayos de Albuquerque, Este or Sudeste to be
included in the archipelago, only emerged in the late 1960s, once
Colombia entered upon negotiations with the United States with the aim
of appropriating these territories"'. These negotiations became pressing
due to the unexpected Colombian doctrine of claiming Meridian 82" W to
be the maritime border with Nicaragua, thus breaking with the peaceful
consideration for four decades of this Meridian as a line for purposes of
attribution of title to islands.
2.35 In the 1928 Treaty, whose validity Nicaragua challenges, she recognized
Colombian sovereignty over the Archipelago of' San Andrks to the east of
Meridian 82' W or, expressed in other terms, that there were no islands
belonging to the Archipelago to the west of the Meridian On the other
hand, this did not imply acceplance that all islands in the Caribbean to the
east of Meridian 82') form part of the Archipelago and are presumed to be
~olombian"~. It is worth reading Article 1 of the Treaty, first paragraph,
with care:
"...the Republic of Nicaragua recognizes the full and entire
sovereignty of the Republic of Colombia over the islands of
San Andrks, Providencia, Santa Catalina, and all the other
islands, isleis and cays that form part of the said
Archipekgo of San A ndris" (emphasis r~dded).
117 See above paras. 1.26- 1.45.
"%M. Vol. 1, Chap. 11, Sec. 111, A (paras. 2.140-2.1 88); and Vol. 11, Annexes
31,34 and 35. ' " 'bid, paras. 2.249 ff.
2.36 The geographic and historical description presented by Colombia of the
San AnWs Archipelago today120 is not canonical nor was it relevant
yesterday, as demonstrated in the Memorial of ~icaragua'~'.
2.37 It is revealing that when, in the late spring of 1969, Colombia objected to
the concessions for oil exploration made by Nicaragua to the east of
Meridian 82' W, the Colombian diplomatic note of 4 June 1969 expressly
distinguished between the concession of the "Quitasuefio block" and the
other concessions, reserving for the latter the invocation of Meridian 82'
W as the maritime border'22.
2.38 The delimitation of maritime areas between Nicaragua and Colombia is
the object of a dispute between the Parties that has not been resolved by
any treaty'23 and it very clearly falls under the jurisdiction of the Court,
in accordance with Article XXXZ of the Pact of Bogoti. Colombia
claimed Meridian 82" W as a maritime border for the first time in Note
No. 092 of 4 June 1969, when she attempted to reserve these supposed
rights Yis-A-vis the Nicaraguan exercise of jurisdiction over the
continental shelf to the east of the ~eridian'~~. To this Note Nicaragua
gave an immediate and full answer in Note No. 0021, on 12 June of that
same year"5.
2.39 In her Preliminary Objecfium of 2 1 July 2003 Colombia is unable to
provide any proof whatsoever of any prior claim, or even of her dogmatic
120 CPO, Vol. I, paras. 1.8 and 2.26.
121 NM, Vol. I, paras. 2.141 ff., 2.179 ff.
"2 See this Note in NM, Vol. 11, Annex 28; excerpts in CPO, Vol. 11, Annex 1 8.
123 NM, Vol. 1, Chap. 11, Sec. 111, B, paras. 2.189-2.253.
124 NM, Vol. I, para. 2.203 ff. See the Note No. 092 of Colombia, of 4 June
1969, in NM, Vol. 11, Annex 28; excerpts of this Note in GPO, Vol, IT, Annex
18, Colombia insist4 on this point in a Note of 22 September 1969 (see the
Note in NM, Vol. II, Annex 30).
'I5 NM, Vol. I, paras. 2.2 12 K Text of the Note NM, Val. [I, Annex 29.
affirmation that since the 1928 to 1930 agreemtnts she bas always acted
on the basis that this was the agreed maritime border'".
2.40 The wearisome insistence upon linking the Sandinista Government,
which came to power in 1979, to the objecticm against the "maritime
settlement" that was supposedly agreed upon in 1930'~~ does not coincide
with the fact that it was Nicaragua, not Colombia, who upon exercising
her jurisdiction over the continental shelf to the east of Meridian 82' in
the nineteen sixties, awakened Colombian greed.
2.41 If the Court considers, as it indeed should, that the Protocol of Exchange
of Ratifications of 1930 has nothing to do with the establishment of a
maritime dividing line, then Article VI of the Pact is lost in irrelevance.
Obviously this is not a matter resolved by a Treaty in force.
It must be pointed out in particular that the Colombian discnurse
regarding the meaning of Meridian 82" W as a maritime dividing line is
as grandiloquent as it is empty, and mmelp reflects a circular and
repetitive rhctoric belied in advance by the Memorid of Nicaragua, in
which the rules regarding the interpretation of treaties supported by the
jurisprudence of the Court have been correctly applied'28. At the end of
the day the Colombian allegations are reduced to an allusion made by a
Nicaraguan senator to "the dividing line of the waters in dispute (la Einea
divisoria de spas en disputa)" in the parliamentary debate ratifying the
'26 CPO, VOI. I, Introduction, paras. 15, 17, 40, 46. and paras. 1.29, 1.30, 1.34,
1.89, 1.91,2.56,4.7,4.8. '" 7bid paras. 1.93 ff.
12' NM, Vol. 1, paras. 2.225 ff.
1928 ~reat~l~~ and the mention of Meridian 82" in Colombian maps
starting in 193 1 13'.
2 '43 One sentence uttered by a senator in the throes of a parliamentary debate
lacks the weight to alter the grammatical, logical and systematic
interpretation of the Protocol of Exchange of Ratifications, or even to
alter the sense of the travaux priparatoires that Colombia intends to
exploit'3'. It is absolutely false that from the travaux -which, in any case,
are a complementary means of interpretation132- it can be inferred that the
Nicaraguan intention upon proposing a provision regarding Meridian 82'
W was "to define a limit in the seas between the jurisdictions of both
co~ntries"""~. The very declaration by the Minister of Foreign Affairs in
the process of authorizing the 1928 Treaty in the Colombian Senate,
which Colombia quotes, reveals most clearly how far removed the
Colombian authorities were from the idea of drawing a maritime
boundary with Nicaragua. "This arrangemenf", said the Minister,
" . . .forever consolidaies the Republic 's siduation in /he
Archiplugu of Sun Andris and Pr.ovidencia, erasing any
claim to the conbary, and perpetually recognizing the
sovereignty and right of full domain of our country over
that important section of the ~e~ublic"'~~.
129 CPO, Vol. I, paras. 1.61,2.37,2.48,2.56,2.63.
I3O Ihid, Introduction, paras. 46; 1.92, 1 .I 15,2.47,2.56,4.8. "' See, for instance, ibid, para. 2.56.
'j2 Article 32 of the Vienna Convention on the Law of Treaties, of 23 May
1969. The Convention was ratified by Cdombia on 1 0 April 1985. Nicaragua is
not a party. However, she accepts that, with respect to the interpretation of
treaties (Articles 31 and 32), the Convention codifies existing rules of
customary international law (See NM, Vol. 1, para. 2.3).
GPO, VOI. I, paras. 2.49,2.50,2.53,2.57.
134 Ibid para. 1.4 7.
2.44 In order to arrive at an authentic interpretation of the Treaty, an analysis
must be made of all parliamentary records and public statements of the
Nicaraguan Executive Branch regarding the inclusion of a reference to
Meridian 82' W, as well as the negotiation with the Colombian Minister
in Managua, which Colombia herself cites in her Preliminary
~bjecrions'~~ and partially records in the annexes'36, as also the texts of
the Decree authorizing the ratification of the Treaty that emanated from
the Nicaraguan ~on~ress"~ and the text of the 1930 Protocol of
Exchange of ~atifications'". All of these confilm that its purpose was to
establish "the geographical boundary between the archipelagos in dispute
(el limite geogrdjko enwe 20s archipiilagos en di~~ura)"'~~, and not a
delimitation of maritime areas. A delimitation of the high seas was
something which was not imagined by any of' them, and which in any
case would have presupposed a qualitative alteration of the Treaty's
purpose'4o. As Colombia cannot find documents to support her assertions
she has no qualms in using arguments to distort phrases or statements that
have another meaning'4'.
135 CPO, Vol. I, paras. 1.52 ff.
'36 Ibid, Vol. 11, Annexes 7-9, which reproduce excerpts of the Records of the
Sessions XLVIII (Annex 7) and XLIX (Annex 8) of tlie Chamber of the Senate
(4 and 5 March 19301, and of the Session LVlII (Annex 9) of the Chamber of
Deputies (1 April 1930) of the Nicaraguan Congress. Texts in Spanish in La
Gacefa, Diario OJicial, 1 May 1930, No. 94, pp. 746 ff., 7 May 1930, No. 98,
pp. 777 ff., and 20 August 1930, No. 182, pp. 1457 ff. Excerpts from the
Records of the Sessions of the Chamber of the Senate are also to be found in
NM, Vol. TI, Annex 80. Nicaragua reproduces now the records of the mentioned
sessions of the Chambers in N WS, Vol. I I, Annexes 24a, 24b, 25.
'j7 CPO, Vol. 1, para. 1.67, Vol. 11, Annex 10.
Jbid, para. 1.69. See the Instrument of Ratification and Protocol of Exchange
of Ratifications of the Barcenas-Esguewa Treaty in NM, Vol. 11, Annex 19.
13' CPO. YO!. I, para. 1.67; Vol. 11, Annex 10.
14%~, Vol. I, paras. 2.19 1 ff.
141 See, for example, GPO, Vol. I, Introduction, pants. 38 and 40.
2.45 The reference to Meridian 82' came up in the debate held in the
Nicaraguan Senate due to the perception that Colombia might later claim
that a11 islands not recognised eo promine as being part of Nicaragua (the
Mangles Tslands) form part of the Archipelago of San And&. At that
time, in the words of senator Dernetrio Cuadra "it is urgent for us to
clarify our rights over the Mosquito tenitory and over the islands granted
by the Bryan-Cborro Treaty as belonging to Nicaragua for the
construction of the anal'"^^. This concern was justified because the
Mangles Islands had been claimed by Colombia as part of the
Archipelago prior to the Bbcenas-Esguerra Treaty. Even now, in her
Preliminary Objections, Colombia's references to the Archipelago of San
Andrks sometimes do and sometimes do not include references to the
Mangles Islands, depending upon the perspective she wishes to
highlight1".
2.46 The Colombian statement that it was the Nicaraguan Senate Study
Committee that had the idea that to put an end to the dispute with
Colombia, it was necessary to define the borders between the two
countries, as regards both land and sea'44, lacks any basis in reality. The
literal wording of the agreement reached by the Committee, and which
Colombia records in the Preliminary ~bjecrions'~' (ad reproduces
partially in an annex'46) is very explicit. The Committee notes that "The
Treaty brings to an end the question pending between both States
regarding the Archipelago of San And& and Providencia and the
Nicaraguan Mosquitia", and recommends ratification "in the
142 CPO, Vol. I, para. 1 -64 and Vol. 11, Annex 8. '" ]bid, Introduction, paras. 8; and paras. 1.1, 1.17, 1.19,1.23, 1.24, 1.26, 1.29-
1.32, 1.34, 1.35, 1.38, 1.71,2.26.
'M Ibid, paras. 2.44 and 1.1 14.
145 Ibid, para. 1.59.
146 Ibid, Vol. 11, Annex 7.
understanding that the Archipelago of San And& mentioned in the first
clause of the Treaty does not extend west of Greenwich Meridian 82 O..."
The Minister of Foreign Affairs, Manuel Cordero Reyes, is clear in his
explanations to the Senate: '?the explanation does not reform the Treaty,
because it only intends to indicate a limit betmeen the archipelagos that
9,147 have been reason for the dispute ... .
2.47 If, as Colombia maintains, "the determination of the 82" W Meridian as a
maritime limit was a fundamental element of rhe then it
becomes inexplicable that the Colombian Congress did not hear of it.
Constitutional and parliamentary practice in Colombia proves that
Congress, as a matter of law, compulsorily intervened whenever an
already authorized treaty was the object of modifications by the other
Party -
2.48 This was the case, for example, with the treaty signed by Colombia and
the United States an 6 April 1914 "for purposes of solving their
differences stemming from events occurring on the Isthmus of Panama in
November 1903". Approved in Colombia by Law 14 of 9 June of that
same year, the treaty was sent back to the Colo~nbian Congress following
a resolution of 20 April 192 1 in which the United States Senate agreed to
and recommended the ratification of the treaty, though with a number of
modifications. The Colombian Congress approved the modified treaty
through Law 56 of 22 December 192 1, and the Protocol OF Exchange of
14' NM, Val. 11, Annex 80 and NWS, Vol. 11, Annex 24b (Minutes of the
Sessions of the Chamber of the Senate of Nicaragua, 4 and 5 March 1930. Text
in Spanish: "la aclaracibn no reforma el tratado; pues sblo tenia por objeto
seiialar un lirnite entre 10s archipiklagos que habian sido motivo de la
disputa ...". Colombia translates as follows: "'the clarification did not revise the
Treaty, as its only purpose was to establish a boundary between the archipelagos
which had been the reason for the dispute ..." (CPO, Vol. I I, Annex 8).
148 Ibid, para. 2.47.
Ratifications included a declaration of conformity with the United States'
demand of excluding a free right of passage for Colombian troops,
materials and warships through the Panama Canal in case of war with any
other country. This was accepted by the Colombian Senate, in the
understanding ("en la ir~teli~encia")'~' that Colombia would herself not
be placed in a disadvantageous situation regarding any other nation in
similar circumstance^'^^.
