A Latin American Guide to the International Court of Justice Case Law [1 ed.] 9781443847032, 9781443899666

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A Latin American Guide to the International Court of Justice Case Law

Research Team This project was supported by the Getulio Vargas Foundation as part of its mission to expand both its role and influence throughout Latin America. The author coordinated the body of work together with the help of two legal trainees from FGV Direito Rio, who devoted much of their time and effort to this project: Project Legal Trainees Júlia Rodrigues Costa de Serpa Brandão Ananda Menegotto Weingärtner

A Latin American Guide to the International Court of Justice Case Law By

Paula Wojcikiewicz Almeida, Júlia Rodrigues Costa de Serpa Brandão and Ananda Menegotto Weingärtner

A Latin American Guide to the International Court of Justice Case Law By Paula Wojcikiewicz Almeida, Júlia Rodrigues Costa de Serpa Brandão and Ananda Menegotto Weingärtner This book first published 2016 Cambridge Scholars Publishing Lady Stephenson Library, Newcastle upon Tyne, NE6 2PA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2016 by Paula Wojcikiewicz Almeida, Júlia Rodrigues Costa de Serpa Brandão and Ananda Menegotto Weingärtner All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN (10): 1-4438-9966-6 ISBN (13): 978-1-4438-9966-6

TABLE OF CONTENTS

Introduction ................................................................................................. 1 Chapter I: Diplomatic and Consular Protection 1. Vienna Convention on Consular Relations (Paraguay v. United States of America), 1998 ........................................................................................ 6 2. Haya de la Torre (Colombia v. Peru), 1950 .......................................... 15 3. Asylum (Colombia v. Peru), 1949 .......................................................... 22 4. Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), 1950 ........................................... 36 5. Avena and Other Mexican Nationals (Mexico v. United States of America), 2003 ...................................................................................... 42 6. Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), 2008 ............................................. 60 7. Nottebohm (Lichtenstein v. Guatemala), 1951 ...................................... 71 8. Certain Questions concerning Diplomatic Relations (Honduras v. Brazil), 2009 .............................................................................................. 88 9. Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland), 2006 ................... 93 Chapter II: International Peace and Security 1. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1984 ....................................... 100

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2. Border and Transborder Armed Actions (Nicaragua v. Honduras/ Costa Rica), 1986 .................................................................................... 135 Chapter III: Territorial and Maritime Disputes 1. Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), 2014 .............................................................. 150 2. Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), 2013 ............................. 155 3. Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), 2013 ................... 160 4. Territorial and Maritime Dispute (Nicaragua v. Colombia), 2001...... 165 5. Maritime Dispute (Peru v. Chile), 2008 ............................................... 190 6. Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), 1999 ............................. 207 7. Case concerning the Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), 1960...................................... 223 8. Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras – Nicaragua intervening), 1986 ........................................... 236 9. Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), 2002 ................................................ 266 10. Antarctica (United Kingdom v. Argentina/Chile), 1955.................... 275 Chapter IV: Environmental Law and Activities Carried out in the Border Area 1. Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), 2011 .............................................................. 284

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2. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 2005.................................................................................. 317 3. Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2006 ......... 337 4. Aerial Herbicide Spraying (Ecuador v. Colombia), 2008 .................... 359 Chapter V: Obligation to Negotiate 1. Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), 2013 ......................................................................................................... 366 General Bibliography .............................................................................. 375 Appendix ................................................................................................. 395

INTRODUCTION

Latin America prides itself in being a peaceful region. Historically resistant to any kind of external interference, Latin American states have tended toward the principles of national sovereignty, non-intervention, and peaceful settlement of disputes, which are deeply embedded in their political and juridical cultures. These principles were recognised in the agreements that established the Organization of American States (OAS) in 1948 and have also been codified in the OAS Charter. Moreover, they are strongly rooted in the region’s diplomatic and legal cultures, as enshrined in many Latin American constitutions. While Latin American states have always opted for the peaceful settlement of disputes, they have more generally contributed to the development of international law from this perspective. The universal presence of Latin American states at the 1907 Second Hague Peace Conference and their contribution to the work and outcome of the conference are well known: they encouraged the recourse to arbitration and non-use of force, the principle of juridical equality of states, the strengthening of international jurisdiction, and the direct access of individuals to international justice.1 During the 1907 Hague Conference, these states advanced the idea that international courts should not operate on the exclusive basis of the consent of disputing states. This concept was further alluded to in a statement by the Colombian delegation before the Assembly of the League of Nations and Subsidiary Organs in 1920: “The principle of compulsory arbitration is not only a principle of international justice; it is a democratic principle, since it is the logical result of the legal equality of states. It is deeply rooted in the history, traditions and institutions of the American peoples.”2 The Peruvian delegation also 1

TRINDADE, Antônio A. Cançado (2008) ‘The presence and participation of Latin America at the Second Hague Peace Conference of 1907’ in Yves DAUDET, Topicality of the 1907 Hague Conference, The Second Hague Peace Conference, Leiden/London: Martinus Nijhoff Publishers. 2 Société des Nations/CPJI, ‘Documents au sujet de mesures prises par le Conseil de la Société des Nations aux termes de l’article 14 du Pacte et de l’adoption par l’Assemblée du Statut de la Cour permanente,’ Geneva, SDN/CPJI, 1920, p. 142. Dissenting opinion of Judge Cançado Trindade, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.

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stressed that “Latin America, by a very great majority, perhaps unanimously, desires compulsory jurisdiction and the reign of peace.”3 The old debate regarding Latin American international law also demonstrates the region’s willingness to influence norms development in the field of international law.4 Concretely, Latin Americans have advanced recognition of the compulsory jurisdiction of the Permanent Court of International Justice (PCIJ) and the future International Court of Justice (ICJ). The ingenuous formula, known as “declarations recognizing the jurisdiction of the Court as compulsory,” was proposed by the Brazilian jurist Raul Fernandes in order to overcome a deadlock within the Advisory Committee of Jurists responsible for drafting the Statute of the PCIJ. The referred formula contributed to attracting the acceptance of compulsory jurisdiction of the PCIJ by a total of 45 states and was firmly supported by Latin American states. The same Latin American formulation of 1920 was maintained in the present Statute of the International Court of Justice due to the intransigent position of the more powerful states. This shows that Latin American states share a less traditional view of international adjudication and see the Court as an organ of a value-based international community, capable of more than just solving disputes between parties in a state-centered world order.5 It followed that after the Second World War, several international organizations were created in Latin America, such as the Organization of American States (OAS), the Central American Integration System (SICA), the Andean Community (CAN), the Common Market of South America (Mercosur) and, more recently, the Union of South American Nations (UNASUR). Most of these organizations (except UNASUR) developed their own dispute settlement mechanisms, enhancing the region’s tradition of peaceful settlement of disputes. The same rule applies to the United Nations (UN), under the auspices of which Latin American states have been strongly active. Indeed, these states have brought 21 cases since the creation of the ICJ. Most of the cases concern maritime and territorial Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70. 3 Ibid, p. 246-247. 4 LORCA, A. B. (2006) ‘International Law in Latin America or Latin American International Law? Rise, Fall, and Retrieval of a Tradition of Legal Thinking and Political Imagination,’ Harvard International Law Journal, 47-1. 5 VON BOGDANDY, Armin and Venzke, Ingo (2012) ‘On the Functions of International Courts: An Appraisal of Their Burgeoning Public Authority,’ ACIL Research Paper No 2012-10: 1-29. According to the authors, the term organ is used in a non-technical way (p. 61).

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disputes, such as the ones recently being judged and currently pending before the Court: Territorial and Maritime Dispute (Nicaragua v. Colombia), Maritime Dispute (Peru v. Chile), Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and, most recently, Dispute concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua). In context, this project focuses on the contribution of Latin America to the ICJ since these states tend to submit their disputes to the World Court even though other regional or sub-regional dispute settlement systems are eminently capable of solving matters. The fact that Latin American states are currently the most active litigants before the Court shows their belief in it as a legitimate public authority that not only resolves disputes but also, more generally, contributes to the development of international law.6 Disclaimer: This project consists on a systematic analysis of Latin America’s participation before the ICJ. It resulted from the authors’ long-term dedication and research, which aimed to incorporate to this study all cases involving this region before its publication. However, in spite of this effort, due to editing and publishing process, readers shall acknowledge that the present book data has only been updated until 16 December 2015.

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For an assessment of the idea of international public authority, see VON BOGDANDY, Armin, and VENZKE, Ingo (2012), ‘In Whose Name? An Investigational of International Court’s Public Authority and Its Democracy Justification,’ The European Journal of International Law, 23.1: 7-41; VON BOGDANDY, Armin and VENZKE, Ingo (2012) ‘On the Functions of International Courts: An Appraisal of Their Burgeoning Public Authority,’ ACIL Research Paper No 2012-10: 1-29; VON BOGDANDY, Armin and VENZKE, Ingo (eds.) (2011), ‘Beyond Dispute: International Judicial Institutions as Lawmakers,’ Special Issue, German Law Journal 979: 12; VON BOGDANDY, Armin, DANN, Philipp, GOLDMANN (2008) ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities,’ German Law Journal, 9:1375.

CHAPTER I DIPLOMATIC AND CONSULAR PROTECTION

1. VIENNA CONVENTION ON CONSULAR RELATIONS (PARAGUAY V. UNITED STATES OF AMERICA), 1998

1.1 Summary This case concerns the violation of the Vienna Convention on Consular Relations of 19631 (hereinafter “Vienna Convention”) by the government of the United States of America (hereinafter “United States”), which occurred due to the lack of notification of the arrest of Paraguayan Angel Francisco Breard to the government of the Republic of Paraguay (hereinafter “Paraguay”).

I. Facts On 1 September 1992, Mr. Breard was arrested by the local authorities of Virginia, United States, as a suspect of murder. Because the United States was party to the Vienna Convention, the proper procedure would be to inform Mr. Breard of his right to consular assistance as well as to notify Paraguay’s consular office of his arrest. However, the legal authorities neglected such rights and provided themselves with a court-appointed counsel. Since the chosen legal counselor was not culturally prepared to advise Mr. Breard, the latter made a series of unfavorable decisions. One of these decisions was to reject the offer of life in prison in exchange for pleading guilty. Instead, Mr. Breard, unaware of the cultural difference between the American and Paraguayan courts, relied on the Court’s mercy and confessed, hoping to be acquitted. Such decisions resulted in his conviction of murder on 24 June 1993, and on 22 August 1993, the death penalty. Mr. Breard’s appeals were denied, as well as his petition for a writ of habeas corpus. It was only in 1996 that Paraguayan authorities became aware of Mr. Breard’s situation, still without any form of notification from American 1 Vienna Convention on Consular Relations (Vienna Convention) (Vienna, 24 April 1963, 596 U.N.T.S. 261).

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authorities. On 30 August 1996, Mr. Breard, assisted by the Paraguayan consular office, filed a petition to the Federal Court of first instance for a writ of habeas corpus, as his last possibility of appeal, and for the first time mentioning the violation of the Vienna Convention. This claim was dismissed by the Court, who alleged that, according to a municipal law doctrine, if the violation of the convention was not mentioned in the initial proceedings, it could not be brought up in a federal habeas proceeding. Since the Federal Court denied the habeas corpus, Virginia’s Court set the execution date for 14 April 1998. In his last attempt to avoid execution, using a petition for a writ of certiorari, Mr. Breard demanded that the American Supreme Court reevaluate the lower instance’s judgments and prevent his execution until it delivered a decision. Statistically, however, it was not likely that the Supreme Court would take the case, and even if it did, it would be shortly before the scheduled execution. Therefore, Paraguay itself decided to file a lawsuit in a Federal Court of first instance against the local authorities of Virginia, on 16 September 1996. On 27 November 1996, the Court rejected the case arguing that it did not have jurisdiction on it, based on a municipal doctrine. The United States alleged, later in the appeals, that American courts could not judge cases in which it is accused of violating an international treaty by another party. In light of such a turnout, Paraguay attempted to file a petition for a writ of certiorari as well. However, as mentioned previously, the chances that the Supreme Court would accept the case were next to none, so Paraguay also tried to start diplomatic negotiations in order to achieve the United States’ support. On 3 June 1997, the Department of State stated its disagreement with Paraguay’s legal views on the situation, and denied any kind of support for the Paraguayan exercise of its international rights. Having exhausted all legal remedies, Paraguay decided to refer the dispute to the International Court of Justice (hereinafter “ICJ”) by filing an application instituting proceedings against the United States.

II. Jurisdiction The jurisdiction of the ICJ rests upon Article 36, Paragraph 1 of the Statute of the Court2 together with Article 1 of the Optional Protocol concerning

2

Article 36, Paragraph 1 of the Satute of the Court provides that: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters

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the Compulsory Settlement of Disputes.3 Together, these provisions establish compulsory jurisdiction of the ICJ in cases concerning the violation of treaties to which both states are parties. Since both Paraguay and the United States are parties to the Vienna Convention, the dispute at hand lies in the compulsory jurisdiction of the Court.

III. Merits Paraguay’s Arguments The first claim regards the violation of Article 36, Subparagraph (b) of the Vienna Convention4 by the United States, once the lack of notification to Paraguayan authorities prevented Mr. Breard from exercising his international rights such as legal and non-legal assistance from the consular offices. The second claim also involves Article 36, but from a different perspective. With the violation of Article 36 of the Vienna Convention, the United States made it impossible for Paraguay to perform its consular functions comprised in Article 55 and Article 36 of the Vienna Convention. specially provided for in the Charter of the United Nations or in treaties and conventions in force.” 3 Article 1 of the Optional Protocol states that: “Disputes arising out of the interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a party to the present protocol.” 4 Article 36, Subparagraph (b) of the Vienna Convention rules as follows: “If he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending state if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.” 5 Article 5 of the Vienna Convention provides that: “Consular functions consist in: (a) protecting in the receiving state the interests of the sending state and of its nationals, both individuals and bodies corporate, within the limits permitted by international law; (b) furthering the development of commercial, economic, cultural and scientific relations between the sending state and the receiving state and otherwise promoting friendly relations between them in accordance with the provisions of the present Convention; (c) ascertaining by all lawful means

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The third claim concerns both Article 36, Paragraph 26 of the Vienna Convention and Article 267 of the Vienna Convention on the Law of conditions and developments in the commercial, economic, cultural and scientific life of the receiving state, reporting thereon to the government of the sending state and giving information to persons interested; (d) issuing passports and travel documents to nationals of the sending state, and visas or appropriate documents to persons wishing to travel to the sending state; (e) helping and assisting nationals, both individuals and bodies corporate, of the sending state; (f) acting as notary and civil registrar and in capacities of a similar kind, and performing certain functions of an administrative nature, provided that there is nothing contrary thereto in the laws and regulations of the receiving state; (g) safeguarding the interests of nationals, both individuals and bodies corporate, of the sending states in cases of succession mortis causa in the territory of the receiving state, in accordance with the laws and regulations of the receiving state; (h) safeguarding, within the limits imposed by the laws and regulations of the receiving state, the interests of minors and other persons lacking full capacity who are nationals of the sending state, particularly where any guardianship or trusteeship is required with respect to such persons; (i) subject to the practices and procedures obtaining in the receiving state, representing or arranging appropriate representation for nationals of the sending state before the tribunals and other authorities of the receiving state, for the purpose of obtaining, in accordance with the laws and regulations of the receiving state, provisional measures for the preservation of the rights and interests of these nationals, where, because of absence or any other reason, such nationals are unable at the proper time to assume the defence of their rights and interests; (j) transmitting judicial and extrajudicial documents or executing letters rogatory or commissions to take evidence for the courts of the sending state in accordance with international agreements in force or, in the absence of such international agreements, in any other manner compatible with the laws and regulations of the receiving state; (k) exercising rights of supervision and inspection provided for in the laws and regulations of the sending state in respect of vessels having the nationality of the sending state, and of aircraft registered in that state, and in respect of their crews; (l) extending assistance to vessels and aircraft mentioned in subparagraph (m) of this article, and to their crews, taking statements regarding the voyage of a vessel, examining and stamping the ship’s papers, and, without prejudice to the powers of the authorities of the receiving state, conducting investigations into any incidents which occurred during the voyage, and settling disputes of any kind between the master, the officers and the seamen insofar as this may be authorized by the laws and regulations of the sending state; (n) performing any other functions entrusted to a consular post by the sending state which are not prohibited by the laws and regulations of the receiving state or to which no objection is taken by the receiving state or which are referred to in the international agreements in force between the sending state and the receiving state.” 6 Article 36, Paragraph 2, reads as follows: “The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving state, subject to the proviso, however, that the said laws and regulations

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Treaties of 1969 (hereinafter “VCLT”).8 Paraguay argued that the United States violated these provisions by keeping the treaty from having full effect in reason of municipal doctrines. Finally, for the same reason as the last claim, Paraguay invoked Article 279 of the VCLT.

IV. Judgment Requested Based on the claims above exposed, Paraguay asked the ICJ to adjudge and declare: “(1) [T]hat the United States, in arresting, detaining, trying, convicting, and sentencing Angel Francisco Breard, as described in the preceding statement of facts, violated its international legal obligations to Paraguay, in its own right and in the exercise of its right of diplomatic protection of its national, as provided by Articles 5 and 36 of the Vienna Convention; (2) [T]hat Paraguay is therefore entitled to restitutio in integrum; (3) [T]hat the United States is under an international legal obligation not to apply the doctrine of “procedural default” or any other doctrine of its internal law, so as to preclude the exercise of the rights accorded under Article 36 of the Vienna Convention; and (4) [T]hat the United States is under an international legal obligation to carry out in conformity with the foregoing international legal obligations any future detention of or criminal proceedings against Angel Francisco Breard or any other Paraguayan national in its territory, whether by a constituent, legislative, executive, judicial or other power, whether that power holds a superior or a subordinate position in the organization of the United States, and whether that power's functions are of an international or internal character; and that, pursuant to the foregoing international legal obligations, (1) [A]ny criminal liability imposed on Angel Francisco Breard in violation of international legal obligations is void, and should be recognized as void by the legal authorities of the United States; (2) [T]he United States should restore the status quo ante, that is, reestablish the situation that existed before the detention of, proceedings must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” 7 Article 26 of the Vienna Convention on the Law of Treaties of 1969 states that: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” 8 Vienna Convention on the Law of Treaties of 1969 (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331). 9 Article 27 of the Vienna Convention on the Law of Treaties of 1969 provides that: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”

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against, and conviction and sentencing of Paraguay's national in violation of the United States’ international legal obligations took place; and (3) [T]he United States should provide Paraguay a guarantee of the nonrepetition of the illegal acts.”10

V. Final Considerations This case does not present the United States’ view since the case itself was closed before the party was able to present its Counter-Memorial, and therefore, its arguments. The timeline with a brief history of the proceedings as far as they were carried out can be found in the timeline below.

1.2. Timeline DATE

3 April 1998

DOCUMENT

CONTENT

Press Release No. 1998/13

Informs that Paraguay submitted the application instituting proceedings against the United States for their violations of the Vienna Convention on Consular Relations. According to the plaintiff, the United States failed to complete some of the necessary procedures in regards to a Paraguayan convicted of murder and sentenced to death in the United States. His execution was set to occur on 14 April 1998. In the application Paraguay requested interim measures so as to prevent the execution until the case was resolved. The Court scheduled Public Hearings for 7 April 1998.

10 Vienna Convention on Consular Relations (Paraguay v. United States of America), application instituting proceedings, ICJ, 1998, p. 6 -7.

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7 April 1998

Press Release No. 1998/15

Sets forth information about the Public Hearings, in which both Paraguay and the United States provided their views on the provisional measures. The Court set a date to decide this issue in an Order on 9 April 1998.

8 April 1998

Press Release No. 1998/16

Sets the public sitting to the hearing of the Order for 9 April 1998 at 2 p.m. It also notifies the press about the procedures in this sitting.

Order and Press Release No. 1998/17

Relays the decision of the Court on the provisional measures requested by Paraguay. The Court ruled unanimously that the United States should do everything to stop and prevent the execution of the Paraguayan convict until the case came to an end. The country also had to inform the Court about the actions they would take to implement this Order. The document also includes declarations of the judges about the provisional measures.

9 April 1998

Order and Press Release No. 1998/18

Sets the time limits for Paraguay’s Memorial and the United States’ Counter-Memorial. Paraguay could write its Memorial until 9 June 1998, since the United States had until 9 September 1998 to give its CounterMemorial to the Court.

8 June 1998 and 9 June 1998

Order and Press Release No. 1998/22

The Court decides to extend the time limits. Paraguay had until 9 October 1998 to write the Memorial and the United States had until 9 April 1999.

9 April 1998

1. Vienna Convention on Consular Relations

10 November 1998 and 11 November 1998

Order and Press Release No. 1998/36

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Determines the removal of the case from the Court’s list. Even though Paraguay filed the Memorial of the case, the country decided to not go further with the proceedings. Since the United States agreed with the discontinuance, the case was interrupted and removed from the Court’s list.

Bibliography ACEVES, William J. (1998) ‘Application of the Vienna Convention on Consular Relations (Paraguay v. United States),’ Provisional Measures Order / Breard v. Greene. 118 S.Ct. 1352, The American Journal of International Law, Vol. 92, No. 3, pp. 517-523. Online. Available.

ADDO, Michael K. and Evans, Malcolm D. (1999) ‘Vienna Convention on Consular Relations (Paraguay v. United States of America) ("Breard") and Lagrand (Germany v. United States of America),’ Applications for Provisional Measures, The International and Comparative Law Quarterly. Vol. 43, No. 3, pp. 673-681. Online. Available. ADDO, Michael K. (2005) ‘Interim Measures of Protection for Rights Under the Vienna Convention on Consular Relations,’ European Journal of International Law, vol. 10. No. 4: 713-732. AZNAR-GOMEZ, Mariano J. (1998) ‘A propos de l’affaire relative à la convention de Vienne sur les relations consulaires (Paraguay c. EtatsUnis d’Amérique),’ Revue Générale de Droit International Public, 1998, vol. 102, pp. 915-950. COLLIARD, Claude-Albert (1961) ‘La Convention de Vienne sur les relations diplomatiques,’ Annuaire français de droit international, Volume 7, Numéro 7, pp. 3-42. LE MON, Christopher J. ‘Post-Avena Application of the Vienna Convention on Consular Relations by United States Courts,’ Leiden Journal of International Law, 18: 215-236. ROBERT, E. (1998) ‘La protection consulaire des nationaux en péril? Les ordonnances en indication de mesures conservatoires rendues par la Cour internationale de justice dans les affaires Breard (Paraguay c.

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États-Unis) et LaGrand (Allemagne c. États-Unis),’ RBDI, 31: 413449. SANTULLI, C. (1999) ‘Une administration international de la justice nationale? A propos des affaires Breard et LaGrand,’ AFDI, 45: 101131. SCHULTE, Constanze (1988) ‘Jurisprudence of the International Court of Justice: Order Issued in the Case Concerning Vienna Convention on Consular Relations (Paraguay v. United States of America),’ European Journal of International Law, 9: 761-762. TINTA, Monica Feria (2001) ‘Due Process and the Right to Life in the Context of the Vienna Convention on Consular Relations: Arguing the LeGrand Case,’ European Journal of International Law, 12: 363-366.

2. HAYA DE LA TORRE (COLOMBIA V. PERU), 1950

2.1. Summary This case concerns the effects of the judgments of the Asylum Case (Colombia v. Peru)1 and its request for interpretation2 with respect to the refugee Víctor Raúl Haya de la Torre, asylee at the Embassy of the Republic of Colombia (hereinafter “Colombia”) in the Republic of Peru (hereinafter “Peru”), where he was accused of committing political crimes.

I. Facts The International Court of Justice (hereinafter “ICJ”) adjudged the Asylum Case in 1950, concerning the legal relation between the parties with respect to the Havana Convention and the asylum of Mr. Haya de la Torre in the Colombian Embassy at Lima, Peru. On 27 November of the same year, Colombia filed a request for interpretation of the case, but the Court found it to be inadmissible. On 28 November 1950, the Minister for Foreign Affairs and Public Worship of Peru contacted the Colombian Embassy, affirming that the judgment had made clear that the asylum was irregular and, therefore, that the refugee should be surrendered to Peruvian authorities. The Colombian Minister denied such a request, claiming that surrender would not only be adverse to the referred judgment, but also to the Havana Convention.3 With no agreement on the effect of the judgment, Colombia presented an application instituting proceedings on 13 December 1950. The parties consented to limit the written proceedings to a Memorial and CounterMemorial and indicated their judges ad hoc.

1

Asylum Case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p. 266. Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru), I.C.J. Reports 1950, p. 395. 3 Convention of Havana on Right of Asylum (Havana Convention on asylum of 1928) (Havana, 20 February 1928, 132 L.N.T.S. 323). 2

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The proceedings were communicated to other states, as provided by Article 664 of the Rules of Court and, on 15 February 1951, the Minister of Cuba sent a memorandum regarding its views on the Havana Convention and the specific asylum of Mr. Haya de la Torre. Such a memorandum was interpreted as a Declaration of Intervention, according to Article 66, Paragraph 1 of the Rules of Court. The parties were consulted and, since Peru objected to the intervention, the Court opened a Public Hearing on 15 May 1951. Thereafter, attending to Article 635 of its Statute, the Court decided to maintain the intervention since, in spite of the allegations that it was res judicata, there were interpretations of matters not yet considered by the ICJ. Peru contended that the situation was not an intervention but an appeal by a third state and out of time, to which the Court responded that every intervention is incidental and must be related to the subject matter at hand. Consequently, it admitted the intervention based on Article 66, Paragraph 2 of the Rules of Court.

II. Jurisdiction According to the Court, the conduct of parties during the proceedings was enough to, in this case, establish the jurisdiction. There was no objection by the parties involved and all procedures were made in Court.

III. Matters of Dispute The question of this case is whether the refugee ought to be surrendered or not. In its submissions, Colombia asked to Court to: “[...] [S]tate in what manner the judgment of November 20th, 1950, shall be executed by Colombia and Peru, and furthermore, to adjudge and declare that Colombia is not bound, in execution of the said judgment of November 20th, 1950, to deliver M. Víctor Raúl Haya de la Torre to the Peruvian authorities. In the event of the Court not delivering judgment on the foregoing submission, may it please the Court to adjudge and declare, in the exercise of its ordinary competence, that Colombia is not bound to

4

This Article refers to the previous version of the Rules of Court. The current version was adopted on 14 April 1978 and entered into force on 1 July 1978. 5 Article 63 of the Statute of the Court states that: “1. Whenever the construction of a convention to which states other than those concerned in the case are parties is in question, the Registrar shall notify all such states forthwith. 2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the construction given by the Judgment will be equally binding upon it.”

