INTERNATIONAL COURT OF JUSTICE
____________________________________________
QUESTION OF THE DELIMITATION OF THE
CONTINENTAL SHELF BETWEEN NICARAGUA
AND COLOMBIA BEYOND 200 NAUTICAL
MILES FROM THE NICARAGUAN COAST
(NICARAGUA v. COLOMBIA)
PRELIMINARY OBJECTIONS OF THE
REPUBLIC OF COLOMBIA
VOLUME I
14 AUGUST 2014 TABLE OF CONTENTS
Chapter 1
INTRODUCTION...........................................................1
Chapter 2
HISTORY OF THE PROCEEDINGS IN THE
TERRITORIALAND MARITIME DISPUTE
(NICARAGUA v. COLOMBIA) CASE, THE
JUDGMENT OF 19 NOVEMBER 2012,AND ITS
AFTERMATH .................................................................5
A. The Phases of Adjudication and the Preceding
Judgment..................................................................5
B. Colombia's Denunciation of the Pact of
Bogotá .........................................1.........................2
Chapter 3
FIRST OBJECTION: THE COURT LACKS
JURISDICTION UNDER THE PACT OF
BOGOTÁ RATIONE TEMPORIS ...............................27
A. Introduction.............................................................27
B. The Pact of Bogotá Allows Parties to
Withdraw from the Treaty by Unilateral
Denunciatio...........................................................29
(1) T he relevanT feaTures of The P acT of
B ogoTá .................................................................29
(2) T he law and Procedure of denunciaTion under
The PacT o fB ogoTá ............................................33
C. Colombia's Denunciation of the Pact of Bogotá
was in Accordance with the Requirements
of the Pact of Bogotá ...............................................57
D. Conclusion .....................................9........................5
Appendix to Ch. 3 The Pact of Bogotá ............................61
iChapter 4
SECOND PRELIMINARY OBJECTION: THE
JUDGMENT OF 19 NOVEMBER 2012 DOES
NOT GRANT THE COURT A CONTINUING
JURISDICTION ...........................................................65
A. Introduction.............................................................65
B. There Is No Jurisdictional Basis for Nicaragua's
Claim under the Statute ...........................................67
C. The Court's Jurisdiction Is Preserved Only When
the Parties or the Court Expressly So Provide ........68
D. The Judgment of 19 November 2012 Fully
Decided the Subject-Matter of the Dispute
Introduced by Nicaragua with ItsApplication of
6 December 2001 ....................................................74
(1) The JudgmenT of 19 novemBer 2012...................74
(2) There is no conTinuing JurisdicTion over The
suBJec-maTTer of nicaragua sa PPlicaTio........80
E. Conclusion ....................................2.........................8
Chapter 5
THIRD PRELIMINARY OBJECTION: THE
COURT LACKS JURISDICTION IN THIS
CASE BECAUSE NICARAGUA'S CLAIM IS
BARRED BY RES JUDICATA .....................................83
A. Introduction.............................................................83
B. The Parties' Written and Oral Submissions
iTerritorial and Maritime Dispute Regarding
Nicaragua's I(3) Claim ............................................85
(1) The issues raised in The a PPlicaTionof
16 sePTemBer 2013 were exTensively
argued By n icaragua and colomBia in The
wriTTen suBmissions Preceding ThJudgmenT
inTerriTorial anM ariTiMedispuTe.....................85
(2) The issues raised in The a PPlicaTionof
16 sePTemBer 2013 were exTensively argued
Byn icaragua and colomBia in The oral Phase
Preceding The JudgmenT in TerriTorial and
M ariTiMd ispuTe..................................................93
C. The Court's Judgment of 19 November 2012 Did
Not Uphold Nicaragua's I(3) Claim ........................99
ii (1) The c ourT uPheld
nicaragua s i(3)
19 novemBer 2012..............................................99
(2) The c ourT did noT uPhold
claim on The meriTs
D. The Court's Judgment With Respect to
Nicaragua's I(3) Claim is Res Judicata .................108
(1) The law .............................................................108
(2) Because The issues raised in
aPPlicaTion of 16 s
already Been decided By The
udgmenT ,They are res judicaTa
E. Conclusion: Nicaragua's Claim in this Case Is
Barred bRyes Judicata .........................................134
Chapter 6
FOURTH PRELIMINARY OBJECTION: THE
COURT LACKS JURISDICTION OVER A
CLAIM THAT IS AN ATTEMPT TO APPEAL
AND REVISE THE COURT JUDGMENT OF
19 NOVEMBER 2012..................................................137
A. Introduction...........................................................137
B. Nicaragua's Attempt to
Has No Basis in the Statute ...................................139
(1) udgmenTs of The
wiThouT aPPeal...................................................139
(2) nicaragua s aPPlicaTion is TanTamounT To an
aPPeal.................................................................141
C. Nicaragua Also Seeks to Revise the Court's
Judgment without Meeting the Requisites of the
Statut.e...................................................................144
(1) The sTaTuTory requiremenTs for revising a
udgmenT Based on The discovery of a new
facT are cumulaTive
(2) nicaragua s a PPlicaTion is Based on claimed
“new facTs” ........................................................146
(3) The only form
nicaragua may lodge such an aPPlicaTion is
ThaT ofa rTicle61..............................................151
(4) nicaragua has
requiremenTs ofa
ii D. Conclusions ...........................................................156
Chapter 7
PRELIMINARY OBJECTION TO ADMISSIBILITY
OF THE FIRSTAND SECOND REQUESTS IN
NICARAGUA'S APPLICATION ..............................159
A. Introduction...........................................................159
B. The Inadmissibility of Nicaragua's First Request .160
(1) as TaTe cannoT esTaBlish a conTinenTal shelf
wiThouT an enTiTlemenT .....................................160
(2) in order To esTaBlish iTs conTinenTal shelf
Beyond 200 nauTical miles a s TaTe requires
a recommendaTion By The clcs........................161
(3) T he clcs has noT made a recommendaTion .....163
(4) in These circumsTances , The icJ cannoT
delimiT The conTinenTal shelf Beyond
200 nauTical miles .............................................164
(5) c onclusion .........................................................168
C. The Inadmissibility of Nicaragua's Second
Request ...........................................69...................1
(1) inadmissiBiliTy as a consequence of
inadmissiBiliTy of (or lack of JurisdicTion
over )The firsTr equesT ....................................169
(2) T he requesT is inadmissiBle Because , if
granTed , The c ourT s decision would Be
wiThouT oBJecT ...................................................170
(3) T he requesT is a disguised ,BuT unfounded ,
requesT for Provisional measures .....................171
(4) T he requesT is inadmissiBle Because iT
concerns a non -exisTenT disPuTe .......................172
(5) c onclusion .........................................................172
Chapter 8
SUMMARY OF PRELIMINARY OBJECTIONS ...173
SUBMISSIONS............................................................175
LIST OF ANNEXES AND FIGURES........................177
iv Chapter 1
INTRODUCTION
1.1. Colombia respectfully
Court of Justice (the Court) cannot adjudicate on the matters
brought by Nicaragua's Application of 16 September 2013.
accordance with Article 79 of the Rules of Court, t his Pleading
sets out Colombia's preliminary objections to the jurisdiction of
the Court and also to the admissibility of the claims in
Nicaragua's Application.
1.2. In its Application, Nicaragua has requested the Court to
adjudge and declare,
“First: The precise course of the maritime
boundary between Nicaragua and Colombia in the
areas of the continental shelf which appertain to
each of them beyond the boundaries determined by
the Court in its Judgment of 19 November 2012.
Second: The principles and rules of international
law that determine the rights and duties of the two
States in relation to the area of overlapping
continental shelf claims and the use
resources, pending the delimitation of the maritime
boundary between them beyond 200 nautical miles
from Nicaragua's coast.”
1
Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan
Coast (Nicaragua v. Colombia), Application of the Republic of Nicaragua
instituting proceedings a gainst t he Republic of Colombia, 16 Sept
(“Application”), p. 8, para. 12.
iv1.3. In its Application, Nicaragua purports to base the
jurisdiction of the Court on two grounds. The first is that
“[t]he jurisdiction of the Court in this case is based
on Article XXXI of the American Treaty on Pacific
2
Settlement (Pact of Bogotá) of 30 April 1948.”
As an additional ground,
“Nicaragua submits that the subject -matter of the
present Application remains within t he jurisdiction
of the Court established in the case concerning the
Territorial and Maritime Dispute ( Nicaragua v.
Colombia) of which the Court was seised by the
Application dated 6 December 2001, submitted by
Nicaragua, in as much as the Court did not in its
Judgment dated 19 November 2012 definitively
determine the question of the delimitation of the
continental shelf between Nicaragua and Colombia
in the area beyond 200 nautical miles from the
Nicaraguan coast, which question was and remains
before the Court in that case.”3
1.4. Colombia submits that neither of the grounds which
Nicaragua invokes affords it jurisdiction in the instant case.
Moreover, its Application is barred by the res judicata effect of
the Court 's Judgment of 19 November 2012. Nicaragua's
Application also fails jurisdiction and admissibility on other
grounds as detailed below.
1.5. Chapter 2 of this pleading reviews the history of this
dispute beginning in 2001, the Judgment of the Court of
19 November 2012 in Territorial and Maritime Dispute , and
2
3 Application, at para. 8.
Ibid., at para. 10.
21.3. In its Application, Nicaragua purports to base the
jurisdiction of the Court on two grounds. The first is that
“[t]he jurisdiction of the Court in this case is based
on Article XXXI of the American Treaty on Pacific
2
Settlement (Pact of Bogotá) of 30 April 1948.”
As an additional ground,
“Nicaragua submits that the subject -matter of the
present Application remains within t he jurisdiction
of the Court established in the case concerning the
Territorial and Maritime Dispute ( Nicaragua v.
Colombia) of which the Court was seised by the
Application dated 6 December 2001, submitted by
Nicaragua, in as much as the Court did not in its
Judgment dated 19 November 2012 definitively
determine the question of the delimitation of the
continental shelf between Nicaragua and Colombia
in the area beyond 200 nautical miles from the
Nicaraguan coast, which question was and remains
before the Court in that case.”3
1.4. Colombia submits that neither of the grounds which
Nicaragua invokes affords it jurisdiction in the instant case.
Moreover, its Application is barred by the res judicata effect of
the Court 's Judgment of 19 November 2012. Nicaragua's
Application also fails jurisdiction and admissibility on other
grounds as detailed below.
1.5. Chapter 2 of this pleading reviews the history of this
dispute beginning in 2001, the Judgment of the Court of
19 November 2012 in Territorial and Maritime Dispute , and
2
3 Application, at para. 8.
Ibid., at para. 10.
2Court's Judgment of 19 November 2012 without complying with
the requirements of the Statute.
1.10. Chapter 7 presents Colombia's fifth preliminary
objection which demonstrates that the first and second requests
of Nicaragua's Application are inadmissible because the
Commission on the Limits of the Continental Shelf (hereafter
“CLCS”) has not made the requisite recommendation.
1.11. Chapter 8 summarizes Colombia's objections to
jurisdiction and admissibility , and is followed by Colombia's
submissions.
4Court's Judgment of 19 November 2012 without complying with
the requirements of the Statute.
1.10. Chapter 7 presents Colombia's fifth preliminary
objection which demonstrates that the first and second requests
of Nicaragua's Application are inadmissible because the
Commission on the Limits of the Continental Shelf (hereafter
“CLCS”) has not made the requisite recommendation.
1.11. Chapter 8 summarizes Colombia's objections to
jurisdiction and admissibility , and is followed by Colombia's
submissions.
4 question of sovereignty over the islands of San
Andrés, Providencia and Santa Catalina.” 4
2.3. The Court also concluded that it had jurisdiction under
Article XXXI of the Pact of Bogotá – the same jurisdictional
basis sought by Nicaragua in its present Application – to
adjudicate the dispute concerning sovereignty over a group of
Colombian islands in the Caribbean – different from those
already men tioned – and upon the maritime d elimitation
between the Parties. 5
2.4. On 25 February 2010 and 10 June 2010, respectively, the
Republic of Costa Rica and the Republic of Honduras each filed
an Application for permission to intervene pursuant to Article 62
of the Statute of the Court. In separate judgments dated 4 May
2011, the Court denied permission to intervene to either Costa
Rica or Honduras, because, in its opinion, each had failed to
demonstrate that it possessed an interest of a legal nature which
6
might be affected by the decision in the main proceedings.
2.5. The written proceedings on the merits consisted of two
full rounds of pleadings. After the closing of this phase, public
hearings were held between 23 April and 4 May 2012.
4
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 861, para. 90.
5 Ibid., p. 876, para. 142 (3) (a) and (b).
6 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Application by Costa Rica for Permission to Intervene, Judgment, I.C.J.
Reports 2011, p. 348 at p. 373, paras. 90-91; Ibid., Application by Honduras
for Permission to Intervene p. 420 at p. 444, paras. 75-76.
6 question of sovereignty over the islands of San
Andrés, Providencia and Santa Catalina.” 4
2.3. The Court also concluded that it had jurisdiction under
Article XXXI of the Pact of Bogotá – the same jurisdictional
basis sought by Nicaragua in its present Application – to
adjudicate the dispute concerning sovereignty over a group of
Colombian islands in the Caribbean – different from those
already men tioned – and upon the maritime d elimitation
between the Parties. 5
2.4. On 25 February 2010 and 10 June 2010, respectively, the
Republic of Costa Rica and the Republic of Honduras each filed
an Application for permission to intervene pursuant to Article 62
of the Statute of the Court. In separate judgments dated 4 May
2011, the Court denied permission to intervene to either Costa
Rica or Honduras, because, in its opinion, each had failed to
demonstrate that it possessed an interest of a legal nature which
6
might be affected by the decision in the main proceedings.
2.5. The written proceedings on the merits consisted of two
full rounds of pleadings. After the closing of this phase, public
hearings were held between 23 April and 4 May 2012.
4
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 861, para. 90.
5 Ibid., p. 876, para. 142 (3) (a) and (b).
6 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Application by Costa Rica for Permission to Intervene, Judgment, I.C.J.
Reports 2011, p. 348 at p. 373, paras. 90-91; Ibid., Application by Honduras
for Permission to Intervene p. 420 at p. 444, paras. 75-76.
6and extent of the delimitation to be effected, Nicaragua
submitted:
“On a substantive level, Nicaragua originally
requested of the Court, and continues to so request,
that all maritime areas of Nicaragua and Colombia
be delimited on the basis of international law; that
is, in a way that guarantees to the Parties an
equitable result.
(…)
But whatever method or procedure is adopted by
the Court to effect the delimitation, the aim of
Nicaragua is that the decision leaves no more
maritime areas pending delimitation between
Nicaragua and Colombia. This was and is the main
objective of Nicaragua since it filed its Application
10
in this case.”
2.10. At the hearing of 1 May 2012, Nicaragua insisted on a
delimitation of all maritime entitlements between itself and
Colombia, emphasizing that the appropriate form of delimitation
was “a con tinental shelf boundary dividing by equal parts the
overlapping entitlements to a continental shelf of both Parties.” 11
This Submission I(3) was deliberated by the Court in terms of its
admissibility, and also, in terms of its merits.
2.11. For its part, Colombia, at all stages of the proceedings in
the merits, rejected Nicaragua 's contention on what was to be
10
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012 , p. 671, para. 134; Ibid., Public Sitting
23 April 2012, CR2012/8 , pp. 24 -25, paras. 43 -44 (Nicaraguan Agent).
(Emphasis added)
11 Ibid., Public Sitting 1 May 2012, CR2012/15 Corr. , p. 50, Final
Submission I(3) (Nicaraguan Agent).
8and extent of the delimitation to be effected, Nicaragua
submitted:
“On a substantive level, Nicaragua originally
requested of the Court, and continues to so request,
that all maritime areas of Nicaragua and Colombia
be delimited on the basis of international law; that
is, in a way that guarantees to the Parties an
equitable result.
(…)
But whatever method or procedure is adopted by
the Court to effect the delimitation, the aim of
Nicaragua is that the decision leaves no more
maritime areas pending delimitation between
Nicaragua and Colombia. This was and is the main
objective of Nicaragua since it filed its Application
in this case.”10
2.10. At the hearing of 1 May 2012, Nicaragua insisted on a
delimitation of all maritime entitlements between itself and
Colombia, emphasizing that the appropriate form of delimitation
was “a con tinental shelf boundary dividing by equal parts the
overlapping entitlements to a continental shelf of both Parties.” 11
This Submission I(3) was deliberated by the Court in terms of its
admissibility, and also, in terms of its merits.
2.11. For its part, Colombia, at all stages of the proceedings in
the merits, rejected Nicaragua 's contention on what was to be
10
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012 , p. 671, para. 134; Ibid., Public Sitting
23 April 2012, CR2012/8 , pp. 24 -25, paras. 43 -44 (Nicaraguan Agent).
(Emphasis added)
11 Ibid., Public Sitting 1 May 2012, CR2012/15 Corr. , p. 50, Final
Submission I(3) (Nicaraguan Agent).
8over the cays in dispute as well as for drawing the maritime
delimitation between Nicaragua and Colombia.
2.16. In it, the Court described the distance of San Andrés,
Providencia and Santa Catalina in relation to bot h the
Nicaraguan and Colombian mainland coasts. It said:
“The islands of San Andrés, Providencia and Santa
Catalina are situated opposite the mainland coast of
Nicaragua. San Andrés is approximately
105 nautical miles from Nicaragua. Providencia
and Santa Catalina are located some 47 nautical
miles north-east of San Andrés and approximately
125 nautical miles from Nicaragua. All three
islands are approximately 380 nautical miles from
the mainland of Colombia.” 16
2.17. Section II dealt with sovereignty ov er the seven islands
in dispute.17 In this regard, the Court noted:
“… under the terms of the 1928 Treaty, Colombia
has sovereignty over ‘San Andrés, Providencia and
Santa Catalina and over the other islands, islets and
reefs forming par 18 t of the San Andrés
Archipelago’…”
2.18. With respect to the sovereignty over the other islands of
the San Andrés Archipelago claimed by Nicaragua, the Court
confirmed Colombia's sovereignty, stating that:
“Having considered the entirety of the arguments
and evidence put forward by the Parties, the Court
16
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 638, para. 22.
17 Ibid., pp. 641-662, paras. 25-103.
18 Ibid., p. 646, para. 42.
10over the cays in dispute as well as for drawing the maritime
delimitation between Nicaragua and Colombia.
2.16. In it, the Court described the distance of San Andrés,
Providencia and Santa Catalina in relation to bot h the
Nicaraguan and Colombian mainland coasts. It said:
“The islands of San Andrés, Providencia and Santa
Catalina are situated opposite the mainland coast of
Nicaragua. San Andrés is approximately
105 nautical miles from Nicaragua. Providencia
and Santa Catalina are located some 47 nautical
miles north-east of San Andrés and approximately
125 nautical miles from Nicaragua. All three
islands are approximately 380 nautical miles from
the mainland of Colombia.” 16
2.17. Section II dealt with sovereignty ov er the seven islands
17
in dispute. In this regard, the Court noted:
“… under the terms of the 1928 Treaty, Colombia
has sovereignty over ‘San Andrés, Providencia and
Santa Catalina and over the other islands, islets and
reefs forming par t of the San Andrés
Archipelago’…” 18
2.18. With respect to the sovereignty over the other islands of
the San Andrés Archipelago claimed by Nicaragua, the Court
confirmed Colombia's sovereignty, stating that:
“Having considered the entirety of the arguments
and evidence put forward by the Parties, the Court
16 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 638, para. 22.
17 Ibid., pp. 641-662, paras. 25-103.
18 Ibid., p. 646, para. 42.
10a continental shelf of both Parties” as requested by Nicaragua in
its final submission I(3).24
2.22. The Court analysed the jurisprudence referred to by
Nicaragua in support of its claim for a continental shelf
delimitation, in particular, the Judgment of 14 March 2012
rendered by ITLOS in the case concerning the Delimitation of
the Maritime Boundary betw een Bangladesh and Mya nmar in
the Bay of Bengal (Bangladesh/Myanmar) and the Judgment of
8 October 2007 in the case concerning the Territorial and
Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras).
2.23. With regard to the Judgment by ITLOS, the Court
summarized the geographical circumstances and consequent
conclusions of the Tribunal, evidencing essential differences
with the geographical context in the case under adjudication.
The Court recalled that in the ITLOS Judgment, the Tribunal did
not determine the outer limits of the continental shelf beyond
200 nautical miles; it extended the line of the single maritime
boundary beyond the 200-nautical-mile limit until it reached the
area where the rights of third States may be affected. In doing
so, the Tribunal underlined that, in view of the fact that a thick
layer of sedimentary rocks covers practically the entire floor of
the Bay of Bengal, the Bay presents a “unique situation” as
24 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 665, para. 113.
12a continental shelf of both Parties” as requested by Nicaragua in
its final submission I(3).24
2.22. The Court analysed the jurisprudence referred to by
Nicaragua in support of its claim for a continental shelf
delimitation, in particular, the Judgment of 14 March 2012
rendered by ITLOS in the case concerning the Delimitation of
the Maritime Boundary betw een Bangladesh and Mya nmar in
the Bay of Bengal (Bangladesh/Myanmar) and the Judgment of
8 October 2007 in the case concerning the Territorial and
Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras).
2.23. With regard to the Judgment by ITLOS, the Court
summarized the geographical circumstances and consequent
conclusions of the Tribunal, evidencing essential differences
with the geographical context in the case under adjudication.
The Court recalled that in the ITLOS Judgment, the Tribunal did
not determine the outer limits of the continental shelf beyond
200 nautical miles; it extended the line of the single maritime
boundary beyond the 200-nautical-mile limit until it reached the
area where the rights of third States may be affected. In doing
so, the Tribunal underlined that, in view of the fact that a thick
layer of sedimentary rocks covers practically the entire floor of
the Bay of Bengal, the Bay presents a “unique situation” as
24 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 665, para. 113.
12 delimitation line which has a defined course ’.
Nicaragua suggested that ‘the Court could make
that delimitation by defining the boundary in words
such as “the boundary is the median line between
the outer edge of Nicaragua 's continental shelf
fixed in accordance with UNCLOS Article 76 and
the outer limit of Colombia's 200‑mile zone”’.
This formula, Nicaragua suggested, ‘does not
require the Court to determin e precisely where the
outer edge of Nicaragua's shelf lies ’. The outer
limits could be then established by Nicaragua at a
later stage, on the 28sis of the recommendations of
the Commission.”
2.26. The Court proceeded to examine this “general
formulation” proposed by Nicaragua and decided that since
Nicaragua had
“…not established that it has a continental margin
that extends far enough to overlap with Colombia's
200-nautical-mile entitlement to the continental
shelf, measured from Colombia 's mainland coast,
the Court is not in a position to delimit the
continental shelf boundary between Nicaragua and
Colombia, as requested by Nicaragua, even using
29
the general formulation proposed by it.”
2.27. Therefore, after evaluating Nicaragua 's evidence, the
Court concluded that “Nicaragua 's claim contained in its final
submission I(3) cannot be upheld.” 30
28 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 669, para. 128.
29 Ibid., p. 669, para. 129.
30 Ibid., p. 670, para. 131 and p. 719, para. 251 (3).
14 delimitation line which has a defined course ’.
Nicaragua suggested that ‘the Court could make
that delimitation by defining the boundary in words
such as “the boundary is the median line between
the outer edge of Nicaragua 's continental shelf
fixed in accordance with UNCLOS Article 76 and
the outer limit of Colombia's 200‑mile zone”’.
This formula, Nicaragua suggested, ‘does not
require the Court to determin e precisely where the
outer edge of Nicaragua's shelf lies ’. The outer
limits could be then established by Nicaragua at a
later stage, on the28asis of the recommendations of
the Commission.”
2.26. The Court proceeded to examine this “general
formulation” proposed by Nicaragua and decided that since
Nicaragua had
“…not established that it has a continental margin
that extends far enough to overlap with Colombia's
200-nautical-mile entitlement to the continental
shelf, measured from Colombia 's mainland coast,
the Court is not in a position to delimit the
continental shelf boundary between Nicaragua and
Colombia, as requested by Nicaragua, even using
29
the general formulation proposed by it.”
2.27. Therefore, after evaluating Nicaragua 's evidence, the
Court concluded that “Nicaragua 's claim contained in its final
submission I(3) cannot be upheld.” 30
28 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 669, para. 128.
29 Ibid., p. 669, para. 129.
30 Ibid., p. 670, para. 131 and p. 719, para. 251 (3).
142.31. The Court concluded and described the relevant area as
follows:
“The relevant area comprises that part of the
maritime space in which the potential entitlements
of the parties overlap. It follows that, in the present
case, the relevant area cannot stop, as Colombia
maintains it should, at the western coasts of the
Colombian islands. Nicaragua 's coast, and the
Nicaraguan islands adjacent thereto, project a
potential maritime entitlement across the sea bed
and water column for 200 nautical miles. That
potential entitlement thus extends to t he sea bed
and water column to the east of the Colombian
islands where, of course, it overlaps with the
competing potential entitlement of Colombia
derived from those islands. Accordingly, the
relevant area extends from the Nicaraguan coast to
a line in the east 200 nautical m iles from the
baselines from which the bread35 of Nicarag ua's
territorial sea is measured.”
2.32. The Court recalled that
“…the relevant area cannot extend beyond the area
in which the entitlements of both Parties overlap.
Accordingly, if either Party has no entitlement in a
particular area, whether because of an agreement it
has concluded with a third State or because that
area lies beyond a judici ally determined boundary
between that Party and a third State, that area
cannot be treated as36art of the relevan t area for
present purposes.”
35 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 683, para. 159.
36 Ibid., pp. 685-686, para. 163.
162.31. The Court concluded and described the relevant area as
follows:
“The relevant area comprises that part of the
maritime space in which the potential entitlements
of the parties overlap. It follows that, in the present
case, the relevant area cannot stop, as Colombia
maintains it should, at the western coasts of the
Colombian islands. Nicaragua 's coast, and the
Nicaraguan islands adjacent thereto, project a
potential maritime entitlement across the sea bed
and water column for 200 nautical miles. That
potential entitlement thus extends to t he sea bed
and water column to the east of the Colombian
islands where, of course, it overlaps with the
competing potential entitlement of Colombia
derived from those islands. Accordingly, the
relevant area extends from the Nicaraguan coast to
a line in the east 200 nautical m iles from the
baselines from which the bread35 of Nicarag ua's
territorial sea is measured.”
2.32. The Court recalled that
“…the relevant area cannot extend beyond the area
in which the entitlements of both Parties overlap.
Accordingly, if either Party has no entitlement in a
particular area, whether because of an agreement it
has concluded with a third State or because that
area lies beyond a judici ally determined boundary
between that Party and a third State, that area
cannot be treated as36art of the relevan t area for
present purposes.”
35 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 683, para. 159.
36 Ibid., pp. 685-686, para. 163.
16Santa Catalina would entirely overlap any similar entitlement
found to appertain to Serranilla or Bajo Nuevo. 40
2.36. The Court concluded that, taking into account all the
circumstances of the case, including the need to avoid a cut -off
effect on either State – and the ensuing requirement for San
Andrés, Providencia and Santa Catalina not to be cut off from
the entitlement to an exclusive economic zone and continental
shelf to their east, even in the area within 200 nautical miles of
their coasts but beyond 200 nautical miles of the Nicaraguan
baselines 41 – the result achieved by the application of the line
provisionally adopted in the previous section of the Judgment
did not produce such a disproportionality as to create an
42
inequitable result.
2.37. In determining the course of the maritime boun dary, the
Court considered that
“…it must take proper account both of the disparity
in coastal length and the need to avoid cutting
either State off from the maritime spaces into
which its coasts project. In the view of the Court,
an equitable result which gives proper weight to
those relevant considerations is achieved by
continuing the boundary line out to the line
200 nautical miles from the Nicaraguan baselines
43
along lines of latitude.”
40 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 689, para. 175.
41 Ibid., pp. 716-717, para. 244.
42 Ibid., p. 717, para. 247.
43 Ibid., p. 710, para. 236.
18Santa Catalina would entirely overlap any similar entitlement
found to appertain to Serranilla or Bajo Nuevo. 40
2.36. The Court concluded that, taking into account all the
circumstances of the case, including the need to avoid a cut -off
effect on either State – and the ensuing requirement for San
Andrés, Providencia and Santa Catalina not to be cut off from
the entitlement to an exclusive economic zone and continental
shelf to their east, even in the area within 200 nautical miles of
their coasts but beyond 200 nautical miles of the Nicaraguan
baselines 41– the result achieved by the application of the line
provisionally adopted in the previous section of the Judgment
did not produce such a disproportionality as to create an
42
inequitable result.
2.37. In determining the course of the maritime boun dary, the
Court considered that
“…it must take proper account both of the disparity
in coastal length and the need to avoid cutting
either State off from the maritime spaces into
which its coasts project. In the view of the Court,
an equitable result which gives proper weight to
those relevant considerations is achieved by
continuing the boundary line out to the line
200 nautical miles from the Nicaraguan baselines
43
along lines of latitude.”
40 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 689, para. 175.
41 Ibid., pp. 716-717, para. 244.
42 Ibid., p. 717, para. 247.
43 Ibid., p. 710, para. 236.
18Nicaragua and the Republic of Colombia shall
follow geodetic lines connecting the points with
co-ordinates:
Latitude north Longitude west
2.40. All of the above may be summarized as follows: (i) the
1. 13° 46ʹ 35.7˝ 81° 29ʹ 34.7˝ Court declared admissible Nicaragua's submission on its alleged
2. 13° 31ʹ 08.0˝ 81° 45ʹ 59.4˝
continental shelf beyond 200 nautical miles from its coast; (ii) it
3. 13° 03ʹ 15.8˝ 81° 46ʹ 22.7˝
analysed that submission on its merits; and, (iii) in the operative
4. 12° 50ʹ 12.8˝ 81° 59ʹ 22.6˝
5. 12° 07ʹ 28.8˝ 82° 07ʹ 27.7˝ part of the Judgment, it made a final delimitation of all
overlapping entitlements, deciding in full, on all the submissions
6. 12° 00ʹ 04.5˝ 81° 57ʹ 57.8˝
presented by the Parties. The decisions consisted in: (a) finding
From point 1, the maritime boundary line shall
continue due east along the parallel of latitude (co- “admissible the Republic of Nicaragua 's claim contained in its
ordinates 13° 46ʹ 35.7˝ N) until it reaches the 200-
nautical-mile limit from the baselines from which final submission I(3)”; (b)
the breadth of the territorial sea of Nicaragua is Republic of Nicaragua
measured. From point 6 (with co-ordinates 12° 00ʹ submission I(3)”; and, (c) deciding that “the line of the single
04.5˝ N and 81° 57ʹ 57.8˝ W), located on a 12-
nautical-mile envelope of arcs around maritime boundary del imiting the continental shelf and the
Alburquerque, the maritime boundary line shall
continue along that envelope of arcs until it reaches exclusive economic zones of the Republic of Nicaragua and the
point 7 (with co-ordinates 12° 11ʹ 53.5˝ N and 81° Republic of Colombia shall follow geodetic lines connecting the
38ʹ 16.6˝ W) which is located on the parallel
points with co-ordinates” which were indicated in the op erative
passing through the southernmost point on the 12 -
nautical-mile envelope of arcs around East - part of the Judgment.
