Declaration of Judge Cançado Trindade

DECLARATION OF JUDGE CANÇADO TRINDADE
1. I have voted in favour of the adoption of the present Order (of 15 November 2017) in the
case concerning Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua versus Colombia), whereby the International Court of Justice (ICJ) has taken the proper
course in respect of the four counter-claims, namely, finding the first and second inadmissible, and
the third and fourth admissible. Having supported the present Order, yet there is one particular
point - to which I attribute special relevance, - that I feel obliged to dwell upon a bit further, so as
to leave on the records the foundations of my personal position thereon.
2. I thus deem fit to append to the ICJ’s Order the present Declaration, wherein I shall focus
on such particular point, - dealt with in the Order in relation to the third counter-claim, - namely,
that of the traditional fishing rights of the inhabitants of the Archipelago of San Andrés. I do so in
the zealous exercise of the international judicial function, seeking ultimately the goal of the
realization of justice, ineluctably linked, as I perceive it, to the settlement of disputes.
3. As to other related points, such as the rationale and admissibility of counter-claims, the
cumulative requirements of Article 80(1) of the Rules of Court (jurisdiction and direct connection
to the main claim), and the legal nature and effects of counter-claims, I have already dwelt upon
them in detail in my extensive Dissenting Opinion (paras. 1-179, esp. paras. 4-30) in the case of
Jurisdictional Immunities of the State (Germany versus Italy, counter-claim, Order of 06.07.2010).
It is not my intention to reiterate herein the considerations I then presented; I find it sufficient only
to refer to them, recalling one particular point I made on that occasion, seven years ago.
4. In my aforementioned Dissenting Opinion, I pointed out, inter alia, that, even though
counter-claims are interposed in the course of the process, being thus directly connected to the
main claim and integrating the factual complex of the cas d’espèce (and so giving an impression of
being “incidental”), this does not deprive them of their autonomous legal nature (para. 17).
Counter-claims are to be treated on the same footing as the original claims, in faithful observance
of the principe du contradictoire, thus ensuring the procedural equality of the parties (para. 30).
The original applicant assumes the role of counter-claim respondent (reus in excipiendo fit actor).
5. In enlarging the factual complex of the case, counter-claims (together with claims) enable
the ICJ to have a better knowledge of the dispute at issue that it has been called to adjudicate upon
(paras. 28-29). Yet, in the same Dissenting Opinion in the case of Jurisdictional Immunities of the
State, in my examination of the jurisprudential and doctrinal developments on the matter, I
observed that “the Court’s practice in relation to counter-claims is still in the making” (para. 28,
and cf. paras. 9-28). In the search for the realization of justice, there is still much to advance in this
domain.
6. For example, both claims and counter-claims require, in my perception, prior public
hearings, so as to obtain further clarifications from the contending parties (paras. 30 and 154). In
any case, the Court is not bound by the submissions of the parties; it is perfectly entitled to go
beyond them, so as to say what the Law is (juris dictio) (para. 162). In enlarging the factual context
to be examined in the adjudication of a dispute, main claims and counter-claims provide elements
for a more consistent decision of the international tribunal seized of them.
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7. Almost eight decades ago, international legal doctrine was already apprehending the
autonomous legal nature of counter-claims1. Counter-claims are not simply a defence on the merits;
in requiring the same degree of attention as the main claims, the counter-claims assist in achieving
the sound administration of justice (la bonne administration de la justice). Nowadays, we are
required to keep on cultivating the examination of the institute of counter-claims.
8. In the conclusions of my aforementioned Dissenting Opinion in the case of Jurisdictional
Immunities of the State (2010), I observed that “[c]ounter-claims, as a juridical institute transposed
from domestic procedural law into international procedural law, already have their history, but the
ICJ’s jurisprudential construction on the matter is still in the making” (para. 155). And I summed
up:
“The same treatment is to be rigorously dispensed to the original claim and the
counter-claim as a requirement of the sound administration of justice (la bonne
administration de la justice). They are, both, autonomous, and should be treated on the
same footing, with a strict observance of the principe du contradictoire. Only in this
way the procedural equality of the parties (applicant and respondent, rendered
respondent and applicant by the counter-claim) is secured” (para. 154)2.
