Non Corrigé
Uncorrected
CR 2010/17
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2010
Public sitting
held on Friday 15 October 2010, at 4 p.m., at the Peace Palace,
President Owada presiding,
in the case concerning the Territorial and Maritime Dispute
(Nicaragua v. Colombia)
Application by Costa Rica for permission to intervene
________________
VERBATIM RECORD
________________
ANNÉE 2010
Audience publique
tenue le vendredi 15 octobre 2010, à 16 heures, au Palais de la Paix,
sous la présidence de M. Owada, président,
en l’affaire du Différend territorial et maritime
(Nicaragua c. Colombie)
Requête du Costa Rica à fin d’intervention
____________________
COMPTE RENDU
____________________ - 2 -
Present: Presiewtada
Vice-Presdenkta
Judges Koroma
Al-Khasawneh
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Cançado Trindade
Yusuf
Xue
Donoghue
Judges ad hoc Cot
Gaja
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : M. Owada,président
viceMpra,ident
KoMroMa.
Al-Khasawneh
Simma
Abraham
Keith
Sepúlveda-Amor
Bennouna
Skotnikov
Crinçade
Yusuf
XuMe mes
Dojnogshue,
CotMM.
jugesaja, ad hoc
Cgeffrrr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Nicaragua is represented by:
H.E. Mr. Carlos José Argüello Gómez, Ambassador of Nicaragua to the Kingdom of the
Netherlands,
as Agent and Counsel;
MrA. lexOudeElferink, Deputy-Director, Netherlands Institute for the Law of the Sea,
Utrecht University,
Mr.AlainPellet, Professor at the University ParisOuest, Nanterre-La Défense, Member and
former Chairman of the International Law Co mmission, associate member of the Institut de
droit international,
Mr.PaulReichler, Attorney-at-Law, Foley Hoag LLP, Washington D.C., Member of the Bars of
the United States Supreme Court and the District of Columbia,
Mr.AntonioRemiroBrotóns, Professor of Intern ational Law, Universidad Autónoma, Madrid;
Member of the Institut de droit international,
as Counsel and Advocates;
Mr.RobinCleverly, M.A., DPhil, CGeol, F.G.S., Law of the Sea Consultant, Admiralty
Consultancy Services,
Mr. John Brown, Law of the Sea Consultant, Admiralty Consultancy Services,
as Scientific and Technical Advisers;
Mr. César Vega Masís, Director of Juridical Affairs, Sovereignty and Territory, Ministry of
Foreign Affairs,
Mr. Julio César Saborio, Juridical Adviser, Ministry of Foreign Affai
rs,
Mr. Walner Molina Pérez, Juridical Adviser, Ministry of Foreign Affairs,
Ms Tania Elena Pacheco Blandino, Juridical Adviser, Ministry of Foreign Affairs,
as Counsel;
Ms Clara E. Brillembourg, Foley Hoag LLP, Member of the Bars of the District of Columbia and
New York,
Ms Carmen Martinez Capdevila, Doctor of Public International Law, Universidad Autónoma,
Madrid,
MsAlinaMiron, Researcher, Centre for International Law (CEDIN), University ParisOuest,
Nanterre-La Défense,
Mr. Edgardo Sobenes Obregon, First Secretary, Embassy of Nicaragua in the Kingdom of
the Netherlands,
as Assistant Counsel. - 5 -
Le Gouvernement du Nicaragua est représenté par :
S.Exc.M.CarlosJoséArgüelloGómez, ambassadeur du Nicaragua auprès du Royaume des
Pays-Bas,
comme agent et conseil ;
M. Alex Oude Elferink, directeur adjoint de l’Ins titut néerlandais du droit de la mer de l’Université
d’Utrecht,
M.Alain Pellet, professeur à l’Université de ParisOuest, Nanterre-La Défense, membre et ancien
président de la Commission du droit internatio nal, membre associé de l’Institut de droit
international,
M.PaulReichler, avocat au cabinetFoley Hoag LLP, WashingtonD.C., membre des barreaux de
la Cour suprême des Etats-Unis d’Amérique et du district de Columbia,
M.AntonioRemiroBrotóns, professeur de droi t international à l’Universidad Autónoma de
Madrid, membre de l’Institut de droit international,
comme conseils et avocats ;
M.RobinCleverly, M.A., D.Phil, C.Geol, F.G.S., consultant en droit de la mer, Admiralty
Consultancy Services,
M. John Brown, consultant en droit de la mer, Admiralty Consultancy Services,
comme conseillers scientifiques et techniques ;
M. César Vega Masís, directeur, direction des affaires juridiques, de la souveraineté et du territoire,
ministère des affaires étrangères,
M. Julio César Saborio, conseiller juridique au ministère des affaires étrangères,
M. Walner Molina Pérez, conseiller juridique au ministère des affaires étrangères,
Mme Tania Elena Pacheco Blandino, conseiller juridique au ministère des affaires étrangères,
comme conseils ;
Mme Clara E. Brillembourg, cabinet Foley Hoag LLP, membre des barreaux du district de
Columbia et de New York,
Mme Carmen Martinez Capdevila, docteur en droit international public à l’Universidad Autónoma
de Madrid,
Mme Alina Miron, chercheur au Centre de droit in ternational de Nanterre (CEDIN), Université de
Paris Ouest, Nanterre-La Défense,
M.EdgardoSobrenesObregon, premier secrétaire à l’ambassade du Nicaragua au Royaume des
Pays-Bas,
comme conseils adjoints. - 6 -
The Government of Colombia is represented by:
H.E. Mr. Julio Londoño Paredes, Professor of International Relations, Universidad del Rosario,
Bogotá,
as Agent;
H.E. Mr. Guillermo Fernández de Soto, Chair of the Inter-American Juridical Committee, Member
of the Permanent Court of Arbitration and former Minister for Foreign Affairs,
as Co-Agent;
Mr.JamesCrawford, S.C., F.B.A., Whewell Professor of International Law, University of
Cambridge, Member of the Institut de droit international, Barrister,
Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris , Member of the NewYork Bar,
Eversheds LLP, Paris,
Mr.MarceloKohen, Professor of International Law at the Graduate Institute of International and
Development Studies, Geneva; associate member of the Institut de droit international,
as Counsel and Advocates;
H.E. Mr. Francisco José Lloreda Mera, Ambassador of the Republic of Colombia to the Kingdom
of the Netherlands, Permanent Representative of Colombia to the OPCW, former Minister of
State,
Mr. Eduardo Valencia-Ospina, Member of the International Law Commission,
H.E. Ms Sonia Pereira Portilla, Ambassador of the Republic of Colombia to the Republic of
Honduras,
Mr. Andelfo García González, Professor of Interna tional Law, former Deputy Minister for Foreign