Southeast Cays. The boundary line then follows
that parallel until it reaches the southernmost point
of the 12 -nautical-mile envelope of arcs around
East-Southeast Cays at point 8 (with co -ordinates B. Colombia's Denunciation of the Pact of Bogotá
12° 11 ʹ 53.5˝ N and 81° 28ʹ 29.5˝ W) and 2.41. Colombia denounced the Pact of Bogotá, on
continues along that envelope of arcs until its most
eastward point (point 9 with co -ordinates 12° 24 ʹ 27 November 2012. On that date, the Minister of Foreign
09.3˝ N and 81° 14ʹ 43.9˝ W). From that point the
boundary line follows the parallel of lat itude Affairs of Colombia transmitted to the depository, the General
(co-ordinates 12° 24 ʹ 09.3˝ N) until it reaches the
Secretariat of the Organization of American State
200-nautical-mile limit from the baselines from
45
Judgment, I.C.J. Reports 2012, pp. 718-720, para. 251.
20Nicaragua and the Republic of Colombia shall
follow geodetic lines connecting the points with
co-ordinates:
Latitude north Longitude west
2.40. All of the above may be summarized as follows: (i) the
1. 13° 46ʹ 35.7˝ 81° 29ʹ 34.7˝ Court declared admissible Nicaragua's submission on its alleged
2. 13° 31ʹ 08.0˝ 81° 45ʹ 59.4˝
continental shelf beyond 200 nautical miles from its coast; (ii) it
3. 13° 03ʹ 15.8˝ 81° 46ʹ 22.7˝
analysed that submission on its merits; and, (iii) in the operative
4. 12° 50ʹ 12.8˝ 81° 59ʹ 22.6˝
5. 12° 07ʹ 28.8˝ 82° 07ʹ 27.7˝ part of the Judgment, it made a final delimitation of all
overlapping entitlements, deciding in full, on all the submissions
6. 12° 00ʹ 04.5˝ 81° 57ʹ 57.8˝
presented by the Parties. The decisions consisted in: (a) finding
From point 1, the maritime boundary line shall
continue due east along the parallel of latitude (co- “admissible the Republic of Nicaragua 's claim contained in its
ordinates 13° 46ʹ 35.7˝ N) until it reaches the 200-
nautical-mile limit from the baselines from which final submission I(3)”; (b)
the breadth of the territorial sea of Nicaragua is Republic of Nicaragua
measured. From point 6 (with co-ordinates 12° 00ʹ submission I(3)”; and, (c) deciding that “the line of the single
04.5˝ N and 81° 57ʹ 57.8˝ W), located on a 12-
nautical-mile envelope of arcs around maritime boundary del imiting the continental shelf and the
Alburquerque, the maritime boundary line shall
continue along that envelope of arcs until it reaches exclusive economic zones of the Republic of Nicaragua and the
point 7 (with co-ordinates 12° 11ʹ 53.5˝ N and 81° Republic of Colombia shall follow geodetic lines connecting the
38ʹ 16.6˝ W) which is located on the parallel
points with co-ordinates” which were indicated in the op erative
passing through the southernmost point on the 12 -
nautical-mile envelope of arcs around East - part of the Judgment.
Southeast Cays. The boundary line then follows
that parallel until it reaches the southernmost point
of the 12 -nautical-mile envelope of arcs around
East-Southeast Cays at point 8 (with co -ordinates B. Colombia's Denunciation of the Pact of Bogotá
12° 11 ʹ 53.5˝ N and 81° 28ʹ 29.5˝ W) and 2.41. Colombia denounced the Pact of Bogotá, on
continues along that envelope of arcs until its most
eastward point (point 9 with co -ordinates 12° 24 ʹ 27 November 2012. On that date, the Minister of Foreign
09.3˝ N and 81° 14ʹ 43.9˝ W). From that point the
boundary line follows the parallel of lat itude Affairs of Colombia transmitted to the depository, the General
(co-ordinates 12° 24 ʹ 09.3˝ N) until it reaches the
Secretariat of the Organization of American State
200-nautical-mile limit from the baselines from
45
Judgment, I.C.J. Reports 2012, pp. 718-720, para. 251.
20notification o f denunciation purs uant to Article LVI of the
46
Pact.
2.42. Article LVI of the Pact of Bogotá, which governs
withdrawal from the treaty, provides that:
“ARTICLE LVI
The present Treaty shall remain in force
indefinitely, but may be denounced upon one year's
notice, at the end of which period it shall cease to
be in force with respect to the state denouncing it,
but shall continue in force for the remaining
signatories. The denunciation shall be addressed to
the Pan American Union, which shall transmit it to
the other Contracting Parties.
The denunciation shall have no effect with respect
to pending procedures initiated prior to the 47
transmission of the particular notification.”
2.43. The full terms of the Note of 27 November 2012,
wherein the Minister stated that Colombia 's denunciation of the
Pact took effect “as of today” (27 November 2012) with regard
to the procedures that were initiated after its notice – in
conformity with Article LVI – are as follows:
“I have the honour to address Your Excellency, in
accordance with article LVI of the American
Treaty on Pacific Settlement, on the occasion of
notifying the General Secretariat of the
Organization of American States, as s uccessor of
the Pan American Union, that the Republic of
46 o
Annex 1: Diplomatic Note N GACIJ 79357 from the Minister of
Foreign Affairs of Colombia to the Secretary -General of the Organization of
American States, 27 Nov. 2012.
47 Annex 18: Text of the Pact of Bogotá, in the Four Authentic
Languages, English, Article LVI.Emphasisadded)
22notification o f denunciation purs uant to Article LVI of the
46
Pact.
2.42. Article LVI of the Pact of Bogotá, which governs
withdrawal from the treaty, provides that:
“ARTICLE LVI
The present Treaty shall remain in force
indefinitely, but may be denounced upon one year's
notice, at the end of which period it shall cease to
be in force with respect to the state denouncing it,
but shall continue in force for the remaining
signatories. The denunciation shall be addressed to
the Pan American Union, which shall transmit it to
the other Contracting Parties.
The denunciation shall have no effect with respect
to pending procedures initiated prior to the 47
transmission of the particular notification.”
2.43. The full terms of the Note of 27 November 2012,
wherein the Minister stated that Colombia 's denunciation of the
Pact took effect “as of today” (27 November 2012) with regard
to the procedures that were initiated after its notice – in
conformity with Article LVI – are as follows:
“I have the honour to address Your Excellency, in
accordance with article LVI of the American
Treaty on Pacific Settlement, on the occasion of
notifying the General Secretariat of the
Organization of American States, as s uccessor of
the Pan American Union, that the Republic of
46 o
Annex 1: Diplomatic Note N GACIJ 79357 from the Minister of
Foreign Affairs of Colombia to the Secretary -General of the Organization of
American States, 27 Nov. 2012.
47 Annex 18: Text of the Pact of Bogotá, in the Four Authentic
Languages, English, Article LVI.Emphasisadded)
22subsequent to the tra nsmission of the notification, that is,
27 November 2012.
2.45. On 28 November 2012, the Department of International
Law of the Secretariat for Legal Affairs of the OAS informed
States Parties to the Pact and the Permanent Missions of the
Member States that on 27 November 2012 it had received Note
GACIJ No. 79357 by which the Republic of Colombia
“denounced” the American Treaty on Pacific Settlement “Pact
of Bogotá”, signed in Bogotá, 30 April 1948. The OAS note
reads as follows:
“The Department of International Law of the
Secretariat for Legal Affairs of the Organization of
American States (OAS) has the honor to greet the
High Contracting Parties to the American Treaty
on Pacific Settlement (Pact of Bogotá) and the
other Permanent Missions before the OAS with the
object of notifying that on 27 November, 2012 it
received from the Republic of Colombia the note
GACIJ No. 79357, attached to the present one, by
which the latter withdrew from said Treaty,
adopted on 30 April 1948 durin g the Ninth
International American Conference.” 49
49 Annex 2: Note N o OEA/2.2/109/12 from the Department of
International Law, Secretariat for Legal Affairs to thHigh Contracting
Parties to the American Treaty on Pacific Settlement (Pact of Bogotá) and to
the other Permanent Missions to the OAS, 28 Nov. 2012. The original text in
Spanish reads as follows:
“El Departamento de Derecho Internacional de la Secretaría
de Asuntos Jurídicos de la Organización de los Estados
Americanos (OEA) tiene el honor de saludar a las Altas Partes
Contratantes del Tratado Americano de Soluciones Pacíficas
(Pacto de Bogotá) y a las demás Misiones Permanentes ante
la OEA con el objeto de poner en su conocimiento que con
fecha 27 de noviembre de 2012 recibió por parte de la
República de Colombia la Nota GACIJ No. 79357, adjunta a
la presente, mediante la cual den uncia dicho Tratado
24subsequent to the tra nsmission of the notification, that is,
27 November 2012.
2.45. On 28 November 2012, the Department of International
Law of the Secretariat for Legal Affairs of the OAS informed
States Parties to the Pact and the Permanent Missions of the
Member States that on 27 November 2012 it had received Note
GACIJ No. 79357 by which the Republic of Colombia
“denounced” the American Treaty on Pacific Settlement “Pact
of Bogotá”, signed in Bogotá, 30 April 1948. The OAS note
reads as follows:
“The Department of International Law of the
Secretariat for Legal Affairs of the Organization of
American States (OAS) has the honor to greet the
High Contracting Parties to the American Treaty
on Pacific Settlement (Pact of Bogotá) and the
other Permanent Missions before the OAS with the
object of notifying that on 27 November, 2012 it
received from the Republic of Colombia the note
GACIJ No. 79357, attached to the present one, by
which the latter withdrew from said Treaty,
adopted on 30 April 1948 durin g the Ninth
International American Conference.” 49
49 Annex 2: Note N o OEA/2.2/109/12 from the Department of
International Law, Secretariat for Legal Affairs to tHigh Contracting
Parties to the American Treaty on Pacific Settlement (Pact of Bogotá) and to
the other Permanent Missions to the OAS, 28 Nov. 2012. The original text in
Spanish reads as follows:
“El Departamento de Derecho Internacional de la Secretaría
de Asuntos Jurídicos de la Organización de los Estados
Americanos (OEA) tiene el honor de saludar a las Altas Partes
Contratantes del Tratado Americano de Soluciones Pacíficas
(Pacto de Bogotá) y a las demás Misiones Permanentes ante
la OEA con el objeto de poner en su conocimiento que con
fecha 27 de noviembre de 2012 recibió por parte de la
República de Colombia la Nota GACIJ No. 79357, adjunta a
la presente, mediante la cual den uncia dicho Tratado
24 Chapter 3
FIRST OBJECTION: THE COURT LACKS
JURISDICTION UNDER THE PACT OF BOGOTÁ
RATIONE TEMPORIS
A. Introduction
3.1. In instituting these proceedings, Nicaragua has put
forward, as its principal basis of jurisdiction, Art icle XXXI of
the Pact of Bogotá. On the face of its Application, several issues
do not appear to be in contention: first, that N icaragua is a party
to the Pact ; second, that Colombia, whi ch had been a party to
the Pact, lawfully and effectively denounced it, on 27 November
2012, in accordance wi th its terms ; third, that Colombia
notification of denunciation stated that, in accordance with
Article LVI of the Pact , “the denunciation... shall apply as of
today with respect to proceedings which may be initiated
subsequent to the present notice...”; and, fourth, that Nicaragua's
Application has been lodged after the date of the transmission of
the notice of denunciation. The essential point
that Nicaragua avers in its Application that “in accordance with
Article LVI of the Pact, that denunciation will take effect after
one year, so that the Pact remains in force for Colombia until
27 November 2013.” 50 In doing so, Nicaragua errs in its
interpretation of Article LVI.
50
Application, para. 9.
26 Chapter 3
FIRST OBJECTION: THE COURT LACKS
JURISDICTION UNDER THE PACT OF BOGOTÁ
RATIONE TEMPORIS
A. Introduction
3.1. In instituting these proceedings, Nicaragua has put
forward, as its principal basis of jurisdiction, Art icle XXXI of
the Pact of Bogotá. On the face of its Application, several issues
do not appear to be in contention: first, that N icaragua is a party
to the Pact ; second, that Colombia, whi ch had been a party to
the Pact, lawfully and effectively denounced it, on 27 November
2012, in accordance wi th its terms ; third, that Colombia
notification of denunciation stated that, in accordance with
Article LVI of the Pact , “the denunciation... shall apply as of
today with respect to proceedings which may be initiated
subsequent to the present notice...”; and, fourth, that Nicaragua's
Application has been lodged after the date of the transmission of
the notice of denunciation. The essential point
that Nicaragua avers in its Application that “in accordance with
Article LVI of the Pact, that denunciation will take effect after
one year, so that the Pact remains in force for Colombia until
27 November 2013.” 50 In doing so, Nicaragua errs in its
interpretation of Article LVI.
50
Application, para. 9.
263.2. The conclusion in 1948 of an American treaty on pacific
settlement, which included under certain conditions acceptance
of the compulsory jurisdiction of a permanent international
judicial institution, the International Court of Justice, was
considered a significant step by the American States and was not
undertaken lightl y: the Pact contained a number of important
safeguards, one of which was the right to terminate that
acceptance with immediate effect.
3.3. Colombia will show that the Court is without jurisdiction
under Article XXXI of the Pact of Bogotá because Colombia 's
notification of denunciation of the Pact was transmitted to the
General Secretariat of the Organization of American States on
27 November 2012. From the date of transmission
(27 November 2012), Colombia no longer accepted the
jurisdiction of the Court under Article XXXI of the Pact. As the
present case was instituted by Nicaragua on 16 September 2013,
long after 27 November 2012 (the date on which Colombia 's
consent to the jurisdiction of the Court under Article XXXI of
the Pact ceased to have effect as provided in its Article LVI), the
Court has no jurisdiction over this case.
3.4. After a brief introduction to the features and organization
of the Pact of Bogotá (Section B (1) and the Appendix), Section
B (2) (a) and (b) of the present Chapter will consider Arti cle
LVI in accordance with the general rule for the interpretation of
treaties in Article 31 of the Vienna Convention on the Law of
Treaties (hereafter “VCLT”). Section B (2) (c) then considers
283.2. The conclusion in 1948 of an American treaty on pacific
settlement, which included under certain conditions acceptance
of the compulsory jurisdiction of a permanent international
judicial institution, the International Court of Justice, was
considered a significant step by the American States and was not
undertaken lightl y: the Pact contained a number of important
safeguards, one of which was the right to terminate that
acceptance with immediate effect.
3.3. Colombia will show that the Court is without jurisdiction
under Article XXXI of the Pact of Bogotá because Colombia 's
notification of denunciation of the Pact was transmitted to the
General Secretariat of the Organization of American States on
27 November 2012. From the date of transmission
(27 November 2012), Colombia no longer accepted the
jurisdiction of the Court under Article XXXI of the Pact. As the
present case was instituted by Nicaragua on 16 September 2013,
long after 27 November 2012 (the date on which Colombia 's
consent to the jurisdiction of the Court under Article XXXI of
the Pact ceased to have effect as provided in its Article LVI), the
Court has no jurisdiction over this case.
3.4. After a brief introduction to the features and organization
of the Pact of Bogotá (Section B (1) and the Appendix), Section
B (2) (a) and (b) of the present Chapter will consider Arti cle
LVI in accordance with the general rule for the interpretation of
treaties in Article 31 of the Vienna Convention on the Law of
Treaties (hereafter “VCLT”). Section B (2) (c) then considers
2814 Parties, out of the 35 Members of the Organiza tion of
American States (OAS). Two States — El Salvador in 1973 and
Colombia in 2012 — having denounced the Pact.
3.6. The Pact of Bogotá has eight chapters and 60 articles:
- Chapter One. General Obligations to Settle
Disputes by Pacific Means
- Chapter Two. Procedures of Good Offices
and Mediation
- Chapter Three. Procedure of Investigation and
Conciliation
- Chapter Four. Judicial Procedure
- Chapter Five. Procedure of Arbitration
- Chapter Six. Fulfilment of Decisions
- Chapter Seven. Advisory Opinions
- Chapter Eight. Final Provisions
3.7. As apparent in the chapter titles and as described in more
detail in the Appendix to the present chapter, the Pact of Bogotá
deals with a number of distinct substantive and procedural
obligations. Four of the eight chapters of the Pact — Chapters
Two, Three, Four and Five — deal with specific procedures for
dispute settlement. The remaining four Chapters deal with other
undertakings and obligations of the treaty partners such as, for
Caribbean Sea (Nicaragua v. Colombia) case. On 25 February 2014 it was
invoked against Nicaragua by Costa Rica in the Certain Activities carried out
by Nicaragua in the Border Area (the proceedings of which were joined with
those of the Construction of a Road in Costa Rica along the San Juan River
case on 17 Apr. 2013) and in the Maritime Delimitation in the Caribbean Sea
and the Pacific Ocean case.
3014 Parties, out of the 35 Members of the Organiza tion of
American States (OAS). Two States — El Salvador in 1973 and
Colombia in 2012 — having denounced the Pact.
3.6. The Pact of Bogotá has eight chapters and 60 articles:
- Chapter One. General Obligations to Settle
Disputes by Pacific Means
- Chapter Two. Procedures of Good Offices
and Mediation
- Chapter Three. Procedure of Investigation and
Conciliation
- Chapter Four. Judicial Procedure
- Chapter Five. Procedure of Arbitration
- Chapter Six. Fulfilment of Decisions
- Chapter Seven. Advisory Opinions
- Chapter Eight. Final Provisions
3.7. As apparent in the chapter titles and as described in more
detail in the Appendix to the present chapter, the Pact of Bogotá
deals with a number of distinct substantive and procedural
obligations. Four of the eight chapters of the Pact — Chapters
Two, Three, Four and Five — deal with specific procedures for
dispute settlement. The remaining four Chapters deal with other
undertakings and obligations of the treaty partners such as, for
Caribbean Sea (Nicaragua v. Colombia) case. On 25 February 2014 it was
invoked against Nicaragua by Costa Rica in the Certain Activities carried out
by Nicaragua in the Border Area (the proceedings of which were joined with
those of the Construction of a Road in Costa Rica along the San Juan River
case on 17 Apr. 2013) and in the Maritime Delimitation in the Caribbean Sea
and the Pacific Ocean case.
30 c) The existence of a ny fact which, if
established, would constitute the breach of an
international obligation;
d) The nature or extent of the reparation to be
made for the breach of an international
obligation.”
3.9. Article XXXI refers to and adopts the language of
Article 36(2) of the Statute of the International Court of Justice
(the ‘Optional Clause’, which provides for the ‘compulsory
jurisdiction’ of the Court through a system of interlocking
declarations). Article XXXI has a similar effect, though limited
to the Parties to the Pact, as would a series of interlocking
Optional Clause declarations. At the same time, as the Court
has said, the commitment under Article XXXI is “an
autonomous commitment, independent of any other which the
parties may have undertaken or may under take by depositing
with the United Nations Secretary -General a declaration of
acceptance of compulsory jurisdiction under Article 36,
paragraphs 2 and 4 of the Statute.” 58
3.10. As a provision of a treaty, the application of Article
XXXI is subject to the conditions prescribed in other provisions
of the Pact. Under the Pact, the commitment to submit to the
procedures specified in the Pact applies only where “a
controversy arises between two or more signatory states which,
in the opinion of the parties, cann ot be settled by direct
58
Border and Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p.69, at p. 85,
para. 36.
32 c) The existence of a ny fact which, if
established, would constitute the breach of an
international obligation;
d) The nature or extent of the reparation to be
made for the breach of an international
obligation.”
3.9. Article XXXI refers to and adopts the language of
Article 36(2) of the Statute of the International Court of Justice
(the ‘Optional Clause’, which provides for the ‘compulsory
jurisdiction’ of the Court through a system of interlocking
declarations). Article XXXI has a similar effect, though limited
to the Parties to the Pact, as would a series of interlocking
Optional Clause declarations. At the same time, as the Court
has said, the commitment under Article XXXI is “an
autonomous commitment, independent of any other which the
parties may have undertaken or may under take by depositing
with the United Nations Secretary -General a declaration of
acceptance of compulsory jurisdiction under Article 36,
paragraphs 2 and 4 of the Statute.” 58
3.10. As a provision of a treaty, the application of Article
XXXI is subject to the conditions prescribed in other provisions
of the Pact. Under the Pact, the commitment to submit to the
procedures specified in the Pact applies only where “a
controversy arises between two or more signatory states which,
in the opinion of the parties, cann ot be settled by direct
58
Border and Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p.69, at p. 85,
para. 36.
32 (2) THE LAW AND PROCEDURE OF DENUNCIATION UNDE R THE
PACT OF B OGOTÁ
(a)The provision: Article LVI,firstandsecondparagraphs
3.12. Article 54 of the VCLT provides, in relevant part, that
“The termination of a treaty or the withdrawal of a party may
take place: (a) in conformity with the provisions of the treaty. . .
.” As will be recalled, Article LVI of the Pact of Bogotá
provides for denunciation of the Pact:
“The present Treaty shall remain in force
indefinitely, but may be denounced upon one year's
notice, at the end of which period it shall cease to
be in force with respect to the state denouncing it,
but shall continue in force for the remaining
signatories. The denunciation shall be addressed to
the Pan American Union, which shall transmit it to
the other Contracting Parties.
The denunciation shall have no effect with respect
to pending procedures initiated prior to the
transmission of the particular notif ication.”
(Emphasis added)
3.13. Article LVI of the Pact has two paragraphs. The first
paragraph sets forth the right of a State Party to denounce the
Pact, the modalities for exercising such a right and the effect of
denunciation. The second paragraph specif ically addresses the
effect of notice of denunciation on the “procedures” under
Chapters Two to Five of the Pact. The second paragraph of
Article LVI reads:
“The denunciation shall have no effect with respect
to pending procedures initiated prior to the
34 (2) THE LAW AND PROCEDURE OF DENUNCIATION UNDE R THE
PACT OF B OGOTÁ
(a)The provision: Article LVI,firstandsecondparagraphs
3.12. Article 54 of the VCLT provides, in relevant part, that
“The termination of a treaty or the withdrawal of a party may
take place: (a) in conformity with the provisions of the treaty. . .
.” As will be recalled, Article LVI of the Pact of Bogotá
provides for denunciation of the Pact:
“The present Treaty shall remain in force
indefinitely, but may be denounced upon one year's
notice, at the end of which period it shall cease to
be in force with respect to the state denouncing it,
but shall continue in force for the remaining
signatories. The denunciation shall be addressed to
the Pan American Union, which shall transmit it to
the other Contracting Parties.
The denunciation shall have no effect with respect
to pending procedures initiated prior to the
transmission of the particular notif ication.”
(Emphasis added)
3.13. Article LVI of the Pact has two paragraphs. The first
paragraph sets forth the right of a State Party to denounce the
Pact, the modalities for exercising such a right and the effect of
denunciation. The second paragraph specif ically addresses the
effect of notice of denunciation on the “procedures” under
Chapters Two to Five of the Pact. The second paragraph of
Article LVI reads:
“The denunciation shall have no effect with respect
to pending procedures initiated prior to the
34Article LVI, and in particular its second paragraph, need to be
interpreted in accordance with their ordinary meaning, to secure
for the provision an effet utile, and to avoid a result which is
‘manifestly absurd or unreasonable’.
3.16. It is clear, from the text of the second paragraph of
Article LVI, that, during the year following transmission of the
notification of the denunciation , no new procedures , including
judicial ones, may be initiated. Any other interpretation that
might allow procedures to be initiated after the transmission of
the notification would deprive the second paragraph of effet
utile. If the intention was to allow the initiation of new
procedures, it would have been sufficient simply to refer to
pending procedures and it would have been unnecessary to limit
the pending procedures to those that were “ initiated prior” to
the “transmission” of the denunciation notification. Thus, the
effect of giving noti ce of denunciation is that, while the Pact
itself only ceases to be in force for the denouncing State one
year later, no new procedures (including proceedings before the
International Court of Justice) may be instituted against the
denouncing State after the date of the transmission of the
notification of denunciation to the Secretary -General of the
OAS.
3.17. As will be shown below, this results from a good faith
interpretation of the terms of the Pact in their context and in the
light of the Pact 's object and purpose. The meaning is also
36Article LVI, and in particular its second paragraph, need to be
interpreted in accordance with their ordinary meaning, to secure
for the provision an effet utile, and to avoid a result which is
‘manifestly absurd or unreasonable’.
3.16. It is clear, from the text of the second paragraph of
Article LVI, that, during the year following transmission of the
notification of the denunciation , no new procedures , including
judicial ones, may be initiated. Any other interpretation that
might allow procedures to be initiated after the transmission of
the notification would deprive the second paragraph of effet
utile. If the intention was to allow the initiation of new
procedures, it would have been sufficient simply to refer to
pending procedures and it would have been unnecessary to limit
the pending procedures to those that were “ initiated prior” to
the “transmission” of the denunciation notification. Thus, the
effect of giving noti ce of denunciation is that, while the Pact
itself only ceases to be in force for the denouncing State one
year later, no new procedures (including proceedings before the
International Court of Justice) may be instituted against the
denouncing State after the date of the transmission of the
notification of denunciation to the Secretary -General of the
OAS.
3.17. As will be shown below, this results from a good faith
interpretation of the terms of the Pact in their context and in the
light of the Pact 's object and purpose. The meaning is also
36procedures in Chapters Two, Three, Four and Five after the date
of notification fall outside the protective mantle of the second
paragraph of Article LVI and are devoid of legal effect.
3.20. The second paragraph of Article LVI makes a distinction
between pending procedures initiated before the transmission of
the notification of denunciation and procedures initiated after
the transmission. The second paragraph is clear that
denunciation has no effect with respect to procedures that are
pending at the time of transmission of the notification of
denunciation, having been initiated prior to the transmission of
the notification of denunciation. A contrario, denunciation does
have effect as regards any other procedures not pending at the
time of transmission of the notification because they purported
to be initiated after the transmission of the notification.
3.21. Hence the second paragraph of Article LVI includes
provisions with regard to specific procedures under the Pact:
- As regards those already pending at the time of
transmission of the notification of denunciation, the
denunciation has no effect. This conforms to the normal
position with regard to international litigation.
Jurisdiction is to be determined at the moment of the
institution of the proceedings and is not affected by the
subsequent withdrawal of consent to jurisdiction,
38procedures in Chapters Two, Three, Four and Five after the date
of notification fall outside the protective mantle of the second
paragraph of Article LVI and are devoid of legal effect.
3.20. The second paragraph of Article LVI makes a distinction
between pending procedures initiated before the transmission of
the notification of denunciation and procedures initiated after
the transmission. The second paragraph is clear that
denunciation has no effect with respect to procedures that are
pending at the time of transmission of the notification of
denunciation, having been initiated prior to the transmission of
the notification of denunciation. A contrario, denunciation does
have effect as regards any other procedures not pending at the
time of transmission of the notification because they purported
to be initiated after the transmission of the notification.
3.21. Hence the second paragraph of Article LVI includes
provisions with regard to specific procedures under the Pact:
- As regards those already pending at the time of
transmission of the notification of denunciation, the
denunciation has no effect. This conforms to the normal
position with regard to international litigation.
Jurisdiction is to be determined at the moment of the
institution of the proceedings and is not affected by the
subsequent withdrawal of consent to jurisdiction,
38the VCLT. There is therefore no necessity for recourse to the
travaux préparatoires . Nor should this interpretation of the
second paragraph of Article LVI occasion any surprise. States
frequently take care to ensure that their consent to the
jurisdiction of an international court or tribunal may be
terminated with immediate effect. This is, for example,
expressly the case with a number of d eclarations of acceptance
of the Court 's jurisdiction under the Optional Clause, in which
States reserve the right to terminate their acceptance of the
Court's jurisdiction with immediate effect . 68 For example, the
United Kingdom 's declaration of 5 July 200 4 includes the
following:
“1. The Government of the United Kingdom of
Great Britain and Northern Ireland accept as
compulsory ipso facto and without special
convention, on condition of reciprocity, the
jurisdiction of the International Court of Justice, in
conformity with paragraph 2 of Article 36 of the
Statute of the Court, until such time as notice may
be given to terminate the acceptance…
2. The Government of the United Kingdom also
reserve the right at any time, by means of a
notification addressed to the Secretary -General of
the United Nations, and with effect as from the
68 States reserving the right to terminate their optional clause
declarations with immediate effect include Botswana (1970), Canada (1994),
Cyprus (1988), Germany (2008), Kenya (1965), Madagascar (1992), Malawi
(1966), Malta (1966, 1983), Mauritius (1968), Nigeria (1998), Peru (2003),
Portugal (2005), Senegal (1985), Slovakia (2004), Somalia (1963), Swaziland
(1969), Togo (1979) and the United Kingdom (2005). See Tomuschat in
Zimmermann et al (eds.), The Statute of the International Court of Justice. A
Commentary (2 nd ed., 2012), pp. 678 -680, Article 36, MN 74 (Tomuschat
refers to denunciation wit h immediate effect as “the price to be paid for
adherence by States to the optional clause. And it corresponds to the logic of
a jurisdictional system which is still largely based on unfettered sovereignty.”
– p. 678).
40the VCLT. There is therefore no necessity for recourse to the
travaux préparatoires . Nor should this interpretation of the
second paragraph of Article LVI occasion any surprise. States
frequently take care to ensure that their consent to the
jurisdiction of an international court or tribunal may be
terminated with immediate effect. This is, for example,
expressly the case with a number of d eclarations of acceptance
of the Court 's jurisdiction under the Optional Clause, in which
States reserve the right to terminate their acceptance of the
Court's jurisdiction with immediate effect . 68 For example, the
United Kingdom 's declaration of 5 July 200 4 includes the
following:
“1. The Government of the United Kingdom of
Great Britain and Northern Ireland accept as
compulsory ipso facto and without special
convention, on condition of reciprocity, the
jurisdiction of the International Court of Justice, in
conformity with paragraph 2 of Article 36 of the
Statute of the Court, until such time as notice may
be given to terminate the acceptance…
2. The Government of the United Kingdom also
reserve the right at any time, by means of a
notification addressed to the Secretary -General of
the United Nations, and with effect as from the
68 States reserving the right to terminate their optional clause
declarations with immediate effect include Botswana (1970), Canada (1994),
Cyprus (1988), Germany (2008), Kenya (1965), Madagascar (1992), Malawi
(1966), Malta (1966, 1983), Mauritius (1968), Nigeria (1998), Peru (2003),
Portugal (2005), Senegal (1985), Slovakia (2004), Somalia (1963), Swaziland
(1969), Togo (1979) and the United Kingdom (2005). See Tomuschat in
Zimmermann et al (eds.), The Statute of the International Court of Justice. A
Commentary (2 nd ed., 2012), pp. 678 -680, Article 36, MN 74 (Tomuschat
refers to denunciation wit h immediate effect as “the price to be paid for
adherence by States to the optional clause. And it corresponds to the logic of
a jurisdictional system which is still largely based on unfettered sovereignty.”
