Written reply of Nicaragua to the question put by Judge Cançado Trindade at the public sitting held on the morning of 2 October 2015

EMBASSY OF NICARAGUA
THE HAGUE

The Hague, 09 October5201
REF:HOL-EMB-179

Excellency

1have the honour to refer to the questions put forward by H.E. Judge Cançado
Trindade at the endhe hearing held on Friday, 02 October 2015, with reference to

the case concemingeged Violations of Sovereign Rights and Maritime Spaces in the

Caribbeanea (Nicaragua v. Colombia).

Your letter of 2 October 2015 (Ref. No. 146132) infonned the undersigned

Agent that the Court bad fixed 9 Octoberas the time Iimit in which the
Goverrunentof the Republic of Nicaragua may furnish the written reply to said

question.

In compliance whit this indication, the Republic of Nicaragua has prepared its
Written Reply wbich is enclosed herein.

Accept, Sir, the assurances of my highest consideration.

4~
Carlos J. ARGÜEG6MEZ
Agent
Republic ofNicaragua

His Excellency
Mr. Philippe Couvreur

Registrar
International Court of Justice
Peace Palace
The Hague QUESTIONS IJY .JUDGECANÇADO TRINDADE

Question 1: ..Do the inherent powcrs orfac:ultésof contemporary international tribunats

ensue from the excrcisc itsclf, by each of them, oftheir international judicial function?"

Question 2: ..Do the distinct bases of jurisdiction of contemporary international
tribunals have an incidence on the extent oftheir compétencede la compétence?"

Question 3: "Do the distinct bases of jurisdiction of contemporary international

tribunats condition the operation of the corresponding mechanisms of supervision of

compliance with their respective judgments and decisions?"

The answers below are given in complement to the relevant parts of Professor
1
Pellet's pleadings of 29 September and 2 October. Nicaragua will not repeat here what

has already been said and respectfully asks His Excellency Judge Cançado Trindade and

the Court to consider that these passages are part of the present answers.

Before answering each of the three questions in turn, Nicaragua will make two

general remarks which itdeems to be relevant for ail of them.

First, the inherent powers (or jurisdiction) of international courts and tribunals

stem from their very nature. lndeed, the particular contours of their jurisdiction are

described in their respective statutes but the fact that ali are judicial organs bas

necessary consequences when their judicial functions are at stake and must be

preserved, which can result in recognizing either derived competences or limitations to

the exercise of their competences.

Second, the international context is also of particular relevance, in particular
conceming the follow up of their judgments since they do not enjoy the support of the

State apparatus (police, army, administration) to have their decisions enforced.

1CR2015123,29 September2015,pp. 53-56,paras.21-28,andCR2015125,2 October2015, pp.37-40,
paras.12-17(A. Pellet). With this in mind, Nicaragua will answer in turn to each of Judgc Cançado

Trindade's questions.

Question 1: "Do the inherent powers or facultés of conlemporary international

tribunals ensuefrom the exercise itse?f.by each of them, of their international judicial

funclion?"

As noted above, Nicaragua thinks that, more widely than from the exercise of
their judicial function, the inherent powers of international courts and tribunats ensue

from thcir very existence and nature as judicial organs. This being said, when such an

organ bas exercised a competence belonging to it, such as prescribing interim measures

or rendering a judgment, itcan use its inherent power to draw the legal consequences of

the non-implementation or incomplete implementation of its decision. Otherwise - and

except in exceptional circumstances (see below, our answer to question 3) - the binding

character of their decisions would remain completely unheeded, and parties would be

free to ignore the judgments and orders of the courts and tribunats not only with

impunity (in the strict sense of it being without punishrnent) but even without non­

punitive legal consequences.

Question 2: "Do the distinct bases of jurisdiction of contemporary international

tribunals have an incidence on the extent of their compétencede la compétence?"

Nicaragua is of the opinion that the kompetenz kompetenz principle (understood

to mean the competence of a tribunal to make a legally-effective determination of its

own jurisdiction) is a well-established legal principle of general application. 2 In this

respect it can be said to be inherent, in that it does not depend on whether or not it is

expressly granted by the statute of the court or tribunal concemed (as does Art. 36(6) of

the Statute of the ICJ) and that, therefore it is not dependent on the bases ofjurisdiction,

if this expression means the bases on which the tribunal is seised (e.g., for the ICJ, a

compromissory clause or an optional declaration).

2
I.C.J., Judgment,18November1953, Nouebohm case (Preliminary Objection), Reports 1953,p. 119
("Sincethe Alabama case, it hasbeengenerallyrecognized,followingthe earlierprecedents,that, in the
absenceof any agreementto the contrary,an internationaltribunalhas the rightto decide as to its own
jurisdiction and has the power to interpret for this purpose the instruments which govem that
jurisdiction."). If "bases for jurisdiction" is intended to point at the statute establishing the

international court of tribunal concerned, Nicaragua is of the opinion that in aUcases, it

includes the power or.fàculté to decide on the existence and scope of an inherent power.

However, the recourse to the compétencede la compétence principle will lead to
different conclusions according to the various statutes.

In other words, we are of the opinion that, in the absence of sorne express

provision in their statute, ali tribunats have the same right to determine the scope of

their own (express, implied, inherent) powers.

Question 3: "Do the distinct bases of jurisdiction of contemporary international

tribuna/s condition the operation of the corresponding mechanisms of supervision of

compliancewith their respectivejudgments and decisions?"

Here again, Nicaragua suggests that is not so much the bases of jurisdiction, one

the basis of which the tribunal is seized, but rather the statute that establishes the
tribunal that influences the mechanisms of supervision of compliance with its decisions

(including judgrnents). In other words, Nicaragua is of the opinion that, in the absence

of sorne express provision in their statute, ali tribunats have the same right to determine

the scope of their own (express, implied, inherent) powers, but they would naturally

bear in mind their particular role in any wider array of organs or procedures of which

they are a part.

No-one could expect a tribunal to be powerless in the face of a party that simply

ignores orders from the tribunal; but the existence within the system of which the

tribunal is a part of another organ with supervisory powers will have an effect on the

ranger of powers that it is assumed were inherent in the tribunal when it was

established.

As was explained by Nicaragua's counsel during the pleadings and as is recalled

above, one of the reasons why it is indispensable for international courts and tribunals to

exercise sorne kind ofjurisdiction on the implementation of theirjudgments is that there

isno executory force at the world level. However, when a political organ is vested with sorne kind of power in respect with the implementation of the judgments of

international courts or tribunals, this inherent power may Jose its character of necessity

since the binding character of the judgment can be effectively assured by the political

organ in questio• This explains why the European Court of Human Rights exercises

only marginally its inherent power in relation with the execution of its judgments, by

contrast with theInter~Ame Courc ahich cannot rely on such a mechanism of

implementation.

Nicaragua hopes that il has addressed the points at which the questions were directed.

!fthis is not the case,ifthe Court wishes to have a fuller response on any point,

Nicaragua would bepleased to amplify this response.

3
On the particular issues (or non-issues) relating to Article 94 of the Charter, see: CR 2015/23, 29
September015, pp. 58-60, paras. 33-38 (Pellet) et CR 2015/25, 2 October 2015, p. 46, para. 30 (Pellet).