Declaration of Judge ad hoc Simma

DECLARATION OF JUDGE AD HOC SIMMA
1980 Treaty Concerning Delimitation of Marine Areas and Maritime Cooperation between
the Republic of Costa Rica and the Republic of Panama  Relevance to this case  Obligations
under Article 102 of the Charter of the United Nations
1. I have voted in favour of each of the Judgment’s operative paragraphs and agree, for the
most part, with the reasoning set out therein. I wish, in this short declaration, to comment on a point
which has not been addressed in the Judgment, relating to Article 102 of the Charter of the
United Nations.
2. Article 102 of the Charter provides:
“1. Every treaty and every international agreement entered into by any Member
of the United Nations after the present Charter comes into force shall as soon as
possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been
registered in accordance with the provisions of paragraph 1 of this Article may
invoke that treaty or agreement before any organ of the United Nations.”
3. In this case, both Parties made reference to the Treaty Concerning Delimitation of Marine
Areas and Maritime Cooperation between the Republic of Costa Rica and the Republic of Panama,
which was signed on 2 February 1980 and entered into force on 11 February 1982 (the
“1980 Treaty”) (see Judgment, para. 57). While the text of that Treaty is available on the website of
the United Nations Division for Ocean Affairs and the Law of the Sea (and is reproduced in
Annex 2 to Costa Rica’s Memorial in the case concerning Maritime Delimitation), it does not
appear to have been registered in accordance with the requirements of Article 102, paragraph 1, of
the United Nations Charter.
4. In their respective pleadings in this case, both Parties made reference to the 1980 Treaty in
discussing the maritime boundaries already delimited by Costa Rica. The 1980 Treaty played a role
in determining the approach of both Parties to the limits of the relevant area in the southerly part of
the Caribbean Sea (see Judgment, paras. 117-119), the Court ultimately following in this respect
that suggested by Costa Rica (ibid., para. 164).
5. In making its arguments regarding the cut-off generated by a “three-State concavity” that
it suffers in the Caribbean Sea, Costa Rica did not point to the boundary delimited in the
1980 Treaty but to equidistance lines creating such an effect (see also Judgment, para. 150). In
response, Nicaragua pointed to the terms of the 1980 Treaty, and Costa Rica acknowledged that
part of its maritime boundary with Panama was indeed delimited by that treaty.
6. Nicaragua also referred to the 1980 Treaty in another respect, arguing that “[t]he terms of
the 1980 Treaty are binding and inescapable and must be taken into account and given their due
weight” in asserting the relevance of treaties signed by Costa Rica to the question of delimitation
between the Parties in the Caribbean Sea (see also Judgment, paras. 123-129).
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7. According to paragraph 2 of Article 102, “[n]o party to any such treaty or international
agreement which has not been registered . . . may invoke that treaty or agreement before any organ
of the United Nations”. The International Court of Justice being, according to Article 92 of the
United Nations Charter, “the principal judicial organ of the United Nations”, it follows that such
unregistered treaties cannot be invoked before it1. This does not, however, as the Court has
observed, “have any consequence for the actual validity of the agreement, which remains no less
binding upon the parties” (Maritime Delimitation and Territorial Questions between Qatar and
Bahrain (Qatar v. Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994, p. 122,
para. 29).
8. The concept of “invocation” has been taken, in the context of Article 102 of the Charter,
to mean that “a party relies upon a treaty as the foundation of its claim or counter-claim, or where
the particular legal right that it alleges has been infringed has its basis in the terms thereof”2. In this
case, it does not appear that Costa Rica has attempted to so invoke the 1980 Treaty.
9. For its part, Nicaragua did appear to rely on the 1980 Treaty to establish, at least
indirectly, that Costa Rica had renounced certain maritime entitlements to its benefit (see
Judgment, paras. 124-134). However, it is not necessary in the present case to determine whether
Nicaragua has “invoked’” the 1980 Treaty within the meaning of Article 102, paragraph 2, given
that Nicaragua is not a party to that Treaty and therefore does not fall within the scope of
Article 102, paragraph 2, in respect of it3.
10. Notwithstanding that neither Party was thus probably captured by the terms of
Article 102, paragraph 2, of the Charter in this case, that provision is, as a whole, an important
element in maintaining the international rule of law4 and States should respect their obligations
thereunder. It is therefore disappointing that the parties to the 1980 Treaty appear to have treated
their obligations under Article 102 of the Charter in a somewhat cavalier fashion and that the Court
did not take the opportunity to acknowledge this in its Judgment.
(Signed) Bruno SIMMA.
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1 See, for example, the discussion in E. Martens, “Article 102” in B. Simma et al. (eds.), The Charter of the
United Nations: A Commentary, Vol. II, 3rd ed., Oxford University Press, 2012, pp. 2106-2109.
2 Ibid., p. 2106, citing M. Brandon, “The Validity of Non-Registered Treaties” (1952), British Yearbook of
International Law, Vol. 29, p. 198.
3 See Martens, supra note 1, p. 2106 (“Only parties to an unregistered agreement can be concerned by the
sanction. Third parties are at liberty to invoke it at any time, subject, of course, to the rule of res inter alios acta.”) See
also Brandon, supra note 2, p. 192; J.-P. Jacque, “Article 102” in J.-P. Cot et al. (eds.), La Charte des Nations Unies :
Commentaire article par article, Vol. II, 3rd ed., Paris: Economica, 2005, p. 2130.
4 See, for example, United Nations General Assembly resolution 70/118, “The rule of law at the national and
international levels” (14 December 2015), para. 8 (b).