– p. 678).
40 3. This Convention shall continue to be applicable
to arbitral awards in respect of which recognition
or enforcement proceedings have been instituted
before the denunciation takes effect .” (E mphasis
added)
For the New York Convention, the relevant date is the date on
which the denunciation takes effect. Note how precisely the
New York Convention specifies that date in Article XIII (1).
3.26. Similarly, the Additional Protocol to the European
70
Convention on State Immunity of 16 May 1972 provides in
Article 13(2) that:
“Such denunciation shall take effect six months
after the date of receipt by the Secretary-General of
such notifi cation. The Protocol shall, however,
continue to apply to proceedings introduced in
conformity with the provisions of the Protocol
before the date on which such denunciation takes
effect.” (Emphasis added)
3.27. Article 31(2) of the United Nations Convention on
Jurisdictional Immunities of States and Their Property of
71
2 December 2004 addresses the effect of denunciation on the
Convention itself and then deals with its effect on pending
proceedings. Here again, the Convention specifies clearly the
relevant date of the institution of a proceeding not affected by
denunciation:
70
Additional Protocol to the European Convention on State Immunity
(Basel, 16 May 1972), Council of Europe, 1495 UNTS 182.
71 UN Doc. A/RES/59/38, Annex.
42 3. This Convention shall continue to be applicable
to arbitral awards in respect of which recognition
or enforcement proceedings have been instituted
before the denunciation takes effect .” (E mphasis
added)
For the New York Convention, the relevant date is the date on
which the denunciation takes effect. Note how precisely the
New York Convention specifies that date in Article XIII (1).
3.26. Similarly, the Additional Protocol to the European
70
Convention on State Immunity of 16 May 1972 provides in
Article 13(2) that:
“Such denunciation shall take effect six months
after the date of receipt by the Secretary-General of
such notifi cation. The Protocol shall, however,
continue to apply to proceedings introduced in
conformity with the provisions of the Protocol
before the date on which such denunciation takes
effect.” (Emphasis added)
3.27. Article 31(2) of the United Nations Convention on
Jurisdictional Immunities of States and Their Property of
71
2 December 2004 addresses the effect of denunciation on the
Convention itself and then deals with its effect on pending
proceedings. Here again, the Convention specifies clearly the
relevant date of the institution of a proceeding not affected by
denunciation:
70
Additional Protocol to the European Convention on State Immunity
(Basel, 16 May 1972), Council of Europe, 1495 UNTS 182.
71 UN Doc. A/RES/59/38, Annex.
42denunciation on the two treaties and then for the specific effect
on the pending proceedings, indicating the precise relevant
dates.
3.29. As in the treaties covered above, the Pact of Bogotá in
Article LVI addressed the general effect of denunciation and the
effect on the pending procedures separately in its first and
second paragraphs. Again, as in the treaties referenced above,
Article LVI of the Pact dealing with denunciation is very
specific about the relevant date of t he initiation of the pending
procedures. Under the Pact, only those proceedings initiated
prior to the transmission of the notification of denunciation are
unaffected by denunciation.
3.30. In 1948, th e American States, for whom consent to the
compulsory jurisdiction of the International Court of Justice was
a new and major departure, decided to reserve their freedom to
withdraw such consent with immediate effect should
circumstances so require, but to do so without effect on pending
proceedings. That is precisely what was achieved by the second
sentence of Article LVI.
3.31. This is also consistent with the State practice of the
parties to the Pact. Of the sixteen States that ratified or acceded
74
to the Pact , two have denounced it, namely El Salvador in
1973, and C olombia in 2012. Colombia 's denunciation
74 Bolivia, Brazil, Chile, Colombia (denounced 2012), Costa Rica,
Dominican Republic, Ecuador, El Salvador (denounced 1973), Haiti,
Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay.
44denunciation on the two treaties and then for the specific effect
on the pending proceedings, indicating the precise relevant
dates.
3.29. As in the treaties covered above, the Pact of Bogotá in
Article LVI addressed the general effect of denunciation and the
effect on the pending procedures separately in its first and
second paragraphs. Again, as in the treaties referenced above,
Article LVI of the Pact dealing with denunciation is very
specific about the relevant date of t he initiation of the pending
procedures. Under the Pact, only those proceedings initiated
prior to the transmission of the notification of denunciation are
unaffected by denunciation.
3.30. In 1948, th e American States, for whom consent to the
compulsory jurisdiction of the International Court of Justice was
a new and major departure, decided to reserve their freedom to
withdraw such consent with immediate effect should
circumstances so require, but to do so without effect on pending
proceedings. That is precisely what was achieved by the second
sentence of Article LVI.
3.31. This is also consistent with the State practice of the
parties to the Pact. Of the sixteen States that ratified or acceded
74
to the Pact , two have denounced it, namely El Salvador in
1973, and C olombia in 2012. Colombia 's denunciation
74 Bolivia, Brazil, Chile, Colombia (denounced 2012), Costa Rica,
Dominican Republic, Ecuador, El Salvador (denounced 1973), Haiti,
Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay.
44 (c)Theordinary meaningsiconfirmedbythetravauxpréparatoires
3.33. The interpretation above results clearly from the
application of the general rule on the interpretation of treaties of
VCLT Article 31. There is therefore no necessity for recourse to
the travaux préparatoires . Nevertheless, such recourse is
permitted under Article 32 of the VCLT in order to confirm the
ordinary meaning resulting from the application of the general
rule. The travaux confirm the ordinary meaning.
3.34. The extended exercise that began at Montevideo in 1933
and culminated in the adoption of the Pact of Bogotá in 1948
was intended to update the various instruments for peaceful
76
settlement in the Americas by systematizing in a single
instrument the different m echanisms for pacific dispute
settlement in the existing treaties.
3.35. The pre-1936 treaties referring to conflict resolution and
their procedures were unsystematic in a number of ways. One,
of 1902, concerning compulsory arbitration, had only six
ratifications. The other, of 1929, also dealing with arbitration,
had more ratifications, but they were accompanied by
reservations with respect to the scope of the arbitration clause.
With the exception of the Treaty on Compulsory Arbitration
(1902) 77 and the Genera l Treaty of Inter -American Arbitration
76
Pact of Bogotá, Arts. LVIII and LVIX.
77 Treaty on Compulsory Arbitration, Mexico, 29 Jan. 1902. See
Annex 17: Inter-American Treaties from 1902 to 1936, Clauses of
Denunciation.
46 (c)Theordinary meaningsiconfirmedbythetravauxpréparatoires
3.33. The interpretation above results clearly from the
application of the general rule on the interpretation of treaties of
VCLT Article 31. There is therefore no necessity for recourse to
the travaux préparatoires . Nevertheless, such recourse is
permitted under Article 32 of the VCLT in order to confirm the
ordinary meaning resulting from the application of the general
rule. The travaux confirm the ordinary meaning.
3.34. The extended exercise that began at Montevideo in 1933
and culminated in the adoption of the Pact of Bogotá in 1948
was intended to update the various instruments for peaceful
76
settlement in the Americas by systematizing in a single
instrument the different m echanisms for pacific dispute
settlement in the existing treaties.
3.35. The pre-1936 treaties referring to conflict resolution and
their procedures were unsystematic in a number of ways. One,
of 1902, concerning compulsory arbitration, had only six
ratifications. The other, of 1929, also dealing with arbitration,
had more ratifications, but they were accompanied by
reservations with respect to the scope of the arbitration clause.
With the exception of the Treaty on Compulsory Arbitration
(1902) 77 and the Genera l Treaty of Inter -American Arbitration
76
Pact of Bogotá, Arts. LVIII and LVIX.
77 Treaty on Compulsory Arbitration, Mexico, 29 Jan. 1902. See
Annex 17: Inter-American Treaties from 1902 to 1936, Clauses of
Denunciation.
46initiated, were to take effect after a year. On the other hand,
Article 9 of General Treaty of Inter-American Arbitration signed
at Washington on 5 January 1929 provided in relevant part that
“[t]his treaty shall remain in force indefinitely, but
it may be denounced by means of one year 's
previous notice at the expiration of which it shall
cease to be in force as regards th e Party
denouncing the same, but shall rem80n in force as
regards the other signatories.”
This provision , which does not deal with the pending
procedures, is similar to the remaining treaties up to 1936. 81
3.37. In the context of a regional law -making effort to secure
region-wide subscription to a comprehensive dispute resolution
mechanism, the challenge for the conveners of the conference
begun at Montevideo was to secure a draft which would attract
80
In Spanish:
“…Este tratado regirá indefinidamente, pero podrá ser denunciado
mediante aviso anticipado de un año, transcurrido el cual cesará en
sus efectos para el denunciante, quedando subsistente para los
demás signatarios.”.
81 See in Annex 17, excer pts of the following on denunciation: Treaty
of Compulsory Arbitration, 29 Jan. 1902, Article 22; Treaty to Avoid or
Prevent Conflicts Between the American States (The Gondra Treaty),
3 May 1923, Article IX; General Convention of Inter -American Conciliation,
5 Jan. 1929, Article 16; General Treaty of Inter -American Arbitration, 5 Jan.
1929, Article 9; Protocol of Progressive Arbitration,Jan. 1929; Anti -War
Treaty of Non -Aggression and Conciliation (The Saavedra -Lamas Pact),
10 Oct. 1933, Article 17; Additional Protocol to the General Convention on
Inter-American Conciliation, 26 Dec. 1933; Convention on Maintenance,
Preservation and Reestablishment of Peace, 23 Dec. 1936, Article 5;
Additional Protocol Relative to Non -Intervention, 23 Dec. 1936, Artic le 4;
Treaty on the Prevention of Controversies, 23 Dec. 1936, Article 7; Inter -
American Treaty on Good Offices and Mediation, 23 Dec. 1936, Article 9;
Convention to Coordinate, Extend and Assure the Fulfillment of the Existing
Treaties Between the American States, 23 Dec. 1936, Article 8.
48initiated, were to take effect after a year. On the other hand,
Article 9 of General Treaty of Inter-American Arbitration signed
at Washington on 5 January 1929 provided in relevant part that
“[t]his treaty shall remain in force indefinitely, but
it may be denounced by means of one year 's
previous notice at the expiration of which it shall
cease to be in force as regards th e Party
denouncing the same, but shall rem80n in force as
regards the other signatories.”
This provision , which does not deal with the pending
procedures, is similar to the remaining treaties up to 1936. 81
3.37. In the context of a regional law -making effort to secure
region-wide subscription to a comprehensive dispute resolution
mechanism, the challenge for the conveners of the conference
begun at Montevideo was to secure a draft which would attract
80
In Spanish:
“…Este tratado regirá indefinidamente, pero podrá ser denunciado
mediante aviso anticipado de un año, transcurrido el cual cesará en
sus efectos para el denunciante, quedando subsistente para los
demás signatarios.”.
81 See in Annex 17, excer pts of the following on denunciation: Treaty
of Compulsory Arbitration, 29 Jan. 1902, Article 22; Treaty to Avoid or
Prevent Conflicts Between the American States (The Gondra Treaty),
3 May 1923, Article IX; General Convention of Inter -American Conciliation,
5 Jan. 1929, Article 16; General Treaty of Inter -American Arbitration, 5 Jan.
1929, Article 9; Protocol of Progressive Arbitration,Jan. 1929; Anti -War
Treaty of Non -Aggression and Conciliation (The Saavedra -Lamas Pact),
10 Oct. 1933, Article 17; Additional Protocol to the General Convention on
Inter-American Conciliation, 26 Dec. 1933; Convention on Maintenance,
Preservation and Reestablishment of Peace, 23 Dec. 1936, Article 5;
Additional Protocol Relative to Non -Intervention, 23 Dec. 1936, Artic le 4;
Treaty on the Prevention of Controversies, 23 Dec. 1936, Article 7; Inter -
American Treaty on Good Offices and Mediation, 23 Dec. 1936, Article 9;
Convention to Coordinate, Extend and Assure the Fulfillment of the Existing
Treaties Between the American States, 23 Dec. 1936, Article 8.
483.40. One month later, however, on 16 December 1938, during
the Lima Conference, t he United States submitted an amended
second draft of its Project .84 This new draft contained the
language that would eventually become the second paragraph of
Article LVI of the Pact of Bogotá (hereafter “the U .S.
Proposal”). This language was highlighted in the original text in
order to indicate that it represented a new provision by
85
comparison with the earlier texts . Article XXII of the US
Proposal read:
“ARTICLE XXII: The present treaty shall remain
in effect indefinitely, but may be denounced by
means of one year 's notice given to the Pan
American Union, which shall transmit it to the
other signatory governments. After the expiration
of this period the treaty shall cease in its effects as
regards the party which denounce it, but shall
remain in effect for the remaining high contracting
parties. Denunciation shall not affect any pending
proceedings instituted before notice of
denunciation is given.” 86(Italics in original).
3.41. Thus, what became the second paragraph of Article LVI
of the Pact of Bogotá had its origin in the proposal by the United
States of 16 December 1938, a proposal made with the evident
intention of ensuring that a State that was party to the Pact could
withdraw its consent to be bound by any of the procedures –
84 Annex 6: Delegation of the Un ited States of America to the Eighth
International Conference of American States, Projects Presented by the
United States, Topic 1, Treaty of Consolidation of American Peace
85reements, 16 Dec. 1938, at pp. 193-194.
In the English version of the US Propo sal, all new matters were in
italics while in the Spanish version the new text appears in bold.
86 Annex 6, at p. 203.
503.40. One month later, however, on 16 December 1938, during
the Lima Conference, t he United States submitted an amended
second draft of its Project .84 This new draft contained the
language that would eventually become the second paragraph of
Article LVI of the Pact of Bogotá (hereafter “the U .S.
Proposal”). This language was highlighted in the original text in
order to indicate that it represented a new provision by
85
comparison with the earlier texts . Article XXII of the US
Proposal read:
“ARTICLE XXII: The present treaty shall remain
in effect indefinitely, but may be denounced by
means of one year 's notice given to the Pan
American Union, which shall transmit it to the
other signatory governments. After the expiration
of this period the treaty shall cease in its effects as
regards the party which denounce it, but shall
remain in effect for the remaining high contracting
parties. Denunciation shall not affect any pending
proceedings instituted before notice of
denunciation is given.” 86(Italics in original).
3.41. Thus, what became the second paragraph of Article LVI
of the Pact of Bogotá had its origin in the proposal by the United
States of 16 December 1938, a proposal made with the evident
intention of ensuring that a State that was party to the Pact could
withdraw its consent to be bound by any of the procedures –
84 Annex 6: Delegation of the Un ited States of America to the Eighth
International Conference of American States, Projects Presented by the
United States, Topic 1, Treaty of Consolidation of American Peace
85reements, 16 Dec. 1938, at pp. 193-194.
In the English version of the US Propo sal, all new matters were in
italics while in the Spanish version the new text appears in bold.
86 Annex 6, at p. 203.
50the Lima Co nference that “all new matter had been
88
underlined.”
3.44. The U.S. delegation thus deliberately drew attention to
the new language which was not part of the previous Inter -
American instruments. All the negotiating States were,
accordingly, made aware of the ch ange which was being
introduced and which modified the effect of denunciation in
contrast to what it had been in the earlier multilateral
instruments.
3.45. Of the various drafts related to the coordination and
consolidation of American peace agreements present ed to the
Lima Conference, only that presented by the United States
addressed the matter of denunciation. 89
3.46. On 21 December 1938, the Lima Conference adopted
Resolution XV, which made particular mention in its preamble
of the draft “on the Consolidation of American Peace
Agreements”, submitted by the United States, because it
structured the “process of pacific solution of differences
88 Annex 10: Delegation of the United States of America to the Eighth
International Conference of American States, Lima, 9-27 Dec. 1938, Report of
the Meetings of Sub-Committee 1 of Committee I, Consolidation of American
Peace Instruments and Agreements, 19 Dec. 1938, at p. 5. It is to be noted that
the U.S. delegation highlighted in italics the additions, which include the
second paragraph of what became Art. LVI (see Annex 6, Art. XXII at
p. 203).
89 Annex 4: Comparative Chart of Drafts presented by American States
to the First Commission at the Eighth International Conference of American
States, Lima, Peru, Dec. 1938.
52the Lima Co nference that “all new matter had been
88
underlined.”
3.44. The U.S. delegation thus deliberately drew attention to
the new language which was not part of the previous Inter -
American instruments. All the negotiating States were,
accordingly, made aware of the ch ange which was being
introduced and which modified the effect of denunciation in
contrast to what it had been in the earlier multilateral
instruments.
3.45. Of the various drafts related to the coordination and
consolidation of American peace agreements present ed to the
Lima Conference, only that presented by the United States
addressed the matter of denunciation. 89
3.46. On 21 December 1938, the Lima Conference adopted
Resolution XV, which made particular mention in its preamble
of the draft “on the Consolidation of American Peace
Agreements”, submitted by the United States, because it
structured the “process of pacific solution of differences
88 Annex 10: Delegation of the United States of America to the Eighth
International Conference of American States, Lima, 9-27 Dec. 1938, Report of
the Meetings of Sub-Committee 1 of Committee I, Consolidation of American
Peace Instruments and Agreements, 19 Dec. 1938, at p. 5. It is to be noted that
the U.S. delegation highlighted in italics the additions, which include the
second paragraph of what became Art. LVI (see Annex 6, Art. XXII at
p. 203).
89 Annex 4: Comparative Chart of Drafts presented by American States
to the First Commission at the Eighth International Conference of American
States, Lima, Peru, Dec. 1938.
523.48. In September 1945, the Inter- American Juridical
Committee s ubmitted its “Prel iminary draft for the Inter -
American System of Peace”. The report attached to it states that
“Part VII of the Preliminary Draft of the Juridical Committee,
entitled ‘Final Provisions’ follows the general lines already
approved by the American States .”93 In Part VII, Final
Provisions, Article XXIX includes the U.S. Proposal in a
formula similar to that contained in the final version of the Pact
of Bogotá. It reads:
“Article XXIX.
(…)
[Paragraph 3] The present treaty shall remain in
effect indefinitely, but it may be denounced by
means of notice given to the Pan American Union
one year in advance, at the expiration of which it
will cease to be in force as regards the party
denouncing the same, but shall remain in force as
regards the other signatories. Notice of the
denunciation shall be transmitted by the Pan
American Union to the other signatory
governments. Denunciation shall not affect any
pending proceedings instituted before notice of
denunciation is given.” 94
“This treaty will be valid indefinitely, but maybe
denounced through notice of one year in advance to the
Pan-American Union, [and] the other signatory
Governments. The denunciation will not have any effect on
procedures pending and initiated prior to the transmission
of that notice.”
93 Annex 14: Inter-American Juridical Committee, Draft of an Inter-
American Peace System and an Accompanying Report, Article XXIX,4 Sept.
1945, Article XXIX, at p. 22.
94 Annex 14, at pp. 11-12.
543.48. In September 1945, the Inter- American Juridical
Committee s ubmitted its “Prel iminary draft for the Inter -
American System of Peace”. The report attached to it states that
“Part VII of the Preliminary Draft of the Juridical Committee,
entitled ‘Final Provisions’ follows the general lines already
approved by the American States .”93 In Part VII, Final
Provisions, Article XXIX includes the U.S. Proposal in a
formula similar to that contained in the final version of the Pact
of Bogotá. It reads:
“Article XXIX.
(…)
[Paragraph 3] The present treaty shall remain in
effect indefinitely, but it may be denounced by
means of notice given to the Pan American Union
one year in advance, at the expiration of which it
will cease to be in force as regards the party
denouncing the same, but shall remain in force as
regards the other signatories. Notice of the
denunciation shall be transmitted by the Pan
American Union to the other signatory
governments. Denunciation shall not affect any
pending proceedings instituted before notice of
denunciation is given.” 94
“This treaty will be valid indefinitely, but maybe
denounced through notice of one year in advance to the
Pan-American Union, [and] the other signatory
Governments. The denunciation will not have any effect on
procedures pending and initiated prior to the transmission
of that notice.”
93 Annex 14: Inter-American Juridical Committee, Draft of an Inter-
American Peace System and an Accompanying Report, Article XXIX,4 Sept.
1945, Article XXIX, at p. 22.
94 Annex 14, at pp. 11-12.
54 96
Commission's Drafting Committee, the then Article LV (now
Article LVI) was divided into two paragraphs:
“This treaty will be in force indefinitely, but it
may be denounced through advance notice of one
year, and will cease to have effect for the party
making the denunciation, and remains in force for
the other signatories. The denunciation will be
made to the Pan -American Union , which will
transmit it to the other contracting parties.
The denunciation will not have any effect on
proceedings pending and initiated prior to the
transmission of the respective notice.” 97
3.51. As can be seen, the U.S. Proposal of 1938 on the matter
of denunciation was almost identical to the final text adopted in
the Pact of Bogotá. But it had an important structural
modification: the separation of the single paragraph in the
original into two paragraphs to better reflect the different subject
matters of each paragraph. The second paragraph makes
abundantly clear that only those pending proceedings that were
initiated prior to the transmission of the denunciation notice
remain unaffected. Of the other drafting changes introduced by
the Drafting Committe e in 1948, the principal change was the
replacement of the expression “before notice of denunciation is
given” by the expression “prior to the transmission of the
particular notification”. That was a change which served to
emphasize that the critical date was that of transmission. Both
the reference of the second paragraph to the Drafting Committee
96 Annex 16: Minutes of the Second Part of the Fourth Session of the
Coordination Commission, Ninth International Conference of American
States, 29 Apr. 1948, p. 537.
97
Ibid., p. 541.
56 96
Commission's Drafting Committee, the then Article LV (now
Article LVI) was divided into two paragraphs:
“This treaty will be in force indefinitely, but it
may be denounced through advance notice of one
year, and will cease to have effect for the party
making the denunciation, and remains in force for
the other signatories. The denunciation will be
made to the Pan -American Union , which will
transmit it to the other contracting parties.
The denunciation will not have any effect on
proceedings pending and initiated prior to the
transmission of the respective notice.” 97
3.51. As can be seen, the U.S. Proposal of 1938 on the matter
of denunciation was almost identical to the final text adopted in
the Pact of Bogotá. But it had an important structural
modification: the separation of the single paragraph in the
original into two paragraphs to better reflect the different subject
matters of each paragraph. The second paragraph makes
abundantly clear that only those pending proceedings that were
initiated prior to the transmission of the denunciation notice
remain unaffected. Of the other drafting changes introduced by
the Drafting Committe e in 1948, the principal change was the
replacement of the expression “before notice of denunciation is
given” by the expression “prior to the transmission of the
particular notification”. That was a change which served to
emphasize that the critical date was that of transmission. Both
the reference of the second paragraph to the Drafting Committee
96 Annex 16: Minutes of the Second Part of the Fourth Session of the
Coordination Commission, Ninth International Conference of American
States, 29 Apr. 1948, p. 537.
97
Ibid., p. 541.
56effect of denunciation on the Pact 's other obligations, from the
immediate effect on procedures initiated after denunciation.
C. Colombia's Denunciation o f the Pact of Bogotá was in
Accordance with the Requirements of the Pact of Bogotá
3.54. Colombia denounced the Pact, with immediate effect, on
27 November 2012. On that date, the Minister of Foreign
Affairs of Colombia transmitted t o the depositary, the General
Secretariat of the Organization of American States, a
notification of denunciation pursuant to Article LVI of the Pact .
It will be convenient to set it out again:
“I have the honor to address Your Excellency, in
accordance wit h article LVI of the American
Treaty on Pacific Settlement, on the occasion of
notifying the General Secretariat of the
Organization of American States, as successor of
the Pan American Union, that the Republic of
Colombia denounces as of today from the
‘American Treaty on Pacific Settlement’, signed on
30 April 1948, the instrument of ratification of
which was deposited by Colombia on 6 November
1968.
The denunciation from the American Treaty on
Pacific Settlement is in force as of today with
regard to p rocedures that are initiated after the
present notice, in conformity with Article LVI,
second paragraph...” 98
98
Annex 1. The original text in Spanish says:
“Tengo el honor de dirigirme a Su Excelencia, de
conformidad con el artículo LVI del Tratado Americano de
Soluciones Pacíficas, con ocasión de dar aviso a la
Secretaria General de la Organización de Estados
Americanos, a su digno cargo, como sucesora de la Unión
58effect of denunciation on the Pact 's other obligations, from the
immediate effect on procedures initiated after denunciation.
C. Colombia's Denunciation o f the Pact of Bogotá was in
Accordance with the Requirements of the Pact of Bogotá
3.54. Colombia denounced the Pact, with immediate effect, on
27 November 2012. On that date, the Minister of Foreign
Affairs of Colombia transmitted t o the depositary, the General
Secretariat of the Organization of American States, a
notification of denunciation pursuant to Article LVI of the Pact .
It will be convenient to set it out again:
“I have the honor to address Your Excellency, in
accordance wit h article LVI of the American
Treaty on Pacific Settlement, on the occasion of
notifying the General Secretariat of the
Organization of American States, as successor of
the Pan American Union, that the Republic of
Colombia denounces as of today from the
‘American Treaty on Pacific Settlement’, signed on
30 April 1948, the instrument of ratification of
which was deposited by Colombia on 6 November
1968.
The denunciation from the American Treaty on
Pacific Settlement is in force as of today with
regard to p rocedures that are initiated after the
present notice, in conformity with Article LVI,
second paragraph...” 98
98
Annex 1. The original text in Spanish says:
“Tengo el honor de dirigirme a Su Excelencia, de
conformidad con el artículo LVI del Tratado Americano de
Soluciones Pacíficas, con ocasión de dar aviso a la
Secretaria General de la Organización de Estados
Americanos, a su digno cargo, como sucesora de la Unión
58American States informed the States Parties to the Pact and the
Permanent Missions of the other Member States of the OAS that
on 27 November 2012 it had received Note GACIJ No. 79357
by which the Republic of Colombia “denounced” the American
Treaty on Pacific Settlement “Pact of Bogotá”, signed in
99
Bogotá, 30 April 1948. No State Party to the Pact reacted to
that Note.
D. Conclusion
3.58. For the reasons set out in the present chapter, and in
accordance with the terms of the first and second paragraphs of
Article LVI of the Pact of Bogotá, the International Court of
Justice does not have jurisdiction in respect of the proceedings
commenced by Nicaragua against Colombia on 16 September
2013, sin ce the proceedings were instituted after the
transmission of Colombia's notice of denunciation of the Pact.
99
Annex 2.
60American States informed the States Parties to the Pact and the
Permanent Missions of the other Member States of the OAS that
on 27 November 2012 it had received Note GACIJ No. 79357
by which the Republic of Colombia “denounced” the American
Treaty on Pacific Settlement “Pact of Bogotá”, signed in
99
Bogotá, 30 April 1948. No State Party to the Pact reacted to
that Note.
D. Conclusion
3.58. For the reasons set out in the present chapter, and in
accordance with the terms of the first and second paragraphs of
Article LVI of the Pact of Bogotá, the International Court of
Justice does not have jurisdiction in respect of the proceedings
commenced by Nicaragua against Colombia on 16 September
2013, sin ce the proceedings were instituted after the
transmission of Colombia's notice of denunciation of the Pact.
99
Annex 2.
60be settled by d irect negotiations through the usual diplomatic
channels. 100
3A.4. Articles III and IV states the Parties' freedom to choose
the procedure that they consider most appropriate, although no
new procedure may be commenced until the initiated one is
concluded. Article V excludes the application of the Pa ct's
procedures to matters within domestic jurisdiction.
3A.5. According to Article VI:
“The aforesaid procedures … may not be applied
to matters already settled by arrangement between
the parties, or by arbitral aw ard 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.”
3A.6. Article VII restricts recourse to diplomatic protection,
providing as follows:
“The High Contracting Parties bind themselves not
to make diplomatic representations in order to
protect their nationals, or to refer a controversy to a
court of international jurisdiction for that purpose,
when the said nationals have had available the
means to place their case before competent
domestic courts of the respective state.”
3A.7. The last provision in Chapter One concerns the right of
individual and collective self-defense, and reads:
“Neither recourse to pacific means for the solution
of controversies, nor the recommendation of their
use, shall, in the case of an armed attack, be ground
100
This restriction in Article II was discussed by the CouBorder
and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 69.
62be settled by d irect negotiations through the usual diplomatic
channels. 100
3A.4. Articles III and IV states the Parties' freedom to choose
the procedure that they consider most appropriate, although no
new procedure may be commenced until the initiated one is
concluded. Article V excludes the application of the Pa ct's
procedures to matters within domestic jurisdiction.
3A.5. According to Article VI:
“The aforesaid procedures … may not be applied
to matters already settled by arrangement between
the parties, or by arbitral aw ard 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.”
3A.6. Article VII restricts recourse to diplomatic protection,
providing as follows:
“The High Contracting Parties bind themselves not
to make diplomatic representations in order to
protect their nationals, or to refer a controversy to a
court of international jurisdiction for that purpose,
when the said nationals have had available the
means to place their case before competent
domestic courts of the respective state.”
3A.7. The last provision in Chapter One concerns the right of
individual and collective self-defense, and reads:
“Neither recourse to pacific means for the solution
of controversies, nor the recommendation of their
use, shall, in the case of an armed attack, be ground
100
This restriction in Article II was discussed by the CouBorder
and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 69.
623A.11. Chapter Seven, also a single article, makes special
provision for seeking advisory opinions from the Court:
“The parties concerned in the solution of a
controversy may, by agreement, petition the
General Assembly or the Security Council of the
United Nations to request an advisory opinion of
the International Court of Justice on any juridical
question.
The petition shall be made through th e Council of
the Organization of American States.”
3A.12. Chapter Eight (Final Provisions) has the following
articles:
- Art. LII ratification
- Art. LIII coming into effect
- Art. LIV adherence; withdrawal of reservations
- Art. LV reservations
- Art. LVI denunciation
- Art. LVII registration
- Art. LVIII treaties that cease to be in force as
between the parties .102
- Art. LVIX excludes application of foregoing
article to procedures already initiated or agreed
upon on the basis of such treaties
3A.13. Finally, Article LX provides that the Treaty shall be
called the “Pact of Bogotá.”
102
Treaty to Avoid or Prevent Conflicts between the American States,
of 3 May 1923; General Convention of Inter-American Conciliation, of 5 Jan.
1929; General Treaty of Inter -American Arbitration and Additional Protocol
of Progressive Arbitration, of 5 Jan. 1929; Additional Protocol to the General
Convention of Inter -American Conciliation, of 26 Dec. 1933; A-War
Treaty of Non-Aggression and Conciliation, of 10 Oct. 1933; Convention to
Coordinate, Extend and Assure the Fulfilment of the Existing Treaties
between the American States, of 23 Dec. 1936; In-American Treaty on
Good Offices and Mediation, of 23 Dec. 1936; Treaty on the Prevention of
Controversies, of 23 Dec. 1936.