2.49 From1928 to1930 there were no "waters in dispute", and therefore there
was no reason to conclude, as Colombia now claims, that maritime
delimitation was necessary to satisfy the aim of the treaty, which was to
settle all territorial disputes then pending between the parties151.
2.50 The Explanatoty Preamble (Exposici6n de Motivos) of the bill sent to the
Colombian Senate on September 1928 submits for the Senate's
consideration "a treaty concerning territorial issues (tratadu sobre
cuestiones territoriales)" between Colombia and Nicaragua, in the spirit
of "putting an end to the territorial dispute pending between them boner
tkrmino a1 litigio territorial entre eNos pendimre)"' ", an expression
14' In passing, "this understanding" added by the Colombian Senate on
ratification was not considered to have altered the object of the treaty and the
United States' Government saw no need for further action. Equally, the
"understanding" added by the Nicaraguan Senate upon ratiQing the 1928
Treaty, did not alter its object and no further action was taken by the Colombian
Government.
150 See in G. Cavalier, Tratados de Colombia, Vol. 2, 1911-1936, Kelly, Bogoth,
1984, pp. 85 K
15' CPO, Vol. I, para. 2.41.
152 RepGblica de Colombia, Historia de las byes, Vol. XI, 1928, Legislature.
Edition ordered by the Chamber of Representatives and edited by its Secretary
Fernando Restrepo Bricefio, Bogotl lrnprenta National, 1930, p. 523. NWS,
Vol. 11, Annex 1.
taken from the preamble of the ~reaty'" itself and which is reiterated in
Law 93 of 17 November 1928 passed by the Colombian ~on~ress'~~.
2.51 What the dispute consisted of and what its solution was is reflected in
Article I of the Treaty and was subsequently paraphrased in successive
documents that formalized the parliamentary procedures leading to its
ratification by Colombia. This arrangement, it is stated in the Explanatory
Preamble of the aforementioned bill,
'"..definitively consolidates the status of the RepubIic in
the Archipelago of San Andr6 and Providencia ... In
exchange, Nicaraguan sovereignty in the Mosquitia . . . and
the Mangles Islands.. . is re~ognised"'~~.
2.52 The Senate Foreign Affairs Committee Report of 18 October 1928
expresses itself in very similar terms: "This Pact consolidates in
perpetuity our sovereign dominion over the Archipelago'bnd 'buts an
99 156 end to a prolonged md annoying dispute . Likewise, the report issued
by the equivalent Committee in the Chamber of Representatives declares
that,
"by means of this Treaty the Government of the Republic
has wished to bring to a fiendly conclusion the old dispute
between the High Contracting parlies regarding the
sovereignty of the Mosquito Coast and the Mangles
'5"~~, Vol. 11, Annex 1 .a.
154 Repdblica de Colombia, Hisdoria de 1a.s Leyes, Vol. XI, 1 928 Legislature p.
534. See N WS, Vol. 11, Annex 1.
155 bid, p. 523. See N WS, Vol. IT Annex 1.
lSb Ibid, p. 530. SeeNWS, Vol. 11, Annex 1.
Islands, as well as the Nicaraguan pretensions over the
Archipelago of San Andrds and ~ovidence".'~~.
2.53 Although Colombia dares make reference to "appurtenant maritime
areas" of the islands, cays and banks of the Archipelago, as well as of the
cays from Albuquerque to Serranilla and Bajo ~uevo~~~, Colombian
legislation -as well as international law- did not at the time recognize the
notion of an archipelago as a legally relevant concept for areas of
maritime sovereignty and jurisdiction. The same is true for maritime
areas that have only developed over the past fifty years.
2.54 On this same point Colombia betrays herself when in the Preliminary
Objections she recognizes that "no doubt, in 1930, Meridian 82" W could
not be understood as a maritime boundary in the modern sense of the
However, Colombia now claims that in 1930 a maritime
boundary on the high seas was agreed upon "governing whatever changes
there might have been since then in the law of the sea"'@. Apparently the
parties were unwittingly speculators who invested in the futures market.
Colombia not only transforms the Bhcenas-Esguerra Treaty into a
maritime delimitation treaty, but also pretends to interpret it with the
contemporaneous International Law of the Sea. It is clear that at the very
least there is a dispute between the Parties involving a conflict of
interpretation of the Bhenas-Esguerra Treaty and its subsequent
instruments.
t 57 Reptblica de Colombia, Historia de Jm Leyes, Voi, XI, 1928 Legislature, p.
531. SeeNWS,Vol. I1,Annex 1.
158 CPO, Vol. I, paras. 2.26 and 1 -89.
Ibid, para. 2.53.
160 Ibid, para. 2.55.
2.55 The fact that Colombian maps starting in 193 1 mention Meridian 82' W
is not of itself proof that the Meridian was being conceived as a maritime
boundary and there is no legend or other indication in the maps to that
effect. By logic, if the boundary of the archipelago for purposes of
attribution of sovereignty over the islands and cays were at Meridian 82',
it would have been opportune to indicate this in the maps. As this is the
extent of the information provided in these maps, it is perfectly
understandable that Nicaragua issued no protest in relation to a fact that
was in accordance with the stipulations of the freaty.
2.56 It must be stressed that the convention;il Colombian maritime
delimitation policy, as can be deduced from the copious data and annexes
she pmffers16', began in the 1970s, in the wake of an evolution in the law
of the sea characterized by the expansion of sovereignty and jurisdiction
of coastal states. According to the sudden Colombian thesis'62, the 1928
Treaty with Nicaragua was a precocious and solitary treaty that for forty
years silently provided, in a dormant state, for a maritime delimitation.
However, the Barcenas-Esguerra Treaty was termed a "treaty concerning
territorial matters (irutado so bre cuestione.~ fe~ritoriales) at issue
between Colombia and Nicaragua". Even eo rlornine "boundary treaties
(tratados de linzites)" contemporary with the 1928 Barcenas-Esguerra,
such as, for example, the Colombia-Panama Treaty of 20 August 1 924163,
had to be completed half a century later with the delimitation of maritime
spaces'64.
16' CPO, Vol. I, para. 1 .S and in Vol. 11, Annex 1.
1 62 Ibid, paras. 2.60 and 2.6 1 . 163 See in G. Cavalier, op. cil., pp. 102 ff.
'64 Treaty on the Delimitation of Marine and Submarine Areas and Related
Matters between the Republic of Colombia and the Republic of Panama, 20
November 1976 (CPO, Vol. 11, Annex I, b).
The 1928 Treaty is not the finger with which Colombia can cover the
blazing sun of controversy that separates the Parties. The reason why
Nicaragua is now before the Court is precisely due to the failure of her
various efforts to reach an agreement through bilateral negotiations. The
Colombian claim that the Court should declare the controversy ended is
equivalent to inviting it to ignore extant controversies that endanger
peace. This would be a perverse resuk considering that the objective,
mentioned on several occasions in the Pact, was that there be "a
procedure of a mandatory nature, that concludes with a final resolution,
in such a way that no controversy can be left without resolution within a
reasonable time period". This is an option for which the participants at
the Conference voted unanimously'65 and which is in all aspects in
accordance with the provisions of the Charter of the Organization of
American States, which in its Article 26 (current Article 27) provided
that,
"A special Treaty (the Pact) will establish adequate
procedures for the pacific settlement of disputes and will
determine the appropriate means for their application, so
that no dispute between American States shall fail of
definitive settlement within a reasonable period"'66.
See Infurme de la Subcomisidn encargada deJ estudio de una fhmula
fundamenal sobre el Sistema Interumericano de Paz (CB-3 8 1 tC.11 I-Sub A-7),
1X International Conference of American States, Proceedings and Documents J
Novena Conferencia lnternacional Americana, Actas y Dommbos, Vol. IV,
MRE, Bogotk 1953, Comisibn Tercera, Cuarta Sesibn, pp. 79-80; 187. See
WWS, Vol. 11, Annex 1 8.
16' The text in Spanish reads: "Un Tratada especial (el Pacto) establecek 10s
medios adecuados para resolver las mntroversias y determind los
procedimientos pertinentes a cada uno de 10s medios paclficos, en forma de no
dejar q ue n inguna con troversia que surja entre los Estados Americanos pueda
quedar sin solucibn definitiva dentro de un plazo razonable".
2.58 In a report on the outcome of the Conference presented to the Council of
the Organization of American States by the Secretary-General on 3
November 1948 a reminder is issued that no system of peaceful
settlement of disputes that does not include a final mandatory stage, will,
in the future, be in harmony with the will of' the American States as
expressed in the In a judgment handed down on 20 Decemkr
1 988 (Border and Transbo~ader Armed Acbtions. Jivrisdiction and
Admissibility3 Nicaragua v. Honduras) the Court observed that it was
"quite clear from the Pact that the purpose of the American States in
drafting it was to reinforce their mutual commitments with regard to
judicial ~ettlernent"'~~.
2.59 It is interesting to recall that the Pact was called "Pact of ~o~otk'''~~ as a
consequence of a Nicaraguan motion put forth at the conclusion of the IX
International Conference of American States, intended to honour the role
played by the host country'70. At this event, in effect, Colombia
distinguished herself by the special vigour with which she defended the
mandatory judicial procedure as the definitive way in which to settle
contr~versies'~'.
2.60 To affirm the principle of definitive solution of controversies, only to
immediately hamper it by means of an abusive interpretation of Article
1 67 Ninth International Conference of American States. Annals of the
Ovganizadion of Anlerican States, Washington I1.C. Department of Public
Information, Pan-American Union, 1949-1 958, Vo1. 1, N. 2, 1949 p. 48. See
NWS, Val. 11, Annex 19.
I. C.J. Reports 1988, p. 90, para. 46.
Article LX of the American Treaty on Pacific Settlement ("Pact of BogotP).
IX International Conference of American States, Proceedings and
Documents/Novena Conferencia t nternac ional Americana, Actas y Documentos,
vol. IV, MRE, Bogoth, 1953, Comisi6n Tercera, Cuarta Sesion, pp. 204 ff. See
NWS, Vol. II, Annex 18, ''' Ninth International Conference of American States. op. cil. p. 50. See NWS,
Vol. 11, Annex 19.
VT runs counter to the object and purpose of the Pact. The Pact, which is
at the service of a peaceful and final solution of controversies, should
therefore not be interpreted in such a way that controversies that do not
concern the review of treaties or challenges to res judicatu remain
unsettled. Furthermore, it must be recalled what was stated by the
Peruvian delegate (who proposed what became Article VI of the Pact of
Bogotii) in relation to the reference in this Article to "agreements or
treaties in force". He indicated that most treaties provided their own
mechanisms for settling disputes arising from the application or
interpretation and these would not be affected by the Pact. Clearly the
1928 Treaty does not fall into this category.
2,61 As was opportunely pointed out by the Secretary-General, quoted earlier
in the Report on the Results of the Bogoti Conference presented to the
Council of the Organization of American States:
"In the history of the law between nations the compulsory
solution of controversies has been closely linked to the
concept of sovereignty, for a simple reason, which is, the
decision plot to resolve a dispute by pacific means always
leaves open the possibility of a resort to force. Weak
nations have always championed arbitration and juridical
settlement. The strong ones have hesitated to take a step
that would amount to divesting themselves before the
judges and the courts of all the prerogatives of their
physical power, descending to the level of another nation in
the presentation of the facts of the case and the juridical
exposition of the circumstances that gave rise to the
2.62 The Court must in any event rqiect the objections formulated by
Colombia regarding its jurisdiction, but what it cannot in any case do, is
to admit them at this preliminary stage of the proceedings. It is difficult
to find a better example of an objection that "does not possess, in the
circumstances of the case, an exclusively preliminary ~haracter"'~~. To
pronounce itself in the terms required by Colombia, the Court must first
consider the case on its merits, since the Court could only declare the
controversy ended by deciding the merits of the case.
Although Colombia couches her reasoning in respect of the Pact of
Bogoti in terms of a preliminary objection, what she really is seeking to
achieve by asking the Court to uphold this objection is lo rule in her
favour on the merits of the matters Nicaragua has submitted to the Court.
This concerns the disputes over the validity and termination of the 1928
Treaty and the interpretation of its provisions. In this connection, it is
appropriate to quote an observation of the Court in its Judgment on
preliminary objections in the Lockerhie cases:
"5Q.The Court must therefore ascertain whether, in the
present case, the United Kingdom's objection based on the
Security Council decisions contains 'both preliminary
aspects and other aspects relating to the merits' or not.
-- - -
Ninth International Conference of American States. op. cit. p. 47. See NWS,
Vol, 11. Annex 19.
Rules of Court, Art. 79, para. 9. See Lockerbie Case (Prel. Objs.), I. C.J
Reports 1998, pp. 26-29, paras. 46-5 1 ; Cameroon v. Nigeria Case (Prel. Ohjs.)
1.C.J Reporis 1998, pp. 322-325, paras. 1 12-1 17.
