INTERNATIONAL COURT OF JUSTICE
_____________________________________________
ALLEGED VIOLATIONS OF SOVEREIGN
RIGHTS AND MARITIME SPACES IN THE
CARIBBEAN SEA
(NICARAGUA v. COLOMBIA)
PRELIMINARY OBJECTIONS OF
THE REPUBLIC OF COLOMBIA
VOLUME I
19 DECEMBER 2014 TABLE OF CONTENTS
Chapter 1.
INTRODUCTION...........................................................1
Chapter 2.
THE JUDGMENT OF 19 NOVEMBER 2012
AND ITS AFTERMATH.............................................. 11
A. Introduction.......................................................... 1
B. The Judgment of 19 November 2012...................12
C. Post-Judgment Facts Relevant to the
Preliminary Objections........................................18
(1) C olombia s denunCiation of the PaCt of
b ogotá ...........................................................18
(2) C olombia s aCtions neither Constitute
nor imPly an intention not to ComPly with
the Judgment ..................................................21
(3) t he Contiguous Zone ....................................33
Chapter 3.
FIRST OBJECTION: THE COURT LACKS
JURISDICTION UNDER THE PACT OF
BOGOTÁ RATIONE TEMPORIS................................41
A. Introduction..........................................................41
B. The Pact of BogotáAllows Parties Withdraw
from the Treaty by Unilateral Denunciation........43
(1) t he relevant features of the P aCt of
b ogotá ...........................................................43
(2) t he law and ProCedure of denunCiation
under the P aCto fb ogotá ............................48
C. Colombia’s Denunciation of the Pact of
Bogotá was in Accordance with the
Requirements of the Pact of Bogotá....................72
D. Response to points made in the Memorial...........74
E. Conclusion...........................................................83
Appendix to Ch. 3 The Pact of Bogotá........................85
iChapter 4.
SECOND AND THIRD OBJECTIONS: THE
COURT LACKS JURISDICTION BECAUSE
THERE WAS NO DISPUTE WITH RESPECT
TO NICARAGUA'S CLAIMS; AND BECAUSE
THE PRECONDITION IN ARTICLE II OF
THE PACT OF BOGOTÁ HAD NOT BEEN
FULFILLED ..................................................................91
A. Introduction ..........................................................91
B. The Relevant Time Frame ...................................94
C. The Second Objection: The Claims Referred
to in Nicaragua's Application Were Not the
Subject-Matter of a Dispute .................................95
D. The Third Objection: The Precondition of
Article II of the Pact of Bogotá was not met.
Meaning ofArticle II of the Pact of Bogotá ......101
(1) artiCle iiof theP aCt ofb ogotá imPoses
a Condition PreCedent to the ProCedures
established by thePaCt ...............................101
(2) the Condition PreCedent ConCerns the
Parties'oPinion............................................105
(3) the Condition PresuPPoses that the
Parties must be of the oPinion that
the Controversy “Cannot be settled by
direCt negotiations through the usual
diPlomatiC Channels”...................................106
(4) the nature and extent of the Condition
requiring that the disPute “Cannot be
settled” by negotiations............................. 111
E. The Parties' Bona Fide ConductAttests to the
Fact that, in their Opinion, their Maritime
Differences can be Settled by “Direct
Negotiations Through the Usual Diplomatic
Channels” ........................................................... 115
(1) the ConduCt of n iCaragua .......................... 116
(2) the ConduCt of C olombia............................122
F. Conclusion .........................................................129
ii Chapter 5.
FOURTH OBJECTION: THE COURT HAS NO
“INHERENT JURISDICTION” UPON WHICH
NICARAGUA CAN RELY IN THE FACE OF
THE LAPSE OF JURISDICTION UNDER THE
PACT OF BOGOTÁ ....................................................131
A. Introduction ........................................................131
B. The Statute of the Court Does not Support an
Inherent Jurisdiction ...........................................133
C. The Court's Case Law does not Support
Nicaragua's Theory of the Court's Inherent
Jurisdiction .........................................................137
(1) the eleCtriCity
(2) nuClear tests
(3) m ilitary and
and againstn
D. The Practice of the European Court of Human
Rights and of the Inter-American Court of
Human Rights does not Support Nicaragua's
Theory of Inherent Jurisdiction for the
International Court of Justice .............................143
(1) the euroPean
(2) the nter-a meriCan
rights...........................................................145
E. Conclusion .........................................................146
Chapter 6.
FIFTH OBJECTION: THE COURT HAS
NO POST-ADJUCATIVE ENFORCEMENT
JURISDICTION..........................................................149
A. Introduction ........................................................149
B. Nicaragua's Claim Seeks to Have the Court
Undertake a Post-Adjudicative Enforcement
or “Compliance Monitoring” Role over its
Judgments ..........................................................151
C. Neither the ICJ Statute nor the Pact of Bogotá
Grants the Court a Post-Adjudicative
Enforcement or “Compliance Monitoring”
Role Over Its Judgments....................................153
ii (1) t he statute of the iCJ does not grant
the Court an enforCement ComPetenCe ......153
(2) C onsent to JurisdiCtion under the PaCt
of bogotá does not inClude an assignment
of an enforCement role to the Court.........157
(3) n either the C ourt nor its PredeCessor
have ever assumed Powers , to suPervise
or to enforCe ComPlianCe with their
Judgments .....................................................158
(4) n iCaragua s relianCe on other
international regimes is inaPPosi.............159
D. Conclusion .........................................................163
Chapter 7.
SUMMARY OF PRELIMINARY OBJECTIONS ............165
SUBMISSION ..............................................................167
LIST OF ANNEXES....................................................169
iv Chapter 1
INTRODUCTION
1.1. Colombia respectfully affirms that the International Court
of Justice (the Court) cannot adjudicate on the matters brought
by Nicaragua's Application of 26 November 2013. In accordance
with Article 79 of the Rules of Court, this Pleading sets out
Colombia's preliminary objections to the jurisdiction of the
Court.
1.2. Nicaragua submitted its Memorial on 3 October 2014, in
accordance with the Co urt's Order of 3 February 2013. These
preliminary objections are submitted within the time period laid
down in Article 79, paragraph 1 of the Rules of Court.
1.3. The Application lodged by Nicaragua on
26 November 2013 concerns compliance with the Judgment of
19 November 2012 (hereinafter the “2012 Judgment”) . This is
clear from the submi ssions set forth in the Application,
1
Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v. Colombia), Memorial of Nicaragua,
2 Oct. 2014 (“Memorial of Nicaragua”).
Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicar agua v. Colombia), Application of the Republic of
Nicaragua instituting proceedings against the Republic of Colombia,
26 Nov. 2013 (“Application”), para. 22. This paragraph reads: “Nicaragua…
requests the Court to adjudge and declare that Colombia is in breach of:
- its obligation not to use or threaten to use force under
Article 2(4) of the UN Charter and international customary law;
- its obligation not to violate Nicaragua
delimited in paragraph 251 of the ICJ Judgment of
19 November 2012 as well as Nicaragua 's sovereign rights and
jurisdiction in these zones;
ivNicaragua has sought , without success, to reformulate and
distance itself from in the Memorial . The alternative basis for
jurisdiction claimed by Nicaragua, an alleged inherent power in
the Court to ensure compliance with its own judgments,
confirms that Nicaragua 's focus in instituting the present
proceedings was oncompliance with the Judgment.
1.4. In its Memorial, Nicaragua's submissions read:
“1. For the reasons given in the present Memorial,
the Republic of Nicaragua requests the Court to
adjudge and declare that, by its conduct, the
Republic of Colombia has breached:
a. its obligation not to violate Nicaragua's
maritime zones as delimited in paragraph 251
of the Court Judgment of 19 November 2012
as well as Nicaragua's sovereign rights and
jurisdiction in these zones;
b. its obligation not to use or threaten to use
force under Article 2(4) of the UN Charter and
international customary law;
c. and that, consequently, Col ombia has the
obligation to wipe out the legal and material
consequences of its internationally wrongful
acts, and make full reparation for the harm
caused by those acts.
- its obligation not to violate Nicaragua 's rights under customary
international law as reflected in Parts V and VI of UNCLOS;
- and that, consequently, Colombia is bound to comply with the
Judgment of 19 November 2012, wipe out the legal and
material consequences of its internationally wrongful acts, and
make full reparation for the harm caused by those acts.”
2 2. Nicaragua also requests the C
declare that Colombia must:
a. Cease all its continuing internationally
wrongful acts that affect or are likely to affect
the rights of Nicaragua.
b. In as much as possible, restore the situation
to the status quo ante, in
(i) revoking laws and regulations enacted by
Colombia, which a re incompatible with the
Court's Judgment of 19 November 2012
including the provisions in the Decrees 1946
of 9 September 2013 and 1119 of 17 June
2014 to maritime areas which have been
recognized as being under the jurisdiction or
sovereign rights of Nicaragua;
(ii) revoking permits granted to fishing
vessels operating in Nicaraguan waters; and
(iii) ensuring that the decision of the
Constitutional Court of Colombia of 2 May
2014 or of any other National Authority will
not bar compliance with the 19 November
2012 Judgment of the Court.
c. Compensate for all damages caused insofar
as they are not made good by restitution,
including loss of profits resulting from the loss
of investment caused by t
statements of Colombia 's highest authorities,
including the threat or use of force by the
Colombian Navy against Nicaraguan fishing
boats [or ships exploring and exploiting the
soil and subsoil of Nicaragua
shelf] and third state fishing boats licensed by
Nicaragua as well as from the exploitation of
Nicaraguan waters by fishing vessels
unlawfully ‘authorized’ by Colombia, with the
2 amount of the compensation to be determined
in a subsequent phase of the case.
d. Give appropriat e guarantees of non-
repetition of its internationally wrongful
acts.”3
1.5. It will be seen that by rephrasing its submissions in the
Memorial Nicaragua seeks, unsuccessfully, to distance the
submissions from the issue of compliance. Thus, in the
Memorial, paragraph 1 of the submissions no longer includes a
tiret reading “its obligation not to violate Nicaragua 's rights
under customary international law as reflected in Parts V and VI
of UNCLOS”, or the words “comply with the Judgment of
19 November 2012”. Paragraph 2 is entirely new. It is not
appropriate, in the present pleading, to enter into the merits. It is,
however, obvious that each of the obligations raised by
Nicaragua in the submissions flow s from the Judgment (see
Chapter 6 below).
***
1.6. This is not the place to respond to the many unfounded
allegations scattered throughout the Application and Memorial,
as this would take us into the merits. But three allegations must
be addressed at the outset. They are examined further in the
following chapters.
1.7. First, Nicaragua's repeated assertion that Colombia has
taken a decision not to comply with the Judgment is false. On
3
Square brackets in the original.
4 the contrary, Colombia accepts that the Judgment is binding
upon it in international law. The Colombian Constitutional
Court took the same position in its decision of 2 May 2014. The
question that has arisen in Colombia is how to i mplement the
2012 Judgment domestically, having regard to the relevant
constitutional provisions and the nature of Colombia
system with respect to boundaries.
1.8. Second, Nicaragua has not and could not provide the
slightest evidence of any unlawful threat of force contrary to
Article 2, paragraph 4 of the Charter of the United Nations. To
the contrary, Colombia has given instructions to its armed forces
to avoid any risk of confrontation and the situation has remained
calm. Nicaragua's attempt to demonstrate otherwise, in the
context of the present proceedings, stands in sharp contrast with
the constructive attitude of those officials from both countries
who work in the area in question, and indeed with the statements
of Nicaragua's own Head of State.
1.9. Third, Nicaragua had not raised any complaints with
Colombia, either in writing or orally, prior to filing the
Application with the Court on 26 November 2013 concerning
any of the matters now submitted to the Court: that is, the
alleged violation of Nicaragua's maritime zones as delimited by
the Court and sovereign rights and jurisdiction in these zones;
4 Annex 4: Judgment C
Unconstitutionality against Articles II (Partially), V (Partially), XXXI and L
of the Law No. 37 of 1961, Whereby the American Treaty on Pacific
Settlement (Pact of Bogotá) is Approved, 2 May 2014.
4the alleged threat or use of force; and, the allegation that
Colombia had engaged in internationally wrongful acts and had
to make full reparation for those alleged acts. Nor had any
representation been made regarding Decree 194 6 of 2013,
including the alleged granting of fishing permits; no r had the
issue of compensation for alleged damages or any corresponding
request of non-repetition of acts been raised. Colombia had been
given no indication, before the Application, that Nicaragua
considered that there was a legal dispute b etween the Parties on
these matters. Indeed, it was only some nine months after the
Application had been filed that Nicaragua, for the first time,
protested to Colombia about alleged prejudicial treatment
directed at Nicaraguan vessels, in a Note Verbale d ated
13 September 2014. Coming as it did just three weeks before
Nicaragua was scheduled to file its Memorial , the Note is a
transparent effort to manufacture a case where none exists.
1.10. As Colombia pointed out in its response to the Note , the 6
vast majority (some 85%) of the so -called “incidents” to which
Nicaragua refers in the Note are said to have occurred, based on
Nicaragua's own account, well after the institution of
proceedings and more than six months before the Note was sent.
Not o nly do the alleged events relate to a period when
Nicaragua's senior military officials were on record as saying
5 Annex 17: Note Verbale No. MRE/VM- DGAJST/457/09/14 from
the Ministry of Foreign Affairs of Nicaragua to the Ministry of Foreign
Affairs of Colombia, 13 Sept. 2014.
6 Annex 18: Note Verbale No. S -GAMA-14-071982 from the
Ministry of Foreign Affairs of Colombia to the Ministry of Foreign Affairs of
Nicaragua, 1 Oct. 2014.
6 that there were no problems with the Colombian Navy, but the
lateness in reporting the events strongly
them was understood by Nicaragua to be an “incident” at the
time. To the contrary, as confirmed by officials of both Parties,
the situation at sea remains calm; and good communication and
cooperation between the naval forces of both Parties attest to the
absence of any significant problems. Nicaragua 's claims to the
contrary for the purposes of the present proceedings are simply
groundless.
1.11. The Application relies on two bases of jurisdiction: Article
XXXI of the Pact of Bogotá; 7and “the jurisdiction of the Court
[lying] in its inherent power to pronounce on the actions
8
required by its Judgments”.
1.12. Colombia submits that neither basis invoked by Nicaragua
affords the Court jurisdiction in the present case, for the reasons
given in these preliminary objections.
1.13. Chapter 2 describes, so far as is relevant for the present
preliminary objections, the Judgment of 19 November 2012 in
the Territorial and Maritime Dispute (Nicaragua v. Colombia)
case and its aftermath.
1.14. Chapter 3 presents Colombia's first preliminary objection.
It demonstrates that the Court lacks jurisdiction under the Pact
of Bogotá because Colombia submitted its letter of denunciation
7
8 Application, paras. 16-17.
Ibid., para. 18.
6of the Pact of Bogotá on 27 November 2012 and, in accordance
with Pact Article LVI, the denunciation had immediate effect
with respect to any new application brought against Colombia. It
also responds to Nicaragua 's remarks on this question in its
Memorial.
1.15. Chapter 4 presents Colombia 's second and third
preliminary objections. It shows that there is no dispute between
Nicaragua and Colombia, and that t he Court lacks jurisdiction
because the precondition of Article II of the Pact of Bogotá w as
not met. Nicaragua has not established that on the date of the
Application (26 November 2013) there was a dispute between
the Parties. Nor has it shown tha t the Pa rties were of the
opinion, on the date of the Application, that the alleged
controversy “[could not] be settled by direct negotiations though
the usual diplomatic channels…”. 9
1.16. Chapter 5 shows that there is no basis in the law and
practice of the C ourt for Nicaragua's alternative assertion that
“the jurisdiction of the Court lies in its inherent power to
pronounce on the actions required by its Judgments.” 10
1.17. Chapter 6 explains that the Court lacks jurisdiction over
“disputes arising from non-compliance with its Judgments.” The
assertion of an inherent jurisdiction to ensure and monitor
compliance with the Judgment of the Court of 19 November
2012 has no basis in the law and practice of the Court.
9
10 Pact of Bogotá, Article II.
Application, para. 18.
8 1.18. Chapter 7 summarizes Colombia 's preliminary objections,
and is followed by Colombia's Submission.
8 Chapter 2
THE JUDGMENT OF 19 NOVEMBER 2012 AND
ITS AFTERMATH
Introduction
2.1. In accordance with Article 79, paragraphs 4 and 7 of the
Rules of Court, this C hapter sets out the factual and legal
background that is relevant to the preliminary objections. While
Colombia will not respond in this pleading to each allegation
contained in Nicaragua 's Application and Memorial, it is
essential for the case to be set i
Colombia's actions, including the conduct of its officials and the
statements of its President, are taken as a whole, it is apparent
that they neither constitute nor imply non- compliance with the
Court's 2012 Judgment, as Nicaragua alleges. Rather, the facts
demonstrate Colombia's respect for international law, coupled
with its need to take into account domestic law in implementing
the Judgment. It is, moreover, noteworthy that Nicaragua itself
never accused Colombia of failing to comply with the Judgment
prior to lodging its Application on 26 November 2013.
2.2. This Chapter is structured as follows. In Section
Colombia will recall a number of findings in the Court
Judgment of 19 November 2012 that have a bearing on its
jurisdictional objections. Section C
Judgment facts relating to (1 ) Colombia's denunciation of the
Pact of Bogotá; (2) Nicaragua's distorted account of Colombia's
position regarding the Judgment when viewed in the light of the
10 Chapter 2
THE JUDGMENT OF 19 NOVEMBER 2012 AND
ITS AFTERMATH
A. Introduction
2.1. In accordance with Article 79, paragraphs 4 and 7 of the
Rules of Court, this C hapter sets out the factual and legal
background that is relevant to the preliminary objections. While
Colombia will not respond in this pleading to each allegation
contained in Nicaragua 's Application and Memorial, it is
essential for the case to be set i
Colombia's actions, including the conduct of its officials and the
statements of its President, are taken as a whole, it is apparent
that they neither constitute nor imply non- compliance with the
Court's 2012 Judgment, as Nicaragua alleges. Rather, the facts
demonstrate Colombia's respect for international law, coupled
with its need to take into account domestic law in implementing
the Judgment. It is, moreover, noteworthy that Nicaragua itself
never accused Colombia of failing to comply with the Judgment
prior to lodging its Application on 26 November 2013.
2.2. This Chapter is structured as follows. In Section
Colombia will recall a number of findings in the Court
Judgment of 19 November 2012 that have a bearing on its
jurisdictional objections. Section C
Judgment facts relating to (1 ) Colombia's denunciation of the
Pact of Bogotá; (2) Nicaragua's distorted account of Colombia's
position regarding the Judgment when viewed in the light of the
10internal law requirements of Colombia, including a decision of
its Constitutional Court, and Nicaragua's own conduct; and (3)
Presidential Decree 1946 dealing w ith the contiguous zone s
generated by the Colombian islands which comprise the
Archipelago of San Andrés, Providencia and Santa Catalina. As
will be seen, none of Colombia 's actions constitute or imply
non-compliance with the Court's Judgment.
B. The Judgment of 19 November 2012
2.3. On 6 December 2001, Nicaragua instituted proceedings
against Colombia in respect of a dispute relating to title to
territory and maritime delimitation in the Caribbean Sea.
2.4. In its Application, Nicaragua requested the Court, inter
alia,
“to determine the course of the single maritime
boundary between the areas of continental shelf
and ex clusive 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.” 11
While Nicaragua 's formal submissions changed during the
course of the proceedings, throughout both the written and oral
phases Nicaragua requested the Court to make a full delimitation
11 Application, para. 8.
12internal law requirements of Colombia, including a decision of
its Constitutional Court, and Nicaragua's own conduct; and (3)
Presidential Decree 1946 dealing w ith the contiguous zone s
generated by the Colombian islands which comprise the
Archipelago of San Andrés, Providencia and Santa Catalina. As
will be seen, none of Colombia 's actions constitute or imply
non-compliance with the Court's Judgment.
The Judgment of 19 November 2012
2.3. On 6 December 2001, Nicaragua instituted proceedings
against Colombia in respect of a dispute relating to title to
territory and maritime delimitation in the Caribbean Sea.
2.4. In its Application, Nicaragua requested the Court, inter
alia,
“to determine the course of the single maritime
boundary between the areas of continental shelf
and ex clusive 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.” 11
While Nicaragua 's formal submissions changed during the
course of the proceedings, throughout both the written and oral
phases Nicaragua requested the Court to make a full delimitation
11 Application, para. 8.
12 14
measuring the breadth of the territorial sea.” The Court also
observed that both Parties agreed that the Alburquerque Cays,
East-Southeast Cays, Roncador, Serrana, Serranilla and Bajo
15
Nuevo were islands capable of appropriation, and it found,
based on the evidence, that a featur e referred to as QS 32
16
situated on Quitasueño also qualified as an island.
2.9. On the question of sovereignty, the Court held that the
Republic of Colombia has sovereignty over the islands at
Alburquerque, Bajo Nuevo, East -Southeast Cays, Quitasueño,
17
Roncador, Serrana and Serranilla (Colombia's sovereignty
over the islands of San Andrés, Providencia and Santa Catalina
having been settled by the 1928 Treaty between the Parties). 18
2.10. With respect to the question of maritime delimitation, the
Court was called upo n to effect a definitive and final
delimitation between the maritime entitlements of Colombia and
the continental shelf and exclusive economic zone of
Nicaragua. This was based on the overlap between Nicaragua's
entitlement to a continental shelf and exclusive economic zone
from its mainland coast and adjacent islands and Colombia 's
14 Territorial and Maritime Dispute (Nicaragua v. Colombia),
15dgment, I.C.J. Reports 2012, p. 624 at p. 641, para. 26.
16 Ibid., p. 642, para. 27.
Ibid., p. 645, paras. 37-38.
17 Ibid., p. 718, para. 251 (1).
18 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Preliminary Objections, Judgment, I.C.J. Reports 2007, p. 832 at p. 861,
para. 88.
19
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 624 at p. 671, para. 136.
14measuring the breadth of the territorial sea.” 14 The Court also
observed that both Parties agreed that the Alburquerque Cays,
East-Southeast Cays, Roncador, Serrana, Serranilla and Bajo
Nuevo were islands capable of appropriation, 15 and it found,
based on the evidence, that a featur e referred to as QS 32
situated on Quitasueño also qualified as an island. 16
2.9. On the question of sovereignty, the Court held that the
Republic of Colombia has sovereignty over the islands at
Alburquerque, Bajo Nuevo, East -Southeast Cays, Quitasueño,
17
Roncador, Serrana and Serranilla (Colombia's sovereignty
over the islands of San Andrés, Providencia and Santa Catalina
18
having been settled by the 1928 Treaty between the Parties).
2.10. With respect to the question of maritime delimitation, the
Court was called upo n to effect a definitive and final
delimitation between the maritime entitlements of Colombia and
the continental shelf and exclusive economic zone of
19
Nicaragua. This was based on the overlap between Nicaragua's
entitlement to a continental shelf and exclusive economic zone
from its mainland coast and adjacent islands and Colombia 's
14
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 624 at p. 641, para. 26.
15 Ibid., p. 642, para. 27.
16 Ibid., p. 645, paras. 37-38.
17 Ibid., p. 718, para. 251 (1).
18 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Preliminary Objections, Judgment, I.C.J. Reports 2007, p. 832 at p. 861,
19ra. 88.
Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 624 at p. 671, para. 136.
14necessary to determine the precise status of Roncador, Serrana,
the Alburquerque Cays and East-Southeast Cays. 25
2.12. As for Serranilla and Bajo Nuevo, the Court indicated that
it was not called upon to determine the scope of their maritime
entitlements.
2.13. The Court also indicated that any adjustment or shifting of
the provisional median line “must not have the effect of cutting
off Colombia from the entitlements generated by its islands in
the area to the east of those islands ” 26 where those islands
generate an entitlement to a continental shelf and exclusive
economic zone. And it went on to observe:
“In ad dition, the Nicaraguan proposal would
produce a disorderly pattern of several distinct
Colombian enclaves within a maritime space which
otherwise pertained to Nicaragua with unfortunate
consequences for the orderly management of
maritime resources, policing and the public order of
the oceans in general, all of which would be better
served by a simpler and more coherent division of
the relevant area.” 27
2.14. In paragraph (4) of the operative part of its Judgment, the
Court set out the line of the single maritime boundary delimiting
25 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012,, pp. 691-692, para. 180.
26 Ibid., p. 704, para. 216.
27 Ibid., p. 708, para. 230.
16necessary to determine the precise status of Roncador, Serrana,
the Alburquerque Cays and East-Southeast Cays. 25
2.12. As for Serranilla and Bajo Nuevo, the Court indicated that
it was not called upon to determine the scope of their maritime
entitlements.
2.13. The Court also indicated that any adjustment or shifting of
the provisional median line “must not have the effect of cutting
off Colombia from the entitlements generated by its islands in
the area to the east of those islands ”26 where those islands
generate an entitlement to a continental shelf and exclusive
economic zone. And it went on to observe:
“In ad dition, the Nicaraguan proposal would
produce a disorderly pattern of several distinct
Colombian enclaves within a maritime space which
otherwise pertained to Nicaragua with unfortunate
consequences for the orderly management of
maritime resources, policing and the public order of
the oceans in general, all of which would be better
served by a simpler and more coherent division of
the relevant area.” 27
2.14. In paragraph (4) of the operative part of its Judgment, the
Court set out the line of the single maritime boundary delimiting
25 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012,, pp. 691-692, para. 180.
26 Ibid., p. 704, para. 216.
27 Ibid., p. 708, para. 230.
16C. PosPost-Judgment Facts Relevant to the Preliminary
Objections
(1) COLOMBIA 'S DENUNCIATION OF THE P ACT OF B OGOTÁ
2.17. Colombia denounced the Pact of Bogotá on 27 November
2012. On that date, the Minister of Foreign Affairs of
Colombia transmitted to the depositary, the General Secretariat
of the Organization of American States (hereafter “OAS”) a
notification of denunciation pursuant to Article LVI of the
Pact.29
2.18. Article LVI of the Pact of Bogotá, which governs
withdrawal from the treaty,provides that:
“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
30
transmission of the particular notification.”