643A.11. Chapter Seven, also a single article, makes special
provision for seeking advisory opinions from the Court:
“The parties concerned in the solution of a
controversy may, by agreement, petition the
General Assembly or the Security Council of the
United Nations to request an advisory opinion of
the International Court of Justice on any juridical
question.
The petition shall be made through th e Council of
the Organization of American States.”
3A.12. Chapter Eight (Final Provisions) has the following
articles:
- Art. LII ratification
- Art. LIII coming into effect
- Art. LIV adherence; withdrawal of reservations
- Art. LV reservations
- Art. LVI denunciation
- Art. LVII registration
- Art. LVIII treaties that cease to be in force as
between the parties .102
- Art. LVIX excludes application of foregoing
article to procedures already initiated or agreed
upon on the basis of such treaties
3A.13. Finally, Article LX provides that the Treaty shall be
called the “Pact of Bogotá.”
102
Treaty to Avoid or Prevent Conflicts between the American States,
of 3 May 1923; General Convention of Inter-American Conciliation, of 5 Jan.
1929; General Treaty of Inter -American Arbitration and Additional Protocol
of Progressive Arbitration, of 5 Jan. 1929; Additional Protocol to the General
Convention of Inter -American Conciliation, of 26 Dec. 1933; A-War
Treaty of Non-Aggression and Conciliation, of 10 Oct. 1933; Convention to
Coordinate, Extend and Assure the Fulfilment of the Existing Treaties
between the American States, of 23 Dec. 1936; In-American Treaty on
Good Offices and Mediation, of 23 Dec. 1936; Treaty on the Prevention of
Controversies, of 23 Dec. 1936.
64final Judgment of 19 November 2012 fully dealt with the
subject-matter of t hose proceedings and brought an end to the
case, and the case was thereafter removed from the list of
pending cases.
4.3. The notion that the subject -matter of Nicaragua 's
Application remains within the jurisdiction of the Court
established in Territorial and Maritime Dispute is devoid of
merit. Nicaragua cites no provision of the Court 's Statute or the
Rules of Court, and no legal authority, for its contention. In
addition to ignoring the fact that the Court 's Judgment of 19
November 2012 fully delimited the maritime areas between the
Parties – a decision that has the preclusive effect of res
104
judicata – Nicaragua's claim to jurisdiction disregards the
consensual basis of jurisdiction in international law. Other than
the routine sequ encing of the phases of a case – for example,
reserving issues of com pensation to a subsequent phase –, the
Court can preserve jurisdiction over a claim which it has already
decided only in the exceptional case where it has expressly
reserved jurisdiction as to subsequent events wh ich may affect
the very basis of its judgment. By contrast, the Judgment of
19 November 2012 fully exhausted the Court 's jurisdiction
without any such reservation.
104 Chap. 5, infra.
66final Judgment of 19 November 2012 fully dealt with the
subject-matter of t hose proceedings and brought an end to the
case, and the case was thereafter removed from the list of
pending cases.
4.3. The notion that the subject -matter of Nicaragua 's
Application remains within the jurisdiction of the Court
established in Territorial and Maritime Dispute is devoid of
merit. Nicaragua cites no provision of the Court 's Statute or the
Rules of Court, and no legal authority, for its contention. In
addition to ignoring the fact that the Court 's Judgment of 19
November 2012 fully delimited the maritime areas between the
Parties – a decision that has the preclusive effect of res
104
judicata – Nicaragua's claim to jurisdiction disregards the
consensual basis of jurisdiction in international law. Other than
the routine sequ encing of the phases of a case – for example,
reserving issues of com pensation to a subsequent phase –, the
Court can preserve jurisdiction over a claim which it has already
decided only in the exceptional case where it has expressly
reserved jurisdiction as to subsequent events wh ich may affect
the very basis of its judgment. By contrast, the Judgment of
19 November 2012 fully exhausted the Court 's jurisdiction
without any such reservation.
104 Chap. 5, infra.
664.6. Nicaragua does not purport to seek either an
interpretation of the Court's Judgment of 19 November 2012 or
its revision, notwithstanding the fa ct, discussed in Chapter 6
below, that Nicaragua's Application is tantamount to a request to
revise the Judgment in Territorial and Maritime Dispute without
complying with the conditions laid out in Article 61. It follows
that Nicaragua has not provided an y legal basis for its second
basis of jurisdiction.
C. The Court's Jurisdiction Is Preserved Only When the
Parties or the Court Expressly So Provide
4.7. Apart from interpretation and revision, there are only
three situations where the Court can exercise a contin uing
jurisdiction over a case. The first is where the parties to the
original case specifically agree to the possibility of returning to
the Court after it has rendered its judgment. The second arises
where the Court, in its Judgment, expressly reserves ju risdiction
over specific issues arising in connection with the original case
for a subsequent phase of the proceedings. The third is an
exceptional case, for example, one in which non -compliance
with a resp ondent's unilateral commitment – which, in the
Court's view, has caused the object of the dispute to disappear –
will affect the very “basis” of the Court 's Judgment. That was
the situation confronted by the Court in the Nuclear Tests cases.
4.8. Examples of the first two situations may be found in the
current list of pending cases pu blished on the Court 's website –
684.6. Nicaragua does not purport to seek either an
interpretation of the Court's Judgment of 19 November 2012 or
its revision, notwithstanding the fa ct, discussed in Chapter 6
below, that Nicaragua's Application is tantamount to a request to
revise the Judgment in Territorial and Maritime Dispute without
complying with the conditions laid out in Article 61. It follows
that Nicaragua has not provided an y legal basis for its second
basis of jurisdiction.
C. The Court's Jurisdiction Is Preserved Only When the
Parties or the Court Expressly So Provide
4.7. Apart from interpretation and revision, there are only
three situations where the Court can exercise a contin uing
jurisdiction over a case. The first is where the parties to the
original case specifically agree to the possibility of returning to
the Court after it has rendered its judgment. The second arises
where the Court, in its Judgment, expressly reserves ju risdiction
over specific issues arising in connection with the original case
for a subsequent phase of the proceedings. The third is an
exceptional case, for example, one in which non -compliance
with a resp ondent's unilateral commitment – which, in the
Court's view, has caused the object of the dispute to disappear –
will affect the very “basis” of the Court 's Judgment. That was
the situation confronted by the Court in the Nuclear Tests cases.
4.8. Examples of the first two situations may be found in the
current list of pending cases pu blished on the Court 's website –
68Court] reserves for this purpose the subsequent procedure in the
case.” 108 The Court made no such res ervation in the Territorial
and Maritime Dispute case.
4.11. The Court adopted a similar approach to compensation in
the Corfu Channel case. After finding that it had jurisdiction to
assess the amount of compensation and stating that “further
109
proceedings on this issue are necessary”, the Court held in the
operative part of the Judgment that the assessment of the amount
of compensation was reserved for future consideration, with the
procedure on that subject regulated by an Order issued on the
110
same day. Similarly, in Military and Paramilitary Activities in
and against Nicaragua , the Court found it appropriate to
determine the nature and amount of the reparation due “in a
subsequent phase of the proceedings”, and held in its dispositif
that, failing agreement bet ween the parties, the issue of
reparations was reserved for “the subsequent procedure in the
case.” 111
108
Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005 , pp. 281-
282, paras. 345 (6) and (14).
109 Corfu Channel case, Judgment of April 9th, 1949 , I.C.J. Reports
1949, p. 4, at p. 26.
110 Ibid., p. 36.
111 Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States) , Merits, Judgment, I.C.J. Reports 1986 ,
pp. 142-143, para. 284 and p. 149, para. 292 (15). And see a number of other
cases where the Court has similarly reserved its jurisdiction in express terms:
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
Congo), Merits, Judgment, I.C.J. Reports 2010, p. 693, para. 165 (8); United
States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports
1980, p. 45, para. 90 (6); Case Concerning the Factory at Chorzó w (Claim
for Indemnity) (Merits), Judgment of September 13, 1928, P.C.I.J., Series A,
No. 17, p. 64 (8) and (9).
70Court] reserves for this purpose the subsequent procedure in the
108
case.” The Court made no such res ervation in the Territorial
and Maritime Dispute case.
4.11. The Court adopted a similar approach to compensation in
the Corfu Channel case. After finding that it had jurisdiction to
assess the amount of compensation and stating that “further
proceedings on this issue are necessary”, 109 the Court held in the
operative part of the Judgment that the assessment of the amount
of compensation was reserved for future consideration, with the
procedure on that subject regulated by an Order issued on the
same day. 110 Similarly, in Military and Paramilitary Activities in
and against Nicaragua , the Court found it appropriate to
determine the nature and amount of the reparation due “in a
subsequent phase of the proceedings”, and held in its dispositif
that, failing agreement bet ween the parties, the issue of
reparations was reserved for “the subsequent procedure in the
111
case.”
108 Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005 , pp. 281-
282, paras. 345 (6) and (14).
109 Corfu Channel case, Judgment of April 9th, 1949 , I.C.J. Reports
1949, p. 4, at p. 26.
110 Ibid., p. 36.
111 Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States) , Merits, Judgment, I.C.J. Reports 1986 ,
pp. 142-143, para. 284 and p. 149, para. 292 (15). And see a number of other
cases where the Court has similarly reserved its jurisdiction in express terms:
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
Congo), Merits, Judgment, I.C.J. Reports 2010, p. 693, para. 165 (8); United
States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports
1980, p. 45, para. 90 (6); Case Concerning the Factory at Chorzó w (Claim
for Indemnity) (Merits), Judgment of September 13, 1928, P.C.I.J., Series A,
No. 17, p. 64 (8) and (9).
704.14. In the Nuclear Tests (New Zealand v. France) case, the
Court explained, at paragraph 63, the situation in the following
way:
“Once the Court has found that a State has entered
into a commitment concerning its future conduct it
is not the Court 's function to contemplate that it
will not comply with it. However, the Court
observes that if the basis of this Judgment were to
be affected, the Applicant could request an
examination of the situation in accordance with the
provisions of the Statute; th e denunciation by
France, by letter dated 2 January 1974, of the
General Act for the Pacific Settlement of
International Disputes, which is relied on as a basis
of jurisdiction in the present case, cannot constitute
by itself an obstacle to the presentatio n of such a
request.” 113
4.15. In Request for an Examination of th e Situation in
Accordance with P aragraph 63 of the Court`s Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v.
France) Case, the Court agreed with New Zealand that
paragraph 63 of its Judgment of 20 December 1974 could not
have intended to confine the Applicant's access only to the legal
procedures provided in Articles 40(1), 60 and 61 (as France had
argued) 114 which would have been available to it in any event.
The Court stated that:
“Whereas by inserting the above -mentioned words
113 Nuclear Tests Case (New Zealand v. France) , J udgment, I.C.J.
Reports 1974, p. 477, para. 63.
114 Request for an Examination of the Situation in Accordance with
Paragraph 63 of the Court 's Judgment of 20 December 1974 in the Nuclear
Tests (New Zealand v. France) Case, I.C.J. Reports 1995 , p p. 300-301,
para. 40.
724.14. In the Nuclear Tests (New Zealand v. France) case, the
Court explained, at paragraph 63, the situation in the following
way:
“Once the Court has found that a State has entered
into a commitment concerning its future conduct it
is not the Court 's function to contemplate that it
will not comply with it. However, the Court
observes that if the basis of this Judgment were to
be affected, the Applicant could request an
examination of the situation in accordance with the
provisions of the Statute; th e denunciation by
France, by letter dated 2 January 1974, of the
General Act for the Pacific Settlement of
International Disputes, which is relied on as a basis
of jurisdiction in the present case, cannot constitute
by itself an obstacle to the presentatio n of such a
request.” 113
4.15. In Request for an Examination of th e Situation in
Accordance with P aragraph 63 of the Court`s Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v.
France) Case, the Court agreed with New Zealand that
paragraph 63 of its Judgment of 20 December 1974 could not
have intended to confine the Applicant's access only to the legal
procedures provided in Articles 40(1), 60 and 61 (as France had
argued) 114 which would have been available to it in any event.
The Court stated that:
“Whereas by inserting the above -mentioned words
113 Nuclear Tests Case (New Zealand v. France) , J udgment, I.C.J.
Reports 1974, p. 477, para. 63.
114 Request for an Examination of the Situation in Accordance with
Paragraph 63 of the Court 's Judgment of 20 December 1974 in the Nuclear
Tests (New Zealand v. France) Case, I.C.J. Reports 1995 , p p. 300-301,
para. 40.
72Nicaragua's claim , 118 and by otherwise fully delimiting the
maritime boundary between the Parties, the Court plainly
indicated that nothing more was left to decide in this respect.
When the Co urt also concluded that Nicaragua had “not
119
established” its claim as to the outer continental shelf , the
Court did not qualify its finding by allowing Nicaragua to make
another attempt to establish its claim to the outer continental
shelf at “a later stage”. Nor does the Judgment even contemplate
a reconsideration of the Nicaraguan claim in future proceedings.
As the next Chapter fully deals with Colombia's objection to
jurisdiction on the basis of res judicata, for present purposes it
suffices to briefly set out, as the following section does, some
factual and legal considerations on the basis of which the
Judgment of 19 November 2012 fully decided the subject-matter
of the dispute introduced by Nicaragua in its Application of
6 December 2001, and that the re is therefore no question of a
continuing jurisdiction that could attach to the subject -matter of
Nicaragua's Application of 16 September 2013.
D. The Judgment of 19 November 2012 Fully Decided the
Subject-Matter of the Dispute Introduced by Nicaragua with
Its Application of 6 December 2001
(1) T HE JUDGMENT OF 19 N OVEMBER 2012
4.17. Both the reasoning and operative part of the Court 's
Judgment in Territorial and Maritime Dispute show that the
118
Territorial and Maritime Dispute (Nicaragua v. Colombia),
119gment, I.C.J. Reports 2012, p. 719, para. 251 (3).
Ibid., p. 669, para. 129.
74Nicaragua's claim , 118 and by otherwise fully delimiting the
maritime boundary between the Parties, the Court plainly
indicated that nothing more was left to decide in this respect.
When the Co urt also concluded that Nicaragua had “not
119
established” its claim as to the outer continental shelf , the
Court did not qualify its finding by allowing Nicaragua to make
another attempt to establish its claim to the outer continental
shelf at “a later stage”. Nor does the Judgment even contemplate
a reconsideration of the Nicaraguan claim in future proceedings.
As the next Chapter fully deals with Colombia's objection to
jurisdiction on the basis of res judicata, for present purposes it
suffices to briefly set out, as the following section does, some
factual and legal considerations on the basis of which the
Judgment of 19 November 2012 fully decided the subject-matter
of the dispute introduced by Nicaragua in its Application of
6 December 2001, and that the re is therefore no question of a
continuing jurisdiction that could attach to the subject -matter of
Nicaragua's Application of 16 September 2013.
D. The Judgment of 19 November 2012 Fully Decided the
Subject-Matter of the Dispute Introduced by Nicaragua with
Its Application of 6 December 2001
(1) T HE JUDGMENT OF 19 N OVEMBER 2012
4.17. Both the reasoning and operative part of the Court 's
Judgment in Territorial and Maritime Dispute show that the
118
Territorial and Maritime Dispute (Nicaragua v. Colombia),
119gment, I.C.J. Reports 2012, p. 719, para. 251 (3).
Ibid., p. 669, para. 129.
74entitlement to the continental shelf, measured from Colombia 's
mainland coast” and that, consequently, “the Court is not in a
position to delimit the continental shelf boundary between
Nicaragua and Colombia, as requested by Nicaragua, even using
the general formulati on proposed by it .”121 The Court
consequently concluded that Nicaragua 's claim contained in its
final submission I(3) “cannot be upheld”, a conclusion that
formally appears in the dispositif where the decision was
unanimous. 122
4.20. In the light of that “decision” , the Court indicated that it
“must consider what maritime delimitation it is to effect”,
bearing in mind that “there can be no question of determining a
maritime boundary between the mainland coasts of the Parties,
as these are significantly more than 400 nautical miles apart.” 123
In order to determine what the Court was called on to decide, the
Court found it necessary to turn to the Nicaraguan Application
and Nicaragua 's submissions. In its Application, it will be
recalled, Nicaragua asked the Court
“to d etermine the course of the single maritime
boundary between the areas of continental shelf
121
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 669, para. 129.
122 Ibid., p. 670, para. 131and p. 719, para. 251 (3).The use of the
formula “cannot uphold” is also important as it states a rejection by the Court
of a given claim or submission on the merits. A recent example of this is the
Frontier Dispute Judgment wherein the Court, by using the same language of
the Territorial and Maritime Dispute case, decided not to uphold (i.e.,
rejected) certain territorial claims and submissions made by Burkina Faso and
Niger. See: I.C.J., Frontier Dispute (Burkina Faso/Niger), Judgment,
123April 2013, p. 42, para. 98 and p. 50, para. 114(1).
Territorial and Maritime Dispute (Nicaragua v. Colombia ),
Judgment, I.C.J. Reports 2012, p. 670, para. 132.
76entitlement to the continental shelf, measured from Colombia 's
mainland coast” and that, consequently, “the Court is not in a
position to delimit the continental shelf boundary between
Nicaragua and Colombia, as requested by Nicaragua, even using
121
the general formulati on proposed by it .” The Court
consequently concluded that Nicaragua 's claim contained in its
final submission I(3) “cannot be upheld”, a conclusion that
formally appears in the dispositif where the decision was
122
unanimous.
4.20. In the light of that “decision” , the Court indicated that it
“must consider what maritime delimitation it is to effect”,
bearing in mind that “there can be no question of determining a
maritime boundary between the mainland coasts of the Parties,
123
as these are significantly more than 400 nautical miles apart.”
In order to determine what the Court was called on to decide, the
Court found it necessary to turn to the Nicaraguan Application
and Nicaragua 's submissions. In its Application, it will be
recalled, Nicaragua asked the Court
“to d etermine the course of the single maritime
boundary between the areas of continental shelf
121 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 669, para. 129.
122 Ibid., p. 670, para. 131and p. 719, para. 251 (3).The use of the
formula “cannot uphold” is also important as it states a rejection by the Court
of a given claim or submission on the merits. A recent example of this is the
Frontier Dispute Judgment wherein the Court, by using the same language of
the Territorial and Maritime Dispute case, decided not to uphold (i.e.,
rejected) certain territorial claims and submissions made by Burkina Faso and
Niger. See: I.C.J., Frontier Dispute (Burkina Faso/Niger), Judgment,
16 April 2013, p. 42, para. 98 and p. 50, para. 114(1).
123 Territorial and Maritime Dispute (Nicaragua v. Colombia ),
Judgment, I.C.J. Reports 2012, p. 670, para. 132.
76completely with the subject -matter of the dispute brought by
Nicaragua is confirmed by the Court's statement that
“[t]he Court must not exceed the jurisdiction
conferred upon it by the Parties, but it must also
128
exercise that jurisdiction to its full extent…”
4.23. Thus, when the Court set out the course of the maritime
boundary between the Parties at paragraph 237 of its Judgment,
after having decided that Nicaragua 's submission I(3) could not
be upheld, it described both Point A and Point B situated at the
end of the 200-nautical-mile parallels as “endpoints”. In other
words, the Court clearly viewed its decision as final and
comprehensive. The operative part of the Judgment, where each
of the parallel lines is defined as extending “until it reaches the
200-nautical-mile limit from the baselines from which the
territorial sea of Nicarag ua is measured”, bears this out .129
Indeed, had the Court not intended to adjudicate and thus not to
dispose of the entire subject -matter of the claims, it would have
refrained from stating endpoints of the delimitation lines and
deferred to the competence of the CLCS, as it did in Territorial
and Maritime Dispute between Nicaragua and Honduras in the
130
Caribbean Sea (Nicaragua v. Hond uras). Moreover, any
perpetuation of the Court 's jurisdiction to entertain Nicaragua 's
128
Territorial and Maritime Dispute (Nicaragua v. Colombia ),
Judgment, I.C.J. Reports 2012 , p. 671, para. 136; citiContinental Shelf
(Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985 , p. 23,
para. 19.
129 Ibid., pp. 719-720, para. 251 (4).
130 Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras) , Judgment, I.C.J. Reports
2007, p. 759, para. 319.
78completely with the subject -matter of the dispute brought by
Nicaragua is confirmed by the Court's statement that
“[t]he Court must not exceed the jurisdiction
conferred upon it by the Parties, but it must also
128
exercise that jurisdiction to its full extent…”
4.23. Thus, when the Court set out the course of the maritime
boundary between the Parties at paragraph 237 of its Judgment,
after having decided that Nicaragua 's submission I(3) could not
be upheld, it described both Point A and Point B situated at the
end of the 200-nautical-mile parallels as “endpoints”. In other
words, the Court clearly viewed its decision as final and
comprehensive. The operative part of the Judgment, where each
of the parallel lines is defined as extending “until it reaches the
200-nautical-mile limit from the baselines from which the
territorial sea of Nicarag ua is measured”, bears this out .29
Indeed, had the Court not intended to adjudicate and thus not to
dispose of the entire subject -matter of the claims, it would have
refrained from stating endpoints of the delimitation lines and
deferred to the competence of the CLCS, as it did in Territorial
and Maritime Dispute between Nicaragua and Honduras in the
130
Caribbean Sea (Nicaragua v. Hond uras). Moreover, any
perpetuation of the Court 's jurisdiction to entertain Nicaragua 's
128
Territorial and Maritime Dispute (Nicaragua v. Colombia ),
Judgment, I.C.J. Reports 2012 , p. 671, para. 136; citiContinental Shelf
(Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985 , p. 23,
para. 19.
129 Ibid., pp. 719-720, para. 251 (4).
130 Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras) , Judgment, I.C.J. Reports
2007, p. 759, para. 319.
78 133
disputes related to this submission.”
4.26. Once the Court has decided a claim in a final judgment,
it has exhausted its mandate for the adjudication of that dispute.
The Court has no residual or inherent power which could enable
a State to resubmit the same claim by characterizing it as only a
later stage of the same proceeding, but not a new proceeding.
When the claim is dealt with, whether on grounds of jurisdiction
or merits, the proceedings and the consent to jurisdiction on
which they were based are terminated and cannot be revived by
a new application. Accordingly, once jurisdiction is exhausted,
as it was by the Judgment of 19 November 2012, the case is
removed from the list of pending cases, as occurred with respect
to Territorial and Maritime Dispute.
(2) T HERE IS NO CONTINUING JURISDICTION OVER THE SUBJECT -
MATTER OF N ICARAGUA S A PPLICATION
4.27. The concept of some sort of self -perpetuating
jurisdiction, as claimed by Nicaragua, is incompatible with the
fundamental principle of res judicata, as set out in Colombia 's
third objection to jurisdiction discussed in the next Chapter.
Paragraph 10 of the Nicaraguan Application, however, rests on
the assumption that dismissal of a claim still leaves a kind of
133 Republic of Nicaragua, Submission to the Commission on the Limits
of the Continental Shelf pursuant to Article 76, Paragraph 8 of the United
Nations Convention on the Law of the Sea, 1982. Part I:
Executive Summary, 24 June 2013, p. 2, para. 8. Available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nic66_13/Executi…
%20Summary.pdf (Last visited: 4 Aug. 2014)
80 133
disputes related to this submission.”
4.26. Once the Court has decided a claim in a final judgment,
it has exhausted its mandate for the adjudication of that dispute.
The Court has no residual or inherent power which could enable
a State to resubmit the same claim by characterizing it as only a
later stage of the same proceeding, but not a new proceeding.
When the claim is dealt with, whether on grounds of jurisdiction
or merits, the proceedings and the consent to jurisdiction on
which they were based are terminated and cannot be revived by
a new application. Accordingly, once jurisdiction is exhausted,
as it was by the Judgment of 19 November 2012, the case is
removed from the list of pending cases, as occurred with respect
to Territorial and Maritime Dispute.
(2) T HERE IS NO CONTINUING JURISDICTION OVER THE SUBJECT -
MATTER OF N ICARAGUA S A PPLICATION
4.27. The concept of some sort of self -perpetuating
jurisdiction, as claimed by Nicaragua, is incompatible with the
fundamental principle of res judicata, as set out in Colombia 's
third objection to jurisdiction discussed in the next Chapter.
Paragraph 10 of the Nicaraguan Application, however, rests on
the assumption that dismissal of a claim still leaves a kind of
133 Republic of Nicaragua, Submission to the Commission on the Limits
of the Continental Shelf pursuant to Article 76, Paragraph 8 of the United
Nations Convention on the Law of the Sea, 1982. Part I:
Executive Summary, 24 June 2013, p. 2, para. 8. Available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nic66_13/Executi…
%20Summary.pdf (Last visited: 4 Aug. 2014)
80jurisdiction ad futurum. However, no party should be harassed
by serial applications pursuing the same claim.
E. Conclusion
4.30. While it is within the Court 's power to preserve
jurisdiction over all or part of the subject-matter of a case it has
decided, it did not do so in the instant case. To the contrary, the
Court fully dealt with, and decided, the subject -matter of the
dispute brought by Nicaragua with its Application of
6 December 2001. With its Judgment of 19 November 2012, the
Court exhausted its jurisdiction in the case. Consequently,
Nicaragua cannot bring a claim on the subject -matter of the
Judgment of 19 November 2012, based on the contention that its
present Application remains under the jurisd iction of the Court
which had been established in the prior case.
82jurisdiction ad futurum. However, no party should be harassed
by serial applications pursuing the same claim.
E. Conclusion
4.30. While it is within the Court 's power to preserve
jurisdiction over all or part of the subject-matter of a case it has
decided, it did not do so in the instant case. To the contrary, the
Court fully dealt with, and decided, the subject -matter of the
dispute brought by Nicaragua with its Application of
6 December 2001. With its Judgment of 19 November 2012, the
Court exhausted its jurisdiction in the case. Consequently,
Nicaragua cannot bring a claim on the subject -matter of the
Judgment of 19 November 2012, based on the contention that its
present Application remains under the jurisd iction of the Court
which had been established in the prior case.
82 “The dispute concerns the delimitation of the
boundaries between, on the one hand, the
continental shelf of Nicaragua beyond the 200 -
nautical-mile limit from the baselines from which
the breadth of the territorial sea of Nicaragua is
measured, and on the other hand, the continental
shelf of Colombia. Nicaragua requests the Court to:
(1) determine the precise course of the boundary of
the continental shelf between Nicaragua and
Colombia in accordance with the principles and
rules of international law, and (2) indicate the
rights and duties of the two States in relation to the
area of overlapping claims and the use of its
resources pending the precise delimitation of the
line of the boundary.”39
In Section V of its Application, under the heading “Decision
Requested”, Nicaragua has requested the Court to adjudge and
declare, inter alia,
“FIRST: The precise course of the maritime
boundary between Nicaragua and Colombia in the
areas of the continental shelf which appertain to
each of them beyond the boundaries determined by
the Court in its Judgment of 19 November 2012.
SECOND: The principles and rules of international
law that determine the rights and duties of the two
States in relation to the area of overlapping
continental shelf claims and the use of its
resources, pending the delimitation of the maritime
boundary between them beyond 200 nautical miles
from Nicaragua's coast.”140
5.4. As is apparent on its face, the first request in this
Application is no more than a reincarnation of Nicaragua's claim
139
140 Application, para. 2.
Application, para. 12.
84 “The dispute concerns the delimitation of the
boundaries between, on the one hand, the
continental shelf of Nicaragua beyond the 200 -
nautical-mile limit from the baselines from which
the breadth of the territorial sea of Nicaragua is
measured, and on the other hand, the continental
shelf of Colombia. Nicaragua requests the Court to:
(1) determine the precise course of the boundary of
the continental shelf between Nicaragua and
Colombia in accordance with the principles and
rules of international law, and (2) indicate the
rights and duties of the two States in relation to the
area of overlapping claims and the use of its
resources pending the precise delimitation of the
line of the boundary.”39
In Section V of its Application, under the heading “Decision
Requested”, Nicaragua has requested the Court to adjudge and
declare, inter alia,
“FIRST: The precise course of the maritime
boundary between Nicaragua and Colombia in the
areas of the continental shelf which appertain to
each of them beyond the boundaries determined by
the Court in its Judgment of 19 November 2012.
SECOND: The principles and rules of international
law that determine the rights and duties of the two
States in relation to the area of overlapping
continental shelf claims and the use of its
resources, pending the delimitation of the maritime
boundary between them beyond 200 nautical miles
from Nicaragua's coast.”140
5.4. As is apparent on its face, the first request in this
Application is no more than a reincarnation of Nicaragua's claim
139
140 Application, para. 2.
Application, para. 12.
84This area was depicted on Figure I in Nicaragua's Memorial and
Figure 3-1 in its Reply. It manifestly comprised areas within
which Nicaragua, in its present Application, asks the Court now
to determine a continental shelf boundary. (For ease of
reference, the relevant figure s are reproduced following this
page.) Second, Nicaragua claimed a continental shelf boundary
that lay beyond 200 nautical miles from its baselines. However,
the Court will recall that, after its 2001 Application, Nicaragua 's
position on continental shelf delimitation with Colombia
evolved through the several phases of that case. It is useful to
follow those changes of position in order to appreciate the
significance of Nicaragua's I(3) claim. In its Application to the
Court of 6 December 2001, Nicaragua 's second request to the
Court was “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
141
boundary.” Nicaragua maintained that claim in its Memorial,
arguing that “the appropriate form of delimitation, within the
geographical and legal framewor k constituted by the mainland
coasts of Nicaragua and Colombia, is a single maritime
boundary in the form of a median line between these mainland
coasts.”142
141 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Application, 6 December 2001, p. 8, para. 8.
142 Ibid., Judgment, I.C.J. Reports 2012, p. 634, para. 15.
86This area was depicted on Figure I in Nicaragua's Memorial and
Figure 3-1 in its Reply. It manifestly comprised areas within
which Nicaragua, in its present Application, asks the Court now
to determine a continental shelf bound(For ease of
reference, the relevant figure s are reproduced following this
page.) Second, Nicaragua claimed a continental shelf boundary
that lay beyond 200 nautical miles from its baselines. However,
the Court will recall that, after its 2001 Application, Nicaragua 's
position on continental shelf delimitation with Colombia
evolved through the several phases of It is useful to
follow those changes of position in order to appreciate the
significance of Nicaragua's I(3) claim. In its Application to the
Court of 6 December 2001, Nicaragua 's second request to the
Court was “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.”1Nicaragua maintained that claim in its Memorial,
arguing that “the appropriate form of delimitation, within the
geographical and legal framewor k constituted by the mainland
coasts of Nicaragua and Colombia, is a single maritime
boundary in the form of a median line between these mainland
coasts.”2
141
Territorial and Maritime Dispute v. Colombia),
142lication, 6 December 2001, p. 8, para. 8.
Ibid., Judgment, I.C.J. Reports 2012, p. 634, para. 15.