Affairs,
Ms Victoria E. Pauwels T., Minister-Counsellor, Ministry of Foreign Affairs,
Mr. Julián Guerrero Orozco, Minister-Counsellor, Embassy of the Republic of Colombia in the
Kingdom of the Netherlands,
Ms Andrea Jiménez Herrera, Counsellor, Ministry of Foreign Affairs,
as Legal Advisers;
Mr. Thomas Fogh, Cartographer, International Mapping,
as Technical Adviser. - 7 -
Le Gouvernement de la Colombie est représenté par :
S. Exc. M. Julio Londoño Paredes, professeur de relations internationales à l’Université del Rosario
de Bogotá,
comme agent ;
S. Exc. M. Guillermo Fernández de Soto, président du comité juridique interaméricain, membre de
la Cour permanente d’arbitrage et ancien ministre des affaires étrangères,
comme coagent ;
M.JamesCrawford, S.C., F.B.A., professeur de droit international à l’Université de Cambridge,
titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
M.RodmanR.Bundy, avocat à la Cour d’appel de Paris, membre du barreau de NewYork,
cabinet Eversheds LLP à Paris,
M. Marcelo Kohen, professeur de droit internationa l à l’Institut de hautes études internationales et
du développement de Genève, membre associé de l’Institut de droit international,
comme conseils et avocats ;
S. Exc. M. Francisco José Lloreda Mera, ambassadeur de la République de Colombie auprès du
Royaume des Pays-Bas, représentant permanent de la Colombie auprès de l’OIAC, ancien
ministre d’Etat,
M. Eduardo Valencia-Ospina, membre de la Commission du droit international,
S. Exc. Mme Sonia Pereira Portilla, ambassadeur de la République de Colombie auprès de la
République du Honduras,
M. Andelfo García González, professeur de droit inte rnational, ancien ministre adjoint des affaires
étrangères,
Mme Victoria E. Pauwels T., ministre-conseiller au ministère des affaires étrangères,
M. Julián Guerrero Orozco, ministre-conseiller à l’ambassade de la République de la Colombie aux
Pays-Bas,
Mme Andrea Jiménez Herrera, conseiller au ministère des affaires étrangères,
comme conseillers juridiques ;
M. Thomas Fogh, cartographe, International Mapping,
comme conseiller technique. - 8 -
The Government of Costa Rica is represented by:
H.E. Mr. Edgar Ugalde Álvarez, Ambassador of Costa Rica to the Republic of Colombia,
as Agent;
Mr. Coalter G. Lathrop, Lecturing Fellow at Duke University School of Law, member of the North
Carolina State Bar, Special Adviser to the Ministry of Foreign Affairs,
Mr. Sergio Ugalde, Member of the Permanent Court of Arbitration, Senior Adviser to the Ministry
of Foreign Affairs, Member of the Costa Rican Bar,
Mr. Arnoldo Brenes, Senior Adviser to the Ministry of Foreign Affairs, Member of the Costa Rican
Bar,
Mr. Carlos Vargas, Director of the Legal Department, Ministry of Foreign Affairs,
as Counsel and Advocates;
H.E. Mr. Jorge Urbina, Ambassador of Costa Rica to the Kingdom of the Netherlands,
Mr. Michael Gilles, Special Adviser to the Ministry of Foreign Affairs,
Mr. Ricardo Otarola, Minister and Consul General of Costa Rica to the Republic of Colombia,
Mr. Christian Guillermet, Ambassador, Deputy Permanent Representative of Costa Rica to the
United Nations Office at Geneva,
Mr. Gustavo Campos, Consul General of Costa Rica to the Kingdom of the Netherlands,
Ms Shara Duncan, Counsellor at the Embassy of Costa Rica in the Kingdom of the Netherlands,
Mr. Leonardo Salazar, National Geographic Institute of Costa Rica,
as Advisers. - 9 -
Le Gouvernement du Costa Rica est représenté par :
S. Exc. M. Edgar Ugalde Álvarez, ambassadeur de la République du Costa Rica auprès de la
République de Colombie,
comme agent ;
M. Coalter G. Lathrop, Lecturing Fellow à la faculté de droit de Duke University, membre du
barreau de l’Etat de Caroline du Nord, conse iller spécial auprès du ministère des affaires
étrangères,
M.SergioUgalde, membre de la Cour perman ente d’arbitrage, conseiller principal auprès du
ministère des affaires étrangères, membre du barreau du Costa Rica,
M.ArnoldoBrenes, conseiller principal auprès du ministère des affaires étrangères, membre du
barreau du Costa Rica,
M. Carlos Vargas, directeur du département juridique du ministère des affaires étrangères,
comme conseils et avocats ;
S. Exc. M. Jorge Urbina, ambassadeur du Costa Rica auprès du Royaume des Pays-Bas,
M. Michael Gilles, conseiller spécial auprès du ministère des affaires étrangères,
M. Ricardo Otarola, ministre et consul général du Costa Rica en République de Colombie,
M. Christian Guillermet, ambassadeur, représentant permanent adjoint du Costa Rica auprès de
l’Office des Nations Unies à Genève,
M. Gustavo Campos, consul général du Costa Rica au Royaume des Pays-Bas,
Mme Shara Duncan, conseiller à l’ambassade du Costa Rica aux Pays-Bas,
M. Leonardo Salazar, Institut géographique national du Costa Rica,
comme conseillers. - 10 -
The PRESIDENT: I now turn to the second round of oral argument of Colombia. I give the
floor to the first speaker, Mr. Rodman Bundy, to make his presentation.
BMUr. DY:
T HE LEGAL INTEREST REPRESENTED BY THE 1977 TREATY AND NICARAGUA ’S
FAILURE TO TAKE THAT INTEREST INTO ACCOUNT
1. Thank you very much, Mr.President, Members of the Court. The presentations of all
three States before you this week have devoted considerable attention to the delimitation
agreements that have been concluded in this part of the Caribbean Sea, particularly the 1977 Treaty
between Colombia and Costa Rica. That is as it should be. These treaties are important elements
of the historical relationships of the States concer ned that are relevant to Costa Rica’s Application
for permission to intervene.
2. From what we heard this afternoon, Nicaragua appears to take the view that these are
matters more appropriate for the merits. But I would suggest that our colleagues on the Nicaraguan
side of the Bar simply review their own pleadings from Wednesday where all three delimitation
agreements in this part of the Caribbean, includi ng the tripoint, were extensively discussed. They
are relevant for the merits but they are particularly relevant also at this st age with respect to Costa
Rica’s Application.