(Emphasis added)
29 Annex 15: Diplomatic Note GACIJ No. 79357 from the Minister of
Foreign Affairs of Colombia to the Secretary -General of the Org anization of
American States, 27 Nov. 2012.
30 Annex 33: Text of the Pact of Bogotá, in the Four Authentic
Languages (Spanish, English, Portuguese, and French).
18 Post-Judgment Facts Relevant to the Preliminary
Objections
(1) COLOMBIA 'S DENUNCIATION OF THE P ACT OF B OGOTÁ
2.17. Colombia denounced the Pact of Bogotá on 27 November
2012. On that date, the Minister of Foreign Affairs of
Colombia transmitted to the depositary, the General Secretariat
of the Organization of American States (hereafter “OAS”) a
notification of denunciation pursuant to Article LVI of the
Pact.29
2.18. Article LVI of the Pact of Bogotá, which governs
withdrawal from the treaty,provides that:
“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
30
transmission of the particular notification.”
(Emphasis added)
29 Annex 15: Diplomatic Note GACIJ No. 79357 from the Minister of
Foreign Affairs of Colombia to the Secretary -General of the Org anization of
American States, 27 Nov. 2012.
30 Annex 33: Text of the Pact of Bogotá, in the Four Authentic
Languages (Spanish, English, Portuguese, and French).
182.20. 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
withdrew from 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) presents its compliments to the High Contracting
Parties to the American Tr eaty on Pacific Settlement
(Pact of Bogotá) and to the other permanent mis sions to
the OAS and has the honor to advise them that, on
November 27, 2012, i t received from the Republic of
Colombia Note GACIJ No. 79357, at tached hereto,
through which it denounces said Treaty adopted on April
30, 1948 at the Ninth International Confe rence of
American States.” 32
La denuncia del Tratado Americano de Soluciones Pacíficas rige
a partir del día de hoy respecto de los procedimientos que se inicien
después del presente aviso, de conformidad con el párrafo
segundo del artículo LVI el cual señala que ‘La denuncia no
tendrá efecto alguno sobre los procedimientos pendientes
iniciados antes de transmitido el aviso respectivo’.” (Emphasis
added).
32 Annex 16: Note No. OEA/2.2/109/12 from the Secretariat for Legal
Affairs of the Department of International Law of the Organization of
American States to the High Contracting Parties to the American Treaty on
Pacific Settlement (Pact of Bogotá) and to the other Perm anent Missions to
the Organization of American States, 28 Nov. 2012The original text in
Spanish reads as follows:
“El Departamento de Derecho Internacional de la Secretaríae
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
202.20. 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
withdrew from 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) presents its compliments to the High Contracting
Parties to the American Tr eaty on Pacific Settlement
(Pact of Bogotá) and to the other permanent mis sions to
the OAS and has the honor to advise them that, on
November 27, 2012, i t received from the Republic of
Colombia Note GACIJ No. 79357, at tached hereto,
through which it denounces said Treaty adopted on April
30, 1948 at the Ni32h International Confe rence of
American States.”
La denuncia del Tratado Americano de Soluciones Pacíficas rige
a partir del día de hoy respecto de los procedimientos que se inicien
después del presente aviso, de conformidad con el párrafo
segundo del artículo LVI el cual señala que ‘La denuncia no
tendrá efecto alguno sobre los procedimientos pendientes
iniciados antes de transmitido el aviso respectivo’.” (Emphasis
added).
32 Annex 16: Note No. OEA/2.2/109/12 from the Secretariat for Legal
Affairs of the Department of International Law of the Organization of
American States to the High Contracting Parties to the American Treaty on
Pacific Settlement (Pact of Bogotá) and to the other Perm anent Missions to
the Organization of American States, 28 Nov. 2012The original text in
Spanish reads as follows:
“El Departamento de Derecho Internacional de la Secretaríae
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
20under international law, which entails its responsibility.” While
the Submissions set out in Nicaragua 's Memorial no longer
request the Court to rule that Colombia is bound to comply with
35
the Judgment, it is apparent that this is the leitmotif underlying
Nicaragua's claims.
2.24. In fact, Colombia has never taken any decision not to
comply with the Judgment despite the disappointment of certain
constituencies in Colombia with parts of it. On the contrary, both
its highest officials and its highest court (the Constitutional Court)
have made it clear that the Judgment is binding under
international law. However, in order t o give effect to the
Judgment in its domestic legal order (to make it “applicable”), it
is necessary for Colombia to comply with the requirements of
domestic law, in particular with Article 101, paragraph 2, of its
Constitution. Contrary to what Nicaragua would have the Court
believe, there is nothing exceptional in the distinction between the
position under international law and domestic law, particularly in
States following a dualist approach. Nor is it unusual that time is
needed to give effect to an inetrnational obligation, whether under
a treaty or a judgment.
2.25. Nicaragua quotes Colombian officials out of context and
selectivelyto paint a misleading picture. By way of example, in
paragraph 4 of its Application and again at paragraph 2.3 of its
Memorial, Nicaragua quotes selectively from President Santos’
34
35 Application, para. 19.
Memorial of Nicaragua, pp. 107-108.
22under international law, which entails its responsibility.” While
the Submissions set out in Nicaragua 's Memorial no longer
request the Court to rule that Colombia is bound to comply with
35
the Judgment, it is apparent that this is the leitmotif underlying
Nicaragua's claims.
2.24. In fact, Colombia has never taken any decision not to
comply with the Judgment despite the disappointment of certain
constituencies in Colombia with parts of it. On the contrary, both
its highest officials and its highest court (the Constitutional Court)
have made it clear that the Judgment is binding under
international law. However, in order t o give effect to the
Judgment in its domestic legal order (to make it “applicable”), it
is necessary for Colombia to comply with the requirements of
domestic law, in particular with Article 101, paragraph 2, of its
Constitution. Contrary to what Nicaragua would have the Court
believe, there is nothing exceptional in the distinction between the
position under international law and domestic law, particularly in
States following a dualist approach. Nor is it unusual that time is
needed to give effect to an inetrnational obligation, whether under
a treaty or a judgment.
2.25. Nicaragua quotes Colombian officials out of context and
selectivelyto paint a misleading picture. By way of example, in
paragraph 4 of its Application and again at paragraph 2.3 of its
Memorial, Nicaragua quotes selectively from President Santos’
34
35 Application, para. 19.
Memorial of Nicaragua, pp. 107-108.
22to Colombia's denunciation of the Pact of Bogotá the previous
38
day. What Nicaragua fails to acknowledge, however, is that
Colombia's actions were carried out in strict conformity with the
provisions of the Pact, as discussed in Section C (1 ) above, and
with international law. Moreover, Nicaragua again fails to cite a
passage from the President 's address which shows Colombia 's
intention to act in accordance with international law. Indeed, as
Colombia's President underscored with respect to the
denunciation: “This denunciation … does not prevent Colombia
from resorting to the mechanisms and recourses available to us
under international law in order to defend our interests and
protect the rights of the Colombians.” 39
2.28. Nicaragua's pleadings focus on the part of this second
Presidential address where President Santos said: “Land borders
and maritime boundaries between States should not be left to a
Court, but rather must be fixed by States through treaties or
40
mutual agreement.” Once more, Nicaragua fails to place the
citation in context. President Santos was simply referring to the
fact that it is common for States to delimit their boundaries by
agreement and that States have often excluded the possibility for
the International Court of Justice to deal with these matters – as
is the case with Norway, Canada, Australia and New Zealand. In
the view of the President: “These are States respectful of
international law, as Colombia is and has been”. A s the
38 Application, paras. 6-7 and Memorial of Nicaragua, para. 2.6.
39 Annex 8: Declaration of the President of the Republic of Colombia,
28 Nov. 2012. (Emphasis added)
40 Application, p. 5, para. 7 and Memorial of Nicaragua, para. 2.6.
24to Colombia's denunciation of the Pact of Bogotá the previous
38
day. What Nicaragua fails to acknowledge, however, is that
Colombia's actions were carried out in strict conformity with the
provisions of the Pact, as discussed in Section C (1 ) above, and
with international law. Moreover, Nicaragua again fails to cite a
passage from the President 's address which shows Colombia 's
intention to act in accordance with international law. Indeed, as
Colombia's President underscored with respect to the
denunciation: “This denunciation … does not prevent Colombia
from resorting to the mechanisms and recourses available to us
under international law in order to defend our interests and
protect the rights of the Colombians.” 39
2.28. Nicaragua's pleadings focus on the part of this second
Presidential address where President Santos said: “Land borders
and maritime boundaries between States should not be left to a
Court, but rather must be fixed by States through treaties or
40
mutual agreement.” Once more, Nicaragua fails to place the
citation in context. President Santos was simply referring to the
fact that it is common for States to delimit their boundaries by
agreement and that States have often excluded the possibility for
the International Court of Justice to deal with these matters – as
is the case with Norway, Canada, Australia and New Zealand. In
the view of the President: “These are States respectful of
international law, as Colombia is and has been”. A s the
38 Application, paras. 6-7 and Memorial of Nicaragua, para. 2.6.
39 Annex 8: Declaration of the President of the Republic of Colombia,
28 Nov. 2012. (Emphasis added)
40 Application, p. 5, para. 7 and Memorial of Nicaragua, para. 2.6.
24 Internal legal systems vary as regards the discharge
of international obligations.” 43
This is the particular case of States such as Colombia, which
apply in some respects a dualist system.
2.32. This principle runs like a thread through a number of
judgments of the Court. For example, i n Avena and Other
Mexican Nationals, the Court acknowledged the discretion of
the United States in determining how it would carry out its
obligations flowing from the Judgment. In the operative part of
that Judgment, the Court held that
“the United States of America [was] to provide, by
means of its own choosing, review and
reconsideration of the convictions and sentences of
the Mexican nationals...”. (Emphasis added)
2.33. Similarly, in Arrest Warrant of 11 April 2000, while the
Court found that Belgium was obliged to cancel the arrest
45
warrant, it could do so “by means of its own choosing.”
2.34. Many national legal systems do not accord direct domestic
effect to the judgments of international courts or tribunals.
Indeed, implementation of decisions of international courts,
including judgments of the International Court of Justice, often
depends on enacting specific legislation (including
43
44 R. Kolb, The International Court of Justice (2013), pp. 838-839.
Avena and Other Mexican Nationals (Mexico v . United States of
America), Judgment, I.C.J. Reports 2004, p. 12 at p. 73, para. 153 (11).
45 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v. Belgium), Judgment, I.C.J. Reports 2002, p. 3 at p. 33, para. 78 (3).
26 Internal legal systems vary as regards the discharge
of international obligations.” 43
This is the particular case of States such as Colombia, which
apply in some respects a dualist system.
2.32. This principle runs like a thread through a number of
judgments of the Court. For example, i n Avena and Other
Mexican Nationals, the Court acknowledged the discretion of
the United States in determining how it would carry out its
obligations flowing from the Judgment. In the operative part of
that Judgment, the Court held that
“the United States of America [was] to provide, by
means of its own choosing, review and
reconsideration of the convictions and sentences of
the Mexican nationals...”. (Emphasis added)
2.33. Similarly, in Arrest Warrant of 11 April 2000, while the
Court found that Belgium was obliged to cancel the arrest
45
warrant, it could do so “by means of its own choosing.”
2.34. Many national legal systems do not accord direct domestic
effect to the judgments of international courts or tribunals.
Indeed, implementation of decisions of international courts,
including judgments of the International Court of Justice, often
depends on enacting specific legislation (including
43
44 R. Kolb, The International Court of Justice (2013), pp. 838-839.
Avena and Other Mexican Nationals (Mexico v . United States of
America), Judgment, I.C.J. Reports 2004, p. 12 at p. 73, para. 153 (11).
45 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v. Belgium), Judgment, I.C.J. Reports 2002, p. 3 at p. 33, para. 78 (3).
262.36. For example, after the Court rendered its Judgment in
Land and Maritime Boundary between Cameroon and Nigeria,
Nigeria emphasized the need to amend its Constitution with
respect to the Bakassi Peninsula because it was comprised
within the definition of Nigerian territory in that instrument. It
took the parties to that case six years to arrange the transfer of
the territory to Cameroon and another five years during which a
transitional period applied. Significantly, at the end of the
transition period, the members of the Security Council
“praise[d] the Governments of Cameroon and
Nigeria for their commitment in honouring their
obligations to comply with the decisions of the
International Court of Justice and for the
responsible and peaceful way in which they ha48
resolved their differences on this matter”.
The response of the Security Council shows the latitude that
States are afforded in terms of the time needed to implement
judgments that implicate sensitive constitutional and political
issues.
2.37. This practice confirms the understanding that a State is not
always able nor expected to give immediate effect to judgments
of the Court in its domestic law; nor is it required or expected to
treat them as automatically self-executing internally. Thus, the
obligation to comply with a judgment may allow
implementation within a reasonable period of time, taking into
48 United Nations Security Council, Press Release SC/11094-
AFR/2680, 15 Aug. 2013.
282.36. For example, after the Court rendered its Judgment in
Land and Maritime Boundary between Cameroon and Nigeria,
Nigeria emphasized the need to amend its Constitution with
respect to the Bakassi Peninsula because it was comprised
within the definition of Nigerian territory in that instrument. It
took the parties to that case six years to arrange the transfer of
the territory to Cameroon and another five years during which a
transitional period applied. Significantly, at the end of the
transition period, the members of the Security Council
“praise[d] the Governments of Cameroon and
Nigeria for their commitment in honouring their
obligations to comply with the decisions of the
International Court of Justice and for the
responsible and peaceful way in which they ha48
resolved their differences on this matter”.
The response of the Security Council shows the latitude that
States are afforded in terms of the time needed to implement
judgments that implicate sensitive constitutional and political
issues.
2.37. This practice confirms the understanding that a State is not
always able nor expected to give immediate effect to judgments
of the Court in its domestic law; nor is it required or expected to
treat them as automatically self-executing internally. Thus, the
obligation to comply with a judgment may allow
implementation within a reasonable period of time, taking into
48 United Nations Security Council, Press Release SC/11094-
AFR/2680, 15 Aug. 2013.
282.39. It is because of this constitutional provision that the
President of Colombia, as well as the Minister of Foreign
Affairs, have consistently referred to the complexities involved
in the application of the Judgment given that boundaries must be
the subject of treaties under Colombian law. At no time have
they asserted that the Judgment is not binding under
international law, or will not be complied with. 53
2.40. Indeed, in pursuit of legal guidance , the President of
Colombia referred the question of the constitutionality of Law
37 of 1961, which incorporated the Pact of Bogotá into national
legislation, and whether Ar ticles XXXI and L of the Pact of
Bogotá violate Articles 3, 9 and 101 of the Constitution, to the
54
Constitutional Court.
53
Annex 47: Reuters, Colombia Court backs Santos in sea boundary
dispute with Nicaragua, 2 May 2014. As reported by Reuters, in “Colombia
Court Backs Santos in Sea Boundary Dispute with Nicaragua” on 2 May
2014: “Santos... has never said that he flatly rejected the I's ruling and
stated in the past that Colombia would not go to war to resolve the dispute.”
54 Annex 2: Actio Popularis of Unconstitutionality against Articles
XXXI and L of the Pact of Bogotá (Law No. 37 of 1961), Submitted by the
President of the Republic of Colombia to the Constitutional Court, 12 Sept.
2013. In this regard, it may be noted that Colombia 's dualist approach to
these matters is reflected in the fact that, when Colombia signed the Vienna
Convention on the Law of Treaties between States and International
Organizations and between International Organizations, it made the following
interpretative declaration:
“With respect to article 27, paragraph 1, Colombia specifies that it
accepts that a State may not invoke the provisions of its internal law
as justification for its failure to perform the treaty, on the
understanding that this rule does not exclude judicial control of the
constitutionality of laws adopting treaties.”
See UNTS Doc. A/CONF.129/15. Available at:
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtds
g_no=XXIII-3&chapter=23&lang=en#EndDec (Last visited 15 Dec.
2014)
302.39. It is because of this constitutional provision that the
President of Colombia, as well as the Minister of Foreign
Affairs, have consistently referred to the complexities involved
in the application of the Judgment given that boundaries must be
the subject of treaties under Colombian law. At no time have
they asserted that the Judgment is not binding under
international law, or will not be complied with. 53
2.40. Indeed, in pursuit of legal guidance , the President of
Colombia referred the question of the constitutionality of Law
37 of 1961, which incorporated the Pact of Bogotá into national
legislation, and whether Ar ticles XXXI and L of the Pact of
Bogotá violate Articles 3, 9 and 101 of the Constitution, to the
54
Constitutional Court.
53
Annex 47: Reuters, Colombia Court backs Santos in sea boundary
dispute with Nicaragua, 2 May 2014. As reported by Reuters, in “Colombia
Court Backs Santos in Sea Boundary Dispute with Nicaragua” on 2 May
2014: “Santos... has never said that he flatly rejected the I's ruling and
stated in the past that Colombia would not go to war to resolve the dispute.”
54 Annex 2: Actio Popularis of Unconstitutionality against Articles
XXXI and L of the Pact of Bogotá (Law No. 37 of 1961), Submitted by the
President of the Republic of Colombia to the Constitutional Court, 12 Sept.
2013. In this regard, it may be noted that Colombia 's dualist approach to
these matters is reflected in the fact that, when Colombia signed the Vienna
Convention on the Law of Treaties between States and International
Organizations and between International Organizations, it made the following
interpretative declaration:
“With respect to article 27, paragraph 1, Colombia specifies that it
accepts that a State may not invoke the provisions of its internal law
as justification for its failure to perform the treaty, on the
understanding that this rule does not exclude judicial control of the
constitutionality of laws adopting treaties.”
See UNTS Doc. A/CONF.129/15. Available at:
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtds
g_no=XXIII-3&chapter=23&lang=en#EndDec (Last visited 15 Dec.
2014)
30 the Charter of the United Nations, that provides
that each Member of the United Nations is
committed to comply with the decision of the
International Court of Justice in any case to which
58
it is a party.”
2.44. At the same time, the Constitutional Court also ruled that
decisions adopted by the ICJ in relation to boundaries are to be
incorporated into the national legal system through a duly
approved and ratified treaty under the terms of Article 101. 59 As
the Constitutional Court noted:
“In this sense, the authorities of Colombia have the
obligation to comply with Article 101, paragraph 2,
in the manner in which it has been interpreted by
this Tribunal, seeking recognition of the
effectiveness of the constitutiona l provision in a
way that is consistent with60he duty to comply with
international obligations.”
2.45. In sum, the Constitutional Court ruled that Article XXXI
of the Pact of Bogotá was constitutional, on the understanding
that decisions of the ICJ with respect to boundaries are to be
incorporated into domestic law in the manner provided for under
the terms of Article 101 of the Constitution. The first operative
paragraph reads as follows:
“First: To declare Article XXXI of Law 37 of 1961
‘approving the America n Treaty on Pacific
Settlement (Pact of Bogotá)’ CONSTITUTIONAL,
in the understanding that the decisions of the
58 Annex 4, para. 9.10.
59 Ibid., paras. 9.9- 9.11.
60 Ibid., para. 9.12.
32 the Charter of the United Nations, that provides
that each Member of the United Nations is
committed to comply with the decision of the
International Court of Justice in any case to which
58
it is a party.”
2.44. At the same time, the Constitutional Court also ruled that
decisions adopted by the ICJ in relation to boundaries are to be
incorporated into the national legal system through a duly
approved and ratified treaty under the terms of Article 101. 59As
the Constitutional Court noted:
“In this sense, the authorities of Colombia have the
obligation to comply with Article 101, paragraph 2,
in the manner in which it has been interpreted by
this Tribunal, seeking recognition of the
effectiveness of the constitutiona l provision in a
way that is consistent with60he duty to comply with
international obligations.”
2.45. In sum, the Constitutional Court ruled that Article XXXI
of the Pact of Bogotá was constitutional, on the understanding
that decisions of the ICJ with respect to boundaries are to be
incorporated into domestic law in the manner provided for under
the terms of Article 101 of the Constitution. The first operative
paragraph reads as follows:
“First: To declare Article XXXI of Law 37 of 1961
‘approving the America n Treaty on Pacific
Settlement (Pact of Bogotá)’ CONSTITUTIONAL,
in the understanding that the decisions of the
58 Annex 4, para. 9.10.
59 Ibid., paras. 9.9- 9.11.
60 Ibid., para. 9.12.
32contiguous zone, the continental shelf, the exclusive economic
63
zone” of Colombia.
2.49. The baselines from which to measure Colombia 's 12-mile
territorial sea are established in Articles 4, 5 and 6 of Law
No. 10 of 1978. These baselines also serve, according to
customary international law, as the basis for measuring
Colombia's contiguous zone.
2.50. While Colombia's entitlement to a contiguous zone around
its islands was fully addressed by the Parties in the case
concluded with the Judgment of 19 November 2012, its
delimitation was not an issue addressed or decided by the Court.
2.51. In its Rejoinder, for example, Colombia explained that
each of its islands in dispute in the case generated, inter alia ,
64
contiguous zone entitlements . The fact that the contiguous
zones around Colombia 's islands also significantly overlapped
with each oth er was described at paragraph 8.68 of the
65
Rejoinder and graphically depicted on Figures R -7.1 and R-
66
8.3 to that pleading.
67
2.52. As can be seen on Figure R -7.1 the proximity of
Colombia's islands to each other is such that, moving from south
63
64 Annex 1. (Emphasis added)
Territorial and Maritime Dispute (Nicaragua v . Colombia),
Rejoinder of Colombia (Vol. I), para. 5.34.
65 Ibid., p. 239.
66 Ibid., p. 307.
67 Ibid., p. 239.
34contiguous zone, the continental shelf, the exclusive economic
63
zone” of Colombia.
2.49. The baselines from which to measure Colombia 's 12-mile
territorial sea are established in Articles 4, 5 and 6 of Law
No. 10 of 1978. These baselines also serve, according to
customary international law, as the basis for measuring
Colombia's contiguous zone.
2.50. While Colombia's entitlement to a contiguous zone around
its islands was fully addressed by the Parties in the case
concluded with the Judgment of 19 November 2012, its
delimitation was not an issue addressed or decided by the Court.
2.51. In its Rejoinder, for example, Colombia explained that
each of its islands in dispute in the case generated, inter alia ,
64
contiguous zone entitlements . The fact that the contiguous
zones around Colombia 's islands also significantly overlapped
with each oth er was described at paragraph 8.68 of the
65
Rejoinder and graphically depicted on Figures R -7.1 and R-
66
8.3 to that pleading.
67
2.52. As can be seen on Figure R -7.1 the proximity of
Colombia's islands to each other is such that, moving from south
63
64 Annex 1. (Emphasis added)
Territorial and Maritime Dispute (Nicaragua v . Colombia),
Rejoinder of Colombia (Vol. I), para. 5.34.
65 Ibid., p. 239.
66 Ibid., p. 307.
67 Ibid., p. 239.
34by Presidential Decree No. 1946 of 9 September 2013, as
amended by Presidential Decree No. 1119 of 17 June 2014.
2.55. These decrees implement Colombia's Constitution of 1991
71
and Law No. 10 of 1978, and are based on the territorial,
cultural, administrative and political unity of the Archipelago of
San Andrés, Providencia and Santa Catalina established as a
Department according to Article 309 of Colombia 's 1991
72
Constitution. They are also explicit in stating that their
provisions have to be understood and applied in conformity with
73
international law.
2.56. As stated by Presid ent Santos on 9 September 2013, the
choice made by Colombia in Presidential Decree No. 1946 of
2013 was that of proclaiming “ an Integral Contiguous Zone,
which joins together the contiguous zones of all our islands and
74
keys in the Western Caribbean Sea.”
2.57. The shape of the unified Contiguous Zone includes the
overlapping contiguous zones of the islands and cays of the
71
Annex 3: Presidential Decree No. 1946 of 2013, Territorial Sea,
Contiguous Zone and Continental Shelf of the Colombian Islands Territories
72 the Western Caribbean, 9 Sept. 2013, Considerations 7-9.
Ibid., Consideration 3. “Department” being equivalent to the first
political division, i.e., state/province level.
73 Annex 5: Presidential Decree No. 1119 of 2014, Amendment to the
Presidential Decree No. 1946 of 2013, Territorial Sea, Contiguous Zone and
Continental Shelf of the Colombian Islands Territories in the Western
Caribbean, 17 June 2014, Article 3.
74
Annex 12: Declaration of the President of the Republic of Colombia,
9 Sept. 2013. See also, Annex 9 of the Application and Annex 4 of the
Memorial of Nicaragua. The Spanish original is as follows: “declaramos la
existencia de una Zona Contigua Integral, a través de la cual unimos las
zonas contiguas de todas nuestras islas y cayos en el mar Caribe Occidental.”
36by Presidential Decree No. 1946 of 9 September 2013, as
amended by Presidential Decree No. 1119 of 17 June 2014.
2.55. These decrees implement Colombia's Constitution of 1991
71
and Law No. 10 of 1978, and are based on the territorial,
cultural, administrative and political unity of the Archipelago of
San Andrés, Providencia and Santa Catalina established as a
Department according to Article 309 of Colombia 's 1991
72
Constitution. They are also explicit in stating that their
provisions have to be understood and applied in conformity with
73
international law.
2.56. As stated by Presid ent Santos on 9 September 2013, the
choice made by Colombia in Presidential Decree No. 1946 of
2013 was that of proclaiming “ an Integral Contiguous Zone,
which joins together the contiguous zones of all our islands and
74
keys in the Western Caribbean Sea.”
2.57. The shape of the unified Contiguous Zone includes the
overlapping contiguous zones of the islands and cays of the
71
Annex 3: Presidential Decree No. 1946 of 2013, Territorial Sea,
Contiguous Zone and Continental Shelf of the Colombian Islands Territories
72 the Western Caribbean, 9 Sept. 2013, Considerations 7-9.
Ibid., Consideration 3. “Department” being equivalent to the first
political division, i.e., state/province level.
73 Annex 5: Presidential Decree No. 1119 of 2014, Amendment to the
Presidential Decree No. 1946 of 2013, Territorial Sea, Contiguous Zone and
Continental Shelf of the Colombian Islands Territories in the Western
Caribbean, 17 June 2014, Article 3.