9. Turning now to the particular point I purport to address in the present Declaration, may I
begin by observing that this is not the first time that, in a case of the kind, the ICJ takes into
account, in an inter-State dispute, the basic needs and in particular the fishing rights of the affected
segments of local populations, on both sides. May I recall three Court decisions along the last
eight years, concerning, like the present one, Latin American countries: it is significant that
attention has constantly been given to that issue in those cases, like in the present one concerning
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea.
10. Thus, it is not to pass unnoticed that, in its Judgment of 13.07.2009, on the case of the
Dispute Regarding Navigational and Related Rights (Costa Rica versus Nicaragua), the ICJ upheld
the customary right of subsistence fishing (paras. 143-144, and cf. paras. 140-141) of the inhabitants of
both banks of the San Juan River3. After all, those who fish for subsistence are not the States, but the
human beings struck by poverty. The Court thus turned its attention, beyond the strict inter-State
dimension, to the affected segments of the local populations.
11. In its subsequent Judgment of 20.04.2010, in the case concerning Pulp Mills on the
River Uruguay (Argentina versus Uruguay), the Court likewise took into account aspects pertaining
to the affected local populations, and consultation with them. This is what I deemed fit to single out
in my lengthy Separate Opinion (para. 156), in which I pondered that, even in the inter-State
mechanism of judicial settlement of disputes by the ICJ, it was considered necessary to go in its
reasoning beyond the strict inter-State dimension, taking due account of the basic needs of the
affected segments of the local population (paras. 156-157), on both sides.
1Cf., e.g., D. Anzilotti, “La demande reconventionnelle en procédure internationale”, 57 Journal du Droit
international - Clunet (1930) p. 876; R. Genet, “Les demandes reconventionnelles et la procédure de la Cour Permanente
de Justice Internationale”, 19 Revue de Droit international et de législation comparée (1938) p. 148.
2Dissenting Opinion reproduced in: Judge A.A. Cançado Trindade - The Construction of a Humanized
International Law - A Collection of Individual Opinions (1991-2013), vol. II (International Court of Justice), Leiden,
Brill/Nijhoff, 2014, pp. 1298-1369.
3The Court further recalled that the respondent State had commendably reiterated that it had “absolutely no
intention of preventing Costa Rican residents from engaging in subsistence fishing activities” (para. 140).
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12. And I added, in the aforementioned Separate Opinion, that in both cases, concerning
Latin American countries, - in Central America and in the southern cone of South America,
respectively, - all attentive to the living conditions and public health of neighbouring communities,
“the ICJ looked beyond the strictly inter-State dimension, into the segments of the
populations concerned. The contending States, in both cases, advanced their
arguments in pursuance of their vindications, without losing sight of the human
dimension underlying their claims. Once again, Latin American States pleading before
the ICJ have been faithful to the already mentioned deep-rooted tradition of Latin
American international legal thinking, which has never lost sight of the relevance of
doctrinal constructions and the general principles of law” (para. 158).
13. More recently, in its Judgment of 27.01.2014 in the case concerning the
Maritime Dispute (Peru versus Chile), in the Pacific coast in South America, the ICJ, in assessing
“the extent of the lateral maritime boundary” which the contending parties acknowledged existed in
1954, it made clear, inter alia, that it was itself “aware of the importance that fishing has had for
the coastal populations of both Parties” (para. 109). This third Judgment once again revealed that,
despite the fact that the dispute was an inter-State one and the mechanism of peaceful judicial
settlement is also an inter-State one, there is no reason to make abstraction of the needs of the
affected persons in the reasoning of the Court, thus transcending the strict inter-State outlook.
14. Now, in the present case concerning Alleged Violations of Sovereign Rights and
Maritime Spaces in the Caribbean Sea, opposing a Central American to a South American country,
the point at issue again comes to the fore, and the ICJ, once again, takes due care to keep it in mind.
Both contending parties, Nicaragua and Colombia, expressed concerns about the rights of their
respective fishermen4; furthermore, both Colombia and Nicaragua seemed aware of the needs of
each other’s fishermen5.
15. In the course of the written arguments of the contending parties6 in the cas d’espèce,
special attention was given to the fishermen from the local population of the Archipelago of San
Andrés, Providencia and Santa Catalina (“los pueblos raizales”, the Raizal people), in particular
their traditional and historic fishing rights from time immemorial, and the fact that they are
vulnerable communities, highly dependent on traditional fishing for their own subsistence.