Having listened to Nicaragua’s first round presentation on Wednesday, and Costa Rica’s
rebuttal yesterday, I would like first like toke up a number of points of detail relating to the
1977 Treaty in order to set the record straight. Afterwards, I will turn to the key issue of principle
bearing on Costa Rica’s Application ⎯ the reason why the 1977 Treaty in and of itself constitutes
an interest of a legal nature sufficient to justif y Costa Rica’s request for permission to intervene.
Lastly, I will briefly comment on how Nicaragua’s claims do not take that interest into account.
3. I will be followed by Professor Crawford a nd he, in turn, will be followed by Colombia’s
Agent, who will present Colombia’s closing remarks.
4. It is a fact that the western segment of the 1977 Treaty line was stated to proceed in a due
north direction along the 82°14'W meridian until it reaches its delimitation with a third State,
which was Nicaragua. Colombia has pointed out that this shows that Costa Rica envisaged that the - 11 -
eventual tripoint with Nicaragua would be located somewhere along the prolongation of this line to
the south-west of the San Andrés archipelago. I realize that yesterday, Mr.Lathrop placed this
“notional tripoint” far to the north. In reality, it is likely to be situated much further south as
Colombia explained on Wednesday. Indeed, as Costa Rica itself explained earlier this week, on
Monday, the 1977 line would be prolonged until it meets its delimitation with a third State, which
Costa Rica indentified on Monday as “Nicaragu a” [CR2010/12, p.34, para.11]. Nonetheless,
regardless of how far south that tripoint is, Colo mbia accepts that Costa Rica does have an interest
of a legal nature in where the eventual tripoint would be situated.
5. In their oral pleadings this week, Colo mbia and Nicaragua have both noted that the
1977Treaty line was not based on the 82°meridian, a line that was indeed referred to in the
1928/1930 Treaty, but is not referred to in the 1977 Treaty between Colombia and Costa Rica.
6. Nicaragua, however, went further in its intervention on Wednesday. According to the
distinguished Agent of Nicaragua, in 1977 Costa Ri ca was aware that Nicaragua did not accept the
82°meridian as a line of delimitation (although it does represent the western limit of the
archipelago), and that it did not accept that Colomb ia had sovereignty over all the islands, banks
and cays in the south-west Caribbean. To sup port this contention, the Agent referred on
Wednesday to a diplomatic Note that had been se nt by Mr.Facio, the then Foreign Minister of
Costa Rica, to Nicaragua on 18 October 1972 in which the Minister, Mr. Facio, had stated that his
Government “considers that the cays and islets of Quitasueño, Roncador and Serrana are located in
the continental shelf of Nicaragua” [CR2010/13, p.14, para.16, (ArgüelloGómez)]— those are
features not particularly relevant to today’s pro ceedings dealing with the south, but this was the
document that the Agent referred to.
7. Unfortunately, that reference does not put the matter in its proper context. In the first
place, the Costa Rican Foreign Minister’s statement was made at a time when Nicaragua was trying
to drum up support in the region for opposition to the 1972 agreement reached between the United
States and Colombia; that was the agreement pursuant to which the United States formally
renounced its claims to sovereignty to Quitasueño, Roncador and Serrana. As was clear from the
1928/1930 Treaty itself, the dispute over those three islands had been between the United States
and Colombia; Nicaragua did not suggest that it had any interest in those islands at the time. - 12 -
Notwithstanding this, just one month after the Un ited States and Colombia signed the 1972 Treaty
resolving that matter, Nicaragua sent Notes to all of the regional States trying to enlist opposition to
that agreement, and two such Notes were sent to Costa Rica, and Mr. Facio’s Note of October 1972
was in response to those two Notes.
8. Mr. Facio was the same individual who, five years later, signed the 1977 Colombia-Costa
Rica treaty on behalf of Costa Rica. As we have seen, that Treaty evidenced Costa Rica’s
recognition that the southern islands of the Sa n Andrés archipelago, including the Alburquerque
cays and others, belonged to Colombia and were en titled to full effect for delimitation purposes. It
also evidenced Costa Rica’s accep tance of the Colombia-Panama agreement that did the same
thing, given that the two agreements met up in the east.
9. Nicaragua, on Wednesday, elected not to re fer to another important statement made by
Mr.Facio to the Diplomatic Corps in Costa Rica on 22August1998 [CMC, Ann.217], which
referred both to Nicaragua’s position vis-à-vis th e 1928/1930 Treaty and it referred to Colombia
and Costa Rica’s position with respect to the 1977Treaty and where sovereignty over the San
Andrés archipelago was vested. I would sugg est that several passages from Mr.Facio’s 1998
address to the Diplomatic Corp are worth recalling.
10. Having expressed the view that Nicara gua’s argument that the 1928/1930 Treaty was a
nullity was unsustainable, Mr.Facio went on to ex plain Costa Rica’s position with respect to the
1977 Treaty it had entered into with Colombia. These were his words:
“In view of the above” [that was in view of the nullity of the nullity argument],
“there is no reason whatsoever why the Le gislative Assembly should not approve the
Fernandez-Facio Treaty that duly delimited the boundaries in the Atlantic Ocean
between the republics of Colombia and Co sta Rica, on the premise that the San
Andrés Archipelago belonged to Colombia.”
Mr. Facio then continued with respect to Colombia:
“That republic has no reason to abide by the statement of the Nicaraguan
Government declaring the nullity of a valid treaty and, with or without it, Colombia
will continue to exercise the sovereignty it has always exercised over the San Andrés
Archipelago, for over a century prior to th e recognition of that legal fact by the
Government of Nicaragua by the ‘Bárcenas-Esguerra’ Treaty.
Consequently, the Government of Nica ragua cannot reproach us [CostaRica]
with anything since, on signing the Fernandez-Facio Treaty of 1977, we acted in
accordance with the existing legal situation that has the San Andrés Archipelago as an
integral part of the Colombian territory.” - 13 -
11. From Nicaragua’s presentation this week, it appears that Nicaragua in fact does not
reproach Costa Rica for concluding the 1977 Treat y. Nor does it reproach Colombia. As was
confirmed by Mr. Sergio Ugalde yesterday, Nicaragua did not protest that agreement [CR 2010/15,
p.22, para.14]. Nor did it protest the Panama-Colombia agreement or the Costa Rica-Panama
agreement. And in light of that fact ⎯ no Nicaraguan protests over any of those three
agreements ⎯ it was a little bit surprising to hear ear lier this afternoon complaints about what
Nicaragua alleges is a practice that is somehow trying to prevent Nicaragua from enjoying its
maritime rights. If anything, in these proceedi ngs Nicaragua has relied on the 1977 agreement for
purposes of arguing that Costa Rica does not have an interest of a legal nature that may be affected
by a decision in the case.