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deliver the politically accused M. Víctor Raúl Haya de la Torre to the Peruvian authorities.”6

For its part, Peru asked the Court: “I. To state in what manner the judgment of November 20th, 1950, shall be executed by Colombia; II. To dismiss the submissions of Colombia by which the Court is asked to state solely [“sans plus”] that Colombia is not bound to deliver Víctor Raúl Haya de la Torre to the Peruvian authorities; III. In the event of the Court not delivering judgment on submission No. 1, to adjudge and declare that the asylum granted to Señor Víctor Raul Haya de la Torre on January 3rd, 1949, and maintained since that date, having been judged to be contrary to Article 2, Paragraph 2, of the Havana Convention of 1928, ought to have ceased immediately after the delivery of the judgment of November 20th , 1950, and must in any case cease forthwith in order that Peruvian justice may resume its normal course which has been suspended.”7

Cuba, finally, presented some interpretations on the Havana Convention as far as the surrender of Mr. Haya de la Torre was concerned.8

IV. Judgment The Court began by affirming that, in fact, there was no approach to how the asylum should be terminated in the previous judgments. It explained, nevertheless, that it was not in a position to indicate a solution itself, since it would then be leaving its judicial role. The Court responded directly to the states’ submissions. Regarding Colombia’s request to conclude that it not be obligated to surrender the refugee, according to the mentioned judgments, the Court explained that it could not reach such a conclusion, since the matter was not observed at the time of these previous judgments. Regarding Colombia’s second request, that is, that the Court adjudge the case with ordinary competence – to which Peru responded that the decision of the previous case should be maintained –the ICJ explained that there was no res judicata on the matter and that it showed up only when Peru asked Colombia for the surrender of Mr. Haya de la Torre. The Court 6

Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p. 75. Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p. 75. 8 Since the Court responded directly to the parties’ submissions, the presentation of this case will focus on the judgment rendered by the Court, which indirectly mentions the matters in dispute. 7

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emphasized that, though the Havana Convention mentions asylum as a provisory situation that must not be prolonged for an indeterminate period (Article 2, Paragraph 19), it does not define this period or the way in which the asylum should be terminated. It judged that Article 110 could not be applied since the case did not correspond to the criteria it established, according to the asylum case judgment. As for Paragraph 2, it could not be applied either, since the situation involved a political crime, and not a common one, as found in the referred judgment. The Court concluded therefore that the absence of provision in the Convention could not be interpreted as establishing an obligation to surrender the refugee in the case of irregular asylum. It would be against the Latin American tradition of political asylum that considers that in such situations refugees must not be surrendered. Moreover, it found such lack of juridical rule to be an option made by the parties of the Convention, indicating their wish to keep the discussion in a political sphere. Next, the Court justified that, although it found in previous judgments that asylum should not be used to obstruct justice, this did not mean that the state that grants irregular asylum must surrender the refugee. If it did, claimed the Court, the Convention would have expressly addressed the case, instead of providing only a general rule. In Peru’s last submission, the Court observed that the state was entitled to ask for the conclusion of the refugee, due to the decisions of the asylum case. This did not mean, however, that it was in a position to require surrender. Finally, the Court concluded that asylum should be terminated, but that there were different ways to do this and it was up to the states involved to decide, since any observation by the Court on the matter would exceed its judicial function. The final decision was as follows:

9

Article 2, Paragraph 1 of the Havana Convention provides that: “Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.” 10 Article 1 of the Havana Convention on Asylum states that: “It is not permissible for states to grant asylum in legations, warships, military camps or military aircraft, to persons accused or condemned for common crimes, or to deserters from the army or navy. Persons accused of or condemned for common crimes taking refuge in any of the places mentioned in the preceding paragraph, shall be surrendered upon request of the local government. Should said persons take refuge in foreign territory, surrender shall be brought about through extradition, but only in such cases and in the form established by the respective treaties and conventions or by the constitution and laws of the country of refuge.”

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19

“[...] [O]n the principal submission of the government of Colombia and the first submission of the government of Peru, unanimously, finds that it cannot give effect to these submissions and consequently rejects them; [O]n the alternative Submission of the government of Colombia and the second Submission of the government of Peru, by thirteen votes to one, finds that Colombia is under no obligation to surrender Víctor Raúl Haya de la Torre to the Peruvian authorities; [O]n the third Submission of the government of Peru, unanimously, finds that the asylum granted to Víctor Raúl Haya de la Torre on January 3rd4th, 1949, and maintained since that time, ought to have ceased after the delivery of the judgment of November 20th, 1950, and should terminate.”11

2.2. Timeline DATE

DOCUMENT

CONTENT

13 December 1950

Press Release No. 1950/48

Communicates the filing of an application instituting proceedings by Colombia against Peru.

11

3 January 1951 and 4 January 1951

Order and Press Release No. 1951/1

9 February 1951

Press Release No. 1951/3

Establishes and notifies that the President of the Court, as well as the representatives of Colombia and Peru have decided to limit the filing of written proceedings to: 7 February 1951 for Colombia’s Memorial and 15 March 1951 for Peru’s Counter-Memorial. Communicates that the parties involved have chosen as judges ad hoc: José Joaquin Caicedo Castilla (Colombia) and Luis Alayza y Paz Soldan (Peru). Also lists the agents indicated by the states involved and notes that Colombia has delivered its Memorial in time.

Haya de la Torre (Colombia v. Peru), Judgment, I.C.J. Reports 1951, p.83.

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Press Release No. 1951/4

Announces that, on 13 March 1951, the ICJ received a letter from the government of Cuba, presenting its views on the Havana Convention and on the case.

14 April 1951

Press Release No. 1951/11

States that the Court will hold Public Hearings on the case on 8 May 1951.

8 May 1951

Press Release No. 1951/15

Communicates that Public Hearings will begin on 15 May 1951.

15 May 1951

Press Release No. 1951/16

Informs that the ad hoc judges were installed and made their solemn declarations.

15 March 1951

Notifies that the Court found the Cuban intervention to be admissible and opened the oral proceedings on the merits of the case, hearing the representatives of the parties involved. Reports the conclusion of oral proceedings.

16 May 1951

Press Release No. 1951/17

17 May 1951

Press Release No. 1951/18

11 June 1951

Press Release No. 1951/23

Communicates that on 13 June 1951 the Court will hold a Public Hearing to read its judgment on the case.

13 June 1951

Press Release No. 1951/24

Informs that the Court delivered its judgment on the case.

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Bibliography CARRIZOSA, Alfredo Vazquez; MORENO, Augusto Ramirez and MOUTET, Marius (1950) Plaidoirie pour la République de Colombie dans l’affaire colombo-péruvienne relative à l’asile de Victor Raúl Haya de la Torre prononcée devant la Cour internationale de justice, Paris: Pédone. WILLIAM W. BISHOP, Jr. (1951) ‘Haya de la Torre Case (Columbia/Peru),’ The American Journal of International Law, 45. No. 4: 781-788. Online. Available. PAIVA, Emmanuelle Christinne Fonseca de (2007), ‘Asilo diplomático e os direitos humanos: uma análise do Caso Haya de la Torre da Corte Internacional de Justiça’ in Rosenite Alves de Oliveira (ed) Realidades: direitos humanos, meio ambiente e desenvolvimento,Natal: EDUFRN, pp. 31-46. PATEL, Bimal N. (2002), ‘Case Concerning the Vienna Convention of Consular Relations (Paraguay v. USA)’ in Bimal N. Patel The World Court Reference Guide: Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000), Hague/London/New York: Kluwer Law International. —. (2002), ‘Haya de la Torre Case (Colombia v. Peru)’ in Bimal N. Patel The World Court Reference Guide: Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000), Hague/London/New York: Kluwer Law International. VAN ESSES, J. L. F. (1952) ‘Some Reflections on the Judgments of the International Court of Justice in the Asylum and Haya de la Torre Cases,’ The International and Comparative Law Quarterly, Vol. 1, No. 4, pp. 533-539. Online. Available.

VERZIJL, J.H.W. (1966) ‘The Asylum and Haya de la Torre Case (Colombia v. Peru)’ in The Jurisprudence of the World Court: A Case by Case Commentary – Volume II: The International Court of Justice (1947-1965), Leyden: A.W. Sijthoff.

3. ASYLUM (COLOMBIA V. PERU), 1949

3.1. Summary This case concerns the dispute between the Republic of Colombia (hereinafter “Colombia”) and the Republic of Peru (hereinafter “Peru”) on matters related to the asylum granted by the Colombian Embassy in Lima to the Peruvian citizen Víctor Raúl Haya de la Torre.

I. Facts On 3 October 1948 a rebellion against Peru’s government took place in Lima. This rebellion was immediately associated with the political party named the American People’s Revolutionary Alliance by a decree from the President of the Republic on 4 October 1948. On that same day, a state of siege was enforced in Peru. On the following day, 5 October 1948, the leader of the party, Mr. Haya de la Torre, as well as other members, was denounced. On 10 October 1948, the public prosecutor responsible for the case declared that the crime for which they were being charged concerned military rebellion. As the political scenario grew more intense, the examining magistrate ordered the arrest, on 25 October 1948, of those who were accused of the military rebellion and were not yet detained. Afterwards, on 27 October 1948, following this political crisis, the government’s military junta took over the country. The result of such events was a decree on 4 November 1948 enforcing severe procedures on cases of rebellion, among others. These procedures, however, did not apply specifically to the case concerning Mr. Haya de la Torre and the other members of the political party, as shown in several official government documents. Given the circumstances, on 3 January 1949, Mr. Haya de la Torre sought asylum at the Colombian Embassy in Lima. The Colombian Ambassador notified the Peruvian Minister of Foreign Affairs and Public Worship the next day that Mr. Haya de la Torre was given asylum based on the Havana Convention on Right of Asylum of 1928,1 signed by both 1

Convention of Havana on Right of Asylum (Havana Convention on asylum of 1928) (Havana, 20 February 1928, 132 L.N.T.S. 323).

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23

Peru and Colombia. Later, on 14 January 1949, the Ambassador informed the Minister that Colombia had qualified Mr. Haya de la Torre as a political refugee. After receiving these notifications Peru started diplomatic discussions with Colombia about the case, which culminated in the decision to refer it to the International Court of Justice (hereinafter “ICJ”).

II. Jurisdiction In the present case, the jurisdiction of the Court relies on the special agreement named “Act of Lima.”2 This agreement, signed by the parties on 31 August 1949, refers the dispute to the ICJ, based on Article 36, Paragraph 1 of the Rules of Court.3 Since the parties were unable to refer the case jointly to the Court, the agreement also established that one of the parties should submit the application instituting proceedings without such an act being considered uncordial by the other.

III. Matters of Dispute According to what was settled by the Act of Lima, Colombia submitted an application instituting proceedings against Peru on 15 October 1949. On that occasion Colombia requested the Court to answer two questions that met with its final submissions to the Court. These submissions were for the Court to adjudge and declare: “I. That the Republic of Colombia, as the country granting asylum, is competent to qualify the offence for the purpose of the said asylum, within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition of July 18th, 1911, and the Havana Convention on Asylum of February 20th, 1928, and of American international law in general II. That the Republic of Peru, as the territorial state, is bound in the case now before the Court to give the guarantees necessary for the departure of M. Víctor Raúl Haya de la Torre from the country, with due regard to the inviolability of his person.”4 2

Agreement of Lima between Colombia and Peru (31 August 1949). Article 36, Paragraph 1 of the Rules of Court states that: “If the Court finds that two or more parties are in the same interest, and therefore are to be reckoned as one party only, and that there is no Member of the Court of the nationality of any one of those parties upon the Bench, the Court shall fix a time-limit within which they may jointly choose a judge ad hoc.” 4 Colombian-Peruvian asylum case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p.9, Paragraph 3. 3

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On the other hand, Peru, in its counter-claim, made the following final submissions requesting the Court to adjudge and declare that: “[T]he grant of asylum by the Colombian Ambassador at Lima to Víctor Raúl Haya de la Torre was made in violation of Article 1, Paragraph 1,5 and of Article 2, Paragraph 2, Item I (inciso primera), of the Convention on Asylum signed in 1928,6 and that in any case the maintenance of the asylum constitutes at the present time a violation of that treaty.”7

IV. Merits A) Colombia’s Arguments In order to pursuade the Court to deliberate in its favor, Colombia presented on both its written and oral proceedings an extensive legal basis for the submissions listed in its application.8 With regards to Colombia’s first submission, which concerns its presumed right to unilaterally qualify the crime committed by Mr. Haya de la Torre, Article 18 of the Bolivarian Agreement of 19119 was first brought before the Court. This article, according to Colombia, grants such a right as one of the principles of international law. In addition, Colombia relied on the Havana Convention on Asylum of 1928. Even though this convention does not attribute the competence of qualifying the crime exclusively to the state granting the asylum, Colombia interpreted it as an implicit right inherent to the said institution. Colombia’s argument against this convention was based specifically on its 5

Article 1, Paragraph 1 of the Havana Convention on Asylum provides that: “It is not permissible for states to grant asylum in legations, warships, military camps or military aircraft, to persons accused or condemned for common crimes, or to deserters from the army or navy.” 6 Article 2, Paragraph 2 of the Havana Convention on Asylum rules that: “Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.” 7 Colombian-Peruvian asylum case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p.9, Paragraph 16. 8 Colombian-Peruvian asylum case (Colombia v. Peru), Application instituting proceedings. 9 Article 18 of the Bolivarian Agreement on Extradition of 1911 is framed as follows: “Aside from the stipulations of the present Agreement, the signatory states recognize the institution of asylum in conformity with the principles of international law.”

3. Asylum (Colombia v. Peru), 1949

25

Article 2, Paragraph 1.10 Colombia’s understanding of such a provision was that it could use its internal legislation to qualify the crime and impose such a qualification on Peru. Another convention, the Montevideo Convention on Political Asylum of 1933, was referred to Colombia. Unlike the Havana Convention on Asylum of 1928, Article 211 of the Montevideo Convention determines that the state granting asylum has the prerogative to qualify the offence. This convention actually dictates the way the Havana Convention should be interpreted. Finally, to argue over its first submission, Colombia invoked Latin America’s customary law. According to Article 38 of the statute of the Court,12 a common international practice will only be accepted as customary international law if it is a constant and uniform practice among the states in question. Therefore, Colombia presented to the Court several cases related to asylum as well as the Montevideo Convention of 1889, the 10

Article 2, Paragraph 1 of the Havana Convention on Asylum of 1928 states that: “Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed as a right or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance with the following provisions:” 11 Article 2 of the Montevideo Convention on Asylum of 1933 establishes as follows: “The judgment of political delinquency concerns the state which offers asylum.” 12 Article 38 of the Rules of Court provides that: “1. When proceedings before the Court are instituted by means of an application addressed as specified in Article 40, paragraph 1, of the Statute, the application shall indicate the party making it, the state against which the claim is brought, and the subject of the dispute.2. The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based. 3. The original of the application shall be signed either by the agent of the party submitting it, or by the diplomatic representative of that party in the country in which the Court has its seat, or by some other duly authorized person. If the application bears the signature of someone other than such diplomatic representative, the signature must be authenticated by the latter or by the competent authority of the applicant's foreign ministry. 4. The Registrar shall forthwith transmit to the respondent a certified copy of the application. 5. When the applicant state proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the state against which such application is made, the application shall be transmitted to that state. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the state against which such application is made consents to the Court's jurisdiction for the purposes of the case.”

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Bolivarian Agreement of 1911, and the Havana Convention of 1928, in an attempt to prove to the Court both the common practice and jurisprudence among Latin American states on granting asylum. With regards to the second submission, which concerns the guarantee of security of the refugee for the departure from Peru, Colombia also relied on the Havana Convention on Asylum of 1928, in Article 113 and Article 2.14 These provisions establish the conditions necessary both for granting asylum and for the refugee to be entitled to request safe-conduct. Colombia alleged that the safeguard of Mr. Haya de la Torre was therefore its right and Peru’s obligation.

B) Peru’s Arguments The government of Peru’s submission can also be divided in two sections. The first part concerns the request to the Court to declare a violation of 13

Article 1 of the Havana Convention on Asylum of 1928 is written as follows: “1. It is not permissible for states to grant asylum in legations, warships, military camps or military aircraft, to persons accused or condemned for common crimes, or to deserters from the army or navy. 2. Persons accused of or condemned for common crimes taking refuge in any of the places mentioned in the preceding paragraph, shall be surrendered upon request of the local government. 3. Should said persons take refuge in foreign territory, surrender shall be brought about through extradition, but only in such cases and in the form established by the respective treaties and conventions or by the constitution and laws of the country of refuge.” 14 Article 2 of the Havana Convention on Asylum of 1928 rules that: “1. Asylum granted to political offenders in legations, warships, military camps or military aircraft, shall be respected to the extent in which allowed, as a right or through humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in accordance with the following provisions: 2. First: Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety. 3. Second: Immediately upon granting asylum, the diplomatic agent, commander of a warship, or military camp or aircraft, shall report the fact to the Minister of Foreign Relations of the state of the person who has secured asylum, or to the local administrative authority, if the act occurred outside the capital. 4. Third: The government of the state may require that the refugee be sent nut of the national territory within the shortest time possible; and of his person, from the country. 5. Fourth: Refugees shall not be landed in any point of the national territory nor in any place too near thereto. 6. Fifth: While enjoying asylum, refugees shall not be allowed to perform acts contrary to the public peace. 7. Sixth: States are under no obligation to defray expenses incurred by one granting asylum.”

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27

Article 1 and Article 2 of the Havana Convention on asylum of 1928 by Colombia. This was, in fact, the original submission, complemented later by oral statements. The additional request made by Peru during the oral statements can be considered the second part of the submission, which is an implicit demand for the surrender of Mr. Haya de la Torre. Peru asked the Court to consider this second submission only if the original one was rejected. Peru’s argument against Colombia’s violation of Article 1, Paragraph 1 of the Havana Convention on Asylum of 1928 is related to the question of whether Colombia was competent or not to qualify the crime committed by Mr. Haya de la Torre and the qualification itself. This provision rules that people accused of committing common crimes cannot be granted asylum. Peru argued that the crimes which Mr. Haya de la Torre had been accused of were common crimes. Concerning Colombia’s violation of Article 2, Paragraph 2, which lists urgency as one of the conditions for the granting of asylum, Peru claimed that the case was not urgent. In order to support this argument, Peru brought before the Court a couple of considerations. The first consideration regarded the time elapsed since the rebellion and the request for asylum. Peru alleged that a period of three months was too long for an urgent situation. The second consideration was that during these three months some of the people accused of the same crimes sought asylum in several embassies, and Mr. Haya de la Torre resisted doing so. Peru points to this resistance as proof of the non-urgency of the asylum granted, since if it were indeed urgent, Mr. Haya de la Torre would have immediately requested it, instead of postponing it. The second submission, regarding the implicit request of surrender of Mr. Haya de la Torre, questions whether the maintenance of asylum was legal or not. Peru’s main argument towards this point rests upon the fact that the maintenance of asylum itself would violate the Havana Convention on Asylum of 1928. This argument is based on Article 2, Paragraph 2, which provides that asylum should only last for the time strictly necessary. This claim does not depend on the turnout of the first submission, since it does not question the regularity with which the asylum was provided, but in which it is maintained.

V. Judgment The Court rendered its decision on 20 November 1950. It started by evaluating Colombia’s submissions and arguments, followed by those

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brought up by Peru. Then, finally, the Court issued a brief summary of its judgment exposing its votes. In terms of the first submission, concerning the right to unilaterally qualify the crime committed by Mr. Haya de la Torre with the purpose of granting asylum, Colombia presented a series of legal arguments, which invoked several treaties and customary law. Colombia’s main argument was based on Article 18 of the Bolivarian Agreement of 1911, where it interpreted such a right as being a principle of international law. The Court rejected such an argument stating that it was not a principle of international law. In fact, the Court found this argument particularly alarming. From its point of view, considering the said provision as a principle of international law could put the sovereignty of the state which the refugee is from at risk. The second treaty invoked by Colombia was the Havana Convention on Asylum of 1928. Colombia’s interpretation of the treaty was that its competence to qualify the crime was implicit in the convention and was part of the nature of the institution of asylum. It also understood from Article 2, Paragraph 1, that it could use its internal law to qualify the crime and impose it on Peru. Again, the Court rejected the claim, declaring that such a provision was to be interpreted as a restriction of the conditions where asylum could be granted. That is, asylum should not be provided beyond what is expressed in a state’s domestic law. Therefore, the Court considered the interpretation given by Colombia misguided, since it endangers Peru’s sovereignty. The third and last treaty brought up by Colombia to support its first submission was the Montevideo Convention on Political Asylum of 1933. The Court dismissed the application of this convention, since it was not ratified by Peru, and, therefore, could not be used against this state. Finally, Colombia alleged that the unilateral qualification of the crime for providing asylum was a customary law in Latin American states. In order to support this argument, Colombia presented a series of treaties signed by Latin American states and several cases in which asylum was granted and respected. The Court rejected this argument, whereas the treaties presented were not ratified by Peru or were not ratified by a significant number of Latin American states. Moreover, the cases submitted to the Court were inconsistent and could not be considered customary law. In relation to Colombia’s second submission, which involved the safeguard of Mr. Haya de la Torre, the party relied broadly on Article 1 and Article 2 of the Havana Convention on Asylum of 1928. It alleged that the safeguard of Mr. Haya de la Torre was a right granted by this

3. Asylum (Colombia v. Peru), 1949

29

convention. Once again, the Court dismissed this argument, claiming that the safeguard of the refugee to leave the country is not a right of the state granting asylum, but a choice of the territorial state. That is, Peru should provide safeguard to Mr. Haya de la Torre if it were in its interest to have him leave the country. The Court acknowledged that it is a common practice for the diplomatic representative of the state providing asylum to request safeguard before the territorial state. However, it explained that this usually happens in virtue of the mutual interest of states. While the state granting asylum wishes not to prolong the stay of the refugee in the Embassy, the territorial state desires the departure of its political opponent. The Court, then, pointed out that this was not the case, since Peru did not desire the departure of Víctor Raúl Haya de la Torre. Regarding Peru’s submissions, the Court first analyzed the original submission concerning the violations of the Havana Convention on Asylum of 1928, since the second one should only be considered in case the original was dismissed. The violations pointed out by Peru were of Article 1, Paragraph 1 and Article 2, Paragraph 2 of the said convention. In relation to the first provision, Peru argued that Mr. Haya de la Torre had committed common crimes, and therefore, that asylum was granted irregularly. The Court considered that Peru was unable to prove that such crimes had this qualification, since all official records of the government of Peru accused Mr. Haya de la Torre of being part of the military rebellion. Peru’s claim concerning Colombia’s violation of Article 2, Paragraph 2, of the Havana Convention of 1928 rests upon the idea of urgency. Peru alleged that such a condition was not considered by Colombia when asylum was granted. The Court agreed that Colombia did not express urgency with regards to the asylum of Mr. Haya de la Torre in the initial proceedings. But later on in the development of the case, Colombia did attempt to prove the danger in which it considered Mr. Haya de la Torre to be. The nature of this supposed danger relied on the subordination of the Peruvian justice system to the executive power. That is, Colombia alleged that Mr. Haya de la Torre would not have a fair trial given his political position. The Court evaluated both arguments and decided that the urgency alleged by Colombia was not included in the Havana Convention on Asylum of 1928. This convention, according to the Court, should be interpreted restrictively, since it was created in order to avoid abuses in the use of the institution of asylum. Moreover, the Court did not find evidence that the Peruvian justice system was in fact corrupt. Therefore, the Court agreed that the asylum granted by Colombia to Mr. Haya de la Torre was

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not in conformity with Article 2, Paragraph 2, of the Havana Convention of 1928. Since the Court did not dismiss the original submission made by Peru, the second submission, related to the maintenance of asylum was not even considered. Having analyzed all of these arguments, the Court voted as follows: “On the submissions of the government of Colombia, [B]y fourteen votes to two, rejects the first submission in so far as it involves a right for Colombia, as the country granting asylum, to qualify the nature of the offence by a unilateral and definitive decision, binding on Peru; [B]y fifteen votes to one, rejects the second submission, on the counterclaim of the government of Peru, [B]y fifteen votes to one, rejects it in so far as it is founded on a violation of Article 1, Paragraph 1, of the Convention on Asylum signed at Havana in 1928; [B]y ten votes to six, finds that the grant of asylum by the Colombian government to Víctor Raul Haya de la Torre was not made in conformity with Article 2, Paragraph 2 ("First"), of that Convention.”15

3.2. Timeline DATE

17 October 1949

DOCUMENT

CONTENT

Press Release No. 1949/18

Concerns the filing of an application instituting proceedings against the government of Peru by the government of Colombia. The dispute taken to the ICJ involves the welfare of a Peruvian citizen who was granted asylum by the Colombian Embassy in Lima.

15 Colombian-Peruvian asylum case (Colombia v. Peru), Judgment, I.C.J. Reports 1950, p.26, Paragraph 4.

3. Asylum (Colombia v. Peru), 1949

31

20 October 1949

Presents the jurisdiction of the Court in the case and the contents of the application instituting proceedings submitted by Colombia. It also establishes the time limits for the filing of written Order and Press proceedings, as follows: 30 Release No.1949/19 December 1949 for the Memorial of Colombia; 10 March 1950 for the Counter-Memorial of Peru; 20 April 1950 for the Reply of Colombia; and 30 May 1950 for the Rejoinder of Peru.

17 December 1949

Refers to the extension of a deadline for the filing of part of the written proceedings, as requested by Colombia. Once there were no objections from Peru, the Court agreed to postpone the time limits of both the Memorial and the Order and Press Counter-Memorial. The dates Release No.1949/27 established were: 10 January 1950 for the Memorial of Colombia and 21 March 1950 for the CounterMemorial of Peru. The Court, however, maintained the time limits of the Reply and Rejoinder according to what was decided in the Order of 20 October 1949.