74
Annex 12: Declaration of the President of the Republic of Colombia,
9 Sept. 2013. See also, Annex 9 of the Application and Annex 4 of the
Memorial of Nicaragua. The Spanish original is as follows: “declaramos la
existencia de una Zona Contigua Integral, a través de la cual unimos las
zonas contiguas de todas nuestras islas y cayos en el mar Caribe Occidental.”
36baselines according to Articles 3 and 6 (as modified in 2014) of
the Decree.
2.60. Importantly, the Decree claims Colombia 's right to
sanction infringements of laws and regulations concerning the
abovementioned matters, provided that such infringements are
committed in its insular territories or in their territorial sea. 79
This corresponds to customary international law.
2.61. Conformity with international law is conf irmed in the text
of the first D ecree (2013), and reiterated by the amendment to
80 81
Article 1(3) and the addition of a last paragraph to Article 5,
both made in the second Decree (2014).
2.62. Thus, Article 1(3) as amended specifies that Colombia
exercises jurisdiction and sovereign rights over the maritime
spaces different from the territorial sea “in the terms prescribed
by international law… in what corresponds to each of them .” It
also specifies that: “In those spaces Colombia exercises historic
rights in conformity with international law .”82 And the last
paragraph added to Article 5 states that the application of the
provisions on the exercise of Colom bia's faculties of
enforcement and control in t he Integral Contiguous Zone “will
83
be carried out in conformity with international law.”
79 Annex 3, Article 5, para. 3(b).
80 Annex 5, Article 1.
81 Ibid., Article 3.
82 Ibid., Article 1.
83 Ibid., Article 3.
38baselines according to Articles 3 and 6 (as modified in 2014) of
the Decree.
2.60. Importantly, the Decree claims Colombia 's right to
sanction infringements of laws and regulations concerning the
abovementioned matters, provided that such infringements are
committed in its insular territories or in their territorial sea. 79
This corresponds to customary international law.
2.61. Conformity with international law is conf irmed in the text
of the first D ecree (2013), and reiterated by the amendment to
80 81
Article 1(3) and the addition of a last paragraph to Article 5,
both made in the second Decree (2014).
2.62. Thus, Article 1(3) as amended specifies that Colombia
exercises jurisdiction and sovereign rights over the maritime
spaces different from the territorial sea “in the terms prescribed
by international law… in what corresponds to each of them .” It
also specifies that: “In those spaces Colombia exercises historic
rights in conformity with international law .”82 And the last
paragraph added to Article 5 states that the application of the
provisions on the exercise of Colom bia's faculties of
enforcement and control in t he Integral Contiguous Zone “will
83
be carried out in conformity with international law.”
79 Annex 3, Article 5, para. 3(b).
80 Annex 5, Article 1.
81 Ibid., Article 3.
82 Ibid., Article 1.
83 Ibid., Article 3.
3840 Chapter 3
FIRST OBJECTION: THE COURT LACKS
JURISDICTION UNDER THE PACT OF BOGOTÁ
BOGOTRATIONE TEMPORISS
A. Introduction
3.1. In instituting these proceedings, Nicaragua has put
forward, as its principal basis of jurisdiction, Article XXXI of
the Pact of Bogotá. On the face of its Application,several issues
do not appear to be in contention: first, that Nicaragua is a party
to the Pact; second, that Colombia, which had been a party to
the Pact, lawfully and
27 November 2012, in accordance with its terms; third, that
Colombia's notification of denunciation
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 of difference is 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 will cease to be in force for Colombia after 27 November
84
2013.” In doing so, Nicaragua errs in its interpretation of
Article LVI.
3.2. The conclusion in 1948 of an American treaty on pacific
84 Application, para. 17.
40settlement, 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 lightly: the Pact contained a number of important
safeguards, one of which was the right to terminate that
acceptancewithimmediate 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 OAS 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 26 November 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 jurisdictionover 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 Article
LVI in accordance with the general rule for the interpretation of
treaties in Article 31 of the Vienna Convention on the Law of
42 85
Treaties (VCLT). Section B
supplementary means that are reflected in Article 32 of the
VCLT, for the purpose of confirming the meaning reached by
application of the general rule. Section C discusses the
denunciation of the Pact of Bogotá by Colombia and the practice
of the Parties to the Pact as regards denunciation of the Pact
under Article LVI thereof. Section D responds to the points
concerning jurisdiction under Article XXXI made by Nicaragua
in its Memorial . Section E concludes that the Court does not
have jurisdiction in respect of the present proceedings, since
they were instituted after the transmission of Colombia's
notice of denunciation of the Pact.
B. The Pact of Bogotá Allows Parties to Withdraw from the
Treaty by Unilateral Denunciation
Treaty by Unilateral Denunciation
(1) T HE RELEVANT FEATURES OF THE
(a)ThestructureofthePact ofBogotá
3.5. The Pact of Bogotá was concluded on 30 April 1948
during the Ninth International Conference of American States
(the conference at which the Charter of the OAS was also
86
adopted). There are currently 14
85 1155 UNTS 331.
86 The Pact has been considered by the Court at the jurisdictional
phases of earlier cases: Border and Transborder Armed Actions (Nicaragua
v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988,
p. 69; Territorial and Maritime Dispute (Nicaragua v. Colombia),
Preliminary Objections, Judgment, I.C.J. Reports 2007, p. 832. The Pact was
also the basis for the Court's jurisdiction in Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
Honduras), Judgment, I.C.J. Reports 2007, p. 659; Dispute Regarding
42Members of the 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:
• ChapterOne. GeneralObligationsto Settle
DisputesbyPacific Means.
• ChapterTwo. Proceduresof Good Offices and
Mediation.
• ChapterThree. Procedureof Investigationand
Conciliation.
• ChapterFour. JudicialProcedure
• ChapterFive. Procedureof Arbitration
• ChapterSix. Fulfilmentof Decisions
• ChapterSeven. AdvisoryOpinions.
• ChapterEight. 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
Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J.
Reports 2009, p. 213; Maritime Dispute (Peru v. Chile), Judgment, 27 Jan.
2014. In addition to the present proceedings, Nicaragua has invoked the Pact
as a principal basis of jurisdiction in the case concerning the Construction of
a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)
and in the Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan
Coast (Nicaragua v. Colombia) case. On 18 Nov 2010 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 on 24 Feb 2014 in the Maritime Delimitation in the
Caribbean Sea and the Pacific Ocean case.
44 example, the non-use of force;
international controversies by regional procedures before
referring them to the Security Council;
exercise diplomatic representation with regard to matters that
are within the domestic jurisdiction of a State party;
exercise of the right of individual or collective self-defense, as
provided for in the Charter of the United Nations;
fulfilment of judgments and awards;
resorting to advisory opinions. 92
provisions.
(b)ThePact'sjurisdictionalprovision
3.8. Article XXXI of the Pact, upon which Nicaragua relies,
provides:
“In conformity with Article 36, paragraph 2, of the
Statute of the International Court of Justice, the
High Contracting Parties
recognize, in relation to any other American State,
the jurisdiction of the Court as compulsory ipso
facto, without the necessity of any special
agreement so long as the present Treaty is in force,
in all disputes of a juridical nature that arise among
themconcerning:
a) The interpretation of a treaty;
b) Anyquestion of international law;
c) The existence
87 Article I.
88 Article II.
89 Article VII.
90 Article VIII.
91 Article L.
92 Article LI.
44 established, would constitute the breach of an
internationalobligation;
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 undertake by depositing
with the United Nations Secretary-General a declaration of
acceptance of compulsory jurisdiction under Article 36,
paragraphs2 and 4 of the Statute.” 93
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, cannot be settled by direct
93
Border and Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69 at p. 85,
para. 36.
46 negotiations through the usual diplomatic channels.”
restriction is contained in Article II. Other restrictions are
contained in Article IV (other procedures initiated),
(matters which by their
96
jurisdiction) and Article VI (matters already settled between
the parties, by arbitral award, by decision of an international
court or governed by earlier treaties).
specifically mentions that if the Court, for reasons stated in
Articles V, VI and VII of the Pact, declares itself without
jurisdiction, suchcontroversyshall be declared ended.
3.11. Yet another such restriction, central to the present case,
is ratione temporis; it is contained in the last sentence (second
paragraph)of Article LVIof the Pact (the denunciation clause).
94
This restriction was discussed by the Court in Border and
Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 1988, p. 69 at p. 85, para. 36.
95 Article IV reads: “Once any pacific procedure has been initiated,
whether by agreement between the parties or in fulfillment of the present
Treaty or a previous pact, no other procedure may be commenced until that
96ocedure is concluded.”
Article V reads: “The aforesaid procedures may not be applied to
matters which, by their nature, are within the domestic jurisdiction of the
state. If the parties are notin agreement as to whether the
concerns a matter of domestic jurisdiction, this preliminary question shall be
submitted to decision by the International Court of Justice, at the request of
97y of the parties.”
Article VI reads: “The aforesaid procedures, furthermore, may not
be applied to matters already settled by arrangement between the parties, or
by arbitral award 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.”
98 See Border and Transborder Armed Actions (Nicaragua
Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988,
p. 69 at pp. 84-85, para. 35.
46(2) THE LAW AND PROCEDURE OF DENUNCIATION UNDER THE
PACTOF B OGOTÁ
(a) Theprovision:Article LVI, first and second paragraphs
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 ContractingParties.
The denunciation shall have no effect with respect
to pending procedures initiated prior to the
transmission of the particular notification.”
(Emphasisadded)
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 specifically addresses the
effect of notice of denunciation on the “procedures” under
Chapters Two to Five of the Pact. The second paragraph of
Article LVIreads:
48 “The denunciation shall have no effect with respect
to pending procedures initiated prior to the
transmission of the particular
(Emphasisadded)
The equally authentic French, Portuguese and Spanish
texts are to the same effect:
“La dénonciation n’aura aucun effet sur les
procédures en cours entamées avant la transmission
de l’avisen question.”
“A denúncia não terá efeito algum sôbre os
processos pendentes e iniciados antes
transmitido o aviso respectivo.”
“La denuncia no tendrá efecto alguno sobre los
procedimientos pendientes iniciados antes de
transmitido el aviso respectivo.”
((b)The ordinary meaning of Article LVI in its context and in
ththe light of its object and purpose: judicial procedurbcannot be
initiaafterthetransmissionofthenotificationofdenunciati denunciation
3.14. The rules of interpretation in Articles 31 to 33 of the
VCLT reflect customary international law and as such are
applicable to the interpretation of the Pact of Bogotá. Under
Article 31(1),
“[a] treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the
light of its objectand purpose.” (Emphasis added)
99
Annex 33.
483.15. Article LVI of the Pact is to be interpreted in accordance
with the rules set forth in Articles 31 to 33 of the VCLT.
Article 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,” as explained in more detail
in section D below.
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 notice 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
50 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
confirmed by the travaux préparatoires which will be addressed
in subsection(c)below.
3.18. As noted above, the Pact has eight chapters. The
reference to pending “procedures” in the second paragraph of
Article LVI refers to four of them: Chapter Two (Procedures of
Good Offices and Mediation), Chapter Three (Procedure of
Investigation and Conciliation), Chapter Four (Judicial
Procedure) and Chapter Five (Procedure of Arbitration). All of
these Chapters deal with specific procedures that may be initiated
against a State Party during the pendency of its consent to such
initiation.
3.19. The effect of denunciation under Article LVI must be
understood taking account of both of its paragraphs, each
addressing specific issues affected by denunciation.
paragraph provides that denunciation takes effect with one year's
notice as regards the Pact as a whole, which – as has been seen
101
above – includes important
unconnected to any specific procedure that may be initiated
under the Pact. The second paragraph of Article LVI, as
explained above, deals specifically with procedures that can be
initiated under the Pact. Chapters Two, Three, Four and Five
deal with these procedures. The second paragraph protects
100
101 VCLT, Article 31(1).
See para. 3.7 above.
50procedures that were initiated before the transmission of
notification of denunciation and hence are pending at that
moment. Efforts to initiate any of the procedures in Chapters
Two, Three, Four and Five after the date of notification fall
outside the protective mantle of the second paragraph of
Article LVIand are devoid of legaleffect.
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 afterthe 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
52 subsequent withdrawal of
whether given in the compromissory clause of a treaty or
by declarationunder Article36(2) of the Statute.
• Any proceedings which a party to the Pact (whether the
denouncing State or any other party) may try to
commence after transmission of the notification of
denunciation fall outside the denouncing State's consent
to jurisdiction, which terminates with immediate effect
upon transmissionof the notification.
3.22. Thus, Article LVI provides two different dates for the
effect of denunciation. The effect for the procedures under
Chapters Two, Three, Four and Five is immediate, while the
effect for the other undertakings and obligations of the Pact
occurs onlyone yearafter the date of denunciation.
3.23. This interpretation results clearly from the application of
the general rule on the interpretation of treaties of Article 31 of
102
As Rosenne says, “once a State has given its consent to the referral
of a dispute to the Court, it may not withdraw that consent during the
pendency of the proceedings for which it was given if another State has acted
on the basis of that consent and has instituted proceedings before the Court.”
In: S. Rosenne, The Law and Practice of the International Court, 1920-2005,
(2006), Vol. II, p. 569; see also pp. 785-789, 939-945. The case-law includes
Nottebohm, Preliminary Objection, Judgment, I.C.J. Reports 1953, p. 111 at
p. 123; Right of Passage over Indian Territory, Preliminary Objections,
Judgment, I.C.J. Reports I957, p. 125 at p. 142; Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 392 at p.
416, para. 54; Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J.
Reports 1986, p. 14 at p. 28, para. 36; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 412 at p. 438,
para. 80.
52the 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 declarations 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. 103For example, the
United Kingdom's declaration of 5 July 2004 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 givento terminate the acceptance…
2. The Government of the United Kingdom also
reserve the right at any time, by means of a
103 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: C.
Tomuschat, “Article 36”, in: Zimmermannet al (eds.), The Statute of the
International Court of Justice: A Commentary (2012), pp. 678-680.
Tomuschat refers to denunciation with immediate effect as “the price to
be paid for adherenceby States to the optional clause. And it corresponds to
the logic of a jurisdictionalsystem which is still largely based on unfettered
sovereignty.” p. 678.
54 notification addressed to the Secretary-General of
the United Nations, and with effect as from the
moment of such notification, either to add to,
amend or withdraw any of
reservations,or anythat may hereafter be added.”
3.24. A comparison between the language of the second
paragraph of Article LVI and denunciation provisions in some
other multilateral treaties
procedures also reveals that it is not unusual for treaties to
separate the effect of denunciation in general from the effect on
procedures availableunder the treaty. Thus, the way in which the
Parties to the Pact drafted the second paragraph of Article LVI,
in order to clearly distinguish between pending procedures that
had been initiated prior to the denunciation and those initiated
after the denunciation is, in no sense, unusual.
3.25. The Convention on the Recognition and Enforcement of
Foreign Arbitral Awards of 10 June 1958
Convention”) deals with the effect of denunciation in
Article XIII, consisting of three paragraphs. Paragraph (1)
deals with the effect of denunciation on the New York
Convention. Paragraph (3) deals specifically with pending
proceedings, indicating precisely the date of the institution of
such proceedings:
“1. ... Denunciation shall take effect one year after
the date of receipt of the notification by the
Secretary-General.
(...)
104
330 UNTS38.
54 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.” (Emphasis added)
For the New York Convention, the relevant date is the date on
which the denunciation takes effect. Note how precisely the
New YorkConvention specifies that date in Article XIII(1).
3.26. Similarly, the Additional Protocol to the European
Convention on State Immunity of 16 May 1972 105 provides
in Article 13(2) that:
“Such denunciation shall take effect six months
after the date of receipt by the Secretary-General of
such notification . 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.”(Emphasisadded)
3.27. Article 31(2) of the United Nations Convention on
Jurisdictional Immunities of States and Their Property of
106
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:
105
Additional Protocol to the European Convention on State Immunity
106sel, 16 May1972), Councilof Europe, 1495 UNTS 182.
UN Doc. A/RES/59/38.
56 “Denunciation shall take effect one year following
the date on which notification is received by the
Secretary-General of the United Nations. The
present Convention shall, however, continue to
apply to any question of jurisdictional immunities
of States and their property arising in a proceeding
instituted against a State before a court of another
State prior to the date on which the denunciation
takes effect for any of the States concerned.”
(Emphasisadded)
3.28. In the same vein, the European Convention on
Laundering, Search, Seizure and Confiscation of the Proceeds
from Crime of 8 November 1990
to the International Covenant on Civil and Political Rights of
16 December 1966 108 provide for
107 European Convention on
Confiscation of the Proceeds from Crime (Strasbourg, 8 November 1990),
Council of Europe, ETS No. 141, Article 43 – Denunciation:
“1. Any Party may, at any time, denounce this Convention by means
of a notification addressed to the Secretary General of the Council of
Europe.
2. Such denunciation shall become effective on the first day of the
month following the expiration of a period of three months after the
date of receipt of the notification by the Secretary General.
3. The present Convention shall, however, continue to apply to the
enforcement under Article 14 of confiscation for which a request
has been made in conformity with the provisions of this Convention
before the date on which such a denunciation takes effect. (Emphasis
added)
108 999 UNTS 171. Article 12 provides:
“1. Any State Party may denounce the present Protocol at any time
by written notification addressed to the Secretary-General of the
United Nations. Denunciation shall take effect three months after
the date of receipt of the notification by the Secretary-General.
2. Denunciation shall be without prejudice to the continued
application of the provisions of the present Protocol to any
communication submitted under article 2 before the effective date of
denunciation.” (Emphasisadded)
56denunciation 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 the initiation of the pending
procedures. Under the Pact, only those proceedings initiated
prior to the transmission of the notification of denunciation are
unaffectedbydenunciation.
3.30. In 1948, the American States, for whom consent to the
compulsoryjurisdiction 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
sentenceof 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
109
to the Pact, two have denounced it, namely El Salvador
109
Bolivia, Brazil, Chile, Colombia (denounced 2012), Costa Rica,
Dominican Republic, Ecuador, El Salvador (denounced 1973), Haiti,
Honduras, Mexico, Nicaragua,Panama, Paraguay, Peru,Uruguay.
58 in 1973, and Colombia in 2012.
essentially matches that of El Salvador so far as concerns
judicial procedures instituted subsequent to the transmission of
the denunciation. The final paragraph of El Salvador's notice of
denunciation, whichis dated24 November 1973, reads:
“Lastly, my government wishes to place on record
that if El Salvador is now denouncing the Pact of
Bogotá for the reasons expressed – a denunciation
that will begin to take effect as of today, it
reaffirms at the same time its firm resolve to
continue participating in the collective efforts
currently under way to restructure some aspects of
the system in order to accommodate it to the
fundamental changes that have occurred in relations
among the states of the Americas.”
added)
3.32. As in the case of Colombia's notification of denunciation,
no other State Party to the Pact – Nicaragua included – lodged
any objection with the OAS or, in fact, expressed any reaction
whatsoever within the OAS to the terms or mode of El
Salvador'swithdrawal from the Pactof Bogotá.
110
Annex 14: Diplomatic Note from the Minister of Foreign Affairs
of El Salvador to the Secret-General of the Organization of American
States, 24 Nov. 1973. In the original, in Spanish, the paragraph
“Finalmente, mi Gobierno deja constancia de que, si El Salvador,
por las razones expuestas, denuncia ahora el Pacto de Bogotá,
denuncia que ha de principiar a surtir efectos a partir del día de hoy,
reitera al mismo tiempo su firme propósito
participando en los esfuerzos colectivos que actualmente se realizan
para reestructurar algunos aspectos del sistema, a fin de
acomodarlo a los cambios fundamentales que han ocurrido en las
relaciones entre los Estados americanos.”(Emphasisadded)
58(c)Theordinarymeaningisconfirmedbythetravauxpréparatoires
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 ordinarymeaning.
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
settlement in the Americas 111 by systematizing in a single
instrument the different mechanisms 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 of Compulsory Arbitration
112
(1902) and the General Treaty of Inter-American Arbitration
111 Pact of Bogotá, Arts. LVIII and LVIX.
112 Treaty on Compulsory Arbitration, (Mexico, 29 Jan. 1902). See
Annex19: Inter-American Treaties from 1902 to 1936, Clauses of
Denunciation.
60 113
(1929), the other pre-1936 regional treaties did not have
rigorous and comprehensive compulsory dispute settlement
provisions, such as that found in the Pact of Bogotá.
3.36. With respect to termination, Article 22 of the Treaty on
Compulsory Arbitration signed on 29 January 1902 provided in
relevantpart that
“…[i]f any of the signatories wishes to regain its
liberty, it shall denounce the Treaty, but the
denunciation will have effect solely for the Power
making it, and then only after the expiration of one
year from the formulation of the denunciation.
When the denouncing Power has any question of
arbitrationpending at the expiration of the year, the
denunciation shall not take effect in regard to the
case still to be decided.”
This provision clearly prescribed that the termination of the
treaty obligations, including arbitration procedures already
initiated, were to take effect after a year. On the other hand,
113 General Treaty of Inter-American
5 Jan. 1929), in Annex 19.
114 General Treaty of Inter-American
5 Jan. 1929), in Annex 19. In Spanish:
“Si alguna de las signatarias quisiere recobrar su libertad,
denunciará el Tratado; más la denuncia no producirá efecto sino
únicamente respecto de la Nación que la efectuare, y sólo después
de un año de formalizada la denuncia.
denunciante tuviere pendientes algunas negociaciones de arbitraje a
la expiración del año, la denuncia no surtirá sus efectos con
relación al caso aun no resuelto.”
The 1902 treaty was not included among the agreements that the Juridical
Committee should take into account for the construction of the draft treaty for
the coordination of the Inter-American peace agreements to be submitted to
the Seventh International American Conference through Resolution XV,
approved on 21 December 1938. In Annex 28, Text of Document C: Report to
Accompany the Draft Treaty for the Coordination of
Agreements and Draft of an Alternative Treaty , at pp. 81-83.
60Article 9 of the General Treaty of Inter-American Arbitration
signed at Washington on 5 January1929 provided in the 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 the Party
denouncing the same, but shall remain in force as
regardsthe other signatories.” 115
This provision, which does not deal with the pending
procedures,is similarto the remainingtreaties up to 1936. 116
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
115
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.”.
116
See in Annex 19, excerpts 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, 5 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, Article 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.
62 wide subscription, and, at the same time, assuage the various
concerns of the States in the region.
3.38. On 27 December 1937, the Director General of the Pan-
American Union sent a communication to the U.S. Under-
Secretary of State, describing the main failures of the Treaty to
Avoid or Prevent Conflicts between the American States
of 1923 (Gondra Treaty) and suggesting that the U.S.
Government “consider the possibility of taking the initiative at
the forthcoming Conference at Lima in recommending
additions to the existing treaties of peace with the view of
117
increasing their usefulness.”
3.39. On 15 November 1938, the United States submitted to the
American States a draft ‘Project for the Integration of American
Peace Instruments’, 118 for discussion
American International Conference which was to be held in
Lima from 9 to 27 December 1938. This U.S. Project did not
include any language approximating what would eventually
become the second paragraph of Article LVI of the Pact of
Bogotá.
3.40. One month later, however, on 16 December 1938, during
117
Annex 22: Memorandum from the General Director of the Pan
American Union to the United States Under Secretary of State, 28 Dec. 1937 ,
at p. 6. (Emphasisadded)
118 Annex 23: Delegation of the United States of America, Topic 1:
Perfecting and Coordination of Inter -American Peace Instruments, Draft on
Consolidation of American Peace Agreements submitted to the First
Commission, Eighth International Conference of American States, Lima,
Peru, 15 Nov. 1938, at p. 1.
62the Lima Conference, the United States submitted an amended
119
second draft of its Project. 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
comparison with the earlier texts. 120 Article XXII of the
U.S. 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.” 121(Italicsin 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
–whichever they might be – as of the date of notification,
119
Annex 24: Delegation of the United States of AmericaTopic 1:
Perfecting and Coordination of Inte-American Peace Instruments, Final
Draft on Consolidation of American Peace Agreements submitted to the First
Commission, Eighth International Conference of American States, Lima,
Peru, 16 Dec. 1938, pp. 193-194.
120 In the English version of the U.S. Proposal, all new matters were
in italics while in the Spanish versionthe new text appears in bold.
121 Annex 24, p. 203.
64 even though the effects of denunciation on the general
substantive obligations of the Pact itself would take effect after
one year.
3.42. This formulation was not found in the treaties on pacific
settlement of disputes concluded prior to 1936. The drafting of
this proposal was clear and deliberate and was manifestly
intended to ensure the right to cease to be bound by compulsory
procedureswithimmediate effect.
3.43. On 19 December 1938, Green H. Hackworth, then Legal
Adviser to the U.S. Department of State and a member of the
U.S. delegation, and later a Judge and President of the Court,
explained at the meeting of Sub-Committee 1 of Committee I of
the Lima Conference that “all new matter had been
122 The idea to consolidate existing American treaties on the peaceful
settlement of disputes was prominent at the Montevideo Conference of 1933.
In particular, Resolution XXXV of 23 Dec. 1933 noted “the advantages that
the compilation and articulation into a single instrument would offer, for all
provisions which are scattered in different treaties and other relevant
principles for the prevention and pacific settlement of international conflicts”,
and resolved that a Mexican draft “Code of Peace” would be put to the
consideration of member States through the Pan-American Union. This
draft, which was the first proposal for the coordination of Inter-American
peace treaties, did not contain any provisions relating to termination,
denunciation, or withdrawal. See
Conference of American States, Montevideo, Uruguay, Code of Peace,
Resolution XXXV, Approved 23 Dec. 1933, at p. 51.
The draft “Code of Peace” was submitted to the States at the Inter-American
Conference for the Consolidation of Peace, held in Buenos Aires in 1936, but
no significant progress was made on that occasion. See Annex 21: Inter-
American Conference for the Maintenance of Peace, Buenos Aires,
Argentina, Code of Peace, Resolution XXVIII, Approved 21 Dec. 1936.
64underlined.” 123
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 change 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 presented to the
Lima Conference, only that presented by the United States
addressedthe matter of denunciation. 124
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
between American States through the consolidation, in a single
instrument, of the regulations containedin the eight treaties now
123 Annex 25: Delegation of the United States of America, Report of the
Meetings of Sub- Committee 1 of Committee I, Consolidation of American
Peace Instruments and Agreements , Eighth International Conference of
American States, 19 Dec. 1938, at p. 5. It is to be noted thate U.S.
delegation highlighted in italics the additions, which include the second
paragraph of what became Art. LVI (see Annex 24, Art. XXII at
124203).