12. Nicaragua cannot approbate and reprobate with respect to the 1977 Treaty at the same
time. To the extent that Nicaragua not only re lies on the 1977 agreement, but also emphasizes that
it has been respected in practice for over 30year s, it must also accept the fact that the Treaty
recognized Colombia’s sovereignty and gave full effect to the islands. What is actually significant
this week is that we have heard for the firs t time during these proceedings that all three States ⎯
Colombia, Costa Rica and Nicaragua— agree that the 1977 Treaty has been complied with and
respected by all concerned for over a quarter of a century.
13. This brings me to a second point of detail relating to the 1977 Treaty — the reason for its
non-ratification by Costa Rica.
14. As Colombia pointed out on Wednesday, there are numerous statements emanating from
senior Costa Rican officials evidencing Costa Rica’s intention to ratify the Treaty, the statement of
Mr. Facio’s that I cited a few minutes ago being just one such example.
15. The Court will recall that, on Monday, counsel for Costa Rica indicated that Costa Rica
had abstained from ratifying the Treaty because of Nicaragua’s request that Costa Rica not do so
until the Nicaragua-Colombia dispute was resolv ed. On Wednesday, counsel for Nicaragua
responded by saying “this is news to Nicaragua” [CR 2010/13, p. 41, para. 41, (Reichler)].
16. In feinting surprise at Costa Rica’s explan ation, Nicaragua once again appears to have
suffered a case of amnesia. I would simply recall that it was Nicaragua itself, in its Written
Statement of January 2004 at the Preliminary Objec tions phase of the case, that referred to the fact - 14 -
that Costa Rica would not ratify the boundary treaty with Colombia whilst Colombia had not
settled its differences with Nicaragua. [WSN, 26 Jan. 2004, p. 64, para. 2.33.] That was “news” to
Nicaragua this week?
17. There was also a suggestion made by the distinguished Agent of Nicaragua that the
reason why Costa Rica agreed to give full effect to Colombia’s islands in the 1977 Treaty was due
to some kind of horse-trading, some kind of malicious motives, if I can borrow from
Mr. Sergio Ugalde’s words of yesterday [CR 2010/15, p. 22, para. 14]. Nicaragua’s argument was
that Costa Rica received full effect for a small isla nd located in the Pacific in its delimitation with
Colombia in return for according the Alburquerque Cays belonging to Colombia full effect in the
Caribbean [CR 2010/13, p. 15, para. 20, (Argüello Gómez)]. Counsel for Nicaragua put the point
somewhat differently. He asserted, that in return for Colombia’s blessing of its maritime claims,
Costa Rica entered into an agreement with Colombia in which it recognized Colombia’s
jurisdiction over maritime areas also claimed by Nicaragua [ibid., p. 11, para. 42].
18. Neither of those arguments has any basi s in fact. The Colombia-Costa Rica Treaty
dealing with the delimitation agreement in the P acific was signed in 1984 — seven years after the
1977 Treaty. Clearly, both agreements were not si multaneously negotiated as part of some kind of
package deal. Each stood on its own merits. Moreover, the Pacific delimitation involved the
adoption of a median or equidistance line between two islands — del Coco belonging to Costa Rica
and Malpelo belonging to Colombia. Use of equidistance methodology in those circumstances
obviously produced an equitable result. In 1977 when the 1977Treaty was signed, moreover,
Nicaragua had no ⎯ announced no ⎯ maritime claims in this part of the sea.
19. As the Court has heard, equidistance was the underlying basis of delimitation in the
Caribbean, not simply in the 1977 Treaty, but al so in the 1976 Colombia-Panama Treaty and the
1980Costa Rica-Panama Treaty. In each case, the concerned States deemed equidistance to
produce an equitable solution and Nicaragua voiced no objection.
20. And that really brings me to the heart of the matter — the reason why the 1977 Treaty is
relevant to the present proceedings in so far as it embodies an interest of a legal nature concerning
Costa Rica ⎯ and, I might add, Colombia ⎯ that may be affected by a decision in the case. - 15 -
21. On Monday, Costa Rica’s Agent responded to a Nicaraguan argument that had been
made in the Written Observations in which it had been suggested that Co sta Rica assumes that a
decision of the Court in the main case is a reason for Costa Rica not to respect its existing treaties
[CR 2010/12, p. 19, para. 18, (Ugalde Álvarez)]. Costa Rica’s Agent explained that this was not at
all Costa Rica’s intention. Yesterday, he repeated the point when he confirmed that Costa Rica has
given no reasons to interpret its object as being aimed at ignoring its international obligations,
particularly the 1977 Treaty with Colombia [CR 2010/15, p. 28, para. 9 (Ugalde Álvarez)]. To the
contrary, Costa Rica’s concern as expressed this week is that a decision of the Court could result in
the elimination of the relation de voisinage presently existing between Colombia and Costa Rica
and thus render the 1977 Treaty “without purpose” — something that without any doubt ⎯ without
any doubt ⎯ would give rise to an impact on the legal interests that Costa Rica possesses in this
part of the sea [CR 2010/12, p. 19, para. 18 (Ugalde Alvarez); ibid., p. 36, para. 15 (Lathrop)].
22. In his presentation yesterday, Mr. Lathrop developed the point further. He observed that,
if Nicaragua’s claims in this case were somehow to prevail, it would have an impact on the bilateral
and trilateral relationships existing in this area. Colombia would no longer have such relationships
with Costa Rica and Panama because they w ould be eliminated by Nicaragua’s presence
[CR2010/15, p.13, para.9]. In Costa Rica’s point of view, Costa Rica would be subject to the
“outright elimination of a long-standing boundary relationship with Colombia” [CR 2010/15, p. 15,
para. 12 (Lathrop)]. This, as counsel for Costa Rica stressed, is not an outcome that Costa Rica has
pursued or that Costa Rica desires [ibid.].
23. I would suggest that the concerns expressed by Costa Rica’s Agent and by counsel are
understandable in the light of Nicaragua’s extreme claims which seek to enclave Colombia’s
islands. While Nicaragua’s Written Observations asked the rhetorical qu estion: “Why should a
ruling of the Court ‘render’ their 1977 agreement ‘without purpose’” [WON, para. 24], the answer
is really straightforward if Nicaragua’s delimita tion position is deemed to have any merit. The
plain fact is that Nicaragua’s claims in this case do have the effect of eliminating the coastal
relationship between the San Andrés archipelago a nd Costa Rica’s coast — a relationship that has
formed the entire predicate for the 1977 Treaty. And that most certainly does affect an interest of a
legal nature possessed by Costa Rica. That legal in terest is not simply a line, as was suggested - 16 -
earlier this afternoon, it is an overall legal relationship between two coastal States in a broader
context, a coastal relationship. And that is the main reason why Colombia believes that Costa Rica
possesses an interest of a legal nature that c ould be affected by a decision in the case, and
consequently why Colombia considers that Costa Rica has satisfied the requirements of Article 62
of the Statute.