16. For its part, the ICJ, in the present Order, has addressed the issue in its own
considerations as to the cumulative requirements of admissibility of counter-claims, set forth in
Article 80(1) of the Rules of Court, i.e., as to their direct connection (to the principal claim), and as
to jurisdiction. The Court’s considerations pertain to the third counter-claim concerning the fishing
rights of the local inhabitants of the Archipelago of San Andrés. In this respect, the ICJ notes that
the facts relied upon by both Parties relate to the same time period, the same geographical area, and
are of the same nature “in so far as they allege similar types of conduct of the naval forces of one
Party vis-à-vis nationals of the other Party”, engaged on “fishing in the same waters” (para. 44).
4ICJ, Memorial of Nicaragua, of 03.10.2014, paras. 2.22 and 2.54; ICJ, Counter-Memorial of Colombia, of
17.11.2016, paras. 1.2, 1.24, 3.3, 3.86, 3.94 and 7.5.
5ICJ, Memorial of Nicaragua, of 03.10.2014, paras. 2.54-2.56 and 4.20; ICJ, Counter-Memorial of Colombia, of
17.11.2016, paras. 1.12, 3.109 and 9.5; ICJ, Written Observations of Nicaragua on the Admissibility of Colombia’s
Counter-Claims, of 20.04.2017, paras. 2.49 and 3.42-3.45; ICJ, Written Observations of Colombia on the Admissibility of
Its Counter-Claims, of 28.06.2017, paras. 2.72-2.73.
6ICJ, Memorial of Nicaragua, of 03.10.2014, paras. 2.54-2.55 and 4.20; ICJ, Counter-Memorial of Colombia, of
17.11.2016, paras. 1.7, 2.10, 2.53, 2.69, 2.81, 2.87, 3.3, 3.77, 3.94, 3.102 and 3.109; ICJ, Written Observations of
Nicaragua on the Admissibility of Colombia’s Counter-Claims, of 20.04.2017, paras. 2.49-2.50; ICJ,
Written Observations of Colombia on the Admissibility of Its Counter-Claims, of 28.06.2017, paras. 3.52 and 4.3.
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17. The Court ponders that the contending parties, “are pursuing the same legal aim by their
respective claims since they are both seeking to establish the responsibility of the other by invoking
violations of a right to access and exploit marine resources in the same maritime area” (para. 45).
The ICJ, accordingly, concludes that there is a direct connection, in fact and in law, between
Colombia’s third counter-claim and Nicaragua’s principal claims (para. 46), and finds that the third
counter-claim is admissible (para. 78).
18. In sequence, in its considerations on jurisdiction, the ICJ again dwells upon the
traditional fishing rights of the inhabitants (artisanal fishermen) of the Archipelago of San Andrés
(paras. 72 and 75). The Court observes that, since its Judgment of 19.11.2012 in the case
concerning Territorial and Maritime Dispute (Nicaragua versus Colombia), senior officials of the
contending parties have “exchanged public statements expressing their divergent views on the
relationship between the alleged rights of the inhabitants of the San Andrés Archipelago to
continue traditional fisheries, invoked by Colombia, and Nicaragua’s assertion of its right to
authorize fishing in its EEZ [exclusive economic zone]” (para. 72). The ICJ then, at last, finds that
this third counter-claim “is admissible as such and forms part of the current proceedings”
(resolutory point A(3) of the dispositif).
19. As can be seen, the present case concerning Alleged Violations of Sovereign Rights and
Maritime Spaces in the Caribbean Sea, opposing two Latin American countries, brings to the floor
rights of States together with rights of individuals, artisanal fishermen seeking to fish, for their own
subsistence, in traditional fishing grounds. This once again shows that in the inter-State contentieux
before the ICJ, one cannot make abstraction of the rights of individuals (surrounded by
vulnerability).
20. The human factor has, in effect, marked presence in all four aforementioned cases
concerning Latin American countries. In my perception, this is reassuring, bearing in mind that,
after all, in historical perspective, it should not be forgotten that the State exists for human beings, and
not vice-versa. Whenever the substance of a case pertains not only to States but to human beings as
well, the human factor marks its presence, irrespective of the inter-State nature of the contentieux
before the ICJ7, and is to be taken duly into account by it, as it has done in the aforementioned
Latin American cases. It is, furthermore, to be duly reflected in the Court’s decision.