86 116° 30' 115° 30' 114° 30' 113° 30' 112° 30' 111° 30' 110° 30' 9° 30'
200 M
772° 772°
Punta Gallinas
FIGURE 330' Venezuela 30'
Delimitation Area Cabo de la VerRiohacha
773° 773°
30' Punta de la Cruz 100 30'
774° 774°
30' 30'
Continental Shelf Cabo de la Aguja
The Delimitation Area according to Nicaragua
775° Barranquilla 775°
Outer limit of Nicaragua's Colombia
Punta Faro 0
Cartagena
30' 30'
776° Golfo de 776°
Punta de la Garita
Morrosquillo
30' 30'
777° 777°
Uraba
Golfo de
30' 30'
778° 778°
30' 30'
P. San Blas
779° BaNjouCeavoy 779°
30' Panama 30'
Colon
Serranilla Cay
880° 880°
Roncador Cay
Serrana Cay
30' 30'
881° 881°
ProIsvliadnedncia EaCstaSysoutheast
GolMfoodsequloitsos
30' 30'
SSaaAannndddrés
S Catalina
882° AlbCuarqysuerque 882°
tai
h
30' C Punta Mona 30'
MiCskaiytos t
u Almirante
P
883° CoIrsnlands 883°
erlas
C GàrDacioiass d P
t
Pu
30' Punta Castilla Puerto Limon 30'
Punta del Mono
Costa Rica
884° 884°
Honduras Nicaragua
30' 30' 30' 30' 30' 30' 30' 9° 30'
116° 115° 114° 113° 112° 111° 110° Based on NM Figure 1
Figure 3-1 from the Nicaraguan Reply
Figure 2
88 5.7. In its Memorial, Nicaragua eschewed the relevance of
geological and geomorphological factors. It stated:
“The position of the Government of Nicaragua is
that geological and geomorphological factors have
no relevance for the delimitation of a single
maritime boundary within the delimitation area.
As demonstrated by the pertinent graphics, the
parties have overlapping legal interests within the
delimitation area, and it is legally appropriate that
these should be divided by means of an
143
equidistance line.”
Indeed, Figure I in Nicaragua
Delimitation Area” showed a shaded
respective mainland coasts of Nicaragua and Colombia with a
median line just beyond the 200
Colombia's baselines.
5.8. Colombia, in its Counter -Memorial, joined issue on this
point, noting that “the two mainland
nautical miles apart in the area covered by Nicaragua
claim.” 144 Colombia proceeded to rebut Nicaragua 's claim to
areas more than 200 nautical miles from the relevant baselines
of the parties, relying on the Court 's judgments in Nicaragua v.
145
Honduras and Gulf of Maine.
5.9. In Nicaragua 's Reply, filed on 18 September 2009,
Nicaragua changed its submission.
143 Territorial and Maritime Dispute (Nicaragua
Memorial of Nicaragua, Vol. I, pp. 215-216, para. 3.58.
144 Ibid., Counter-Memorial of Colombia, Vol. I, p. 313, para. 7.12.
145 Ibid., at pp. 319-321, paras.7.18-7.20.
88delimitation of a single maritime boundary, but rather a
continental shelf boundary between the mainl and coasts of the
Parties following a specific set of co -ordinates that lay more
than 200 nautical miles from Nicaragua 's baselines and which
depended on the identification of the outer limits of its extended
continental shelf. 146 As evidence in support of t his new
submission, Nicaragua annexed certain technical information,
including the Preliminary Information it had provided to the
CLCS and a delimitation of its clai med shelf with that of
Colombia. 147
5.10. In its Reply, Nicaragua also rejected Colombia 's position
that Nicaragua did not have an entitlement beyond 200 nautical
miles from baselines, insisting that “Article 76 of the
Convention establishes the bases of entitlement to the
continental margin and entitlement is logically anterior to the
process of delimitation.” 148 Contrary to the position it had taken
in its Memorial, Nicaragua then proceeded to argue on the basis
of “geological and other evidence determining the outer limit of
the respective continental margins of Nicaragua and
Colombia.” 149 Specifically, Nicaragua contended:
“For Nicaragua, there is clear topographical and
geological continuity between the Nicaraguan land
mass and the Nicaraguan Rise which is a shallow
area of continental crust extending from Nicaragua
to Jamaica. Its southern limit is sharply defined by
146 Territorial and Maritime Dispute (Nicaragua v. Colombia), Reply
of Nicaragua, Vol. I, Chapter III.
147 Ibid., Vol. I, at p. 90, para. 3.38.
148 Ibid., pp. 79-80, para. 3.14. (Italics in original)
149 Ibid., p. 81, para. 3.20.
90delimitation of a single maritime boundary, but rather a
continental shelf boundary between the mainl and coasts of the
Parties following a specific set of co -ordinates that lay more
than 200 nautical miles from Nicaragua 's baselines and which
depended on the identification of the outer limits of its extended
continental shelf. 146 As evidence in support of t his new
submission, Nicaragua annexed certain technical information,
including the Preliminary Information it had provided to the
CLCS and a delimitation of its clai med shelf with that of
Colombia. 147
5.10. In its Reply, Nicaragua also rejected Colombia 's position
that Nicaragua did not have an entitlement beyond 200 nautical
miles from baselines, insisting that “Article 76 of the
Convention establishes the bases of entitlement to the
continental margin and entitlement is logically anterior to the
process of delimitation.” 148 Contrary to the position it had taken
in its Memorial, Nicaragua then proceeded to argue on the basis
of “geological and other evidence determining the outer limit of
the respective continental margins of Nicaragua and
Colombia.” 149 Specifically, Nicaragua contended:
“For Nicaragua, there is clear topographical and
geological continuity between the Nicaraguan land
mass and the Nicaraguan Rise which is a shallow
area of continental crust extending from Nicaragua
to Jamaica. Its southern limit is sharply defined by
146 Territorial and Maritime Dispute (Nicaragua v. Colombia), Reply
of Nicaragua, Vol. I, Chapter III.
147 Ibid., Vol. I, at p. 90, para. 3.38.
148 Ibid., pp. 79-80, para. 3.14. (Italics in original)
149 Ibid., p. 81, para. 3.20.
90its claim vis-à-vis Colombia for an extended continental shelf
and its case for its delimitation beyond 200 nautical miles from
Nicaragua's baselines.
5.13. In its Rejoinder, Colombia drew the Court 's attention to
the fact that Nicaragua had shifted its argument from one based
on a mainland-to-mainland median line relying on geography to
one based on
“…an outer continental shelf claim based
exclusively on geology and geomorphology; and it
has introduced a brand new claim to divide equally
what is alleged to be the overlapping physical
continental shelves of the Parties ' mainland
154
coasts.”
Colombia pointed out that “what Nicaragua is now seeking from
the Court is… (ii) recognition of a claim to extended continental
shelf rights under Ar ticle 76 of the 1982 Convention …”. 155
Colombia challenged not only the admissibility of the new
continental shelf claim 156 but also its merits. 157 Colombia
concluded in its Rejoinder:
“The new continental shelf claim [of Nicaragua]
also lacks any merit. Nicaragua has neither
demonstrated nor established any entitlement to
outer continental shelf rights, and no such rights
exist in this part of the Caribbean. Moreover, there
is no basis for effecting a continental shelf
delimitation based on the physical characteri stics
154 Territorial and Maritime Dispute (Nicaragua v. Colombia ),
Rejoinder of Colombia, Vol. I, pp. 113-114, para. 4.2. (Emphasis added)
155 Ibid., Vol. I, p. 117, para. 4.7.
156 Ibid., at pp. 122-136, paras. 4.15-4.35.
157 Ibid., at pp. 136-156, paras. 4.36-4.69.
92its claim vis-à-vis Colombia for an extended continental shelf
and its case for its delimitation beyond 200 nautical miles from
Nicaragua's baselines.
5.13. In its Rejoinder, Colombia drew the Court 's attention to
the fact that Nicaragua had shifted its argument from one based
on a mainland-to-mainland median line relying on geography to
one based on
“…an outer continental shelf claim based
exclusively on geology and geomorphology; and it
has introduced a brand new claim to divide equally
what is alleged to be the overlapping physical
continental shelves of the Parties ' mainland
154
coasts.”
Colombia pointed out that “what Nicaragua is now seeking from
the Court is… (ii) recognition of a claim to extended continental
shelf rights under Ar ticle 76 of the 1982 Convention …”. 155
Colombia challenged not only the admissibility of the new
continental shelf claim 156 but also its merits. 157 Colombia
concluded in its Rejoinder:
“The new continental shelf claim [of Nicaragua]
also lacks any merit. Nicaragua has neither
demonstrated nor established any entitlement to
outer continental shelf rights, and no such rights
exist in this part of the Caribbean. Moreover, there
is no basis for effecting a continental shelf
delimitation based on the physical characteri stics
154 Territorial and Maritime Dispute (Nicaragua v. Colombia ),
Rejoinder of Colombia, Vol. I, pp. 113-114, para. 4.2. (Emphasis added)
155 Ibid., Vol. I, p. 117, para. 4.7.
156 Ibid., at pp. 122-136, paras. 4.15-4.35.
157 Ibid., at pp. 136-156, paras. 4.36-4.69.
92 But whatever method or procedure is adopted by
the Court to effect the delimitation, the aim of
Nicaragua is that the decision leaves no more
maritime areas pending delimitation between
Nicaragua and Colombia. This was and is the main
objective of Nicaragua since it filed its Application
in this case. (See sketch-map No. 2, p. 663).” 159
5.16. At the hearing on 24 April 2012, Dr. Cleverly undertook
to “describe in more detail the geological and geomorphological
aspects, particularly of the continental shelf.” 160 He proceeded
to present geomorphological and bathymetric data purporting to
prove Nicaragua's claim to an extended continental shelf well
into the 200-nautical-mile shelf and exclusive economic zone of
mainland Colombia.
5.17. Dr. Cleverly was followed by Pro fessor Lowe, who
sought to provide a legal basis for Nicaragua 's claim “that
Nicaragua's landmass continues under the sea in a north -easterly
direction for about 500 nautical miles, overlapping Colombia 's
200-nautical-mile zone.” 161 He proceeded to argue th at the
alleged overlap between Nicaragua 's extensive claim and
Colombia's entitlement to 200 nautical miles of continental shelf
should be divided by equitable principles, in the instant case by
a median line.
159 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 670, para. 134.
160 Ibid., Public Sitting, 24 April 201, CR 2012/9, p. 10, para. 2
(Cleverly).
161 Ibid., p. 26, para. 28 (Lowe).
94 But whatever method or procedure is adopted by
the Court to effect the delimitation, the aim of
Nicaragua is that the decision leaves no more
maritime areas pending delimitation between
Nicaragua and Colombia. This was and is the main
objective of Nicaragua since it filed its Application
in this case. (See sketch-map No. 2, p. 663).” 159
5.16. At the hearing on 24 April 2012, Dr. Cleverly undertook
to “describe in more detail the geological and geomorphological
aspects, particularly of the continental shelf.” 160 He proceeded
to present geomorphological and bathymetric data purporting to
prove Nicaragua's claim to an extended continental shelf well
into the 200-nautical-mile shelf and exclusive economic zone of
mainland Colombia.
5.17. Dr. Cleverly was followed by Pro fessor Lowe, who
sought to provide a legal basis for Nicaragua 's claim “that
Nicaragua's landmass continues under the sea in a north -easterly
direction for about 500 nautical miles, overlapping Colombia 's
200-nautical-mile zone.” 161 He proceeded to argue th at the
alleged overlap between Nicaragua 's extensive claim and
Colombia's entitlement to 200 nautical miles of continental shelf
should be divided by equitable principles, in the instant case by
a median line.
159 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 670, para. 134.
160 Ibid., Public Sitting, 24 April 201, CR 2012/9, p. 10, para. 2
(Cleverly).
161 Ibid., p. 26, para. 28 (Lowe).
945.21. On 27 April 2012, Mr. Bundy, on behalf of Colombia,
returned to the question of whether Nicaragua, in making a
claim to an extended continental shelf, had fulfilled the
obligations prescribed by Article 76 of UNCLOS. He
elaborated on the critical obligation in Article 76(8) .164
Mr. Bundy drew attention to Ni caragua's submission to the
CLCS (which it had, for some reason, not filed with the Court in
its Reply):
“…the preliminary information that Nicaragua did
ultimately file, I think, in April 2010 quite clearly
states ‘some of the data and the profiles descri bed
below do not satisfy the exacting standards
required by the CLCS for a full submission, as
detailed in the Commission's Guidelines.’
…The material that Nicaragua submitted, both as
preliminary information, and under Annexes 16 -18
to its Reply, is utterly insufficient to establish any
outer continental shelf limits under the
Commission's Guidelines, which are the
fundamental source of instruction for the technical
165
implementation of Article 76.”
Mr. Bundy then proceeded to review the substance of
Nicaragua's data and to rebut it.
5.22. In the second round of oral argument, Mr. Cleverly, on
1 May 2012, sought to defend the quality of the data which
Nicaragua had submitted to the CLCS, on which Nicaragua was
164 Territorial and M aritime Dispute (Nicaragua v. Colombia), Public
Sitting 27 April 2012, CR 2012/12 , p. 54, para. 52 ff, d rawing attention, in
particular, to para. 407 of the judgment of ITLOS in Bangladesh v. Myanmar
(see para. 54, at p. 55). That holding tracked the ICJ j udgment in Nicaragua
v. Honduras as noted by Mr. Bundy at p. 55, para. 55.
165 Ibid., p. 56, paras. 59-60 (Bundy).
965.21. On 27 April 2012, Mr. Bundy, on behalf of Colombia,
returned to the question of whether Nicaragua, in making a
claim to an extended continental shelf, had fulfilled the
obligations prescribed by Article 76 of UNCLOS. He
elaborated on the critical obligation in Article 76(8) .164
Mr. Bundy drew attention to Ni caragua's submission to the
CLCS (which it had, for some reason, not filed with the Court in
its Reply):
“…the preliminary information that Nicaragua did
ultimately file, I think, in April 2010 quite clearly
states ‘some of the data and the profiles descri bed
below do not satisfy the exacting standards
required by the CLCS for a full submission, as
detailed in the Commission's Guidelines.’
…The material that Nicaragua submitted, both as
preliminary information, and under Annexes 16 -18
to its Reply, is utterly insufficient to establish any
outer continental shelf limits under the
Commission's Guidelines, which are the
fundamental source of instruction for the technical
165
implementation of Article 76.”
Mr. Bundy then proceeded to review the substance of
Nicaragua's data and to rebut it.
5.22. In the second round of oral argument, Mr. Cleverly, on
1 May 2012, sought to defend the quality of the data which
Nicaragua had submitted to the CLCS, on which Nicaragua was
164 Territorial and M aritime Dispute (Nicaragua v. Colombia), Public
Sitting 27 April 2012, CR 2012/12 , p. 54, para. 52 ff, d rawing attention, in
particular, to para. 407 of the judgment of ITLOS in Bangladesh v. Myanmar
(see para. 54, at p. 55). That holding tracked the ICJ j udgment in Nicaragua
v. Honduras as noted by Mr. Bundy at p. 55, para. 55.
165 Ibid., p. 56, paras. 59-60 (Bundy).
965.24. On 4 May 2012, Mr. Bundy, on behalf of Colombia,
devoted the bulk of his presentation to a refutation of
Nicaragua's claim to an extended continental shelf and, in
particular, to Nicaragua's evidence based on geology and
171
geomorphology purporting to support its claim . He was
particularly detailed with respect to the geologic and
172
geomorphologic claims in Nicaragua's revised case.
5.25. In its oral arguments, Nicaragua had insisted that it was
not asking for a definitive ruling on the precise location of the
outer limits of its continental shelf, but rather for the Court to
say that Nicaragua's shelf was divided from that of Colombia by
a delimitation line that has a defined course. 173 But at the end of
the oral hearing, Nicaragua 's final submission I(3) requested a
continental shelf boundary dividing by equal parts overlapping
entitlements to a co ntinental shelf of both Parti es. 174 Hence,
Nicaragua's claim in its various formulations (i) required
Nicaragua to establish that it was entitled to a continental shelf
lying more than 200 miles from its baselines and (ii) requested
the delimitation of that continental shelf and Colombi a's
continental shelf entitlement.
5.26. Thus, the written and oral pleadings show that the
Parties, the legal basis and the remedy sought in the Nicaraguan
Application of 16 September 2013 are identical in all these
171
Territorial and Maritime Dispute (Nicaragua v. Colombia), Public
Sitting 4 May 2012, CR 2012/16, at p. 42, paras. 33ff (Bundy).
172 Ibid., p. 45, paras. 51ff.
173 Ibid., Judgment, I.C.J. Reports 2012, p. 669, para. 128.
174 Ibid., p. 636, para. 17.
985.24. On 4 May 2012, Mr. Bundy, on behalf of Colombia,
devoted the bulk of his presentation to a refutation of
Nicaragua's claim to an extended continental shelf and, in
particular, to Nicaragua's evidence based on geology and
171
geomorphology purporting to support its claim . He was
particularly detailed with respect to the geologic and
172
geomorphologic claims in Nicaragua's revised case.
5.25. In its oral arguments, Nicaragua had insisted that it was
not asking for a definitive ruling on the precise location of the
outer limits of its continental shelf, but rather for the Court to
say that Nicaragua's shelf was divided from that of Colombia by
a delimitation line that has a defined course. 173 But at the end of
the oral hearing, Nicaragua 's final submission I(3) requested a
continental shelf boundary dividing by equal parts overlapping
entitlements to a co ntinental shelf of both Parti es. 174 Hence,
Nicaragua's claim in its various formulations (i) required
Nicaragua to establish that it was entitled to a continental shelf
lying more than 200 miles from its baselines and (ii) requested
the delimitation of that continental shelf and Colombi a's
continental shelf entitlement.
5.26. Thus, the written and oral pleadings show that the
Parties, the legal basis and the remedy sought in the Nicaraguan
Application of 16 September 2013 are identical in all these
171
Territorial and Maritime Dispute (Nicaragua v. Colombia), Public
Sitting 4 May 2012, CR 2012/16, at p. 42, paras. 33ff (Bundy).
172 Ibid., p. 45, paras. 51ff.
173 Ibid., Judgment, I.C.J. Reports 2012, p. 669, para. 128.
174 Ibid., p. 636, para. 17.
98the subject-matter of the Applic ation”; 179and “the claim to an
extended continental shelf [fell] within t he dispute between the
180
Parties.” The Court provided a fully reasoned explanation of
its decision to uphold the admissibility of Nicaragua 's
Submission I(3):
“109. …The fact that Nicaragua's claim to an
extended continental shelf is a new claim,
introduced in the Reply, does not, in itself, render
the claim inadmissible. The Court has held that
‘the mere fact that a claim is new is not in itself
decisive for the issue of admissibil ity’ (Territorial
and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007 (II) ,
p.695, para.110). Rather , ‘ the decisive
consideration is the nature of the connection
between that claim and the one formulated in the
Application instituting proceedings ’ (Ahmadou
Sadio Diallo (Republic of Guinea v. Democratic
Republic of the Congo), Judgment, I.C.J. Reports
2010 (II), p.657, para. 41).
110. For this purpose it is not sufficient that there
should be a link of a general nature between the
two claims. In order to be admissible, a new claim
must satisfy one of two alternative tests: it must
either be implicit in the Application or must arise
directly out of the question which is the subject -
matter of the Application (ibid.).
111. The Court notes that the original claim
concerned the delimitation of the exclusive
economic zone and of the continental shelf
between the Parties. In particular, the Application
defined the dispute as ‘ a group of relat ed legal
issues subsisting between the Republic of
179
Territorial and Maritime Dispute (Nicaragua v. Colombia),
180gment, I.C.J. Reports 2012, p. 665, para. 110.
Ibid., p. 665, para. 111.
100the subject-matter of the Applic ation”; 179and “the claim to an
extended continental shelf [fell] within t he dispute between the
180
Parties.” The Court provided a fully reasoned explanation of
its decision to uphold the admissibility of Nicaragua 's
Submission I(3):
“109. …The fact that Nicaragua's claim to an
extended continental shelf is a new claim,
introduced in the Reply, does not, in itself, render
the claim inadmissible. The Court has held that
‘the mere fact that a claim is new is not in itself
decisive for the issue of admissibil ity’ (Territorial
and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007 (II) ,
p.695, para.110). Rather , ‘ the decisive
consideration is the nature of the connection
between that claim and the one formulated in the
Application instituting proceedings ’ (Ahmadou
Sadio Diallo (Republic of Guinea v. Democratic
Republic of the Congo), Judgment, I.C.J. Reports
2010 (II), p.657, para. 41).
110. For this purpose it is not sufficient that there
should be a link of a general nature between the
two claims. In order to be admissible, a new claim
must satisfy one of two alternative tests: it must
either be implicit in the Application or must arise
directly out of the question which is the subject -
matter of the Application (ibid.).
111. The Court notes that the original claim
concerned the delimitation of the exclusive
economic zone and of the continental shelf
between the Parties. In particular, the Application
defined the dispute as ‘ a group of relat ed legal
issues subsisting between the Republic of
179
Territorial and Maritime Dispute (Nicaragua v. Colombia),
180gment, I.C.J. Reports 2012, p. 665, para. 110.
Ibid., p. 665, para. 111.
100UNCLOS and in particular Article 76, its own jurisprudence and
the Judgment of 14 March 2012 rendered by ITLOS in the
Dispute concerning Delimitation of the Maritime Boundary
between Bangladesh and Myanmar in the Bay of
Bengal(Bangladesh/Myanmar).
5.30. The Court concluded that Nicaragua had not established
that it had a continental shelf margin overlapping with
Colombia's 200-nautical-mile entitlement to a continental shelf;
consequently, it did not uphold Nicaragua 's claim contained in
its final submission I(3). The Court said:
“128. The Court recalls that in the second round of
oral argument, Nicaragua stated that it was ‘not
asking [the Court] for a definitive ruling on the
precise location of the outer limit of Nicaragua 's
continental shelf’ . Rather, it was ‘asking [the
Court] to say that Nicaragua 's continental shelf
entitlement is divided from Colombia 's continental
shelf entitlement by a delimitation line which has a
defined course ’. Nicaragua suggested that ‘the
Court could make that delimitation by defining the
boundary in words such as “the boundary is the
median line between the outer edge of Nicaragua 's
continental shelf fixed in accordance with
UNCLOS Article 76 and the outer limit of
Colombia's 200 ‑mile zone” . This formula,
Nicaragua suggested, “does not require the Court
to determine precisel y where the outer edge of
Nicaragua's shelf lies ”. The outer limits could be
then established by Nicaragua at a later stage, on
the basis of the recommendations of the
Commission.’
129. However, since Nicaragua, in the present
proceedings, has not established that it has a
continental margin that extends far enough to
102UNCLOS and in particular Article 76, its own jurisprudence and
the Judgment of 14 March 2012 rendered by ITLOS in the
Dispute concerning Delimitation of the Maritime Boundary
between Bangladesh and Myanmar in the Bay of
Bengal(Bangladesh/Myanmar).
5.30. The Court concluded that Nicaragua had not established
that it had a continental shelf margin overlapping with
Colombia's 200-nautical-mile entitlement to a continental shelf;
consequently, it did not uphold Nicaragua 's claim contained in
its final submission I(3). The Court said:
“128. The Court recalls that in the second round of
oral argument, Nicaragua stated that it was ‘not
asking [the Court] for a definitive ruling on the
precise location of the outer limit of Nicaragua 's
continental shelf’ . Rather, it was ‘asking [the
Court] to say that Nicaragua 's continental shelf
entitlement is divided from Colombia 's continental
shelf entitlement by a delimitation line which has a
defined course ’. Nicaragua suggested that ‘the
Court could make that delimitation by defining the
boundary in words such as “the boundary is the
median line between the outer edge of Nicaragua 's
continental shelf fixed in accordance with
UNCLOS Article 76 and the outer limit of
Colombia's 200 ‑mile zone” . This formula,
Nicaragua suggested, “does not require the Court
to determine precisel y where the outer edge of
Nicaragua's shelf lies ”. The outer limits could be
then established by Nicaragua at a later stage, on
the basis of the recommendations of the
Commission.’
129. However, since Nicaragua, in the present
proceedings, has not established that it has a
continental margin that extends far enough to
102 184
entitlements of the parties overlap.” Given that Nicaragua
had not established any continental shelf entitlement beyond 200
nautical miles from its baselines, and a coastal State has no
entitlement to an exclusive economic zone beyond the same
200-nautical-mile limit, the Court concluded that there were no
overlapping entitlements between the Parties situated more than
200 nautical miles from Nicaragua 's baselines that could be
delimited. The Court explained the position in the following
way:
“Leaving out of account any Nicaraguan claims to
a continental shelf beyond 200 nautical miles
means that there can be no question of determining
a maritime boundary between the mainland coasts
of the Parties, as these are significantly more than
400 nautical miles apart. There is, however, an
overlap between Nicaragua 's entitlement to a
continental shelf and exclusive economic zone
extending to 200 nautical miles from its mainland
coast and adjacent islands and Colombia 's
entitlement to a continental shelf and exclusive
economic zone from the islands over which the
Court has held that Colombia has
sovereignty…”. 185
To which the Court later added:
“Accordingly, the relevant area extends from the
Nicaraguan coast to a line in the east 200 nautical
miles from the baselines from which the breadth of
Nicaragua's territorial sea is measured.” 186
This is the area depicted on s ketch-map No. 7 to the Court 's
Judgment.
184 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 683, para. 159.
185 Ibid., p. 670, para. 132.
186 Ibid., p. 683, para.159.
104 184
entitlements of the parties overlap.” Given that Nicaragua
had not established any continental shelf entitlement beyond 200
nautical miles from its baselines, and a coastal State has no
entitlement to an exclusive economic zone beyond the same
200-nautical-mile limit, the Court concluded that there were no
overlapping entitlements between the Parties situated more than
200 nautical miles from Nicaragua 's baselines that could be
delimited. The Court explained the position in the following
way:
“Leaving out of account any Nicaraguan claims to
a continental shelf beyond 200 nautical miles
means that there can be no question of determining
a maritime boundary between the mainland coasts
of the Parties, as these are significantly more than
400 nautical miles apart. There is, however, an
overlap between Nicaragua 's entitlement to a
continental shelf and exclusive economic zone
extending to 200 nautical miles from its mainland
coast and adjacent islands and Colombia 's
entitlement to a continental shelf and exclusive
economic zone from the islands over which the
Court has held th185 Colombia has
sovereignty…”.
To which the Court later added:
“Accordingly, the relevant area extends from the
Nicaraguan coast to a line in the east 200 nautical
miles from the baselines from which the breadth of
Nicaragua's territorial sea is measured.” 186
This is the area depicted on s ketch-map No. 7 to the Court 's
Judgment.
184 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 683, para. 159. Sketch Map No. 7 from ICJ’s 2012 Judgment
185 Ibid., p. 670, para. 132.
186 Ibid., p. 683, para.159.
1045.32. These decisions appeared in the operative part of the
Judgment, and as such they are final and binding and have the
force of res judicata. Accordingly, having refused to uphold
Nicaragua's claim to an extended continental shelf beyond 200
nautical miles from its baselines, the Court unanimously decided
the course of the maritime boundary between the Parties in the
operative part of the Judgment and did not extend the
continental shelf boundary beyond 200 nautical miles from
187
Nicaragua's baseline. Thus the Court:
“(4) Unanimously,
Decides that the line of the single maritime
boundary delimiting the continental shelf and the
exclusive economic zones of the Republic of
Nicaragua and the Republic of Colombia shall
follow geodetic lines connecting the points with
co‑ordinates:
Latitude north Longitude west
1. 13° 46ʹ 35.7˝ 81° 29ʹ 34.7˝
2. 13° 31ʹ 08.0˝ 81° 45ʹ 59.4˝
3. 13° 03ʹ 15.8˝ 81° 46ʹ 22.7˝
4. 12° 50ʹ 12.8˝ 81° 59ʹ 22.6˝
5. 12° 07ʹ 28.8˝ 82° 07ʹ 27.7˝
6. 12° 00ʹ 04.5˝ 81° 57ʹ 57.8˝
From point 1, the maritime boundary line shall
continue due east along the parallel of latitude
(co‑ordinates 13° 46ʹ 35.7˝ N) until it reaches the
200‑nautical‑mile limit from the baselines from
which the breadth of the territorial sea of
Nicaragua is measured . From point 6 (with
co‑ordinates 12° 00 ʹ 04.5˝ N and 81° 57ʹ 57.8˝
W), located on a 12‑nautical‑mile envelope of arcs
around Alburquerque, the maritime boundary line
187
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 719, para. 251 (4).
1065.32. These decisions appeared in the operative part of the
Judgment, and as such they are final and binding and have the
force of res judicata. Accordingly, having refused to uphold
Nicaragua's claim to an extended continental shelf beyond 200
nautical miles from its baselines, the Court unanimously decided
the course of the maritime boundary between the Parties in the
operative part of the Judgment and did not extend the
continental shelf boundary beyond 200 nautical miles from
187
Nicaragua's baseline. Thus the Court:
“(4) Unanimously,
Decides that the line of the single maritime
boundary delimiting the continental shelf and the
exclusive economic zones of the Republic of
Nicaragua and the Republic of Colombia shall
follow geodetic lines connecting the points with
co‑ordinates:
Latitude north Longitude west
1. 13° 46ʹ 35.7˝ 81° 29ʹ 34.7˝
2. 13° 31ʹ 08.0˝ 81° 45ʹ 59.4˝
3. 13° 03ʹ 15.8˝ 81° 46ʹ 22.7˝
4. 12° 50ʹ 12.8˝ 81° 59ʹ 22.6˝
5. 12° 07ʹ 28.8˝ 82° 07ʹ 27.7˝
6. 12° 00ʹ 04.5˝ 81° 57ʹ 57.8˝
From point 1, the maritime boundary line shall
continue due east along the parallel of latitude
(co‑ordinates 13° 46ʹ 35.7˝ N) until it reaches the
200‑nautical‑mile limit from the baselines from
which the breadth of the territorial sea of
Nicaragua is measured . From point 6 (with
co‑ordinates 12° 00 ʹ 04.5˝ N and 81° 57ʹ 57.8˝
W), located on a 12‑nautical‑mile envelope of arcs
around Alburquerque, the maritime boundary line
187
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 719, para. 251 (4).
106unanimously deciding “the line of the single maritime boundary
delimiting the continental shelf and the exclusive economic
zones of the Republic of Nicaragu a and the Republic of
Colombia”, 190 produced a res judicata.
D. The Court's Judgment With Respect to Nicaragua's I(3)
Claim is Res Judicata
(1) T HE LAW
5.35. Res judicata bars reopening a judgment in circumstances
in which there is an identity between “the three traditional
elements… persona, petitum, causa petendi”. 191 There are
affirmative and defensive consequences to the principle of res
judicata. The affirmative consequence is that the substance of
the holding is definitive and binding. The defensive
consequence relates to the protection of a respondent from being
harassed again and again by an applicant, who has had its day in
court, at considerable cost to the respondent, but has failed to
vindicate its claim. This latter consequence, which is addressed
to the protection of the respondent, implements the maxims ne
bis in idem and nemo bis vexari pro una et eadem causa.
5.36. The applicability of res judicata to the decisions of the
Court has been confirmed by the Court both by reference to
190 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, pp. 719-720, para. 251 (4).