11 January 1950

Press Release No. 1950/2

Publishes the ad hoc judge choice made by the parties in the case, as provided by Article 31, Paragraph 3 of the Statute of the Court. José Joaquin Caicedo Castilla and Luis Alayza y Paz Soldán were chosen as judges by Colombia and Peru, respectively.

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9 May 1950

Order

Establishes the extension of the time limits for the filing of a Rejoinder by Peru, as requested by the party. Colombia objected to such a request, expressing concern over the delay of the opening of oral proceedings. Nonetheless, the Court agreed to postpone the deadline of the Rejoinder to 15 June 1950.

22 September 1950

Press Release No.1950/34

Determines the date of the opening of oral proceedings. The Public Hearings at the ICJ were set to be held on 26 September 1950.

Press Release No. 1950/35

Summarizes the history of proceedings before the oral statements. First it briefly explains the dispute involved in the case. Then it exposes the arguments submitted by each party in their written proceedings. Finally, the document presents once again the designated ad hoc judges and the names that would represent the parties in the Public Hearings.

Press Release No. 1950/36

Records the first day of Public Hearings. On this occasion, the importance of the present case to international jurisdiction was highlighted as “the first time that two American countries referred a dispute to the International Court of Justice.” The document also establishes the extension of Colombia’s oral statements to 27 September 1950.

25 September 1950

26 September 1950

3. Asylum (Colombia v. Peru), 1949

29 September 1950

3 October 1950

6 October 1950

9 October 1950

33

Press Release No. 1950/37

Summarizes the arguments in the case presented by Colombia’s representatives during the Public Hearings held between 26 September 1950 and 29 September 1950. It also establishes the beginning of Peru’s oral statements on Public Hearings starting 2 October 1950.

Press Release No. 1950/38

Summarizes the arguments on the case presented by Peru’s representatives during Public Hearings held on 2 October 1950 and 3 October 1950. It also establishes the date of the beginning of the oral Reply and Rejoinder as 6 October 1950.

Press Release No.1950/39

Displays the arguments presented by Colombia’s agents in their oral Reply. On this occasion, the party requested the Court to declare Peru’s Counter-Memorial as out of order. This document also settles the date of the Public Hearing when Peru’s agents would present their oral Rejoinder as 9 October 1950.

Press Release No. 1950/40

Reports what took place during the public sitting of 9 October 1950, in which Peru presented its oral Rejoinder. It also presents Peru’s final submissions. Finally, it declares the closure of the oral proceedings with the reservation of reopening the proceedings if the Court ever judges necessary.

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16 November 1950

20 November 1950

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Press Release No. 1950/42

Settles for the Court to hold a Public Hearing to announce its judgment on the present case as 20 November 1950.

Press Release No.1950/43

Publishes the Court’s decision on the case and presents a brief summary of the judgment. It exposes the votes and decisions given to each question set out in the written proceedings. The Court decided, among other things, that the asylum given by Colombia was not in accordance with the Havana Convention, to which both countries were parties.

3.3. Bibliography BISHOP, William W. Jr. (1956) ‘Asylum Case (Colombia/Peru),’ The American Journal of International Law, 45: 179-203. BRIGGS, Herbert W. (1951) ‘The Colombian-Peruvian Asylum Case and Proof of Customary International Law,’ The American Journal of International Law, Vol. 45. No. 4. Pp. 728-731. October 1951. Online. Available. < http://www.jstor.org/stable/2194257> EVANS, Alona E. (1952) ‘The Colombian-Peruvian Asylum Case: The Practice of Diplomatic Asylum,’ The American Political Science Review, Vol. 46, No. 1, pp. 142-157. Online. Available.

—. (1951) ‘The Colombian-Peruvian Asylum Case: Termination of the Judicial Phase,’ The American Journal of International Law, Vol.45, No. 4, pp. 755-762. Online. Available.

GARCÍA-MORA, Manuel R. (1951) ‘The Colombian-Peruvian Asylum Case and the Doctrine of Human Rights,’ Virginia Law Review, Vol. 37. No. 7. Pp.927-965. Online. Available. http://www.jstor.org/stable/1069115 GONIDEC P.F. (1951) ‘L’affaire du droit d’asile,’ Revue Générale de Droit International Public, vol. 55, pp. 547-592. LALIVE, J.F. (1953) ‘Droit d’asile, affaire Haya de la Torre’, J.D.I., 80: 684-705.

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PATEL, Bimal N. (2002) ‘Asylum Case (Colombia v. Peru)’ in Bimal N. Patel The World Court Reference Guide: Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000)’, Hague/London/ New York: Kluwer Law International. —. (2002) ‘Request for Interpretation of the Judgment of November 20th, 1950, in the Asylum Case (Colombia v. Peru)’ in Bimal N. Patel The World Court Reference Guide: Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000), Hague/London/New York: Kluwer Law International. VAN ESSES, J. L. F. (1952) ‘Some Reflections on the Judgments of the International Court of Justice in the Asylum and Haya de la Torre Cases,’ The International and Comparative Law Quarterly, Vol. 1. No. 4. pp. 533-539. Online. Available. < http://www.jstor.org/stable/755177> VERZIJL, J.H.W. (1966) ‘The Asylum and Haya de la Torre Case (Colombia v. Peru)’ in The Jurisprudence of the World Court: A Case by Case Commentary – Volume II: The International Court of Justice (1947-1965), Leyden: A.W. Sijthoff.

4. REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 20 NOVEMBER 1950 IN THE ASYLUM CASE (COLOMBIA V. PERU), 1950

4.1. Summary This case concerns the dispute between the Republic of Colombia (hereinafter “Colombia”) and the Republic of Peru (hereinafter “Peru”) regarding the admissibility of a request for interpretation of the judgment of the Asylum Case submitted by Colombia.

I. Facts On 20 November 1950 the International Court of Justice (hereinafter “ICJ”) delivered its judgment on the Asylum Case. The dispute concerning this case arose on 3 January 1949, when Víctor Raúl Haya de la Torre sought asylum at the Colombian Embassy in Lima. At the time, Peru was politically unstable due to a series of rebellions that culminated in the enforcement of a state of siege. Mr. Haya de la Torre was the leader of the party associated with such rebellions, the American People’s Revolutionary Alliance. Due to his political position, Mr. Haya de la Torre was prosecuted for military rebellion and, later, the examining magistrate ordered his arrest. For this reason, Víctor Raúl Haya de la Torre was granted asylum by the Colombian government. The government of Peru initiated diplomatic negotiations with Colombia for Mr. Haya de la Torre’s surrender as soon as it acknowledged the asylum. Such negotiations led to a special agreement that submitted this case to the ICJ. During the proceedings, Peru requested the Court to adjudge that the asylum granted was not in accordance with international law, since, from its point of view, the crimes committed by Mr. Haya de la Torre were common crimes and not political crimes, as alleged by Colombia. Colombia, however, requested the Court to declare that its government was competent to unilaterally qualify the type of offense

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committed by the refugee and that such a qualification was binding for the government of Peru. The Court declared that the asylum was not in accordance with international law due to the fact that it had lasted longer than strictly necessary and because the Colombian Ambassador had unilaterally qualified the nature of the offense committed by the refugee. However, it dismissed both Peru and Colombia’s submissions, the first due to the lack of proof that Mr. Haya de la Torre had committed common crimes and the second because it was considered to be a threat to Peru’s sovereignty. While the government of Colombia was dissatisfied with the decision, deeming it unclear and lacking information, on 20 November 1950 it submitted to the Court a request for interpretation of the said judgment.

II. Jurisdiction Colombia submitted to the Court the request for interpretation of the judgment of 20 November 1950 based on Article 60 of the Statute of the Court.1 This provision allows a party to the case to submit a request for interpretation in case a dispute between the parties arises over the meaning and scope of a decision delivered by the Court.

III. Matters of Dispute The question the Court had to face in its judgment regarding the request for interpretation was whether the judgment of 20 November 1950 should be interpreted, and, if so, for what reasons. In this sense, on the occasion of the submission of the request, Colombia asked the Court to answer three questions: “First: Must the judgment of November 20th, 1950, be interpreted in the sense that the qualification made by the Colombian Ambassador of the offence attributed to M. Haya de la Torre, was correct, and that, consequently, it is necessary to attribute legal effect to the abovementioned qualification, in so far as it has been confirmed by the Court? Second: Must the judgment of November 20th, 1950, be interpreted in the sense that the government of Peru is not entitled to demand surrender of the political refugee M. Haya de la Torre, and that, consequently, the government of Colombia is not bound to surrender him even in the event 1

Article 60 of the Statute of the Court reads as follows: “The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the Judgment, the Court shall construe it upon the request of any party.”

38

Chapter I of this surrender being requested? Third: Or, on the contrary, does the Court’s decision on the counter-claim of Peru imply that Colombia is bound to surrender the refugee Víctor Raúl Haya de la Torre to the Peruvian authorities, even if the latter do not so demand, in spite of the fact that he is a political offender and not a common criminal, and that the only convention applicable to the present case does not order the surrender of political offenders?”2

The only request made by the Peruvian government to the Court was for it to consider Colombia’s request inadmissible.

IV. Merits A) Colombia’s Arguments In its request, Colombia exposed two arguments in favor of the interpretation of the judgment of 20 November 1950. The first argument concerned the qualification attributed to the crimes committed by Mr. Haya de la Torre. Colombia’s ambassador in Lima considered the offences for which Mr. Haya de la Torre was being charged to be political crimes, and, for this reason, considered him fit to seek asylum at the Colombian Embassy. Peru, however, alleged that the crimes committed by the refugee were of common nature, and, therefore, that the asylum was not in accordance with the Convention of Havana on Right of Asylum (hereinafter “Havana Convention”).3 The aforementioned treaty is the only legal document regulating matters of asylum between two parties and provides that whenever the territorial state and the state granting asylum diverge on the qualification of the crime committed by the refugee, both states ought to use their own methods for pacific settlement of disputes. Colombia found that taking the case to the ICJ was its way of doing so. The Court, in its judgment of 20 November 1950, dismissed Peru’s allegation that Mr. Haya de la Torre had committed common crimes due to a lack of proof. From Colombia’s point of view, such a dismissal meant that the Court agreed on the qualification attributed by the Colombian ambassador to Mr. Haya de la Torre’s as political crimes. Based on this premise, Colombia questioned the unlawfulness of granting him asylum. The reason for such questioning was that since the Court agreed that Mr. Request for Interpretation of the Judgment of November 20th, 1950, in the Asylum Case (Colombia v. Peru), Judgment, I.C.J, Reports 1950, p.8, Paragraph 16. 3 Convention of Havana on Right of Asylum (Havana Convention on asylum of 1928) (Havana, 20 February 1928, 132 L.N.T.S. 323). 2

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Haya de la Torre had committed political crimes, Colombia sought to understand the reason why the Court considered the asylum it granted unlawful. Colombia argued that the mere fact that its Ambassador had qualified the nature of the crime unilaterally, and not by consulting Peru, was not sufficient to annul the legal effects of the qualification itself. The second argument regards the surrender of Mr. Haya de la Torre. According to Colombia, in the judgment of 20 November 1950, the Court indirectly ordered the surrender of Mr. Haya de la Torre by stating that the asylum was illegal because it violated Article 2, Paragraph 2 of the Havana Convention.4 That is, it indirectly suggested that Colombia would be in breach of international law as long as it kept Mr. Haya de la Torre on its premises. In response, Colombia alleged that this matter was never brought to the Court by either party during the proceedings, nor was it discussed between them in their diplomatic correspondence. Therefore, it was not for the Court to decide upon, even indirectly. Moreover, the Havana Convention, as mentioned above, is the only treaty that regulates the matters of asylum between two parties, and it does not provide for the surrender of political criminals. Thus, keeping Mr. Haya de la Torre did not constitute a breach of international law. Furthermore, Colombia pointed out that it could not have violated the order of surrender supposedly comprised in the said judgment, since it was merely an indirect order.

B) Peru’s Arguments Peru expressed its view on the request for interpretation in a letter sent to the Court on 22 November 1950. In this document, besides affirming that it found the judgment of 20 November 1950 perfectly clear, the Peruvian government alleged that the Colombian request was inadmissible for not fulfilling the requirements of Article 60 of the Statute of the Court. From Peru’s point of view, the request for interpretation submitted by Colombia used expressions such as “gaps” to force a new judgment on different matters. Therefore, Peru argued that if the Court consented to interpret the judgment as requested by Colombia, it would be in violation of the mentioned provision.

4

Article 2, Paragraph 2 of the Havana Convention on Asylum of 1928 states that: “Asylum may not be granted except in urgent cases and for the period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.”

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IV. Judgment In order to decide whether the request for interpretation was admissible or not, the Court analyzed mainly Article 60 of the Statute of the Court, but also Article 79, Paragraph 2 of the Rules of Court.5 In this sense, the Court established that the two requirements of Article 60 of the Statute of the Court were, firstly, that the object of interpretation involved the meaning and scope of what the Court had decided with binding force, and, secondly, that there must be a dispute between the parties concerning the meaning and scope of the decision. Moreover, the Court made clear that such a dispute could not be such that one party finds the judgment unclear while the other party does not. Furthermore, Article 79, Paragraph 2 of the Rules of Court establishes that the request for interpretation “shall specify the precise point or points in dispute.”6 The Court proceeded to verify if Colombia’s request fulfilled such requirements. First, it pointed out that Colombia did not ask the Court to qualify Mr. Haya de la Torre’s crimes in the judgment of 20 November 1950, nor did it ask it to declare that the Colombian’s Ambassador’s interpretation was correct. In fact, Colombia’s only request was for the Court to adjudge that it had the right to qualify the crimes unilaterally and with binding force on Peru, which was found to threaten the latter’s sovereignty. By dismissing Peru’s counter-claim that Mr. Haya de la Torre had committed common crimes, the Court did not declare that he was a political criminal. The Court could not have done so, since the question was never put before it during the proceedings. For this reason, it dismissed Colombia’s first argument, since the Court’s declaration on the qualification of Mr. Haya de la Torre’s crimes did not concern the meaning and scope of the judgment. The Court also dismissed Colombia’s second argument, the one regarding Mr. Haya de la Torre’s surrender, for the same reason it dismissed the first one. The Court declared that it did not order or decide upon the surrender, since this matter was never brought before it during the proceedings, and so it could not be discussed in a request for interpretation. Moreover, the Court highlighted that there was no dispute 5 Article 79, Paragraph 2 of the Rules of Court determines that: “2. Notwithstanding paragraph 1 above, following the submission of the application and after the President has met and consulted with the parties, the Court may decide that any questions of jurisdiction and admissibility shall be determined separately.” 6 Request for Interpretation of the Judgment of November 20th, 1950, in the Asylum Case (Colombia v. Peru), Judgment, I.C.J, Reports 1950, p.12.

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between Peru and Chile over the meaning and scope of the judgment of 20 November 1950, since Peru found that the judgment was perfectly clear and Colombia was unable to specify the nature of the dispute between them. For the reasons exposed above, the Court decided that Colombia’s request for interpretation did not fulfil the requirements of Article 60 of the Statute of the Court and Article 79, Paragraph 2, of the Rules of Court, and, in the end, considered the request inadmissible.

4.2. Timeline DATE

DOCUMENT

CONTENT

21 November 1950

Press Release No. 1950/44

Notifies the filing by Colombia of a request for interpretation of the judgment rendered by the ICJ on the Asylum Case.

Press Release No.1950/46

Publishes the Court’s decision on the request for interpretation of the Asylum Case, in which the Court considered such a request inadmissible.

27 November 1950

5. AVENA AND OTHER MEXICAN NATIONALS (MEXICO V. UNITED STATES OF AMERICA), 2003

5.1. Summary This case concerns the dispute between the United Mexican States (hereinafter “Mexico”) and the United States of America (hereinafter “the United States”) in which Mexico accused the United States of violating the Vienna Convention on Consular Relations (hereinafter “VCCR”).1

I. Facts It came to the Mexican government’s attention at different moments that 52 of its nationals were arrested, interrogated, and sentenced to death under the American criminal system. According to Article 36, Paragraph 1 (b)2 of the VCCR, to which both Mexico and the United States were parties, these nationals should have been informed without delay of their right to communicate with a Mexican consulate. Moreover, if they chose to exercise this right, the Mexican consulates should also have been informed immediately. In this case, only two of the 52 nationals were informed of their rights, both with significant delay, according to the Mexican government. What is more, Mexico affirmed that in 29 of 52 cases, Mexican consulates were 1

Vienna Convention on Consular Relations (Vienna Convention of 1963) (Vienna, 24 April 1963, 596 UNTS 8638). 2 Article 36, Paragraph 1 (b) of the VCCR provides that: “1.With a view to facilitating the exercise of consular functions relating to nationals of the sending state: (b) if he so requests, the competent authorities of the receiving state shall, without delay, inform the consular post of the sending state if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.”

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notified only after the death sentences were rendered; in the other 23 cases, the American government did not even notify Mexico of the sentences. In most of these cases the Mexican nationals in question could still appeal, but some of them had already exhausted all possible judicial remedies. On 9 January 2003, given such circumstances, Mexico submitted the case to the International Court of Justice (hereinafter “ICJ”), alleging a violation of the VCCR and requesting provisional measures so that these nationals would not be executed before the Court rendered its judgment.

II. Jurisdiction Mexico submitted the present dispute to the Court based on the VCCR and the Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes (hereinafter “Optional Protocol”).3 Article 14 of the Optional Protocol, in particular, provides the Court with jurisdiction in matters involving the application or interpretation of such a convention, to which both Mexico and the United States were parties. The United States did not raise any objection to the documents presented as a basis of jurisdiction. It did, however, question the Court’s jurisdiction to entertain this case based on certain matters in dispute. Mexico objected to the Court’s acceptance of the United States’ contentions, since they were submitted after the time limits established in Article 79, Paragraph 15 of the Rules of Court. The Court decided that in the present case the United States’ lack of compliance with such a rule should not exclude the consideration of its contentions, since most of

3

Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes (Optional Protocol of the Vienna Convention on Consular Relations) (Vienna, 24 April 1963, 596 UNTS 8640). 4 Article 1 of the Optional Protocol reads as follows: “Disputes arising out of the interpretation or application of the [Vienna] Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by a written application made by any party to the dispute being a party to the present Protocol.” 5 Article 79, Paragraph 1 of the Rules of Court states that: “Any objection by the respondent to the jurisdiction of the Court or to the admissibility of the application, or other objection the decision upon which is requested before any further proceedings on the merits, shall be made in writing as soon as possible, and not later than three months after the delivery of the Memorial. Any such objection made by a party other than the respondent shall be filed within the time-limit fixed for the delivery of that party's first pleading.”

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them, as will be shown, would have to be considered during the merits phase in any case. In this sense, the United States put forward four objections to the jurisdiction of the Court. First, it noted that Mexico’s Memorial was based on the functioning of the United States’ criminal system. Consequently, applying the VCCR to the present case would imply using the rules of this convention toward the United States’ criminal system, and was therefore considered an abuse of jurisdiction. Another objection raised by the United States was the fact that Mexico requested the Court to annul all decisions rendered by the American criminal courts concerning the Mexican nationals in order to restore the status quo ante. From the United States’ point of view, should the Court do so, it would exceed its jurisdiction, since neither the VCCR nor the Optional Protocol granted the Court the power to decide upon the sentences given by its domestic courts. With regards to these two objections, the Court understood that they should be dealt with when analyzing the merits of the case, and that the United States – by being party to the VCCR and the Optional Protocol – also provided the Court with jurisdiction to evaluate aspects of the functioning of its criminal system for foreigners, as well as to stipulate remedies if ever it considered that such a system violated the aforementioned convention. Therefore, the Court considered that these objections to its jurisdiction could not be upheld. The United States also made an objection to the Court’s jurisdiction based on Mexico’s request for the Court to adjudge that by arresting and convicting Mexican nationals, among other measures taken by the United States, the latter was in violation of the VCCR. It contended that the convention, especially its Article 36, did not impose any restriction on measures taken by the United States, and only provided the obligation to inform the foreign national’s government of such measures. Finally, the United States contended that the Court had no jurisdiction to determine if the obligation of notification was a human right or part of the concept of due process, as put forward by Mexico in its requests. The Court considered that these objections could not be upheld, since they were matters concerning the interpretation of the VCCR and, for this reason, should be considered during the merits of the case.

III. Matters of Dispute Regarding the facts outlined above, Mexico, in its final submissions, requested the Court to adjudge and declare:

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“(1) [T]hat the United States of America, in arresting, detaining, trying, convicting, and sentencing the 52 Mexican nationals on death row described in Mexico's Memorial, violated its international legal obligations to Mexico, in its own right and in the exercise of its right to diplomatic protection of its nationals, by failing to inform, without delay, the 52 Mexican nationals after their arrest of their right to consular notification and access under Article 36 (1) (b) of the Vienna Convention on Consular Relations, and by depriving Mexico of its right to provide consular protection and the 52 nationals’ right to receive such protection as Mexico would provide under Article 36 (1) (a) and (c) of the Convention; (2) [T]hat the obligation in Article 36 (1) of the Vienna Convention [on Consular Relations] requires notification of consular rights and a reasonable opportunity for consular access before the competent authorities of the receiving state take any action potentially detrimental to the foreign national’s rights; (3) [T]hat the United States of America violated its obligations under Article 35 (2) of the Vienna Convention [on Consular Relations] by failing to provide meaningful and effective review and reconsideration of convictions and sentences impaired by a violation of Article 36 (I); by substituting for such review and reconsideration clemency proceedings; and by applying the ‘procedural default’ doctrine and other municipal law doctrines that fail to attach legal significance to an Article 36 (1) violation on its own terms; (4) [T]hat pursuant to the injuries suffered by Mexico in its own right and in the exercise of diplomatic protection of its nationals, Mexico is entitled to full reparation for those injuries in the form of restitutio in integrum; (5) [T]hat this restitution consists of the obligation to restore the status quo ante by annulling or otherwise depriving of full force or effect the convictions and sentences of all 52 Mexican nationals; (6) [T]hat this restitution also includes the obligation to take all measures necessary to ensure that a prior violation of Article 36 shall not affect the subsequent proceedings; (7) [T]hat to the extent that any of the 52 convictions or sentences are not annulled, the United States shall provide, by means of its own choosing, meaningful and effective review and reconsideration of the convictions and sentences of the 52 nationals, and that this obligation cannot be satisfied by means of clemency proceedings or if any municipal law rule or doctrine inconsistent with Paragraph (3) above is applied; and (8) [T]hat the United States of America shall cease its violations of Article 36 of the Vienna Convention with regard to Mexico and its 52 nationals and shall provide appropriate guarantees and assurances that it shall take measures sufficient to achieve increased compliance with Article 36 (1) and to ensure compliance with Article 36 (2).”6 6

Avena and Other Mexican Nationals (Mexico v. United Slates of America), Judgment, I. C.J. Reports 2004, p. 15-16.

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The United States, for its part, strictly requested that the Court dismiss Mexico’s claims by presenting the Court with the following final submission: “On the basis of the facts and arguments made by the United States in its Counter-Memorial and in these proceedings, the government of the United States of America requests that the Court, taking into account that the United States has conformed its conduct to this Court's judgment in the LaGrand Case (Germany v. United States of America), not only with respect to German nationals but, consistent with the Declaration of the President or the Court in that case, to all detained foreign nationals, adjudge and declare that the claims of the United Mexican States are dismissed.”7

Before putting forward its final submission, the United States presented five objections to the admissibility of Mexico’s claims. First, it alleged that Mexico’s submissions should be considered inadmissible because they put the Court in the position of a court of criminal appeal. The Court rejected such a contention by arguing that it is based on questions related to the merits of the case. Second, the United States contended that in all of the cases brought forward by Mexico, the Mexican nationals did not exhaust local remedies. What is more, in some cases, they failed to prove that the United States had violated Article 36 of the VCCR. In this regard, Mexico contended that the American criminal system never granted a foreigner judicial remedy for the United States’ violation of Article 36 of the said convention. It also argued that the only remedy still possible for these Mexican nationals were clemency procedures, which constitute a political and not a judicial remedy. The Court noted that, although all local remedies should be exhausted before the adoption of individual diplomatic protection, in this case, Mexico argued that the violation of these nationals’ rights affected not only the individuals involved, but also Mexico itself. It understood that in a situation in which the sending state considered its rights to have been violated as well, there is no obligation for the exhaustion of local remedies. The United States further contended that in some of the cases submitted to the Court, the Mexican nationals arrested and later convicted were also American citizens. In these cases, the United States considered that Mexico was obligated to prove that it had the right to exercise 7

Avena and Other Mexican Nationals (Mexico v. United Slates of America), Judgment, I. C.J. Reports 2004, p. 16.

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protection of these individuals under the VCCR. Since Mexico did not present any explanation as to why it had the right to exercise such protection, its claims over these specific Mexican nationals should be inadmissible, according to the United States. The Court, however, concluded that this was also an objection related to the merits of the case. It considered that Mexico’s right to exercise diplomatic protection of these individuals was subject to whether or not the United States was, in the first place, under obligation of the VCCR with regards to these nationals. The fourth objection to admissibility brought before the Court by the United States concerned its allegation that the Mexican government had known, in some of the cases in dispute, that the United States was in breach of the VCCR, and that it deliberately failed or delayed to bring such a violation to the United States’ attention in order to obtain reparation. The Court noted that this practice could in fact lead to the inadmissibility of a claim. Nonetheless, the Court decided that Mexico’s delay was neither significant nor consistent enough for such a consequence. Finally, the United States argued, based on the principles of equality and administration of justice, that Mexico could not enforce behavior on the United States that it did not adopt itself in relation to Article 36 of the VCCR. The Court dismissed this last objection as well, arguing that such a contention was not a basis for objecting to the admissibility of Mexico’s claims.