24. In 1977, Costa Rica and Colombia proceed ed on the basis that they were maritime
neighbours and that the entitlements generated by the San Andrés archipelago and the Costa Rican
coast required delimitation. And that is what they achieved in their treaty and that is the treaty over
which Nicaragua voiced no protest.
25. It should also be recalled that the 1977 Treaty does far more than simply delimit a
maritime boundary. The Treaty, if one goes back to its provisions, contains a number of separate
provisions relating to co-operation between the two countries for the protection of the living
resources at sea, the safeguarding of the marine e nvironment, the encouragement of international
navigation in the region, marine scientific research and other matters.
26. The maritime relations of Colombia and Costa Rica have been guided, and governed, by
the undertakings laid out in the treaty for over 30 years. That relationship has produced benefits
not simply for both of the signatory parties, but for the international community at large with
respect to the maintenance of peace and security in the region. And the same can be said about the
Costa Rica-Panama boundary agreement and the Colo mbia-Panama agreements. These, too, were
agreed on the basis of international law applying the same equidistance principles, and have
unquestionably contributed to stability in the region.
27. And it is, I have say, Nicaragua’s claims in the present case that seek to disrupt this
situation. The positions graphically illustrated by the map that now appears on the screen, which
was figure1, the very first figure in Nicara gua’s Memorial. Although Nicaragua’s counsel
repeatedly argued that Nicaragua’s claims do not trespass on areas appertaining to third States,
including Costa Rica, [CR 2010/13, p.31, para. 11, pp. 32-33, para. 16, p. 32, para. 19 (Reichler)]
the map shows otherwise. This map was produced by Nicaragua in order to show what it
considered was the area to be delimited between itself and Colombia on an equal division basis. - 17 -
28. Because the Court will recall that, at the Me morial stage, and even at the Application
stage, Nicaragua was arguing for a single mar itime boundary to be delimited by means of a
mainland-to-mainland median line. Now in its Reply, Nicaragua was forced to abandon that
position because, as Colombia had pointed out, and th e matter is really quite obvious, there cannot
possibly be a single maritime boundary line ly ing between coasts which are more than
400 nautical miles apart.
29. And one would have thought that as a r esult of that demonstration, and the abandonment
of Nicaragua’s claim that it had put forward in the Application and the Memorial, that this
delimitation area you see on the screen would suffer the same fate as the mainland-to-mainland
median line; in other words, that it too would be abandoned. But that did not happen.
Remarkably, Nicaragua has produced almost the same delimitation area in its Reply at figure 3.1.
30. How the figure on the screen can be reconciled with Nicaragua’s confident assertion that
its claims do not trespass on the actual or potential rights of third States is impossible to
understand. Nicaragua’s “Delimitation Area” cuts right across the coastal fronts of Costa Rica and
Panama and even creeps up to the Panamanian coast in the east. It impinges on the
1977 Colombia-Costa Rica line, as well as on the 1976 Colombia-Panama line and the 1980 Costa
Rica-Panama line and the tripoint which Nicaragua’s counsel spent so much time on, on
Wednesday. It overturns the coastal relationships of those three States that are subject to existing
legal instruments, one of those coastal relationshi ps being that of Costa Rica to Colombia as
embodied in the 1977 Treaty. Clearly, there are inte rests of third States that are not only affected,
but fundamentally prejudiced, by this depiction of what Nicaragua considers the area to be
delimited in the present case.
31. Mr.President and Members of the Court, it is for this reason that Colombia has
suggested that, but for the Nicaraguan claims in the main proceedings, we probably would not be
here today. As ProfessorCrawford will presen tly explain, in these circumstances there are
compelling reasons, including compelling policy reasons, why Costa Rica’s Application should be
considered to have met the requirements of Article 62 of the Statute.
32. Since these are matters that Professor Crawfo rd will now take up, I ask, Mr. President, if
you would be good enough to give the floor to him. Thank you to the Court. - 18 -
The PRESIDENT: I thank Mr.RodmanBundy for his presentation. I now invite
Professor James Crawford to the floor.
CMRr. WFORD:
TREATIES IN MARITIME DELIMITATION AND THE ROLE OF INTERVENTION
Introduction
1. Mr.President, Members of the Court, in this brief submission I will make four general
points. These concern first, the relative effects of treaties; second, the role of agreement in
maritime delimitation; thirdly, the issue of over-claiming as it impacts on intervention; and
finally, the proper judicial policy of the Court in dealing with intervention in maritime
delimitation ⎯ all this in response to Nicaragua’s presentations this week.
Nicaragua cannot rely on renunciations of maritime claims made vis-à-vis Colombia
2. Mr.President, one of my enduring memories of this case will be of Mr.Reichler for
Nicaragua defending against Costa Rica the validity of the 1977Treaty between Colombia and
Costa Rica 1. After all, the terms “valid treaty” and “Nicaragua” are not closely associated in the
public mind. The Court will recall Nicaragua’s cha llenge to the validity of the Treaty of Limits
with Costa Rica before PresidentCleveland 2. It will recall the alleged invalidity of the Arbitral
3
Award of the King of Spain . It will recall the challenge to the validity of the 1928-30 Treaty in
the present case, on grounds which cast doubt on the validity of all of Nicaragua’s treaties for more
than a decade 4. So it was refreshing, momentarily, to see counsel for Nicaragua actually arguing
for the validity of a treaty.
3. But only momentarily. For there were several problems with the argument. The first is
that the 1977 Treaty is not a treaty with Nicara gua. The second is that Nicaragua had long and
1
CR 2010/13, pp. 38-9, paras. 31-33 (Reichler).
Dispute regarding Navigational and Related Rights (CostaRicv. Nicaragua) , Judgment of 13July2009,
para. 20.
Arbitral Award Made by the King of Spain on 23December1906 (Honduras v. Nicaragua), Judgment, I.C.J.
Reports 1960, p. 192.
Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objecti ons, Judgment, I.C.J. Reports
2007 (II), p. 857, paras. 74-75. - 19 -
actively campaigned against its ratification by Costa Rica ⎯ we are now apparently to understand
that this is because it is valid without having been ratified. The third is that Nicaragua actually
wants the treaty to be invalid, or at any rate inoperative, as a treaty between Colombia and Costa
Rica. It simply wants the advantage of the treaty in terms of Costa Rica’s renunciation of maritime
claims to the north and east of the treaty lines, without the inconvenience of having itself to comply
with the treaty in terms of its recognition of Colombian sovereignty over, and the full maritime
effect of, the islands and cays of the San Andrés archipelago.
