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91
DISSENTING OPINION OF JUDGE DONOGHUE
Scope and meaning of dispositive subparagraph (3) of the 2012 Judgment —
Res judicata.
I. Introduction and Summary
1. In its third preliminary objection in this case, Colombia invoked the
doctrine of res judicata, contending that the Judgment in Territorial and
Maritime Dispute (Nicaragua v. Colombia) (hereinafter the “Nicaragua v.
Colombia I ” or the “2012 Judgment” (I.C.J. Reports 2012 (II), p. 624))
renders the claims in Nicaragua’s present Application inadmissible.

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81
SEPARATE OPINION OF JUDGE GREENWOOD
Nature of res judicata in international law — What creates a res judicata —
Effects — Scope of the 2012 Judgment — Nature of Nicaragua’s claim in relation
to submission I (3) — Silence of the 2012 Judgment regarding Nicaragua’s claims
to a continental shelf more than 200 nautical miles from the mainland coasts of
both Nicaragua and Colombia — Absence of any ruling by the Court on the merits
of that claim — Whether Nicaragua’s claim to a continental shelf overlapping with

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67
SEPARATE OPINION OF JUDGE OWADA
table of contents
Paragraphs
I. Res Judicata 1-32
A. The definition and scope of res judicata 1‑9
B. The background of the Court’s decision in its 2012 Judgment
on the reformulated claim of Nicaragua 10‑16
C. What the Court has decided in fact in its 2012 Judgment 17‑31
(i) The reasoning contained in Part IV of the Judgment 18‑24
(ii) The structure of the 2012 Judgment 25‑29
(iii) The burden of proof 30‑31
D. Conclusion 32

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45
JOINT DISSENTING OPINION OF VICE‑PRESIDENT YUSUF,
JUDGES CANÇADO TRINDADE,
XUE, GAJA, BHANDARI,
ROBINSON AND JUDGE AD HOC BROWER
Regret that the Court was evenly split on res judicata — Court should have
upheld Colombia’s third preliminary objection and rejected Nicaragua’s requests
as inadmissible — Res judicata is reflected in Articles 59 and 60 of the Statute of
the Court — Its main elements are identity of parties, identity of cause, and

74
75
DISSENTING OPINION OF JUDGE AD HOC CARON
Disagreement with dismissal by the Court of Colombia’s second preliminary
objection — Requirement that there be a “dispute” as a general limitation to the
contentious jurisdiction of the Court — Specific requirement for a “dispute” under
the Pact of Bogotá — Meaning of “dispute” — Unprecedented character of the
present case — Contention by Colombia that there is no dispute between the Parties
resting on the allegation that no “claim” was made by Nicaragua that was

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71
DECLARATION OF JUDGE BHANDARI
1. In the present case, I have voted with the majority in respect of the
first, second, third and fourth preliminary objections raised by Colombia
1. However, with the greatest of respect to my learned colleagues, I
cannot join them in rejecting Colombia’s fifth preliminary objection 2,
which contends that the present case brought by Nicaragua is, in effect,
an improper attempt by Nicaragua to have this Court enforce one of its

44
45
SEPARATE OPINION
OF JUDGE CANÇADO TRINDADE
table of contents
Paragraphs
I. Prolegomena 1‑4
II. Submissions of the Parties and Questions from
the Bench 5‑6
III. Responses from the Contending Parties 7‑15
1. Response from Nicaragua 7‑9
2. Response from Colombia 10‑12
3. General assessment 13‑15
IV. Inherent Powers beyond State Consent 16‑21
V. The Teleological Interpretation (Ut Res Magis Valeat
Quam Pereat) beyond State Consent 22‑27