IV. Merits A) Mexico’s Arguments In its submissions, Mexico alleged that the United States had primarily violated Article 36, Paragraph 1 (b) of the VCCR and, due to the correlation of such a provision with Article 36, Paragraph 1 (a)8 and (c)9

8

Article 36, Paragraph 1 (a) rules that: “Consular officers shall be free to communicate with nationals of the sending state and to have access to them. Nationals of the sending state shall have the same freedom with respect to communication with and access to consular officers of the sending state.” 9 Article 36, Paragraph 1 (c) establishes the following: “Consular officers shall have the right to visit a national of the sending state who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending state who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf

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and also Paragraph 210 of the same article, Mexico contended that the United States violated these provisions as well. Mexico first argued that in all of the 52 cases, the individuals arrested and convicted by the American government were of Mexican nationality, a fact that Mexico proved by submitting their birth certificates to the Court. It then proceeded to accuse the United States of violating Article 36, Paragraph 1 (b) of the VCCR, to which both states were parties, on the grounds that none of the 52 Mexican nationals were informed of their right to consular assistance, and that the Mexican authorities were not notified of these nationals arrests, with the exception of three cases. In these three cases, Mexico still contended that the United States violated Paragraph 1 (b) of the VCCR, considering the fact that such notifications were not made “without delay.” The meaning of “without delay” was discussed at length during the proceedings. Mexico argued that the expression, as set out in Article 36, should be interpreted as meaning “immediately, and before any interrogation.” It based its position on the travaux préparatoires of the VCCR and contended that originally the expression found in Article 36 was “without undue delay.” Later, the word “undue” was removed so as to avoid the interpretation that some delay would be considered reasonable. For this reason, Mexico considered that the meaning of the expression “without delay” should mean “immediately.” Mexico proceeded its accusation by alleging, as mentioned, that the breach of Article 36, Paragraph 1 (b) consequently led to the violation of Article 36, Paragraph 1 (a) and (c). It claimed that because Mexican authorities were not notified of the arrest of its nationals, Mexico was not able to provide consular assistance or legal representation, or to establish communication with these defendants, among other actions provided for in the subparagraphs of Article 36 of the VCCR. After accusing the United States of violating Article 36, Paragraph 1 of the VCCR, Mexico accused the American government of violating Article 36, Paragraph 2 as well. This accusation was based on the fact that local doctrines prevent the application of revision in cases where Article 36, Paragraph 1 of the VCCR is violated. Mexico’s accusation was also based of a national who is in prison, custody or detention if he expressly opposes such action.” 10 Article 36, Paragraph 2 states that: “The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving state, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.”

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on the procedural default rule, which is an American rule that does not allow a defendant to bring forward in subsequent proceedings a legal issue that has already been dealt with in previous stages of the legal process. According to Mexico, this rule prevented its nationals to appeal based on the fact that the United States had violated their rights under Article 36, Paragraph 1 of the VCCR. Lastly, Mexico claimed that the reparation given in the present case should be to annul the convictions and sentences rendered by the United States’ courts in every one of the 52 cases as well as the exclusion of any evidence gathered during the proceedings, in order to reestablish the status quo ante. This request was based on the allegedly well-established fact that the most effective form of reparation is the restutio in integrum. Moreover, Mexico alleged that the rights established in Article 36 of the VCCR of consular notification and information of consular rights were fundamental in making effective the principle of due process of law, and, for this reason, that the violation of this provision would make the entire process null. Finally, Mexico contended that the United States had still violated Article 36 of the VCCR, and, for this reason, submitted to the Court a request for an order of cessation.

B) United States’ Arguments The United States began its defense by questioning the obligation to comply with Article 36 of the VCCR, since most of the 52 individuals arrested were likely American citizens as well. Indeed, according to the United States, in nearly half of the cases presented by Mexico, the individuals had either claimed to be American citizens, or there was strong evidence to prove it. The United States did not present any evidence of such, however. It claimed that American nationality could only be proved using documents that were in exclusive possession of the Mexican government, such as those proving the birthplace and marital status of the parents of such individuals. With regards to Mexico’s accusation that it had violated Article 36, Paragraph 1 (b) of the VCCR, the United States contended that, first, it had no obligation to inform the seven individuals who claimed to be American citizens at the time of their arrest, since American authorities were not aware that these individuals were foreigners. This contention was further based on the fact that the United States is a multicultural state, and, for this reason, the individuals’ appearance and accent were not accounted for when determining whether or not they were American citizens. Furthermore, in four other cases the United States contended that it did in

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fact inform the individuals of their rights under Article 36 of the VCCR. Indeed, in one of these cases the information was provided within 40 hours of arrest, as noted by the United States. The United States also argued that in another case the American authorities did not inform the foreign national of his consular rights since he was a fugitive of Mexico and consequently, it was assumed that he would rather not notify the Mexican consulate of his arrest. In fact, with regards to the term “without delay,” the United States argued that such an expression should not be interpreted as meaning “immediately.” Instead, the United States defended that the term actually meant that no deliberate delay should occur and that, consequently, the foreign national should be informed of his or her rights under the VCCR as soon as possible given the circumstances. In accordance with the aforementioned interpretation of the term “without delay,” the United States proceeded with its defense by arguing that it did comply with Article 36, Paragraph 1 (b) by notifying Mexican authorities in four cases, as opposed to the three that Mexico alleged. In three of the four cases, the United States notified Mexican authorities of the arrests, even though it did not inform the foreign nationals of their rights under the VCCR. Moreover, the United States contended that in one of the other 48 cases it informed the foreign national and he chose not to notify Mexican authorities. In this case, the United States could not be held accountable for the lack of notification. The United States further defended itself against Mexico’s accusation of violating Article 36, Paragraph 2 of the VCCR by alleging that its internal legal proceedings were in accordance with such a provision. As a basis for such a statement, the United States showed how in American proceedings, defendants have the right to both judicial and executive clemency. According to the United States, the two institutions jointly provide the remedial and revisionary functions established in Article 36, Paragraph 2 of the VCCR. After contending with Mexico’s accusations of having violated the VCCR, the United States put forward its views on the form of reparation that should be adopted in the present case. According to the LaGrand Case11, if the United States were ever found to be in breach of the VCCR, it should review and reconsider the decisions as it saw fit, instead of annulling convictions and excluding evidence, as proposed by Mexico.

11

LaGrand (Germany v. United States of America), Judgment, I. C.J. Reports 2001.

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V. Judgment The Court began to deliver its judgment by analyzing the United States’ argument concerning the obligation of compliance with the aforementioned provision in cases where the individuals arrested possessed dual nationality. The Court did not reach the merits of whether or not the VCCR would apply in these cases since the United States failed to prove American nationality in the 52 cases brought before the Court, while Mexico successfully proved the individuals’ Mexican nationality in all of these cases. It noted that if it was indeed necessary for Mexico to provide certain documents so as to prove American citizenship, as argued by the United States, the American government should have requested these documents, which it never did. Therefore, the Court first concluded that the United States was under an obligation to comply with Article 36 of the VCCR in all of the 52 cases submitted to the Court in the present dispute. The Court then proceeded to examine the arguments brought forth by the parties concerning the accusations related to the violation of Article 36, Paragraph 1 (b) of the VCCR. First, it decided whether or not the United States violated the obligation to inform foreign nationals of their rights. The Court noted that a great number of the foreign nationals involved in the case declared to have never received information regarding their consular rights. It also noted that the United States contested this accusation in only five of the 52 cases. In one of these five cases, the United States assumed that the foreign national would not exercise his rights, and, for this reason did not inform him of them. The Court rejected such an argument, stating that the receiving state could not be exempt of its obligation to inform based on assumptions of whether or not the foreign national would exercise his or her rights. In three of the remaining four cases, the Court noted that there was no evidence that the United States informed these individuals in any way or at any time considerably close to the time of arrest. The Court recognized, however, that in the last case, the foreign national was indeed informed 40 hours after his arrest. The question of whether or not the United States complied with Article 36, Paragraph 1 (b) in this case relied on an interpretation of the expression “without delay,” as observed by the Court. Considering the divergent positions put forward by the parties concerning the term “without delay,” the Court analyzed its meaning. First, it pointed out that the definition of the expression was not provided for in the VCCR or in any other provision. For this reason, the Court would have to interpret the expression based on customary law, which, in

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the case of interpreting treaties, is set out in Article 3112 and 3213 of the Vienna Convention on the Law of Treaties (hereinafter “VCLT”).14 Based on such provisions, the Court concluded that the interpretation supported by Mexico could not be upheld. That is to say, the expression “without delay” could not be understood to mean “immediately and before any interrogation”. The reason for this conclusion was that the purpose of the provision is to guarantee communication between a foreign national and his legal authorities and not to guarantee legal representation, which excluded the sense of obligation to inform prior to any interrogation. Moreover, the Court considered that the travaux préparatoires of the VCCR also indicated that the expression should not mean “immediately,” since this term was never suggested during the formulation of the treaty. Furthermore, it noted that the reason behind the original expression, “without undue delay,” was in fact to allow some delay in cases where the information could not be communicated right away. Thus, the Court concluded that, in order to be considered “without delay,” receiving authorities must inform a foreign national of his or her consular rights as soon as the local authorities realize it is in fact a foreign individual. In its conclusion regarding the meaning of the expression “without 12 Article 31 of the Vienna Convention on the Law of Treaties states that: “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 object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” 13 Article 32 of the Vienna Convention on the Law of Treaties provides that: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable.” 14 Vienna Convention on the Law of Treaties (Vienna Convention of 1969) (Vienna, 23 May 1969, 1155 UNTS 18232).

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delay,” the Court considered that even in the case where American authorities informed a foreign national 40 hours after his arrest, the United States still violated Article 36, Paragraph 1 (b) of the VCCR. The Court reached this conclusion on the grounds that the arrest report of this foreign national showed that he was born in Mexico, proving that the American authorities knew he was a foreign national. Still, the United States postponed informing him of his consular rights, even if not for long. The Court also noted that in this specific case, a court in California had already rendered the same decision, in other words, that the United States violated Article 36, Paragraph 1 (b) of the VCCR. The Court then proceeded to analyze the second obligation that arose from Article 36, Paragraph 1 (b), namely notification without delay of the foreign national’s arrest to the sending state’s authorities. In this regard, the Court first recognized that in the one case in which a Mexican national requested that the American authorities not notify the Mexican authorities, as pointed out by the United States, the latter indeed should not be held accountable. However, in the four other cases in which the United States alleged that it had notified Mexican authorities, the Court found that only in one case could this contention be upheld. In this particular case, the consular post was notified three business days after the arrest of the foreign national, while in the other three cases the notification was either not official, did not occur, or else occurred too long a period of time after the arrest of the Mexican national. For these reasons, with the exception of one case, the United States was considered by the Court to have violated Article 36, Paragraph 1 (b) in relation to the notification of sending state authorities. Finally, the Court decided whether, by violating Article 36, Paragraph 1 (b) of the VCCR, the United States had deprived Mexico of its rights under Article 36, Paragraph 1 (a) and (c). The Court noted that the exercise of rights established in such a provision does not necessarily rely on official notification of the receiving state which, as previously mentioned, is required by Article 36, Paragraph 1 (b). That is to say, if the sending state becomes aware of a situation involving its national by means other than the authorities of the receiving state, it may still be able to exercise its rights under Article 36, Paragraph 1 (a) and (c). The Court concluded that this was the case, since Mexico became aware of the situation of several of the 52 cases by means other than American authorities. Depending on the time that elapsed between the awareness of Mexican authorities and the arrest, some rights, such as the right to provide assistance, could have been possible. The Court understood, however, that Mexico was completely or partly deprived of other rights,

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such as the right to communicate with or access its nationals. The Court then proceeded to examine Mexico’s claim regarding the United States’ violation of Article 36, Paragraph 2 of the VCCR. In this regard, it upheld Mexico’s argument related to American procedural rule. It first noted that this rule ipso facto does not violate Article 36, Paragraph 2, but that its application in cases where the United States has itself breached Article 36, Paragraph 1 prevents the latter’s full effect. However, the Court recalled that there was no more possible judicial revision in three of the cases and concluded, therefore, that the United States had violated Article 36, Paragraph 2 in only these cases. As for the remaining cases, the Court considered that a violation of the provision had not yet occurred but was imminent, since there was no evidence that the American government would retract the procedural default rule or establish a different one for these specific cases. Finally, the Court dealt with the question of reparation for the Mexican nationals affected by the United States’ violation of Article 36, Paragraph 1 and Paragraph 2 of the VCCR. First, it rejected Mexico’s request for an annulment of the convictions and sentences based on the fact that this was the primary form of reparation. In this sense, the Court pointed out that the Permanent Court of International Justice had previously decided that an adequate form of reparation would have to consider the specific circumstances of the case. Consequently, the Court upheld the United States’ position that the most adequate form of reparation in this case would be the same as the one established in the LaGrand Case, that is to say, for the American courts to review and reconsider each case. With regards to review and reconsideration, the Court pointed out that the process of executive clemency, despite being a valid part of the system of revision in the United States, is not itself sufficient to provide review and reconsideration in this case. Moreover, the Court rejected Mexico’s assumption that the rights established in Article 36 constituted fundamental human rights associated with the principle of due process of law, because of the lack of grounds of such a contention. The Court also rejected Mexico’s request for cessation, due to the lack of evidence that the United States had continuously violated Article 36 of the VCCR. According to what was exposed, the Court voted as follows: “The Court, (1) By thirteen votes to two, Rejects the objection by the United Mexican States to the admissibility of the objections presented by the United States of America to the jurisdiction of the Court and the admissibility of the Mexican claims; […] (2) Unanimously,

5. Avena and Other Mexican Nationals, 2003 Rejects the four objections by the United States of America to the jurisdiction of the Court; (3) Unanimously, Rejects the five objections by the United States of America to the admissibility of the claims of the United Mexican States; (4) By fourteen votes to one, Finds that, by not informing, without delay upon their detention, the 51 Mexican nationals referred to in paragraph 106 (1) above of their rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations of 24 April 1963, the United States of America breached the obligations incumbent upon it under that subparagraph; […] (5) By fourteen votes to one, Finds that, by not notifying the appropriate Mexican consular post without delay of the detention of the 49 Mexican nationals referred to in paragraph 106 (2) above and thereby depriving the United Mexican States of the right, in a timely fashion, to render the assistance provided for by the Vienna Convention to the individuals concerned, the United States of America breached the obligations incumbent upon it under Article 36, paragraph 1 (b); […] (6) By fourteen votes to one, Finds that, in relation to the 49 Mexican nationals referred to in paragraph 106 (3) above, the United States of America deprived the United Mexican States of the right, in a timely fashion, to communicate with and have access to those nationals and to visit them in detention, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Convention; […] (7) By fourteen votes to one, Finds that, in relation to the 34 Mexican nationals referred to in paragraph 106 (4) above, the United States of America deprived the United Mexican States of the right, in a timely fashion, to arrange for legal representation of those nationals, and thereby breached the obligations incumbent upon it under Article 36, paragraph I (c), of the Convention; […] (8) By fourteen voles to one, Finds that, by not permitting the review and reconsideration, in the light or the rights set forth in the Convention, of the conviction and sentences of Mr. Cesar Roberto Fierro Keyna, Mr. Roberto Moreno Ramos and Mr. Osvaldo Torres Aguilera, after the violations referred to in subparagraph (4) above had been established in respect of those individuals, the United States of America breached the obligations incumbent upon it under Article 36, paragraph 2, of the Convention; […] (9) By fourteen votes to one: Finds that the appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the: convictions and sentences of the Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights set forth in Article 36

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of the Convention and of paragraphs 138 to 141 of this judgment; […] (10) Unanimously, Takes note of the commitment undertaken by the United States of America to ensure implementation or the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Vienna Convention; and, finds that this commitment must be regarded as meeting the request by the United Mexican States for guarantees and assurances of non-repetition; (11) Unanimously, Finds that, should Mexican nationals nonetheless be sentenced to severe penalties, without their rights under Article 36, paragraph 1 (h), of the Convention having been respected, the United States of America shall provide, by means of its own choosing, review and reconsideration of the conviction and sentence, so as to allow full weight to be given to the violation of the rights set forth in the Convention, taking account of paragraphs 138 to 141 of this judgment.”15

5.2. Timeline DATE

DOCUMENT

CONTENT

10 January 2003

Press Release No. 2003/1

Reports Mexico’s filing of an application instituting proceedings against the United States for violating the VCCR upon the arrest of Mexican citizens. Also presents Mexico’s indication of provisional measures.

15 January 2003

Press Release No. 2003/2

Sets the date of the Public Hearing for the request of provisional measures to 21 January 2003.

22 January 2003

Press Release No. 2003/4

Declares the conclusion of the Public Hearing concerning the request for provisional measures.

15 Avena and Other Mexican Nationals (Mexico v. United Slates of America), Judgment, I. C.J. Reports 2004, p. 62- 65.

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30 January 2003

Press Release No. 2003/7

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Declares that the Court will give its Order on the provisional measures on Wednesday, 5 February 2003, at 3pm.

Orders and Press Release No. 2003/9

Publishes the Court’s decision concerning the provisional measures in which it required the United States to ensure, by taking all measures necessary, that three Mexican nationals under imminent risk of execution are not executed until the end of the judgment. The document also fixes the time limits for the filing of the written proceedings to 6 June 2003 for the Memorial of Mexico and 6 October 2003 for the CounterMemorial of the United States.

22 May 2003 and 27 May 2003

Order and Press Release No. 2003/17

Reports the extension, as requested jointly by the parties, of the time limit for the presentation of Mexico’s Memorial and the United States’ Counter-Memorial to 20 June 2003 and 3 November 2003, respectively.

25 July 2003

Press Release No. 2003/25

Announces the beginning of the oral proceedings by establishing Public Hearings to be held from 15 to 19 December 2003.

9 December 2003

Press Release No. 2003/41

Releases the schedule of the hearings to be held from 15 to 19 December 2003.

23 December 2003

Press Release No. 2003/45

Reports the conclusion of the oral proceedings and the beginning of the Court’s deliberation on the case.

5 February 2003

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22 March 2004

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Press Release No. 2004/15

Communicates the date on which the Court will deliver its judgment, set for 31 March 2004.

Press Release No. 2004/16

Publishes a summary of the judgment delivered by the Court, in which it decides that the United States is guilty of violating its obligations to Mr. Avena and 50 other Mexican nationals, as well as its obligation to Mexico, both under the VCCR.

Bibliography ACEVES, William J. (2003) ‘International Decisions: Avena and Other Mexican Nationals (Mexico v. United States), Provisional Measures Order,’ The American Journal of International Law, 97: 923-929. BENLOLO-CARABOT, M. (2004) ‘L’arrêt de la Cour internationale de justice dans l’affaire Avena et autres ressortissants mexicains (Mexique c. États-Unis d’Amérique) du 31 mars 2004,’ AFDI, 50: 259-291. BAPTISTE, Tranchant (2009) ‘L’arrêt rendu par la Cour internationale de justice sur la demande en interprétation de l’arrêt Avena (Mexique c. États-Unis d’Amérique),’ Annuaire français de droit international, Volume 55, Numéro 55, pp. 191-220. CHARNOVITZ, Steve (2012) ‘Correcting America’s Continuing Failure to Comply with the Avena Judgment,’ The American Journal of International Law, Vol. 106, No. 3 pp. 572-581. Online. Available

DUBIN L. (2005) ‘Les garanties de non-répétition à l’aune des affaires LaGrand et Avena: La révolution n’aura plus lieu,’ RGDIP, 109: 859888. EVANS, Malcolm D. (2005) ‘Current Developments – Decisions of International Tribunals: International Court of Justice: I) Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004.’ International and Comparative Law Quarterly, 54: 779-800. GHANDHI, Sandy (2004) ‘Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 5

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February 2002,’ International and Comparative Law Quarterly, 54: 738-746. GIORGETTI, Chiara (2008) ‘Introductory Note to International Court of Justice: Request for Interpretation of the Judgment in the Case Concerning Avena and Other Mexican Nationals,’ International Legal Materials, 47: 723-739. HOPPE, Carsten (2009) ‘A Question of Life and Death: the Request for Interpretation of Avena and Certain Other Mexican Nationals (Mexico v. United States) Before the International Court of Justice,’ Human Rights Law Review, 9: 455-464. KLEIN, Natalie (2004) ‘Avena and Other Mexican Nationals,’ Australian International Law Journal, 11: 143-157. KIRGIS, Frederic L. ‘International Law in the American Courts – the United States Supreme Court Declines to Enforce the ICJ’s Avena Judgment Relating to a US Obligation Under the Convention of Consular Relations,’ German Law Journal, vol. 9. No 5: 619-637. LLOPIS A. Peyro (2005) ‘Après Avena: l'exécution par les États-Unis de l'arrêt de la Cour internationale de justice,’ Annuaire français de droit international, Volume 51, Numéro 51, pp. 140-161. QUIGLEY, John (2004) ‘Avena and Other Mexican Nationals (Mexico v. United States of America): Must Courts Block Executions Because of a Treaty,’ Melbourne Journal of International Law, 5. No. 2: 450-461. SEPULVEDA-AMOR, Bernardo (2011) ‘Diplomatic and Consular Protection: the Rights of the State and the Rights of the Individual in the Lagrand and Avena Cases’ in Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (eds) From Bilateralism to Community Interest, Oxford: Oxford University Press. SHELTON, Dinah L. (2004) ‘Case Concerning Avena and Other Mexican Nationals (Mexico v. United States),’ The American Journal of International Law, 98: 559-566. SLOANE, Robert D. (2004) ‘Measures Necessary to Ensure: the ICJ’s Provisional Measures Order in Avena and Other Mexican Nationals,’ Leiden Journal of International Law, 17: 673-694. STEINMARK, Michael R. (2004) ‘The Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America): a Mexican Perspective on the Fight for Consular Rights,’ Law and Business Review of the Americas, 10: 417-424.

6. REQUEST FOR INTERPRETATION OF THE JUDGMENT OF 31 MARCH 2004 IN THE CASE CONCERNING AVENA AND OTHER MEXICAN NATIONALS (MEXICO V. UNITED STATES OF AMERICA), 2008

6.1. Summary This case concerns a request of interpretation presented by the United Mexican States (hereinafter “Mexico”) before the International Court of Justice (hereinafter “ICJ”) regarding the case against the United States of America (hereinafter “United States”), Avena and Other Mexican Nationals (Mexico v. United States of America).1

I. Facts On 5 June 2008, Mexico filed a request for interpretation of the judgment of the Avena Case, based on Articles 602 of the Statute of the Court, and 983 and 1004 of the Rules of Court. On the same date, it presented a 1

Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p.12. 2 Article 60 of the Statute of the Court determines that: “The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.” 3 Article 98 of the Rules of Court states that: “1. In the event of dispute as to the meaning or scope of a judgment any party may make a request for its interpretation, whether the original proceedings were begun by an application or by the notification of a special agreement. 2. A request for the interpretation of a judgment may be made either by an application or by the notification of a special agreement to that effect between the parties; the precise point or points in dispute as to the meaning or scope of the judgment shall be indicated. 3. If the request for interpretation is made by an application, the requesting party's contentions shall be set out therein, and the other party shall be entitled to file written observations thereon within a time-limit fixed by the Court, or by the President if the Court is not sitting. 4. Whether the request is made by an application or by notification of a

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request for the indication of provisional measures, referring to Article 415 of the Statute of the Court, and Articles 736, 74,7 and 758 of the Rules of Court. It based its request on the need to “preserve the rights of Mexico and its nationals.” In this context and after analyzing the American submissions, the special agreement, the Court may, if necessary, afford the parties the opportunity of furnishing further written or oral explanations.” 4 Article 100 of the Rules of Court provides that: “1. If the judgment to be revised or to be interpreted was given by the Court, the request for its revision or interpretation shall be dealt with by the Court. If the judgment was given by a Chamber, the request for its revision or interpretation shall be dealt with by that Chamber. 2. The decision of the Court, or of the Chamber, on a request for interpretation or revision of a judgment shall itself be given in the form of a judgment.” 5 Article 41 of the Statute of the Court defines that: “1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.” 6 Article 73 of the Rules of Court reads: “1. A written request for the indication of provisional measures may be made by a party at any time during the course of the proceedings in the case in connection with which the request is made. 2. The request shall specify the reasons therefor, the possible consequences if it is not granted, and the measures requested. A certified copy shall forthwith be transmitted by the Registrar to the other party.” 7 Article 74 of the Rules of Court provides that: “1. A request for the indication of provisional measures shall have priority over all other cases. 2. The Court, if it is not sitting when the request is made, shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency. 3. The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings. 4. Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.” 8 Article 75 of the Rules of Court reads: “1. The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties. 2. When a request for provisional measures has been made, the Court may indicate measures that are in whole or in part other than those requested, or that ought to be taken or complied with by the party which has itself made the request. 3. The rejection of a request for the indication of provisional measures shall not prevent the party which made it from making a fresh request in the same case based on new facts.”

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Court emitted an Order on 16 July 20089 stating that: “(a) The United States of America shall take all measures necessary to ensure that Messrs. José Ernesto Medellín Rojas, César Roberto Fierro Reyna, Rubén Ramírez Cárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending judgment on the request for interpretation submitted by the United Mexican States, unless and until these five Mexican nationals receive review and reconsideration consistent with paragraphs 138 to 141 of the Court’s judgment delivered on 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America); (b) The government of the United States of America shall inform the Court of the measures taken in implementation of this Order.”10

In a letter dated 1 August 2008, the United States explained that it was following the Court’s instructions established in the original judgment, as well as in the aforementioned Order, and listed the actions taken by the state for such purposes. Nevertheless, on 28 August 2008, the Registry received a letter from the Mexican government accusing the United States of executing Mr. José Ernesto Medellín Rojas in Texas on 5 August 2008. In this letter, Mexico asked the Court to exercise the provisions of Article 98, Paragraph 4 of the Rules of Court so as to adequate its request for interpretation considering the statements given by the United States, as well as to add the violation of provisional measures stated by the Court in its Order of 16 July 2008. After the filing of Written Observations by the United States, the Court informed that it would accept further written explanations by the parties, according to Article 98, Paragraph 4 of the Rules of Court, as requested by Mexico.

II. Jurisdiction The application filed by Mexico described the jurisdiction of the case according to the terms of Article 60 of the Statute of the Court, which was questioned by the United States since one of the requisites provided by the 9

Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America), Provisional Measures, Order of 16 July 2008, I.C.J. Reports 2008, p. 311. 10 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2009, p. 5, Paragraph 3.

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article is the existence of a dispute. Because the case had already been pre-analyzed during the discussion on provisional measures, the Court explained that its Order of 16 July 2008 “was not made on the basis of prima facie jurisdiction.”11 It also emphasized that “the Court’s jurisdiction on the basis of Article 60 of the Statute is not preconditioned by the existence of any other basis of jurisdiction as between the parties to the original case.”12 The Court also affirmed that the United States’ withdrawal from the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes13 since the Avena judgment had no effect on the Court’s jurisdiction under Article 60. Nevertheless, it recognized that such jurisdiction should be analyzed due to the possible lack of dispute, as defended by the United States.