4. On Wednesday, Nicaragua made three arguments for what we may term the erga omnes
effect of the 1977 Treaty. The first was made by the Agent, who said:
“The quick way of covering this subject is fairly simple without submitting the
Court to a scholarly dissertation. [Something of course, at all cost to be avoided.] An
agreement between third States [he said] is a res inter alios acta for a State not Party
to the agreement in the sense that that agreement cannot be imposed on that third
State. But good faith and the conduct subsequent to that treaty can have definite
effects erga omnes.” [CR 2010/13, pp. 15-16, para. 22 (Argüello Gómez).]
The good faith was evidently that of Costa Rica. The subsequent conduct was unspecified, but if it
was intended to be conduct of Costa Rica, the conduct entirely favours Colombia. If it was
intended to refer to conduct of Nicaragua, curi ously that too favours Colombia; the 1977Treaty
was not protested, and Nicaragua has been conspicu ous by its total absence from the areas affected
by the 1977 Treaty.
5. Now a treaty is to be performed in good faith, but that does not convert bilateral
commitments into multilateral legitimate expectations. I believe that you, Mr. President, are a man
of your word, and that you will certainly keep th e promise that you made to the Vice-President
yesterday. But that does not make me a beneficiary of your promise, or give me any right whatever
to your performance of it. There is no commitment erga omnes.
6. Similarly the performance of the maritime delimitation treaty is in principle a bilateral
performance; it is the parties to the treaty who can be said to perform it. Of course, if pursuant to a
treaty I assert jurisdiction over third parties such as foreign fishing vessels, that can produce further
results in terms of consolidating my jurisdicti on as the relevant coastal State over the EEZ thereby
recognized. But Nicaragua has never exercised an y jurisdiction over the areas it now claims under
the Colombian treaties with third States, nor is it disposed to recognize the erga omnes effects that - 20 -
the exercise of jurisdiction by Colombia will have had. Its reliance on those treaties is factitious
and opportunistic.
7. Then there was Mr. Reichler, who accepted the pacta tertiis principle but sought to qualify
it as follows:
“Our point is a different one. It is th at the Treaty and Costa Rica’s consistent
conduct thereunder demonstrate what Cost a Rica’s perception of its own legal
interests truly are. Costa Rica cannot simply invent new legal interests to suit its
present purposes, and particularly in orde r to intervene in these proceedings under
Article62. After 33years of maintaining a consistent and public view of its legal
interests, and conducting itself in strict accord ance with that view in all respects, the
Court should treat with some caution Costa Rica’s sudden effort to throw the entire
historical and geographical record out the window in order to claim a new, expanded
set of interests in regard to Nicaragua alone.” [CR 2010/13, p. 40, para. 38.]
8. But a State which performs a bilateral treaty is not thereby making beneficiaries of the
world, still less of third States which later form desi gns to subvert the treaty. And it is worthwhile
stressing that, at the time the 1977Treaty was concluded, Nicaragua had made no claims in the
south, only to Quitasueño, Roncador and Serrana. The thought that it was, or could become, an
undisclosed beneficiary of a boundary treaty between two other States affecting areas to which at
the time it made no claim is completely unreal.
9. Then, finally and rather desperately, Mr. Reichler complained of discriminatory conduct
by Costa Rica [CR2010/13, pp.40-41, para.40], as if the delimitation provisions of UNCLOS
came with a most-favoured-nation clause attached.
10. The consequences of these conclusions for Co sta Rica’s application are clear. It accepts,
expressly now, that it is obliged by the 1977 Treaty vis-à-vis Colombia, and that its claims are
correspondingly limited to the areas defined by that Treaty. I refer to statements made yesterday
[see CR 2010/15, p. 14, para. 11 (Lathrop); ibid., p.28, para.9 (Ugalde)]. But that position
obtains only as between the parties to the 1977 Treaty, which Nicaragua is not. Costa Rica is not
limited, vis-à-vis Nicaragua, to the 1977 Treaty lines, though it is so limited vis-à-vis Colombia.
The role of agreement in maritime delimitation
11. Mr.President, Members of the Court, I turn to my second point ⎯ the cardinal rule of
agreement in maritime delimitation. The cardinal rule of maritime delimitation ⎯ 65years after - 21 -
the Truman Proclamation ⎯ is no different from what it was articulated as being when that
Proclamation was made. And I quote:
“In cases where the continental shelf extends to the shores of another State, or is
shared with an adjacent State, the boundary shall be determined by the United States
and the State concerned in accordance with equitable principles.” 5
In the common language of Articles 74 and 83 of the 1982 Convention, “delimitation . . . between
States with opposite or adjacent coasts shall be effected by agreement on the basis of international
law . . . in order to achieve an equitable solution”.
12. On Wednesday the Agent of Colombia traced the process of treaty making in the western
Caribbean. A remarkable series of agreements was concluded in the years between 1976 (Panama)
6
and 1993 (Jamaica) . As we have seen, Nicaragua’s gene ral response was silence, even though,
from 1980 it maintained a claim to the archipelago as a whole with all its features. These treaties
have been actively and extensively implemented as between the parties. For the most part there has
been no Nicaraguan protest over the treaties.
13. Yet now it is suggested that not merely is Colombia to be denied all rights and benefits of
this network of agreements ⎯ this of course is a matter going to the merits ⎯ but that the other
States parties to these treaties, specifically Costa Rica, have no legal interest ⎯ no interest of a
legal nature, in terms of Article62 ⎯ in their continuation. Articles74 and 83 of the
1982Convention lay emphasis on agreements publ ically concluded as a modality of maritime
boundary making, yet if Nicaragua is right, all th ose agreements are fragile and provisional in the
face of a radically inconsistent claim by one coastal State. In the circumstances it is Nicaragua, not
Costa Rica, which makes what counsel for Nicaragua described as a “sudden effort to throw the
entire historical and geographical record out the wi ndow in order to claim a new, expanded set of
interests” [CR 2010/13, p. 40, para. 38 (Reichler)].
Nicaragua’s fluctuating claims
14. Mr.President, Members of the Court, on Wednesday I showed the drastic changes to
Nicaragua’s maritime claim, as its itinerant claim line steadily headed east, enabling it to say to the
5
For text, see (1946) 40 AJIL Supp. 45.