That objection relates to many aspects of the dispute. By
maintaining that Security Council resolutions 748 (1992)
and 883 (1993) have rendered the Libyan claims without
object, the United Kingdom seeks to obtain fiom the Court
a decision not to proceed to judgment an the merits, which
would immediately terminate the proceedings. However, by
requesting such a decision, the United Kingdom 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 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 hand, 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 the proceedings, not to proceed to judgment on the
merits, but would constitute, in many respects, the very
subject-matter of that decision. The objection raised by the
United Kingdom on that point has the character of a
defense an the merits. In the view of the Court, this
objection does much more than 'touchIing] upon subjects
belonging to the merits of the case' (Certain German
Interests in Polish Upper Silesia, Jurisdiction, Judgment
No. 6, 1925, P.C.LJ, Series A, No, 6, p. 15); it is
'inextricably interwoven' with the merits (Barcelona
Tmcrion, Lighl and Power Compuny, Limited Preliminav
Objections, Judgment, I. C. J Reports 196.4, p. 46).
The Court notes furthermore that the United Kingdom itself
broached many substantive problems in its written and oral
pleadings in this phase, and pointed out that those problems
had been the subject of exhaustive exchanges before the
Court; the United Kingdom Government thus implicitly
acknowledged that the objection raised and the merits of
the case were 'closely interconnected' (Barcelona Traction,
Lighi and Power Company, Limited, Preliminary
Objections, Judgment, I.C.J Reports 1!364, p. 46, and the
reference to Pajzs, Cshky, Esterhe, Order of 23 May
1936, P.C.I.JJ Series A/BJ No. 66, p. 9).
If the Court were to rule on that objection, it would
therefore inevitably be ruling on the merits; in relying on
the provisions of Article 79 of the Rules of Court, the
Respondent has set in motion a procedure the precise aim
of which Is to prevent the Court from so doing.
The Court concludes from the foregoing that the objection
of the United Kingdom according to which the Libyan
claims have been rendered without object does not have 'an
exclusively preliminary character* within the meaning of
that Artic~e"'~~.
1 74 I.C.J. Reports 1998, pp. 28-29.
2.64 That the Colombian exception is intimately bound to the merits is
confirmed by the very contents of the Preliminny Objections of
Colombia of 21 July 2003. Although the Rules of Court declare
rigorously that the presentation of facts and law in the various stages of
the proceedings regarding an objection '"shall be confined to those
matters that are relevant to the objecti~n"'~~, Colombia devotes more than
half of her document on Preliminary Objecfh responding to substantial
aspects put forth in the Memorial of ~icara~ua"~. Herpurpose appears
obvious: to anticipate and trivialize the debate on the merits by way of
her Preliminary Objections.
2.65 Under the title "Background of the Case", Chapter I of the Preliminary
Objections, Colombia presents a heap of dogmatic affirmations lacking
all documentary basis or proof'n. Much the same can be said for Sections
IV and VI of the Chapter titled "In accordance with ArticIes VI and
XXXIV of the Pact of Bogoth the Court is 'without jurisdiction to hear
the controversy ' and therefore shall declare the 'controversy ... ended5 ".
Nicaragua manifests her most absolute reservation regarding Colombia's
B~rmations on the merits of the case and stands by that which she stated
and proved in her Memoujal.
2.66 According to Colombia, once the Court declares the controversy ended
on the basis of Articles VI and XXXTV of the Pact of BogoG, the
declarations of acceptance of the Court's jurisdiction based on Article 36,
paragraph 2 of the Statute, made by the ~arties"~, and which Nicaragua
dso invoked in her ~~~licationl'~, become ineffective.
175 Rules of COW, Art. 79, para. 7. "' CPO, VOI. I, Chap. 1, pp. 23-72.
177 Ibid, paras. 1.26, fn. 21, which fails to mention the source; 1.43, 1.83, 1.91.
17' CPO, Vol. I., Introduction, paras. 50,51; 3.2-3.1 1,3.50,4.15.
178 Application of Mcaragua, para. 1 ; N M, Vol. I, para. 3.
2.67 However, it cannot be admitted that the fact that the Pact "governs" the
jurisdiction, destroys the value of the Optional Clause declarations as an
independent basis of jurisdiction. The declarations have an intrinsic value
in and of themselves, and their operation is not predetermined by other
titles of jurisdiction. This was stated by the Court itself in the case
concerning Bo~rder and Transborder Armed Actions (Njcarapa v.
Hondurus), Jurisdiction und Admissibility, Judgment, I. C.J. Reports
1988, page 69, in which the Court stated that the Pact's provisions were
independent of the declarations ex Article 36, paragraph 2, of the
statutebs0, an autonomy that, logically, also runs the other wayi8'. The
parties to the Pact of Bogota have neither explicitly nor implicitly agreed
upon anything different. According to the Pact, ~f the situation foreseen in
Article VI should occur, the Court in declaring itself without jurisdiction
is to declare the controversy ended (Article XEUV), but the latter must
be understood within the framework of the Pact itself: the controversy is
ended onIy as concerns the possibility of invoking the Pact as a basis of
jurisdiction.
180 6C.J Repurrs 1988, pp. 84-88, paras. 32-41, in particular in paras. 36 and 41.
See also S. Rosenne, 1997,II, pp. 670-677.
18' See below, paras. 4.15-4. I 7.
83
CHAPTER 111
PRELIMINARY ORJF,CTIONS RELATED TO THE OPTIONAL
CLAUSE
3.2 In relation to the Optional Clause jurisdiction Colombia presents several
preliminary objections. The presentation of these objections is flawed
and a certain amount of constrtrction is necessary.
I. First Preliminary Objection
Colombia contends that by reason of the Dispute between
Nicaragua and Colombia having been settled and ended,
there is no dispute before the Court to which jurisdictian under
the Optional Clause Declarations could attach
32 This objection rests upon the premise that the Pact of Bogotil provisions
dominate in all respects and for all purposes. This premise has been
challenged in Chapter I1 above. It has also ken pointed out that the
wording of Article VI of the Pact of Bogota involves the determination of
issues which are not t11emselves preliminary in character.
3.3 This objection also involves a similarly awkward reading of Article
XXXIV of the Pact of Bogota.
IT. Second Preliminary 0 bjection
There Is No Jurisdiction Under The Optional Clause Because
Colombia's Declaration Was Not in Force on The Date of The
Filing of Nicaragua's AppIication
3.4 Colombia purported to terminate her Declaration dated 30 October 1937
'with immediate effect' on 5 December 2001. The Declaration is as
follows:
"The Republic of Colombia recognizes as compulsory, ipso
facto and without special agreement, on condition of
reciprocity, in relation to any other State accepting the
same obligation, the jurisdiction of the Permanent Court of
International Justice, in accordance with Article 36 of the
Statute.
The present declaration applies only to disputes arising out
of facts subsequent to 6 January f 932."
3.5 The Declaration has no temporal clause and Colombia asserts that such a
declaration may be terminated without notice: Preliminary Objectiom,
Volume I, pages 1 14 to 1 15.
3.6 The jurisprudence of the Court decisively contradicts this assertion. In its
Judgment in the Nicaragua case the Court made the following
determination:
"The maintenance in force of the United States Declaration
for six months after notice of termination is a positive
undertaking, flowing from the time-limit clause, but the
Nicaraguan Declaration contains no express restriction at
all. It is therefore clear that the United States is not in a
position to invoke reciprocity as a basis for its action in
making the 1984 notification which purported to modify
the content of the 1946 Declaration. On the contrary it is
Nicaragua that can invoke the six months' notice against
the United States- not of course on the basis of reciprocity
but because it is an undertaking which is an integral part of
the instrument that contains it.
63. Moreover, since the United States purported to act on 6
April 1984 in such a way as to modify i~s 1946 Declaration
with sufficiently immediate effect to bar an Application
fifed on 9 April 1984, it would be necessary, if reciprocity
is to be relied on, for the Nicaraguan Declaration to be
terminable with immediate effect. But the right qf
immediate terwinnfion of declarations with indeflplite
duration is far +from established It appears from the
requirements of good faith that they should be treated, by
unnlogy, according to the law qf treaties, which requires a
reasonable time for wirhdrmd porn or termination of
treaties [hat contain no provision regarding the duration of
rheir validity. Since Nicaragua has in fact not manifested
any intention to withdraw its own declaration, the question
of what reasonabIe period of notice would legally be
required does not need to be further examined: it need only
be observed that from 6 to 9 April would not amount to a
'reasonable time'." (emphasis
182 I; C.J Reports 1984, pp. 4 1 9-420.
3.7 The decision of the Court was eleven votes to five (paragraph 1 (a) of the
Dispositif). Of the five negative votes only three Judges disagreed with
the reasoning set out in the above passage: see the Dissenting Opinions
of Judges Oda, Jennings and Schwebel.
3.8 The jurisprudence of the Court has codrmed the requirement of a
reasonable time for withdrawal from or termination of treaties which
contain no provision regarding duration. Thus in the Preliminary
Objections phase of the Cameroon v Nigeria case, the Court referred to
this reasoning in these passages:
"'30. The Court notes that the rkgime for depositing and
transmitting declarations of acceptance of compulsory
jurisdiction laid down in Article 36, paragraph 4, of the
Statute of the Court is distinct from the regime envisaged
for treaties by the Vienna Convention. Thus the provisions
of that Convention may only be applied to declarations by
analogy (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v United Stares of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Repurts
1984, p. 420, para 63).
32. Nigeria maintains however that, in any event,
Cameroon could not fife an application before the Court
without allowing a reasonable period to elapse 'as would
. . . have enabled the Secretary-General to take the action
required of hi in relation to Cameroon's Declaration of 3
March 1994*. Compliance with that time period is
essential, the more so because, according to Nigeria, the
Court, in its judgment of 26 November 1984 in the case
concerning Militmy and Paramilitary Activities in und
againsr Nicaragua, required a reasonable time for the
withdrawal of declarations under the Op1 ional Clause.
33, Tl~e Court, in the above Judgment, noted that the
United States had, in 1984, deposited with the SecretaryGeneral,
threc days before the filing of Nicaragua's
Application, a notification limiting the scope of its
Declaration of acceptance of the Court" jurisdiction. 'fie
Court noted that the Declaration contained a clause
requiring six months' notice of termination. It considered
that that condition shouId be complied with in cases of
either termination or modification of the Declaration, and
concluded that the 1984 notification of modification could
not, with immediate effect, override the obligation entered
into by the United States beforehand (Milirary and
Parurnili fury Activities in and againsf Nicaragua
(Nicaragua v Uniled States of A mer icli), Jurisdic finn and
Admissibility, I. C.J. Reports 1984, p. 42 1, para. 65).
The Court noted, moreover, in relation to Nicaragua's
Declaration upon which the United States ws relying on
the grounds of reciprocity, that, in any event,
'the right of immediate termination of declarations
with indefinite duration is far from established. It
appears from the requirements of good faith that
they should be treated, by analogy, according to the
law of treaties, which required a reasonable time for
withdrawal from or termination of treaties that
contain no provision regarding the duration of their
validity' (ibid, p. 420, para. 63).
The Court added: ''the question of what reasonable period
of notice would legally be required does not need to be
further examined: it need only be observed that [three days]
would not amount to a 'reasonable time' ." (i bid)
34. The Court considers that the foregoing conclusion in
respect of the withdrawal of declarations under the
Optional Clause is not applicable to the deposit of those
declarations. Withdrawal ends existing consensual bonds,
while deposit establishes such bonds. The effect of
withdrawal is therefore purely and simply to deprive other
States which have already accepted the jurisdiction of the
Court of the right they had to bring proceedings before it
against the withdrawing State. In contrast, the deposit of a
declaration does not deprive those States of any accrued
right. Accordingly no time period is required for the
establishment of a consensual bond following such a
period.
35. The Court notes moreover that to require a reasonable
time to elapse before a declaration can take effect would be
to introduce an element of uncertainty into the operation of
the Optional Clause system. As set out in paragraph 26
above, in the case concerning Right of Passage over Indian
Territory, the Court had considered that it could not create
such uncertainty. The conclusions it had reacbed then
remain valid and apply all the more since the growth in the
number of States party to the Statute and the intensification
of inter-State relations since 1957 have increased the
possibilities of legal disputes capable of being submitted to
the Court. The Court cannot introduce into the Optional
Clause an additional time requirement which is not
there."'83
3.9 This reasoning was not the subject of criticism in the Separate and
Dissenting Opinions which were written.
3.10 It is to be emphasized that in both lhese cases the issues of good faith,
and the requirement of reasonable time, had been the object of full
argument.
3.1 1 Faced with this jurisprudence Colombia, not very surprisingly, is forced
to resort to a series of essays in reductionism and simplistic conjuring
tricks. These will now be reviewed.
(a) It is stated that the holding in the Nicarapu case was not
upraaimous: there were three Judges holding a difierent view
(see the Preliminary Objections, Vol. I, p. 116, para. 3.17).
However, in response to this undoubted fact, it must be pointed
out that thirteen Judges either supported the majority position or
omitted to single out the point for criticism. In the Cameroon v
Nigeria case the reasoning in question was adopted by all
seventeen Judges.
I. C.J. Reports 1998, pp. 293,294-296.
9 1
(b) The opinion of Sir Humphrey Waldock us Special Rappovteur of
the International Law Commission.
Colombia states that
"The Special Rapporteur of the International Law
Commission on the Law of Treaties, and later Judge and
President of the Court, Sir Humphrey Waldock, concluded
that State practice under the Optional Clause as well as
under treaties of arbitration, conciliation and judicial
settlement, supports termination on no~ice"'~
This refers to Waldock's Second Report on the Law of Treaties:
Yearbook, International Law Commission, 1963, VoEume 11, page
68.