21. Moreover, Latin American international legal doctrine has always been attentive also to
the fulfilment of the needs and aspirations of peoples (keeping in mind those of the international
community as a whole), in pursuance of superior common values and goals8. Furthermore, it has
likewise always remained attentive to the importance of general principles of international law,
reckoning that conscience (recta ratio) stands well above the “will”, faithfully in line with the
longstanding jusnaturalist international legal thinking.
22. Latin American international legal doctrine has remained aware that, in doing so, it
rightly relies on the perennial lessons and legacy of the “founding fathers” of international law,
going back to the flourishing of the jus gentium (droit des gens) in the XVIth and XVIIth centuries.
The jus gentium they conceived was for everyone, - peoples, individuals and groups of individuals,
7Cf. A.A. Cançado Trindade, “La Presencia de la Persona Humana en el Contencioso Interestatal ante la
Corte Internacional de Justicia”, in Liber Amicorum in Honour of a Modern Renaissance Man, G. Eiríksson, (eds. J.C.
Sainz-Borgo et alii), New Delhi - India/San José C.R., Ed. O.P. Jindal University/Ed. University for Peace, 2017,
pp. 383-411.
8A.A. Cançado Trindade, “The Contribution of Latin American Legal Doctrine to the Progressive Development
of International Law”, 376 Recueil des Cours de l’Académie de Droit International de La Haye (2014) pp. 19-92, esp.
pp. 90-92; and cf. A.A. Cançado Trindade, “Los Aportes Latinoamericanos al Derecho y a la Justicia Internacionales”, in
Doctrina Latinoamericana del Derecho Internacional, vol. I (eds. A.A. Cançado Trindade and A. Martínez Moreno),
San José/C.R., IACtHR, 2003, pp. 37-38, 40, 45, 54 and 56-57; A.A. Cançado Trindade, “Los Aportes Latinoamericanos
al Primado del Derecho sobre la Fuerza”, in Doctrina Latinoamericana del Derecho Internacional, vol. II (eds.
A.A. Cançado Trindade and F. Vidal Ramírez), San José/C.R., IACtHR, 2003, pp. 42-44.
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and the emerging States9. Solidarity marked its presence in the jus gentium of their times, as it
does, in my view, also in the new jus gentium of the XXIst century10.
23. This is not the first time that I make this point within the ICJ. After all, the exercise of
State sovereignty cannot make abstraction of the needs of the populations concerned, from one
country or the other. In the present case, the Court is faced, inter alia, with artisanal fishing for
subsistence. States have human ends, they were conceived and gradually took shape in order to
take care of human beings under their respective jurisdictions. Human solidarity goes pari passu
with the needed juridical security of boundaries, land and maritime spaces. Sociability emanated
from the recta ratio (in the foundation of jus gentium), which marked presence already in the
thinking of the “founding fathers” of the law of nations (droit des gens), and ever since and to date,
keeps on echoing in human conscience.
(Signed) Antônio Augusto CANÇADO TRINDADE.
___________
9Association Internationale Vitoria-Suarez, Vitoria et Suarez - Contribution des Théologiens au Droit
International Moderne, Paris, Pédone, 1939, pp. 169-170; A. Truyol y Serra, “La conception de la paix chez Vitoria et les
classiques espagnols du droit des gens”, in: A. Truyol y Serra and P. Foriers, La conception et l’organisation de la paix
chez Vitoria et Grotius, Paris, Libr. Philos. J. Vrin, 1987, pp. 243, 257, 260 and 263; A. Gómez Robledo, “Fundadores
del Derecho Internacional - Vitoria, Gentili, Suárez, Grocio”, in Obras - Derecho, vol. 9, Mexico, Colegio Nacional,
2001, pp. 434-442, 451-452, 473, 481, 493-499, 511-515 and 557-563; A.A. Cançado Trindade, “Totus Orbis: A
Visão Universalista e Pluralista do Jus Gentium: Sentido e Atualidade da Obra de Francisco de Vitoria”, 24 Revista da
Academia Brasileira de Letras Jurídicas - Rio de Janeiro (2008) n. 32, pp. 197-212.
10A.A. Cançado Trindade, International Law for Humankind - Towards a New Jus Gentium, 2nd rev. ed.,
Leiden/The Hague, Nijhoff/The Hague Academy of International Law, 2013, pp. 1-726.