191 Interpretation of Judgments Nos. 7 and 8 Concerning the Case of
The Chorzów Factory (Germany v. Poland), PCIJ Series A. No. 13, Judgment
No. 11 of 16 December 1927 , at p. 20. Dissenting Opinion by M. Anzilotti at
p. 23.
108unanimously deciding “the line of the single maritime boundary
delimiting the continental shelf and the exclusive economic
zones of the Republic of Nicaragu a and the Republic of
Colombia”, 190 produced a res judicata.
D. The Court's Judgment With Respect to Nicaragua's I(3)
Claim is Res Judicata
(1) T HE L AW
5.35. Res judicata bars reopening a judgment in circumstances
in which there is an identity between “the three traditional
elements… persona, petitum, causa petendi”. 191 There are
affirmative and defensive consequences to the principle of res
judicata. The affirmative consequence is that the substance of
the holding is definitive and binding. The defensive
consequence relates to the protection of a respondent from being
harassed again and again by an applicant, who has had its day in
court, at considerable cost to the respondent, but has failed to
vindicate its claim. This latter consequence, which is addressed
to the protection of the respondent, implements the maxims ne
bis in idem and nemo bis vexari pro una et eadem causa.
5.36. The applicability of res judicata to the decisions of the
Court has been confirmed by the Court both by reference to
190 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, pp. 719-720, para. 251 (4).
191 Interpretation of Judgments Nos. 7 and 8 Concerning the Case of
The Chorzów Factory (Germany v. Poland), PCIJ Series A. No. 13, Judgment
No. 11 of 16 December 1927 , at p. 20. Dissenting Opinion by M. Anzilotti at
p. 23.
108 regards the issues that have been determined, save
by procedures, of an exceptional nature, specially
laid down for that purpose. Article 59 of the
Statute, notwithstanding its negative wording, has
at its core the positive statement that the parties are
bound by the decision of the Court in respect of the
particular case. Article 60 of the Statute provides
that the judgment is final and without appeal;
Article 61 places close limits of time and substance
on the ability of the parties to se ek the revision of
the judgment…” 194
5.38. That analysis makes clear that the legal force of a res
judicata is such that it may even overcome a deficiency in the
standing of one of the parties that subsequently comes to light:
“123. The operative part of a judgment of the Court
possesses the force of res judicata. The operative
part of the 1996 Judgment stated, in paragraph 47
(2) (a), that the Court found ‘that, on the basis of
Article IX of the Convention on the Prevention and
Punishment of the Crime of Genocide, it has
jurisdiction to decide upon the dispute ’. That
jurisdiction is thus established with the full weight
of the Court 's judicial authority. For a party to
assert today that, at the date the 1996 Judgment
was given, the Court had no power to give it,
because one of the parties can now be seen to have
been unable to come before the Court is, for the
reason given in the preceding paragraph, to call in
question the force as res judicata of the operative
clause of the Judgment. At first sight, therefore, the
Court need not examine the Respondent's objection
to jurisdiction based on its contention as to its lack
of status in 1993.”195
194
Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
195gment, I.C.J. Reports 2007, p. 43, at p. 90, para. 115. (Emphasis added)
Ibid., p. 43, at p. 94, para. 123.
110 regards the issues that have been determined, save
by procedures, of an exceptional nature, specially
laid down for that purpose. Article 59 of the
Statute, notwithstanding its negative wording, has
at its core the positive statement that the parties are
bound by the decision of the Court in respect of the
particular case. Article 60 of the Statute provides
that the judgment is final and without appeal;
Article 61 places close limits of time and substance
on the ability of the parties to se ek the revision of
the judgment…” 194
5.38. That analysis makes clear that the legal force of a res
judicata is such that it may even overcome a deficiency in the
standing of one of the parties that subsequently comes to light:
“123. The operative part of a judgment of the Court
possesses the force of res judicata. The operative
part of the 1996 Judgment stated, in paragraph 47
(2) (a), that the Court found ‘that, on the basis of
Article IX of the Convention on the Prevention and
Punishment of the Crime of Genocide, it has
jurisdiction to decide upon the dispute ’. That
jurisdiction is thus established with the full weight
of the Court 's judicial authority. For a party to
assert today that, at the date the 1996 Judgment
was given, the Court had no power to give it,
because one of the parties can now be seen to have
been unable to come before the Court is, for the
reason given in the preceding paragraph, to call in
question the force as res judicata of the operative
clause of the Judgment. At first sight, therefore, the
Court need not examine the Respondent's objection
to jurisdiction based on its contention as to its lack
of status in 1993.”195
194
Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
195gment, I.C.J. Reports 2007, p. 43, at p. 90, para. 115. (Emphasis added)
Ibid., p. 43, at p. 94, para. 123.
110 permissible; superfluous statements in the
operative clause are not. It follows that each and
every part of the operative clause must fall strictly
196
within the scope of the Court's jurisdiction.”
(2) B ECAUSE THE ISSUES RAISED IN N ICARAGUA S A PPLICATION
OF 16S EPTEMBER 2013 HAVE ALREADY BEEN DECIDED BY THE
C OURT IN ITS JUDGMENT ,THEY ARE RES JUDICATA
5.41. The “main grounds on which Nicaragua 's claim is
based”, 197 insofar as they relate to the delimitation that
Nicaragua seeks, are set out in sub-paragraphs (a) through (e) of
paragraph 11 of the Application in the instant case. To be more
precise, what Nicaragua calls “grounds” details the petitum
(object) and causa petendi (legal ground) of its present claim.
Each of those grounds, as will be shown, was previously raised
by Nicaragua in Territorial and Maritime Dispute and each was
decided in the Court's Judgment of 19 November 2012.
(a) The First Ground in Nicaragua's Application
5.42. Nicaragua's first argument (sub -paragraph (a)) is that
“Nicaragua is entitled under UNCLOS and under customary
international law to a continental shelf extending throughout its
continental margin.” 198 Nicaragua argued precisely the same
196 Request for Interpretation of the Judgment of 31 March 2004 in the
Case Concerning Avena and Other Mexican Nationals (Mexico v. United
States of America), I.C.J Reports 2009, (Declaration of Judge Abraham), at
p. 28 (in original).
197 Application, para. 11.
198 Application, para. 11(a).
112 permissible; superfluous statements in the
operative clause are not. It follows that each and
every part of the operative clause must fall strictly
196
within the scope of the Court's jurisdiction.”
(2) B ECAUSE THE ISSUES RAISED IN N ICARAGUA S A PPLICATION
OF 16 SEPTEMBER 2013 HAVE ALREADY BEEN DECIDED BY THE
C OURT IN ITS JUDGMENT ,THEY ARE RES JUDICATA
5.41. The “main grounds on which Nicaragua 's claim is
based”, 197 insofar as they relate to the delimitation that
Nicaragua seeks, are set out in sub-paragraphs (a) through (e) of
paragraph 11 of the Application in the instant case. To be more
precise, what Nicaragua calls “grounds” details the petitum
(object) and causa petendi (legal ground) of its present claim.
Each of those grounds, as will be shown, was previously raised
by Nicaragua in Territorial and Maritime Dispute and each was
decided in the Court's Judgment of 19 November 2012.
(a) The First Ground in Nicaragua's Application
5.42. Nicaragua's first argument (sub -paragraph (a)) is that
“Nicaragua is entitled under UNCLOS and under customary
international law to a continental shelf extending throughout its
continental margin.” 198 Nicaragua argued precisely the same
196 Request for Interpretation of the Judgment of 31 March 2004 in the
Case Concerning Avena and Other Mexican Nationals (Mexico v. United
States of America), I.C.J Reports 2009, (Declaration of Judge Abraham), at
p. 28 (in original).
197 Application, para. 11.
198 Application, para. 11(a).
112continental shelf entitlement extending to the outer limit of its
202
margin exists ipso facto and ab initio. Nor did the Court fail
to take account of this argument. In its Judgment, the Court
referred to the fact that both Parties “agree that coastal States
have ipso facto and ab initio rights to the continental shelf.” But
the Court went on to note that:
“However, Nicaragua and Colombia disagree about
the nature and content of the rules governing the
entitlements of coastal States to a continental shelf
beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is
measured.” 203
That was also an issue that the Court decided in its Ju dgment
with respect to Nicaragua's claim, as will be explained below.
5.45. Thus, it follows that Nicaragua's second “ground” was
fully considered and decided by the Court in rendering its
Judgment of 19 November 2012 and, because of the identity of
persona, petitum and causa petendi, is barred by res judicata.
(c) The Third Ground in Nicaragua's Application
5.46. Nicaragua's third ground (sub -paragraph (c)) is that:
“That continental margin includes an area beyond Nicaragua 's
200-nautical-mile maritime zone and in part overlaps with the
202 Territorial and Maritime Dispute (Nicaragua v. Colombia), Public
Sitting 24 April 2012, CR 2012/9 , p. 22, para. 4, p. 24, para. 18, para. 26,
para. 27 and p. 32, para. 59 (Lowe).
203 Ibid., Judgment, I.C.J. Reports 2012, p. 666, para. 115.
114continental shelf entitlement extending to the outer limit of its
202
margin exists ipso facto and ab initio. Nor did the Court fail
to take account of this argument. In its Judgment, the Court
referred to the fact that both Parties “agree that coastal States
have ipso facto and ab initio rights to the continental shelf.” But
the Court went on to note that:
“However, Nicaragua and Colombia disagree about
the nature and content of the rules governing the
entitlements of coastal States to a continental shelf
beyond 200 nautical miles from the baselines from
which the br203th of the territorial sea is
measured.”
That was also an issue that the Court decided in its Ju dgment
with respect to Nicaragua's claim, as will be explained below.
5.45. Thus, it follows that Nicaragua's second “ground” was
fully considered and decided by the Court in rendering its
Judgment of 19 November 2012 and, because of the identity of
persona, petitum and causa petendi, is barred by res judicata.
(c) The Third Ground in Nicaragua's Application
5.46. Nicaragua's third ground (sub -paragraph (c)) is that:
“That continental margin includes an area beyond Nicaragua 's
200-nautical-mile maritime zone and in part overlaps with the
202 Territorial and Maritime Dispute (Nicaragua v. Colombia), Public
Sitting 24 April 2012, CR 2012/9 , p. 22, para. 4, p. 24, para. 18, para. 26,
para. 27 and p. 32, para. 59 (Lowe).
203 Ibid., Judgment, I.C.J. Reports 2012, p. 666, para. 115.
114 13
117° 30' 116° 30' 115° 30' 114° 30' 113° 30' 112° 30' 111° 30' 110° 30' 9° 30'
30' 30'
200 M
772° 772°
FIGURE 3-10
Venezuela
30' 30'
773° 773°
NicaraCgoualomAbiraea oCfoolvoemrlbaipap'sin2g00mMar(gEiEnsZ) limit
100
30' 30'
Co(natcicnoerndtainlgShtoelafrLtiicm leit7s6)
774° 774°
30' 30'
Area of Overlapping Continental Margins
775° 0 775°
Colombia
30' 30'
776° 776°
t
i
mi
l
Z
30' E 30'
E
M0
0
2s
777° 'a 777°
i b
m
o
l
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30' 30'
778° 778°
30' 30'
779° 779°
30' Panama 30'
Area of overlappinggins
880° 880°
30' 30'
881° 881°
30' 30'
882° 882°
30' 30'
883° 883°
30' 30'
Costa Rica
884° 884°
Honduras Nicaragua
117° 30' 116° 30' 115° 30' 114° 30' 113° 30' 112° 30' 111° 30' 110° 30' 9° 30'
Figure 3-10 from the Nicaraguan Reply
Figure 4
116 117° 30' 116° 30' 115° 30' 114° 30'
30'
772°
FIGURE 3-11
30'
773°
30'
774°
30'
775°
Figure 3-11 from the Nicaraguan Reply
30'
776°
ti
m
il
Z
30' E
E
0M
0
2
777° s
ib'
mo
l
Co
30'
778°
30'
779°
30'
880°
30'
881°
30'
Providencia
882°
30'
Miskito Cay
883°
Area oLfionovefeoorlfvaeepqrpluanivgagioiannrsgins
30'
884°
Honduras Nicaragua
Co(natcicnoerndtainlgSh toelafrLtiicmleit7s6)
30' 30' 30' 30'
117° 116° 115° 114°
1165.48. Nicaragua also asserted in its Reply that “[t]he extent of
the natural prolongation of the Nicaraguan continental shelf in
the area of delimitation is a physical fact that can be verified
207
scientifically with data that are in the public domain.”
Nicaragua added that entitlements to continental shelf areas in
accordance with Article 76 of UNCLOS “depend upon the
208
geological and geomorphological evidence .” Nicaragua
appended and discussed the evidence that it maintained
established its continental m argin beyond 200 nautical miles in
its Reply and in oral argument. 209
5.49. The Court did not accept that Nicaragua had established
that it has a continental margin that extends beyond the
200-nautical-mile limit such that it overlaps with Colombia 's
200-nautical-mile entitlement to a continental shelf, measured
210
from Colombia's mainland coast. Accordingly, the Court did
not uphold Nicaragua's I(3) claim.
5.50. Thus, Nicaragua's third “ground” in the instant case was
fully considered and decided by the Cour t in its Judgment of
19 November 2012 and, because of the identity of persona,
petitum and causa petendi, is barred by res judicata.
207
Territorial and Maritime Dispute (Nicaragua v. Colombia), Reply
208Nicaragua, Vol. I, p. 12, para. 27.
209 Ibid., p. 99, para. 3.65.
Ibid., pp. 89 -90, paras. 3.37-3.40 and Annexes 16 -18 to the Reply
(Vol. II); see also Ibid., Public Sitting 24 April 2012, CR 201pp. 10-21,
paras. 1-38 (Cleverly).
210 Ibid., Judgment, I.C.J. Reports 2012, p. 669, para.129.
1185.48. Nicaragua also asserted in its Reply that “[t]he extent of
the natural prolongation of the Nicaraguan continental shelf in
the area of delimitation is a physical fact that can be verified
207
scientifically with data that are in the public domain.”
Nicaragua added that entitlements to continental shelf areas in
accordance with Article 76 of UNCLOS “depend upon the
208
geological and geomorphological evidence .” Nicaragua
appended and discussed the evidence that it maintained
established its continental m argin beyond 200 nautical miles in
its Reply and in oral argument. 209
5.49. The Court did not accept that Nicaragua had established
that it has a continental margin that extends beyond the
200-nautical-mile limit such that it overlaps with Colombia 's
200-nautical-mile entitlement to a continental shelf, measured
210
from Colombia's mainland coast. Accordingly, the Court did
not uphold Nicaragua's I(3) claim.
5.50. Thus, Nicaragua's third “ground” in the instant case was
fully considered and decided by the Cour t in its Judgment of
19 November 2012 and, because of the identity of persona,
petitum and causa petendi, is barred by res judicata.
207
Territorial and Maritime Dispute (Nicaragua v. Colombia), Reply
208Nicaragua, Vol. I, p. 12, para. 27.
209 Ibid., p. 99, para. 3.65.
Ibid., pp. 89 -90, paras. 3.37-3.40 and Annexes 16 -18 to the Reply
(Vol. II); see also Ibid., Public Sitting 24 April 2012, CR 201pp. 10-21,
paras. 1-38 (Cleverly).
210 Ibid., Judgment, I.C.J. Reports 2012, p. 669, para.129.
1185.53. In this regard, Nicaragua 's Application differs from the
situation which the Court confronted in the Haya de la Torre
case. In that case, Colombia had requested the Court to adjudge
and declare that Colombia was not bound, in the execution of
the Court's earlier Judgment in the Asylum case, to deliver Mr.
Haya de la Torre to the Peruvian authorities. The Court,
however, noted that in the Asylum case, Peru had not demanded
the surrender of the refugee. Accordingly, the Court stated that
“[t]his question was not submitted to the Court and consequently
215
was not decided by it.” As the Court further explained:
“As mentioned above, the question of the surrender
of the refugee was not decided by the Judgment of
November 20 t. This question is new; it was raised
th
by Peru in its Note to Co lombia of November 28 ,
1950, and was submitted to the Court by the
Application of Colombia of December 13 t, 1950.
There is consequently no res judicata upon the
question of surrender.” 216
5.54. By contrast, the question, or “dispute” regarding the
delimitation of the continental shelf beyond 200 nautical miles
from Nicaragua's baselines set forth in Nicaragua 's Application
was raised in the earlier case and was explicitly decided by the
Court in its Judgment of 19 November 2012. Because of the
identity of persona, petitum and causa petendi in the prior case
and the instant case, t he question of delimitation beyond 200
miles is res judicata.
215 th
Haya de la Torre, Judgment of June 13 , 1951, I.C.J. Reports 1951,
21671, at p. 79.
Ibid., p. 80.
1205.53. In this regard, Nicaragua 's Application differs from the
situation which the Court confronted in the Haya de la Torre
case. In that case, Colombia had requested the Court to adjudge
and declare that Colombia was not bound, in the execution of
the Court's earlier Judgment in the Asylum case, to deliver Mr.
Haya de la Torre to the Peruvian authorities. The Court,
however, noted that in the Asylum case, Peru had not demanded
the surrender of the refugee. Accordingly, the Court stated that
“[t]his question was not submitted to the Court and consequently
215
was not decided by it.” As the Court further explained:
“As mentioned above, the question of the surrender
of the refugee was not decided by the Judgment of
November 20 t. This question is new; it was raised
th
by Peru in its Note to Co lombia of November 28 ,
1950, and was submitted to the Court by the
Application of Colombia of December 13 t, 1950.
There is consequently no res judicata upon the
question of surrender.” 216
5.54. By contrast, the question, or “dispute” regarding the
delimitation of the continental shelf beyond 200 nautical miles
from Nicaragua's baselines set forth in Nicaragua 's Application
was raised in the earlier case and was explicitly decided by the
Court in its Judgment of 19 November 2012. Because of the
identity of persona, petitum and causa petendi in the prior case
and the instant case, t he question of delimitation beyond 200
miles is res judicata.
215 th
Haya de la Torre, Judgment of June 13 , 1951, I.C.J. Reports 1951,
21671, at p. 79.
Ibid., p. 80.
120 them beyond 200 nautical miles from Nicaragua 's
218
coast.”
5.57. Here again, the Court is presented with a legal
reincarnation, for the second request in Nicaragua 's Application
of 16 September 2013 materially reproduces and relies on the
same arguments as in its final submission I(3) in Territorial and
Maritime Dispute. In its Judgment in Territorial and Maritime
Dispute, the Court recalled that
“…in the second round of oral arguments,
Nicaragua stated that it was ‘not asking (the Court)
for a definitive ruling on the precise location of the
outer limit of Nicaragua 's continental shelf ’.
Rather it was ‘asking (the Court) to say that
Nicaragua's continental shelf entitlement is divided
from Colombia's continental shelf entitlement by a
delimitation line which has a defined cou rse’.
Nicaragua suggested that ‘ the Court could make
that delimitation by defining the boundary in words
such as “the boundary is the median line between
the outer edge of Nicaragua 's continental shelf
fixed in accordance with UNCLOS Article 76 and
the outer limit of Colombia's 200-mile zone”.’ This
formula, Nicaragua suggested, ‘ does not re quire
the Court to determine precisely where the outer
edge of Nicaragua 's shelf lies ’. The outer limits
could be then established by Nicaragua at a later
stage, on the basis of the recommendations of the
Commission.” 219
5.58. Nicaragua's final submission, to which the Court referred
in the above quotation, had been preceded by Professor's Lowe's
218
219 Application, para. 12. (Emphasis added)
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 669, para. 128. (Emphasis added)
122 them beyond 200 nautical miles from Nicaragua 's
218
coast.”
5.57. Here again, the Court is presented with a legal
reincarnation, for the second request in Nicaragua 's Application
of 16 September 2013 materially reproduces and relies on the
same arguments as in its final submission I(3) in Territorial and
Maritime Dispute. In its Judgment in Territorial and Maritime
Dispute, the Court recalled that
“…in the second round of oral arguments,
Nicaragua stated that it was ‘not asking (the Court)
for a definitive ruling on the precise location of the
outer limit of Nicaragua 's continental shelf ’.
Rather it was ‘asking (the Court) to say that
Nicaragua's continental shelf entitlement is divided
from Colombia's continental shelf entitlement by a
delimitation line which has a defined cou rse’.
Nicaragua suggested that ‘ the Court could make
that delimitation by defining the boundary in words
such as “the boundary is the median line between
the outer edge of Nicaragua 's continental shelf
fixed in accordance with UNCLOS Article 76 and
the outer limit of Colombia's 200-mile zone”.’ This
formula, Nicaragua suggested, ‘ does not re quire
the Court to determine precisely where the outer
edge of Nicaragua 's shelf lies ’. The outer limits
could be then established by Nicaragua at a later
stage, on the basis of the recommendations of the
Commission.” 219
5.58. Nicaragua's final submission, to which the Court referred
in the above quotation, had been preceded by Professor's Lowe's
218
219 Application, para. 12. (Emphasis added)
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 669, para. 128. (Emphasis added)
122Court could proceed to effect a delimitation merely by declaring
the applicable principle, by reference to which “ [t]he outer
limits could be then established by Nicaragua at a later
222
stage…”.
5.61. Nicaragua's request, Professor Lowe insisted, was
entirely altruistic: when the Court had declared the basic
principles proposed and its submission on how they should be
applied, the Parties would then be able to implement their rights
and duties in their respective sea areas:
“It is all very well to mock or express exasperation
at changes in position. But this is not a typical
adversarial case. It is a case where the two sides
have a common interest in working towards the
finding of a final, equ itable boundary so that they
can get on with the management and exploitation
of their marine resources and the implementation
of their rights and duties in their respective sea
areas. We have tried to be helpful by indicating
what we regard as the basic pr inciples, accepted
by both sides, and making our submissions as to
how those principles can be applied in order to
223
reach an equitable result.”
5.62. Because the question is whether Nicaragua's second
Request is barred by res judicata, the point of this analysis is not
to show the absurdity of Nicaragua's request but only to show
that we have been here before. Nicaragua's second request, like
the first, is barred by res judicata because, inter alia, the second
222 Territorial and Maritime Dispute (Nicaragua v. Colombi a),
223gment, I.C.J. Reports 2012, p. 669, para. 128.
Ibid., Public Sitting 1 May 2012, CR 2012/15, p. 26, para. 53
(Lowe). (Emphasis added)
124Court could proceed to effect a delimitation merely by declaring
the applicable principle, by reference to which “ [t]he outer
limits could be then established by Nicaragua at a later
222
stage…”.
5.61. Nicaragua's request, Professor Lowe insisted, was
entirely altruistic: when the Court had declared the basic
principles proposed and its submission on how they should be
applied, the Parties would then be able to implement their rights
and duties in their respective sea areas:
“It is all very well to mock or express exasperation
at changes in position. But this is not a typical
adversarial case. It is a case where the two sides
have a common interest in working towards the
finding of a final, equ itable boundary so that they
can get on with the management and exploitation
of their marine resources and the implementation
of their rights and duties in their respective sea
areas. We have tried to be helpful by indicating
what we regard as the basic pr inciples, accepted
by both sides, and making our submissions as to
how those principles can be applied in order to
223
reach an equitable result.”
5.62. Because the question is whether Nicaragua's second
Request is barred by res judicata, the point of this analysis is not
to show the absurdity of Nicaragua's request but only to show
that we have been here before. Nicaragua's second request, like
the first, is barred by res judicata because, inter alia, the second
222 Territorial and Maritime Dispute (Nicaragua v. Colombi a),
223gment, I.C.J. Reports 2012, p. 669, para. 128.
Ibid., Public Sitting 1 May 2012, CR 2012/15, p. 26, para. 53
(Lowe). (Emphasis added)
124c. Nicaragua's Second Request invokes the same rationale as
in the previous case
5.66. The argument which Nicaragua developed to support its
second claim is identical to the rationale invoked for Nicaragua's
request for a declaration of general principles and their mode of
application in Territorial and Maritime Dispute. In the latter, the
ostensible rationale was to allow the parties to “get on with the
management and exploitation of marine resources and the
implementation of their rights and duties in their respective
225
areas.” In the cu rrent case, the ostensible rationale is that
each Party “conduct itself in relation to the area of overlapping
continental shelf claims and the use of its resources in such a
manner as to avoid causing harm to the interests of the other.” 226
A State cannot evade the consequences of res judicata by
juggling a few words.
d. The issues in Nicaragua's Second Request were fully joined
by Colombia in the previous case
5.67. Nor was this a marginal issue for Colombia in the prior
proceedings. Colombia joined issue and str ongly opposed
Nicaragua's proposition. In this regard, by first clarifying that
the essence of Nicaragua 's argument “seems to be that
Nicaragua has a continental shelf entitlement beyond 200 nm
227
even if the outer edge of the margin has not been established”,
225 Territorial and Maritime Dispute (Nicaragua v. Colombia), Public
Sitting 1 May 2012, CR 2012/15, p. 26, para. 53 (Lowe).
226
227 Application, para. 11(e).
Territorial and Maritime Dispute (Nicaragua v. Colombia), Public
Sitting 4 May 2012, CR 2012/16, p. 50, para. 75 (Bundy).
126c. Nicaragua's Second Request invokes the same rationale as
in the previous case
5.66. The argument which Nicaragua developed to support its
second claim is identical to the rationale invoked for Nicaragua's
request for a declaration of general principles and their mode of
application in Territorial and Maritime Dispute. In the latter, the
ostensible rationale was to allow the parties to “get on with the
management and exploitation of marine resources and the
implementation of their rights and duties in their respective
225
areas.” In the cu rrent case, the ostensible rationale is that
each Party “conduct itself in relation to the area of overlapping
continental shelf claims and the use of its resources in such a
manner as to avoid causing harm to the interests of the other.” 226
A State cannot evade the consequences of res judicata by
juggling a few words.
d. The issues in Nicaragua's Second Request were fully joined
by Colombia in the previous case
5.67. Nor was this a marginal issue for Colombia in the prior
proceedings. Colombia joined issue and str ongly opposed
Nicaragua's proposition. In this regard, by first clarifying that
the essence of Nicaragua 's argument “seems to be that
Nicaragua has a continental shelf entitlement beyond 200 nm
227
even if the outer edge of the margin has not been established”,
225 Territorial and Maritime Dispute (Nicaragua v. Colombia), Public
Sitting 1 May 2012, CR 2012/15, p. 26, para. 53 (Lowe).
226
227 Application, para. 11(e).
Territorial and Maritime Dispute (Nicaragua v. Colombia), Public
Sitting 4 May 2012, CR 2012/16, p. 50, para. 75 (Bundy).
126 shelf in the Bay of Bengal extending more than 200
nm from the land territory of each of the two
parties.
80. That was a critical factor for the Tribunal in
deciding whether to exercise its jurisdiction to
determine the boundary beyond 200 nm. At several
junctures in its judgment, the Tribunal underscored
the fact that ‘ [T]he Parties do not differ on the
scientific aspect116f the sea -bed and subsoil of the
Bay of Bengal ’ ; that both parties ' submissions
contained data indicating their entitlement to the
continental margin beyond 200 nm 11; that the
scientific evi118ce was what the Tribunal termed
‘uncontested’ , and that the Bay of Bengal itself
presents a unique situation with respect to the
existence of an extended continental shelf, as was
acknowledged during the negotiations at the Third
United229tions Conference on the Law of the
Sea.”
e. The issues i n Nicaragua's Secon d Request were fully
discussed by the Court in i ts Judgment of 19
November 2012
5.69. Far from being a marginal issue for the Court in
Territorial and Maritime Dispute , Nicaragua's final submission
I(3) as well as the legal arguments and rationale designed to
support it were fully analyzed by the Court, as illustrated by the
Court's use of the words “even using the general formulation
proposed by it” at paragraph 129 of the 2012 Judgment,
“However, since Nicaragua, in the present
proceedings, ha s not established that it has a
continental margin that extends far enough to
229
Territorial and Maritime Dispute (Nicaragua v. Colombia), Public
Sitting 4 May 2012, CR 2012/16 , p. 51, para s. 79-80 (Bundy). (Emphasis
added)
128 shelf in the Bay of Bengal extending more than 200
nm from the land territory of each of the two
parties.
80. That was a critical factor for the Tribunal in
deciding whether to exercise its jurisdiction to
determine the boundary beyond 200 nm. At several
junctures in its judgment, the Tribunal underscored
the fact that ‘ [T]he Parties do not differ on the
scientific aspect116f the sea -bed and subsoil of the
Bay of Bengal ’ ; that both parties ' submissions
contained data indicating their entitlement to the
continental margin beyond 200 nm 117; that the
scientific evi118ce was what the Tribunal termed
‘uncontested’ , and that the Bay of Bengal itself
presents a unique situation with respect to the
existence of an extended continental shelf, as was
acknowledged during the negotiations at the Third
Unite229ations Conference on the Law of the
Sea.”
e. The issues i n Nicaragua's Secon d Request were fully
discussed by the Court in i ts Judgment of 19
November 2012
5.69. Far from being a marginal issue for the Court in
Territorial and Maritime Dispute , Nicaragua's final submission
I(3) as well as the legal arguments and rationale designed to
support it were fully analyzed by the Court, as illustrated by the
Court's use of the words “even using the general formulation
proposed by it” at paragraph 129 of the 2012 Judgment,
“However, since Nicaragua, in the present
proceedings, ha s not established that it has a
continental margin that extends far enough to
229
Territorial and Maritime Dispute (Nicaragua v. Colombia), Public
Sitting 4 May 2012, CR 2012/16, p. 51, para s. 79-80 (Bundy). (Emphasis
added)
1285.72. The question of rights and obligations , between
Colombia and Nicaragua, in the continental shelf beyond 20 0
nautical miles was finally characterized and decided in the 2012
Judgment as one necessarily requiring the implementation of the
procedure of Article 76. The prior implementation of the
Article 76 procedure was deemed necessary for the purpose of
establishing the overlapping entitlement that could possibly
presuppose a delimitation dispute.
5.73. In rejecting Nicaragua 's request, the Court affirmed the
well-established rule according to which “the task o f
delimitation consists in resol ving the overlapping claims by
drawing a line of separation of the maritime areas concerned.” 232
Subsequently the Court underlined the applicability of this rule
at paragraphs 140 and 141 of the 2012 Judgment.
5.74. Accordingly, the Judgment of 19 November 2012
constitutes res judica ta with respect to Nicaragua 's second
request in its Application of 16 September 2013.
g. Nicaragua's presupposition of overlapping entitlements is
designed to circumvent the effect of the res judicata of the
Judgment of 19 November 2012
5.75. Before concluding the discussion of the bar by res
judicata of Nicaragua's second Request, Colombia would draw
attention to a stratagem practi sed by Nicaragua in its
Application. By presupposing the existence of overlapping
232
Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment, I.C.J. Reports 2009, para.77.
1305.72. The question of rights and obligations , between
Colombia and Nicaragua, in the continental shelf beyond 20 0
nautical miles was finally characterized and decided in the 2012
Judgment as one necessarily requiring the implementation of the
procedure of Article 76. The prior implementation of the
Article 76 procedure was deemed necessary for the purpose of
establishing the overlapping entitlement that could possibly
presuppose a delimitation dispute.