III. Matters of Dispute The dispute centers on Paragraph 153 (9) of the Avena judgment, wherein the Court found that: “[...] [T]he appropriate reparation in this case consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals referred to in subparagraphs (4), (5), (6) and (7) above, by taking account both of the violation of the rights set forth in Article 36 of the [Vienna] Convention [on Consular Relations] and of paragraphs 138 to 141 of this judgment.”14

In this context, Mexico asked the Court to adjudge and declare: 11 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 16 July 2008, I.C.J. Reports 2008, p. 323, Paragraph 44. 12 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Provisional Measures, Order of 16 July 2008, I.C.J. Reports 2008, p. 323, Paragraph 44. 13 Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes (Optional Protocol of the Vienna Convention on Consular Relations) (Vienna, 24 April 1963, 596 UNTS 8640). 14 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America),14 Judgment, I.C.J. Reports 2009, p. 8, Paragraph 11.

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Chapter I “(a) That the correct interpretation of the obligation incumbent upon the United States under paragraph 153 (9) of the Avena judgment is that it is an obligation of result as it is clearly stated in the judgment by the indication that the United States must provide ‘review and reconsideration of the convictions and sentences’; and that, pursuant to the interpretation of the foregoing obligation of result, (1) the United States, acting through all of its competent organs and all its constituent subdivisions, including all branches of government and any official, state or federal, exercising government authority, must take all measures necessary to provide the reparation of review and reconsideration mandated by the Avena judgment in paragraph 153 (9); and (2) the United States, acting through all its competent organs and all its constituent subdivisions, including all branches of government and any official, state or federal, exercising government authority, must take all measures necessary to ensure that no Mexican national entitled to review and reconsideration under the Avena judgment is executed unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation; (b) That the United States breached the Court’s Order of 16 July 2008 and the Avena judgment by executing José Ernesto Medellín Rojas without having provided him review and reconsideration consistent with the terms of the Avena judgment; and (c) That the United States is required to guarantee that no other Mexican national entitled to review and reconsideration under the Avena judgment is executed unless and until that review and reconsideration is completed and it is determined that no prejudice resulted from the violation.”15

In contrast, the United States requested it to adjudge and declare: “(a) That the following supplemental requests by Mexico are dismissed: (1) that the Court declare that the United States breached the Court’s July 16 Order; (2) that the Court declare that the United States breached the Avena judgment; and (3) that the Court order the United States to issue a guarantee of non-repetition; (b) An interpretation of the Avena judgment in accordance with paragraph 86 (a) of Mexico’s Response to the Written Observations of the United States.”16 15 Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America),15 Judgment, I.C.J. Reports 2009, p. 6, Paragraph 10. 16 Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America),16 Judgment, I.C.J. Reports 2009, p. 8.

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IV. Merits A) Mexico’s Arguments Mexico indicated that the United States’ conduct showed it had not understood its obligations under the Avena judgment. In doing so, it aimed to demonstrate that there was a dispute regarding the meaning and scope of the previous judgment, as stated in Article 60. Mexico also affirmed that the American government, during the judgment before the Supreme Court of the United States, did not support the enforceability of United Nations obligations through the domestic judiciary branch, claiming that Article 9417 of the United Nations Charter18 was only binding for the political organs of signatory states. It pointed out that such an interpretation led the Supreme Court to consider that the judiciary was not obligated to enforce the Avena judgment, even though it was, according to Mexico, the appropriate organ to do so. This Supreme Court decision, claimed Mexico, was inconsistent with the interpretation of an obligation of result. In its ruling, the Supreme Court of the United States observed that the judiciary should not follow the Avena judgment decision without the intervention of the President through a memorandum. Mexico then added that such an intervention could not occur without the input of American Congress. Mexico also contended that, even though Texas affirmed having reviewed the condemnation of Mr. José Ernesto Medellín Rojas, such an affirmation was false, and that he had been executed without the proceeding provided by the ICJ in Paragraphs 138 to 141 of its judgment. Based on these arguments, Mexico concluded that there was a dispute concerning the meaning of Paragraph 153 (9) of the judgment of Avena, since the United States had not provided “all necessary measures” – it did not involve all of its state powers nor the authorities of federal entities in the implementation of the Avena decision and Order of 16 July 2008. 17

Article 94 of the Charter of the United Nations provides that: “1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.” 18 Charter of the United Nations (United Nations Charter) (San Francisco, 24 October 1945, 1 UNTS XVI).

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B) United States’ Arguments The United States contended that there was no dispute over Article 60, since it agreed with Mexico that the obligation established in the previous case was one of results. It explained that Mexico’s allegation concerned not the interpretation of the judgment given by the United States, but rather its satisfaction with the means of implementation, which were discretionary according to the terms of Paragraph 153 (9). The United States also explained that the President chose, as a means of implementation, for the states’ courts to follow the judgment of the Avena case, and that the executive branch argued, during the judgment before the Supreme Court, that the President’s determination was “lawful and binding” in relation to such courts. What the Supreme Court decided, claimed the United States, was whether an international judgment is selfexecuting or not, and whether such a question concerned only the domestic law of a state. According to the United States, the arguments raised by Mexico were based on the conduct of organs that did not have the authority to represent the state in international matters and were, therefore, irrelevant before the Court. The United States consistently repeated that it understood the obligation established in the original judgment as one of result and not of means, since the Court left such means to be decided by the American government but determined the result to be reached. Thus, the United States affirmed that there was no dispute concerning the meaning or scope of the judgment of the Avena case and, hence, no jurisdiction under Article 60. Based on this, the party rejected all Mexican requests.

V. Judgment The Court emphasized the need for a dispute on the means or scope of a judgment in order to institute an interpretation proceeding. It analyzed the facts presented by the parties involved and differentiated between two possible interpretations of the case. The first one, it explained, was in accordance with Mexico’s arguments: a variety of facts suggested that the United States, in fact, did not consider the obligation to be one of result. The second was closer to the American defense: there was no dispute over the kind of obligation created in Paragraph 153 (9) of the original judgment. Additionally, Mexico did not comply with Article 98 (2) of the Rules of Court since it did not specify the points of the dispute. According to this understanding, the Court observed that Mexico made no argument

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specific to the case, but only questioned the means with which the American government elected to implement the decision. Even if it were the first case, the Court explained that the first request made by Mexico could not be accepted since no part of the judgment specified that the obligation should be enforced by every organ of the state. Therefore, such an understanding could not be reached through the previous judgment. In this vein, the Court concluded that regardless of whether it was the first or second possible interpretations, Article 60 did not provide jurisdiction for the Court to adjudge the matter and, therefore, the request for interpretation should be dismissed. Moreover, the Court emphasized that such a decision did not mean that the United States could allege the failure of a means as a justification not to look for alternatives. As far as the other requests submitted by Mexico were concerned, the Court understood that there was a breach of the Order emitted on 16 July 2008, since the United States did not follow the process required of it in the case of Mr. Medellín. The Court also explained that it had jurisdiction to decide the case, since “the Court’s competence under Article 60 necessarily entails its incidental jurisdiction to make findings about alleged breaches of the Order indicating provisional measures. That is still so even when the Court decides [...] not to exercise its jurisdiction to proceed under Article 60.”19 With regards to the request for a declaration of the breach of the Avena judgment, however, the Court found that it had no jurisdiction over the case, since Article 60 could not be applied in order to analyze the violation of a judgment yet to be interpreted. Finally, as per the request for a nonrepetition guarantee, the Court understood the reiteration of the Avena judgment and the need for the United States to reach its established obligations to be sufficient. The final decision of the Court was as follows: “For these reasons, the Court, (1) By eleven votes to one, Finds that the matters claimed by the United Mexican States to be in issue between the parties, requiring an interpretation under Article 60 of the Statute, are not matters which have been decided by the Court in its judgment of 31 March 2004 in the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America), including

19

Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America),19 Judgment, I.C.J. Reports 2009, p. 19, Paragraph 51.

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paragraph 153 (9), and thus cannot give rise to the interpretation requested by the United Mexican States; [...] (2) Unanimously, Finds that the United States of America has breached the obligation incumbent upon it under the Order indicating provisional measures of 16 July 2008, in the case of Mr. José Ernesto Medellín Rojas; (3) By eleven votes to one, Reaffirms the continuing binding character of the obligations of the United States of America under paragraph 153 (9) of the Avena Judgment and takes note of the undertakings given by the United States of America in these proceedings; [...] (4) By eleven votes to one, Declines, in these circumstances, the request of the United Mexican States for the Court to order the United States of America to provide guarantees of non-repetition; [...] (5) By eleven votes to one, Rejects all further submissions of the United Mexican States.”20

6.2. Timeline DATE

DOCUMENT

5 June 2008

Press Release No. 2008/15

13 June 2008

Press Release No. 2008/17

20

CONTENT Communicates the filing of a request for interpretation of the judgment of the case concerning Avena and Other Mexican Nationals (Mexico v. United States of America). Announces that Mexico requested provisional measures on 5 June 2008 and that the Court will hold Public Hearings on the subject on 19 and 20 June 2008.

Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America)20, Judgment, I.C.J. Reports 2009, p. 20, Paragraph 61.

6. Request for Interpretation of the Judgment of 31 March 2004

20 June 2008

Press Release No. 2008/18

11 July 2008

Press Release No. 2008/19

16 July 2008

Order and Press Release No. 2008/20

22 July 2008

Press Release No. 2008/21

4 September 2008

Press Release No. 2008/27

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Communicates that the Public Hearings were held on the dates indicated and that representatives from Mexico and the United States were heard. Also presents the parties’ conclusions and notes that the decision of the Court will soon be delivered. Notifies that on 16 July 2008 the Court will hold a public sitting to give its Order on the provisional measures requested by Mexico. Informs that the Court made a decision and indicates provisional measures as well as its reasoning. Given these, the United States must take all measures necessary to guarantee the non-execution of the referred Mexicans before their final judgment. Communicates that the Court has fixed 29 August 2008 as the time limit for the filing by the United States of its written observations. Also notifies that the Court has reserved the right of the parties to provide further written explanations after the American written observations, according to Article 98, Paragraph 4 of the Rules of Court. Informs that the Court will accept further written explanations from the parties involved until 17 September 2008 (Mexico) and 6 October 2008 (United States).

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8 October 2008

Press Release No. 2008/33

8 January 2009

Press Release No. 2009/1

19 January 2009

Press Release No. 2009/4

Notifies that the parties delivered their explanations within the appointed time limits and that the Court, according to its previous practice, decided not to hold Public Hearings and is already deliberating on the case. Also announces that the date of the decision will soon be released. Reports that the Court’s decision will be read on 19 January 2009. Communicates that the Court has held a public sitting and read its decision. Recalls the history of the proceedings, and states its decision and reasoning.

7. NOTTEBOHM (LICHTENSTEIN V. GUATEMALA), 1951

7.1. Summary This case concerns the filing of an application instituting proceedings by the Principality of Liechtenstein (hereinafter “Liechtenstein”) against the Republic of Guatemala (hereinafter “Guatemala”) due to actions taken by Guatemala towards Frederic Nottebohm and his properties. In the present case the International Court of Justice (hereinafter “ICJ”) was called upon to decide the admissibility of the application, as requested by Guatemala, before considering its merits.

I. Facts Frederic Nottebohm was born in Germany on 16 September 1881. He lived in Hamburg until 1905, when he went to Guatemala. Mr. Nottebohm not only fixed his residence in Guatemala, but also engaged in commercial activities for the company founded by his brothers, the Nottebohm Hermanos. He was promoted from employee to partner of the company in 1912, and later, in 1937, he obtained ownership of it. Meanwhile, Mr. Nottebohm continued to pay visits to his relatives in Germany, and engaged in commercial activities there. On 9 October 1939, over a month after the beginning of the Second World War, Mr. Nottebohm applied for naturalization in Liechtenstein while visiting his only relative resident of the Principality, his brother Vaduz. The Law of Liechtenstein of 4 January 1937 was the law regarding naturalization at the time Nottebohm submitted his application. This provision ascertains the conditions and procedures for naturalization, including the requirement that one must have spent the previous three years residing in a territory of the Principality, unless the applicant is able to prove special circumstances. Moreover, the law requires the payment of certain fees and the submission of documents concerning the applicant’s residence in the Principality, as well as evidence of his properties and income.

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The naturalization proceedings, according to the aforesaid law, included firstly the examination of the application by the government. Then, after having acquired enough information on the applicant, the government should submit the application to the Diet, which is the state’s parliament. The Diet must then analyze the application and, if approved, send a request to the Prince, the only official entitled to grant naturalization in Liechtenstein. Mr. Nottebohm submitted the requested documents in accordance with Liechtenstein’s law. He was careful enough to demonstrate monetarily his willingness and seriousness towards naturalization, going so far as to pay a significant amount of money to the government beyond the dues related to the proceedings. He was also discharged of the requirement of three years of residence in the territory of the Principality without presenting any special circumstances that might have been considered exceptional. Still, Mr. Nottebohm requested that the proceedings of his naturalization process be prioritized, and concluded without delay. The typewritten application presented on behalf of Mr. Nottebohm contained several suspicious irregularities such as handwritten additional amounts of money to be paid to the government, and an annex with a blank sheet containing the signature of the Prince. However, Mr. Nottebohm’s naturalization request was supposedly granted by the Prince on 13 October 1939. He then took an oath and received a nationality certificate on 20 October 1939. Afterwards, he obtained a passport for Liechtenstein, with which he managed to get a Guatemalan visa. Mr. Nottebohm then returned to Guatemala, where he resumed his former business. On 17 December 1951, Liechtenstein submitted an application instituting proceedings against Guatemala to the ICJ on behalf of Mr. Nottebohm, whom it considered to be its citizen, claiming that Guatemala acted against international law towards him. Guatemala then asked the Court to dismiss the application, alleging that it was inadmissible due to, among other reasons, the irregularity with which Mr. Nottebohm obtained naturalization. That is, since Mr. Nottebohm’s naturalization was irregular, Liechtenstein had no right to represent him in a contentious case against another state.

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II. Jurisdiction The jurisdiction of the Court in the present case relied upon Article 36 of the Statute of the Court.1 In Paragraph 2 and 3, it provides that states can accept the compulsory jurisdiction of the ICJ without the need for a special agreement in any case concerning, among other disputes, a question of international law. The only condition imposed by this provision is that the country being taken to Court by another also accepts such a jurisdiction. Guatemala and Liechtenstein made declarations recognizing the jurisdiction of the Court according to Article 36 of its Statute on 27 January 1947 and 29 March 1950, respectively. The only condition drawn by Guatemala, which is provided in Paragraph 3 of Article 36 of the Statute of the Court, was that the declaration would not apply to disputes between Guatemala and England. Besides, Liechtenstein did not have any reservations regarding the declaration. Therefore, the dispute initiated by Liechtenstein through its application is under the Court’s jurisdiction according to Article 36 of the Statute of the Court.

1

Article 36 of the Statute of the Court states that: “1) The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force; 2) the states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning (a) the interpretation of a treaty, (b) any question of international law, and (c) the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation; 3) the declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time; 4) such declarations shall be deposited with the Secretary-General of the United Nations, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the Court; 5) declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms; and 6) in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”

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III. Matters of Dispute The Court was first called upon to decide the admissibility of the application filed by Liechtenstein. If it considered the application admissible, it would have to decide on the merits of the dispute. In terms of the case’s admissibility, the parties involved submitted the following submissions to the Court. On behalf of Guatemala, the main submissions were the following: “[T]o declare that the claim of the Principality of Liechtenstein is inadmissible: 1) on the ground of the absence of any prior diplomatic negotiations between the Principality of Liechtenstein and Guatemala such as would disclose the existence of a dispute between the two states before the filing of the application instituting proceedings […]; 2) (a) on the ground that Mr. Nottebohm, for whose protection the Principality of Liechtenstein is acting before the Court, has not properly acquired Liechtenstein nationality in accordance with the law of the Principality, (b) on the ground that naturalization was not granted to Mr. Nottebohm in accordance with the generally recognized principles in regard to nationality, and (c) in any case, on the ground that Mr. Nottebohm appears to have solicited Liechtenstein nationality fraudulently, that is to say, with the sole object of acquiring the status of a neutral national before returning to Guatemala, and without any genuine intention to establish a durable link, excluding German nationality, between the Principality and himself […]; and (3) on the ground of the non-exhaustion by Friedrich Nottebohm of the local remedies available to him under the Guatemalan legislation, whether in regard to his person or his property, even if it should appear that the complaints against Guatemala were concerned with an alleged original breach of international law.”2

On behalf of Liechtenstein, the main submissions were: “(1) [T]o hold and declare that there is a dispute between Liechtenstein and Guatemala, that it forms the subject-matter of the present application to the Court by the government of Liechtenstein and that it is admissible for adjudication by the Court without further diplomatic communication or negotiations between the parties; (2) to find and declare that the naturalization of Mr. Frederic Nottebohm in Liechtenstein on October 13th, 1939, was not contrary to international law; and that Liechtenstein's claim on behalf of Mr. Nottebohm as a national of Liechtenstein is admissible before the Court; and (3) to hold and declare: (a) that in regard to the

Nottebohm Case (second phase), Judgment of April 6th, 1955, I.C.J. Reports 1955, p. 11-12.

2

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person of Mr. Frederic Nottebohm he was prevented from exhausting the local remedies and that in any case such remedies would have been ineffective […].”3

IV. Admissibility of the Application The key question that the Court needed to answer in order to decide upon the admissibility of Liechtenstein’s claim was whether the nationality granted by this party through the process of naturalization created an obligation for Guatemala to recognize Liechtenstein's right to represent Mr. Nottebohm’s interests internationally. The Court clearly noted that its decision on the recognition of Mr. Nottebohm’s Liechtenstein nationality did not apply to any state other than Guatemala, and, even so, only for the purpose of determining the admissibility of the application.

A) Liechtenstein’s Arguments To support its position that the application was admissible, Liechtenstein argued that Guatemala had already formally recognized Mr. Nottebohm’s Liechtenstein nationality in several different situations. Liechtenstein added that, by claiming the application inadmissible due to the irregularity of how naturalization was granted, Guatemala was being inconsistent and, therefore, its claims should not be considered further. The situations to which Liechtenstein referred were namely the visa granted by the Guatemalan Consul General in Zurich on 1 December 1939, which Mr. Nottebohm needed in order to return to Guatemala; the Ministry of External Affairs of Guatemala’s acceptance on 31 January 1939 of Mr. Nottebohm’s request to exchange his entry in the Register of Aliens according to his new nationality; the modification of his identity document on 9 February 1940; and the certificate of nationality alteration given him by the Civil Registry of Guatemala on 1 July 1940.

B) Guatemala’s Arguments Guatemala’s main argument concerning the inadmissibility of the application concerned the irregularity of Mr. Nottebohm’s naturalization process. It alleged that the naturalization was fraudulent and did not abide by well-established principles of international law on the subject. Nottebohm Case (second phase), Judgment of April 6th, 1955, I.C.J. Reports 1955, p. 8-9.

3

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Guatemala sustained that Mr. Nottebohm’s naturalization was fraudulent due to the fact that it did not comply with Liechtenstein’s domestic law regarding the process of naturalization. Moreover, Guatemala claimed that Mr. Nottebohm had no social relations in Liechtenstein, and that Liechtenstein granting him nationality should be considered an act in disagreement with the principles of international law. Regarding Liechtenstein’s claims that Guatemala recognized Mr. Nottebohm’s Liechtenstein nationality, Guatemala countered each one. First, in the case of the visa granted by the Consul General of Guatemala in Zurich, Guatemala argued that, according to its domestic law, the visa’s sole purpose was to make possible or facilitate entry into Guatemala, and the act itself does not recognize as legitimate Mr. Nottebohm’s Liechtenstein nationality, nor does it recognize Liechtenstein’s right to represent Mr. Nottebohm internationally. In the second situation presented by Liechtenstein, concerning the modification of Mr. Nottebohm’s entry in the Register of Aliens, Guatemala brought before the Court Article 494 of the Alien Act of 25 January 1939. This provision states that although the nationality of the alien is presumed to be legitimate, it is admissible evidence of the contrary. That is to say that Guatemala, contrary to what Liechtenstein claimed, did not accept as certain the nationality claimed by the alien. Instead, it reserved its right to question it. In fact, the argument that Guatemala relied on in order to dismiss all of the claims related to Mr. Nottebohm’s registers in Guatemala was that not one of the country’s acts referred to diplomatic protection; rather, its sole purpose was the control of aliens in Guatemala. There was, therefore, no relationship between Guatemala and Liechtenstein at the time of these acts. To support this last argument, Guatemala presented other situations in which it had not recognized either Mr. Nottebohm’s Liechtenstein nationality or Liechtenstein’s right to represent Mr. Nottebohm internationally. These situations included for instance, the request sent from Nottebohm Hermanos to the Minister of Finance and Public Credit on 13 September 1940. In this request, Nottebohm Hermanos noted that one of its partners was a national of Liechtenstein. However, the matter was discussed by Guatemala with a focus on the company, which was Guatemalan, and the national economy. At no point in the discussions did the government of Liechtenstein refer to intervention, proving that Mr. Nottebohm’s Liechtenstein nationality could be mentioned without being 4

Article 49 of the Alien Act of 25 January 1936 reads as follows: “Constitutes a legal presumption that the alien possesses the nationality there attributed to him, but evidence to the contrary is admissible.”

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analyzed and recognized by Guatemala. Moreover, it proved that these acts concerned Guatemala and one individual, not Guatemala and the government of Liechtenstein and its diplomatic relations.

V. Judgment Given the arguments above, the Court did not find either that Guatemala recognized Mr. Nottebohm’s naturalization or Liechtenstein’s right to exercise diplomatic protection, so it considered that Guatemala tacitly denied it. Therefore, the Court was called upon to decide whether the act of granting nationality itself obliged Guatemala to recognize Liechtenstein’s prerogative to represent its national interest internationally. In order to deal with this question, the Court did not disregard the legitimacy of naturalization itself. Rather, it considered the naturalization to be valid. The Court began its judgment by clarifying that the granting of nationality, despite being an act related to international law, is within the domestic jurisdiction of the state. That is to say, sovereign states have the freedom to determine by their own legislation the process to which an individual should be submitted when seeking nationality. This freedom is due to the fact that nationality creates, above all, a relation of rights and obligations between the individual and his/her country of nationality. The Court notes, however, that whereas nationality is a matter of domestic jurisdiction, the entitlement to an exercise of protection before the ICJ is a matter of international law. Acts performed under domestic jurisdiction are not necessarily binding to other states. In order to evaluate whether granting nationality to Mr. Nottebohm led to an obligation for Guatemala or not, the Court had to consider the circumstances under which this nationality was given. It is well understood within the framework of international law that the nationality that creates the obligation of recognition to third states is the one that corresponds to the real and effective nationality of an individual. To establish which is the real and effective nationality of an individual, it is necessary to take into account a series of different factors, whose importance varies depending on the case. These factors are, for instance, the individual’s center of interests, his habitual residence, his participation in public life, and his social relations, among others. Numerous judicial and arbitration cases were decided based on this principle. In fact, these criteria are present in states’ general practice, in the writings of several international law academics, and are also referred to in some provisions,

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namely Article 15 and Article 56 of the Convention relating to the Conflict of Nationality Laws,7 as well as Paragraph 2 of Article 38 of the Statute of the Court. In this sense, the Court analyzed Mr. Nottebohm’s genuine relations with Liechtenstein in order to determine if it did in fact correspond with his real and effective nationality. Considering that Mr. Nottebohm was German from birth, kept family ties and business relations in Germany throughout his life, lived in Guatemala for 34 years, therefore constituting the center of his interests, and that his sole bond with Liechtenstein was an only brother and his few passing visits through the country, the Court decided that Mr. Nottebohm’s Liechtenstein nationality did not correspond with his real and effective nationality. For this reason, the Court adjudged that Liechtenstein was not entitled to offer protection to Mr. Nottebohm and, therefore, considered the application to be inadmissible.

5

Article 1 of the Convention relating to the Conflict of Nationality states that: “It is for each state to determine under its own law who are its nationals. This law shall be recognised by other states in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.” 6 Article 5 of the Convention relating to the Conflict of Nationality rules the following: “Within a third state, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third state shall, of the nationalities which any such person possesses, recognise exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.” 7 Convention on Certain Questions Relating to the Conflict of Nationality Laws (Convention relating to the Conflict of Nationality) (13 April 1930, The Hague 179 LNTS 4137). 8 Article 3, Paragraph 2, of the Statute of the Court provides that: “A person who for the purposes of membership in the Court could be regarded as a national of more than one state shall be deemed to be a national of the one in which he ordinarily exercises civil and political rights.”

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7.2. Timeline DATE

17 December 1951

26 January 1952

7 March 1952

21 March 1952

DOCUMENT

CONTENT

Press Release No. 1951/59

Notifies the filing by Liechtenstein of an application instituting proceedings against Guatemala. The document also reports the basis of the jurisdiction of the ICJ and briefly exposes Liechtenstein’s claims and requests.

Order

States that once the application filed by Liechtenstein fulfilled the formal conditions established by the Rules of Court, the Court moved on to fix the time limits for the submission of Liechtenstein’s Memorial and Guatemala’s Counter-Memorial to 2 April 1952 and 12 July 1952, respectively.

Order

Concerns the extension of the time limits established in the Order of 26 January 1952, as agreed on by the parties. The new deadline fixed was 3 June 1952 for Liechtenstein’s Memorial and 15 September 1952 for Guatemala’s Counter-Memorial.

Order

Notifies the receipt of a communication by Guatemala’s Minister for Foreign Affairs in which it explains Guatemala’s abstention in the case due to the expiration of its declaration of acceptance of the compulsory jurisdiction of the Court on 26 January 1952. On that occasion, Guatemala also communicated the

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parties’ intention to amicably solve the situation via private negotiation. In this Order, however, the Court states that, since it received no update on any agreement, it carries on fixing a time limit of 21 May 1953 for Liechtenstein to comment on Guatemala’s communication.

4 November 1953

10 November 1953

16 November 1953

18 November 1953

Press Release No. 1953/36

Communicates the scheduling of a Public Hearing on 10 November 1953 at the Peace Palace concerning the contested jurisdiction of the Court on the present case.