6See CR 2010/14, p. 11, paras. 7-9 (Londoño). - 22 -
Court, as Mr.Reichler said again today, that its claim line was so far way from Costa Rica as to
exclude the possibility of any legal interest to in tervene. Yet it also plays hide-and-seek with the
Court; it seeks a claim line far away, but it hides the claim that that claim line bounds. Mr. Bundy
showed you this afternoon the two graphics of Ni caragua’s relevant area, each as extreme as the
7
other . I note that Nicaragua showed you neither of them, and when charged with impacting on
third States, it took refuge in a definitional disclaimer, as a spotted child in hide-and-seek might
take refuge in a tree: of course, it said, we ma ke no lateral claim against Costa Rica, we promise
we do not! 8
15. Nicaragua’s response to Costa Rica’s claim of overlapping potential maritime
entitlements is to assert that the Nicaraguan maps from which Costa Rica derives Nicaragua’s
“potential EEZ entitlement” “do not imply, under any possible reading, a claim to the entirety of
the areas thus roughly described” 9.
16. To this there are several points to be made. The first is one of simple denial: one
“possible reading” of these Nicaraguan maps, in a pl eading verified by Nicaragua’s Agent, is that
the areas depicted as arguably Nicaraguan are in fact claimed by Nicaragua. If it does not claim
them, then:
(a) Why does it not say so now and tell us what it does claim, instead of making negative and
equivocal statements (“do not imply . . . a claim to the entirety of the areas”)? It is now nearly
nine years since Nicaragua’s Application, and still it is coy as to the actual extent of its
maritime claims.
(b) And secondly, why does it depict in its pleadings areas as relevant on its side of its claim line,
which it apparently does not claim, more especially when its initial claim was in effect to an
equal share of that area?
17. A further point by way of rejoinder is th at to say an area is “roughly described” is no
excuse. “Roughly described” in a Reply? The function of a Memorial is to set out with precision
7
MN, fig. 1; RN, fig. 3.1.
8
CR 2010/13, p. 31, para. 11 (Reichler).
9WON, para 32. - 23 -
the extent and rationale for a claim, but Nicaragua’s Reply fails to do so. In fact, the Nicaraguan
claim apparently gets rougher as the case proceeds.
Issues of judicial policy in relation to intervention under Article 62
18. Mr.President, Members of the Court, I turn finally, and with great respect, to the basic
question of judicial policy presented in this case: what is the role of intervention in maritime
delimitation?
19. The first point is that Article 62 coexists in the Statute with Articles 59 and 63 and that
each of these has its own role to play. Colombia is second to none in its emphasis on the
importance of Article59. But the fact that the Court, acting in accordance with Article59, will
protect a third party which does not intervene ⎯ as Sao Tome and Principe did not intervene in
Cameroon/Nigeria ⎯ is no reason to discourage States whic h do comply with the requirements of
Article 62 of the Statute.
20. In this regard I note the tendency of Nicaragua to define the requirements for
intervention in terms which imply that these requirements can never be satisfied. Thus:
(a) If an applicant does not give enough detail, it has not demonstrated a legal interest to justify
intervention; if it gives a lot of detail, it is told that it has accomplished its purpose and the
10
intervention is without object .
(b) It is said that this Court cannot in the nature of things affect a third State in a maritime
11
delimitation . That, in effect, is to read Article59 as trumping Article62 ⎯ yet there is no
textual basis for this at all. The Nicaraguan Agent inveighs against what he calls universal
12
intervention , yet Nicaragua commits the opposite fallacy, exclusion of intervention by
definition. The truth lies in the middle, permission to intervene in appropriate cases.
I2n1. El Salvador/Honduras, Nicaragua made the mistake of imprecision in the
identification of interest. The once and future Agent, Mr.Argüello Gómez, then said “we have
considered it unnecessary to allege or claim a specific right inside the Gulf”; the whole passage is
10CR 2010/13, p. 31, para. 10 (Reichler).
11
CR 2010/13, p. 30, para. 8 (Reichler).
12CR 2010/13, p. 12, para. 9 (Arguello). - 24 -
13
cited by the Chamber at paragraph 60 of the Judgment , and the Chamber went on to say that “[a]
general apprehension is not enough” ( I.C.J. Reports 1990 , p.118, para. 62). Yet it is as well to
record that the trend of professional opinion is with Judge Oda’s separate opinion in that case 14. It
also rather favours the dissenters in the Italian inte rvention, one is tempted to call it a free ride, for
15
Italy, in Libya/Malta . In any event, that was a long time ago.
22. Among more recent cases, Professor Remiro explained Equatorial Guinea’s permission
to intervene in Cameroon/Nigeria as dependent on consent of the parties, and as embodied in a
16
mere order . But it is reasonable to infer ⎯ I put it no higher ⎯ that the parties were advised in
that case that the requirements of Article 62 were met; the Court certainly thought it did and it is
up to the Court to decide, whether it decides in a judgment or an order is immaterial.
23. The Philippines failure to get leave to intervene in Ligitan and Sipadan was, as you may
recall, due to an unfortunate excess of information; because counsel for the Philippines blithely
made it clear that they did not claim the two islands in dispute, they claimed more or less the rest of
the coastline of Sipadan but not those two islands. So that collateral attack in that case failed 17 .
24. Now, of course, each case depends on its own facts; as Rosenne of blessed memory
18
states: there is no general or unfettered discretion . But it is respectfully suggested that a State
which does demonstrate an interest of a legal nature in the subject of the dispute, which is acting
for a legitimate purpose and which does decide to intervene should be permitted to do so, if
necessary for specified purposes limited to the interest shown.
Mr.President, Members of the Court, this concludes my presentation. Mr.President,
I would ask you to call on the Agent, Ambassador Londoño, to conclude Colombia’s presentation.
1I.C.J. Reports 1990, p. 117, para. 60.
1Ibid., p. 140.
1Continental Shelf (Libyan Arab Jamahiriya/Malta), Applic ation for Permission to Intervene, Judgment, I.C.J.
Reports 1984, dissenting opinions, p. 71 (Vice-President Sette Camara), p.90 (Oda), p.115 (Ago), p.131 (Schwebel),
p. 148 (Jennings).
1CR 2010/13, p. 25, para. 22 (Remiro Brotons).
1Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Application to Intervene, Judgment,
I.C.J. Reports 2001, p. 603, paras. 81-83, and see declaration of Judge Kooijmans at p. 626.
18
Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005, Vol. III, 2006, p. 1452. - 25 -
The PRESIDENT: I thank Professor James Crawford for his presentation. I now invite His
Excellency Ambassador Mr. Julio Londoño Paredes, Agent of Colombia, to take the floor.
LMON. DOÑO:
1. Thank you, Mr.President. Mr.President, distinguished Judges, in its Application of
26February2010, as well as during these hearings , Costa Rica has requested the Court for
permission to intervene in the case concerning Territorial and Maritime Dispute (Nicaragua v.
Colombia), in order to inform the Court of its interests and rights that may be affected by a decision
of the Court in the instant case, pursuant to Article 62 of the Statute of the Court.