Annex 26: Comparative Chart of Drafts Presented by American
States to the First Commission at the Eighth International Conference of
American States, Lima, Peru, Dec. 1938.
66 125
in force.” By Resolution XV the Lima Conference submitted
various projects on inter-American
procedures to the International Conference of American Jurists
for it to integrate them intoa single instrument.
3.47. In March 1944, the Inter-American Juridical Committee
published two drafts for distribution to AmericanStates for their
consideration; both draftscontained the U.S. Proposal.
125
Annex 27: Eighth International Conference of American States,
Perfection and Coordination of Inter
Resolution XV, Approved 21 Dec. 1938, p.1, Consideration 4.
126 Annex 27, p. 2, para. 2.
127
The two drafts contained in Annex 28 are: 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, pp. 53-68
agreements on pacific dispute settlement, but made no changes to their
texts); and Text of Document B: Draft of an Alternative Treaty Relating to
Peaceful Procedures, at pp. 69-79 (proposed new material based upon the
various drafts submitted in Lima in 1938). The U.S. proposal was
contained in Article XXXII of the Draft Treaty for the Coordination of
Inter-American Peace Agreements (Document A) whichread:
“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 shall cease to
be in force as regards the Party denouncing the same, but shall
remain in force as regards the other signatories. Notice of
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.”
The U.S. proposal was contained in Article XXVIII of the Draft of an
Alternative Treaty Relating to Peaceful Procedures (Document B) which
read:
“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.”
663.48. In September 1945, the Inter-American Juridical
Committee submitted its “Preliminary draft for the Inter-
American Systemof 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
128
approved by the American States.” 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:
“ArticleXXIX.
(…)
[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
denunciationis given.” 129
3.49. On 18 November 1947, a fourth (and final) draft project
on the integration of Inter-American peace instruments was
published by the Inter-American Juridical Committee and
distributed to the American States for their consideration.
128 Annex 29: Inter-American Juridical Committee, Draft of an Inter -
American Peace System and an Accompanying Report, Article XXIX, 4 Sept.
1295, ArticleXXIX, at p. 22.
Ibid., at pp. 11-12.
68 Article XXVI of the fourth draftretained the U.S. Proposal:
“Article XXVI...
(...)
[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
shall cease to be in force as regards the Party
denouncing the same, but shall remain in force as
regards the other
denunciation shall be transmitted by the Pan
American Union to
governments. Denunciation shall not affect any
pending proceedings instituted before notice of
denunciationis given.” 130
3.50. The Ninth International Conference of American States
took place in Bogotá, Colombia, from 30 March to 2 May 1948.
The Conference approved the first part of Article XXVI
(Paragraph 3) referring to denunciation. The second part of
Article XXVI (Paragraph 3) was sent to the Drafting
Committee. On 29 April, at
Commission's Drafting Committee,
(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
130 Annex 30: Inter-American Juridical Committee, Inter -American
Peace System: Definitive Project Submitted to the Consideration of the Ninth
International Conference of American States in Bogotá, Article XXVI
18 Nov. 1947, Article XXVI, p. 9.
131 Annex 31: Ninth International Conference of American States,
Minutes of the Second Part of the Fourth Session of the Coordination
Commission, 29 Apr. 1948, p. 537.
68 the other signatories. The denunciation will be
made to the Pan-American Union, which will
transmitit to the other contractingparties.
The denunciation will not have any effect on
proceedings pending and initiated prior to the
132
transmission of the respectivenotice.”
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 Committee 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 DraftingCommittee
and the change made by that Committee confirm that specific
attention was paid to the second paragraph and its drafting.
3.52. The chart below shows the modifications undergone by
the paragraph in question in the inter-American treatycontext.
132
Annex 31, p. 541.
70 The development of the second paragraph of ArticleLVIof the
Pact of Bogotá
U.S.PROPOSALFOR
THE TREATY ON THE
CONSOLIDATIONOF
AMERICAN PEACE
CONVENTIONS,1938
“ARTICLE XXII: The
present treaty shall remain
in effect indefinitely, but
may denounced by means
of one year's notice given to
the Pan American Union,
which shall transmit it to the
other signatory government.
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.”
(Emphasis added in the
original).
3.53. Thus, the travaux préparatoires of the Pact of Bogotá
confirm the ordinary meaning of Article LVI: Article LVI is
70structured in two paragraphs separating the deferred general
effect of denunciation on the Pact's other obligations, from
the immediate effecton proceduresinitiated afterdenunciation.
C. CColombia's Denunciation of the Pact of Bogotá was in
AccorAccordance 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 to the depositary, the General
Secretariat of the OAS, a notification of denunciation pursuant
to Article LVI of the Pact. It will be convenient to set it out
again:
“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 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 procedures that are initiated after the
present notice, in conformity with Article LVI,
secondparagraph...” 133
133
Annex 15. 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
72 3.55. In her Note, the Minister of Foreign Affairs stated
unequivocally that Colombia's denunciation of the Pact took
effect “as of today”, that is, 27 November 2012,
“with regard to the procedures that are initiated
after the present notice, in conformity with Article
LVI, second paragraph, providing that ‘[t]he
denunciation shall have no effect with respect to
pending procedures
transmission of the particularnotification’.”
3.56. According to the Note and in accordance with the second
paragraph of Article LVI of the Pact, while the withdrawal could
not have had any effect with respect to pending procedures
initiated prior to the transmission of the notification, the
withdrawal had immediate effect with regard to any procedures
initiated subsequent to the transmission of the notification on
27 November 2012.
3.57. On 28 November 2012, the Department of International
Law of the Secretariat for Legal Affairs of the OAS informed
Americanos, a su digno cargo, como sucesora de la Unión
Panamericana, que la República de Colombia denuncia a
partir de la fecha el ‘Tratado Americano de Soluciones
Pacíficas’, suscrito el 30 de abril de 1948 y cuyo
instrumento de ratificación fue depositado por Colombia el 6
de noviembre de 1968.
La denuncia del Tratado
Pacíficas rige a partir del día de hoy respecto de los
procedimientos que se inicien después del presente aviso,
de conformidad con el párrafo segundo del artículo LVI el
cual señala que ‘La denuncia no tendrá efecto alguno sobre
los procedimientos pendientes iniciados antes de transmitido
el aviso respectivo’.”
72the 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 Bogotá,
30 April 1948. 134 No State Party to the Pact reacted to that
Note.
D. Responseto points made in the Memorial
3.58. In its Memorial , Nicaragua deals only summarily with
the jurisdiction of the Court under Article XXXI of the Pact of
135
Bogotá. The present section responds point-by-point to what
little Nicaragua says, though most of the issues have already
been addressed in greater length in the preceding sections of the
present Chapter.
3.59. As a preliminary point, it should be noted that Nicaragua
refers to the effect of Article XXXI as two ‘matching
declarations’,136 as though they were declarations under the
Optional Clause (Article 36, paragraph 2 of the ICJ Statute).
Indeed, it later refers to “Colombia 's declaration in conformity
137
with Article 36, paragraph 2 of the Court 's Statute” and
“Colombia's declaration accepting the Court 's compulsory
134 Annex 16.
135 Memorial of Nicaragua, paras. 1.12-1.23.
136 Ibid., para. 1.14.
137 Ibid., para. 1.16.
74 jurisdiction”. 138 That is similar to an argument made by
Honduras in the Border and Transborder Armed Actions
(Nicaragua v. Honduras) case, which was rejected by the
Court. 139 Jurisdiction under Article XXXI is treaty-based, falling
under Article 36, paragraph 1 of the Court 's Statute. It does not
depend upon the making of ‘matching declarations’ under
140
Article 36, paragraph 2. While it h as similar effect, as the
Court has made clear the commitment under Article XXX
“an autonomous commitment.”
3.60. In arguing that the Court has jurisdiction under the Pact,
Nicaragua relies almost exclusively on the words “so long as the
present Treaty is in force”, which appear in Article XXXI. By
then referring only to paragraph 1 of Article LVI, and ignoring
its second paragraph, Nicaragua concludes that jurisdiction
covers applications made after the transmission of the
142
notification of denunciation.
the fact that these words are part of the longer expression,
“without the necessity of any special agreement so long as the
present Treaty is in force”. That expression is included in
138 Memorial of Nicaragua, paras. 1.18-1.19.
139 Border and Transborder Armed Actions (Nicaragua
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69. at pp.
82-88, paras. 28- 41. At paragraph 33, the Court recalled that Nicaragua had
advanced the same argument as Honduras in
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America).
140 This point is made clearly in the extract from the article by Jiménez de
Aréchaga cited at Memorial of Nicaragua, para. 1.22.
141 Border and Transborder Armed Actions (Nicaragua
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69 at p. 85,
142a. 36.
Memorial of Nicaragua, para. 1.16.
74Article XXXI to indicate that the jurisdiction established under
Article XXXI does not require a special agreement (compromis).
The inclusion of these words within Article XXXI does not and
cannot override the express terms of Article LVI, second
paragraph. To interpret them as having this effect w ould render
the terms of Article LVI, second paragraph without effect
143
contrary to the interpretive principle of effet utile.
3.61. The “effet utile ” principle is one of the keystones of
treaty interpretation. As the Court and the PCIJ have stated on
numerous occasions:
“in case of doubt the clauses of a special agreement
by which a dispute is referred to the Court, must, if
it does not involve doing violence to their terms, be
construed in a manner enabling the clauses
themselves to have appropriate effects (Free Zones
of Upper Savoy and the District of Gex, Order of
19 August14429, P.C.I.J., Series A, No. 22,
p. 13).”
3.62. Nicaragua seeks to suggest that if Colombia 's
interpretation were to be accepted, the first paragraph of
Article LVI would be devoid of ef fect. That is simply not the
143 See paras. 3.15-3.16 above.
144 Application of the Inte rnational Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v . Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70 at p. 125,
para. 133; Corfu Channel case, Judgment of April 9 th1949: I.C.J. Reports
1949, p. 4 at p. 24: “It would indeed be incompatible with the generally
accepted rules of interpretation to admit that a provision of this sort occurring
in a special agreement should be devoid of purport or effect.”; Territorial
Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, p. 6
at p. 25, para. 51: “Any other construction would be contrary to one of the
fundamental principles of interpretation of treaties, consistently upheld by
international jurisprudence, namely that of effectiveness”.
76 case. As explained above, there is a clear distinction betw
the first and second paragraphs of Article LVI. The first
paragraph provides that denunciation takes effect with one year's
notice as regards the Pact as a whole, which includes important
rights and obligations unconnected to any specific procedure
that may be initiated under the Pact. By contrast, the second
paragraph of Article LVI deals exclusively with procedures
under the specific provisions of Chapters Two, Three, Four and
Five that were initiated before the transmission of notification of
denunciation and hence were pending at that moment.
3.63. The rights and obligations of the Parties to the Pact that
are preserved by the first paragraph of Article LVI during the
one year period of denunciation include the ‘general obligation
to settle disputes by peaceful means’ set forth in Chapter One of
the Pact, and the following:
• The solemn reaffirmation under Article I of
commitments made in earlier international conventions
and declarations, as well as in the Charter of the United
Nations: (i) to refrain from the threat or the use of force,
(ii) or from any other means of coercion for the
settlement of their controversies, and (iii)
recourse at all times to pacific procedures.
• The obligation under Article II “to sett
controversies by regional procedures before referring
them to the Security Council”
Parties the possibility of having recourse to “such special
76 procedures as, in their opinion, will permit them to arrive
to a solut ion”, therefore providing the m with an
alternative to the procedures established in the Pact.
• The obligation under Article VII restricts “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 ha ve had available the means to place their
case before competent domestic court s of the respective
state”.
• The provision contained in Article VIII concerning the
right of individual and collective self-defence.
3.64. Nicaragua's attempt, in the Memorial , to side -step the
plain words of Article LVI is unconvincing. It would have been
easy enough for the negotiators of the Pact to draft a provision
under which denunciation had no effect on any procedures
instituted during the period of notice provided for in the f irst
paragraph of Article LVI, as was done in several examples of
treaties mentioned above. They did not do so. Moreover, as
shown above, the negotiating history of Article LVI confirms
that States deliberately chose to accept the U.S. Proposal and
draft the second paragraph so that it had the effect of allowing a
party to withdraw from the compulsory procedures under the
Pact with immediate effect.
145
3.65. Nicaragua proceeds to make five points in an effort to
145
Memorial of Nicaragua, paras. 1.18-1.23.
78 demonstrate that the second paragraph of Article LVI
mean what its plain words say. This attempt to establish that
“Colombia's denunciation of the Pact… has no bearing on the
Court's jurisdiction” 146 fails.
3.66. First, Nicaragua asserts that “there is nothing in this
sentence [the second paragraph of Article LVI] that negates the
effectiveness of Colombia's declaration”. And it goes on to say
that “[n]or is there anything in the sentence that negates” the
first paragraph of Article LVI .
assertions without reference to the actual terms of the second
paragraph, which qualify the effect of denunciation under the
first paragraph, by making it clear that denunciation does not
affect pending proceedings, that is proceedings instituted before
transmission of the notice of denunciati
states that
“To read the language otherwise, as Colombia
apparently does, would not only be illogical, and
out of keeping with the plain text, but would also
be in direct contradiction of the other Treaty
provisions quoted above, to wit, Article XXXI and
LVI, first paragraph; and this would be inconsistent
with the rules of treaty interpretation set forth in
Articles 31 to 33 of the Vienna Convention on the
Law of Treaties.” 148
3.67. On the contrary, it is Nicaragua that puts forward
arguments that are inconsistent with the Vienna rules. Nicaragua
146 Memorial of Nicaragua, para. 1.18.
147 Ibid.
148 Ibid.
78ignores the “ordinary meaning to be given to the terms of the
treaty”. Indeed, it does not even seek to address the terms of the
second paragraph of Article LVI, which are the relevant terms in
the present context (“pending procedures initiated prior to the
transmission of the particular notification”) , and it ignores the
travaux préparatoires.
3.68. Second, Nicaragua argues that “the second sentence of
Article LVI cannot apply to declarations under Article XXXI
because those declarati ons are not ‘pending procedures ’.”149
This argument is specious. It has already been pointed out that
Article XXXI does not involve ‘matching declarations’ as
asserted by Nicaragua. 150 The reference in the second sentence
to ‘pending procedures’ is not a reference to any declaration
accepting the Court 's jurisdiction, but to a ‘procedure initiated’
under the Pact, that is to say, a procedure of good offices or
mediation; 151 a procedure of inquiry or conciliation; 152a judicial
procedure; 153 or a procedure of arbitration. 154 In the present
case, the procedure in question is the judicial procedure
instituted by unilateral application on 26 November 2013, that
is, just one day short of 12 months after the transmission of the
notification of denunciation on 27 November 2012.
3.69. Third (presumably in the alternative), Nicaragua refers to
149 Memorial of Nicaragua, para. 1.19.
150
151 See para. 3.59 above.
152 Pact of Bogotá, Chapter Two.
153 Ibid., Chapter Three.
154 Ibid., Chapter Four.
Ibid., Chapter Five.
80 “Colombia's apparent a contrario argument”.
that “the [second] sentence does not address ‘
procedures’ initiated after a notice of denun
circulated”, but “merely states that some procedures, i.e. , those
initiated prior to the notice, would not
accepting that the second sentence mentions expressly only
proceedings instituted before the notice was transmit ted, the a
contrario argument is a powerful one, having regard to the terms
of the second paragraph. 157It was clearly intended that no new
procedures could be instituted after transmission of the notice of
denunciation. It will further be recalled that the travaux
that the negotiating States took a conscious decision to exclude
procedures that were commenced after transmission of the
notice of denunciation. 158It is no argument simply to assert, as
Nicaragua does, that “the a contrario
cannot stand against the express language of Articles XXXI and
159
LVI, first paragraph.” As explained above, the terms of these
provisions do not contradict the interpretation of the second
paragraph set out in the present Chapter.
3.70. Fourth, Nicaragua relies upon the Court's case-law to the
effect that its jurisdiction is not affected by the expiry of an
160
Optional Clause declaration .
nothing about whether jurisdiction is established in the first
155
156 Memorial of Nicaragua, para. 1.20.
157 Ibid., para. 1.20.
See paras. 3.20-3.32 above.
158 See paras. 3.33-3.54 above.
159 Memorial of Nicaragua, para. 1.20.
160 Ibid., para. 1.21.
80place. The present case is clearly different, since it involves the
interpretation of a jurisdictional provision in a treaty, in
accordance with its own terms, not the effect of the termination
of an Optional Clause declaration.
3.71. Fifth, Nicaragua relies upon a 1989 article by Jiménez de
161
Aréchaga, which it reads as indicating that, in the view of that
distinguished author, jurisdiction persists in respect of
procedures commenced during the one -year notice period. The
author does not say that. He states, without reference to
Article LVI, that “the withdrawal of the acceptance of
compulsory jurisdiction as soon as the possibility of a hostile
application looms on the horizon has been severely restricted.”
It is indeed ‘severely restricted’ – but not wholly excluded –
since to avoid a loomi ng application it is not sufficient to
withdraw a declaration – as may be the case under the Optional
Clause, for example in the case of the United Kingdom – but the
State has to go as far as to denounce the Pact of Bogotá, which
is politically a much more significant act.
3.72. Finally, Nicaragua refers to a phrase from the Court 's
judgment in the Border and Transborder Armed Actions case 162
in which it said that “the commitment in Article XXXI…
remains valid ratione temporis for as long as that instrument
163
itself remains in force between those States.” What Nicaragua
161 Memorial of Nicaragua, para. 1.22.
162 Ibid., para. 1.23.
163 Border and Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69 at p. 84,
para. 34 in fine.
82 neglects to point out is that this was one of a series of points
made by the Court in response to Honduras’ attempt to import
the conditions, including the temporal conditions, of its Optional
Clause declaration into Article XXXI of the Pact of Bogotá
164
When the relevant passage
the Court was not addressing the effect of Article LVI, but only
addressed Article XXXI.
E. Conclusion
3.73. 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
26 November 2013, since the proceedings were instituted
after the transmission of Colombia's notice of denunciation of
the Pact.
164 Border and Transborder Armed Actions (Nicaragua
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69 at p. 84,
paras. 33-34.
82 APPENDIX TO CHAPTER 3
THE PACT OF BOGOTÁ
3A.1. Chapter One is entitled “General obligation to settle
disputes by peaceful means”, and contains a number of
undertakings of a general nature. InArticle I, the Parties,
“solemnly reaffirming their commitments made in
earlier international conventions and declarations,
as well as in the Charter of the United Nations,
agree to refrain from the threat or the use of force,
or from any other means of coercion for the
settlement of their controversies, and to have
recourse at all times to pacific procedures.”
3A.2. Under Article II, the Parties “recognize the obligation to
settle international controversies by regional procedures before
referringthem to the Security Council”, and
“Consequently, in the event that a controversy
arises between two or more signatory states which,
in the opinion of the parties, cannot be settled by
direct negotiations through the usual diplomatic
channels, the parties bind themselves to use the
procedures established in the present Treaty,in the
manner and under the conditions provided for in
the following articles, or, alternatively, such
special procedures as, in their opinion, will permit
them to arrive at a solution.”
3A.3. The commitment to submit to the procedures under the
Pact applies only where a controversy arises between two or
more signatory states which, in the opinion of the parties, cannot
84 APPENDIX TO CHAPTER 3
THE PACT OF BOGOTÁ
3A.1. Chapter One is entitled “General obligation to settle
disputes by peaceful means”, and contains a number of
undertakings of a general nature. InArticle I, the Parties,
“solemnly reaffirming their commitments made in
earlier international conventions and declarations,
as well as in the Charter of the United Nations,
agree to refrain from the threat or the use of force,
or from any other means of coercion for the
settlement of their controversies, and to have
recourse at all times to pacific procedures.”
3A.2. Under Article II, the Parties “recognize the obligation to
settle international controversies by regional procedures before
referringthem to the Security Council”, and
“Consequently, in the event that a controversy
arises between two or more signatory states which,
in the opinion of the parties, cannot be settled by
direct negotiations through the usual diplomatic
channels, the parties bind themselves to use the
procedures established in the present Treaty,in the
manner and under the conditions provided for in
the following articles, or, alternatively, such
special procedures as, in their opinion, will permit
them to arrive at a solution.”
3A.3. The commitment to submit to the procedures under the
Pact applies only where a controversy arises between two or
more signatory states which, in the opinion of the parties, cannot
84be settled by direct negotiations through the usual diplomatic
channels. 165
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 Pact's
proceduresto matters within domestic jurisdiction.
3A.5. Accordingto ArticleVI:
“The aforesaid procedures … may not be applied
to matters already settled by arrangement between
the parties, or by arbitral award 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 respectivestate.”
3A.7. The last provision in Chapter One concerns the right of
individual and collective self-defense,and reads:
165
This restriction in Article II was discussed by the Court in
Border and Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69.
86be settled by direct negotiations through the usual diplomatic
channels.165
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 Pact's
proceduresto matters within domestic jurisdiction.
3A.5. Accordingto ArticleVI:
“The aforesaid procedures … may not be applied
to matters already settled by arrangement between
the parties, or by arbitral award 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 respectivestate.”
3A.7. The last provision in Chapter One concerns the right of
individual and collective self-defense,and reads:
165
This restriction in Article II was discussed by the Court in
Border and Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69.
863A.11. Chapter Seven, also a single article, makes special
provision for seekingadvisoryopinions 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 the Council of
the Organizationof AmericanStates.”
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
betweenthe parties 167
• Art. LVIX excludes application of theforegoing
article to procedures alreadyinitiated or agreed upon
on the basis of such treaties
167 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;
Anti-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; Inter-
American Treaty on Good Offices and Mediation, of 23 Dec. 1936; Treaty
on the Prevention of Controversies,of 23 Dec. 1936.
883A.11. Chapter Seven, also a single article, makes special
provision for seekingadvisoryopinions 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 the Council of
the Organizationof AmericanStates.”
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
betweenthe parties 167
• Art. LVIX excludes application of theforegoing
article to procedures alreadyinitiated or agreed upon
on the basis of such treaties
167 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;
Anti-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; Inter-
American Treaty on Good Offices and Mediation, of 23 Dec. 1936; Treaty
on the Prevention of Controversies,of 23 Dec. 1936.
8890 Chapter 4
SECOSECOND AND THIRD OBJECTIONHE
COURTLACKS JURISDICTION BECAUSEE
THETHERE WAS NO DISPUTE WITH RESPECT TO
NICARAGUA’S CLAIMS; AND BECAUSE THEUSE THE
PRECONDITION IN ARTICLE II OF THE PACTACT OF
BOGOTÁ HADNOT BEEN FULFILLED
OF BOGOTÁ HAD NOT BEEN FULFILLED
A. Introduction
4.1. Even if the Court does not uphold Colombia
temporis objection to jurisdiction addressed in Chapter 3, the
Court still has no jurisdiction under the Pact for the following
two reasons:
• First, there was no dispute between the two Parties since,
prior to filing its Application, Nicaragua failed to make
any claims relating to the violation of its “sovereign
rights and maritime zones” or to “the use of or threat to
use force” by Colombia , or to C olombia's Decree 1946
of 2013 that could give rise to a dispute, or any objection
to Colombia's conduct relating to the relevant maritime
areas.
• Second, notwithstanding the above, at the time of the
filing of the Application, the Parties were not of the
opinion that the purported controversy “[could not] be
settled by direct negotiations through the usual
diplomatic channels”, as is required by Article II before
resorting to the dispute resolution procedures in the Pact.
90These objections are legally distin ct, but they are presented
together in this C hapter because they arise out of the same
factual matrix.
4.2. Article II of the Pact provides as follows:
“The High Contracting Parties recognize the
obligation to settle international controversies by
regional procedures before referring them to the
Security Council of the United Nations.
Consequently, in the event that a controversy arises
between two or more signatory states which, in the
opinion of the parties, cannot be settled by direct
negotiations through the usual diplomatic channels,
the parties bind themselves to use the procedures
established in the present Treaty, in the manner and
under the conditions provided for in the following
articles, or, alternatively, such special procedures
as, in their opinion, will permit them to arrive at a
solution.”
4.3. Colombia will first address the relevant temporal scope for
assessing the existence of a dispute and the fulfilment of the
condition precedent under Article II of the Pact (Section B).
4.4. Following this, Colo mbia will set out its second
preliminary objection: namely, the lack of jurisdiction due to the
absence of a dispute between the two States with regard to the
claims referred to in Nicaragua's Application (Section C). In this
connection, it is particularly noteworthy that Nicarag ua's only
diplomatic Note in which it complained of Colombia 's conduct
92 was sent to Colombia on 13 September 2014, well after the
Application was filed.
4.5. In Section D, Colombia will turn to its third objection, and
will address the meaning and scope of Article II of the Pact.
Neither Nicaragua's Application nor its Memorial even mentions
the precondition set out in Article II for the submission of a
controversy to the dispute resolution procedures contained in the
Pact, let alone shows that it has been satisfied in this case.
4.6. Section E then addresses the
will be seen, their behaviour following the Court 's Judgment of
19 November 2012 attests to the absence of a dispute as wel l as
the non-fulfilment of the precondition under Article II of the
Pact that the Parties were of the opinion that the alleged dispute
“cannot be settled by direct negotiations through the usual
diplomatic channels”. To the contrary, the highest officials of
both Partie s have repeatedly stressed the need to enter into
discussions with a view to concluding an agreement relating to
the Judgment.
92 B. The Relevant Time Frame
4.7. The Court has emphasized on numerous occasions, most
recently in its 2012 Judgment in the Questions relating to the
Obligation to Prosecute or Extradite (Belgium v. Senegal) case,
that what matters is that “on the date when the Application [is]
filed, a dispute exist[s]”. 168 In relation to the prerequisite under
Article II of the Pact, the Court has also indicated that:
“The critical date for determining the admissibility
of an application is the date on which it is filed (cf.
South West Africa, Preliminary Objections, I.C.J.