3.12 In response it must be pointed out that the Reports of the International
Law Commission to the General Assembly are not legislative in
character, and, still less, the Reports of the Special Rapporteurs, however
distinguished. The fact is that draft Article 17 in Waldock's Second
Report on the Law of Treaties of 1963 did not survive. In the Report of
the Commission to the General Assembly in 1966 the counterpart
provision has a substantially different content, as follows:
"Article 53 Denunciation of a treaty containing no
provision regarding termination:
1. A treaty which contains no provision regarding its
termination and which does not provide for
denunciation or withdrawal is not subject to
denunciation or withdrawal unless it is established that
the parties intended to admit the possibility of
denunciation or withdrawal.
2. A party shall give not less than twelve months'
notice of its intention to denounce or withdraw from a
treaty under paragraph 1 of this article."
3.13 The Commentary to the draft Article makes no reference to treaties of
arbitration, conciliation or judicial settlement, and no reference to the
Optional Clause. In any event the Commentary includes two paragraphs
of relevance for present purposes:
"(5) The article states that a treaty not making any
provision for its termination or for denunciation or
withdrawal is not subject for denunciation or withdrawal
unless 'it is established that the parties intended to admit
the possibility of denunciation or withdrawal'. Under this
rule, the character of the treaty is only one of the elements
to be taken into account, and a right of denunciation or
withdrawal will not be implied unless it appears from the
general circumstances of the case that the parties intended
to allow the possibility of unilateral denunciation or
withdrawal.
(6) The Commission considered it essential that any
implied right to denounce or withdraw Ihm a treaty should
be subject to the giving of a reasonable period of notice. A
period of six months' notice is sometimes found in
termination clauses, but this is usually where the treaty is of
the renewable type and is open to denunciation by a notice
given before or at the time of renewal, Where the treaty is
to continue indefinitely subject to a right of denunciation,
the period of notice is more usually twelve months, though
admittedly in some cases no period of notice is required. In
formulating a general rule, the Commission considered it to
be desirable to lay down a longer rather than a shorter
period in order ta give adequate protection to the interests
of the ather parties to the treaty. Accordingly, it preferred
in paragraph 2 to specify that not less than twelve months'
notice must be given of an intention to denounce or
withdraw from a treaty under the present article."185
3.14 In these two paragraphs the Commission shows a strong disinclination to
favour unilateral denunciation or withdrawal.
3.15 The provision eventually adopted (as Article 56) in the Vienna
Convention on the Law of Treaties is as follows:
" Denunciation of or withdrawal from a treaty containing
no provision regarding termination, denunciation or
withdrawal,
1. A treaty which contains no provision regarding its
termination and which does not provide for denunciation or
withdrawal is not subject to denunciation or withdrawal
unless:
(a) it is established that the parties intended to
admit the possibility of denunciation or
withdrawal; or
185 Yearbook, LL.C., 1 966,11,25 1.
(b) a right of denunciation or witlldrawnl may be
impIied by the nature of the treaty.
2. A party shall give not less than twelve months'
prior notice of its intention to denounce or withdraw from a
treaty under paragraph 1 .'"
3.16 The Government of Colombia seeks to rely upon the opinion of Sir
Humphrey Waldock as expressed in his Report in 1963. This reliance is
unrealistic in several distinct respects. First, the International Law
Commission functions collectiveIy and the SpeciaI Rapporteurs are
responsive to the collegiate will. Secondly, as appears from the materials
quoted above, the final products of the work of the Commission did not
refer to the Optional Clause and showed little favour toward denunciation
without notice.
(e) Geizerd reference is made to public~rtions by 'stzadents of the
Court's procedures and jlrrisprwdeme ' (see Preliminmy
Objecrions, Val. I, p. I 16).
3.17 The references appear in a long footnote but no attempt is made to
examine the passages supposed to be relevant. To give some
illustrations. There is a reference to Professor lireig' s major article in the
British Year Book, Volume 62 (1994), page 119, but no specific passage
is indicated. However, the point is that in genera[ Professor Greig is not
dissatisfied with the Court's reasoning on the nature of declarations. The
comments by Professor Orrego Vicufia on the precise issue of reasonable
notice are moderate and the writer avoids dogmatism: see Oda, Liber
Amicorum, 2002, Volume I, page 463 at pages 475 to 476.
(d) Colombia contends that the Court S references fo a 'reasonable
rime ' were obiter dicta (Preliminary Objections, Vol. I, p. 1 17)
3.18 The adoption of this mode of defence on the part of Colombia is
conspicuously weak. The passages relating to the question of 'reasonable
time' constitute a major formulation concerning the legal character of
declarations and the legal consequences which follow. The passages
were relied upon by the full Court in the Cameroon v. Nigeria case
precisely because of their importance. To seek to minimize the
importance of the Court3s reasoning by resort to the Common Law term
obifer dicta is maladroit and inappropriate to an effective discussion of
the issues of jurisdiction.
3.19 Professor Orrego Vicuiia states that the 'remarks' about termination
'were considered obiter dicta' and cites Professor Merrills. In fact
Merrills uses carefully chosen language. What he actually says is as
follows:
'"n view of the Court's ruling on the issue of reciprocity, its
discussion of the hypothetical termination of Nicaragua's
declaration is strictly speaking no more than obifer dicta. It
is nevertheless clear'ly of some significance. The
conclusion that declarations which are silent as to
termination can be terminated on reasonable notice, though
controversial, avoids the uncertainties of rebus sic
stantibus, while at the same time emphasizing the concept
of goad faith and giving some meaning to the idea of an
indefinite commitment. It would no doubt have been useful
if more could have been said on the question of what
constitutes a "reasonable time', but to expect this in a case
where the point was not in issue would hardly be realistic.
For the thirteen States with declarations of indefinite
duration the precise scope of their commitment is therefore
still a matter of ~ncertainty."'~~ (emphasis supplied)
3.20 In any event, in the light of the interactive naturc of the Court's reasoning
it is far from clear that 'the Court's ruling on the issue of reciprocity'
justifies the description of the reasoning on the issue of termination as
'obiter dicta'. The Court's finding on the character of Nicaragua's
Declaration in this context was a response to a significant element in the
United States argument. The reference to the character of the Declaration
was not 'hypothetical' in any proper sense, but was a necessary part of
the analysis.
3.21 Inthis connection therelevant passages ofthe Judgment in 1984reveal
the weakness in the analysis of Professor Merrills. What the Court said
was this:
"61. The most important question relating to the effect of
the 1984 notification is whether the United States was free
to disregard the clause of six months' notice which, freely
and by its own choice, it had appended to its 1946
Declaration. In so doing the United States entered into an
obligation which is binding upon it vis-his other States
parties to the Optional-Clause system. Although the United
States retained the right to modify the contents of the 1946
Declaration or to terminate it, a power which is inherent in
any unilateral act of a State, it has, nevertheless assumed an
inescapable obligation towards other States accepting the
British Year Book, Vol. 64, p. 197 at pp. 208-209.
Optional Clause, by stating formally and solemnly that any
such change should take effect only after six months have
elapsed as from the date of notice.
62. The United States has argued that the Nicaraguan 1929
Declaration, being of undefined duration, is liable to
immediate termination, without previous notice, and that
therefore Nicaragua has not accepted "the same obligation"
as itself for the purposes of Article 36, paragraph 2, and
consequently may not rely on the six months' notice
proviso against the United States. The Court does not
however consider that this argument entitles the United
States validly to act in non-application of the time-limit
proviso included in the 1946 Declaration. The notion of
reciprocity is concerned with the scope and substance of
the commitments entered into, including reservations, and
not with the formal conditions of their creation, duration or
extinction. It appears clearly that reciprocity cannor be
invoked in order to excuse departure from the terms of a
State's own declaration, whatever its scope, limitations or
conditions . . .
The maintenance in force of the lJnited States Declaration
for six months after notice of termination is a positive
undertaking, flowing from the time-limit clause but the
Nicaraguan Declaration contains no express restriction at
all. It is therefore clear that the United States is not in a
position to invoke reciprocity as a basis for its action in
making the 1984 notification which purported to modify
the content of the 1946 Declaration. On the contrary it is
Nicaragua that can invoke the six months' notice against
the United States- not of course on the basis of reciprocity,
but because it is an undertaking which is an integral part of
the instrument that contains it.
63. Moreover, since the United States purported to act on 6
April 1 984 in such a way as to modify its 1 946 Declaration
with suficiently immediate effect to bar an Application
filed on 9 April 1984, it would be necessary, if reciprocity
is to be relied on, for the Nicaraguan Declaration to be
terminable with immediate effect. But the right of
immediate termination of declarations with indefinite
duration is far fram established. It appears from the
requirements of good faith that they should be treated, by
anaIogy, according to the law of treaties, which requires a
reasonable time for withdrawal from or termination of
treaties that contain no provision regarding the duration of
their validity. Since Nicaragua has in fact not manifested
any intention to withdraw its own declaration , the question
of what reasonable period of notice would legally be
required does not need to be further examined: it need only
be observed that from 6 to 9 April wo~rld not amount to a
3 9'1 87 'reasonable time .
3.22 The reasoning from paragraph 61 through to paragraph 63 focuses upon
the question of the character of the relationship between the States parties
to the Optional-Clause system as consisting of the unilateral acts or as
creating some other type of relationship. This issue was central to the
Court's reasoning.
"' 7C.J Reporfs 1984, pp. 41 9-420.
Before leaving this question one other matter calls for attention. The
reasoning of the Court, with its reference to the analogy with the law of
treaties, is by no means novel or radical in character. It is unfortunate
that the Preliminary Objections gives no picture of the antecedents.
Thus, the Permanent Court recognised the contractual nature of the
obIigation in the Electrici?y Company of So$a case: (1 938), Series A/B,
No. 74 at page 22. Moreover, Waldock was entirely comfortable with
this view and in the nineteen-fifties he analysed the Anglo-Iranian Oil
Company case in the following terms:
"In the Anglo-Iranian Oil Company case the new Court had
occasion to consider the legal nature of declarations under
the Optional Clause in connexion with the interpretation of
the Iranian declaration. Iran contended that the
declarations do not set up a contractual relation between the
States concerned but that, to the extent to which they
coincide, they create obligations for each State vis-dr-vis the
Court. The United Kingdom, on the other hand, contended
that any given pair of declarations sets up an essentially
contractual relation between the states concerned. The
Court, in dealing with a United Kingdom argument that the
Iranian declaration must, if possible, be so interpreted as to
give meaning to all the words, commented:
'It may be said that this principle should in general
be applied when interpreting the text of a treaty.
But the text of the Iranian Declaration is not a treaty
text resulting from negotiations between two or
more States. It is the result of unilateral drafting by
the Government of Iran, which appears to have
shown a particular degree of caution when drafting
the text of the Declaration. It appears to have
inserted, ex ahudanti ccautela, words which, strictly
speaking, may seem to have ken superfluous.'
It will be noted that the Court, while emphasizing the
unilateral draflirlg of the instrument, did not deny its legal
character as a treaty text. Nevertheless, it does seem fiom
this passage and from the passage from the Phosphates in
Morocco judgment which has already heen cited, that for
the purpose of interpreting their terms the unilateral
original of the individual declarations will be taken into
account.'"
3.24 Waldock's conclusions on 'the nature of the juridical bond under the
Optional Clause' include the following striking passage:
"The origins and the treaty character of the Optional
Clause, the role of the Secretary-General of the United
Nations in receiving and registering notices of declarations
under the Optional Clause, the practice of States in making
their declarations, and the jurisprudence of the Court, it is
considered, leave no real doubt of the consensual nature of
the juridical bond established between States by their
declarations. 'This is not to deny the unilateral character of
the act by which a State gives its adherence to the
obligations of the Optional Clause. The settlement of the
terms of its declaration is not a matter for negotiation with
lSs ~ritish Yeor Book, Vol. 32 (I 955-1956) p. 244 al pp. 252-253.
other States but is entirely within its own discretion so long
as it keeps within the framework of the Statute. The
unilateral making of the instrument, the Court has said,
may affect the application to it of the ordinary principles of
treaty interpretation. But the making of the instrument is a
unilateral act only in the same sense that adhering to a preexisting
treaty or ratifying a previously negotiated treaty
text is a unilateral act. Judge Alvarez, indeed, termed a
declaration under the Optional Clause a 'multilateral act of
a special character'. It is multilateral in the sense that it
results in relations with a number of States; but the relation
between any given pair of States which have made
declarations is not, it is believed, preciseIy of the same
character as that which exists between the parties to a
multilateral treaty. The relation between two States under
the Optional Clause appears to be more a bilateral than a
mu1 tilateral relation."'89
3.25 These antecedents provide the analytical milieu in which the issue of
termination was considered in 1984. In this milieu the character of the
obligation was central to the legal analysis. In the result it can be seen
that the obiter dictum approach is superficial and involves a curious
insistence on focusing upon the periphery of things rather than the centre.
(e) Colombia contends that Nicaragua and Colombia have in
practice treated their declarations us terminable on notice
(P~elimin~ty Objections, Vol. I, p. 1 18).
3.26 The legal effect of the practice invoked by Colombia remains obscure: in
particular, there is no evidence that the intention in each case was to
terminate, or amend, the pertinent declaration with immediate effect.
3.27 In the first place the test is the intention of the respective States: see the
Anglo-Iranian Oil Company case (Prelim if wry Objections), L C.J
Reports 1952, pages 103 to 107.