2. Colombia’s position in that regard was stated in the Written Observations submitted to the
Court on 26 May 2010, and has been elaborated during these present hearings.
3. The essential function of international treati es, particularly those concerning maritime and
land delimitations between States, is that of pr eserving peace and coexistence between the Parties,
as well as promoting co-operation and good neighbourliness. That is probably what Costa Rica and
Colombia have been doing for 33 years, with the 1977 Treaty.
4. In Colombia’s view Costa Rica possesses an interest of a legal nature that may be affected
by a decision in this case. The reasons for this ha ve been explained by counsel for Colombia. Let
me simply make some brief general points.
5. The 1977 Treaty between Colombia and Co sta Rica, in addition to establishing their
maritime boundary, also refers to their co-operation in the protection of resources; the preservation
of highly migrant species, taking into account the recommendations of appropriate international
organizations; the promotion of the exploitation and use of living resources through the exchange
of scientific and technical information and the form ation of mixed enterprises; the application of
measures to impede, reduce and control any po llution of the marine environment; and the
promotion of the development of international navigation in their respective areas.
6. The maritime delimitation treaties concluded by Colombia and the rest of the agreements
concluded by other States in the Caribbean have been the result of detailed negotiation processes,
applying the equidistance method and recognizing full effect to islands. - 26 -
7. Faithful observance of international treaties concluded by Colombia and other States in
the Caribbean ensure the region’s peace a nd stability. This compliance supports good
neighbourliness and co-operation between States.
Conclusions
8. Mr.President, in light of the consid erations stated during these proceedings, my
Government wishes to reiterate what it stated in the Written Observations it submitted to the Court,
to the effect that, in Colombia’s view, Costa Rica has satisfied the requirements of Article 62 of the
Statute and, consequently, that Colombia does not object to Costa Rica’s request for permission to
intervene in the present case as a non-party.
Mr. President, I wish to express, on my behalf and that of all the Colombian delegation, our
deepest appreciation to you, and to each of the di stinguished judges, for the attention you have
kindly given to our presentation.
May I also offer our thanks to the Court’s Registrar, his staff and to the interpreters.
Thank you, Mr. President.
The PRESIDENT: I thank you, Your Excellency Ambassador Julio Londoño Paredes, the
Agent of Colombia, for his conclusions. That c oncludes the second round of oral argument of
Colombia. I shall now give the floor to Judges Bennouna and Donoghue who have questions to the
Parties and Costa Rica. Judge Bennouna first, if you please.
Judge BENNOUNA:Je vous remercie, Monsieur le président. Ma question s’adresse au
Costa Rica.
Le CostaRica a indiqué à la Cour qu’il n’a to ujours pas ratifié le traité de délimitation
maritime dans la mer des Caraïbes, qu’il a signé av ec la Colombie, le 17 mars 1977, «dans le souci
de conserver de bonnes relations avec le Nicaragua , lequel n’a pas cessé de lui demander de n’en
rien faire tant que le différend n’a pas été réglé avec la Colombie» (traduction du CR 2010/12, du
11 octobre 2010, p. 14, par. 8, M. Brenes). - 27 -
Est-ce que le CostaRica a différé la ratifi cation du traité du 17mars1977, en attente du
jugement de la Cour au fond, dans l’affaire pendante devant elle, opposant le Nicaragua à la
Colombie ?
En d’autres termes, est-ce que le CostaRica attend le jugement de la Cour au fond pour
clarifier certaines hypothèses, mentionnées dans le même compte rendu (traduction du CR 2010/12,
p.28, par.13, M.Lathrop), hypothèses à partir d esquelles le traité de 1977 aurait été négocié et
signé ?
I am now going to put my question addressed to Costa Rica in English.
Costa Rica has indicated to the Court that it has still not ratified the maritime delimitation
treaty in the Caribbean Sea, which it signed with Colombia on 17 March 1977, “in consideration of
Nicaragua’s continuous requests that Costa Rica not ratify the treaty until the dispute with
Colombia has been resolved... [and] ac ting out of good neighbourliness” (CR 2010/12, p.22,
para. 8 (Brenes)).
Has Costa Rica postponed ratification of the Treaty of 17March1977 pending the Court’s
judgment on the merits, in the case before it, between Nicaragua and Colombia?
In other words, is Costa Rica waiting for the Court’s judgment on the merits for clarification
of certain notions mentioned in the same verbatim record (CR 2010/12, p. 35, para. 13 (Lathrop)),
on the basis of which the 1977 Treaty was supposedly negotiated and signed?
Thank you, Mr. President.
The PRESIDENT: Thank you, JudgeBennouna. Now I invite JudgeDonoghue to ask her
question. Judge Donoghue, you have the floor.
Judge DONOGHUE: Thank you, Mr.President. My question is addressed to Nicaragua,
and it is as follows:
Nicaragua has made written and oral subm issions to the Court regarding Costa Rica’s
Application to intervene. It has raised c oncerns about Costa Rica’s Application but its
submissions, with respect to this particular A pplication, do not expressly state that Nicaragua
opposes the granting of permission to intervene. Therefore, the question is: Does Nicaragua
oppose intervention by Costa Rica? Thank you, Mr. President. - 28 -
The PRESIDENT: Thank you, JudgeDonoghue. Now the written text of these questions
will be sent to the Parties and Costa Rica as soon as possible. The Parties and Costa Rica are
invited to provide their written replies to the qu estions no later than Friday 22October2010. I
would add that any comments a Party or Costa Rica may wish to make in accordance with
Article 72 of the Rules of Court on the replies by th e others, if there are any, must be submitted by
Friday 29 October 2010.
That brings us to the end of this week’s hear ings devoted to the oral argument of Costa Rica
and of the Parties, namely, Nicaragua and Colomb ia. The Court has taken note of the conclusions
submitted by Costa Rica and the Parties. I shoul d like thank the Agents, counsel and advocates for
their statements. In accordance with practice, I shall request the Agents of the Parties and the
Agent of Costa Rica to remain at the Court’s dis posal to provide any additional information it may
require. With this proviso, I now declare closed the oral proceedings on the Application of Costa
Rica for permission to interv ene in the case concerning the Territorial and Maritime Dispute
(Nicaragua v. Colombia). The Court will now retire for deliberation. The Agents of the Parties
and the Agent of Costa Rica will be advised in due course of the date on which the Court will
deliver its decision. As the Court has no other business before it today, the sitting is closed.
The Court rose at 5 p.m.
___________
Public sitting held on Friday 15 October 2010, at 4 p.m., at the Peace Palace, President Owada presiding, in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia) - Application by Costa Rica for permission to intervene