Reports 1962, p. 344). It may however be
necessary, in order to determine with certainty
what the situation was at the date of filing of the
Application, to examine the events, and in
particular the relations between the parties, over a
period prior to that date, and indeed during the
subsequent period.” 169
Moreover, in the 2011 Judgment in the App lication of the
International Convention on the Elimination of All Forms of
Racial Discrimination case, the Court reaffirmed, in relation to a
provision analogous to Article II of the Pact, that the
prerequisite must “be fulfilled before the seisin”. 170
168 Questions relating to the Obligation to Prosecute or Extradite
(Belgium v. Senegal), Judgment, I.C.J. Reports 2012, p. 422 at p. 445,
169a. 54.
Border and Transborder Armed Actions (Nicaragua v . Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69 at 95,
170a. 66.
Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v . Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70 at p.128,
para. 141.
94 4.8. Consistent with these precedents, the critical date in the
present case is the date of the filing of Nicaragua 's Application:
26 November 2013. Thus, Nicaragua must demonstrate that (i) a
controversy on the subject-matter of its claims had crystallized
by the time it filed its Application, and (ii ) that the condition
precedent in Article II of the Pact was fulfilled on 26 November
2013.
4.9. Moreover, even if the P arties' conduct after 26 November
2013 were relevant, that conduct, discussed in Section E
confirms that no dispute on the subject -matter of Nicaragua 's
Application has crystallized, and that negotiations have not been
exhausted.
C. The The Second Objection: TheClaims Referred to in
NiNicaragua's ApplicationWere Not the Subject-Matter of a
a Dispute
4.10. As the Court stated in the 1974 judgments in the Nuclear
Tests (Australia v. France) (New Zealand v. France) cases:
“the existence of a dispute is the primary condition
for the Court to exercise its judicial function; it is
not sufficient for one party to assert there is a
dispute, since ‘whether there exists an international
dispute is a matter for objective determination’ by
the Court ( Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania (First Phase),
Advisory Opinion, I.C.J. Reports 1950, p. 74).”
171
Nuclear Tests (Australia v
1974, p. 253 at pp. 270- 271, para. 55 and
France), Judgment, I.C.J. Reports 1974, p. 457 at p. 476, para. 58.
94To which the Court then added:
“not only Article 38 itself but other provisions of
the Statute and Rules also make it clear that the
Court can exercise its jurisdiction in contentious
proceedings only when a dispute genuinely exists
between the parties.” 172
4.11. In order to reach an objective determination as to the
existence of a genuine dispute between two States, the Court has
stressed that “[i]t must be shown that the claim of one party is
positively opposed by the other”. 173 In other words, as explained
by a former Vice- President of the Court: “[t]he test of whether
there exists a dispute is thus one of opposability and not of
unfettered freedom for the Court.” 174
4.12. This is the situation under the Court's Statute, but it is also
the situation under the Pact of Bogotá, which refers twice to the
need for a dispute to exist in order that judicial proceedings can
be activated by one party against the other. First, Article II
provides that the parties to the Pact bind themselves to use the
172 Nuclear Tests (Australia v . France), Judgment, I.C.J. Reports 1974,
p. 253 at p. 271, para. 57 and Nuclear Tests (New Zealand v . France),
Judgment, I.C.J. Reports 1974, p. 457 at p. 477, para. 60.
173 South West Africa Cases (Ethiopia v . South Africa; Libe ria v. South
Africa), Preliminary Objections, Judgment of 21 December 1962: I.C.J.
Reports 1962, p. 319 at p. 328; Armed Activities on the Territory of the
Congo (New Application: 2002) (Democratic Republic of the Congo v .
Rwanda), Jurisdiction of the Cour t and Admissibility of the Application,
Judgment, I.C.J. Reports 2006, p. 6 at p. 40, para. 90; Application of the
International Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v . Russian Federation), Preliminary Objections,
Judgment, I.C.J. Reports 2011, p. 70 at p. 84, para. 30.
174
Territorial and Maritime Dispute (Nicaragua v . Colombia),
Preliminary Objections, Judgment, I.C.J. Reports 2007, p. 832. Dissenting
opinion of Vice-President Al-Khasawneh, p. 885, para. 19.
96 procedures established in it (including the judicial procedures)
“in the event that a controversy arises between two or more
signatory states.” Second, in Article XXXI the parties to the
Pact declare that they recognize the jurisdiction of the Court “in
all disputes of a juridical nature that ar
concerning the well-known categories of matters listed thereon.
Therefore, it is clear that under the system for the peaceful
settlement of disputes established in the Pact of Bogotá, the
Court can only exercise its jurisdiction in contenti
proceedings when a genuine controversy or dispute of a juridical
nature has arisen between States that are parties to the treaty.
4.13. According to Nicaragua 's Application, the subject -matter
of the controversy relates to Colombia 's purported violations of
“Nicaragua's sovereign rights and maritime zones” (as
determined by the 2012 Judgment) as well as “the threat of the
use of force… in order to implement these violations”.
However, there was no dispute at the date on which the
Application was lodged concerning the claims referred to by
Nicaragua in its pleadings.
4.14. Following the 2012 Judgment, declarations
consistently made by both States’ highest representatives
concerning the necessity to implement the Judgment through the
adoption of a treaty dealing with, inter alia , (i) the protection of
the historic fishing rights of the population of the Archipelago of
San Andrés, Providencia and Santa Catalina ; (ii) the protection
of the Seaflower Biosphere Reserve; and (iii) developing
96measures for ensuring security in the relevant waters, in
particular in relation to the fight against organized crime and
drug-trafficking. In contrast, before filing its Application,
Nicaragua never complained to Colombia that its conduct
violated Nicaragua's sovereign rights and maritime zones, let
alone that it was in breach of Article 2, paragraph 4, of the UN
Charter. Given Nicaragua's failure to specify the subject -matter
of its allegations prior to the submission of its Application , or to
raise a complaint, no objective dispute existed between the
Parties.
4.15. If anything, the opposite was the case. For, not only had
Nicaragua never referred to any such violations on the part of
Colombia prior to filing its Application, but, on the contrary,
members of Nicaragua's Executive and Military were on record
as having stated that communications with the Colombian Navy
were good, the situation in the south- western Caribbean was
calm, and that no problems existed. 175
4.16. It was only on 13 Septembe r 2014, almost ten months
after the Application was filed and just three weeks b efore
Nicaragua filed its Memorial , that Nicaragua sent a diplomatic
Note to Colombia which, for the first time, made reference to
the “infringe[ment] upon the sovereign rights of Nicaragua” and
“the continuous threat to use force” by Colombia. In support of
175
See Section E below.
98 its contention, Nicaragua attached to its Note, also for the first
time, a list of alleged “incidents”.
4.17. In its reply dated 1 October 2014, Colombia expressed
surprise at Nicaragua's list of “incidents”. As Colombia pointed
out:
“(…) This is the first note from Nicaragua voicing
itself on that regard, even though more than 85 per
cent of the incidents supposedly occurred more
than six months ago. Without prejudice to the
position of Colombia in relation to the actual
occurrence of said alleged events, Nicaragua 's
lateness in reporting them demonstrates that none
was seen or understood by Nicaragua or Colombia
as an incident.” 177
4.18. Nicaragua's belated protest cannot change the fact that,
prior to the filing of the Application, a dispute had never arisen
let alone crystallized. Nicaragua attempts to justify its tardiness
by stating that it wanted to “ avoid favouring the political
manipulation of this sensitive
Colombian national elections ”.
and can in no way create a dispute where none existed at the
relevant time.
176
Annex 17.
177 Annex 18. In this context, also of interest is the fact that more than
70% of the “incidents” adduced in Nicaragua 's Note purportedly took place
after the filing of the Application . In other words, even accepting that such
events occurred quod non, they do not prove the existence of a dispute prior
to the critical date.
178 Annex 17.
984.19. Further confirmation of this state of affairs can be drawn
from Nicaragua's own Memorial. On 13 August 2014, that is to
say, eight months after the filing of the Application and just a
month and a half prior to the filing of its Memorial, the Ministry
of Foreign Affairs of Nicaragua had to “request” the Nicaraguan
Army headquarters and General Staff - Navy to provide
information
“of any incident that may have taken place between
the Colombian Navy and Nicaraguan Navy, as well
as with the Nicaraguan fishermen in the zone that
was retur179 by the International Court of
Justice.” (Emphasis added)
4.20. The fact that Nicaragua 's Foreign Ministry was unaware
of any problems as late as Aug ust 2014 demonstrates that:
(i) Nicaragua's Armed Forces had not deemed it worthy to notify
Nicaragua's civilian authorities responsible for foreign relations
of the incidents that Nicaragua now says occurred prior to – and
even after – the filing of the Application; (ii) before the filing of
the Application, no competent Nicaraguan authority had thus
been informed of any alleged incidents, much less regis tered a
complaint about them; and, (iii) the attempt made by Nicaragua
to justify its failure to protest by invoking its desire not to favour
the political manipulation of the Colombian national elections is
unpersuasive to say the least.
179
Memorial of Nicaragua, Annex 23-A, p. 281.
100 D.The Third Objection: The Precondition of Article II of the
Pact of Bogotá was not met. The Meaning ofArticle II of thehe
Pact of Bogotáá
4.21. The text of Article II of the Pact of Bogotá has been set
out in paragraph 4.2 above. The Court has already had the
opportunity, in its 1988 Judgment in the Border and
Transborder Armed Actions (Nicaragua v. Honduras) case, to
elucidate various points concerning the interpretation of that
180
Article. The same provision is at the heart of the present
preliminary objection. As will be seen:
• Article II imposes a condition precedent to invoking the
“procedures” established by the Pact, including resort to
judicial means of settlement;
• the prerequisite is one pertaining to the Parties
faith opinion; and,
• the prerequisite presupposes that Parties involved in a
controversy and not only one of them
opinion that it “cannot be settled by direct negotiations
through the usual diplomatic channels” before judicial
proceedings can be brought.
(1) A RTICLE II OF THE
CO(1)ARTICLEEIIOF THEOPTACT OFCEDURES ESTABLISHED BY
PRECEDENT TO THE PROCEDURES ESTABLISHED BY THE
4.22. As the Court stated in its 1988 Judgment, Arti cle II of the
Pact “constitutes… a condition precedent to recourse to the
180 Border and Transborder Armed Actions (Nicaragua v . Honduras),
Jurisdiction and Admi ssibility, Judgment, I.C.J. Reports 1988, p. 69 at
pp. 92-99, paras. 58-76.
100 181
pacific procedures of the Pact in all cases” (emphasis added).
The Court therefore rejected Nicaragua 's attempts in the above-
mentioned case to deprive Article II of any effet utile by arguing
that Article II was irrelevant given the compromissory clause
contained in Article XXXI of the Pact. 182
4.23. Article II refers to a controversy which, in the opinion of
the Parties, “cannot be settled” by direct negotiations rather than
one which “is not settled”.
4.24. With respect to the latter category of clauses, the Court
noted that Article 22 of the International Convention on the
Elimination of All F orms of Racial Discrimination (CERD ) –
which requires that the dispute “is not settled by negotiations” –
must not be interpreted in the sense “that all that is needed is
183
that, as a matter of fact, the dispute ha [s] not been resolved”.
181 Border and Transborder Armed Actions (Nicaragua v. Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69 at p. 94,
182a. 62.
Nicaragua had tried to read Article XXXI of the Pact in isolation. In
other words, it separated Article II of the Pact from the compromissory clause
by stating that the former only sets forth “one circumstance” and “not the
exclusive one - in which the parties bind themselves to use the procedures set
forth in the Pact” ( Border and Transborder Armed Actions (Nicaragua v .
Honduras), Counter-Memorial of Nicaragua (Jurisdiction and Admissibility),
para. 193). This led Nicaragua to conclude that “[b]ecause Article XXXI is
unconditional, it applie[d] regardless of the opinion of the parties as to
whether the dispute [could] be settled by negotiations.” ( Ibid.). This was
clearly an incomplete analysis of the context. Alternatively, Nicaragua argued
that, “[t]he true construction” of this provision is that “the parties to a dispute
are bound to use the procedures in the Pact whenever one of them believes
that it cannot be settled by diplomacy.” ( Ibid., para. 194). This argument ran
counter to the plain language of Article II, which refers to “the opinion of the
parties” not just one of them, and was equally unavailing.
183 Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v . Russian Federation),
102 Indeed, the Court also emphasized that negotiations are still a
precondition to seisin. 184As the Court observed – by referring to
the Armed Activities on the Territory of Congo (New
Application: 2002) (Democratic Republic of the Congo v.
Rwanda) case – a clause referring to a dis pute which is not
settled “requires also that any such dispute be subject of
negotiations” prior to the filing of an application.
4.25. The same reasoning applies with greater force when the
clause in question refers to a dispute (or controversy) which
“cannot be settled by direct ne
diplomatic channels”. As the joint dissenters in the Application
of the International Convention on the Elimination of All Forms
of Racial Discrimination case observed:
“28. It is true that the Court has consistently
interpreted compromissory clauses providing for
the submission to the Court of disputes which
‘cannot be settled’ (in French: ‘qui ne peuvent pas
être réglés’ or ‘qui ne sont pas susceptibles d’être
réglés’) by negotiation as meaning that the Court
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70 at p. 126,
para. 133.
184
185 Ibid., p. 128, para. 140.
Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70 at p. 127, para.
137. In the 2006 Judgment in the Armed Activities on the Territory of Congo
(New Application: 2002) (Democratic Republic of the Congo v
case, the Court arrived at the same conclusion with regard to two provisions
that adopt the same wording of Article 22 of the CERD: Article 29,
paragraph 1, of the Convention on the Elimination of all Forms of
Discrimination against Women and Article 75 of the World Health
Organization Constitution: Armed Activities on the Territory of the Congo
(New Application: 2002) (Democratic Republic of the Congo v
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006,
41, paras. 80-93, and pp. 41-43 at paras. 94-101.
102 cannot exercise jurisdiction unless an attempt at
negotiation has been made and has led to
deadlock, that is to say that there is no reasonable
hope – or no longer any – for a settlement of the
dispute by diplomatic means. This line of case law
dates back to the Judgment in the Mavrommatis
186
Palestine Concessions case… ”. (Emphasis
added)
4.26. In other words, provisions of the category requiring that
the dispute “cannot be settled” – into which Article II of the Pact
falls – clearly establish that the condition is only met if a n
attempt at negotiating has been made in good faith, and it is
clear, after reasonable efforts, that a deadlock has been reached
and that there is no likelihood of resolving the dispute by such
means. 187
186 Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v. Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2011, at p. 6. Joint
dissenting opinion of President Owada, Judges Simma, Abraham and
187oghue and Judge ad hoc Gaja, p. 150, para. 28.
The above conclusion is confirmed by the consistent case law of the
two Courts. In the 1924 Judgment in the Mavrommatis Palestine Concessions
case, the PCIJ stated that “discussion[s] should have been commenced” and a
“dead lock... reached” for the prerequisite to be met. ( Mavrommatis Palestine
Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p.13.). In the
1962 Judgment in the South West Africa cases, the Court stressed, “that an
impasse was reached” and that the “continuance of this deadlock, compel s a
conclusion that no reasonable probability exists that further negotiations
would lead to a settlement.” (South West Africa, Preliminary Objections,
Judgment, I.C.J. Reports, 1962, p. 319 at p. 345). More recently, in the 2012
Judgment in the Questions relating to the Obligation to Prosecute or
Extradite case, the Court has taken the same position. ( Questions relating to
the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports 2012, p. 422 at pp. 445-446, para. 57).
104 (2) T2) HE CONDITION PRECEDENT CONCERNS THETHE
OPINIONN
4.27. Article II of the Pact refers to a controversy which, “in the
opinion of the parties”, cannot be settled. This language points
to the importance of the Parties
controversy can or cannot be settled by direct negotiations,
rather than applying an objective evaluation whether the
controversy is capable of being settled.
4.28. In the 1988 Judgment in the Border and Transborder
Armed Actions case, the Court came to the conclusion that it
“d[id] not have to make an objective assessment” of the
possibility of the dispute being settled by direct negotiations,
“but to consider what is the opinion of the Parties thereon. ”
At the same time, the Co urt also stated that “the holding of
opinions can be subject to demonstration, and… the Court may
expect ‘the Parties [ to provide] substantive evidence that they
consider in good faith’ a certain possibility of negotiation to
exist or not to exist .”89Thus, the Court indicated that, in order
to ascertain the opinion of the Parties, it “is bound to analyse the
sequence of events in their diplomatic relations.”
4.29. As Colombia will show in Section E below, both Parties
were of the view that matters arising out of the Court
188 Border and Transborder Armed Actions (Nicaragua v . Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69 at p. 94,
para. 63.
189 Ibid., p. 95, para. 65.
190 Ibid., p. 95, para. 67.
104Judgment could and should be dealt with by a negotiated
agreement. Even though they had not commenced direct
negotiations to this end through the usual diplomatic channels
by the time Nicaragua filed its Application, neither Party was o f
the opinion that the dispute, to the extent one may have existed,
could not be settled by direct negotiations. The sequence of
events shows that Colombia always kept the door open for a
negotiation with Nicaragua.
(3) THE CHE CONDITION PRESUPPOSES THAT THEPARTIES MUSTPBARTIES
MUST BE OF THE OPINION THAT THE CONTROVERSY “CANNOTTTLED BY
DIRECTNEGOTIATIONS THROUGH THE USUAL DIPLOMATIC
BE SETTLED BY DIRECT NEGOTIATIONS THROUGH THE USUAL
DIPLOMATIC CHANNELS”
(a) (a) The textual interpretation: the ordinary meaning of the
terterms “in the opinion of the parties”
4.30. Under Article 31, paragraph 1, of the Vienna Convention
on the Law of Treaties, the words “in the opinion of the parties”
fall to be interpreted in good faith in accordance with the
ordinary meaning to be given to their terms in their context and
in the light of the Pact of Bogotá 's object and purpose. What is
clear is that Article II refers to the opinion of the parties, not just
of one of them. Hence, both parties must be of the opinion that a
controversy cannot be settled by direct negotiations through the
usual diplomatic channels before resort can be made to the
dispute resolution procedures in the Pact.
4.31. In the Border and Transborder Armed Actions case,
Nicaragua unsuccessfully argued that “in the opinion of the
106 parties” meant in the opinion of the S tate seising the Court.
However, this interpretation did violence to the ordinary
meaning of the terms appearing in Article II, which use the
plural and not the singular form of the term “parties”, and it
failed to give the term “parties” an effet utile
reading is confirmed by the last words of Article II, which
allows the Parties to choose “such special procedures as, in their
opinion, will permit them to arrive at a solution”
added)
4.32. To read Article II of the Pact as meaning that
opinion of the Party that wishes to seize the Court of the
controversy matters would not only go against the plain meaning
of the words, but also lead to a manifestly absurd result. For
what purpose would be served by this prerequisite if its
fulfilment were to depend entirely on the opinion manifested by
the Applicant?
4.33. It is only when the “opinion of the parties” is to the effect
that the dispute “cannot be settled” that the procedures
envisaged in the Pact can be initiated. Consequently, if one , let
alone both, of the States’ bona fide
can be settled by “direct negotiations through the usual
diplomatic channels”, then the prerequisite is not met and the
Court has no jurisdiction to hear the case.
191 Border and Transborder Armed Actions (Nicaragua v . Honduras),
192nter-Memorial of Nicaragua (Jurisdiction and Admissibility), para. 193.
See para. 3.61 above.
106(b) (b) The textual interpretation: the context and the objectnd
purpose ofand purpose of the Pact in light of the Charter of theof
American States
Organization of American States
4.34. Article 3 (i) of Chapter II of the OAS Charte r enunciates
the principle that “[c]ontroversies of an international character
arising between two or more American States shall be settled by
peaceful procedures”. Consistent with this provision, Article 26
193
in Chapter V (Pacific settlement of disputes) of the OAS
Charter provides as follows:
“In the event that a dispute arises between two or
more American States which, in the opinion of one
of them, cannot be settled through the usual
diplomatic channels, the parties shall agree on
some other peaceful procedure that will enable
them to reach a solution.”
4.35. While Article 26 of the OAS Charter uses the term “in the
opinion of one of them” , it was drafted just before Article II of
the Pact during the Ninth International Conference of American
States held in Bogotá. To be more precise, Article II of the Pact
was in fact written in the immediate aftermath of Article 26 of
the OAS Charter. Thus, the changing of terminology from “in
the opinion of one of them” in the Charter to “in the opinion of
the Parties” in the Pact cannot be perceived as anything but a
deliberate choice, which must be given proper effect.
193
Originally a dopted at the Ninth International Conference of
American States as Article 22 of Chapter IV.
108 (c) (The interpretation does not lead to the manifestly absurd
result that one Party retains an arbitrary right to veto the opening
veto the opening of the Pact of Bogotá's procedures
of the Pact of Bogotá's procedures
4.36. In the Border and Transborder
Nicaragua's main argument against the reading of Article II of
the Pact requiring both Parties to be of the opinion that the
dispute cannot be settled by negotiations was that “a party could
veto resort to these modes of settlement simply by saying that in
its opinion the dispute can be settled by direct negotiation
between the Parties.” 194 However, the Court noted that it “does
not consider that it is bound by the mere assertion of the one
Party or the other that its opinion is to a part icular effect”
the Court explained, “ it must, in the exercise of its judicial
function, be free to make its own determination of that question
on the basis of such evidence as is available to it.”
this context that the Court then added that
Parties [to provide] substantive evidence that they consider in
good faith’ a certain possibility of negotiation to exist or not to
exist.”197
4.37. As will be demonstrated below, the evidence in this case
shows that neither Party considered that the dispute could not be
settled by negotiations when Nicaragua filed its Application.
Indeed, both of them were in favour of negotiating an agreement
194
Border and Transborder Armed Actions (Nicaragua v . Honduras),
Counter-Memorial of Nicaragua (Jurisdiction and Admissibility), para. 189.
195 Border and Transborder Armed Actions (Nicaragua
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69 at p. 95,
para. 65.
196 Ibid.
197 Ibid.
108regulating matters between them arising as a result of the 2012
Judgment. It is Nicaragua that is trying to sidestep Article II of
the Pact by initiating a procedure when in reality it has
consistently taken the position that the alleged controversy can
be settled by “direct negotiations”.
(d) (d) The supplementary means of interpretation: the travaux
préparatoires confirm the textual interpretationtion
4.38. Colombia does not consider that recourse to the travaux
préparatoires of the Pact under Article 32 of the Vienna
Convention is necessary since the interpretation according to the
general rule enshrined in Article 31 does not leave the meaning
“ambiguous or obscure”, and does not lead to a result which is
“manifestly absurd o r unreasonable”. Nonetheless, it is worth
noting that the travaux préparatoires confirm that the drafters of
the Pact made a consciou s decision to use the language “in the
opinion of the parties” instead of referring to the opinion of just
one of them.
4.39. At the Ninth International Conference of American States
in Bogotá, it was in its Third Committee that the future Article II
of the Pact was initially drafted so as to provide that what
mattered was only the opinion of one of the Parties. The
information found in the records of the Conference on this point
is rather scarce. But what is decisive is that the Committee for
Coordination of the Conference subsequently adopted the
terminology “en opinión de las partes ” in the text of the final
110 draft article. As ind icated in an explanatory note of the Style
Commission of the Conference, the Pact was signed at the
closure of the Conference in Spanish and it was later translated
into the other three languages.
(e) (e)TheThe 1985 attempt by the Inter-American Juridical
Committee to modify Article II of the Pact of Bogotá
4.40. In 1985, the Permanent Council of the OAS requested the
Inter-American Juridical Committee to determine whether
amendments to the Pact needed to be made. Though the
Rapporteur of the Committee had suggested modifying Article
II of the Pact by amending the phrase “in the opinion of the
parties” to “in the opinion of one of the parties”, the Committee
rejected such proposal. 199 This confirms the conclusion that
Article II was drafted specifically with the intention of referring
to the opinion of both parties to a dispute, not just one of them.
(4) T HE NATURE AND EXTENT OF THE CONDITION REQUIRING
(4)T HE NATURE AND EXTENT OF THE CONDITION REQUIRING THAT
THATTHE DISPUTEE “CCANNOT BE SETTLED BY NEGOTIATIONS
(a) T(a) There must be evidence of a genuine attempt totiate
in relatinegotiate in relation to the subject-matter of the dispute
brought before the Court
4.41. In the 2011 Judgment in the Application of the
International Convention on the Elimination of All Forms of
198 Annex 32: Ninth International Conference of American States, Style
Commission, 29 Apr. 1948, p. 591.
199 Opinion of the Inter-American Juridical Committee on the American
Treaty on Pacific Settlement (Pact of Bogotá), Organization of American
States, Doc. OEA /Ser.G., CP/Doc. 1603/85, 3 Sept . 1985.
110Racial Discrimination case, the Court stated that “[m]anifestly,
in the absence of evidence of a genuine attempt to negotiate, the
precondition of negotiation is not met.” 200 In addition, it is not
enough that negotiations have merely been sought. Rather, the
applicant must have “made an offer – a serious offer – to
negotiate with the respondent” in relation to “the subject -matter
of the dispute brought before the Court”. 201
4.42. The Court based itself on similar reasoning in the 2006
Judgment in the Armed Activities on the Territory of Congo
case, when it underlined that “[t]he evidence has not satisfied
the Court that the DRC in fact sought to commence negotiations
in respect of the interpretation or application of the
Convention.” 202
4.43. In his separate opinion in the 1963 judgment in the Case
concerning the Northern Cameroons (Cameroon v. United
Kingdom), Judge Sir Gerald Fitzmaurice remarked that:
“it would still not be right to hold that a dispute
‘cannot’ be settled by negotiation, when the most
obvious means of attempting to do this, namely by
200
Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v . Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70 at p. 133,
para. 159.
201 Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v . Russian Fe deration),
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70 at p. 133,
para. 159, Joint dissenting opinion of President Owada, Judges Simma,
202aham and Donoghue and Judge ad hoc Gaja, p. 158, paras. 51-53.
Armed Activities on the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v . Rwanda), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2006, p. 6 at pp. 40- 41, para. 91.
112 direct discussions between the parties, had not been
tried - since it could not be assumed that these
would necessarily fail because there had been no
success in what was an entirely
certainly not more propitious, milieu.”