3.28 With respect to the Declaration filed by Colonlbia on 30 October 1937
the text does not state that the instrument may be terminated on notice.
Moreover, when the Declaration was terminated on 5 December 2001 the
Colombian Government made no statement relating to the question
whether the termination had immediate effect or otherwise.
3.29 Similarly, when Nicaragua notified the Secretary-General of the inclusion
of a reservation in the Nicaraguan Declaration of 1929, the notification
(dated 7 November 2001) contained no reference to the question of its
having immediate effect: see the Prelirninqv Objections, Volwne 11,
Annexes 23 and 24.
3.30 Finally, when Colombia purported to terminate her 1 937 Declaration on 5
December 2001, no statement was made clarifying the legal position. As
noted already, the 2937 Declaration makes no reference to the modalities
of termination.
3.31 The practice invoked by Colombia does not produce sufficient evidence
of the intention lying Mind these few episocles. In the circumstances
there is no proof of a pattern of clear and consistent conduct which could,
in law, amount to a practice binding upon Nicaragua. And, in particulartr,
there is no proof that Nicaragua has waived the benefit of the analysis
provided by the Court in the Judgment of 1984, that is to say, the
requirement of a reasonable time for withdrawal from or termination of
declarations that contain no provision regarding the termination of their
validity.
3.32 In any event, there is recent cogent evidence that in her practice
Nicaragua does not accept that declarations are subject to modification or
termination on notice. Thus in the Agreement concluded between Costa
Rica and Nicaragua on 26 September 2002 paragraph 3 provides as
follows:
"The Government of Nicaragua commits itself to maintain
the legal situation as it exists at present for a period of three
years starting this day as concerns its declaration of the
acceptance of the jurisdiction of the International Court of
Justice. For its part, and during the same period, the
Government of Costa Rica commits itself to not commence
any international action or claim against Nicaragua before
the said Court, nor at any other international entity
regarding any matter or claim regarding the Treaties or
Agreements presently in force between the two
countrie~.~'~
3.33 The background to this provision is the belief on the part of Costa Kca
that the reservation made by Nicaragua on 7 November 2001 would come
into effect one year later. Thus, in September 2002 the Costa Rican
19* NWS, Val. 11, Annex 28.
Government faced the apparent difficulty that, if litigation was not
initiated against Nicaragua before 1 November 2002, then the reservation
would come into effect and any litigation after that date would place
Costa Rca at a disadvantage. In the result the intention of the paragraph
was to freeze the situation of the Nicaraguan Declaration as it was on the
day of signature.
3.34 The Agreement with Costa Rica was concluded on behalf of Nicaragua
by Mr. Caldera, the Minister of Foreign Affairs at the material time. The
motivation lying behind paragraph 3 of the Agreement with Costa Rica is
described clearly in the Affidavit of Mr.
3.35 It is abundantly clear that in the circumstances of the present case, the
Government of Colombia has by its conduct created an obligation not to
tenninate its acceptance of jurisdiction without reasonable notice. This
question will be examined further in Section IV, below.
111. Third Preliminary Objection
If found to be in force, the terms of Colombia's 1937 Declaration
exclude Nicaragua's claims, because the alleged dispute
arises nut of facts prior to 6 January 1932
3.36 Nicaragua has shown in the above Sections of the present Chapter that
the 1937 Colombian Optional Declaration was still in force when
Nicaragua filed her Application. Probably conscious of this fact,
Colombia asserts that,
19' NWS, Vol. TI, Annex 23.
'"[if contrary to the position of Colombia, the Court were
to find that both the Declaration of Colombia and of
Nicaragua were in force on the date of the filing of
Nicaragua" Application, that Application would
nevertheless fall outside the scope of Colombia's
Declaration and the Court would lack jurisdiction to pass
upon the merits of the case, due to the effect: of the
reservation which excludes disputes arising out of facts
prior to 6 January 1 932."192
3.37 The objection of Colombia in this respect is based on an erroneous
interpretation of the case-law of the Court and on a complete distortion of
the subject matter of the dispute.
A. THE SUBJECT MATTER OF THE DISPUTE
3.38 The core of the dispute relates to the maritime delimitation between the
Parties, This is clearly so in view of both Nicaragua's Application and
Memorial. And, as the Permanent Court made clear in the case
concerning the P~oince VOPI PEess Administrat ion (Preliminary Objecf ion):
"under Article 40 of the Statute, it, is the Application which sets out the
subjsct of the dispute."'93
lg2 CPO, VoI. 1, para. 3.30.
193 Order, 4 February 1933, Series A/B, No 52, p. 14; see also I.C.J., Judgment,
2 1 March 1 9 59, Interhandel (Preliminary Objections), J. C.J. Reporfs 1957, p.
21.
3.39 For its part, the Memorial "may elucidate the terms of the Application"
provided "it does not go beyond the limits as set out" in the
~~~lication'~.
3.40 In her Application of 6 December 2001, Nicaragua indicated that:
"the Court is asked to adjudge and declare:
First, that the Republic of Nicaragua has sovereignty over
the islands of Providencia, San Andes and Santa Catalina
and all the appurtenant islands and keys, and also over the
Roncador, Serrana, Serranilla and Quit;isuefio keys (in so
far as they are capable of appropriation);
Second, in the light of the determinations concerning title
requested above, the Court is asked further to determine the
course of the single maritime boundary between the areas
of continental shelf and exclusive economic zone
appertaining respectively to Nicaragua and Colombia, in
accordance with equitable principles and relevant
circumstances recognized by general international law as
applicable to such a delimitation of a single maritime
boundary" (para. 8).
3.41 The drafting of these requests might, if taken in isolation, have been
slightly clumsy in that it seems to indicate that he "first'>equest made to
the Court is to adjudicate on the title over the islands and cays and,
'94 Ibid, see also, e.g.: P.C.I.J., Judgment, 15 June 1939, SociCtC commerciale de
Belgique, Series A/B, Na 78, p. 1 73; I.C.J., Judbment, 26 November 1 984,
Military and Puramilitcrgv Acrivif ies in and agaiasr Nicaragua, 1. C. J. Reports
1984, p. 427, para. 80; Judgment. 26 June 1992, Certain Phosphates Land in
Nauru, I.C.J. Reports 1992, p. 267, para. 69.
"second'" to delimit the respective maritime areas of the Parties. But, in
view of both the context in the Application itself and the clarifications
made in the Memorial, it will become apparent:
- that the subject-matter of the dispute is the determination of a
single maritime boundary between the areas of continental shelf and
exclusive economic zones appertaining respectively to Colombia and
Nicaragua; and
- that, to this effect, the Court cannot but decide on the
sovereignty over the islands and cays mentioned in the Application.
3.42 As is indicated in the paragraph of the Application immediately
following the one quoted above:
"...the principal purpose of this Application is to obtain
declarations concerning title and the deierminafion of
maritime boundaries.. ." (para. 9-emphasis added).
3.43 Moreover, as made clear in paragraph 3 of the Application:
"The questions of the title indicated above have a particular
significance in so far as the definitive settlement of such
issues of title must constitute a condition precedent to the
complete and definitive determination of the maritime areas
appertaining to Nicaragua and for any eventual delimitation
that might be necessary with those that could appertain to
Colombia".
3.44 There is therefore no doubt that the issue of title is not the subject-matter
of the dispute but a necessary prerequisite, "a condition precedent to the
complete and definitive determination of the maritime areas" (para. 33,
which can only be made "in the light of the determinations concerning
title" (para, 8).
3.45 This is further confirmed by the account of Ihe relevant facts in the
Application, which makes extremely clear that Nicaragua bases herself
on the development of general international law since 1945 which,
"has developed in such a way as to encompass sovereign
rights to explore and exploit the resources of thc
continental shelf together with rights to an exclusive
economic zone 200 miles in breadth. The provisions of the
1982 Law of the Sea Convention have recognized and
confirmed these legal interests of coastal States" (para. 3).
3.46 The Application further explains that the claims by Colombia over huge
maritime spaces appertaining to Nicaragua seriously imperils the
livelihood of the Nicaraguan people and gave rise to serious naval
incidents in the 1990s.
3.47 Similarly, the Application explains that the negotiations between the two
countries definitely failed in 1995 (para. 6) and that the launching factor
for the lodging of Nicaragua's Application was thc ratification by
Colombia, in 1999, of the Treaty signed in 1986 with Honduras, which
violates her territorial sovereignly and rights (pma. 7).
3.48 Xn her Memorial, Nicaragua has further stressed tbe links between the
claim of sovereignty over the Archipelago of San Andres and other
relevant islets and cays on the one hand, and the maritime delimitation on
the other hand. As explained in paragraph 3.1 :
"The present part of the Memorial will assess the
delimitation of maritime boundaries between Nicaragua
and Colombia, in the light of the outcome of the
determination of sovereignty to be made by the Court. A
number of possibilities can be envisaged in this respect.
The Court can make a determination that all of the San
Andrks and Providencia group is Nicaraguan or Colombian.
Apart from that, the Court may also determine that the
islands referred to in Article I, para.1, of the 1928 Treaty
are Colombian and that the other features not included in
this Treaty are Nicaraguan. The fact that the outcome of
the territorial dispute is not known makes it necessary to
address these and other possible outcomes and this will be
done in the relevant section below".
3.49 In the subsequent Sections of her Mrnorial, Nicaragua argues her case
on the basis of the applicable rules and principles of the law of the sea,
taking into account the relevant legislation and claims of the Parties since
the late 1950s'~~. Then, Nicaragua examines the maritime delimitation in
the region of San AndrGs
- "on the basis of Nicaraguan title7"%;
- then "on the basis of the alleged Colombian title""'.
3.50 Nicaragua then goes on to discuss the impact of "[tlhe presence of small
cays in the maritime delimitation area$"'98. Here again, Nicaragua
NM, V01. I, paras. 3.25-3.36.
196 aid, paras. 3.93-3.96.
147 Ibid paras. 3 -97-3.1 1 3.
198 Ibid, paras. 3.1 14-3.136.
maintains that she has sovereignty over these maritime features but she
adds:
"However, it cannot be excluded that the Court reaches different
conclusions in respect of this issue. l'he present section will
address the role of the cays in the maritime delimitation between
Nicaragua and Colombia, taking inlo account the different
outcomes that are possible in respect of the question of
sovereignty"'99.
3.51 Nicaragua concludes this part of her Memorid by explaining that her
assessment of the coasts defining the delimitation area "is not
substantially affected by the question whether San Andres and its
dependencies are determined to be Nicaraguan or ~olornbian''".
However, she envisages separately the hypothesis where the Court would
find that either Nicaragua or Colombia has sovereignty in respect of the
islands of San Andrds and ~rovidencia~~' and over various cays or other
maritime features202.
3.52 This is confirmed in the Submissions which make a series of distinctions
in matters of maritime delimitation depending:
- on whether or not the Barcenas-Esguerra Treaty has hen validly
concluded and is still in force; and
- on whether Nicaragua or Colombia has sovereignty ever the
islands of San AndrCs and Providencia on the one hand, and the cays on
the other hand (NM, Vol. I, p. 266).
199 NM, Vol. I, paras. 3.122 and 3.126.
loo Ibid, para. 3.1 39.
20' Zbid, para. 3.143.
2" ibid, paras. 3.1 44-3.1 47.
3.53 This all shows, without the shadow of a doubt that:
a) the very subject-matter of the present dispute is the maritime
delimitation of the respective maritime mas belonging either to
Colombia or to Nicaragua; and
b) this crucial issue cannot be decided without determining first which
of the two States has sovereignty over the islands and cays lying in
the relevant area.
B. THE RELEVANT RULES APPLICABLE TO THE
JURI s DICTION OF THE COURT'S &4 TIOhrE TEMPORIS
3.54 The relevant rules applicable to the jurisdiction of the Court ratione
temporis must be checked against this background -of which Colombia
takes no account when she endeavours to describe the case-law of the
Cowt and its application to the present case.
3.55 Colombia attaches great importance to the Judgment of the Permanent
Court of 14 June 1938 on preliminary objections in the case of
Phosphates in Morocco between Italy and France (Series NB, No 74) to
which it devotes six 111 pages of her Preliminary 0bjectiodo3.
Nicaragua does not question that that Judgment is relevant in several
respects for the present case. However, Colombia's interpretation of that
decision is biased from several points of view and Colombia ignores the
crucial paint that the facts of that case were different from those of the
present case in various fundamental aspects.
203 CPO, Vol. I, paras, 3.34-3.39.
3.56 Nicaragua wishes to make clear straightaway thrd she does not deny that
the jurisdiction of the Court "only exists within the limits within which it
has been ac~epted"~". This means that she fully accepts that the
Colombian Optional Declaration "applies only 10 disputes arising out of
facts subsequent to 6 January 1 932'20'. Therefore,
"the only . . . facts falling under the corn~ulsory jurisdiction
are those which are subsequent to [6 January 19321 and
which regard to which the dispute arose, that is to say,
those which must be considered as being the source of the
dispute'' rc'est-h-dire ceux qui doivent Stre considkrks
comme ginPrateurs du difle'rend' in the French
authoritative text)206.
3.57 However, it must be noted that:
"'The question whether a given situation or fact is prior or
subsequent to a particular date is one to be decided in
regard to each specific case, just as the situations or facts
with regard to which the dispute arose must be decided in
regard to each specific case"2o7.
3.58 It is precisely in this respect that the present case is entirely different
from that of the Phosphates in Morocco.