Press Release No.1953/37

Declares the receipt of a telegram from the Minister for Foreign Affairs of Guatemala on 9 November 1953 requesting the postponement of the Public Hearings scheduled for the following day. Moreover, the document exposes what took place during the said Public Hearings that happened anyway.

Press Release No. 1953/39

Declares that the Court will deliver its judgment on the Preliminary Objection concerning its compulsory jurisdiction in a Public Hearing to be held at the Peace Palace on 18 November 1953.

Press Release No. 1953/41

Exposes the Court’s judgment concerning the Preliminary Objection made by Guatemala. On that occasion, the Court dismissed the objection alleging that the expiration of Guatemala’s

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declaration that provided compulsory jurisdiction of the Court under the terms of Article 36, Paragraph 2 of the Statute of the Court on 26 January 1952 did not affect its jurisdiction on the claim presented by Liechtenstein on 17 December 1951. Having decided this, the Court fixed a time limit of 20 January 1954 for the submission of Guatemala’s Counter-Memorial.

28 December1953

15 January 1954

8 May 1954

Press Release No. 1953/43

Notifies the presentation, by the Minister for Foreign Affairs of Guatemala, of Mr. Victor Salmon Pinto Juarez as Guatemala’s Agent on the Nottebohm case. The document also provides that the latter will be assisted by Mr. Carlos Hall Lloreda.

Order

Communicates that Guatemala’s request to extend its deadline for the submission of its CounterMemorial to the end of July 1954, was partly accepted by Liechtenstein, which agreed to an extension of three months. Therefore, the Court announced in this Order the new time limit for the presentation of such a proceeding by Guatemala: 20 April 1954.

Order

Fixes the time limits for the filing of Liechtenstein’s Reply and Guatemala’s Rejoinder to 17 July 1954 and 2 October 1954, respectively.

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13 September 1954

26 November 1954

10 February 1955

Order

Notifies the extension of the time limit for the submission of Guatemala’s Rejoinder to 2 November 1954, according to the party’s request and Liechtenstein’s acceptance, due to the political scenario at the time.

Press Release No.1954/21

Fixes the date for the opening of the oral proceedings to 10 February 1955. The document then exposes a brief summary of the history of the proceedings as well as presents the chosen judges ad hoc, Mr. Paul Guggenheim (chosen by Liechtenstein) and Mr. Carlos Garcia Bauer (chosen by Guatemala).

Press Release No.1955/3

Reports what took place in the two Public Hearings held at the Peace Palace that day. The first one concerned the presentation of the four new elected judges of the Court. During the second Public Hearing, the parties’ agents made their initial declarations and then it was mentioned the presentation of several new documents by Guatemala after the closing of the written proceedings. Finally, the document notifies that the Court scheduled the next Public Hearing to be held at the Peace Palace on 11 February 1955.

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11 February 1955

14 February 1955

15 February 1955

16 February 1955

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Press Release No. 1955/4

Communicates that the Public Hearing held that day at the Peace Palace carried on with the subject of Guatemala’s presentation of new documents after the closure of the written proceedings. On that occasion, the Court declared that it would deliver its decision on the matter at a later date, and fixed the next sitting to be held on 12 February 1955.

Press Release No. 1955/6

Reports the happenings of the Public Hearings. First it was decided, due to special circumstances, that the documents presented by Guatemala submitted after the deadline were acceptable. Then Liechtenstein’s agent made his speech. The document also settled that the next public sitting would take place on 15 February 1955.

Press Release No.1955/7

Communicates that Liechtenstein’s agent continued to address the Court during the two Public Hearings held at the Peace Palace that day. It also establishes the continuation of the oral proceedings of the next Public Hearing to be held on 16 February 1955.

Press Release No.1955/8

Reports that Liechtenstein’s agent carried on with his oral sustentation during the Public Hearing held that day, and he is to continue in the next Public Hearing to be held on 17 February 1955 at the Peace Palace.

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Press Release No.1995/9

Informs that two Liechtenstein’s agents concluded their statements and that another Counsel for the government of Liechtenstein is to finish his presentation in the next day.

Press Release No.1995/10

Communicates that Liechtenstein’s agents present their statements and that one of the state agents is to conclude his oral sustentation in the following sitting.

Press Release No.1955/11

Notifies that Guatemala’s agent presented his oral sustentation, which is to be concluded in the following Public Hearing to be held on 21 February 1955 at the Peace Palace.

Press Release No.1955/12

Communicates the continuation of Guatemala’s agent oral statements during the Public Hearing held that day, and fixes the date for the conclusion of the presentation to 22 February 1955.

Press Release No.1955/13

Announces the beginning of another Guatemala’s counsel speech, which he will continue in the next Public Hearing, set for 23 February 1955.

23 February 1955

Press Release No.1955/14

States that the Guatemalan counsels continued to address the Court during the Public Hearing held that day. Fixes the next Public Hearing to 24 February 1955.

24 February

Press Release

Declares the end of the first round

17 February 1955

18 February 1995

19 February 1955

21 February 1955

22 February 1955

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1955

2 March 1955

3 March 1955

4 March 1955

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of the oral pleadings after the Guatemalan consuls concluded their speech during the Public Hearing held that day. The President of the Court then fixed the date of the following Public Hearing for 2 March 1955, when Liechtenstein’s agent will make his statement in reply.

Press Release No.1955/16

Communicates the opening of the second round of the oral proceedings by Liechtenstein’s representatives. The document also notifies that the Court scheduled the next Public Hearing to continue the oral statements for 3 March 1955 at the Peace Palace.

Press Release No.1955/17

Reports the continuation of Liechtenstein’s reply during the Public Hearing held that day and fixes the date for the next Public Hearing to 4 March 1955 at the Peace Palace, when Liechtenstein’s representatives will carry on with their statements.

Press Release No.1955/18

Announces the end of Liechtenstein’s representatives’ oral statements in reply and communicates their presentation of Liechtenstein’s final submissions. The next Public Hearing was scheduled for 7 March 1955 at the Peace Palace, on which occasion the Guatemalan representatives will make their oral rejoinder.

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Press Release No.1955/19

Reports on what took place during the Public Hearings held that day. On that occasion, the Guatemalan representatives began the party’s oral rejoinder and presented their final conclusions. The next Public Hearing was scheduled for 8 March 1955 at the Peace Palace.

8 March 1955

Press Release No.1955/20

Declares the end of the oral proceedings after Guatemala’s representatives’ conclusion of the oral Rejoinder. In that occasion the Court informed the parties’ agents that they would be notified of when the judgment would be delivered as well as that they should be in the Court’s disposal in case the latter should require more information.

2 April 1955

Press Release No.1955/24

Notifies that the judgment would be delivered during a Public Hearing to be held at the Peace Palace on 6 April 1955.

Press Release No.1955/25

Presents a brief summary of the judgment delivered on the Nottebohm case during the Public Hearing held that day, in which the Court considered Liechtenstein’s claim to be inadmissible.

7 March 1955

6 April 1955

Bibliography BASTID, S. (1956) ‘L’affaire Nottebohm devant La C.I.J.,’ RGDIP, 45: 607-633. GRAWITZ, Madeleine (1955) ‘Arrêts Nottebohm du 18 novembre 1958 (compétence) et du 6 avril 1955 (fond),’ Annuaire français de droit international, 1: 262-277.

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JONES, J. Mervyn (1956) ‘The Nottebohm Case, The International and Comparative Law Quarterly, Vol. 5. No. 2. Pp. 230-244. Online. Available KNAPP, B. (1960) ‘Quelques considérations sur la jurisprudence de La C.I.J. em matière de nationalité,’ A.S.D.I., 17: 147-178. KUNZ, Josef L. (1960) ‘The Nottebohm Judgment,’ The American Journal of International Law, 54. No. 3: 536-571. Online. Available

LOEWENFELD, Erwin H. (1956), ‘Der Fall Nottebohm. Ein Beitrag zur Rechtsprechung des Internationalen Gerichtshofes im Haag,’ Archiv des Völkerrechts, 5. No. 4: 387-410. LISSITZYN, Olive J. (1955) ‘Nottebohm Case (Liechtenstein v. Guatemala)’, The American Journal of International Law, Vol. 49. No. 3. Pp 396-403. Online. Available http://www.jstor.org/stable/2194879 PATEL, Bimal N. (2002), ‘Nottebohm Case (Lichtenstein v. Guatemala)’ in Bimal N. Patel The World Court Reference Guide: Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000), Hague/London/New York: Kluwer Law International. VERZIJL, J.H.W. (1966) ‘Nottenbohm Case (Liechtenstein v. Guatemala) – (Second Phase)’ in The Jurisprudence of the World Court: A Case by Case Commentary – Volume II: The International Court of Justice (1947-1965), Leyden: A.W. Sijthoff. VISSCHER, de P. (1956) ‘L’affaire Nottebohm,’ Revue Générale de Droit International Public, vol. 60, pp. 238-266.

8. CERTAIN QUESTIONS CONCERNING DIPLOMATIC RELATIONS (HONDURAS V. BRAZIL), 2009

8.1. Summary This case concerns the filing of an application instituting proceedings by the Republic of Honduras (hereinafter “Honduras”) against the Federative Republic of Brazil (hereinafter “Brazil”) due to legal questions regarding diplomatic relations and the latter’s alleged violation of the principle of non-intervention.

I. Facts In June 2009, José Manuel Zelaya Rosales, President of Honduras, proposed the creation of a constituent assembly with the purpose of allowing the President of the Republic to exercise more than one term of office. Such an arrangement was not allowed by the constitution at the time, as established in Article 4.1 On 29 June 2009, Mr. Rosales was ordered arrested for political crimes, including his attempt to change the form of government as provided in the said Article. In order to avoid being arrested, he travelled around Central America, before secretly returning to Tegucigalpa, where he and other Honduran citizens became refugees at the Brazilian Embassy. When this situation became known to the public, the government of Honduras sent a note to the government of Brazil expressing its views and claims on the matter, but the latter did not reply. Considering the facts and Brazil’s lack of response, Honduras took the case to the International Court of Justice (hereinafter “ICJ”) on 29 October 2009. 1

Article 4 of the Honduran Constitution in force at that moment read as follows: “The form of government is republican, democratic and representative. It is exercised by three powers: Legislative, Executive and Judicial, which are complementary, independent, and not subordinate to each other. Alternation in the exercise of the Presidency of the Republic is obligatory. Violation of this norm constitutes a crime of treason against the Fatherland.”

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II. Jurisdiction The jurisdiction of the Court to entertain this case is based on the facultative clause of acceptance of compulsory jurisdiction of the Court under the terms of Article 36, Paragraph 2 of the Statute of the Court2 and of Article 313 of the American Treaty on Pacific Settlement (hereinafter “Pact of Bogotá)”4, treaty to which both Honduras and Brazil are parties without reservation to the provision.

III. Merits Honduras’s Arguments Honduras’s claims are based on the fact that Mr. Rosales’s situation is exclusively a matter of domestic jurisdiction. That is to say, Mr. Rosales’s proposal and his consequential order of arrest, leading to his becoming a refugee at the Brazilian Embassy, concern Honduras’s political régime. This régime in no way violates international law and for this reason it is exclusively a matter of domestic jurisdiction. This premise leads Honduras to conclude that Brazil, by allowing Mr. Rosales and other Honduran nationals to stay at the Brazilian Embassy and use its resources, supports these citizens in their evasion of Honduran 2

Article 36, Paragraph 2 of the Statute of the Court asserts: “2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.” 3 Article 31 of the Pact of Bogotá of 1948 reads as follow: "In conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice, the high contracting parties declare that they 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 them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.” 4 American Treaty on Pacific Settlement (Pact of Bogota) (Bogotá, 30 April 1948, 30 UNTS 449).

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justice, and consequently violates international law. According to Honduras, these acts violate Article 25 of the Charter of the United Nations,6 which establishes the principle of non-intervention, and Article 417 of the Vienna Convention on Diplomatic Relations.8 Moreover, Honduras alleged that Brazil’s actions were not justifiable according to the American Convention on Diplomatic Asylum of 1954.

5

Article 2 of the Charter of the United Nations states that: “Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 1. The Organization is based on the principle of the sovereign equality of all its Members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.” 6 Charter of the United Nations (Charter of the United Nations) (San Francisco, 26 June 1945, 1 UNTS XVI). 7 Article 41 of the Vienna Convention on Diplomatic Relations provides that: “Article 41 1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving state. They also have a duty not to interfere in the internal affairs of that state. 2. All official business with the receiving state entrusted to the mission by the sending state shall be conducted with or through the Ministry for Foreign Affairs of the receiving state or such other ministry as may be agreed. 3. The premises of the mission must not be used in any manner incompatible with the functions of the mission as laid down in the present Convention or by other rules of general international law or by any special agreements in force between the sending and the receiving state.” 8 Vienna Convention on Diplomatic Relations (Vienna Convention on Diplomatic Relations) (Vienna, 18 April 1961, 500 UNTS 95).

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IV. Judgment Requested Based on the facts and claims exposed above, in its application instituting proceedings, Honduras requested the Court to adjudge and declare that: “[I]t has jurisdiction to adjudicate the dispute between Honduras and Brazil and that the application of Honduras is admissible. [...] Brazil does not have the right to allow the premises of its Mission in Tegucigalpa to be used to promote manifestly illegal activities by Honduran citizens who have been staying within it for some time now and that it shall cease to do so. Just as Brazil rightly demands that the Honduran authorities guarantee the security and inviolability of the Mission premises, Honduras demands that Brazil’s diplomatic staff stationed in Tegucigalpa devote themselves exclusively to the proper functions of the Mission and not to actions constituting interference in the internal affairs of another state. [...] Brazil has breached its obligations under Article 2 (7) of the Charter and those under the 1961 Vienna Convention on Diplomatic Relations, the government of Honduras reserves the right to claim reparation for any damage resulting from the actions of Brazil, of its Mission, and of the Honduran persons sheltered by it in the Mission.”9

V. Final Considerations Since this case was exclusively based on Honduras’s application instituting proceedings it does not present Brazil’s arguments on the matter. A brief history of the proceedings as far as they went can be found in the timeline below.

9 Certain Questions concerning Diplomatic Relations (Honduras v. Brazil), Application Instituting proceedings, I.C.J reports 2009, p.3.

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8.2. Timeline DATE

29 October 2009

12 May 2010 and 19 May 2010

DOCUMENT

CONTENT

Press Release No. 2009/30

Communicates the filing of an application instituting proceedings by Honduras against Brazil due to the allegedly irregular shelter of certain Honduran nationals at Brazil’s Embassy in Honduras. The document also exposes Honduras’s submissions to the Court expressed in the application.

Order and Press Release No. 2010/15

Reports the Court’s inability to fix time limits due to the Honduran lack of decision regarding its legitimate representatives. The decision is followed by notification of receipt of a letter on 3 May 2010 by the Embassy of Honduras in The Hague requesting the discontinuance and removal of the case from the Court. The Court decides to accept the request, considering that Brazil did not take any step in the proceedings of the case.

9. STATUS VIS-À-VIS THE HOST STATE OF A DIPLOMATIC ENVOY TO THE UNITED NATIONS (COMMONWEALTH OF DOMINICA V. SWITZERLAND), 2006

9.1. Summary This case concerns the filing of an application instituting proceedings by the Commonwealth of Dominica (hereinafter “Dominica”) against the Swiss Confederation (hereinafter “Switzerland”) regarding the interpretation of Article 421 of the Vienna Convention on Diplomatic Relations of 18 April 1961 (hereinafter “VCDR”).2

I. Facts In 1966, Roman Lakschi was sent by Dominica as its Envoy to the United Nations and special agencies, and to the World Trade Organization (WTO), in Switzerland. He was accredited in March 1996, but once in Switzerland, never perceived the rights, privileges, and immunities due to diplomats according to international rules. In December 1996, Switzerland announced the Envoy’s withdrawal, basing its decision on the fact that he was a businessman. The Dominican Envoy was then given until February 1997 to leave his post. Nevertheless, Dominica renewed his indication and appointed to him the superior function of Chargé d’affaires, that is, head of the mission. Roman Lakschi was supposed to stay at this post until July 1997, but in May 1997 he was appointed permanent representative as an Ambassador. In November 1998, Switzerland unilaterally withdrew the Envoy from his post, once again claiming that it had the right to do so according to 1 Article 42 of the Vienna Convention states that: “A diplomatic agent shall not in the receiving state practise for personal profit any professional or commercial activity”. 2 Vienna Convention on Diplomatic Relations (Vienna Convention on Diplomatic Relations) (Vienna, 18 April 1961, 500 UNTS 95).

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Article 42 of the VCDR, even when the case was not in violation of any rule of Switzerland’s law, nor represented a threat to the state’s security. Since it did not agree with the interpretation that a businessman was considered to be such even if he did not carry out any business in the host country, Dominica took the case to the International Court of Justice (hereinafter “ICJ”).

II. Jurisdiction The jurisdiction in this case is based on the signature of the Statute of the ICJ with no reservations by either party, meaning they agreed to Article 36 (2).3 The parties are also signees to the Optional Protocol to the Vienna Convention for the Compulsory Settlement of Disputes (hereinafter “Optional Protocol”)4 and Dominica claims the ICJ to be responsible for clarifying any interpretation of such a treaty.

III. Merits Dominica’s Arguments Dominica claimed it had its sovereignty infringed since Switzerland usurped its rights to define its representative and the period of the exercise of such a function. It also usurped the competence of the United Nations, where the Envoy was in fact accredited. It affirmed that a state may send whoever it considers will best defend its interests and that by usurping this right Switzerland was impeding Dominica’s possible development. The state defined such conduct as 3

Article 36 (2) defines that: “2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. The interpretation of a. treaty; b. Any question of international law; c. The existence of any fact which, if established, would constitute a breach of an international obligation; d. The nature or extent of the reparation to be made for the breach of an international obligation.” 4 Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes (Optional Protocol of the Vienna Convention on Consular Relations) (Vienna, 24 April 1963, 596 UNTS 8640).

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colonialist and emphasized the lack of legal bases for unilateral withdrawal, stressing that the Envoy was not accredited in Switzerland, but at the United Nations, and that such an organization had not had any complaint about the representative.

IV. Judgment Requested Based on the arguments above, Dominica requested to Court to: “(a) [C]larify the rights and duties of a host state, of a sending state and those of the United Nations, the Specialized Agencies and the WTO, with regard to Permanent Missions and their diplomatic personnel; and further to adjudge and declare as follows: (b) [T]hat the Respondents have breached, and are continuing to breach, their legal obligations toward the Commonwealth of Dominica under Articles 23-47 of the Vienna Convention on Diplomatic Relations of 18 April 1961, the Headquarters Agreement between the Respondents and the United Nations of 11 June and 1 July 1946, the Agreement on Privileges and Immunities between the Respondents and the United Nations of 11 April 1946, the multilateral Convention on Privileges and Immunities of the United Nations of 13 February 1946 and under general international law; (c) [T]hat the Respondents, in breach of their obligations under the aforementioned treaties and conventions as well as under general and customary international law, have violated the fundamental rules of immunity of diplomats; (d) [T]hat the Respondents, in breach of their obligations under the aforementioned treaties and conventions as well as under general and customary international law, in the event also failed to recognize the rights under international law concerning active legation of the Applicants and on passive legation of international organizations; (e) [T]hat the Respondents, in breach of their obligations under the aforementioned treaties and conventions as well as under general and customary international law, have violated rules concerning their rights and duties as a host state; (f) [T]hat the Respondents have violated and continue to violate relevant sections on sovereignty and equality of the Declaration on Principles of International Law Friendly Relations and Co-operation Among states in Accordance with the Charter of the United Nations of 24 October 1970, sections which also reflect binding general international law; (g) [T]hat the Respondents have violated, and continue to violate, their solemn obligations under Articles I (3), 55 and 56 of the United Nations Charter; (h) [T]hat the Respondents, in breach of their obligations under general and customary international law, have violated and are violating the

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V. Final Considerations Since this case was exclusively based on Dominica’s application instituting proceedings, it does not present Switzerland’s arguments on the matter. A brief history of the proceedings as far as they went can be found in the timeline below.

5 Violation of Rules Concerning Diplomatic Relations (Commonwealth of Dominica v. Switzerland), Application Instituting Proceedings, I.C.J. 2006, p.5.

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9.2. Timeline DATE

DOCUMENT

CONTENT

26 April 2006

Press Release No. 2006/16

Informs that Dominica submitted the application instituting proceedings against Switzerland for their violation of the Vienna Convention on Diplomatic Relations.

9 and 12 June 2006

Order and Press Release No. 2006/23

Establishes and gives notice of the case removal from the Court’s list, based on a request from the applicant.

CHAPTER II: INTERNATIONAL PEACE AND SECURITY

1. MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (NICARAGUA V. UNITED STATES OF AMERICA), 1984

1.1. Summary This case concerns the dispute taken to the International Court of Justice (hereinafter “ICJ”) by the Republic of Nicaragua (hereinafter “Nicaragua”) against the United States of America (hereinafter “the United States”) regarding the military and paramilitary actions taken by the latter in opposition to its government at the time.

I. Facts In July 1979, after the government of Nicaraguan President Anastasio Somoza Debayle fell, an 18-member government and Junta of National Reconstruction were installed by the armed opposition, the Frente Sandinista de Liberación Nacional (hereinafter “FSLN”). At first, this new government included many members of the FSLN, but with time they grew to be nearly its only representatives. An armed opposition to the new government was then created, composed primarily of members of the National Guard of the Somoza government. This opposition was originally made up of various movements, but later organized into two main groups: the Fuerza Democrática Nicaraguarense (hereinafter “FDN”) and the Alianza Revolucionaria Democrática (hereinafter “ARDE”). Members of the armed opposition were later known as the contras. After the fall of President Somoza, the United States showed itself in favor of the new government by adopting a program of economic aid to Nicaragua. This aid, however, was suspended and terminated in 1981. The reason the United States gave for such an action was that Nicaragua was supporting guerrillas in the Republic of El Salvador (hereinafter “El Salvador”). The suspension was, therefore, a measure of economic repression against Nicaragua. Although the nature and extent of the support that the United States gave to the contras is yet to be determined, it is clear that at a certain point, such support existed. For instance, in 1983, the United States

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Congress specified, in a budgetary legislation, the creation of a fund to be used by the United States’ intelligence to support, directly or indirectly, military and paramilitary activities in Nicaragua. Nicaragua argued that not only did the United States support the contras, it also controlled their groups with the purpose of destroying its government. Nicaragua also stated that the contras were responsible for a series of inadmissible acts such as kidnapping, torturing, and killing prisoners. These were the events that led Nicaragua to accuse the United States of breaching international law and its principles before the ICJ. It is important to highlight, however, that these events are to some extent controversial, since the parties disagree as to their factuality and interpretation. In fact, in order to determine which documents were relevant to the case, the Court had to pay special attention to the principles of equity and the sound administration of justice, since the United States, as will be explained below, did not appear before the Court during the proceedings on the merits of the case. The Court decided that the facts known as public knowledge, the statements of responsible authorities, and the testimonies delivered by witnesses whose personal opinions were unrelated to the case were of a more determinant nature. Regarding the statements of the responsible authorities, the Court considered those statements made by authorities against their own states more relevant, since they were more likely to be trustworthy.

II. Jurisdiction The jurisdiction of the Court was a fiercely disputed issue. Indeed, along with the admissibility of the application filed in by Nicaragua, it was the subject of the first judgment delivered by the Court in the present case, on 26 November 1984. These questions were first submitted to the Court via written and oral proceedings since the United States claimed it did not have a basis of jurisdiction to deal with the case and, therefore, should consider Nicaragua’s application inadmissible. In this sense, the United States also requested the Court to remove the case from the list. Nicaragua contended that the jurisdiction of the Court relied on two different judicial documents. The first one was the United States’ declaration of acceptance of jurisdiction under the optional clause of Article 36, Paragraph 2, of the Statute of the Court,1 on 26 August 1946. 1

Article 36, Paragraph 2 of the Statute of the Court reads as follows: “2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state

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The second basis of jurisdiction relied on Article XXIV2 of the Treaty of Friendship, Commerce, and Navigation (hereinafter “Treaty of Friendship”),3 signed by both states. During its deliberation on this matter, the Court took into account several arguments brought forth by the United States objecting to the basis of jurisdiction provided by Nicaragua. First, the United States argued that the Court had no jurisdiction over the case since the dispute involved could not be considered a legal dispute, and thus was not covered by Article 36, Paragraph 2, of the Statute of the Court. The party considered that the case concerned a political and military dispute and, for this reason, should be exclusively submitted to a political organ of the United Nations, in particular the Security Council. The Court rejected this allegation stating that, according to the justification given by the United States for the activities regarding Nicaragua’s collective self-defense, it was able to adjudge the issue without a political or military basis. That is to say, the question the Court considered relevant, was whether an attack by the United States happened and, if so, whether it was a legally appropriate reaction in terms of collective self-defense, could be answered without considering political issues such as the need to react in favor of said collective self-defense. During the proceedings of the jurisdictional phase, the United States also presented a Preliminary Objection regarding the reservation it had made on its declaration of acceptance of jurisdiction under Article 36, Paragraph 2. This reservation excluded the jurisdiction of the Court in disputes arising from multilateral treaties, unless all of the parties of such a treaty were also parties in the dispute before the Court, or none of the parties would be affected by the Court’s decision. The Court noted that the Preliminary Objection took into account the merits of the case, and not accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.” 2 Article XXIV of Treaty of Friendship, Commerce and Navigation reads as follow: “1. Each party shall accord sympathetic consideration to, and shall afford adequate opportunity for consultation regarding, such representations as the other party may make with respect to any matter affecting the operation of the present Treaty. 2. Any dispute between the parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the parties agree to settlement by some other pacific means.” 3 Treaty of Friendship, Commerce and Navigation (Treaty of Friendship) (Managua, 21 January 1956, 367 UNTS 5224).

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exclusively its jurisdiction, since it involved possible outcomes. For this reason, the Court, relying on Article 79, Paragraph 7, of the Rules of Court,4 decided that the objection should be considered when debating the merits of the case. Finally, after the Court delivered its decision on 26 November 1984 in favor of Nicaragua, the United States terminated both the Treaty of Friendship, and the declaration of acceptance of the optional clause. In this sense, the Court noted that the termination of these bases of jurisdiction would not affect the jurisdiction recognized for the said judgment. As it stated on the Nottebohm Case5: “When an application is filed at a time when the law in force between the parties entails the compulsory jurisdiction of the Court […] the filing of the application is merely the condition required to enable the clause of compulsory jurisdiction to produce its effects […]. Once this condition has been satisfied, the Court must deal with the claim; it has jurisdiction to deal with all its aspects […].”6 Furthermore, the United States communicated to the Court its refusal to appear during the following proceedings of the case, since it maintained the view that the Court had no jurisdiction to decide upon it.