Moreover, as the Court has recently stated
disputations are not equivalent to negotiations:
“In determining what constitutes negotiations, the
Court observes that negotiations are distinct from
mere protests or disputations. Negotiations entail
more than the plain opposition of legal views or
interests between two parties, or the existence of a
series of accusations and rebuttals, or even the
exchange of claims and directly opposed counter -
claims. As such, the concept of ‘negotiations’
differs from the concept of ‘dispute’, and requires
– at the very least – a genuine attempt by one of the
disputing parties to engage in discussions with the
other disp205ng party, with a view to resolving the
dispute.”
203
Northern Cameroons, Preliminary Objections, Judgment, I.C.J.
Reports 1963, p . 123. Separate opinion of Judge Sir Gerald Fitzmaurice,
p. 97.
204 Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70 at p. 132, para.
157; Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of Congo v . Rwanda), Jurisdiction and Admissibility,
205gment, I.C.J. Reports 2006, p. 6 at pp. 40-41, para. 91.
Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70 at p. 132,
para. 157.
1124.44. Based on the foregoing, a State cannot argue that it
believes that a controversy “cannot be settled” unless that State
has at least made a genuine attempt to negotiate. 206
(b) The negotiations must have been exhausted
4.45. The Court's case law concerning provisions requiring that
the dispute “cannot be settled” establishes that it is not sufficient
merely to attempt negotiations; rather, such means must be
resorted to until they have met with “failure” or “have become
207
futile or deadlocked”. In this sense, the PCIJ stated:
“Negotiations do not of necessity always
presuppose a more or less lengthy series of notes
and despatches; it may suffice that a discussio n
should have been commenced, and this discussion
may have been very short; this will be the case if a
deadlock is reached, or if finally a point is reached
at which one of the Parties definitely declares
himself unable, or refuses, to give way and there
can be therefore no doubt that the dispute cannot
208
be settled by diplomatic negotiation .” (Italics in
the original)
206
This was also Nicaragua 's opinion in the Border and Transborder
Armed Actions case. See, I.C.J. Pleadings, Border and Transborder Armed
Actions (Nicaragua v. Honduras), Vol. II, p. 98 (Pellet):
“La seule question qui se pose à ce stade est donc la
suivante: la condition – la condition unique – mise par
l’article II à la saisine de la Court est- elle remplie? En
d’autres termes des ‘négociations diplomatiques ordinaires’
ont-elles eu lieu et peut -on déduire de celles -ci que le
différend ne peut pas être résolu par ce biais?”
207 Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v . Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70 at p. 133,
208a. 159.
Mavrommatis Palestine Concessions, Judgment No. 2, 1924,
P.C.I.J., Series A, No. 2, p. 13.
114 4.46. Nonetheless, the duration of the negotiations may be of
evidentiary value. In any event, it cannot be shown that such
peaceful means of settlement have failed or reac hed a deadlock
if discussions have not, or have barely, started.
4.47. As the following section will show, apart from the fact
that no “dispute” existed between Nicaragua and Colombia at
the time Nicaragua filed its Application,
the Parties had not been exhausted. Indeed, they had not even
begun because Nicaragua had made no complaint that Colombia
was not complying with the Judgment. Given that Article II of
the Pact of Bogotá sets a condition that
initiating any procedure under the Pact, which requires that the
Parties be of the opinion that the dispute cannot be settled by
direct negotiations, the condition to seisin had not been satisfied
on 26 November 2013. Consequently, the Court lacks
jurisdiction.
E. The Parties' Bona Fide Conduct Attests to the Fact that,
The Parties' Bona Fide Conduct Attests to the Fact that, in
their Opinion, their Maritime Differences can be Se Settled by
“DirNegotiations through the Usual Diplomatic Channels”els”
4.48. In this section, Colombia will show that, based on the
209 In this respect, the Court 's conclusion in the Application of the
International Convention on the Elimination of All Forms of Racial
Discrimination case – that the prerequisite had not been fulfilled –
largely the consequence of the short period of time – merely three days – that
had passed between the materialization of the dispute on the relevant subject -
matter and the filing of the Application. I.C.J. Reports 2011, p. 70 at p. 135,
para. 168.
114conduct of both Nicaragua and Colombia, it cannot be
concluded that the alleged controversy with Nicaragua is one
that, “in the opinion of the Parties, cannot be settled by direct
negotiations through the usual diplomatic channels”. In fact, the
opposite is the case. As of the date Nicaragua commenced these
proceedings, the highest officials of both countries were on
record as stating that they wished to undertake the negotiation of
a treaty in the light of what the Court decided in the 2012
Judgment.
(1) T HE CONDUCT OF N ICARAGUA
4.49. The timing of Nicaragua 's Application was evidently
determined solely by the date of termination, in its view, of the
basis of jurisdiction under Ar ticle XXXI of the Pact of Bogotá .
It was not determined by any opini on that negotiations to
resolve an alleged dispute or disputes had failed or were futile.
Nicaragua filed its Application on 26 November 2013, one day
before the date on which, in its opinion, the basis of jurisdiction
under the Pact of Bog otá expired. The timing of that filing was
based on the fact that, regardless of the chances of success of
negotiations, Nicaragua considered that it had to seise the Court
prior to the expiry of the only basis of jurisdiction available to it.
The fact that Nicaragua felt that it had to institute proceedings at
the latest on that day cannot in any way affect the assessment of
the jurisdictional pre -condition set out in Article II of the Pact,
which Nicaragua had not satisfied.
116 4.50. Nicaragua's pleadings refer to a meeting that took place in
Mexico City between the Presidents of both countries at the
beginning of December 2012, shortly after the Judgment was
210
rendered. What Nicaragua fails to point out is that, at that
meeting, President Ortega “reiterated Nicaragua's willingness to
discuss issues relating to the implementation of the Court's
judgment and its determination to manage the situation
peacefully”. 211 This was followed by a further declaration of
President Ortega on 22 February 2013, in which he stated:
“I [President Ortega] am certain that President
Santos and the People of Colombia know that the
solution to the ruling by the International Court of
Justice is [ …] to follow the path to organize the
ruling the of the Court [sic], organize it in terms of
its implementation, how to organize it, how to
apply it”.212
According to the account provided in Nicaragua's Memorial:
“Ortega said that both in Mexico, during the
takeover by President Enrique Peña Nieto, and in
the recent Summit of Latin American States in
Chile, he ha d the opportunity to discuss the issue
with the Colombian President and that they have
always spoken of taking joint measures.”
4.51. Two-and-a-half months before the filing of the
Application (on 10 September 2013), President Ortega repeated
the point “ that you can open a dialogue between the
210 Application, pp. 5-6, para. 8; Memorial of Nicaragua, para. 2.7.
211 Application, pp. 5- 6, para. 8; See also Memorial of Nicaragua,
para. 2.55.
212 Memorial of Nicaragua, Annex 35.
213 Ibid.
116Government of Nicaragua and the Government of Colombia,
and that these negotiations may produce an agreement that
allows us to make the transition in an orderly manner …” 214. He
added that the treaty should include agreemen ts for fishing, the
environment, and the fight against drug trafficking 215.
According to Nicaragua's Memorial, the very next day the
National Assembly of Nicaragua declared “its full endorsement
of the position of the Government of Nicaragua for a peaceful
216
solution through a treaty implementing the judgment”. Two
days later, President Ortega added that Nicaragua was willing to
create a national commission that would meet with a
commission from Colombia on the issue of implementation of
217
the 2012 Judgment.
rd
4.52. President Ortega was also on record as stating, at the 33
anniversary of Nicaragua's naval forces held on 14August 2013:
“We need to fight against drug trafficking and
organized crime, because that is the main threat to
the security of our countries ; that is the biggest
threat. And there is the conviction that we need to
214 Annex 40: Semana, Ortega calls for respect to the Judgment of the
Court of The Hague, 10 Sept. 2013. It is important to stress, as acknowledged
in Nicaragua's Memorial, that President Ortega had already recognized on 26
November 2012 the right of “the people of Colombia and the Raizal
brethren” to perform their histo ric fishing activities in Nicaraguan waters.
Memorial of Nicaragua, para. 2.54 and Annex 27. Additionally, Nicaragua 's
Memorial indicates that on 5 December 2012 President Ortega “promised
that Nicaragua would protect the areas of the original Seaflower Re serve,
now located in Nicaragua 's exclusive economic zone, as it would the rest of
the areas that are now recognized as being part of the Nicaraguan maritime
areas.” Memorial of Nicaragua, para. 2.57.
215 Ibid.
216
217 Memorial of Nicaragua, para. 2.59 and Annex 40 thereto.
Annex 41: La Jornada, Ortega says that Nicaragua is ready to
create a Commission to ratify the Judgment of the ICJ , 13 Sept. 2013
118 join our efforts, what we have been doing first here
in our Central American sub-
Caribbean and also coordinating activities with our
sister Republic of Colombia.
(...)
Nicaragua respects and is ready to work together
with Colombia in protecting the [
Reserve zone. We are ready to develop the
dialogue, the negotiations between Colombia and
Nicaragua that will finally enable us to overcome
that situation so that we, Colombian
Nicaraguans, may work further for peace, for
stability.
As I said, we must recognize that in the middle of
all this media turbulence, the Naval Force of
Colombia, which is very powerful, that certainly
has a very large military power, has been careful,
has been respectful and there has not been any
kind of confrontation between the Colombian and
Nicaraguan Navy, thank God, and God help us to
continue working that way.
(…) I am convinced, we
continue in the same manner until we can reach the
dialogue, reach the negotiations so as to conclude
the definitive agreements to apply the judgment
rendered by the Court in the month of November of
last year . We are
(Emphasis added)
4.53. The fact that there was no issue with Colombia at the time
Nicaragua filed its Application
Corrales Rodriguez, Chief of the Nicaraguan Naval Force, who
stressed on 18 November 2013, just bef ore the Application was
filed, that “in [the] one year of being there we have not had any
218
Annex 11: Declaration of the President of the Republic of
Nicaragua, 14 Aug. 2013.
118problems with the Colombian Naval Forces ”, that the naval
forces of the respective countries “maintain [ed] a continuous
communication” and that “ we have not had any c onflicts in
219
those waters.”
4.54. This was entirely consistent with what the Chief of
Nicaragua's Army, General Aviles, had stat ed on
5 December 2012: that “communication with the Colombian
authorities” is ongoing and that the Naval Forces of Colombia
220
had not approached Nicaraguan fishing boats.
4.55. These statements demonstrate that, up to the filing of the
Application, Nicaragua was of th e opinion that the two
neighbours maintained good relations, there had been no naval
“incidents”, and they could resolve their alleged controversy by
way of negotiations. In these circumstances, the filing by
Nicaragua of an application directed against C olombia on
26 November 2013 was completely at odds with reality.
4.56. Even after Nicaragua filed its Applicat ion − in other
words, after the critical date for assessing whether the
prerequisite under Article II of the Pact was met − President
Ortega stated on 29 January 2014 that, “We concluded that there
will be a moment in which we will sign agreements between
Colombia and Nicaragua … Afterwards, we will have to wait
219 Annex 43: El Nuevo Diario, Patrolling the recovered sea,
18 Nov. 2013.
220
Annex 36: El Nuevo Diario, The Navies are communicating,
5 Dec. 2012.
120 until Colombia and Nicaragua discuss to reach an agreement
that allows us to establish a way, especially and so I said to
President Santos, to guarantee all the rights of the native
221
population.” In addition, as recently as 9 May 2014, a
dispatch referred to in Nicaragua's Memorial reported that:
“Nicaragua proposed to Colombia to create a bi
national commission to coordinate the fishing
operations, antidrug patrolling and the conjunct
administration for the reserve of the Seaflower
biosphere in the Caribbean Sea, with the base of
the delimitations established by the International
Court of Justice (ICJ).”
That same dispatch quoted President Ortega as saying that:
“We propose to the government of Colombia, to
President Juan Manuel Santos, to work for a
Colombian-Nicaraguan commission so a treaty can
come out of it that will allow us to respect, and put
in practice the judgment by the ICJ.”
4.57. Moreover, on 18 March 2014, some four months after
Nicaragua submitted its Application, General Aviles reiterated
that there “are no incidents” and that the two States’ navies were
221 Annex 45: El Colombiano, Colombia and Nicaragua will conclude
agreements on the Judgment of The Hague: Ortega, 29 Jan. 2014.
222 Memorial of Nicaragua, Annex 46. According to the same
dispatch, “Ortega said that the bilateral dialogue is important to establish
through a treaty ‘how the reserve (Seaflower) will be handled, how the area
will be patrolled and the subject of fisheries’”. For President Ortega “
have to reach an agreement with our Colombian brothers (...) to establish
already a conjunct administration” of the reserve ‘with the companionship of
the UN’”. He concluded by s tating that, “in spite of the fact that Colombia
has not acknowledged the judgment of the ICJ, the same has been applied in
fact, little by little, and without confrontations.”
223 Ibid.
120navigating in their respective waters and maintaining
“permanent communication”. 224
4.58. It is clear, therefore, that the President of Nicaragua has
explicitly stated on numerous occasions, both before and after
the Application was filed, that Nica ragua's opinion was always
that “direct negotiations” should be undertaken with Colombia.
And the Nicaraguan military ha s likewise confirmed that the
position in the sea is calm.
(2) T HE CONDUCT OF COLOMBIA
4.59. The record shows that Colombia also considered that any
maritime issues between the two Parties arising as a result of the
Court's Judgment should be dealt with by means of negotiations
in order to conclude a treaty. In addition, on multiple occasions
the President of Colombia stressed the importance of respecting
the rule of law – both international and domestic – as well as the
need for the two Parties to cooperate in order to find practical
ways to implement the 2012 Judgment. In other words,
Colombia's conduct confirms that its highest authorities were of
the opinion that any controversy could be settled by way of
“direct negotiations”.
4.60. In its Application, Nicaragua sought to infer from the
declaration of President Santos of 19 November 2012 that
224
Annex 46: El Economista, Nicaragua denies intimidation of
Colombia in San Andrés, 18 Mar. 2014.
122 Colombia had rejected the Court
incorrect. President Santos’ declaration underlined that
Colombia “shall act with respect for the law”, and that it was
looking for “recourse or mechanism
international law, to defend [her] rights”. The President
declaration in the immediate aftermath of the decision only
served to demonstrate Colombia 's good faith. As President
Santos emphasized:
“Today, I wish to tell the people of San Andrés that
we are committed to find mechanisms and specific
strategies, and to produce results –
negotiation of treaties as may be necessary –
that their rights may at no time be disregarded. ”
(Emphasis added)
It should be recalled as well that President Ortega also stressed
the need to guarantee the rights of the people of San Andrés.
4.61. Colombia's view could not have been clearer. Colombia
was, and continues to be, looking for the resolution of any
controversy that might stem from the Court
within the framework of “direct negotiations”. This message
was echoed shortly afterward
President Santos stated that, “ We would ask the Minister of
Foreign Affairs to enter into direct contact with the Government
of Nicaragua to handle this dilemma
226
respect”.
225 Annex 6.
226
Annex 34: 90 Minutos,
after Judgment of The Hague, 24 Nov. 2012.
1224.62. For her part, Colombia 's Foreign Minister Holguín
favoured the establishment of permanent contacts between th e
Commanders of the respective n avies to avoid any
confrontation. On 5 December 2012, following comments made
by a Nicaraguan journal concerning alleged harassm ent of
Nicaraguan fishing boats by the Colombian Naval Forces , she
contacted Colombia's Navy Commander, Admiral Garc ía, who
stated that he had not received any reports on the matter. She
also reiterated her impression, shared by Nicaragua, that the
relations between the two States were good and that the meeting
in Mexico between the two Presidents had been positive. 227
4.63. In fact, the Minister of Foreign Affairs had already
commenced discussions with her Nicaraguan counterpart on
228
20 November 2012. During that conversation, the Minister
emphasized that the issue was one of concluding treaties so t hat
the people of the Archipelago of San Andrés, Providencia and
Santa Catalina could continue to fish where they had always
done so. As she confirmed:
“I had a conversation with the Minister of Foreign
Affairs of Nicaragua, we will look at fisheries
agreements. We need to agree on some fisheries
agreements so the islanders can continue fishing in
places where they have done so, especially
229
artisanal fishing.”
227 Annex 36.
228 Annex 7: Press Conference of the Minister of Foreign Affairs of
Colombia, 20 Nov. 2012.
229 Ibid.
124 4.64. The protection of the historic fishing rights of the people
of the Archipelago of San Andrés, Providencia and Santa
Catalina is of paramount importance for Colombia. It is an
inherent part of the culture of the Archipelago. It is in this sense
that the declarations made by Colombia 's highest authorities
must be understood, contrary to the way Nicaragua seeks to
portray them in its Application and Memorial.
declarations in no way imply a ny disregard for the Judgment of
the Court.
4.65. Again, in his declaration of 28 November 2012, the
President of Colombia stated that, despite the denunciation of
the Pact of Bogotá, “Colombia does not pretend to separate itself
from the peaceful solution of disputes”, but rather it “ reiterates
its commitment always to resort to peaceful procedures”.
same speech emphasis ed on the importance of respecting
international law.
4.66. Following the two Presidents’ meeting in Mexico City on
1 December 2012, President Santos stated that the way forward
was through “ reasonable
233
diplomacy”. Far from rejecting the 2012 Judgment, as
230
Annex 10: Declaration of the President of the Republic of Colombia,
18 Feb. 2013; Annex 38: Blu Radio, Waters of San Andrés, main challenge of
231 Commander of the Navy, 13 Aug. 2013.
Memorial of Nicaragua, paras. 4.34
thereto.
232 Annex 8.
233 Annex 35: Tele Sur, Ortega and Santos talk in Mexico about
dispute, 1 Dec. 2012.
124 234
Nicaragua asserts in its Application and Memorial, President
Santos stressed that:
“[Today] [w]e – the Minister of Foreign Affairs
and I – gathered with President Ortega. We
explained in the clearest way our position: we want
the Colombian rights, those of the raizales, not
only with respect to the rights of the artis anal
fishermen but other rights, to be re-established and
guaranteed. He understood.
We expressed that we should handle this situation
with cold head, in an amicable and diplomatic
fashion, as this type of matters must be dealt with
to avoid incidents. He also understood.
We agreed to establish channels of communication
to address all these points. I believe this is the m235
important. I believe that meeting was positive.”
4.67. Colombia's Foreign Minister echoed the same theme. On
13 January 2013, the Minister was explicit in underlining that
“we have a fluent communication” and that all “communication
channels are open”. 236
4.68. The consistency of Colombia 's position was further
confirmed on 9 September 2013 when, in a speech, President
237
Santos stressed a number of points. These included the need
to conclude a treaty in connection with the implementation of
the Judgment, the importance of the Archipelago of San Andrés,
234 Application, para. 8; Memorial of Nicaragua, para. 2.7.
235 Annex 9: Declaration of the President of the Republic of Colombia,
1 Dec. 2012.
236 Annex 37: El Tiempo, Press Interview to the Minister of Foreign
Affairs of Colombia, 13 Jan. 2013.
237 Annex 12.
126 Providencia and Santa Catalina as a whole, and the priority that
needed to be given to protecting the environmental and social
elements of the Seaflower Reserve.
4.69. Along the same lines, on 10 September 2013, Foreign
Minister Holguín reiterated her conviction that Colombia “ will
reach an agreement with Nicaragua”
repeated four days later when she declared that, “Colombia is
open to dialogue with Nicaragua to sign a treaty that establishes
the boundaries and a legal regime that contributes to the security
240
and stability in the region”.
4.70. All of these statements show very clearly that, far from
declaring that it would not comply with the Judgment, Colombia
has always been open to negotiations with Nicaragua with
respect to the 2012 Judgment. Both President Santos and
Foreign Minister Holguín are on record as stating that the
negotiation and conclusion of a treaty with Nicaragua is
necessary. Nicaragua's President had taken the same view. At
the same time, Colombia 's President was conscious of the need
to respect Colombian domestic law in connection with issues
238 Ibid. To quote the President: “A THIRD DECISION is to resort to
all legal and diplomatic means to reassert the protection of the Seaflower
Reserve, where our fishermen have been at work for hundreds of years”. As
he emphasized, it is an area of “great ecological value… to the Archipelago
and to the world, which UNESCO has declared a World Biosphere Reserve.”
His declaration serves to illustrate that, once again, all the prerequisites for
the opening of “direct negotiations” are present according to Colombia
239nion.
Annex 39: W Radio, Radio Interview to the Minister of Foreign
Affairs of Colombia, 10 Sept. 2013.
240 Annex 42: El Tiempo, The Minister of Foreign Affairs explains in
detail the strategy vis-a-vis Nicaragua, 15 Sept. 2013.
126relating to its boundaries. As discussed in Chapter 2, that was
why an application was made to the Colombian Constitutional
Court on 12 September 2013 to rule on the matter. 241
4.71. That is the context within which the declarations of
242 243
President Santos and Vice-President Garzón, invoked in
Nicaragua's Memorial, must be understood. The question of the
applicability of the 2012 Judgment in Colombian law is entirely
distinct from compliance with the Judgment under international
law. As to the latter, Colombia 's President repeatedly affirmed
that Colombia respects international law, and that Colombia was
prepared to negotiate a tre aty w ith Nicaragua regarding the
implementation of the Judgment.
4.72. On 27 November 2013, the day after the filing of the
Application, Colombia recalled its Ambassador to Nicaragua for
consultations. This was an understandable reaction to
Nicaragua's surprise filing of the Application. As the Minister of
Foreign Affairs stated:
“It is not a big problem. The r elations with
Nicaragua will not be broken … We have
241 The Colombian Minister of Foreign Affairs also remarked that,
“the Government has said that it awaits the decision of the Constitutional
Court before initiating any action”. ( Annex 42). This statement, however, in
no way attests to the impossibility to solve the alleged controversy by having
recourse to “direct negotiations”. Quite to the conry, it emphasized the
need to negotiate since the sentence delivered by the Constitutional Court on
2 May 2014 confirmed the opinion that the Judgment of 2012 should be
incorporated into domestic law through the conclusion and ratification of a
242aty between the two States.
Annex 13: Declaration of the President of the Republic of
Colombia, 18 Sept. 2013; Memorial of Nicaragua, Annex 5.
243 Memorial of Nicaragua, Annex 38.
128 [re]called our Ambassador for consultations
because sometimes you do not understand how
they come to a decision as the la
which that country has submitted in The Hague. I
say this, because you go to the Court when all the
instances to solve a problem are exhausted …”.
4.73. The Minister's reaction underlines the fact that Colombia –
which obviously still believed that “direct negotiations” were
appropriate – was genuinely taken unaware by Nicaragua
action. While Nicaragua's highest authorities had explicitly
manifested their readiness to resort to negotiations, they
nonetheless proc eeded to seise the Court without giving
negotiations a chance and without there being any dispute
between the Parties at that time.
F. Conclusion
4.74. For the reasons set out above, the Court
jurisdiction in respect of the proceedings commenced by
Nicaragua against Colombia on 26 November 2013. In
particular:
(1) There was no dispute between the two Parties when
Nicaragua filed its Application; and,
(2) in any event, the condition precedent under Article II of
the Pact of Bogotá has not been fulfilled
opinion of the Parties, to the extent there was any dispute,
it was not one that could not be settled by direct
negotiations through the usual diplomatic channels.
244
Annex 44: El Universal, In Colombia a rupture of diplomatic
relations with Nicaragua is excluded, 24 Dec. 2013.
128 Chapter 5
FOURTH OBJECTION: THE COURT HAS NO
“INHERENT JURISDICTION” UPON WHICH
NICARAGUA CAN RELY IN THE FACE OF
THE LAPSE OF JURISDICTION UNDER THE
PACT OF BOGOTÁ
Introduction
5.1. Since Nicaragua is well aware that the Court does not have
jurisdiction under the Pact of Bogotá, as was demonstrated in
Chapters 3 and 4, Nicaragua's Application invokes a second
basis of the Court 's jurisdiction, which purportedly “ lies in its
inherent power to pronounce on the actions required by its
Judgments.” 245 According to Nicaragua, this inherent power of
the Court is “a complement to Article XXXI to the Pact of
246
Bogotá” which can serve as “an alternative basis for its
jurisdiction in the present case”.
expands this so- called “inherent jurisdiction” to “disputes
arising from non- compliance with its Judgments ,”
of the Court 's so-called “inherent” jurisdiction which is
examined in the following C hapter. The magical property of
Nicaragua's concept of “inherent jurisdiction” conjures the
Court's jurisdiction for issues for which the Court otherwise
would not have jurisdiction under its Statute.
245 Application, para. 18.
246 Memorial of Nicaragua, para. 1.24.
247 Ibid., para. 1.32.
248 Ibid., para. 1.26; see also subtitle C.2. before para. 1.24. at p. 12.
130 Chapter 5
FFOURTH OBJECTION: THE COURT HAS NO
“I“INHERENT JURISDICTION” UPON WHICH
NICARAGUACAN RELY IN THE FACE OFTHEF
LAPSE OF JURISDICTION UNDER THE PACT
PACTOF BOGOTÁÁ
A. Introduction
5.1. Since Nicaragua is well aware that the Court does not have
jurisdiction under the Pact of Bogotá, as was demonstrated in
Chapters 3 and 4, Nicaragua's Application invokes a second
basis of the Court 's jurisdiction, which purportedly “ lies in its
inherent power to pronounce on the actions required by its
Judgments.” 245According to Nicaragua, this inherent power of
the Court is “a complement to Article XXXI to the Pact of
246
Bogotá” which can serve as “an alternative basis for its
jurisdiction in the present case”.
expands this so- called “inherent jurisdiction” to “disputes
arising from non- compliance with its Judgments ,”
of the Court 's so-called “inherent” jurisdiction which is
examined in the following C hapter. The magical property of
Nicaragua's concept of “inherent jurisdiction” conjures the
Court's jurisdiction for issues for which the Court otherwise
would not have jurisdiction under its Statute.
245
246 Application, para. 18.
247 Memorial of Nicaragua, para. 1.24.
248 Ibid., para. 1.32.
Ibid., para. 1.26; see also subtitle C.2. before para. 1.24. at p. 12.