204 Judgment of 1938, p. 23.
105 Ibid, see also: I.C.J., Judgment, 4 December 1998, Fisheries Jurisdiction
(Prelinlinary Objections), 1C.J Reports 1998, p. 453, para. 44 or, Order, 2 June
1 999, Legality of Use of Force (Yargoslavb v. BeJgiumn) (Interinr Measures),
1.C.J Reporfs 1999, p. 135, para. 30. "' series AJB, No 73, p. 23.
lo' Ihid, p. 24.
3.59 In that case, the Italian Government had presented the subject of the
dispute "under two separate aspects: a general aspect, ... which is
concerned with what that Government describes as the 'monopolization
of the Moroccan phosphates"', and a 'more limited aspect' relating "to
the decision of January 8'" 1925, in which the Department of Mines
rejected M. Tassara's and to the alleged denial of justice to
him and his su~cessors"~~. In both respects, the Court found that the
dispute "did not arise with regard to situations of facts subsequent to" the
"critical date" fixed in the French Optional ~eclaration~'~.
3.60 These findings were obvious:
- regarding the "general aspect'bof the dispute, the Italian
Government had consistently presented the "monopolization of the
Moroccan phosphates" "as a kgime instituted by . .. dahirs of 1920"~";
and
- in respect with the more limited aspect "[tlhe Italian
Government [did] not deny that the alleged dispossession of M. Tassara
[resulted] from the Mines Department's decision of 1 925'd'2.
3.61 There could therefore be no doubt that the dispute had arisen after what
the Court had named the "critical dateq213, that is the date after which
France had accepted the compulsory jurisdiction of the Court 'Gth
208 Mr. Tassara was the ltalian owner of the licenses to prospect for phosphates
in Morocco.
209 Ibid, p, 25.
210 Series MB, NO 74, p. 29. '" 'bid, p. 25.
"']bid, p. 27.
21 ibid, p. 23.
regard to situations or facts subsequent to" the ratification of her
Declaration, which occurred on 25 April 193 1 2'4
3.62 The present case is factually (and, by way of consequence, legally)
entirely different .
3.63 As explained above, the very subject-matter of the dispute is the
delimitation of the respective maritime areas on which Colombia and
Nicaragua have jurisdiction. This issue could simply not arise before
1932.
3.64 According to Colombia,
". . .the conclusion of the 1928 Treaty and its 1930 Protocol
of Exchange of Ratifications ... settled the dispute
regarding sovereignty over certain territories and
estahlished rhe maritime boundaries between the hyo
~ounrrje,~~~~ 5.
3.65 This can simply not be so. As Nicaragua has explained in her Memorial:
"Not only was there no need for delimitation between the
two countries [in 1928 or 19301, but, at the time, this was
simply unthinkable: the usually accepted maximum
permissible breadth of the territorial sea was three miles, at
most six (as Colombia decided in 1930) and there was no
question of continental shelf, a concept which only
-
"' Ibid, p. 22.
215 GPO, Vol. I, para. 3.39.
appeared in the legal sphere in 1945, and even less that of
an exclusive economic zoneW2l6.
3.66 The issue put before the Court is precisely to determine this maritime
boundary, a boundary that has not been and could not have been the
object of the 1928 Treaty. This is the issue on which the Parties have not
been able to agree since 1969 and it is this lack of deteminakion that has
given rise to numerous naval incidents since then2".
Contrary to Colombian allegations and by contrast with Italy's argument
in the Phosphates in Morocco case, it is not Nicaragua's case that
"because the 1928 Treaty and its 1930 Protocol of Exchange of
Ratifications have continuing effects, jurisdiction Nicaragua
simply notes that her case bears upon the delimitation of the respective
continental shelf and economic exclusive zone of the Parties and that this
issue, which could not have arisen before the mid-1960s at best, has
divided the Parties since 1969, when Colombia notified Nicaragua, on 4
June of that that the 1928 Treaty established a maritime boundary
and that, therefore, Nicaragua had no maritime areas, including
continental shelf and exclusive economic zone, east of the 82"d
~eridian~~'.
216 NM, Vol. I, paras. 2.240 and 2.246; see also, e.g.: the Arbirrnl Award
between Guinea-Bissau and Senegal of 3 1 July 1989, quoted in NM, Vol. 1,
para. 2.245.
-17 NM, Vol. I, paras. 2.203-2.224; see also Nicaragua's Application, paras. 3
and 5-7.
CPO, Vo1. I, para. 3.38.
219 Nicaragua apologizes for a typing rn istake she made in her Memorial, Vol. I, (p. 8, para. 1 S), where she dates that Note 6 lune 1969 instead of 4.
2 0 NU, Vol. 11, Annex 28.
3.68 Far from being in the presence of "a continuing ;md progressive unlawful
action" since 192g2'', the Government of Nicaragua was confronted with
an entirely new claim by Colombia, a radical change, a novation of the
legal situation. This novation is the fact from which the present dispute
has arisen, well later than 6 January 1932, Contrary to Colombia's
assertions, it is not Nicaragua that tries to n:vive an already settled
dispute222, but Colombia that has created an entirely new dispute in 1969.
3.69 By contrast, in the Phosphates in Morocco case, the breach of the
existing situation was the fact of the 1920 dahirs and of the 1925 decision
as the Italian Government itself had recognized,
"In those dahirs [and in that decision] are to be sought the
essential facts constituting the alleged monopolization and,
consequently. the facts which really gave rise to the
dispute*"23.
3.70 Similarly, in the case concerning the Legality of [he Use of Force
(Yugosluviu v. Belgium), the legal dispute "araro" "when the born bings in
question began on 24 March 1999", that is "well before 25 April 1999",
the date of the signature of the Declaration by which Yugoslavia had
accepted the jurisdiction of the Court "in all disputes arising or which
may arise ... with regard to the situations or facts subsequent to this
signature''u4. On the contrary, in the present case, "the essential fact .. .
which really gave rise to the dispute" is the denial by Colombia,
beginning in 1969, of any maritime area on which Nicaragua enjoyed
'2' See P.C.I.J., Pho.phates in Morocco, Series A/B, No 74, p. 26; see also:
I.C.J., Order, 2 June 1 999, Legaliv of Use of Force (Yugoslavia v. Belgium)
(Inrerim Measures), J.C. J. Reporls 1999, p. 1 34, para. 28.
22"~~, Vol. 1, para. 3.49 and para. 3.50 (g).
223 Series A/B, No 74, p. 26; see also p. 27. "' I.C.J., Order on Inferirrr Measures, 1C.J Reports 1999, p. 133, para. 25.
sovereign rights east of the 82" Meridian. Contrary to Colombian
allegations225, this was just the opposite of "[c]onfirmation, after the
crucial date, of facts anterior to the Declarations"; it was their very
negation,
3.71 Colombia cannot therefore escape acceptance of the jurisdiction of the
Court by relying on the temporal reservation made in her Optional
Declaration of 1937. It was indeed her right to exclude certain anterior
disputes from her acceptance, but is now bound by it, in the terms she has
freely chosen (tu patere legern quem fecisti), and she is not entitled to
artificially expand her reservation to subsequent facts which clearly calf
into question the existing situation.
3.72 This conclusion is confirmed by other cases settled by the Court and its
predecessor, certain of which -but not dl- are called upm by Colombia.
3.73 This is the case in the first place of the Judgment of the Permanent Court
on the Preliminary Objection in the case of the Electricity of Soju and
~lrl~c~rii?~~. As aptly noted by Ambassador Rosenne, it can be argued
that, in the Phosphafes in Morocco case, '?he Permanent Court may have
over simplified the issues" resulting from a temporal reservation
contained in an Optional Declaration such as the one made by France in
that case or by Colombia in the present case; the Electricity of Soja and
Bulgaria case, judged the following year, was the occasion the Court
seized in order to clarify the remaining uncertaintiesz7.
- --
225 CPO, Vol. I, para. 3 39.
226 Series dB, No 77,4 April 1939.
227 The Law md Practice of the Inrertratio~laZ Court, 1920- 1996, N ij ho ff, The
HagueJBostonlLondon, 1 997, Vol . 11, Jurisdiction, pp. 793-794.
3.74 In that case, Belgium had recognized the compulsory jurisdiction of the
Court by a Declaration ratified on 10 March 1926 "in any disputes arising
after the ratification of the present declaration with regard to situations or
facts subsequent to this ratification...". As a consequence of the
condition of reciprocity, the Bulgarian Government alleged that,
"Although the facts complained of by the Belgian
Government in the submissions of its Application ... all
date from a period subsequent to March loih, 1926, the
situation was created by the awards of the Belgo-Eulgarian
Mixed Arbitral Tribunal and in particular by the formula
established by the awards of July 5th, 1923, and May 27'h,
1925.. . It has also been argued that, since the situation
resulting from that formula dates from before the material
date, namely, March 10"', 1926, the Bulgarian Government
is justified in holding that the dispute which has arisen in
regard to it falls outside the Court's jurisdiction by reason
of the limitation ratione remporilr contamed in the Belgian
de~laration''*~~.
3.75 As Colombia herself concedes in passing, "[t jhe Court did not accept
Bulgaria's view"229. But, if it is true that the Permanent Court recalled its
Judgment in the Phosphates of Morocco case, Colombia omits to quote
the relevant passage in which gives extremely important
clarifications on the scope of the previous Judgment:
""8eries A/B, No 77, p. 8 1.
22P CPO, Vol. I. para. 3.30.
230 Idem.
"It is true that a dispute may presuppose the existence of
some prior situation or fact, but it does not follow that the
dispute arises in regard to that situation or fact. A situation
or fact in regard to which a dispute is said to have arisen
must be the real cause of the dispute. In the present case it
is the subsequent acts with which the Belgian Government
reproaches the Bulgarian authorities with regard to a
particular application of the formula ... which form the
centre point of the argument and must be regarded as
constituting the facts with regard to which the dispute
arose. The complaints made in this connection by the
Belgian Government relate to the decision of the Bulgarian
Sbte Administration of Mines of November 24", 1934, and
to the judgments of the Bulgarian courts of October 24',
1936, and March 27", 1937. Accordingly, the Court
considers that the argument based on the limitation ratione
temporis in the Belgian declaration is not well-founded"23'.
3.76 This argument can be transposed mutaris mutandis in the present case,
nearly word by word, by just changing the dates and the facts:
"In the present case it is the subsequent acts with which the
Nicaraguan Government reproaches the Colombian
authorities with regard to a particular application of the
1928 Treaty . . . which form the centre point of the argument
and must be regarded as constituting the facts with regard
to which the dispute arose. The complaints made in this
23 1 Series A/B, No 77, p. 82; see also the Dissenting Opinion of Jonkheer Van
Eysinga and the Separate Opinion of Mr. Cheng Tien-Hsi appended to the
P.C.I.J. Judgment in the Phosphates in Morocco case, Series MB, No 74, p. 35
and 37, which also note the ambiguity of the Court's Judgment in that case.
connection by the Nicaraguan Governnzent relate to the
decision of the Colombian Government of June 4Ih, 1969.
Accordingly, the Court must consider that the argument
based on the li~rzitation raione temporis in the Colombian
declaration is not well-founded"
3.77 Such a clarification was not necessary in the case concerning the
Phosphates in Moracco, where, clearly, the "causal acts" (faits
gknkraceurs) of the dispute were anterior to the "critical date" resulting
from the French Declaration under the optional clause (the same is true
concerning the Order of the present Court on the Request for the
Indication of Interim Measures in the case concerning the Legal@ offhe
Use of Force (Yugo~.imiu v. ~el~iu~n}~~~. It was, on the other hand,
indispensable in the E/ecfriciry of So$a and Bwlgc~ria case, as it is in the
present case, where the "facts from which the dispute arose" precisely
result from the calling into question, after the "critical date", of the
previous situation by the Respondent State.
3.78 The narrowed -and, indeed, logical- interpretation of the Phosphates of
Morocco principle made in Electricify of Sofia has been firmly
maintained by the present Court. In the Intt~rhandel case, the Court
laconically stated that '"the facts and situations which have led to a
dispute must not be confused with the dispute itself'Z33. This statement
was expanded and made explicit the following year in the case
concerning Right uf Passage over Indian Territory, in which the Court
declared in respect of the meaning of the words "source" wc "real cause*'
of the dispute in its predecessor's Judgment of 1 939:
232 2 June 1999,LC.J Reports 1999, pp. 132- 135, paras. 22-30.
233 Judgment on Preliminary Objections, 2 1 March 1 959, L C.J. Reports 1959, p.
22; see also, I .C.J., Judgment, 1 2 November 199 1, Arbitral Award of 3 I July
1989, I. C. J. Reports 199 1, p. 42, para. 24.
"The Permanent Court thus drew a distinction between the
situations or facts which constitute the source of the rights
claimed by one of the Parties and the situations or facts
which are the source of the dispute. Only the latter are to be
taken into account for the purpose of applying the
Declaration accepting the jurisdiction of the ~0Iu-t"'~~.
3.79 In the present case, '"he situations or facts which constitute the source of
the rights" of Nicaragua are a pattern of facts, decisions and treaties
dating back as early as the early 1 800s as Nicaragua has explained in her
Memorial. But the facts which are the source of the dispute, from which
the dispute arises, are constituted by the decisions of Colombia of 1969,
subsequently maintained, to deny any sovereign rights of Nicaragua over
the continental shelf (and an exclusive economic zone) east of the 82nd
Meridian.