III. Matters of Dispute Due to the United States’ refusal to appear before the Court during the phase in which it considered the merits of the case, it could not request that the Court decide on any specific matter. On the other hand, Nicaragua participated in all of the proceedings on the merits, and as final submissions requested the Court to decide upon the following matters: “First: the Court is requested to adjudge and declare that the United States has violated the obligations of international law indicated in this Memorial, and that in particular respects the United States is in continuing violation of those obligations.

4

Article 79, Paragraph 7 of the Rules of Court establishes: “7. The statements of facts and law in the pleadings referred to in paragraphs 4 and 5 of this Article, and the statements and evidence presented at the hearings contemplated by paragraph 6, shall be confined to those matters that are relevant to the objection.” 5 Nottebohm Case (second phase), Judgment of April 6th, 1955, I.C.J. Reports 1955. 6 Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 28, Paragraph 36.

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Chapter II Second: the Court is requested to state in clear terms the obligation which the United States bears to bring to an end the aforesaid breaches of international law. Third: the Court is requested to adjudge and declare that, in consequence of the violations of international law indicated in this Memorial, compensation is due to Nicaragua, both on its own behalf and in respect of wrongs inflicted upon its nationals; and the Court is requested further to receive evidence and to determine, in a subsequent phase of the present proceedings, the quantum of damages to be assessed as the compensation due to the Republic of Nicaragua. Fourth: without prejudice to the foregoing request, the Court is requested to award to the Republic of Nicaragua the sum of 370,200,000 United States dollars, which sum constitutes the minimum valuation of the direct damages, with the exception of damages for killing nationals of Nicaragua, resulting from the violations of international law indicated in the substance of this Memorial.”7

These requests came to be Nicaragua’s final submissions to the Court in the present case. The above-mentioned obligations that the United States violated will be explored in detail after exposing Nicaragua’s arguments on the merits of the case.

IV. Merits The first point the Court had to consider when dealing with the merits of the case concerns the Preliminary Objection the United States made regarding the reservation made in its declaration of acceptance of Article 36, Paragraph 2. In this sense, the Court had to adjudge whether a possible decision on the case might affect any of the parties to the multilateral treaties invoked by Nicaragua, since evidently these states were not parties in the present dispute before the Court. The multilateral treaties brought up by Nicaragua in its defense were: the Charter of the United Nations (hereinafter “UN Charter”),8 the Charter of the Organization of American States (hereinafter “OAS Charter”),9 the Montevideo Convention on Rights and Duties of States of 26 December 7

Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 19-20, Paragraph 15. 8 Charter of the United Nations (United Nations Charter) (San Francisco, 24 October 1945, 1 UNTS XVI). 9 Charter of the Organization of American States (Organization of American States Charter) (Bogotá, 30 April 1948, 119 UNTS 1609).

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1933,10 and the Havana Convention on the Rights and Duties of States in the Event of Civil Strife of 20 February 1928.11 However, Nicaragua stated that the duties and obligations included in the latter two treaties are dealt with in the first two. For this reason, the Court, in order to adjudge whether a party to these treaties would be affected, considered only the last two treaties, and in particular the state parties pointed out by the United States, as the ones that would be affected, namely El Salvador, the Republic of Honduras (hereinafter “Honduras”), and the Republic of Costa Rica (hereinafter “Costa Rica”). The Court acknowledged that if one of the said states were affected by a possible outcome of the case, then the reservation would have to be taken into account. The Court first analyzed El Salvador, due to its clear proximity to the merits of the case, and concluded that it could be affected by any decision related to Nicaragua’s claims that the United States violated Article 2, Paragraph 4, of the UN Charter,12 and Article 18,13 Article 20,14 and Article 2115 of the OAS Charter. Therefore, the Court concluded that the reservation to the declaration was valid for the case, but did not compromise the other sources of international law presented by 10

Convention on Rights and Duties of States adopted by the Seventh International Conference of American States (Montevideo Convention on Rights and Duties of States) (Montevideo, 26 December 1933, 165 UNTS 3802). 11 Convention concerning the Duties and Rights of States in the event of Civil Strife, adopted by the VIth International Conference of American States (Havana Convention on the Rights and Duties of States in the Event of Civil Strife) (Havana, 20 February 1928, 134 UNTS 3082). 12 Article 2, Paragraph 4 of the United Nations Charter states that: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” 13 Article 18 of the Organization of American States Charter rules that: “Respect for and the faithful observance of treaties constitute standards for the development of peaceful relations among states. International treaties and agreements should be public.” 14 Article 20 of the Organization of American States Charter provides that: “No state may use or encourage the use of coercive measures of an economic or political character in order to force the sovereign will of another state and obtain from it advantages of any kind.” 15 Article 21 of the Organization of American States Charter reads as follows: “The territory of a state is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another state, directly or indirectly, on any grounds whatever. No territorial acquisitions or special advantages obtained either by force or by other means of coercion shall be recognized.”

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Nicaragua, which it must apply according to Article 38 of the Statute of the Court.16 After settling the question of jurisdiction, the Court moved on to the merits of the case. This case presents a unique situation already mentioned above: the absence of a party during the proceedings on its merits. Such a situation, as unusual and unwelcome to the administration of justice as it is, is foreseen in Article 53 of the Statute of the Court.17 This provision allows the party that did not refuse to appear before the Court to request the latter to decide in its favor. However, before deliberating in this sense, the Court must be satisfied with the merits of the claim. Since the Court could not be sure of such merits, it demanded both written and oral proceedings on the matter, so as to provide Nicaragua with the opportunity to present its arguments. On these occasions the Court also expected the United States to participate by fixing time limits for the submission of its written statements, although it never did.

A) Nicaragua’s Arguments In order to prove that the United States violated international law, Nicaragua needed to persuade the Court to attribute responsibility to it for the occurrence of certain events. In other words, Nicaragua, in addition to specifying the facts related to the dispute, had to prove that such events were connected to the United States to some extent. Thus, Nicaragua presented facts that it considered to be the responsibility of the United States, both through direct and indirect actions. Concerning the first, direct ones, Nicaragua presented three types of actions related to several different events. First, the party claimed that the 16

Article 38 of the Statute of the Court states the following: “1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.” 17 Article 53 of the Statute of the Court reads as follows: “1. Whenever one of the parties does not appear before the Court, or fails to defend its case, the other party may call upon the Court to decide in favour of its claim. 2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37, but also that the claim is well founded in fact and law.”

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United States personnel and what the American Central Intelligence Agency (hereinafter “CIA”) called Unilateral Controlled Latino Assets (hereinafter “UCLAS”) – Latinos who were not from Nicaragua and were paid to act under the direct order of the United States’ military or intelligence staff – were responsible for the mining that happened in Nicaraguan ports in February and March 1984. These mines destroyed several vessels and fishing boats, injured 14 people, and caused two deaths. Although responsibility for the mining was taken by the ARDE, Nicaragua still contends that it should be attributed to the United States and UCLAS. This contention was made based on the announcement of 10 April 1984 by the United States Senate communicating President Reagan’s approval of a plan for the mining of Nicaraguan ports before the attacks of February and March 1984. President Reagan denied such a plan and responsibility for it in a statement made on 28 May 1984. Furthermore, Nicaragua attributed responsibility to the United States for the occurrence of several other events18 based on press reports and declarations. President Reagan refused to comment on the United States’ involvement, stating that the government had the right to avoid declarations that might disclose their actions to their opposition. Nicaragua also complained that the United States violated its airspace by performing overflights with the purpose of acquiring intelligence and exerting psychological pressure on the Nicaraguan government and population. Specifically, it pointed to three types of overflights: highflying overflights with the purpose of intelligence reconnaissance, lowlevel flights to intimidate the Nicaraguan population, and flights with the purpose of supplying contras in the field. The claim that this first category comprised acts related to the United States’ government was based on a statement by the United States’ representative at the Security Council of 25 March 1982, in which he recognized that the state undertook such flights in order to verify Nicaragua’s interventions in states allegedly threatened by Nicaragua. In relation to the low-level flights that caused sonic booms intimidating the Nicaraguan population, Nicaragua presented press reports testifying to the existence of such flights and the United States’ connection to them. The declaration, for instance, of Nicaraguan Defense Ministry officials, affirmed that the plane responsible for these flights was an American plane. Finally, concerning the supply flights for contras, Nicaragua did not offer specific evidence other than that the United States was in fact responsible, although it presented evidence that 18

Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 48, Paragraph 81.

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planes for such a purpose were made available by the government of the United States. Nicaragua also attributed responsibility to the United States for directly carrying out joint maneuvers with Honduras from 1982 to 1985. In order to support such a claim, and considering that the occurrence of such events was not concealed, Nicaragua presented newspaper reports communicating these activities and attributing responsibility to the United States. Beyond the direct activities mentioned above that Nicaragua considers the responsibility of the United States, it contended that the latter was also responsible for indirect actions such as the creation and control of the contras. Concerning the creation of the contras, although Nicaragua acknowledged the existence of an armed opposition to the new government before the intervention of the United States, it alleged that the number of contras increased dramatically after the United States began to provide financial aid and practical assistance. In fact, Nicaragua also claimed that the United States controlled the armed position exactly because the latter relied on the United States financially and strategically. Nicaragua noted as well that this financial aid was at first made without public knowledge, but that it soon became the subject of discussion between the American Senate and House of Representatives concerning legislative provisions. The involvement of the CIA in financial aid and other assistance to the FDN was exposed in the testimony of former FDN leader, Mr. Chamorro. Even though there was no evidence of this kind to support the assistance given to the ARDE by the United States, Nicaragua presented several press reports pointing to it. Moreover, to support the argument that the contras were strategically dependent on the United States, Nicaragua exposed a manual of psychological operations produced by the CIA. This manual encouraged a series of violent and strategic actions, such as the shooting of civilians in certain situations and the “neutralization” of influential people, namely judges, officials, etc. It was diffused throughout the FND, reaching approximately 2,000 of its members. Finally, Nicaragua accused the United States of having indirectly intervened in its internal affairs by adopting several economic measures against it. The acts referred to by Nicaragua included the termination of economic aid of more than $100 million for no apparent reason, since Nicaragua proved that this aid was not being redirected to support acts of violence and terrorism. Beyond this bilateral measure, Nicaragua also contended that the United States opposed and blocked loans from the Bank for International Reconstruction and Development and the Inter-American

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Development Bank, and reduced its imports of Nicaraguan sugar by 90 per cent, a loss of $15 to $18 million for the country.

B) United States’ Arguments Although the United States did not participate in the merits phase of the proceedings, due to the principle of equity, the Court took into consideration the arguments presented by this party during the jurisdictional phase of the case. The United States alleged that it had solely responded to the request of El Salvador, Honduras, and Costa Rica. That is to say that the right to collective self-defense justified the United States in its actions towards Nicaragua. According to the United States, not only did Nicaragua provide support to violent guerrillas in the mentioned neighboring countries, it also carried out cross-border military attacks, specifically on Honduras and Costa Rica. This allegation was endorsed by the testimony of United States Secretary of State at the time, George P. Schultz, quotes from two of El Salvador’s Presidents, Magaña and Duarte, and press reports and official publications put out by the government of the United States. The United States also contended in Court that Nicaragua, by carrying out the alleged activities, violated the 1979 Resolution of the OAS Meeting of Consultation. Furthermore, in order to exclude the unlawfulness of its acts, the United States Congress also claimed that the activities supported by Nicaragua violated human rights, and therefore, that the latter should be held responsible.

V. Judgment While delivering its judgment, the Court first considered the abovementioned arguments to determine which of the alleged events actually constitute violations, and who was ultimately responsible for them. Having done so, the Court then decided which source of international law applied to the case. After analyzing Nicaragua’s arguments, the Court decided that the United States was responsible for mining and its alleged consequences. It based its decision on the fact that, besides other extensive evidence, the President of the United States authorized the CIA to establish mines in Nicaraguan ports. The CIA was also responsible for instructing and paying people to carry out mining there. Regarding the other precise events for which Nicaragua attributed responsibility to the United States, the Court could not prove American

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involvement19 in each case due to a lack of evidence. Still, it considered the United States to be responsible for most of them, since even if its personnel did not execute the acts themselves, there was sufficient evidence to prove that they planned, directed, and supported operations carried out by UCLAS. Concerning Nicaragua’s arguments regarding overflights carried out by the United States, the Court found that high-altitude flights, admitted by the United States to have occurred through early 1982, could have continued in the following years as alleged by Nicaragua. The Court based its decision on the fact that the reason given by the United States for these flights of reconnaissance, namely Nicaragua’s intervention in third states, did not diminish or cease after 1982. With regards to low-level flights that caused sonic booms, frightening the Nicaraguan population, the Court considered both the occurrence of these flights and United States’ responsibility for their execution to be public knowledge. In the case of flights supplying the contras, however, the Court was unable to attribute responsibility to the United States, since, according to the evidence supplied, these flights were carried out mostly if not exclusively by the contras themselves. The fact that these flights were performed by aircrafts made available by the United States was itself insufficient for the Court to attribute responsibility to the latter. Having judged Nicaragua’s claims concerning direct activities carried out by the United States, the Court then stated its views on the issue of maneuvers. It decided that these events were public knowledge and that the United States was responsible for them. Moving on to an analysis of the indirect activities that Nicaragua claimed the United States were responsible for, the Court extensively examined different sources of evidence to determine, firstly, whether the latter could really be considered responsible for the creation and control of the contras. The Court was not satisfied that the United States created the contras. From its point of view, the United States took advantage of the already existent armed opposition in Nicaragua, which it incorporated in its policies vis-à-vis the latter. Regarding the control of contras by the United States, the Court considered that although its financial aid was clearly established by the evidence provided, it was not sufficient to prove the contras’ complete dependence on the United States. Moreover, the Court concluded that even if broad support given by the United States beyond financial aid was decisive in operations carried out by the contras, 19

Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 50, Paragraph 85.

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it was itself insufficient to attribute responsibility to the United States for their acts. The justification given by the Court on this decision was that even though the United States had extensive control over the group, it was not enough to prevent members of the contras from committing acts contrary to international law. Therefore, the United States could not be held responsible for acts it could not have prevented. Finally, the Court considered valid Nicaragua’s argument regarding the measures of economic nature adopted by the United States against Nicaragua as a form of retaliation. The Court based its decision on the grounds that such measures were facts of public knowledge. Before analyzing the justification of collective self-defense presented by the United States, the Court determined whether the events that it considered Nicaragua to be responsible for were in fact attributed to the latter or not. The main question here had to do with Nicaragua’s presumed support of guerillas in El Salvador. After examining extensive evidence and Nicaragua’s counter-arguments, the Court decided that although it was proven that Nicaragua performed such activities up until early 1981, after this date the evidence supplied only proved the occurrence of these activities on an insignificant scale. Further, still based on the evidence presented, these activities could not be attributed to the government of Nicaragua. This decision was based on the fact that if there had been a significant flow of arms from Nicaragua to El Salvador, the United States, being much better equipped and concerned as it claimed to be with the infiltration of weapons into El Salvador, would have been able to supply the Court with more specific evidence than it did. In this sense, if the United States was unable to prove the occurrence of these activities, the Court presumed that they either had not happened or only on a minor scale. If they had happened on a minor scale, the Court considered that Nicaragua was not responsible, since it was willing to cease such activities provided it possessed the technology necessary to track where and how such activities were carried out. Nicaragua, however, did not defend itself in the face of familiar accusations related to Costa Rica and Honduras when it had the chance. For this reason, the Court considered Nicaragua responsible for certain trans-border military incursions into the territory of Honduras and Costa Rica. Finally, concerning claims of violations of the 1979 Resolution of the OAS Meeting of Consultation by Nicaragua, the Court was unable to further examine this allegation, since it could not determine whether it constituted a political argument or a legal justification. Having determined that which could actually be established by the parties’ arguments, the Court proceeded to the question of which sources

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of international law were applicable to the case. The first point it had to confront was the United States’ allegation that the Court did not have jurisdiction to apply customary international law in a multilateral treaty to which the United States and Nicaragua were parties, due to the abovementioned reservation made on its declaration of acceptance of jurisdiction and the principle of pacta sunt servanda. The Court, however, considered that customary international law and what it refers to as treaty law to exist separately. To support its position, the Court first argued that even if the same matter is addressed both in treaty law and customary law, its applicability and interpretation are different. Moreover, the Court found that it is not rare in treaty law to merely codify a custom in the international scenario, as established in the North Sea Continental Shelf cases.20 Therefore the Court concluded that it could apply customary law in the case without going against the United States’ reservation to the multilateral treaties. After clarifying the question of whether or not to use customary law, the Court went on to determine the customary law applicable to the case. It considered customary law, in accordance with Article 38 of its Statute, as evidence of a general practice accepted as law, which may or may not be comprised in treaties. In this sense, the Court found that the customary international law that applied to the case was: the prohibition of the use of force, the right to collective self-defense, the principle of respect for state sovereignty, and some principles of humanitarian law. Furthermore, the Court concluded that the only treaty applicable, considering the United States’ jurisdictional reservation, would be the Treaty of Friendship. Having established the law applicable to the case, the Court determined that the events that it earlier attributed responsibility for constituted breaches of the law. First, it took into consideration Nicaragua’s allegations regarding the use of force by the United States, claims that the latter justified as the exercise of self-defense. On this issue, the Court demonstrated that both the prohibition of the use of force and the exercise of collective self-defense are well established in customary law. However, the Court noted that the exercise of collective self-defense, being the sole exception to the prohibition of the use of force, had to fulfill certain requirements in order to be considered as such. These requirements were, first and most importantly, that the exercise of collective self-defense should be a response to an armed attack to a third state; secondly, that the third state should request this state to act in its defense; and thirdly, that to 20

North Sea Continental Shelf, Judgment (Germany/Denmark) I.C.J. Reports 1969 and North Sea Continental Shelf, Judgment (Germany/Netherlands) I.C.J. Reports 1969.

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exercise this right, the state should report it to a political international body. It is important to highlight that the Court concluded that even though this last requirement was included in the UN Charter, meaning that it could not be applied due to the United States’ mentioned reservation, it still constituted customary law, and therefore should have been fulfilled by the United States as well. The Court concluded that the United States’ allegation of self-defense was inappropriate. This conclusion was based on the fact that even if Nicaragua were held responsible for actions taken against El Salvador, Costa Rica, and Honduras, it would still not be considered responsible for an armed attack. Furthermore, in accordance with the evidence supplied to the Court, the period in which Nicaragua was most likely to have supported the flow of arms to El Salvador – though not proven– was before early 1981. The actions taken by the United States and justified as collective self-defense occurred months after these actions ceased. The Court therefore found that it was not necessary to carry out such actions. Moreover, concerning the second requirement for collective self-defense, namely that the third state should request this state to act in its defense, the Court noted that El Salvador was the only state to request that the United States act in collective self-defense, alleging that it suffered armed attacks from Nicaragua. Nonetheless, the Court did not consider this request to be relevant, since it was made long after the activities that the United States here justified as collective self-defense began. Costa Rica and Honduras did not request the United States to act in their defense at any point. For these reasons, the Court decided that the United States did not fulfill the requirements for collective self-defense and the exceptional use of force according to the terms above. Before reaching its conclusion, the Court analyzed the possibility of another justification that would exclude the unlawfulness of activities carried out by the United States. In this sense, it questioned whether a state could act in collective self-defense, using force against another state’s unarmed intervention. The Court ruled against this type of justification, since the exception of the use of force can only be alleged to cease actions in which force is being used unlawfully. Therefore, the Court decided that the activities involving the use of force for which the United States was considered responsible constituted a breach of the prohibition of the use of force. After rejecting the United States’ main argument, the Court then analyzed its other allegations as to the lawfulness of its actions. Here too, the Court rejected the fact presented by the United States concerning the non-correspondence of Nicaragua’s acts to the 1979 Resolution of the OAS Meeting of Consultation. This decision was supported by several

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arguments. On the occasion of the above-mentioned resolution, Nicaragua’s government stated that although it invited the OAS to supervise its political sphere, Nicaraguans alone were the ones to decide upon and carry out domestic policy. Moreover, the Court considered that a political pledge could not be considered a legal commitment. Beyond this point, the Court made it clear that even if it could be considered a breach of a legal commitment, the United States did not have the right to intervene in the name of the OAS, and much less to do so through the use of force (since the Organization itself would be prevented from doing so). The Court considered separately Nicaragua’s legal commitment towards the OAS and the question of whether or not it had violated human rights. This separation is due to the Court’s understanding that a state’s lack of legal commitment does not signify impunity in the face of human rights violations. However, the Court also came to reject this allegation based on the fact that Nicaragua took part in Conventions on the matter, including the Inter-American Commission on Human Rights. Moreover, the Court reaffirmed its view that even if Nicaragua had violated human rights, it would still not allow the United States to act with the use of force. The Court considered this an inappropriate method for supervising and ensuring the respect for such rights. The last consideration related to the United States’ arguments that could lead to the exclusion of the unlawfulness of its acts concerned Nicaragua’s allegedly excessive militarization. The Court noted in this respect that there is no international law of any source that limits the amount of armament that a sovereign state is allowed to have in its territory. For this reason, the Court concluded that the United States did not present, nor was the Court able to find legal justification for, the exclusion of the unlawfulness of the United States’ acts towards Nicaragua. The Court continued to deliver its judgment by considering Nicaragua’s claims based on the related principles of respect for state sovereignty and non-intervention. The principle of respect for state sovereignty concerns the right of a state to exercise its sovereignty within its territory, internal waters, territorial sea, and the airspace above its territory. The principle of non-intervention, for its part, is the right of every sovereign state to conduct both internal and external affairs without suffering the interference of other states. Nicaragua claimed that the United States carried out activities in violation of these two principles. The overflights attributed to the United States, for instance, were considered by Nicaragua to be a breach of the principle of respect for state sovereignty, while the economic measures and financial and strategic

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support to the contras were considered to be violations of the principle of non-intervention. Nicaragua’s allegations concerning the violations of the principle of non-intervention were based on claims that the sole purpose of the United States’ actions was to overthrow Nicaragua’s government. These claims were supported by the statement by the President of the United States to Congress on 10 April 1985, in which he announced: “United States’ policy toward Nicaragua […] has consistently sought to achieve changes in Nicaraguan government policy and behavior.”21 Moreover, the Court considered that the United States’ support of the military and paramilitary activities of the contras was in itself a breach of the principle of non-intervention, given the fact that the purpose of this armed group was to overthrow the Nicaraguan government. For the reasons outlined above, the Court concluded that the United States did in fact violate the principles of respect for state sovereignty and non-intervention. It noted, however, that the Court was not able to decide upon the matter of the United States’ economic measures, first because it is not comprised in customary law and second because the Court cannot analyze international economic instruments, such as the General Agreement on Tariffs and Trade,22 due to the United States’ reservation to the jurisdictional clause. Furthermore, the Court highlighted the fact that some of the activities carried out by the United States, and that Nicaragua alleged to be in breach of the principle of the use of force, also violate the principles of respect for state sovereignty and non-intervention, as is the case of direct attacks on Nicaraguan ports, for instance. Finally, as the last point to by analyzed under customary international law, the Court examined humanitarian law allegations. Here, the Court recalled Nicaragua’s claim that the United States was responsible for acts committed by contras in violation of human rights. As outlined above, the Court found that the United States could not be held responsible for acts performed by the contras ipso facto. It noted, however, that the dissemination of a CIA-produced manual of psychological operations most likely incited the contras to act in breach of humanitarian law and, thus, that the United States can be held responsible for these violations. Having established the breaches of customary law, the Court continued to deliver its judgment by examining the treaty law applicable to the case, namely the Treaty of Friendship signed by the disputing parties. 21

Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 124, Paragraph 240. 22 General Agreement on Tariffs and Trade (GATT) (Geneva, 30 October 1947, 55-62 UNTS 814).