5.73. In rejecting Nicaragua 's request, the Court affirmed the
well-established rule according to which “the task o f
delimitation consists in resol ving the overlapping claims by
drawing a line of separation of the maritime areas concerned.” 232
Subsequently the Court underlined the applicability of this rule
at paragraphs 140 and 141 of the 2012 Judgment.
5.74. Accordingly, the Judgment of 19 November 2012
constitutes res judica ta with respect to Nicaragua 's second
request in its Application of 16 September 2013.
g. Nicaragua's presupposition of overlapping entitlements is
designed to circumvent the effect of the res judicata of the
Judgment of 19 November 2012
5.75. Before concluding the discussion of the bar by res
judicata of Nicaragua's second Request, Colombia would draw
attention to a stratagem practi sed by Nicaragua in its
Application. By presupposing the existence of overlapping
232
Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment, I.C.J. Reports 2009, para.77.
130continental shelf. Of course, Nicaragua 's written submissions
and oral arguments in the earlier proceeding clearly demonstrate
that Nicaragua then believed that it had established both on legal
grounds and by submission of data its entitlement to an extended
233
continental shelf. In its new Application, Nicaragua claims
that it has established (we assume again) such an entitlement
based on a final submission it made to the CLCS in June 2013 –
yet still witho ut fulfilling the procedure and obligations under
Article 76 of UNCLOS, which include, significantly, the review
and recommendation of the CLCS. But, that aside, according to
Nicaragua's assertion, the Court could now be in a position to do
what it could not do in the earlier decision. Nicaragua purports
to justify its position on the basis of alleged new geological and
geomorphological facts which it itself failed to provide the
Court in the earlier proceeding.
5.78. The Court has already made clear that an e ffort such as
this, designed to circumvent the doctrine of res judicata, will not
succeed. In the Genocide Case (Bosnia and Herzegovina v.
Serbia and Montenegro) , the Court discussed the rigorous
procedure under Article 61 of the Statute, especially with r egard
to new facts in the context of its relationship with res judicata:
“This [the principle of res judicata ] does not
however mean that, should a party to a case believe
that elements have come to light subsequent to the
decision of the Court which tend to show that the
Court's conclusions may have been based on
incorrect or insufficient facts, the decision must
233
Application, para. 4.
132continental shelf. Of course, Nicaragua 's written submissions
and oral arguments in the earlier proceeding clearly demonstrate
that Nicaragua then believed that it had established both on legal
grounds and by submission of data its entitlement to an extended
233
continental shelf. In its new Application, Nicaragua claims
that it has established (we assume again) such an entitlement
based on a final submission it made to the CLCS in June 2013 –
yet still witho ut fulfilling the procedure and obligations under
Article 76 of UNCLOS, which include, significantly, the review
and recommendation of the CLCS. But, that aside, according to
Nicaragua's assertion, the Court could now be in a position to do
what it could not do in the earlier decision. Nicaragua purports
to justify its position on the basis of alleged new geological and
geomorphological facts which it itself failed to provide the
Court in the earlier proceeding.
5.78. The Court has already made clear that an e ffort such as
this, designed to circumvent the doctrine of res judicata, will not
succeed. In the Genocide Case (Bosnia and Herzegovina v.
Serbia and Montenegro) , the Court discussed the rigorous
procedure under Article 61 of the Statute, especially with r egard
to new facts in the context of its relationship with res judicata:
“This [the principle of res judicata ] does not
however mean that, should a party to a case believe
that elements have come to light subsequent to the
decision of the Court which tend to show that the
Court's conclusions may have been based on
incorrect or insufficient facts, the decision must
233
Application, para. 4.
132of Bogotá under which Nicaragua has p urported to institute this
case.237
E. Conclusion: Nicaragua's Claim in this Case is Barred
by res judicata
5.80. In its Application, Nicaragua admits that it had already
“sought a declaration from the Court describing the course of
the boundary of its continental shelf throughout the area of the
overlap between its continental shelf entitlement and that of
238
Colombia.” This is the same claim that Nicaragua is making
in the present Application. During the 11 years of the
proceedings in the earlier case, Nicaragua had its day in Court,
with ample opportunity to make its case and provide evidence
and facts to substantiate its claim, but it was unsuccessful.
Nicaragua admits that, with respect to its 2001 Application, it
had submitted “Prel iminary Information to the Commission on
the Limits of the Con tinental Shelf on 7 April 2010” , 239 while
during the proceedings it took the view that it had established
the legal and factual basis of its claim but that the “Court
considered that Nicaragua had not then established that it has a
continental margin that extends beyond 200 nautical miles from
240
[its] baselines.” This means that Nicaragua did not meet its
burden of proof and the Court did not uphold Nicaragua's claim.
237 Nicaragua's effort to circumvent the requirements of Article 61 of
the Statute is discussed in Chapter 6 infra.
238 Application, para. 4.
239 Ibid.
240 Ibid.
134of Bogotá under which Nicaragua has p urported to institute this
case.237
E. Conclusion: Nicaragua's Claim in this Case is Barred
by res judicata
5.80. In its Application, Nicaragua admits that it had already
“sought a declaration from the Court describing the course of
the boundary of its continental shelf throughout the area of the
overlap between its continental shelf entitlement and that of
238
Colombia.” This is the same claim that Nicaragua is making
in the present Application. During the 11 years of the
proceedings in the earlier case, Nicaragua had its day in Court,
with ample opportunity to make its case and provide evidence
and facts to substantiate its claim, but it was unsuccessful.
Nicaragua admits that, with respect to its 2001 Application, it
had submitted “Prel iminary Information to the Commission on
the Limits of the Con tinental Shelf on 7 April 2010” , 239 while
during the proceedings it took the view that it had established
the legal and factual basis of its claim but that the “Court
considered that Nicaragua had not then established that it has a
continental margin that extends beyond 200 nautical miles from
240
[its] baselines.” This means that Nicaragua did not meet its
burden of proof and the Court did not uphold Nicaragua's claim.
237 Nicaragua's effort to circumvent the requirements of Article 61 of
the Statute is discussed in Chapter 6 infra.
238 Application, para. 4.
239 Ibid.
240 Ibid.
134 Chapter 6
FOURTH PRELIMINARY OBJECTION: THE
COURT LACKS JURISDICTION OVER A CLAIM
THAT IS AN ATTEMPT TO APPEAL AND REVISE
THE COURT 'S JUDGMENT OF
A. Introduction
6.1. As Chapter 5 has shown, in Territorial and Maritime
Dispute (Nicaragua v. Colombia), Nicaragua had asked the
Court to delimit the continental shelf between the Parties
situated in areas lying beyond 200 nautical miles from
Nicaragua's baselines.The Court did not upho ld Nicaragua's
submission. It did, however, effect a full and final delimitation
of the maritime boundary between the Parties, including the
continental shelf and the exclusive economic zone.
decision of the Court is “final and without appeal” under
Article 60 of the Court's Statute.
6.2. The Statute provides for only two procedures by which a
judgment of the Court can be revisited. The first, under Article
60, involves a request for interpr
“dispute as to the meaning or scope of the judgment”.
second, under Article 61, involves a request to revise a judgment
based on the discovery of a new fact.
6.3. In its present application, Nicaragua is inviting the Court
to revisit a judgment effecting a full and final delimitation of the
136 Chapter 6
FOURTH PRELIMINARY OBJECTION: THE
COURT LACKS JURISDICTION OVER A CLAIM
THAT IS AN ATTEMPT TO APPEAL AND REVISE
THE COURT 'S JUDGMENT OF
A. Introduction
6.1. As Chapter 5 has shown, in Territorial and Maritime
Dispute (Nicaragua v. Colombia), Nicaragua had asked the
Court to delimit the continental shelf between the Parties
situated in areas lying beyond 200 nautical miles from
Nicaragua's baselines.The Court did not upho ld Nicaragua's
submission. It did, however, effect a full and final delimitation
of the maritime boundary between the Parties, including the
continental shelf and the exclusive economic zone.
decision of the Court is “final and without appeal” under
Article 60 of the Court's Statute.
6.2. The Statute provides for only two procedures by which a
judgment of the Court can be revisited. The first, under Article
60, involves a request for interpr
“dispute as to the meaning or scope of the judgment”.
second, under Article 61, involves a request to revise a judgment
based on the discovery of a new fact.
6.3. In its present application, Nicaragua is inviting the Court
to revisit a judgment effecting a full and final delimitation of the
136maritime boundary between the Parties, including the
continental shelf and exclusive economic zone, and to determine
the delimitation of the continental shelf which Nicaragua had
requested from the Court in the earlier case and which the Court
had not upheld. The Statute affords no jurisdictional basis for
what is in effect an appeal from its earlier Judgment in
contravention to Article 60 of the Court's Statute (Section B).
6.4. Nicaragua's Application also attempts to revise the
Court's Judgment without complying with the conditions for
revision set forth in Article 61 of the Statute. While the Court in
its earlier Judgment ruled t hat Nicaragua had not established a
continental shelf entitlement beyond 200 nautical miles that
could overlap with Colombia 's entitlement , Nicaragua's
Application in this case asserts that now Nicaragua is able to
establish that entitlement on the basis o f new information that it
submitted to the CLCS in June 2013, after the 2012 Judgment
had been rendered. On this basis, Nicaragua argues that the
Court should proceed to delimit the areas of overlap that it did
not delimit in its 2012 Judgment:
“Nicaragua submitted its final information to the
Commission on the Limits of the Continental Shelf
on 24 June 2013. Nicaragua's submission to the
Commission demonstrates that Nicaragua 's
continental margin extends more than 200 nautical
miles from the baselines from which the breadth of
the territorial sea of Nicaragua is measured, and
also (i) traverses an area that lies more than 200
nautical miles from Colombia and also (ii) partly
138maritime boundary between the Parties, including the
continental shelf and exclusive economic zone, and to determine
the delimitation of the continental shelf which Nicaragua had
requested from the Court in the earlier case and which the Court
had not upheld. The Statute affords no jurisdictional basis for
what is in effect an appeal from its earlier Judgment in
contravention to Article 60 of the Court's Statute (Section B).
6.4. Nicaragua's Application also attempts to revise the
Court's Judgment without complying with the conditions for
revision set forth in Article 61 of the Statute. While the Court in
its earlier Judgment ruled t hat Nicaragua had not established a
continental shelf entitlement beyond 200 nautical miles that
could overlap with Colombia 's entitlement , Nicaragua's
Application in this case asserts that now Nicaragua is able to
establish that entitlement on the basis o f new information that it
submitted to the CLCS in June 2013, after the 2012 Judgment
had been rendered. On this basis, Nicaragua argues that the
Court should proceed to delimit the areas of overlap that it did
not delimit in its 2012 Judgment:
“Nicaragua submitted its final information to the
Commission on the Limits of the Continental Shelf
on 24 June 2013. Nicaragua's submission to the
Commission demonstrates that Nicaragua 's
continental margin extends more than 200 nautical
miles from the baselines from which the breadth of
the territorial sea of Nicaragua is measured, and
also (i) traverses an area that lies more than 200
nautical miles from Colombia and also (ii) partly
138Permanent Cou rt of International Justice virtually without
debate, and has remained unchang ed in the Statute of this
Court. 242 As noted in Chapter 5, 243the fundamental character of
the principle appears from the terms of the Court 's Statute and
the United Nations Charter. To recall the words of the Court in
the Genocide case:
“The fundamental character of that principle [ res
judicata] appears from the terms of the Statute of
the Court and the Charter of the United Nations.
The underlying character and purpose of the
principle are reflected in the judicial practice of the
Court. That principle signifies that the decisions of
the Court are not only binding on the parties, but
are final, in the sense that they cannot be reopened
by the parties as regards the issues that have been
determined, save by procedures, of an exceptional
244
nature, specially laid down for that purpose.”
6.8. The Court went on to elaborate on the principle of res
judicata and the finality of its judgments. In a passage that
exposes the fundamental juri sdictional deficiencies in
Nicaragua's new Application , the Court referred to two
purposes, one general, the other specific, that underlie the
principle:
“First, the stability of legal relations requires that
litigation come to an end. The Court's function,
242 As stated in fn 192 in Chapter 5 supra, in the negotiations for the
establishment of the Permanent Court, the Minutes record thres judicata
was expressly mentioned as a general principle of law to which Article 38 of
the Statute referred. Minutes of the Advisory Committee of Jurists, at p. 335.
243 Chapter 5, Section D (1) supra.
244 Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, I.C.J. Reports 2007, p. 43, at p. 90, para. 115.
140Permanent Cou rt of International Justice virtually without
debate, and has remained unchang ed in the Statute of this
Court. 242 As noted in Chapter 5, 243 the fundamental character of
the principle appears from the terms of the Court 's Statute and
the United Nations Charter. To recall the words of the Court in
the Genocide case:
“The fundamental character of that principle [ res
judicata] appears from the terms of the Statute of
the Court and the Charter of the United Nations.
The underlying character and purpose of the
principle are reflected in the judicial practice of the
Court. That principle signifies that the decisions of
the Court are not only binding on the parties, but
are final, in the sense that they cannot be reopened
by the parties as regards the issues that have been
determined, save by procedures, of an exceptional
244
nature, specially laid down for that purpose.”
6.8. The Court went on to elaborate on the principle of res
judicata and the finality of its judgments. In a passage that
exposes the fundamental juri sdictional deficiencies in
Nicaragua's new Application , the Court referred to two
purposes, one general, the other specific, that underlie the
principle:
“First, the stability of legal relations requires that
litigation come to an end. The Court's function,
242 As stated in fn 192 in Chapter 5 supra, in the negotiations for the
establishment of the Permanent Court, the Minutes record thres judicata
was expressly mentioned as a general principle of law to which Article 38 of
the Statute referred. Minutes of the Advisory Committee of Jurists, at p. 335.
243 Chapter 5, Section D (1) supra.
244 Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, I.C.J. Reports 2007, p. 43, at p. 90, para. 115.
140 answers to questions the Court did not decide in
246
the original judgment.”
6.10. Notwithstanding this, the issue that Nicaragua asks the
Court to decide in its Application of 16 September 2013 is the
same as the one decided in the 2012 Judgment: the issues raised
in both cases have already been determined by the Court in a
judgment that is final and without appeal.
6.11. Nicaragua's Application states that the dispute concerns
the delimitation of the boundaries between, on the one hand, the
continental shelf of N icaragua beyond the 200 -nautical-mile
limit from its baselines and, on the other hand, th e continental
shelf of Colombia. 247 Nicaragua therefore requests the Court to
adjudge and declare the precise course of the maritime boundary
between the Parties in the areas of continental shelf beyond the
boundaries determined by the Court in its Judgment of
19 November 2012.
6.12. But in the prior case, Nicaragua also indicated that the
dispute concerned the delimitation of the continental shelf with
Colombia beyond 200 nautical miles from its baselines, and
Nicaragua formally requested the Court to delimit the maritime
boundary in this area by means of its Submission I(3). The
Court considered the Parties' pleadings on this i ssue, and ruled
246
I.C.J. Request for Interpretation of the Judgment of 15 June 1962 in
the Case concerning theTemple of Preah Vihear (Cambodia v. Thailand)
247mbodia v. Thailand), Judgment of 11 Nov. 2013, p. 25, para. 66.
Application, p. 1, para. 2.
142 answers to questions the Court did not decide in
246
the original judgment.”
6.10. Notwithstanding this, the issue that Nicaragua asks the
Court to decide in its Application of 16 September 2013 is the
same as the one decided in the 2012 Judgment: the issues raised
in both cases have already been determined by the Court in a
judgment that is final and without appeal.
6.11. Nicaragua's Application states that the dispute concerns
the delimitation of the boundaries between, on the one hand, the
continental shelf of N icaragua beyond the 200 -nautical-mile
limit from its baselines and, on the other hand, th e continental
shelf of Colombia. 247 Nicaragua therefore requests the Court to
adjudge and declare the precise course of the maritime boundary
between the Parties in the areas of continental shelf beyond the
boundaries determined by the Court in its Judgment of
19 November 2012.
6.12. But in the prior case, Nicaragua also indicated that the
dispute concerned the delimitation of the continental shelf with
Colombia beyond 200 nautical miles from its baselines, and
Nicaragua formally requested the Court to delimit the maritime
boundary in this area by means of its Submission I(3). The
Court considered the Parties' pleadings on this i ssue, and ruled
246
I.C.J. Request for Interpretation of the Judgment of 15 June 1962 in
the Case concerning theTemple of Preah Vihear (Cambodia v. Thailand)
247mbodia v. Thailand), Judgment of 11 Nov. 2013, p. 25, para. 66.
Application, p. 1, para. 2.
142this Judgment is final and without appeal …” 248 The Court lacks
jurisdiction over a claim that is tantamount to an appeal.
C. Nicaragua Also Seeks to Revise the Court's Judgment
without Meeting the Requisites of the Statute
6.14. As noted above, the second procedure whereby a
judgment of the Court can be revisited involves a request for
revision of a judgment under Article 61 of the Statute based on
the discovery of a new fact. Nicaragua's new Application is not
only an appeal from the Court 's 2012 Judgment, but is also a
disguised attempt to revise that Judgment based on the alleged
discovery of new facts; but Nicaragua seeks to accomplish this
without complying with the strict conditi ons laid out in
Article 61 for the admissibility of a request for revision.
(1) THE STATUTORY REQUIREMENTS FOR REVISING A JUDGMENT
BASED ON THE DISCOVERY OF A NEW FACT ARE CUMULATIVE
6.15. If a party to a case believes that new elements have come
to light subsequ ent to the decision of the Court which tend s to
show that the Court 's conclusions may have been based on
incorrect or insufficient facts, its only recourse is to file a
request for revision under Article 61 of the Statute. As the
Court put it in its Judgment in the Genocide case:
“The Statute provides for only one procedure in
such an event: the procedure under Article 61,
248
Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Application of Nicaragua, 26 Nov.
2013, p. 14, para. 19.
144this Judgment is final and without appeal …” 248 The Court lacks
jurisdiction over a claim that is tantamount to an appeal.
C. Nicaragua Also Seeks to Revise the Court's Judgment
without Meeting the Requisites of the Statute
6.14. As noted above, the second procedure whereby a
judgment of the Court can be revisited involves a request for
revision of a judgment under Article 61 of the Statute based on
the discovery of a new fact. Nicaragua's new Application is not
only an appeal from the Court 's 2012 Judgment, but is also a
disguised attempt to revise that Judgment based on the alleged
discovery of new facts; but Nicaragua seeks to accomplish this
without complying with the strict conditi ons laid out in
Article 61 for the admissibility of a request for revision.
(1) THE STATUTORY REQUIREMENTS FOR REVISING A JUDGMENT
BASED ON THE DISCOVERY OF A NEW FACT ARE CUMULATIVE
6.15. If a party to a case believes that new elements have come
to light subsequ ent to the decision of the Court which tend s to
show that the Court 's conclusions may have been based on
incorrect or insufficient facts, its only recourse is to file a
request for revision under Article 61 of the Statute. As the
Court put it in its Judgment in the Genocide case:
“The Statute provides for only one procedure in
such an event: the procedure under Article 61,
248
Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Application of Nicaragua, 26 Nov.
2013, p. 14, para. 19.
144 (e) the application for revision must be ‘made at
latest within six months of the discovery of the
new fact’ and before ten years have elapsed
from the date of the judgment.” 250
6.18. An application for revision is only admissible if all of
these conditions are satisfied. In the words of the Court: “If any
251
one of them is not met, the application must be dismissed .”
Given that revision is an exceptional procedure, the Court has
also emphasized that: “In the interests of the stability of legal
252
relations, those restrictions must be rigorously applied.”
(2) N ICARAGUA 'S A PPLICATION IS BASED ON CLAIMED “NEW
FACTS ”
6.19. As noted above, Nicaragua 's Application purports to
adduce a new fact, or facts, which purportedly justify the Court
revising its 2012 Judgment in which it had effected a full and
final delimitation of the maritime boundary between the Parties,
including the continental shelf and the exclusive economic zone.
But Nicaragua's Application does not acknowledge that it is
250 Application for Revision of the Judgment of 11 September 1992 in
the Case concerning the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras),
Judgment, I.C.J. Reports 2003, pp. 398-399, para. 19.
251 Ibid, p. 399, para. 20; citing Application for Revision of the
Judgment of 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia, Prelim inary Objections (Yugoslavia
252Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 12, para. 17.
Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, I.C.J. Reports 2007, p. 92, para. 120.
146 (e) the application for revision must be ‘made at
latest within six months of the discovery of the
new fact’ and before ten years have elapsed
from the date of the judgment.” 250
6.18. An application for revision is only admissible if all of
these conditions are satisfied. In the words of the Court: “If any
251
one of them is not met, the application must be dismissed .”
Given that revision is an exceptional procedure, the Court has
also emphasized that: “In the interests of the stability of legal
252
relations, those restrictions must be rigorously applied.”
(2) N ICARAGUA 'S APPLICATION IS BASED ON CLAIMED “NEW
FACTS ”
6.19. As noted above, Nicaragua 's Application purports to
adduce a new fact, or facts, which purportedly justify the Court
revising its 2012 Judgment in which it had effected a full and
final delimitation of the maritime boundary between the Parties,
including the continental shelf and the exclusive economic zone.
But Nicaragua's Application does not acknowledge that it is
250 Application for Revision of the Judgment of 11 September 1992 in
the Case concerning the Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras),
Judgment, I.C.J. Reports 2003, pp. 398-399, para. 19.
251 Ibid, p. 399, para. 20; citing Application for Revision of the
Judgment of 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia, Prelim inary Objections (Yugoslavia
252Bosnia and Herzegovina), Judgment, I.C.J. Reports 2003, p. 12, para. 17.
Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment, I.C.J. Reports 2007, p. 92, para. 120.
146 June 2013 after the Court had rendered its Judgment. In
contrast to what Nicaragua filed in its earlier case,
Nicaragua considers that the “final information” it
provided in its CLCS Submission in June 2013
“demonstrates that Nicaragua 's continental margin
extends more than 200 nautical miles” from its
baselines. 256In footnote 4 of its Application, Nicaragua
refers to the Executive Summary of its CLCS
Submission in support of i ts contention. The Executive
Summary refers to the Court's Judgment of 19 November
2012 and acknowledges that “[t]he Court did not
determine the boundary of the continental shelf of
Nicaragua and Colombia beyond this 200 nautical miles
limit, as requested by Nicaragua and observed that
Nicaragua had only submitted preliminary information to
257
the Commission.” It then sta tes that: “Following the
judgment of the International Court of Justice and after
undertaking a thorough assessment and review of the
scientific data of the areas concerned, Nicaragua ha d
completed its full submission .” 258 In Table 1 of the
256
257 Application, p. 2, para. 5.
Republic of Nicaragua, Submission to the Commission on the Limits
of the Continental Shelf pursuant Article 76, Paragraph 8 of the United
Nations Convention on the Law of the Sea, 1982 . Part I:
Executive Summary,24 June 2013, p. 2, para. 5. Available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nic66_13/Executi…
%20Summary.pdf (Last visited: 4 Aug. 2014). (Emphasis added)
258 Republic of Nicaragua, Submission to the Commission on the Limits
of the Continental Shelf pursuant Article 76, Paragraph 8 of the United
Nations Convention on the Law of the Sea, 1982 . Part I:
Executive Summary,24 June 2013, p. 2, para. 6. Available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nic66_13/Executi…
%20Summary.pdf (Last visited: 4 Aug. 2014).
148 June 2013 after the Court had rendered its Judgment. In
contrast to what Nicaragua filed in its earlier case,
Nicaragua considers that the “final information” it
provided in its CLCS Submission in June 2013
“demonstrates that Nicaragua 's continental margin
extends more than 200 nautical miles” from its
baselines.256 In footnote 4 of its Application, Nicaragua
refers to the Executive Summary of its CLCS
Submission in support of i ts contention. The Executive
Summary refers to the Court's Judgment of 19 November
2012 and acknowledges that “[t]he Court did not
determine the boundary of the continental shelf of
Nicaragua and Colombia beyond this 200 nautical miles
limit, as requested by Nicaragua and observed that
Nicaragua had only submitted preliminary information to
257
the Commission.” It then sta tes that: “Following the
judgment of the International Court of Justice and after
undertaking a thorough assessment and review of the
scientific data of the areas concerned, Nicaragua ha d
completed its full submission .” 258 In Table 1 of the
256
257 Application, p. 2, para. 5.
Republic of Nicaragua, Submission to the Commission on the Limits
of the Continental Shelf pursuant Article 76, Paragraph 8 of the United
Nations Convention on the Law of the Sea, 1982 . Part I:
Executive Summary,24 June 2013, p. 2, para. 5. Available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nic66_13/Executi…
%20Summary.pdf (Last visited: 4 Aug. 2014). (Emphasis added)
258 Republic of Nicaragua, Submission to the Commission on the Limits
of the Continental Shelf pursuant Article 76, Paragraph 8 of the United
Nations Convention on the Law of the Sea, 1982 . Part I:
Executive Summary,24 June 2013, p. 2, para. 6. Available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nic66_13/Executi…
%20Summary.pdf (Last visited: 4 Aug. 2014).
148 1 7 15°N 14°N 13°N 12°N 11°N 10°N 9°N
8
11
74°W 74°W
12
75°W 13 75°W
21 Sea COLOMBIA
Caribbean
76°W 22 76°W
47
48
77°W 65 77°W
68
66
69 89
78°W 78°W
91
120
18 September 2009
79°W (Nicaragua v. Colombia) 79°W
121
froReply of the Government of Nicaragua PANAMA
Nicaragua’s Extended Continental Shelf Claim
24 June 2013
80°W 80°W
164
Limits of the Continental Shelf
Claim from The Republic of Nicaragua’s
Nicaragua’s Extended Continental Shelf
81°W
300
Providencia I. 150
San Andrés I.
82°W 100 200
Miskitos Cays Kilometers
Datum: WGS-84al Miles
Merca50r Projectionat 14°N)
83°W Little Corn I. SHELF CLAIMS100
Great Corn I. Prepared by: International Mapping
COSS0TA
0RICAIIIIC
84°W
NICARAGUA’S EXTENDED CONTINENTAL
HO15°NAS 14°N NIC13°NUA 12°N 11°N
Figure 6
150 (3) THE ONLY FORM OF ACTION BY WHICH
LODGE SUCH AN A PPLICATION IS THAT OF
6.21. The only procedure by which Nicaragua may re-open the
Court's previous judgment on the basis of the discovery of
claimed new facts is by means of a request for
accordance with the requirements of Article 61. Nicaragua has
not availed itself of this procedure.
6.22. Nor is the reason why it has failed to do so reasonable: if
it had requested a revision, Nicaragua could not have satisfied
the conditions laid down in Article 61 for the admissibility of
such a request. In order for a request for revision to be
admissible, Nicaragua would have had to show that such facts
were of a decisive nature (which is dubious given that the two
“outer limits” are not far apart – see Figure 6); that they were
unknown to the Court and Nicaragua when the Judgment was
given; and that the application for revision was being made
within six months of their discovery.
been able to satisfy these conditions, which is more than
doubtful, Nicaragua would also have had to sh
ignorance of the claimed new facts during the original
proceedings was not due to its own negligence.
Nicaragua would not have been able to make that showing. Yet,
that is a further requisite for a party seeking to revise a
judgment.
150 (4) N ICARAGUA HAS FAILED TO SATISFY THE REQUIREMENTS OF
A RTICLE 61
6.23. It may be recalled that Nicaragua became a party to the
1982 United Nations Convention on the Law of the Sea in May
2000. As of that date, therefore, Nicaragua knew, or should
have known, that if it wished to claim a continental shelf
extending more than 200 nautical miles from its baselines, it
would have to satisfy the criteria and obligations set forth in
Article 76 of the Convention.
6.24. On 6 December 2001, Nicaragua then initiated
proceedings against Colombia by its Application filed with the
Registry. During the proceedings that ensued, Nicaragua had
ample opportunity to substantiate its claim to a continental shelf
extending more than 200 nautical miles from its baselines. For
the first eight years of the proceedings, Nicaragua took the
position that geological and geomorphological factors were
completely irrelevant to the delimitation it was requesti ng (a
mainland-to-mainland median line), even though that
delimitation lay more than 200 nautical miles from its coast. As
Nicaragua's Memorial stated:
“The position of the Government of Nicaragua is
that geological and geomorphological factors have
no relevance for the delimitation of a single 259
maritime boundary within the delimitation area.”
259
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Memorial of Nicaragua, Vol. I, p. 215, para. 3.58.
152 (4) N ICARAGUA HAS FAILED TO SATISFY THE REQUIREMENTS OF
A RTICLE 61
6.23. It may be recalled that Nicaragua became a party to the
1982 United Nations Convention on the Law of the Sea in May
2000. As of that date, therefore, Nicaragua knew, or should
have known, that if it wished to claim a continental shelf
extending more than 200 nautical miles from its baselines, it
would have to satisfy the criteria and obligations set forth in
Article 76 of the Convention.
6.24. On 6 December 2001, Nicaragua then initiated
proceedings against Colombia by its Application filed with the
Registry. During the proceedings that ensued, Nicaragua had
ample opportunity to substantiate its claim to a continental shelf
extending more than 200 nautical miles from its baselines. For
the first eight years of the proceedings, Nicaragua took the
position that geological and geomorphological factors were
completely irrelevant to the delimitation it was requesti ng (a
mainland-to-mainland median line), even though that
delimitation lay more than 200 nautical miles from its coast. As
Nicaragua's Memorial stated:
“The position of the Government of Nicaragua is
that geological and geomorphological factors have
no relevance for the delimitation of a single 259
maritime boundary within the delimitation area.”
259
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Memorial of Nicaragua, Vol. I, p. 215, para. 3.58.
1526.27. In this connection, it is pertinent to recall what the Court
said about the ability of a party, during the original proceedings,
to ascertain “facts upon which an application for revision is
based” in order to determine whether such party has been
negligent. The case in question concerned Tunisia 's request to
revise the Court 's 1982 Judgment in the Tunisia v. Libya
continental shelf case based on the discovery by Tunisia of the
co-ordinates of certain offshore petroleum concessions after the
Judgment was given. The Court observed:
“The Court must however consider whether the
circumstances were such that means were available
to Tunisia to ascertain the details of the co -
ordinates of the concession from other sources: and
indeed whether it was in Tunisia's own interests to
do so. If such be the case, it does not appear to the
Court that it is open to Tunisia to rely on those co-
ordinates as a fact that was ‘unknown’ to it for the
purposes 261Article 61, paragraph 1, of the
Statute.”
6.28. In Tunisia v. Libya, the Court found that the new facts
upon which Tunisia's request rested could have been obtained by
Tunisia during the prior proceedings and that it was in Tunisia 's
interests to obtain them. Accordingly, the Court rejected the
request for revision because one of the “essential conditions” of
admissibility for a request for revision – namely, “ignorance of a
new fact not due to negligence” – was lacking. 262
261
Application for Revision and Interpretation of the Judgment of 24
February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan
Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J.