3.80 Colombia wrongfully alleges that,
"[iln the instant proceedings, the source of the alleged
dispute, its real cause is constituted by the differences
between the two countries regarding sovereignty over the
Mosquito Coast, the Islas Mangles (Corn Islands), and the
1 9 1 3 claim of Nicaragua to the Archipelago of San Andris,
all of which were disposed of in 1928, and the existence of
a treaty in force ratified in 1930 that definitely settled the
dispute . . . establishing a maritime boundary between
Colombia and ~icara~ua'"~~,
2M I.C.J, Judgment on the Merits, 12 April 1960,LC.J Reports 1960, p. 35.
235 GPO, Vol. 1, para. 3.44,
122
3.81 But this is simply not true: as recalled above in Subsection B of Section
Ill, Chapter 1 and in paras. 3.65-3.66, and explained more fully in
Nicaragua's Memorial, the 1928 Treaty could not have established a
maritime boundary between the Parties and it is because Colombia
alleged the contrary from 1969 onwards that the dispute arose.
3.82 What is true on the other hand is that, on the occasion of this dispute, the
Court must take into account the situation regarding the sovereignty over
the Archipelago and various cays in the area and has the inherent power
to do so. But this is another matter, about which the 1960 Judgment in the
Right of Passuge case casts a light very different from the CoIombian
views.
3.83 In that case, the Court found that it was only in 1954 -that is well after 5
February 1930, the date limiting India's acceptance of the Court's
jurisdiction- that the dispute arose in respect with "both the existence of a
right of passage to go into the enclaved territories and to India's failure to
comply with obligations which, according to Portugal, were binding upon
it in this connection". And the Court added:
"This whole, whatever may have been lhe earlier origin of
one of its parts, came into existence only after 5 February
1930. The time-condition to which acceptance of the
jurisdiction of the Court was made subject by the
Declaration of India is therefore complied witrub.
- -
23"~.~ Reports 1960, p. 35.
3.84 It also made clear that:
"It would be idle to argue that the contentions put forward
with regard to the right of passage would, if that question
had been argued before 1930, have been the same as when
it is today. Apart from the fact that that consideration
relates only to a part of the present dispute, it overlooks the
fact that the condition to which the Court's jurisdiction is
subject does not relate to the nature of the arguments
susceptible of being advanced. The fact that a treaty, of
greater or lesser antiquity, that a rule of international law,
established for a greater or lesser period, are invoked, is not
the yardstick for the jurisdiction of the Court according to
the Indian Declaration. That Declaration is limited to the
requirement that the dispute shall concern a situation or
facts subsequent to 5 February 1930: the present disputes
satisfies that
exactly in the same way as the dispute now before the Court satisfies the
requirement imposed in the Colombian Declaration.
3.85 Having thus dismissed the sixth Indian Preliminary Objection, the Court,
in its Judgment of 1960, proceeded to consider the merits of the case. To
that effect, it considered first the question of "[tlhe existence in 1954 of a
right of passage in Portugal's favour"238. For that matter, the Court
discussed the arguments of both Parties concerning the validity of a treaty
concluded in 1 779 together with that of decrees issued in 1 783 ad 1 785
by the Maratha Ruler (that is 150 years before the "critical date")239. It
then considered the arguments of the Parties ils to the scope of these
instruments and, more precisely, the question of'whether or not they had
transferred sovereign@ over the enclaves to ~ortu~al~~'; the Court
concluded that this was not the case, but '"tat the situation underwent a
change with the advent of the British as sovereign of that part of the
country in place of the ~arathas'"", that is, again, for the most part,
befire 1930. It then appears that, in that case, the Court considered dl the
historical facts pertaining to the dispute with a view to appreciating their
validity and legal scope.
3.86 In doing so, as the Court made clear, it did not give "any retroactive
effect to India's acceptance of the compulsory jurisdiction"242, exactly as,
in the present case, it will not overlook the temporal condition included in
Colombia's Optional Declaration by considering the validity and scope of
the Barnenas-Esguerra Treaty in so far as such a determination is
necessary in order to determine the maritime areas belonging respectively
to the Parties- that is in settiing the dispute which has arisen from the
Colombian claims to huge parts of maritime mas over which Nicaragua
has rights and jurisdiction.
3.87 In conclusion on this aspect of the Colombian Preliminary Objection,
Nicaragua wishes to stress that her position in this respect must be
understood notwithstanding the jurisdiction of the Court on all the
Nicaraguan Submissions an the basis of the Pact of BogotA.
'" Ibid, p. 37.
240 Ibid, p. 38. ''' Ibid, p. 39. '" Ihid, p. 35.
3.88 As the Permanent Court, stressed in the Electricity of So$a and Bulgaria
case:
"the multiplicity of agreements concluded accepting the
compulsory jurisdiction is evidence that the contracting
Parties intended to open up new ways of access to the
Court rather than to close old ways or to allow them to
cancel each other out with the ultimate result that no
jurisdiction would remain"243.
3.89 In the present case, the jurisdiction of the Court is based on the Pact of
Bog& and the Optional Clause Declarations of the Parties that, far from
being exclusive of each other, are complementary. It is for the Court to
decide which of those two legal basis is more relevant in the present
case2M or to combine them. It is Nicaragua's conviction that each of them
"confers jurisdiction upon the Court to entertain the dispute submitted to
p245
IV. Fourth Preliminary Objection
Colombia's Acceptance by Conduct of an Obligation to Give
Reasonable Notice of Termination
3.90 The political circumstances prevailing in the region provide the necessary
background to the contention of Nicaragua that Colombia has by her
243 Series A&, rlr" 77, p. 76.
244 See e.g.: I.C.J., Judgment, Border and Transborder Armed Actions,
Nicaragua v. Hondwar (Jwisdicttm of the Court and Adnlissibilig of the
Application), I. C. J. Reports 1988, p. 90, para. 48.
Ibid.
conduct accepted an obligation to give reasonat~le notice of termination
of her Declaration under the Optional Clause, and that, consequently, the
Colombia notification of 5 December 2001 could not have the legal
consequences asserted by Colombia.
3.91 A few weeks after Honduras on 30 November 1999 ratified the Treaty of
delimitation of 2 August 1986, Mr. Amoldo Aleman, then President of
Nicaragua announced that a case would be filed with the Courl against
Colombia. This announcement was made on 23 December 1999246 (see
below paragraphs 3.93 and 3.1 02).
3.92 This decision by President Alemhn was reiterated publicly on different
occasions. For example, afier returning fkom a ~neeting of the I11 Summit
of the Americas that took place in Canada, he stated, "We are also going
to bring a case against Colombia as we have dot^ with ~onduras."~'
3.93 Later on in that same year, on 9 October 2001, President AIemin
announced that the case against Colombia was going to be filed in the
Court.
"We are going to file the case against Colombia. We will
also guarantee in the national budget tho continuation of
this case, because you must know that these cases are
contended before international courts and this implies
246NWS, Val. JI, Annex 13. "' NWS, VOI. 11, Annex 14.
enormous expenses. But as 1 have pointed out, the
sovereignty of our Country must prevail above any other
thing."'48
3.94 The Colombian press picked up these statements. For example, the latter
announcement read as follows in the Colombian newspaper El
Espectador :
"The President of Nicaragua, Arnoldo Alemin, announced
yesterday that prior to 10 January, when he must hand over
power, an application against Colombia will be filed with
the International Court of Justice in The Hague, over a
boundary treaty signed with Honduras that would affect
N i~ara~ua.''~~~
0. NEGOT~ATIONS AT FOREIGN MINISTER LEVEL IN 200 1
3.95 This was the political background when Mr. Francisco Aguirre was
appointed Foreign Minister of Nicaragua in October 2000. Mr. Aguirre,
in an affida~i~~~ells the story of how his Colombian counterpart, Mr.
Fe-dez de Soto, requested that the filing of the Nicaraguan
Application be postponed in order to give an opportunity for negotiations
on the territorial and delimitation questions pending between their
respective States.
24g NWS, VOI. 11, Annex 15.
249 NWS, V01.11, Annex 6.
250 N WS, Vol. 11, Annex 22.
3.96 This offer was not received as coming out of the blue by hh. Aguirre.
There had been previous attempts at negotiations that went back a quarter
of a century (see above Chap. I, paras, 1.67- 1.84).
3.97 Mr. Aguirre agreed in good faith only to later receive the surprise that the
purpose of that request and the offers of negotiations were only made in
order to gain time for Colombia to complete the legal and political steps
she needed to take in order to withdraw her 1937 acceptance of the
jurisdiction of the Court.
3.98 In the outcome the Government of Nicaragua had been placed in a
situation in which the Government of Colombia had, by its conduct,
undertaken not to change the jurisdictional status quo in relation to the
International Court of Justice. This was the necessary legal consequence
of requesting a postponement of the filing of the Nicaraguan Application.
The conduct of Colombia must be interpreted in the light of a
presumption of good faith. The request by the Colombian Foreign
Minister for a postponement of the filing of thc Nicaraguan Application
included an implicit undertaking not to withdraw Colombia's Declaration
accepting jurisdiction without reasonable notice
3.99 In the result the Government of Colombia was estopped from changing
the jurisdictional status quo without reasonable notice. There is a
considerable weight of authority for the view that estoppel is a general
principle of international law resting essentiallj~ on the principle of good
faith.
3.100 The Court has defined the conditions for the existence of an estoppel on
several occasions. Thus, in its Judgment in the North Sea Continental
She&$ Cases the Court observed:
"Having regard to these considerations of principle, it
appears to the Court that only the existence of a situation of
estoppel could suffice to lend substance to this contention, -
that is to say if the Federal Republic were now precluded
from denying the applicability of the conventional regime,
by reason of past conduct, declarations, etc., which not only
clearly and consistently evinced acceptance of that regime,
but also had caused Denmark or the Netherlands, in
reliance on such conduct, detrimentally to change position
or suffer some prejudice, Of this there is no evidence
whatever in the present case."25'
3.101 This defmition was adopted by the Chamber of the Court in the Gzslfof
Maine Case, 1. C.J Reports 1984, page 309, paragraph 145; and by the
MI Court in the Case Concerning Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United Stafes of America), 1 C.J
Reporis 1984, pages 414 to 415, paragraph 5 1, and the Case Concerning
the Land and Maritime Boundary Between Cameroora and Nigeria, I. C.J
Reporrs 1998, page 303, paragraph 5 7.
3.102 In the circumstances of the present case, both the President of Nicaragua
and the Foreign Minister had made public announcements of the
intention of Nicaragua to file an Application with the Court in which
Colombia was to be the Respondent State. These public statemenl
covered the period from December 1999 until the end of November 2001
and were reported in the press of botR Nicaragua and Colombia. There
can be no question that Colombia was not aware of Nicaragua's
251 I.C.J. Reports 1969, p. 26, para. 30.
130
intention, more especially in view of the negotiations at Foreign Minister
level in the same period.
3.103 The Colombian Agent, Ambassador Julio Londoiio, in an interview given
shortly after the Application of this case was filed, recognized that
Colombia had been aware for the previous two years of the Nicaraguan
decision of bringing this case before the Court. The comments of
Ambassador Londofio were made in the context of answering the
question asked by many whether it was a coincidence or something else
that Nicaragua filed her Application on 6 December 2001 and Colombia
had withdrawn her acceptance the day before.
"The Colombian explanation is only one: it was a
coincidence. The Ambassador in Cuba, Julio Londoiio,
charged with coordinating the group that will defend
Colombia before the Court, said that the withdrawal of the
declaration that came about on 5 December was made
without knowing exactly the date in which Nicaragua
would file the case. What was known was that it would be
filed at some moment, since they had heen announcing it
for the past two years."252
3.104 It was against this background that the Colombian Foreign Minister, Mr
Femhndez de Soto, requested the Nicaragua Foreign Minister, Mr
Aguirre, to postpone the filing of the Application. No reference was
made by him to any modification or withdrawal of the Colombia
acceptance of the Court's jurisdiction.
252 NWS, Vol. TI, Annex 7.

CHAPTER IV
THE EXISTENCE OF A DISPUTE IN THE CONTEXT OF BOTH
THE PACT OF BOGOTA
AND THE OPTIONAL CLAUSE JL'RTSDTCTION
4.1 Article VI of the Pact of Bogota provides as follows:
"The aforesaid procedures, furthermore, may not be applied
in 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 conclusion of the present
Treaty" (emphasis supplied)
4.2 In her Preliminary OBjections Colombia argues that the issues raised in
the Application of Nicaragua are 'already settled' by the EsguerraBarcenas
Treaty of 1928 and the Protocol of Exchange of Ratifications of
1930: see the Preliminmy Objections, Volume I, paragraphs 2.1 to 2.35,
2.63 to 2.64 and 3.1 to 3.9.
4.3 Colombia also invokes Article XXXIV of the Pact of Bogotri which
provides as follows:
"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."
4.4 Colombia invokes the travatax priparatoires of Articles VT and XXXIV
of the Pact of Bogotk Preliminary Objecfions, Volume I, paragraphs
2.10 to 2.14. In reality the materials deployed in these paragraphs leave
the issue entire. The irmam prdpamtoires of the two Articles do
nothing but confirm that the workings of these provisions stand in need
of clarification. The travaeuc merely confirm this fact.
4.5 In the final analysis the term 'already settled' has to be applied in
concrero and is inevitably question-begging. The question which
remains is whether the subject-matter of the Application has been
'already settled by arrangement between the parties'.