1305.2. To sustain its theory of “inherent jurisdiction”, Nicaragua
is compelled to dismiss the clear purport of the Statute and the
Rules of Court and to misrepresent decisions of the PCIJ and the
International Court of J ustice. Instead of this Court 's law and
practice, Nicaragua tries to enlist the law and practice of the
European Court of Human Rights (ECHR) and the Inter -
American Court of Human Rights (IACHR); even then, it
ignores the explicit statutory authority afforded to those other
Courts for monitoring the implementation of their decisions.
5.3. If Nicaragua's broad theory of inherent jurisdiction were to
be taken seriously, it w ould cause mischievous results. It would
strike at the foundation of consensual jurisdiction under Article
36, paragraphs 2 and 3, of the Statute for Nicaragua's theory of
“inherent jurisdiction” ignores any conditions which States may
have attached to their consent to jurisdiction. Once a State
accepted the Court's jurisdiction in a particular dispute, it would
remain permanently subject to the Court 's jurisdiction with
regard to that dispute after the Court 's final judgment, or to any
other matter or fact subsequent to the judgment but related to
what had already been settled. Since, according to Nicaragua,
the legal basis of this “inherent jurisdiction” is independent of
the Statute and the Rules of the Court, it would not be subject to
temporal limitations. Rather , it would enable the Court to
resume exercise of jurisdiction with respect to a final judgment
years after the judgment and with regard to any other dispute
which might arise between the parties in connection wit h the
implementation of the judgment.
1325.2. To sustain its theory of “inherent jurisdiction”, Nicaragua
is compelled to dismiss the clear purport of the Statute and the
Rules of Court and to misrepresent decisions of the PCIJ and the
International Court of J ustice. Instead of this Court 's law and
practice, Nicaragua tries to enlist the law and practice of the
European Court of Human Rights (ECHR) and the Inter -
American Court of Human Rights (IACHR); even then, it
ignores the explicit statutory authority afforded to those other
Courts for monitoring the implementation of their decisions.
5.3. If Nicaragua's broad theory of inherent jurisdiction were to
be taken seriously, it w ould cause mischievous results. It would
strike at the foundation of consensual jurisdiction under Article
36, paragraphs 2 and 3, of the Statute for Nicaragua's theory of
“inherent jurisdiction” ignores any conditions which States may
have attached to their consent to jurisdiction. Once a State
accepted the Court's jurisdiction in a particular dispute, it would
remain permanently subject to the Court 's jurisdiction with
regard to that dispute after the Court 's final judgment, or to any
other matter or fact subsequent to the judgment but related to
what had already been settled. Since, according to Nicaragua,
the legal basis of this “inherent jurisdiction” is independent of
the Statute and the Rules of the Court, it would not be subject to
temporal limitations. Rather , it would enable the Court to
resume exercise of jurisdiction with respect to a final judgment
years after the judgment and with regard to any other dispute
which might arise between the parties in connection wit h the
implementation of the judgment.
132under Nicaragua's theory, which somehow exists and operates
independently from its Statute. Nicaragua's theory is also
contradictory. Having dismissed the relevance of any contrary
provision in the Statute or the Rules of the Court in order to
support its conte ntion, Nicaragua, nevertheless, reverts to the
instruments determining the Court 's jurisdiction to argue that
such inherent jurisdiction is “implied” in those texts. Nicaragua,
however, fails to point to any “texts determining the jurisdiction
of the Cour t” that even remotely imply such an “inherent”
power.
5.7. To state the obvious, the Court has been created by the
Statute and only has those powers which that instrument confers
on it. Article 1 of the Statute expressly states that the Court shall
function in accordance with its Statute:
“The International Court of Justice established by
the Charter of the United Nations as the principal
judicial organ of t he United Nations shall be
constituted and shall function in accordance with
the provisions of the present Statute.”
5.8. Article 1 of the Statute could not be clearer. The basis of
the Court 's jurisdiction is set out in Article 36. Nicaragua 's
theory of inherent jurisdiction does not fall within any of the
bases of jurisdiction provided for therein (special agre ement,
treaty, convention, optional clause declaration or even forum
prorogatum).
134under Nicaragua's theory, which somehow exists and operates
independently from its Statute. Nicaragua's theory is also
contradictory. Having dismissed the relevance of any contrary
provision in the Statute or the Rules of the Court in order to
support its conte ntion, Nicaragua, nevertheless, reverts to the
instruments determining the Court 's jurisdiction to argue that
such inherent jurisdiction is “implied” in those texts. Nicaragua,
however, fails to point to any “texts determining the jurisdiction
of the Cour t” that even remotely imply such an “inherent”
power.
5.7. To state the obvious, the Court has been created by the
Statute and only has those powers which that instrument confers
on it. Article 1 of the Statute expressly states that the Court shall
function in accordance with its Statute:
“The International Court of Justice established by
the Charter of the United Nations as the principal
judicial organ of t he United Nations shall be
constituted and shall function in accordance with
the provisions of the present Statute.”
5.8. Article 1 of the Statute could not be clearer. The basis of
the Court 's jurisdiction is set out in Article 36. Nicaragua 's
theory of inherent jurisdiction does not fall within any of the
bases of jurisdiction provided for therein (special agre ement,
treaty, convention, optional clause declaration or even forum
prorogatum).
134 (…)
3.6 The judgment of 19 November 2012
established the boundary between the continental
shelf and exclusive economic zone of the Republic
of Nicaragua and the Republic of Colombia in the
area that is the sub ject of the present case. The
253
judgment has the status of res judicata.”
5.11. The Memorial also makes clear that Nicaragua is asking
for the Court “to decide new legal questions and to examine
‘facts other than those which it has considered in the judgment
[of 19 November 2012], and consequently all facts subsequent
to that judgment’, something ‘the Court, when giving an
254
interpretation, refrains from [doing] ’.” Hence, in the absence
of jurisdiction under the Pact of Bogotá, Nicaragua is perforce
postulating an “inherent jurisdiction” of the Court to consider
“facts other than those ” which it had already considered in its
Judgment of 19 November 2012 and “ facts subsequent t o that
judgment”. The Statute provides no such jurisdiction, for it
would subvert the foundational principle of the consent of the
parties.
253 Memorial of Nicaragua, paras. 1.28, 1.31, 1.34 and 3.6.
254 Ibid., para 1.33.
136 (…)
3.6 The judgment of 19 November 2012
established the boundary between the continental
shelf and exclusive economic zone of the Republic
of Nicaragua and the Republic of Colombia in the
area that is the sub ject of the present case. The
253
judgment has the status of res judicata.”
5.11. The Memorial also makes clear that Nicaragua is asking
for the Court “to decide new legal questions and to examine
‘facts other than those which it has considered in the judgment
[of 19 November 2012], and consequently all facts subsequent
to that judgment’, something ‘the Court, when giving an
254
interpretation, refrains from [doing] ’.” Hence, in the absence
of jurisdiction under the Pact of Bogotá, Nicaragua is perforce
postulating an “inherent jurisdiction” of the Court to consider
“facts other than those ” which it had already considered in its
Judgment of 19 November 2012 and “ facts subsequent t o that
judgment”. The Statute provides no such jurisdiction, for it
would subvert the foundational principle of the consent of the
parties.
253 Memorial of Nicaragua, paras. 1.28, 1.31, 1.34 and 3.6.
254 Ibid., para 1.33.
136instrument, the PCIJ 's jurisdiction was only accepted if the
parties had not agreed to arbitration. Hence, the PCIJ had two
treaty-grounded bases of jurisdiction before it. The P CIJ
observed:
In its [ the Court’s] opinion, the multiplicity of
agreements concluded accepting the compulsory
jurisdiction is evidence that the contracting Parties
intended to open up new ways of access to the
Court rather than to close old ways or to allow
them to cancel each other out with the ultimate
result that no jurisdiction would remain.
(…)
It follows that if, in a particular case, a dispute
could not be referred to the Court under the Treaty,
whereas it might be submitted to it under the
declarations of Belgium and Bulgaria accepting as
compulsory the jurisdiction of the Court, in
accordance with Article 36 of the Statute, the
Treaty cannot be adduced to prevent those
declarations from exercising their effects and
disputes from being thus submitted to the
Court.”257
After rejecting jurisdiction on the basis of the 1931 T reaty, the
PCIJ proceeded to examine the question of its jurisdiction on the
alternate basis of the Optional Clause:
“The negative result arrived at by the examination
of the first source of jurisdiction does not however
dispense the Court from the duty of considering the
other source of jurisdiction invoked separately and
independently from the first.
The Court will now proceed to consider the
257
The Electricity Company of Sofia, Series A/B, No. 77, Judgment of 4
April 1939, p. 76.
138instrument, the PCIJ 's jurisdiction was only accepted if the
parties had not agreed to arbitration. Hence, the PCIJ had two
treaty-grounded bases of jurisdiction before it. The P CIJ
observed:
In its [ the Court’s] opinion, the multiplicity of
agreements concluded accepting the compulsory
jurisdiction is evidence that the contracting Parties
intended to open up new ways of access to the
Court rather than to close old ways or to allow
them to cancel each other out with the ultimate
result that no jurisdiction would remain.
(…)
It follows that if, in a particular case, a dispute
could not be referred to the Court under the Treaty,
whereas it might be submitted to it under the
declarations of Belgium and Bulgaria accepting as
compulsory the jurisdiction of the Court, in
accordance with Article 36 of the Statute, the
Treaty cannot be adduced to prevent those
declarations from exercising their effects and
disputes from being thus submitted to the
Court.”257
After rejecting jurisdiction on the basis of the 1931 T reaty, the
PCIJ proceeded to examine the question of its jurisdiction on the
alternate basis of the Optional Clause:
“The negative result arrived at by the examination
of the first source of jurisdiction does not however
dispense the Court from the duty of considering the
other source of jurisdiction invoked separately and
independently from the first.
The Court will now proceed to consider the
257
The Electricity Company of Sofia, Series A/B, No. 77, Judgment of 4
April 1939, p. 76.
138 established, shall not be frustrated, and on the
other, to provide for the orderly settlement of al l
matters in dispute, to ensure the observance of the
‘inherent limitations on the exercise of the judicial
function’ of the Court, and to ‘maintain its judicial
character’ (Northern Cameroons, Judgment, I.C.J.
Reports 1963, at p. 29). Such inherent jurisdiction,
on the basis of which the Court is fully empowered
to make whatever findings may be necessary for
the purposes just indicated, derives from the mere
existence of the Court as a judicial organ
established by the consent of States, and is
conferred upon it in order that i ts basic judicial
260
functions may be safeguarded ”. (Emphasis
added)
Indeed, the Court by citing its decision in Northern Cameroons
was emphasizing the “inherent limitations” on the exercise of
the judicial function of the Court so as to maintain its judicial
character.
5.16. In addition to quoting out of context, Nicaragua
mistakenly asserts that the “situation in the present case is
261
legally similar to that presented by Nuclear Tests cases.”
Nicaragua purports to find that similarity in that, first, “the
Court found that, in view of the assurances given by France, the
dispute had disappeared.” 262And, second, the Court stated that
“[o]nce the Court has found that a State has entered into a
commitment concerning its future conduct it is not the Court 's
260 Nuclear Tests (Australia v . France), Judgment, I.C.J. Reports 1974,
p. 253 at p. 259-260, para. 23.
261 Memorial of Nicaragua, para. 1.29.
262 Ibid.
140 established, shall not be frustrated, and on the
other, to provide for the orderly settlement of al l
matters in dispute, to ensure the observance of the
‘inherent limitations on the exercise of the judicial
function’ of the Court, and to ‘maintain its judicial
character’ (Northern Cameroons, Judgment, I.C.J.
Reports 1963, at p. 29). Such inherent jurisdiction,
on the basis of which the Court is fully empowered
to make whatever findings may be necessary for
the purposes just indicated, derives from the mere
existence of the Court as a judicial organ
established by the consent of States, and is
conferred upon it in order that i ts basic judicial
260
functions may be safeguarded ”. (Emphasis
added)
Indeed, the Court by citing its decision in Northern Cameroons
was emphasizing the “inherent limitations” on the exercise of
the judicial function of the Court so as to maintain its judicial
character.
5.16. In addition to quoting out of context, Nicaragua
mistakenly asserts that the “situation in the present case is
261
legally similar to that presented by Nuclear Tests cases.”
Nicaragua purports to find that similarity in that, first, “the
Court found that, in view of the assurances given by France, the
dispute had disappeared.” 26And, second, the Court stated that
“[o]nce the Court has found that a State has entered into a
commitment concerning its future conduct it is not the Court 's
260 Nuclear Tests (Australia v . France), Judgment, I.C.J. Reports 1974,
p. 253 at p. 259-260, para. 23.
261 Memorial of Nicaragua, para. 1.29.
262 Ibid.
140the Court make any express reservation with respect to the
claims that were raised in that case. Nothing in the
2012 Judgment even hin ts at the Court 's intention to retain or
reserve a continuing or “inherent power” to pronounce on the
actions required by its Judgment.
(3) M M ILITARY ANDDP ARAMILITARYTAAYCTIVITIES IN AND AGAINST
AGAINNTICARAGUAAGUA
5.19. Nor is there anything in the 1984 Judgment in the Military
and Paramilitary Activities in and against Nicaragua that could
even suggest that the Court upheld “inherent jurisdiction”.
Indeed, the Court there quoted from Factory at Chorzow that it
is not for the Court to contemplate various scenarios of whe ther
or to what extent parties would comply with its judgments:
“It should be observed however that the Court
‘neither can nor should contemplate the
contingency of the judgment not being complied
with’ (Factory at Chorzow, P. C. I. J., Series A,
No. 17, p. 63).”65(Emphasis added)
5.20. It has been point ed out that inherent judicial powers are
always implied powers and are confined to what is necessary to
carry out the functions that have been expressly conferred. 266
But an inherent jurisdiction cannot expand the Court's
jurisdiction, independently, from what is expressly confer red
upon it in its Statute.
265 Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1984, p. 392 at p. 437 para. 101.
266 C. Brown, A Common Law of Adjudication (2007), pp. 69 and 71.
142the Court make any express reservation with respect to the
claims that were raised in that case. Nothing in the
2012 Judgment even hin ts at the Court 's intention to retain or
reserve a continuing or “inherent power” to pronounce on the
actions required by its Judgment.
(3) M ILITARY AND PARAMILITARY A CTIVITIES IN AND AGAINST
NICARAGUA
5.19. Nor is there anything in the 1984 Judgment in the Military
and Paramilitary Activities in and against Nicaragua that could
even suggest that the Court upheld “inherent jurisdiction”.
Indeed, the Court there quoted from Factory at Chorzow that it
is not for the Court to contemplate various scenarios of whe ther
or to what extent parties would comply with its judgments:
“It should be observed however that the Court
‘neither can nor should contemplate the
contingency of the judgment not being complied
with’ (Factory at Chorzow, P. C. I. J., Series A,
No. 17, p. 63).”65(Emphasis added)
5.20. It has been point ed out that inherent judicial powers are
always implied powers and are confined to what is necessary to
carry out the functions that have been expressly conferred. 266
But an inherent jurisdiction cannot expand the Court's
jurisdiction, independently, from what is expressly confer red
upon it in its Statute.
265 Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1984, p. 392 at p. 437 para. 101.
266 C. Brown, A Common Law of Adjudication (2007), pp. 69 and 71.
142 “Binding force and execution of judgments
1. The High Contracting Parties undertake to abide
by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which
shall supervise its execution.
3. If the Committee of Ministers considers that the
supervision of the execution of a final judgment is
hindered by a problem of interpretation of the
judgment, it may refer the matter to the Court for a
ruling on the question of interpretation. A referral
decision shall require a majority vote of two thirds
of the representatives entitled to sit on the
committee.
4. If the Committee of Ministers considers that a
High Contracting Party refuses to abide by a final
judgment in a case to which it is a party, it may,
after serving formal notice on that Party and by
decision adopted by a majority vote of two thirds
of the representatives entitled to sit on the
committee, refer to the Court the question whether
that Party has failed to fulfil its obligation under
paragraph 1.
5. If the Court finds a violation of paragraph 1, it
shall refer the case to the Committee of Ministers
for consideration of the measures to be taken. If the
Court finds no violation of paragraph 1, it shall
refer the case to the Committee of Ministers, which
shall close its examination of the case.”
As is apparent, none of the powers of the E CHR with respect to
the Council of Ministers’ supervision of compliance (Article 46
(3) and (4) of the European Convention of Human Rights) 270is
in an y way “implied” or “inherent”. To the contrary: all the
270 See Chapter 6, Section B. (3) below.
144 “Binding force and execution of judgments
1. The High Contracting Parties undertake to abide
by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which
shall supervise its execution.
3. If the Committee of Ministers considers that the
supervision of the execution of a final judgment is
hindered by a problem of interpretation of the
judgment, it may refer the matter to the Court for a
ruling on the question of interpretation. A referral
decision shall require a majority vote of two thirds
of the representatives entitled to sit on the
committee.
4. If the Committee of Ministers considers that a
High Contracting Party refuses to abide by a final
judgment in a case to which it is a party, it may,
after serving formal notice on that Party and by
decision adopted by a majority vote of two thirds
of the representatives entitled to sit on the
committee, refer to the Court the question whether
that Party has failed to fulfil its obligation under
paragraph 1.
5. If the Court finds a violation of paragraph 1, it
shall refer the case to the Committee of Ministers
for consideration of the measures to be taken. If the
Court finds no violation of paragraph 1, it shall
refer the case to the Committee of Ministers, which
shall close its examination of the case.”
As is apparent, none of the powers of the E CHR with respect to
the Council of Ministers’ supervision of compliance (Article 46
(3) and (4) of the European Convention of Human Rights) 270is
in an y way “implied” or “inherent”. To the contrary: all the
270 See Chapter 6, Section B. (3) below.
144 “The Court considers that, when adopting the provisions
of Article 65 of the Convention, the intention of the
States was to grant the Court the authority to monitor
compliance with its decisions, and that the Court should
be responsible for informing the OAS General
Assembly, through its annual report, of the cases in
which the decisions of the Court had not been complied
with, because it is not possible to apply Article 65 of the
Convention unless the Court monitors compliance with
its decisions.”274
5.24. Thus, far from being an inherent power, the
competence to “monitor compliance” is derived from the
Convention. The Inter -American Court of Human Rights uses
the expression ‘inherent’ to mean consequentially linked to the
express duty of reporting, and not to mean an additional basis of
jurisdiction without express grounds on the Convention, as
Nicaragua argues. Accordingly, Article 69 of the Rules of
Procedure of the Inter-American Court of Human Rights
expressly regulates the procedure for monitoring compliance. 275
E. Conclusion
5.25. There is no foundation for Nicaragua 's theory of an
“inherent” or supervisory jurisdiction of the International Court
274 I/A Court H.R., Case of Baena Ricardo et al . Competence. Judgment
of 28 Nov. 2003. Series C No. 104, paras. 74-76.
275 Rules of Procedure of the I/A Court H.R . (approved during its
LXXXV Regular Period of Sessions, held from November 16 to 28, 2009 ),
Article 69 which is entitled Procedure for Monitoring Compliance with
Judgments and Other Decisions of the Court ”. The I/A Court H.R., also
invokes as “grounds for the competence” for monitoring compliance, inter
alia, Articles 33, 62 (1) (3) of the American Convention.
146 “The Court considers that, when adopting the provisions
of Article 65 of the Convention, the intention of the
States was to grant the Court the authority to monitor
compliance with its decisions, and that the Court should
be responsible for informing the OAS General
Assembly, through its annual report, of the cases in
which the decisions of the Court had not been complied
with, because it is not possible to apply Article 65 of the
Convention unless the Court monitors compliance with
its decisions.”274
5.24. Thus, far from being an inherent power, the
competence to “monitor compliance” is derived from the
Convention. The Inter -American Court of Human Rights uses
the expression ‘inherent’ to mean consequentially linked to the
express duty of reporting, and not to mean an additional basis of
jurisdiction without express grounds on the Convention, as
Nicaragua argues. Accordingly, Article 69 of the Rules of
Procedure of the Inter-American Court of Human Rights
expressly regulates the procedure for monitoring compliance. 275
Conclusion
5.25. There is no foundation for Nicaragua 's theory of an
“inherent” or supervisory jurisdiction of the International Court
274 I/A Court H.R., Case of Baena Ricardo et al . Competence. Judgment
of 28 Nov. 2003. Series C No. 104, paras. 74-76.
275 Rules of Procedure of the I/A Court H.R . (approved during its
LXXXV Regular Period of Sessions, held from November 16 to 28, 2009 ),
Article 69 which is entitled Procedure for Monitoring Compliance with
Judgments and Other Decisions of the Court ”. The I/A Court H.R., also
invokes as “grounds for the competence” for monitoring compliance, inter
alia, Articles 33, 62 (1) (3) of the American Convention.
146148 Chapter 6
FIFFIFTH OBJECTION: THE COURT HAS NO
NO POSPOST-ADJUCATIVE ENFORCEMENT
JURISDICTION
A. Introduction
6.1. Confronted with the jurisdictional consequence of
Colombia's denunciation of the Pact of Bogotá, Nicaragua seeks
to invent other bases of jurisdiction on which to rest its claims.
One of them is the novel theory of “inherent jurisdiction” which
was considered in the previous objection.
as radical, is that the Court has a specific jurisdiction to monitor
and supervise compliance with its judgments. Colombia submits
that even if the Court were to find that it had an “inherent
jurisdiction”, such “inherent jurisdiction” does not extend to a
post-adjudicative enforcement jurisdiction.
6.2. In the references to this head of the Court 's jurisdiction in
its Application and especially in its Memorial
carefully avoids the term “enforcement”, dancing around it with
expressions such as “supervision of compliance” or the Court's
“supervisory” or “monitoring” powers, even entirely
repackaging its claim to enforcement as a claim of State
responsibility. In Nuclear Tests, the Court held:
“In the circumstances of the present case, although
the Applicant has in its Appl
traditional formula of asking the Court “to adjudge
276 See Chapter 5 above.
148 and declare” (a formula similar to those used in the
cases quoted in the previous paragraph), the Court
must ascertain the true object and purpose of the
claim and in doing so it cannot confine itself to the
277
ordinary meaning of the words used.”
In the instant case, the Court will have no difficulty in
ascertaining the true object and purpose of Nicaragua 's claim:
that, after the Court has rendered a final judgment, it retains an
extra-Statutory inchoate jurisdiction over the implementation of
its judgment.
6.3. This is one more effort a t inventing a type of perpetual
jurisdiction and, like Nicaragua 's more general theory of
inherent jurisdiction, it lacks any basis in the Statute of the
Court, in the Pact of Bogotá or in the Court 's jurisprudence. Nor
is this a lacuna: enforcement is expressly assigned to other
institutions. Both the UN Charter and the Pact of Bogotá assign
the subject matter of Nicaragua 's claim to the Security Council.
Moreover, under Article L of the Pact of Bogot á, the State Party
claiming non-compliance “shall, before resorting to the Security
Council of the United Nations, propose a Meeting of
Consultation of Ministers of Foreign Affai rs to agree upon
appropriate measures to ensure the fulfilment of the judicial
decision.” 278
277 Nuclear Tests (Australia v . France), Judgment, I.C.J. Reports 1974,
p. 253 at p. 263, para. 30.
278 Nor, indeed, is there anything to enforce in the instant case. The
2012 Judgment is declaratory. In the words of the Permanent Court of
International Justice, it
“is in the nature of a declaratory judgment, the intention of
which is to ensure recognition of a situation at law, once and
for all and with binding force as between the Parties…”
150 6.4. While Colombia objects to jurisdiction on this count, it
wishes to confirm, lest there be any doubt, that it has always
considered itself bound by the 2012 Judgment of the Court and
that all of Nicaragua 's allegations of non- compliance lack any
basis in fact and in law.
B. NNicaragua's Claim Seeks to Have the Court Undertake a
Post-Adjudicative Enforcement or “Compliance Monitoring”
Role over its Judgments
6.5. The gravamen of Nicaragua 's case is the allegation that
Colombia has not complied with the J
2012. Nicaragua's Application concludes its first request with
the claim that:
“consequently, Colombia is bound to comply
with the Judgment of 19 November 2012, wipe
out the legal and material consequences of its
internationally wrongful acts and make full
reparation for the harm caused by th
(Emphasis added).
This reduces all of the first request to non- compliance and to a
demand for judicial enfo rcement. The Memorial, while seeking
Interpretation of Judgments Nos. 7 and 8 (Factory at
Chorzów), Judgment No. 11, 1927, P.C.I.J. Series A, No. 13,
p. 20.
As a matter of substantive law, the 2012 Judgment delimiting the maritime
boundaries between the Parties does not require any further judicial
implementation by the Court. Any pronouncement of the Court on the
“actions required by its Judgment”, to quote from Nicaragua
cannot substantively add to the pronouncement of a “situation at law” already
decided by the Court, and would enta
powers.
150to recast Nicaragua's claims as reparation, inescapably reverts to
279
non-compliance and enforcement. Thus, the Memorial
demands that
“Colombia must, from the time that the judgment
is issued, act in accordance with the terms of the
judgment.”
and that
“[i]n the present case, Colombia must treat the
waters determined by the Court to appertain to
Nicaragua as Nicaraguan waters (territorial sea or
exclusive economic zone and continental shelf, as
appropriate), and refrain from treating them as
280
subject to Colombian jurisdiction.”
6.6. The formulation of Nicaragua 's requests corroborates the
finding that Nicaragua seeks to ensure and enforce compliance
with the Judgment of 19 November 2012 on a jurisdictional
basis which has not been conferred on the Court by the Parties
under the Pact of Bogotá.
6.7. In the Application, Nicaragua relies on what it styles a
broad jurisdiction of the Court “to pronounce on the actions
required by its Judgments.” 281 In this vein, the Memorial
invokes the jurisdiction of the Court “to pronounce itself on
cases of non-compliance with a previous Judgment.” 282
279
280 Memorial of Nicaragua, para. 1.35.
Ibid., para. 3.9.
281 Application, para. 18.
282 Memorial of Nicaragua, para. 1.26; see also subtitle C.2. before
para. 1.24.
152 6.8. Nicaragua's alternative jurisdictional base to this claim,
thus, rests on the premise that the Court has
enforcement jurisdiction, encompassing the power to supervise
and ensure compliance with its judg ments. As a matter of law,
the Court has no such jurisdiction.