262orts 1985, pp. 204-205, para. 23.
Ibid, pp. 206-207, para. 28.
1546.27. In this connection, it is pertinent to recall what the Court
said about the ability of a party, during the original proceedings,
to ascertain “facts upon which an application for revision is
based” in order to determine whether such party has been
negligent. The case in question concerned Tunisia 's request to
revise the Court 's 1982 Judgment in the Tunisia v. Libya
continental shelf case based on the discovery by Tunisia of the
co-ordinates of certain offshore petroleum concessions after the
Judgment was given. The Court observed:
“The Court must however consider whether the
circumstances were such that means were available
to Tunisia to ascertain the details of the co -
ordinates of the concession from other sources: and
indeed whether it was in Tunisia's own interests to
do so. If such be the case, it does not appear to the
Court that it is open to Tunisia to rely on those co-
ordinates as a fact that was ‘unknown’ to it for the
purposes 261Article 61, paragraph 1, of the
Statute.”
6.28. In Tunisia v. Libya, the Court found that the new facts
upon which Tunisia's request rested could have been obtained by
Tunisia during the prior proceedings and that it was in Tunisia 's
interests to obtain them. Accordingly, the Court rejected the
request for revision because one of the “essential conditions” of
admissibility for a request for revision – namely, “ignorance of a
new fact not due to negligence” – was lacking. 262
261
Application for Revision and Interpretation of the Judgment of 24
February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan
Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya), Judgment, I.C.J.
262orts 1985, pp. 204-205, para. 23.
Ibid, pp. 206-207, para. 28.
154Information and submitted to the Court in the prior case. In this
case, the Court would still lack jurisdic tion to consider
Nicaragua's claims, for Nicaragua would simply be trying to re -
argue evidence that was fully canvassed by the Parties in the
original case and ruled on by the Court in its Judgment . 263That
would be tantamount to an appeal, which as explained in
Section B of this Chapter, is prohibited by Article 60 of the
Statute.
6.32. Thus, Nicaragua, by its present Application is in reality
inviting the Court either to revise its Judgment based on claimed
new facts that were not introduced in the earli er case or to re-
open its Judgment based on old facts that the Court has already
considered. Regardless of whether Nicaragua 's present
Application is based on claimed new facts or a reassessment of
old facts, it represents an attempt to evade the requirem ents of
the Statute.
D. Conclusions
6.33. There is no jurisdictional basis for the Court to entertain
what is in reality an attempt by Nicaragua to appeal the Court 's
Judgment of 19 November 2012, or to revise that Judgment
under the guise of a fresh case. Trying to submit a new case in
order to re-litigate issues that were argued in the earlier case and
decided with the force of res judicata in the 2012 Judgment
violates Article 60 of the Statute. By the same token, trying to
263
See Chapter 5, Section B, supra.
156Information and submitted to the Court in the prior case. In this
case, the Court would still lack jurisdic tion to consider
Nicaragua's claims, for Nicaragua would simply be trying to re -
argue evidence that was fully canvassed by the Parties in the
original case and ruled on by the Court in its Judgment . 263That
would be tantamount to an appeal, which as explained in
Section B of this Chapter, is prohibited by Article 60 of the
Statute.
6.32. Thus, Nicaragua, by its present Application is in reality
inviting the Court either to revise its Judgment based on claimed
new facts that were not introduced in the earli er case or to re-
open its Judgment based on old facts that the Court has already
considered. Regardless of whether Nicaragua 's present
Application is based on claimed new facts or a reassessment of
old facts, it represents an attempt to evade the requirem ents of
the Statute.
D. Conclusions
6.33. There is no jurisdictional basis for the Court to entertain
what is in reality an attempt by Nicaragua to appeal the Court 's
Judgment of 19 November 2012, or to revise that Judgment
under the guise of a fresh case. Trying to submit a new case in
order to re-litigate issues that were argued in the earlier case and
decided with the force of res judicata in the 2012 Judgment
violates Article 60 of the Statute. By the same token, trying to
263
See Chapter 5, Section B, supra.
156 Chapter 7
PRELIMINARY OBJECTION T
OF THE FIRST AND SEO
NICARAGUA 'S APPLICATION
A. Introduction
7.1. If Colombia's objections to jurisdiction in the previous
chapters are rejected, Colombia objects, in the alternative, to the
admissibility of Nicaragua's Application. More specifically, it is
Colombia's submission that both the first and the second request
set out in Nicaragua's Application to the Court
265
inadmissible.
7.2. Nicaragua's First Request is inadmissible because of
Nicaragua's failure to
recommendation.
7.3. Nicaragua's Second Request is inadmissible as a
consequence of the inadmissibility of its first request. Even
considering the second request independently of the first, it
would also be inadmissible because, if it were to be granted, the
264 Application, para. 12.
265 Because it concerns admissibility, the present objection is submitted,
and is to be envisaged, only in the perspective of the hypothetical situation in
which the Court – contrary to Colombia's main prayer – were to find that it
has jurisdiction. As a consequence, the present objection to admissibility and
the arguments supporting it should not be misconstrued as indicating in any
manner acceptance by Colombia of the main tenets on which Nicaragua's
application is based.
158 Chapter 7
PRELIMINARY OBJECTION T
OF THE FIRST AND SEO
NICARAGUA 'S APPLICATION
A. Introduction
7.1. If Colombia's objections to jurisdiction in the previous
chapters are rejected, Colombia objects, in the alternative, to the
admissibility of Nicaragua's Application. More specifically, it is
Colombia's submission that both the first and the second request
set out in Nicaragua's Application to the Court
265
inadmissible.
7.2. Nicaragua's First Request is inadmissible because of
Nicaragua's failure to
recommendation.
7.3. Nicaragua's Second Request is inadmissible as a
consequence of the inadmissibility of its first request. Even
considering the second request independently of the first, it
would also be inadmissible because, if it were to be granted, the
264 Application, para. 12.
265 Because it concerns admissibility, the present objection is submitted,
and is to be envisaged, only in the perspective of the hypothetical situation in
which the Court – contrary to Colombia's main prayer – were to find that it
has jurisdiction. As a consequence, the present objection to admissibility and
the arguments supporting it should not be misconstrued as indicating in any
manner acceptance by Colombia of the main tenets on which Nicaragua's
application is based.
158decision of the Court would be inapplicable and would concern
a non-existent dispute.
B. The Inadmissibility of Nicaragua's First Request
(1) AS TATECANNOTESTABLISHA CONTINENTALSHELF
WITHOUTAN ENTITLEMENT
(a) The need for an entitlement
7.4. In order to exercise the rights described in UNCLOS
Article 77, the coastal State must have an entitlement to the
266
shelf, based on “sovereignty over the land territory.”
7.5. Entitlement, a term of art, is defined differently as
regards the continental shelf inside and outside the 200-nautical-
mile line.
(b) Entitlement within 200 nautical miles of the baselines from
which the territorial sea is measured
7.6. Inside 200 nautical miles, entitlement is automatic ipso
jure. UNCLOS Article 76(1) states:
“The continental shelf of a coastal State comprises
the seabed and subsoil of the submarine areas that
extend beyond its territorial sea… to a distance of
200 nautical miles from the baselines…”.
266 Dispute concerning Delimitation of the Maritime Boundary between
Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar),
ITLOS Judgment of 14 March 2012, para. 409.
160decision of the Court would be inapplicable and would concern
a non-existent dispute.
B. The Inadmissibility of Nicaragua's First Request
(1) AS TATECANNOTESTABLISHA CONTINENTALSHELF
WITHOUTAN ENTITLEMENT
(a) The need for an entitlement
7.4. In order to exercise the rights described in UNCLOS
Article 77, the coastal State must have an entitlement to the
266
shelf, based on “sovereignty over the land territory.”
7.5. Entitlement, a term of art, is defined differently as
regards the continental shelf inside and outside the 200-nautical-
mile line.
(b) Entitlement within 200 nautical miles of the baselines from
which the territorial sea is measured
7.6. Inside 200 nautical miles, entitlement is automatic ipso
jure. UNCLOS Article 76(1) states:
“The continental shelf of a coastal State comprises
the seabed and subsoil of the submarine areas that
extend beyond its territorial sea… to a distance of
200 nautical miles from the baselines…”.
266 Dispute concerning Delimitation of the Maritime Boundary between
Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar),
ITLOS Judgment of 14 March 2012, para. 409.
1607.9. The establishment by the coastal State of the outer limits
of its continental shelf “on the basis of the recommendations” of
the CLCS (i.e., delineated in conformity with such
recommendations) is “final and binding” under Article 76(8)
and, consequently, to use the language of the
270
Bangladesh/Myanmar judgment, opposable “to other States.”
7.10. Under the second sentence of Article 76(8), the CLCS
recommendations are to resolve “matters related to the
establishment of the outer limits” of the continental shelf. Such
matters include the existence of the prerequisites for the
delineation of the outer limit of the continental shelf.
7.11. The recommendation of the CLCS is thus the
prerequisite for transforming an inherent 271 but inchoate right
into an entitlement whose external limit is “final and binding”
under Article 76(8) and opposable erga omnes. The language
used in Article 76(8) and Annex II, Articles 4, 7 and 8 is
mandatory: States parties to UNCLOS, who want to establish
the limit of their continental shelf beyond 200 nautical miles,
must follow the procedure of the CLCS.
270
Dispute concerning Delimitation of the Maritime Boundary between
Bangladesh and Myanmar in the Bay of Bengal(Bangladesh/Myanmar) ,
271OS Judgment of 14 March 2012, para. 407.
UNCLOS Article 77(3).
1627.9. The establishment by the coastal State of the outer limits
of its continental shelf “on the basis of the recommendations” of
the CLCS (i.e., delineated in conformity with such
recommendations) is “final and binding” under Article 76(8)
and, consequently, to use the language of the
270
Bangladesh/Myanmar judgment, opposable “to other States.”
7.10. Under the second sentence of Article 76(8), the CLCS
recommendations are to resolve “matters related to the
establishment of the outer limits” of the continental shelf. Such
matters include the existence of the prerequisites for the
delineation of the outer limit of the continental shelf.
7.11. The recommendation of the CLCS is thus the
prerequisite for transforming an inherent 271 but inchoate right
into an entitlement whose external limit is “final and binding”
under Article 76(8) and opposable erga omnes. The language
used in Article 76(8) and Annex II, Articles 4, 7 and 8 is
mandatory: States parties to UNCLOS, who want to establish
the limit of their continental shelf beyond 200 nautical miles,
must follow the procedure of the CLCS.
270
Dispute concerning Delimitation of the Maritime Boundary between
Bangladesh and Myanmar in the Bay of Bengal(Bangladesh/Myanmar) ,
271OS Judgment of 14 March 2012, para. 407.
UNCLOS Article 77(3).
162 273
which it was received.” In Nicaragua's case, no mention is
made of the establishment of a subcommission, which, in the
practice of the CLCS, is the first step towards examination of
the merits of a submission.
(4)IN THESECIRCUMSTANCES , THE ICJ CANNOTDELIMITTHE
CONTINENTALSHELFBEYOND 200 NAUTICALMILES
(a) In the absence of a CLCS recommendation, the ICJ cannot
take up Nicaragua's Application
7.15. The ICJ cannot consider the Application by Nicaragua
because the CLCS has not ascertained that the conditions for
determining the extension of the outer edge of Nicaragua's
continental shelf beyond the 200-nautical mile line are satisfied
and, consequently, has not made a recommendation.
7.16. The present case must be distinguished from the
Bangladesh/Myanmar case, as well as the recent
Bangladesh/India case. 274 In the former case, the ITLOS could
decide on delimitation notwithstanding the impossibility of
delineating the external limit of Myanmar's continental shelf due
to the denial of Bangladesh's consent to the consideration by the
CLCS of Myanmar's submission. In Bangladesh/Myanmar the
273
Doc. CLCS/83 of 31 March 2014, Progress of the work in the
Commission on the Limits of the Continental Shelf , Statement by the Chair ,
274a 86. (See link in fn 272)
between the People 's Republic of Bangladesh and the Republic of India, 7
July 2014. Available at:
www.pca-cpa.org/showfile.asp?fil_id=2705 (Last visited: 4 Aug. 2014)
164 273
which it was received.” In Nicaragua's case, no mention is
made of the establishment of a subcommission, which, in the
practice of the CLCS, is the first step towards examination of
the merits of a submission.
(4)IN THESECIRCUMSTANCES , THE ICJ CANNOTDELIMITTHE
CONTINENTALSHELFBEYOND 200 NAUTICALMILES
(a) In the absence of a CLCS recommendation, the ICJ cannot
take up Nicaragua's Application
7.15. The ICJ cannot consider the Application by Nicaragua
because the CLCS has not ascertained that the conditions for
determining the extension of the outer edge of Nicaragua's
continental shelf beyond the 200-nautical mile line are satisfied
and, consequently, has not made a recommendation.
7.16. The present case must be distinguished from the
Bangladesh/Myanmar case, as well as the recent
Bangladesh/India case. 274 In the former case, the ITLOS could
decide on delimitation notwithstanding the impossibility of
delineating the external limit of Myanmar's continental shelf due
to the denial of Bangladesh's consent to the consideration by the
CLCS of Myanmar's submission. In Bangladesh/Myanmar the
273
Doc. CLCS/83 of 31 March 2014, Progress of the work in the
Commission on the Limits of the Continental Shelf , Statement by the Chair ,
274a 86. (See link in fn 272)
between the People 's Republic of Bangladesh and the Republic of India, 7
July 2014. Available at:
www.pca-cpa.org/showfile.asp?fil_id=2705 (Last visited: 4 Aug. 2014)
164it has a continental shelf beyond 200 nautical miles. In
paragraph 126 of its Judgment in Territorial and Maritime
Dispute of 2012 – which begins with a quotation from the
Nicaragua v. Honduras Judgment of 2007 – the Court stated:
“…that ‘any claim of continental shelf rights
beyond 200 miles [by a State party to UNCLOS]
must be in accordance with Article 76 of UNCLOS
and reviewed by the Commission on the Limits of
the Continental She lf established thereunder’…
Given the object and purpose of UNCLOS, as
stipulated in its Preamble, the fact that Colombia is
not a party thereto does not relieve Nicaragua of
its obligations under Article 76 of that
276
Convention.”
7.19. Thus the obligations set out in Article 76 (in particular,
to submit an application to the CLCS and to establish the
continental shelf beyond 200 nautical miles on the basis of the
recommendations of the CLCS) apply to all States parties to
UNCLOS even when their claim concerns an area to which a
State that is not a party to UNCLOS has an entitlement.
7.20. All United Nations member States, including non-parties
to UNCLOS, and therefore also Colombia, are to be notified of
the submissions deposited with the CLCS. The duty to notify is
276
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012 , p p. 668 -669, para. 126Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 759, para. 319.
(Emphasis added)
166it has a continental shelf beyond 200 nautical miles. In
paragraph 126 of its Judgment in Territorial and Maritime
Dispute of 2012 – which begins with a quotation from the
Nicaragua v. Honduras Judgment of 2007 – the Court stated:
“…that ‘any claim of continental shelf rights
beyond 200 miles [by a State party to UNCLOS]
must be in accordance with Article 76 of UNCLOS
and reviewed by the Commission on the Limits of
the Continental She lf established thereunder’…
Given the object and purpose of UNCLOS, as
stipulated in its Preamble, the fact that Colombia is
not a party thereto does not relieve Nicaragua of
its obligations under Article 76 of that
276
Convention.”
7.19. Thus the obligations set out in Article 76 (in particular,
to submit an application to the CLCS and to establish the
continental shelf beyond 200 nautical miles on the basis of the
recommendations of the CLCS) apply to all States parties to
UNCLOS even when their claim concerns an area to which a
State that is not a party to UNCLOS has an entitlement.
7.20. All United Nations member States, including non-parties
to UNCLOS, and therefore also Colombia, are to be notified of
the submissions deposited with the CLCS. The duty to notify is
276
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p p. 668 -669, para. 126Territorial and
Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 759, para. 319.
(Emphasis added)
1667.22. The role recognized for non-parties to UNCLOS in the
work of the CLCS is further confirmation of the view that a non-
Party can claim the inadmissibility of a request to the ICJ for
delimitation of an area of continental shelf beyond 200 nautical
miles when the procedure before the Commission has not
reached its conclusion with the adoption of a recommendation
concerning the coastal State's entitlement.
7.23. It follows that Colombia is entitled to rely on the lack of
a recommendation of the CLCS in order to show that
Nicaragua's request to the ICJ for delimitation is inadmissible.
(5)C ONCLUSION
7.24. For all of the above reasons, Nicaragua's First Request is
inadmissible.
23 Sept. 2013; Annex 22: Note No S -DM-13-035351 from the Acting
Colombian Foreign Minister to the Secretary -General of the United Nations,
24 Sept. 2013; Annex 27: United Nations General Assembly Document No
A/68/743, Note Verbale from the Permanent Mission of Colombia o the
Secretary-General of the United Nations with Annex (6 Feb. 2014Feb.1
2014; Annex 26: Note from the Governments of Colombia, Costa Rica and
Panamá to the Secretary-General of the United Nation, 5 Feb. 2014.
See also, Annex 19: Note No MCRONU -438-2013 from the Permanent
Mission of Costa Rica to the Secretar-General of the United Nations,
15 July 2013; Annex 20: Note No LOS/15 from the Permanent Mission of
Jamaica to the United Nations, 12 Sept. 2013; Annex 23: Note No
DGPE/DG/665/22013 from the Minister of Foreign Affairs of Panamá to the
Secretary-General of the United Nations, 30 Sept. 2013; Annex 24: United
Nations General Assembly Document No A/68/741, Note from the
Permanent Representative of Costa Rica to the Secreta-General of the
United Nations, (20 Jan. 2014 ), 7 Feb. 2014 ; Annex 25: Note No
DGPE/FRONT/082/14 from the Minister of Foreign Affairs of Panamá to the
Secretary-General of the United Nations, 3 Feb. 2014.
1687.22. The role recognized for non-parties to UNCLOS in the
work of the CLCS is further confirmation of the view that a non-
Party can claim the inadmissibility of a request to the ICJ for
delimitation of an area of continental shelf beyond 200 nautical
miles when the procedure before the Commission has not
reached its conclusion with the adoption of a recommendation
concerning the coastal State's entitlement.
7.23. It follows that Colombia is entitled to rely on the lack of
a recommendation of the CLCS in order to show that
Nicaragua's request to the ICJ for delimitation is inadmissible.
(5)C ONCLUSION
7.24. For all of the above reasons, Nicaragua's First Request is
inadmissible.
23 Sept. 2013; Annex 22: Note No S -DM-13-035351 from the Acting
Colombian Foreign Minister to the Secretary -General of the United Nations,
24 Sept. 2013; Annex 27: United Nations General Assembly Document No
A/68/743, Note Verbale from the Permanent Mission of Colombia o the
Secretary-General of the United Nations with Annex (6 Feb. 2014Feb.1
2014; Annex 26: Note from the Governments of Colombia, Costa Rica and
Panamá to the Secretary-General of the United Nation, 5 Feb. 2014.
See also, Annex 19: Note No MCRONU -438-2013 from the Permanent
Mission of Costa Rica to the Secretar-General of the United Nations,
15 July 2013; Annex 20: Note No LOS/15 from the Permanent Mission of
Jamaica to the United Nations, 12 Sept. 2013; Annex 23: Note No
DGPE/DG/665/22013 from the Minister of Foreign Affairs of Panamá to the
Secretary-General of the United Nations, 30 Sept. 2013; Annex 24: United
Nations General Assembly Document No A/68/741, Note from the
Permanent Representative of Costa Rica to the Secreta-General of the
United Nations, (20 Jan. 2014 ), 7 Feb. 2014 ; Annex 25: Note No
DGPE/FRONT/082/14 from the Minister of Foreign Affairs of Panamá to the
Secretary-General of the United Nations, 3 Feb. 2014.
168Colombia, the Court has no jurisdiction to decide on the request
for the delimitation of seabed areas beyond 200 nautical miles
from the Nicaraguan coast, or if the request to that effect is
inadmissible, there cannot be jurisdiction, or the request cannot
be admissible, to decide whatever issue pending a decision on
such delimitation.
(2)T HEREQUESTIS INADMISSIBLEBECAUSE ,IF GRANTED , THE
C OURT S DECISIONWOULDBE WITHOUTOBJECT
7.28. Even if we consider the Second Request independently
of the Court's jurisdiction to decide on the First Request, or of
that request's admissibility, strong considerations compel the
conclusion that the Second Request is inadmissible.
7.29. The request is for the statement by the Court of the
principles and rules that determine the rights and duties of the
two States in the area of overlapping continental shelf claims
and the use of its resources which would apply “pending the
delimitation of the maritime boundary between them beyond
283
200 nautical miles from Nicaragua's coast.” In other words:
pending the decision on Nicaragua's First Request.
7.30. But there would be no time-frame within which to apply
the decision on the Second Request pending the decision on the
First Request, as the Court would deal with both requests
simultaneously. Consequently, the request is inadmissible
283 Application, para. 12.
170Colombia, the Court has no jurisdiction to decide on the request
for the delimitation of seabed areas beyond 200 nautical miles
from the Nicaraguan coast, or if the request to that effect is
inadmissible, there cannot be jurisdiction, or the request cannot
be admissible, to decide whatever issue pending a decision on
such delimitation.
(2)T HEREQUESTIS INADMISSIBLEBECAUSE ,IF GRANTED ,THE
C OURT S DECISIONWOULDBE WITHOUTOBJECT
7.28. Even if we consider the Second Request independently
of the Court's jurisdiction to decide on the First Request, or of
that request's admissibility, strong considerations compel the
conclusion that the Second Request is inadmissible.
7.29. The request is for the statement by the Court of the
principles and rules that determine the rights and duties of the
two States in the area of overlapping continental shelf claims
and the use of its resources which would apply “pending the
delimitation of the maritime boundary between them beyond
283
200 nautical miles from Nicaragua's coast.” In other words:
pending the decision on Nicaragua's First Request.
7.30. But there would be no time-frame within which to apply
the decision on the Second Request pending the decision on the
First Request, as the Court would deal with both requests
simultaneously. Consequently, the request is inadmissible
283 Application, para. 12.
170 (4)THEREQUESTIS INADMISSIBLEBECAUSEIT CONCERNSA NON -
EXISTENTDISPUTE
7.32. The Second Request cannot succeed also if envisaged as
asking the Court to give a solution to a dispute between the
parties.
7.33. There is no evidence of an opposition of views between
Nicaragua and Colombia concerning a hypothetical legal regime
to be applied pending the decision on the maritime boundary
beyond 200 nautical miles of Nicaragua's coast. Consequently,
the Second Request would concern a non-existent dispute. For
this reason also, it is inadmissible.
(5)C ONCLUSION
7.34. For all of the above reasons, Nicaragua's Second Request
is inadmissible.
172 (4)THEREQUESTIS INADMISSIBLEBECAUSEIT CONCERNSA NON -
EXISTENTDISPUTE
7.32. The Second Request cannot succeed also if envisaged as
asking the Court to give a solution to a dispute between the
parties.
7.33. There is no evidence of an opposition of views between
Nicaragua and Colombia concerning a hypothetical legal regime
to be applied pending the decision on the maritime boundary
beyond 200 nautical miles of Nicaragua's coast. Consequently,
the Second Request would concern a non-existent dispute. For
this reason also, it is inadmissible.
(5)C ONCLUSION
7.34. For all of the above reasons, Nicaragua's Second Request
is inadmissible.
172written and oral pleadings . In its Judgment of 19 November
2012, the Court found that claim admissible but did not uphold
it. Consequently, that Judgment constitutes a res judicata which
bars reopening and relitigation of the claim by means of a new
application.
Fourth, t he Court lacks jurisdiction overNicaragua's
Application because it is, in fact, an attempt to appeal and revise
the Court's Judgment of 19 November 2012, without complying
with (and, indeed, without being able to comply with) the
requirements of the Statute.
Fifth, even if one were to assume, quod non, that the
Court had jurisdiction under the Pact of Bogotá or that ihas
retained jurisdict ion on the basis of its prior Judgment, the
present Application would be inadmissible because the CLCS
has not made the requisite recommendation. The Second
Request of Nicaragua is also inadmissible, for its connection
with the First and for other reasons.
174written and oral pleadings . In its Judgment of 19 November
2012, the Court found that claim admissible but did not uphold
it. Consequently, that Judgment constitutes a res judicata which
bars reopening and relitigation of the claim by means of a new
application.
Fourth, t he Court lacks jurisdiction overNicaragua's
Application because it is, in fact, an attempt to appeal and revise
the Court's Judgment of 19 November 2012, without complying
with (and, indeed, without being able to comply with) the
requirements of the Statute.
Fifth, even if one were to assume, quod non, that the
Court had jurisdiction under the Pact of Bogotá or that ihas
retained jurisdict ion on the basis of its prior Judgment, the
present Application would be inadmissible because the CLCS
has not made the requisite recommendation. The Second
Request of Nicaragua is also inadmissible, for its connection
with the First and for other reasons.
174176 VOLUME II: LIST OFANNEXESAND FIGURES
ANNEXES
Annex 1 Diplomatic Note N
Minister of Foreign Affairs of Colombia to
the Secretary-General of the Organization of
American States, 27 Nov. 2012. .................................1
Annex 2 Note N o OEA/2.2/109/12 from the OAS
Department of International Law, Secretariat
for LegalAffairs to the High Contracting Parties
to the American Treaty on Pacific Settlement
(Pact of Bogotá) and to the other Permanent
Missions to the Organization ofAmerican States,
28 Nov. 2012. .............................................................5
Annex 3 Diplomatic Note from the Minister of Foreign
Affairs of El Salvador to the Secretary-General
of the Organization of American States,
24 Nov. 1973. .............................................................9
Annex 4 Comparative Chart of Drafts presented by
American States to the First Commission at the
Eighth International Conference of American
States, Lima, Perú, Dec. 1938. .................................13
Annex 5 Delegation of the United States of America to
the First Commission at the Eighth International
Conference ofAmerican States, Lima, Perú, Draft
on Consolidation of American Peace Agreements,
Topic 1. Perfecting and Coordination of Inter-
American Peace Instruments, 15 Nov. 1938. ...........19
176Annex 6 Delegation of the United States of America to
the Eighth International Conference ofAmerican
States, Projects Presented by the United States,
Topic 1, Treaty of Consolidation of American
Peace Agreements, 16 Dec. 1938. ............................35
Annex 7 Seventh International Conference of American
States, Montevideo, 3-26 Dec. 1933, Resolution
XXXV, Code of Peace,Approved 23 Dec. 1933.....49
Annex 8 Inter-American Conference for the Maintenance
of Peace, Buenos Aires, 1-23 Dec. 1936,
Resolution XXVIII, Code of Peace, Approved
21 Dec. 1936. ......................................7....................6
Annex 9 Memorandum from the General Director of the
Pan-American Union, to the United States Under
Secretary of State, 28 Dec. 1937. .............................71
Annex 10 Delegation of the United States of America to
the Eighth International Conference ofAmerican
States, Lima, 9-27 Dec. 1938, Report of the
Meetings of Sub-Committee 1 of Committee I,
Consolidation of American Peace Instruments
and Agreements, 19 Dec. 1938. ................................75
Annex 11 Eighth International Conference of American
States, Lima, 9-27 Dec. 1938, Resolution XV,
Perfection and Coordination of Inter-American
Peace Instruments,Approved 21 Dec. 1938. ...........79
Annex 12 Inter-American Juridical Committee, Text of
Document A: Draft Treaty for the Coordination
of Inter-American Peace Agreements, Minutes of
the Inter-American Juridical Committee, 1944. .......83
178 Annex 13 Inter-American Juridical Committee, Text of
Document B: Draft of an Alternative Treaty
Relating to Peaceful Procedures, and
Document C: Report to Accompany the Draft
Treaty for the Coordination of Inter-American
Peace Agreements and Draft of an Alternative
Treaty, Minutes of the Inter-American Juridical
Committee, 1944. ...................................................101
Annex 14 Inter-American Juridical Committee, Draft
of an Inter-American Peace System and
an Accompanying Report, Article XXIX,
4 Sept. 1945. ...........................................................117
Annex 15 Inter-American Juridical Committee, Inter-
American Peace System: Definitive Project
Submitted to the Consideration of the Ninth
International Conference of American States in
Bogota, Article XXVI,18 Nov. 1947......................123
Annex 16 Minutes of the Second Part of the Fourth
Session of the Coordination Commission, Ninth
International Conference of American States,
29 Apr. 1948. .........................................................1
Annex 17 Inter-American Treaties from 1902 to 1936,
Clauses of Denunciation. .......................................1
Annex 18 Text of the Pact of Bogotá, in the FourAuthentic
Languages (English, French, Portuguese,
Spanish). .................................................................141
Annex 19 Note N MCRONU-438-2013 from the Permanent
Mission of Costa Rica to the Secretary-General
of the United Nations, 15 July 2013. .....................1
Annex 20 Note N oLOS/15 from the Permanent Mission of
Jamaica to the United Nations, 12 Sept. 2013. ......195
178Annex 21 Communication from the Governments of
Colombia, Costa Rica and Panamá to the
Secretary-General of the United Nations, New
York, 23 Sept. 2013. ...............................................199
o
Annex 22 Note N S-DM-13-035351 from the Acting
Colombian Foreign Minister to the Secretary-
General of the United Nations, 24 Sept. 2013. ......203
Annex 23 Note N DGPE/DG/665/22013 from the Minister
of Foreign Affairs of Panamá to the Secretary-
General of the United Nations, 30 Sept. 2013. ......207
Annex 24 United Nations General Assembly Document
N A/68/741, Note from the Permanent
Representative of Costa Rica to the Secretary-
General of the United Nations, (20 Jan. 2014),
7 Feb. 2014 .............................................................213
Annex 25 Note N DGPE/FRONT/082/14 from the Minister
of Foreign Affairs of Panamá to the Secretary-
General of the United Nations, 3 Feb. 2014. .......... 17
Annex 26 Note from the Governments of Colombia, Costa
Rica and Panamá to the Secretary-General of the
United Nation, 5 Feb. 2014. ...................................221
Annex 27 United Nations General Assembly Document
N A/68/743, Note Verbale from the Permanent
Mission of Colombia to the Secretary-General
of the United Nations withAnnex (6 Feb. 2014),
11 Feb. 2014. ..........................................................225
180 FIGURES
I. FIGURES IN CHAPTER 5
Figure 1 Figure 1 from the Nicaraguan Memorial
(in Territorial and Maritime Dispute)
Figure 2 Figure 3-1 from the Nicaraguan Reply
(in Territorial and Maritime Dispute)
Figure 3 Sketch-map No. 7 from the Court’s 2012
Judgment (in Territorial and Maritime Dispute)
Figure 4 Figure 3-10 from the Nicaraguan Reply
(in Territorial and Maritime Dispute)
Figure 5 Figure 3-11 from the Nicaraguan Reply
(in Territorial and Maritime Dispute)
II. FIGURE IN CHAPTER 6
Figure 6 Nicaragua’s Extended Continental Shelf Claims
180
Volume I