4-6 In analytical terms the preliminary but the determining issue is whether
there is a dispute between the parties. The content of the dispute would
include the question whether the matters had been 'already settled ...'.
This question clearly pertains to the merits of the case.
4.7 In any event, there is a logical presumption that the phrase 'already
settled' connotes a settlement in accordance with the principles of public
international law. Thus, the locution 'settled' calls for recension and the
recension itself may constitute a dispute.
4.8 In this context international tribunals, and the Court, in particular, have
approached the identification of a dispute in a spirit of realism. Fairly
typical in this respect are the following passages from the Advisory
Opinion in the Headquarters Agreement case:
"34. In order to answer the question put to it, the Court has
to determine whether there exists a dispute between the
United Nations and the United States, and if so whether or
not that dispute is one 'concerning the interpretation or
application of the Headquarters Agreement within the
meaning of section 21 thereof. If it finds that there is such
a dispute it must also, pursuant to that section, satisfy itself
that it is one 'not settled by negotiation or other agreed
mode of settlement'.
35. As the Court observed in the case concerning
Interpretation of Peace Treaties with Ilulgaria, Hmga~y
and Romania, 'whether there exists an international dispute
is a matter for objective determination' (1.C.J Reports
1950, p, 74). In this respect the Permanent Court of
International Justice, in the case concerning Muvrommutis
Palestine Concessions, had defined a dispute as 'a
disagreement on a point of law or fact, a conflict of legal
views or of interest between two persons' (P.C.LJ., Series
A, No. 2, p. 1 1). This definition has since been applied and
clarified on a number of occasions. In the Advisory
Opinion of 30 March 1950 the Court, after examining the
diplomatic exchanges between the States concerned, noted
that 'the two sides hold clearly oppositt: views concerning
the question of the performance or non-performance of
certain treaty obligations' and concluded that 'international
disputes have arisen' (Inferpretation of Peace Trerrf ies with
Bulgaria, Hungcrry and Romania, First Phase, 1-C.J.
Reports 1950, p. 74). Furthermore, in its Judgment of 21
December 1962 in the South West Africa cases, the Court
made it dear that in order to prove the existence of a
dispute
'it is not suficient for one party to a contentious
case to assert that a dispute exists with the other
party. A mere assertion is not suflicient to prove
the existence of a dispute any more than a mere
denial of the existence of the dispute proves its nonexistence.
Nor is it adequate to show that the
interests of the two parties to such a case we in
conflict. It must be shown that the claim of one
party is positively opposed by the other' (1C.J.
Reports 1962, p. 328).
The Court found that the opposing attitudes of the parties
clearly established the existence of a dispute (ibid; see also
Northern Cameroons, I. C,J Reports 1963, p. 27)."253
4.9 And in the Northern Cameroons case the Court had observed that:
"The Court is not concerned with the question whether or
not any dispute in relation to the same subject-matter
existed between the Republic of Cameroon and the United
Nations or the General Assembly. In the view of the Corn
it is sufficient to say that, having regard to the facts already
stated in this Judgment, the opposing views of the Parties
as to the interpretation and application of relevant Articles
of the Trusteeship Agreement, reveal the existence of a
dispute in the sense recognized by the jurisprudence of the
Court and of its predecessors, between the Republic of
Cameroon and the United Kingdom at the date of the
~~~lication ."'54
4.10 These passages apply very appositely to the circumstances of the present
case. The opposing attitudes of the parties clearly establish the existence
253 1C.J Reports 1988, p. 27.
2 54 I. C.J. Reports 1963, p. 27.
of a dispute. This dispute has a varied subject matter but this subject
matter includes questions as to the legal status of the treaty obligations
(see above Chap. I).
4.1 1 The subject-matter of the Nicaraguan Memoriul studied in conjunction
with the text of Volume 1 of the Preliminary Objections of Colombia
provides ample proof of the opposing attitudes of the parties in respect of
a whole series of issues of law and fact. This is demonstrated by
reference to the subject-matter of Chapters I and I1 of the Preliminary
Objec fions.
4.12 The Colombian argument seeks to build upon the findings of the Court in
the Border and Transborder Armed Acrions cast: in order to contend that,
even if there is jurisdiction in accordance with Article 36, paragraph 2, of
the Statute, the Court is still bound to make a determination in
accordance with Article VI of the Pact of Bogoti, On this basis,
Colombia concludes:
"Therefore, even if Colombia had still been bound by its
Declaration of 30 October 1937 when Nicaragua filed its
Application -quad non- the Pact of Bogoti -the lex
specialis- would still be governing; the Court would still
have to "declare itself to be without jurisdiction'; and the
s ,9255 controversy would still have to be 'declared ended .
4.13 This submission by Colombia involves a misunderstanding of the Court's
determination in the Armed Actions case. In that case Honduras had
argued as follows:
- - - -. . . .
255 CPO, VOI. I, para. 3.6.
"Under the most literal, and therefore the most simple,
interpretation of the terms of the Pact, Article XXXI, in
establishing the obligatory jurisdiction of the Court, at the
same time requires the additional subscription, by each of
the Parties, of a unilateral declaration of acknowledgement
of its jurisdiction, as provided for by Article 36.2 of the
Statute of the Court, to which Article XXXl of the Pact
makes express reference. The reservations attached to such
declarations, as in the case of the declaration of Honduras
of 22 May 1 986 [quoted in paragraph 24 above J , therefore
apply both in the context of the application of Article
XXXI and on the sole basis of the Honduran declaration
itself."256
4.14 The Court rejected the contention and came to the conclusion that:
". . .the Court has to conclude that the commitment in
Article XXXI of the Pact is independent of such
declarations of acceptance of ~ompulsory jurisdiction as
may have been made under Article 36, paragraph 2, of the
Statute and deposited with the United Nations SecretaryGeneral
pursuant to paragraph 4 of that same Article.
Consequently, it is not necessary ta decide whether the
1986 Declaration of Honduras is opposable to Nicaragua in
this case; it cannot in any event restrict the commitment
which Honduras entered into by virtue of Article XXXI.
The Honduran argument as to the effect of the reservation
256 I. C.J. Reports 1988, p. 82.
to its 1986 Declaration on its commitnlent under Article
XXXI of the Pact therefore cannot be accepted."257
4.15 This determination by the Court is, quite si~nply, to the effect that
jurisdiction on the basis of Article XXXI of he Pact results from an
autonomous commitment of the parties, independently of the Optional
Clause jurisdiction2S8. However, this decision did not establish a general
hegemony of the Pact, and the principle of autonomy, applied logically,
would militate against such a hegemony. The position is that the
obligations by virtue of the Pact cannot be modified by means of a
unilateral decIaration made subsequently under the ~tatute.~~'
4.1 6 The inference to be drawn is that, unless there is a clear indication to the
contrary, the concept of dispute applicable is identical in respect of both
sources of jurisdiction. There is no reason to assume that the phrasing of
ArticIe VI of the Pact of Bogotii results in the confection of an
independent and specialised criterion for the existence of a dispute.
Tndeed, the wording of Article XXXI of the Pact of Bogota rules out such
an assumption. Thus it provides as follows:
"Article XXXI. In conformity with Article 36, paragraph
2, of the Statute of the International Court of Justice, the
High Contracting Parties declare that they recognize, in
relation to any other American State, the jurisdiction of the
Court as compulsory ips0 faeto, withoui the necessity of an
special agreement so long as the present Treaty is in force,
257 1C.J Reports 1988, p. 88.
258 1C.J Reports 1988, p. 85, para. 36.
25g See the Judgment in the Armed Actions case, I.CJ Reports 1988, p. 84, para.
34.
in all disputes of a juridical nature that arise among them
concerning:
(a) The interpretation of a treaty;
(b) Any question of international law;
(c) The existence of any fact which, if established, would
constitute the breach of an international obligation; or
(d) The nature or extent of the reparation to be made for the
breach of an international obligation."
4.17 This form of drafting strongly suggests that the two sources of
jurisdiction share the same universe of concepts. Moreover, there can be
no presumption that the concept of dispute is to be a varied content
depending on the source of jurisdiction.
SUBMISSIONS
1. For the reasons advanced, the Republic of Nicaragua requests the Court
to adjudge and declare that the Preliminary Objections submitted by the
Republic of Colombia, both in respect of the jurisdiction based upon the
Pact of Rogoth, and in respect of the jurisdiction based upon Article 36,
paragraph 2, of the Statute of the Court, are invalid.
2 In the alternative, the Court is requested to adjudge and declare, in
accordance with the provisions of Article 79, paragraph 7, of the Rules of
Court that the objections submitted by the Rep~~blic ofColombia do not
have an exclusively preliminary character.
3 In addition, the Rcpublic of Nicaragua requests the Court to reject the
request of the Republic of Colombia to declare he controversy submitted
to it by Nicaragua under Article XXXl of the Pact of Bogoth 'ended', in
accordance with Articles VI and XXXIV of the same instrument.
4 Any other matters not explicitly dealt with in the foregoing Written
Statement, are expressly reserved for the merits phase of this proceeding.
The Hague, 26 January 2004
Carlos J. ARGUELLO GOMEZ
Agent of the Republic of Nicaragua

LIST OF ANNEXES
(VOLUME II)
BOOKS
ANNEX 1 Republics de Colombia, Historia de las Leyes,
Vol . XI, 1 92 8, Legislature. Edition ordered by
the Chamber of Representatives and edited by
its Secretary Fernando Restrepo Briceiio,
Bogota, Imprenta Nacional, 1930. pp. 523-525,
530, 531, 534.. . . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...
ANNEX 2 Montiel Argitello, Alejandro. Didlogos con el
Ca~lciller . Ministerio de Relac iones Exieriores.
Imprenta Nacional. Managua, pp. 1 4- 1 6.. . ... . .. . . . .
COLOMBIAN NEWSPAPERS
ANNEX 3 El Nuevo Siglo, Sincelejo, 7 September 1995 ....
ANNEX 4 El Tiempo, Bogoth, 1 0 September 1995 .............
ANNEX 5 El Espectador, Bogoti, 15 March 1996 ......,........
ANNEX 6 El Espectador, Bogoth, 10 October 200 1 ...... ......
ANNEX 7 El Ti empo, Bogoth, 1 6 Decemlxr 200 1 . . . . . . . . ., . . .,
ANNEX 8 El Tiempo, Bogoti, 24 April :!003 ...... . . . . . .. . . .. . . . . .
ANNEX 9 El Tiempo, Bogotii, 25 April 2003 ......................
ANNEX 10 El Tiempo, Bogoth, 13 June 2003 .......................
NICARAGUAN NEWSPAPERS
ANNEX 1 1 La Prensa, Managua, 1 5 June 1969, ..... . . .. . . .. . . .. . . .
ANNEX 12 Novedades, Managua, 1 8 March 1 977.. . . . . . . . . . .
ANNEX 13 El Nuevo Diari o, Managua, 24 December 1 999..
ANNEX 14 La Prensa, Managua, 24 April 2001 ...... . .. . . .. . . . .. . . 35
ANNEX 15 El Nuevo Diario, Managua, 9 October 200 1. .. . . . . 3 7
ANNEX 16 La Prensa, Managua, 30 November 2001 ............ 39
DOCUMENTS RELATING TO THE NINTH INTERNATIONAL
CONFERENCE
ANNEX 17 Minutes of the Seventh Plenary Session. Ninth
International Conference of American States.
March 30-May 2, 1 948. pp. 23 1-233.. . . . . . . . . . . ... 43
ANNEX 18 Documents Corresponding to the Third
Commission. Ninth International Conference of
American States. March 30-May 2,1948. pp. 6,
69, 79-80, 134-1 36, 1 87,204.. . . . . . . . . . . . . . . . . . . . ... 45
ANNEX 19 Ninth International Conference of American
States. Annals of the Organization of American
Stafes. Washington, D.C. Dept. of Public
Information, Pan American Union, 1 949-1 958.
Val. I No. 2. 1949. pp, 44,47-48, 50 ............... 53
AFFIDAVITS
ANNEX 20 Affidavit of Mr. Alejandro Mantiel Argiiello.. . .. 57
ANNEX 21 AfY~davit of Mr. Ernesto Leal Shchez.. . . . . . . . . . . 59
ANNEX 22 Affidavit of Mr. Francisco Aguirre Sacasa.. . . . . .. 63
ANNEX 23 Affidavit of Mr. Norman Caldera Cardenal . . . . . . . 65
OTHER DOCUMF,NTS
ANNEX 24 Records of the Sessions of the Chamber of the
Senate of Nicaragua.. ................................ 69
Annex 24 a Records of the XL VJII Session tlflhe Chm~ber of
the Senate. 4 March 1930. ............................ 69
Anna 24 b Records of the XUTSession of ihe Chamber of
the Senate. 5 March 1930. ............................ 70
ANNEX 25 Records of the LVIII Session of the Chamber of
Deputies of Nicaragua. 1 and 3 April 1930.. ..... 73
ANNEX 26 Final Record of Proceedings of the IV
Binational Meeting Nicaragua-Costa Rica.
Granada, Nicaragua, 12 and 1 :3 May 1 997 .......... 8 1
ANNEX 27 Exchange of Notes between the Government of
Costa Rica and the Government of Colombia.
29 May 2000.. ......................................... 83
ANNEX 28 Agreement concluded between Costa Rica and
Nicaragua on 26 September 2002.. ................ 87