C. Neither the ICJ Statute nor the Pact of Bogotá Grants the
the Court a Post-Adjudicative Enforcement or “Compliance
Monitoring” Role Over Its Judgments
((1)T THEES TATUTE OF THEEICJ
ANENFORCEMENT COMPETENCEE
6.9. Even assuming, quod non,
jurisdiction in the instant case under Article XXXI of the Pact of
Bogotá, such jurisdiction would be confined to adjudication. At
the same time, it would not extend to Nicaragua
enforcement by the Court premised on C olombia's alleged non-
compliance with the Judgment of 2012. Neither the UN Charter
nor the Pact of Bogotá assigns enforcement, including
supervision and monitoring of compliance, to the International
Court of Justice.
6.10. Under the Charter and Statute, adjudi cation is assigned to
the Court; enforcement, encompassing the subsequent
supervision of compliance with a judgment of the Court, is not.
As Rosenne observes:
“In international law this separation of the
adjudication from the post -adjudication phase is
fundamental, operative both in the sphere of
arbitration and in that of judicial settlement. This is
152 reflected in the distinction between the binding
force and the enforceability of the judgment or
283
award.”
This foundational distinction is universally acknowledged. As
noted in a leading commentary of the Statute:
“The execution of decisions is not a matter for the
ICJ, but for the parties to the dispute which,
according to Art. 94, para. 1 UN Charter, have t o
comply with the Court's decisions.” 284
6.11. Cot and Pellet 's authoritative study of the Charter is in
accord:
“S’agissant des prononcés judiciaires de cette
Cour, la distinction est maintenue entre leur force
de chose jugée, dont le Statut traite en termes
inchangés (Articles 59-61), et leur force exécutoire,
qui relève de la Charte. Cela signifie que la Cour
est con cernée par le caractère obligatoire et
définitif de ses prononcés et doit connaître elle -
même des demandes en interprét ation ou en
révision, tandis qu’ un conflit sur l ’inexécution est
considéré comme distinct du litige soumis à la
Cour et doit être réglé p ar des voies politi ques et
non plus judiciaires...”. 285
283
S. Rosenne, The Law and Practice of the International Court, 1920-
2845, (2006), Vol. I, p. 199.
K. Oellers-Frahm, “Article 94”, in: A. Zimmermann et al (eds.), The
Statute of the International Court of Justice: A Commentary (2012), p. 191.
285 A. Pillepich, “Article 94”, in: J.P. Cot and A. Pellet (eds.), La
Charte des Nations Unies , Commentaire article par article (2005), Vol. II,
para. 13. As noted by the author:
“With respect to the judicial pronouncements of this Court, the
distinction is maintained between their force as res judicata, which
the Statute [of the International Court of Justice] treats in unchanged
terms (Articles 59-61) and their executory effect, which is governed
by the Charter. This means that the Court deals with the binding and
final nature of its pronouncements and must rule itself on requests
for interpretation and revision, whilst a conflict over non -execution
154 6.12. The Court 's Statute provides for neither judicial
enforcement of judgments nor any judicial supervisory powers
over implementation of its judgments. Instead, the UN Charter
vests in the Security Council the power to take steps to ensure
compliance (Article 94 (2)). Indeed, the Washington Committee
of Jurists stated in 1945 that: “It was not the business of the
Court to ensure the execution of its decisions.”
Weeramantry put it, “The rais
jurisdiction is adjudication and clarification of the law, not
enforcement and implementation.”
6.13. To similar effect, Judge Guillaume, noting the statutorily
limited role of the Court in the enforcement of its judgments,
only in the context of Statute Article 60,
dispute relating to compliance is regarded as separate from the
dispute resolved by the decision and cannot therefore be brought
before the Court without a further agreement between the parties
289
concerned.”
6.14. The Statute of the Court provides for only one situation in
which the Court is empowered to require compliance as a
is considered as distinct from the controversy submitted to the Court
and must be solved though channels which are political and no
longer judicial...”.
286 14 UNCIO 833.
287
East Timor (Portugal v . Australia), Judgment, I.C.J. Reports 1995,
28890 at p. 219. Dissenting opinion of Judge Weeramantry, p. 190.
G. Guillaume, “Enforcement of Decisions of the International Court
of Justice”, in: N. Jasentuliyana (ed.), Perspectives in International Law
(1995), p. 280.
289 Ibid., p. 281.
154condition to exercise jurisdiction. Article 61(3), dealing with an
application for revision, provides:
“The Court may require previous compliance with
the terms of the judgment before it admits
proceedings in revision.”
Plainly, Nicaragua's Application does not seek a revision of the
Judgment of 19 November 2012. But the Statute provides no
basis for Nicaragua's claim that the Court possesses an “inherent
power to pronounce on the actions required by its Judgments” ;
nor has the Court ever assumed such a power in the absence of
the express consent of the parties. As Judge Guillaume stated:
“On several occasions, therefore, the Court ha s
ruled that it cannot and should not consider the
possibility of non- compliance with its judgments,
and it has made pronouncements concerning
compliance only in those cases where the parties
have speci fically empowered it to do so. For
example, in the dispute between Burkina Faso and
Mali concerning the determination of their la nd
boundary, both parties had requested the Chamber
of the Court to which the case had been referred to
appoint three experts to assist them in the
demarcation of the frontier in ac cordance with the
Court's Judgment. The Chamber ruled that ‘nothing
in the Statute of the Court nor in the settled
jurisprudence’ prevented it from ‘exercising this
power’, and it accordingly appointed the experts.
This example is worth noting, and one c an imagine
other cases where the States that are parties to a
dispute might, by way of a special agreement,
confer certain powers upon the Court regarding th290
implementation of the resulting judgments…”.
290
G. Guillaume, op. cit, p. 281. In supporting this view, Judge
Guillaume relies on a number of decisions of the PCIJ and ICJ in footnote 22
of his text.
156 6.15. Nicaragua itself recognizes that there is no mechanism for
the execution of judgments of the International Court of Justice,
apart from what it characterizes as “the very hypothetical use of
Article 94, paragraph 2, of the Charter.”
try to mobilize the Court for enforcement and e
purposes. Nicaragua's overall objective is to induce the Court to
expand its jurisdiction in an unprecedented way and in clear
contradiction with its Statute and the Charter of the United
Nations.
((2)C CONSENT TO JURISDICTION UNDER THE
DOES DOES NOT INCLUDE AN ASSIGNMENT OF AN ENFORCEMENT
RTO THE THE
6.16. The Pact of Bogotá contains the same distinction between
adjudication and “measures to ensure the fulfillment of the
judicial decision”, including in the case of non- compliance with
a decision of the International Court of Justice:
“Article L. If one of the High Contracting Parties
should fail to carry out the obligations imposed
upon it by a decision of the International Court of
Justice or by an arbitral award, the other party or
parties shall, before resorting to the Security
Council of the United Nations, propose a meeting
of Consultation of Ministers of Foreign Affairs to
agree upon appropriate measures to ensure the
fulfillment of the judicial decision or award.”
6.17. In Chapter Six of the Pact, under the title “Fulfillment of
Decisions”, Article L mandates (“shall”) a specific, non-judicial
291
Memorial of Nicaragua, para. 1.27 at footnote 18.
156mechanism in the case of a complaint alleging “fail[ure] to carry
out the obligations imposed upon it by a decision of the
International Court of Justice…”. The premise of the provision
is that this is a matter assigned to the Security Council. Before
that, the party seeking fulfillment “shall… propose a meeting of
Consultation of Ministers of Foreign Affairs… to agree upon
appropriate measures t o ensure the fulfillment of the judicial
decision…”. Article L contemplates no recourse to the
International Court of Justice for the contingencies which it
addresses.
6.18. Thus, Article XXXI, in the light of Article L, cannot be
read to confer any jurisdiction of the Court to decide on
measures for alleged failure to carry out an obligation imposed
by the Court.
(3(3) NEEITHER THE C OURT NOR ITS PREDECESSOR HAVE EVER
ASSUMED PASSUMED POWERSRVIS,TO SUPERVISE OR TO ENFORCE
COMPLIANCE WITH THEIR JUDGMENTS
6.19. Nicaragua's attempt to find support in the jurisprudence of
the International Court of Justice and its predecessor for an
292
inherent jurisdiction to supervise compliance fails.
6.20. In the Factory at Chorzów case, the PCIJ refused “to
contemplate the contingency of a judgment not to be complied
292 Memorial of Nicaragua, para. 1.27 at footnote 20 and para 1.29.
158 with.” 293 This dictum, rather than suggesting an implied power
of supervising compliance in subsequent proceedings, is
opposed to it.
6.21. The same is true for the reference to the dictum of the
PCIJ in the Factory at Chorzów
Paramilitary Activities in and against Nicaragua.
6.22. In LaGrand, the Court did not assume jurisdiction in a
dispute over violation of a previous judgment, but in a dispute
over the consequences, in criminal proceedings, of a violation of
the right to consular assistance under the Vienna Convention on
295
Consular Relations. This decision, therefore, bears no relation
to any monitoring powers as claimed in Nicaragua 's Application
and Memorial.
(4) N(4) INAICARAGUARELS RELIANCE ON OTHER INTERNATIONAL
REREGIMES IS INAPPOSITE
6.23. Faced with a dearth of authority with respect to the
International Court of Justice
compliance and enforcement, 296
the purported powers of some regional
293 Factory at Chorzów, Merits, Judgment No. 13, 1928, P.I.C.J., Series
A, No. 17, p. 63.
294
Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility,
295gment, I.C.J. Reports 1984, p. 392 at p. 437, para. 101.
LaGrand (Germany v. United States of America) , Judgment, I.C.J.
Reports 2001, p. 406 at p. 485, para. 48.
296 Memorial of Nicaragua, para. 1.27 at footnote 18.
158which operate under entirely different treaty systems: the
European Court of Human Rights (ECHR) and the Inter -
American Court of Human Rights. But , as explained in the
previous Chapter, Nicaragua ignores the fact that the
competence of these two courts of human rights with rega rd to
monitoring and compliance with their judgments are explicitly
provided for in their constituent instruments, together with the
conditions under which they may exercise such a competence.
6.24. In particular, Nicaragua 297 seeks support in a concurring
opinion in a case before the European Court of Human Rights.
Judge Pinto de Albuquerque 's concurring opinion in Fabris v.
298
France proposed that the E CHR has “power to supervise the
execution of their judgments when this is necessary for the
299
discharge of their functions.” (Emphasis added)
6.25. But Judge Pinto de Albuquerque 's concurring opinion is
not representative of that Court's jurisprudence and, moreover, is
far from supporting an “inherent jurisdiction” to m onitor
compliance regardless of the specific treaty provisions
governing judicial functions. The European Court of Human
Rights has no power to monitor compliance with its judgments
and to review measures of implementation of a previous
297
Memorial of Nicaragua, para. 1.27 at footnote 18.
298 European Court of Human Rights (Grand Chamber), Fabris v.
France, Application No. 16574/08, Judgment (7 February 2013). Concurring
opinion of Judge Pinto de Albuquerque, p. 31.
299 European Court of Human Rights (Grand Chamber), Fabris v.
France, Application No. 16574/08, Judgment (7 February 2013). Concurring
opinion of Judge Pinto de Albuquerque, p. 31.
160 judgment on the bas is of a new complaint by the applicant.
According to Article 35(2)(b) of the European Convention on
300
Human Rights and the case law of the European Court of
Human Rights, an application is inadmissible when a prior
application which was already adjudicated and a new
application “relate essentially to the same person, the same facts
and the same complaints”. 301
European Convention on Human Rights, supervision of
judgments lies with the Committee of Ministers of the Council
302
of Ministers. After the amendment of Article 46 by Protocol
No. 14 (in force since 2010), the Committee of Ministers may
refer to the ECHR aspects of interpretation
context of its own supervision
300 Article 35(2)(b) of the European Convention on Human Rights
reads:
“The Court shall not deal with any application submitted
under Article 34 that… (b) is sub
matter that has already been examined by the Court or has
already been submitted to another procedure of international
investigation or settlement and contai
301 information.”
European Court of Human Rights, Folgero and Others
(No. 2), Application No. 15472/02, Final Decision on Admissibility
(14 Februaray 2006), para. 11; European Court of Human Rights (Grand
Chamber), Verein gegen Tierfabriken Schweiz
Application No. 32772/02, Judgment (10 April 2008), para. 63.
302
Article 46(2) of the European Convention on Human Rights reads:
“The final judgment of the Court shall be transmitted to the Committee of
Ministers, which shall supervise its execution.” See: R.C. White and C.
Ovey, The European Convention on Human Rights (2010), pp. 53 et seq.; E.
Lambert Abdelgawad, “The Execution of the Judgments of the European
Court of Human Rights: Towards a Non- coercive and Participatory Model of
Accountability”, ZaöRV/Heidelberg Journal of International Law
2009, p. 471.
303 Article 46(3) of the European Convention on Human Rights reads:
“If the Committee of Ministers considers that the supervision
of the execution of a final judgment is hindered by a problem
of interpretation of the j udgment, it may refer the matter to
160a Party has failed its obligation of compliance before the
304
Court. These express provisions of the European Convention
on Human Rights do not allow the applicant to request
305
supervision of compliance by the ECHR.
6.26. Nicaragua's reference to the Inter -American system of
306
human rights protection also ignores the fact that the
competence of the Inter -American Court of Human Rights is
based on the Americ an Convention on Human Rights.
Furthermore, the Inter-American Court relies on the conse nt of
the OAS General Assembly – which ha s monitoring powers
under Article 65 of the Amer ican Convention of Human
Rights – to the Court's exercise of supervisory jurisdiction. 307
6.27. In addition, the practice of the Inter -American Court of
Human Rights since 2002 to monitor compliance with its
judgments 308 is inextricably linked to the system of human
the Court for a ruling on the question of interpretation. A
referral decision shall require a majority vote of two thirds of
304 the representatives entitled to sit on the Committee.”
Article 46(4) of the European Convention on Human Rights reads:
“If the Committee of Ministers considers that a High Contracting
Party refuses to abide by a final judgment in a case to which it is a
party, it may, after serving formal notice on that Party and by
decision adopted by a majority vote of two thirds of the
representatives entitled to sit on the committee, refer to the Court the
question whether that Party has failed to fulfil its obligation under
paragraph 1.”
305 E. Lambert Abdelgawad, op. cit., p. 473.
306 Memorial of Nicaragua, para. 1.27 in footnote 20.
307 I/A Court H.R., Case of Baena Ricardo et al. Competence. Judgment
of November 28, 2003. Series C No. 104, paras. 74- 76.
308
D.C. Baluarte, “Strategizing for Compliance: The Evolution of a
Compliance Phase of Inter -American Court Litigation and the Strategic
162 rights protection under the American Convention on Human
309
Rights and to the individual right to access to justice (Article
8 and 25 of the American Convention on Human Rights)
Such an objective regime be ars no resemblance to the function
and powers of the International Court of Justice and to the
regime of enforcing compliance under the U
311
Charter.
D. Conclusion
6.28. Nicaragua's contention that the Court has a jurisdiction to
ensure and monitor compliance with its judgments has no basis
in law. It stands in contradiction to the Statute of the Court and
the UN Charter. Neither the Pact of Bogotá nor any “inherent
jurisdiction” support supervisory powers of the Court over
compliance as advanced by Nicaragua. Nicaragua's submissions
fail to take into account the fundamental distinction between the
adjudication and post-adjudication phases of a dispute; the Court
has no role in the latter. Moreover, to accept Nicaragua
contention would do violence t o the consensual basis of the
Court's jurisdiction.
Imperative for Victims’ Representatives”, American University International
Law Review 27, 2012, p. 263; C.M. Ayala Corao, “La ejecución de sentencias
de la Corte Interamericana de Derechos Humanos”, Revista de Estudios
309stitucionales 5, 2007, p. 143 et seq.
A.A. Cançado Trindade,
Justice (2011), pp. 122-123.
310 I/A Court H.R., Case of Baena Ricardo et al. Competence. Judgment
of November 28, 2003. Series C No. 104, paras. 110 -114.
311 UN Charter, Article 94 (2).
1626.29. For these reasons, the Court should reject Nicaragua 's
claims purporting to base themselves on this jurisdictional
invention.
164 Chapter 7
SUMMARY OF PRELIMINARY OBJECTIONS
7.1. To conclude, the Court is wi
Nicaragua's Application of 26 November 2013 for the following
reasons.
7.2. First, the Court lacks jurisdiction under the Pact of Bogotá
– the principal basis on which Nicaragua purports to found
jurisdiction – because Colombia submitte
denunciation of the Pact of Bogotá on 27 November 2012 and,
in accordance with Article LVI of the Pact, the denunciation had
immediate effect with respect to any application brought against
it after 27 November 2012.
7.3. Second, the Court is without jurisdiction because there
was no dispute between the Parties on 26 November 2013, the
date of the filing of Nicaragua's Application.
7.4. Third, the Court lacks jurisdiction because the
precondition in Article II of the Pa ct of Bogotá has not been
met. In particular, Nicaragua has not established that, on the date
of the Application, the Parties were of the opinion that the
alleged controversy “[could not] be settled by direct negotiations
though the usual diplomatic channels”.
7.5. Fourth, the Court has no “inherent jurisdiction” upon
which Nicaragua can rely in the face of the lapse of jurisdiction
164under the Pact of Bogotá. There is no basis in the law and
practice of the Court for Nicaragua 's assertion that “the
jurisdiction of the Court lies in its inherent power to pronounce
on the actions required by its Judgments.”
7.6. Fifth, the assertion of an inherent jurisdiction to ensure
and monitor compliance with the Judgment of the Court of
19 November 2012 likewise has no basis in the law and practice
of the Court. The Court lacks jurisdiction over “disputes arising
from non-compliance with its Judgments”.
166 SUBMISSION
For the reasons set forth in this Pleading, t
Colombia requests the Court to adjudge and declare, that it lacks
jurisdiction over the proceedings brought by Nicaragua in its
Application of 26 November 2013.
Colombia reserves the right to supplement or amend the present
submission.
CARLOS
166168 TABLE OF CONTENTS
VOLUME II: LIST OFANNEXES
COLOMBIAN OFFICIALDOCUMENTS
Annex 1 Political Constitution of the Republic of
Colombia, Article 101 ......................
Annex 2 Actio Popularis of Unconstitutionality against
Articles XXXI and L of the Pact of Bogotá
(Law No. 37 of 1961), Submitted by the
President of the Republic of Colombia to the
Constitutional Court, 12 Sept. 2013 ............
Annex 3 Presidential Decree No. 1946 of 2013,
Territorial Sea, Contiguous Zone and
Continental Shelf of the Colombian Islands
Territories in the Western Caribbean,
9 Sept. 2013. .............................
Annex 4 Judgment C-269/14,
Unconstitutionality against Articles II
(Partially), V (Partially), XXXI and L of the
Law No. 37 of 1961, “Whereby theAmerican
Treaty on Pacific Settlement (Pact of Bogotá)
isApproved, 2 May 2014. ..................
Annex 5 Presidential Decree No. 1119 of 2014,
Amendment to the Presidential Decree No.
1946 of 2013, Territorial Sea, Contiguous
Zone and Continental Shelf of the Colombian
Islands Territories in the Western Caribbean,
17 June 2014. ............................
168 DECLARATIONS
Annex 6 Declaration of the President of the Republic of
Colombia, 19 Nov. 2012. ................... 83
Annex 7 Press Conference of the Minister
of Foreign Affairs of Colombia,
20 Nov. 2012. ............................ 93
Annex 8 Declaration of the President of the Republic of
Colombia, 28 Nov. 2012. .................. 103
Annex 9 Declaration of the President of the Republic of
Colombia, 1 Dec. 2012. ................... 107
Annex 10 Declaration of the President of the Republic of
Colombia, 18 Feb. 2013. .................. 111
Annex 11 Declaration of the President of the Republic of
Nicaragua, 14Aug. 2013. .................. 115
Annex 12 Declaration of the President of the Republic of
Colombia, 9 Sept. 2013. ................... 121
Annex 13 Declaration of the President of the Republic of
Colombia, 18 Sept. 2013. .................. 131
DIPLOMATIC DOCUMENTSAND CORRESPONDENCE
Annex 14 Diplomatic Note from the Minister of Foreign
Affairs of El Salvador to the Secretary-General
of the Organization of American States,
24 Nov. 1973. ........................... 137
Annex 15 Diplomatic Note GACIJ No. 79357 from the
Minister of Foreign Affairs of Colombia to
the Secretary-General of the Organization of
American States, 27 Nov. 2012. ............. 141
170Annex 16 Note No. OEA/2.2/109/12 from the Secretariat
for Legal Affairs of the Department of
International Law of the Organization of
American States to the High Contracting
Parties to the American Treaty on Pacific
Settlement (Pact of Bogotá) and to the other
Permanent Missions to the Organization of
American States, 28 Nov. 2012. .............145
Annex 17 Note Verbale No. MRE/VM-
DGAJST/457/09/14 from the Ministry
of Foreign Affairs of Nicaragua to the
Ministry of Foreign Affairs of Colombia,
13 Sept. 2014. ........................... 149
Annex 18 Note Verbale No. S-GAMA-14-071982 from
the Ministry of ForeignAffairs of Colombia to
the Ministry of ForeignAffairs of Nicaragua,
1 Oct. 2014. ............................ 155
INTER-AMERICAN TREATIES AND RELATED
DOCUMENTS
Annex 19 Inter-American Treaties from 1902 to 1936,
Clauses of Denunciation. .................. 159
Annex 20 Seventh International Conference ofAmerican
States, Montevideo, Uruguay, Code of Peace,
Resolution XXXV,Approved 23 Dec. 1933. .... 169
Annex 21 Inter-American Conference for the
Maintenance of Peace, Buenos Aires,
Argentina, Code of Peace, Resolution XXVIII,
Approved 21 Dec. 1936. .................. 187
Annex 22 Memorandum from the General Director of
the Pan-American Union to the United States
Under Secretary of State, 28 Dec. 1937. ....191
171 Annex 23 Delegation of the United States of America,
Topic 1: Perfecting and Coordination of
Inter-American Peace Instruments, Draft on
Consolidation of American Peace Agreements
submitted to the First Commission , Eighth
International Conference of American States,
Lima, Peru, 15 Nov. 1938. ................. 195
Annex 24 Delegation of the United States of America,
Topic 1: Perfecting and Coordination of Inter-
American Peace Instruments, Final Draft on
Consolidation of American Peace Agreements
submitted to the First Commission , Eighth
International Conference of American States,
Lima, Peru, 16 Dec. 1938. ................. 211
Annex 25 Delegation of the United States of America,
Report of the Meetings of Sub-Committee 1
of Committee I, Consolidation of American
Peace Instruments and Agreements , Eighth
International Conference of American States,
19 Dec. 1938. ........................... 225
Annex 26 Comparative Chart of Drafts Presented by
American States to the First Commission at the
Eighth International Conference of American
States, Lima, Peru, Dec. 1938. .............. 229
Annex 27 Eighth International Conference of American
States, Perfection and Coordination of Inter-
American Peace Instruments, Resolution XV ,
Approved 21 Dec. 1938. .................. 235
172Annex 28 Inter-American Juridical Committee, Text of
Document A: Draft Treaty for the Coordination
of Inter-American Peace Agreements, Article
XXXII; Text of Document B: Draft of an
Alternative Treaty Relating to Peaceful
Procedures, Article XXVIII ; and Text of
Document C: Report to Accompany the Draft
Treaty for the Coordination of Inter-American
Peace Agreements and Draft of an Alternative
Treaty, 6 Mar. 1944. ...................... 239
Annex 29 Inter-American Juridical Committee, Draft
of an Inter-American Peace System and
an Accompanying Report, Article XXIX ,
4 Sept. 1945. ............................ 245
Annex 30 Inter-American Juridical Committee, Inter-
American Peace System: Definitive Project
Submitted to the Consideration of the Ninth
International Conference of American States
in Bogotá, Article XXVI, 18 Nov. 1947. ....... 249
Annex 31 Ninth International Conference of American
States,Minutes of the Second Part of the Fourth
Session of the Coordination Commission ,
29 Apr. 1948. ........................... 253
Annex 32 Ninth International Conference of American
States, Style Commission, 29Apr. 1948. ...... 257
Annex 33 Text of the Pact of Bogotá, in the FourAuthentic
Languages (Spanish, English, Portuguese, and
French). ............................... 261
173 OTHER DOCUMENTS
Annex 34 90 Minutos, Colombia seeks contact with
Nicaragua after Judgment of The Hague ,
24 Nov. 2012. ........................... 311
Annex 35 Tele Sur, Ortega and Santos talk in Mexico
about dispute, 1 Dec. 2012. ................ 315
Annex 36 El Nuevo Diario, The Navies are
communicating, 5 Dec. 2012. ............... 319
Annex 37 El Tiempo, Press Interview to the Minister of
ForeignAffairs of Colombia, 13 Jan. 2013. .... 325
Annex 38 Blu Radio, Waters of San Andrés, main
challenge of new Commander of the Navy ,
13 Aug. 2013............................ 329
Annex 39 W Radio, Radio Interview to the Minister of
ForeignAffairs of Colombia, 10 Sept. 2013. ... 335
Annex 40 Semana, Ortega calls for respect to the
Judgment of the Court of The Hague ,
10 Sept. 2013. ........................... 339
Annex 41 La Jornada, Ortega says that Nicaragua is
ready to create a Commission to ratify the
Judgment of the ICJ, 13 Sept. 2013. ......... 343
Annex 42 El Tiempo, The Minister of Foreign Affairs
explains in detail the strategy vis-a-vis
Nicaragua, 15 Sept. 2013. ................. 347
Annex 43 El Nuevo Diario,Patrolling the recovered sea,
18 Nov. 2013. ........................... 351
174Annex 44 El Universal, In Colombia a rupture of
diplomatic relations with Nicaragua is
excluded, 24 Dec. 2013. ................... 357
Annex 45 El Colombiano,Colombia and Nicaragua will
conclude agreements on the Judgment of The
Hague: Ortega, 29 Jan. 2014. .............. 361
Annex 46 El Economista,Nicaragua denies intimidation
of Colombia in San Andrés, 18 Mar. 2014. .... 365
Annex 47 Reuters, Colombia Court backs Santos
in sea boundary dispute with Nicaragua ,
2 May 2014. ............................ 369
175
Preliminary Objections of Colombia