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Nicaragua’s first claim concerning such a treaty was that the United States’ actions violated its object and purpose. Since there is no provision in the said treaty that specifically imposes to the parties the duty to comply with the object and purpose of the treaty, Nicaragua contented that this did not breach the treaty itself. Instead, the party alleged that it constituted a violation of customary law, mainly based on the principle of pacta sunt servanda. In this sense, the Court made it clear that it was only able to examine this claim because its jurisdiction for the case did not relate solely to Article XXIV of the treaty, but also to the clause of compulsory jurisdiction in Article 36 of the Statute of the Court. The Court could not adjudge the noncompliance of the purpose of the Treaty of Friendship if this treaty was its only basis of jurisdiction, because if ever the Court found that the party did violate the purpose of the treaty, then the treaty itself would not be a valid basis of jurisdiction. Before considering the merits of Nicaragua’s allegation, the Court analyzed whether claims on this treaty could be admissible provided Article XXIV, which establishes the need of parties to attempt to resolve any dispute arising from the treaty through diplomatic negotiations. Despite the fact that the present dispute did not make use of this resource, the Court found that it could still examine Nicaragua’s claims, since it considered having to follow diplomatic procedures before taking a dispute to the ICJ to be excessively formalistic. Having cleared the question of jurisdiction, the Court proceeded to analyze the merits. Here, the Court examined actions taken by the United States towards Nicaragua and concluded that its activities did not violate the object and purpose of the treaty in question. The activities not considered to breach the agreement are mainly the ones the Court had attributed to the contras (and not imputable to the United States) and economic measures. The latter were not considered unlawful for different reasons: the 90 per cent cut in sugar was not considered a calculated act to violate the purpose of the treaty; economic aid was always a condition of the United States’ valuation of Nicaragua’s political behavior; and finally, opposition to the loans was not linked enough to the treaty for the Court to consider it a breach. The second allegation made by Nicaragua concerning the Treaty of Friendship has to do with a violation of Article XIX, Paragraph 3.23 This 23 Article XIX, Paragraph 3 of the Treaty of Friendship provides that: “3. Vessels of either party shall have liberty, on equal terms with vessels of the other party and on equal terms with vessels of any third country, to come with their cargoes to all ports, places and waters of such other party open to foreign commerce and navigation. Such vessels and cargoes shall in all respects be accorded national

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Article prevents a party from stipulating different rules for vessels of states parties to the treaty and vessels from other states. Nicaragua contends that the United States violated this provision insofar as it prohibited Nicaraguan vessels to enter the United States’ ports in an Executive Order of 1 May 1985. The Court deliberated that Nicaragua’s claim was valid, even considering the fact that the United States terminated the treaty the following day in an Executive Order. By terminating a treaty, a party would usually no longer be bound to it. However, this treaty required, in Article XXV, one year’s notice for termination. Therefore, the United States could not have applied such a measure beforehand. Having established that the United States violated both the purpose of the treaty and its provision, the Court moved on to question whether the unlawfulness activities that constituted violations could be excluded by the exceptions comprised in Article XXI24 of the treaty. These exceptions would apply if the measures taken by the United States could be classified as necessary to the maintenance or restoration of international peace and security. The Court considered that this exception did not apply due to the fact that the activities allegedly carried out by Nicaragua did not pose a threat to international peace and security in 1985 (the year the measures constituting a breach of the treaty occurred). Therefore, the United States’ actions could neither be considered necessary nor, subsequently, unlawful.

treatment and most-favored-nation treatment within the ports, places and waters of such other party; but each party may reserve exclusive rights and privileges to its own vessels with respect to the coasting trade, inland navigation and national fisheries.” 24 Article XXI of the Treaty of Friendship states that: “1. The term ‘national treatment’ means treatment accorded within the territories of a party upon terms no less favorable than the treatment accorded therein, in like situations, to nationals, companies, products, vessels or other objects, as the case may be, of such party. 2. The term ‘most-favored-nation treatment’ means treatment accorded within the territories of a party upon terms no less favorable than the treatment accorded therein, in like situations, to nationals, companies, products, vessels or other objects, as the case may be, of any third country. 3. As used in the present Treaty, the term ‘companies’ means corporations, partnerships, companies and other associations, whether or not with limited liability and whether or not for pecuniary profit. Companies constituted under the applicable laws and regulations within the territories of either party shall be deemed companies thereof and shall have their juridical status recognized within the territories of the other party. 4. National treatment accorded under the provisions of the present treaty to companies of Nicaragua shall, in any state, territory or possession of the United States of America, be the treatment accorded therein to companies created or organized in other states, territories, and possessions of the United States of America.”

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For these reasons the Court concluded that the United States was imputable for the violations alleged by Nicaragua in relation to the Treaty of Friendship. Finally, considering all of the arguments exposed above, the Court voted as follows: “(1) By eleven votes to four, Decides that in adjudicating the dispute brought before it by the application filed by the Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty reservation" contained in proviso (c) to the declaration of acceptance of jurisdiction made under Article 36, paragraph 2, of the Statute of the Court by the government of the United States of America deposited on 26 August 1946; [...] (2) By twelve votes to three, Rejects the justification of collective self-defense maintained by the United States of America in connection with the military and paramilitary activities in and against Nicaragua the subject of this case; [...] (3) By twelve votes to three, Decides that the United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another state; [...] (4) By twelve votes to three, Decides that the United States of America, by certain attacks on Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983; an attack on Corinto on 10 October 1983 ; an attack on Potosi Naval Base on 4/5 January 1984 ; an attack on San Juan del Sur on 7 March 1984 ; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984 ; and an attack on San Juan del Norte on 9 April 1984 ; and further by those acts of intervention referred to in subparagraph (3) hereof which involve the use of force, has acted, against Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another state; [...] (5) By twelve votes to three, Decides that the United States of America, by directing or authorizing overflights of Nicaraguan territory, and by the acts imputable to the United States referred to in subparagraph (4) hereof, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to violate the sovereignty of another state; [...] (6) By twelve votes to three, Decides that, by laying mines in the interna1 or territorial waters of the Republic of Nicaragua during the first months of 1984, the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under customary international law not to use force against

1. Military and Paramilitary Activities in and against Nicaragua another state, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce; [...] (7) By fourteen votes to one, Decides that, by the acts referred to in subparagraph (6) hereof, the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua signed at Managua on 21 January 1956; [...] (8) By fourteen votes to one, Decides that the United States of America, by failing to make known the existence and location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its obligations under customary international law in this respect; [...] (9) By fourteen votes to one, Finds that the United States of America, by producing in 1983 a manual entitled Operaciones sicológicas en guerra de guerrillas, and disseminating it to contra forces, has encouraged the commission by them of acts contrary to general principles of humanitarian law; but does not find a basis for concluding that any such acts which may have been committed are imputable to the United States of America as acts of the United States of America;[...] (10) By twelve votes to three, Decides that the United States of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object and purpose the Treaty of Friendship, Commerce and Navigation between the parties signed at Managua on 21 January 1956; [...] (11) By twelve votes to three, Decides that the United States of America, by the attacks on Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has acted in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the parties signed at Managua on 21 January 1956; [...] (12) By twelve votes to three, Decides that the United States of America is under a duty immediately to cease and to refrain from al1 such acts as may constitute breaches of the foregoing legal obligations; [...] (13) By twelve votes to three, Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for al1 injury caused to Nicaragua by the breaches of obligations under customary international law enumerated above; [...] (14) By fourteen votes to one,

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Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for al1 injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerce and Navigation between the parties signed at Managua on 21 January 1956; [...] (15) By fourteen votes to one, Decides that the form and amount of such reparation, failing agreement between the parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case; [...] (16) Unanimously, Recalls to both parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law.”25

1.2. Timeline DATE

4 April 1984

13 April 1984

25

DOCUMENT

CONTENT

Press Release No. 1984/10

Communicates the submission to the ICJ of an application by Nicaragua instituting proceedings against the United States. On this occasion, Nicaragua requested the Court to order several provisional measures and presented its first submissions.

Press Release No.1984/12

Presents Carlos Arguello Gomez and Davis R. Robinson as the agents representing Nicaragua and the United States, respectively, before the Court on the present case.

Military and Paramilitary Activities in und against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, p. 146, Paragraph 292.

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16 April 1984

18 April 1984

28 April 1984

121

Press Release No.1984/13

Exposes the appeal made by the President of the Court requesting the parties’ cooperation regarding any future Order that the Court may deliver relating to Nicaragua’s requested provisional measures.

Press Release No.1984/14

Notifies the scheduling of a Public Hearing, to be held at the Peace Palace on 25 April 1984, concerning Nicaragua’s request of protectoral provisional measures. Also provides practical information for the press.

Press Release No.1984/16

Reports what took place at the Public Hearings held on 25 April 1984 and 27 April 1984. On the first day of the sitting, Nicaragua’s representatives presented their observations regarding the requested provisional measures and, on the second day, the United States’ representatives delivered their statement on the subject. Moreover, the United States requested the Court to remove the case from the list, alleging that the Court had no jurisdiction to adjudge it.

122

7 May 1984

10 May 1984

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Press Release No.1984/17

Communicates that the Court will announce its decision on the matters brought forth by the parties so far, namely Nicaragua’s request for provisional measures and the United States’ request for removal of the case from the list. Also provides practical information for the press.

Order and Press Release No. 1984/18

Exposes the Court’s decision regarding Nicaragua’s request for provisional measures and the United States’ request to remove the case from the list due to the Court’s lack of jurisdiction. As for the first matter, the Court decided to indicate the requested provisional measures, putting them under continuous review until the case is decided. Furthermore, the Court rejected the United States’ request to remove the case from the list, alleging that although it is not ascertained, the jurisdiction of the Court might be found in the parties’ declarations. However, due to such uncertainty, the Court determined that the written proceedings should begin by dealing with the question of the Court’s jurisdiction and the admissibility of the application.

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14 May 1984

15 May 1984

2 July 1984

16 August 1984

123

Order

Fixes the time limits for the submission of written proceedings on the question of jurisdiction and admissibility, namely Nicaragua’s Memorial and the United States’ Counter-Memorial, for 30 June 1984 and 17 August 1984, respectively.

Press Release No.1984/20

Enhances what was determined in the Order of 14 May 1984, namely the time limits for the filing of written proceedings by the parties on the question of jurisdiction and admissibility.

Press Release No.1984/23

Communicates Nicaragua’s submission of a Memorial concerning the jurisdiction of the Court and admissibility of its application, within the deadline fixed in the Order of 14 May 1984. Also recalls the time limit fixed for the filing of the United States’ Counter-Memorial as 17 August 1984.

Press Release No.1984/25

Announces El Salvador’s filing of a declaration requesting permission to intervene in the case based on Article 63 of the Statute of the Court. Also shows that the Court fixed a time limit for the parties to present their observations on the matter. In case of objection, the Court declared that the parties and El Salvador would be heard. Otherwise, it would decide on the admissibility of the intervention.

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17 August 1984

27 September 1984

4 October 1984

Press Release No.1984/26

Reports the filing, by the United States of its Counter-Memorial regarding the Court’s jurisdiction and the application’s admissibility, within the time limits established in the Order of 14 May 1984.

Press Release No.1984/28

Notifies the scheduling of a Public Hearing to be held at the Peace Palace on 8 October 1984 relating to the jurisdiction of the Court and admissibility of Nicaragua’s application. Also provides for a brief summary of Nicaragua’s arguments on the issue and recalls El Salvador’s request to intervene. Moreover, the document presents the chosen judge ad hoc on behalf of Nicaragua, Claude-Albert Colliard.

Order

Announces the Court’s decision regarding El Salvador’s request for permission to intervene. In this case, the Court denied El Salvador permission, alleging that the request for intervention presumes that the Court had jurisdiction to deal with the case, and that Nicaragua’s application was admissible, questions that had not yet been decided by the Court at this phase of the proceedings. For the same reason, the Court decided not to hold a Public Hearing on the matter.

1. Military and Paramilitary Activities in and against Nicaragua

5 October 1984

8 October 1984

10 October 1984

125

Press Release No.1984/30

Summarizes what was established in the Order of 4 October 1984 concerning the request for permission to intervene submitted by El Salvador.

Press Release No. 1984/32

Publicizes the opening of the oral proceedings on the questions of jurisdiction and admissibility by the Nicaragua’s presentation of its initial arguments. On this occasion, the party’s chosen judge ad hoc made his solemn declaration and the President of the Court recalled what was fixed in the Order of 4 October 1984.

Press Release No.1984/33

Announces that Nicaragua presented and concluded its oral statements during the Public Hearings held at the Peace Palace on 8 October 1984, 9 October 1984, and 10 October 1984. Also establishes that the United States would begin its oral sustentation on the matter of jurisdiction and admissibility at the public sitting scheduled for 15 October 1984.

126

18 October 1984

11 November 1984

26 November 1984

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Press Release No.1984/36

Declares the end of oral proceedings concerning the questions of jurisdiction and admissibility. States that the United States presented its arguments during the Public Hearings of 15 and 16 October 1984, and that during the Public Hearings of 17 and 18 October 1984, Nicaragua and the United States presented their Reply and Rejoinder, respectively. The Court thereby declared the beginning of its deliberation on the matter.

Press Release No.1984/38

Announces the occurrence of a public sitting on 26 November 1984, at which point the Court will deliver its judgment on the questions of whether it has jurisdiction to deal with the present case, and whether Nicaragua’s application against the United States is admissible.

Press Release No.1984/39

Summarizes the Court’s decision on its jurisdiction of the case as well as its decision regarding the admissibility of Nicaragua’s application. On these matters, the Court decided, by 15 votes to one, that it has jurisdiction to adjudge the case, and agreed unanimously that Nicaragua’s application is admissible.

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127

Shows that on 18 January 1985 the agent of the United States, after participating in a meeting with the President of the Court and the agent of Nicaragua on 27 November 1984, sent a letter to the Register of the Court declaring that the United States still held the view that the Court had no jurisdiction to deal with the case and that Nicaragua’s application was inadmissible, and therefore would no longer participate in the proceedings of the case. The document also states that on 22 January 1985 Nicaragua’s agent communicated to the Court that it maintained its claims and that it would benefit from its rights established in Article 53 of the Statute of the Court. Regarding these events, the Court decided to carry on with the proceedings and fixed the time limits for the submission of the written proceedings by the parties to 30 April 1985 for Nicaragua’s Memorial and 31 May 1985 for the United States’ Counter-Memorial.

22 January 1985

Order

23 January 1985

Press Release No.1985/1

Reinforces what was established in the Order of 22 January 1985.

Press Release No.1985/14

Reports the opening of the oral proceedings concerning the merits of Nicaragua’s claims on a Public Hearing to be held at the Peace Palace on 12 September 1985.

26 June 1985

128

10 September 1985

18 September 1985

23 September 1985

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Press Release No.1985/16

Recalls the occurrence of the Public Hearing set for 12 September 1985, in which the oral proceedings should begin. Also provides a brief history of the proceedings related to the case so far, as well as practical information for the press concerning the said Public Hearing.

Press Release No.1985/17

Reports that Nicaragua initiated oral proceedings by presenting witnesses who testified between 12 and 17 September 1985. During the Public Hearing held on 18 September 1985, Nicaragua’s representatives began their oral statements, which will continue through the following days. The United States was not represented at any of the Public Hearings so far.

Press Release No.1985/18

Shows that between 18 and 20 September 1985, Nicaragua presented its allegations. Also declares the end of the oral proceedings on 20 September 1985, an occasion on which Nicaragua alone presented its final submissions due to the omission of the United States at the proceedings. The Court thereby declared that it would begin its deliberation.

1. Military and Paramilitary Activities in and against Nicaragua

13 June 1986

27 June 1986

18 November 1987

129

Press Release No.1986/7

Announces the Public Hearing to be held at the Peace Palace on 27 June 1986, when the Court will deliver its judgment on the merits of the case.

Press Release No.1986/8

Provides a brief summary of the judgment delivered during the scheduled Public Hearing, as well as a detailed voting of the Court in each of the matters in question on Nicaragua’s claims and submissions.

Order

Reports that the Agent of Nicaragua sent a letter to the Court requesting it to consider the nature and amount of reparation presented by Nicaragua during the proceedings. Once it declared its judgment, and since there had been no agreement by the parties on the matter, the Court itself would determine the nature and amount of reparation that the United States was obliged to pay. The Court sent such a letter to the agent of the United States, who in turn responded that it maintained its aforesaid vision that the Court did not have jurisdiction to deal with the case, and that Nicaragua’s application was inadmissible, and for these reasons it would abstain from any future proceeding. Regarding these events, the Court decided to fix time limits for the filing of written proceedings by the parties concerning the form and amount of reparation as 29 March 1988

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for Nicaragua’s Memorial, and 29 July 1988 for the United States’ Counter- Memorial. 20 November 1987

30 March 1988

1 August 1988

29 June 1990

Press Release No.1987/32

Reinforces what was established in the Order of 18 November 1987.

Press Release No.1988/7

Reports the filing, within the time limits fixed by the Order of 18 November 1987 and 29 March 1988, of Nicaragua’s Memorial concerning the form and amount of reparation.

Press Release No.1988/17

Declares that the United States did not present the CounterMemorial or, for that matter, any other communication within the time limits established by the Order of 18 November 1987 and 29 July 1988. Also provides a brief history of the proceedings.

Press Release No.1990/12

States that during a meeting requested by the President of the Court to ascertain the parties’ views on the proceeding of 22 June 1990, Nicaragua declared that it was at the time in a very complex situation that would make it difficult to decide which proceedings to follow. For this reason, the President of the Court stated that it would inform the Court and the latter would wait to fix a date for the oral proceedings.

1. Military and Paramilitary Activities in and against Nicaragua

26 September 1991

Order

27 September 1991

Press Release No.1991/28

131

Records the discontinuance of the case as requested by Nicaragua’s agent in a letter received on 12 September 1991, in which it renounced all rights regarding the continuance of the case and requested that the Court remove the case from the list. The document also provides that the legal adviser of the United States sent a letter on 25 September 1991 welcoming this request. Communicates what was established in the Order of 26 September 1991.

Bibliography ABI-SAAB, Rosemary (1987) ‘The General Principle of Humanitarian Law According to the International Court of Justice,’ International Review of the Red Cross, vol. 27. Issue 259. Pp 367-375. CHAYES, Abram (1985) ‘Nicaragua, the United States, and the World Court,’ Columbia Law Review. Vol. 85. No. 7. Pp. 1445-1482. Online. Available. http://www.jstor.org/stable/1122519 CRAWFORD, James R. (2012) ‘Jurisdiction and Applicable Law,’ Leiden Journal of International Law, 25: 471-479. DAMROSCH, Lori Fisler (2001) ‘The Impact of the Nicaragua Case on the Court and its Role: Harmful, Helpful, or in Between?,’ Leiden Journal of International Law, 25: 135-147. EISEMANN, P.M (1984) ‘L’arrêt de La C.I.J. Du 26 novembre 1984 (competénce et recevabilité) dans l’affaire des activités militaires et paramilitaires au Nicaragua et contre celui-ci,’ A.F.D.I., 30: 372-390. GILL, T. D. (1989) ‘Litigation Strategy in the Nicaragua Case at the International Court’ in Yoram Dinstein (ed) International Law at a Time of Perplexity, Dordrecht/Boston/London: Martinus Nijhoff Publishers. GREY, Christine (2003) ‘The Use and Abuse of the International Court of Justice: Cases Concerning the Use of Force After Nicaragua,’ European Journal of International Law, 14: 867-905.

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HOSS, Cristina, VILLALPANDO, Santiago, and SIVAKURAMAN, Sandesh (2012) ‘Nicaragua: 25 Years Later,’ Leiden Journal of International Law, 25: 131-133. JR., Frederic L. Kirgis (1985) ‘Nicaragua V. United States as a Precedent,’ The American Journal of International Law. Vol. 79. No. 3. Pp. 652657. Online. Available. http://www.jstor.org/stable/2201892 KOHEN, Marcelo (2012), ‘The Principle of Non-Intervention 25 Years after the Nicaragua Judgment,’ Leiden Journal of International Law, 25: 157-164. KOOIJMANS, Peter H. (1986), ‘Who tolled the Death-bell for Compulsory Jurisdiction?: some Comments on the Judgment of the ICJ in the Case concerning Military and Paramilitary Activities in and against Nicaragua (Jurisdiction of the Court and Admissibility of the Application)’ in Adriaan Bos and Hugo Siblesz (eds) Realism in LawMaking: Essays on International Law in Honour of Willem Riphagen, Dordrecht: Nijhoff, pp: 71-87. LABOUZ, M.F. (1984) ‘Affaire des activités militaries et paramilitaires au Nicaragua et contre celui-ci (Nicaragua c. États-Unis d’Amérique): ordonnance de la C.I.J. du 10 mai 1984 en indication de mesures conservatoires,’ A.F.D.I., 30: 340-371. LANG, Caroline (1990) L’affaire Nicaragua/États-Unis devant La Cour internationale de justice, Paris: L.G.D.J. LEIGHT, Monroe (1984) ‘Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) 1984 ICJ Reports 169,’ The American Journal of International Law. Vol. 78: 894-897. Online. Available. http://www.jstor.org/stable/2202203 —. (1987) ‘Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). 1986 ICJ Reports 14,’ The American Journal of International Law. 81: 206-225. LOEPER, Sabine (1985) ‘Jurisdiction of the ICJ – Admissibility of Nicaragua’s Application in Case Concerning Military and Paramilitary Action in and Against Nicaragua,’ The Cambridge Law Journal, vol. 44. Issue 2. Pp. 183-188. MARTINEZ, Carlos E. (1985) ‘Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States), 1984 I.C.J.: Judgment on jurisdiction and admissibility of Nov. 26, 1984),’ Harvard International Law Journal, 26: 622-629. MCWHINNEY, Edward (1989) ‘Historical Dilemmas and Contradiction in U.S. Attitudes to the World Court: the Aftermath of the Nicaragua

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Judgments’ in Yoram Dinstein (ed) International Law at a Time of Perplexity, Dordrecht/Boston/London: Martinus Nijhoff Publishers. PATEL, Bimal N. (2002) ‘Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. USA)’ in Bimal N. Patel The World Court Reference Guide: Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000), Hague/London/ New York: Kluwer Law International. PELLET, Alain (2012) ‘The Nicaragua Case: ‘Mafiosi’s’ and ‘Veteran’s’ Approaches Combined,’ Leiden Journal of International Law, 25: 481489. QUINTANA, Juan José (1998) ‘The Nicaragua Case and the Denunciation of Declarations of Acceptance of the Compulsory Jurisdiction of the International Court of Justice,’ Leiden Journal of International Law, 11: 97-121. REICHLER, Paul S. (2007) ‘Paul Reichler’s Rejoinder,’ The American Journal of International Law, Vol. 106, No. 3, pp. 572-58. Online. Available http://www.jstor.org/stable/10.5305/amerjintelaw.106.3.0572 —. (2012) ‘The Impact of the Nicaragua Case on Matters of Evidence and Fact-Finding,’ Leiden Journal of International Law, 25: 149-156. —. (2012) ‘The Nicaragua Case: A Response to Judge Schwebel,’ The American Journal of International Law, Vol. 106, No. 2 pp. 316-321. Online. Available http://www.jstor.org/stable/10.5305/amerjintelaw.106.2.0316 RIJPKEMA, P.P. (1989) ‘Customary International Law in the Nicaragua Case,’ Netherlands Yearbook of International Law, 20: 91-116. ROGERS, Willian D., Beat, James A. and Wolf, Christopher (1984) ‘Application of El Salvador to Intervene in the Jurisdiction and Admissibility Phase of Nicaragua v. United States,’ The American Journal of International Law. Vol. 78. No. 4. Pp. 929-936. Online. Available. http://www.jstor.org/stable/2202215 ROSENNE, Shabtai (2006), ‘Chapter 4 – Paragraph 1.55: The Military and Paramilitary in and Against Nicaragua Case’ in Shabtai Rosenne The Law and Practice of the International Court 1920-2005 – Volume I: The Court and the United Nations, Hague/London/Boston: Martinus Nijhoff Publishers. RUCZ Claude (1985) ‘L’indication de mesures conservatoires par la Cour internationale de justice dans l’affaire des activités militaires et paramilitaires du Nicaragua et contre celui-ci,’ Revue Générale de Droit International Public, vol. 89, pp. 83-111.

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SCHWEBEL, Stephen M. (2012) ‘The Nicaragua Case: A Response to Paul,’ The American Journal of International Law, Vol. 106, No. 3 pp. 582-583. Online. Available

SICILIANOS, L.A. (1984) ‘Les mesures conservatoires dans l’affaire des activités militaires et paramilitaires au Nicaragua et contre celui-ci (Nicaragua c. Etats-Unis d’Amérique),’ R.H.D.I., 37: 209-240. VERDUZCO, Alonso Gómez-Robledo (2011) Corte Internacional de Justicia: caso de las actividades militares y paralimitares en Nicaragua y contra Nicaragua: caso emblemático, México: Universidad Nacional Autónoma de México. VERHOEVEN, J. (1987) ‘Le droit, le juge et la violence. Les arrêts Nicaragua c. Etats-Unis,’ R.G.D.I.P., 91: 1159-1239. YUSUF, Abdulqawi A. (2012) ‘The Notion of ‘Armed Attack’ in the Nicaragua Judgment and its Influence on Subsequent Case Law,’ Leiden Journal of International Law, 25: 461-470.

2. BORDER AND TRANSBORDER ARMED ACTIONS (NICARAGUA V. HONDURAS/COSTA RICA), 1986

2.1. Summary These cases concern the filing of applications instituting proceedings by the Republic of Nicaragua (hereinafter “Nicaragua”), one against the Republic of Honduras (hereinafter “Honduras”) and the other against the Republic of Costa Rica (hereinafter “Costa Rica”), due to alleged armed attacks against Nicaragua from the borders of these two neighboring countries.

I. Facts The historic context in which Honduras and Costa Rica allegedly carried out activities is the same as the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).1 It involves the fall of the government of President Anastasio Somoza Debayle in July 1979 and the subsequent formation of armed opposition against the new government. The facts presented by Nicaragua in its applications for both cases (Nicaragua v. Honduras and Nicaragua v. Costa Rica) consisted of paramilitary activities carried out by contras in the borders between Nicaragua and the two states, as well as support offered by Honduras and Costa Rica. Contras was the name given to the armed opposition of the Sandinista government of Nicaragua, consisting of Nicaraguans and organized into two main groups: the Fuerza Democrática Nicaraguarense (hereinafter “FDN”) and the Alianza Revolucionaria Democrática (hereinafter “ARDE”). Nicaragua considered that the states responsible for these activities were the ones in which the activities occurred and from

1

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986.

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which the contras were acquiring support, namely Honduras and Costa Rica. The case between Nicaragua and Costa Rica was removed from the Court’s list shortly after Nicaragua’s submission of the application, while the case between Nicaragua and Honduras was carried forward. Before entering into merits, however, the International Court of Justice (hereinafter “ICJ”) was called upon to decide the admissibility of such an application as well as the basis of jurisdiction of the Court, as requested by Honduras. These matters were the subject of the first proceedings and were subject to the only judgment on the case, since upon delivery it was also removed from the Court’s list.

II. Jurisdiction A) Nicaragua’s Arguments Nicaragua attributed jurisdiction to the Court to entertain the dispute with Honduras in accordance with both Article 312 of the American Treaty on Pacific Settlement (hereinafter “Pact of Bogotá”)3 and declarations made by the parties accepting the compulsory jurisdiction of the Court in accordance with Article 36, Paragraph 14 and Paragraph 25 of its Statute. 2

Article 31 of the Pact of Bogotá reads as follow: “In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the high contracting parties declare that they 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 them concerning: (a) The interpretation of a treaty; (b) Any question of international law; (c) The existence of any fact which, if established, would constitute the breach of an international obligation; (d) The nature or extent of the reparation to be made for the breach of an international obligation.” 3 American Treaty on Pacific Settlement (Pact of Bogotá) (Bogotá, 30 April 1948, 30 UNTS 449). 4 Article 36, Paragraph 1 of the Statute of the Court states that: “1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” 5 Article 36, Paragraph 2 of the Statute of the Court provides that: “2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c.

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These documents were brought forward by Nicaragua in order to prove Honduras’s acceptance of the Court’s compulsory jurisdiction. Complementing these documents, Nicaragua presented evidence of its acceptance of the same obligation. In this sense, Nicaragua presented to the Court its declaration of unconditional acceptance of jurisdiction of the Permanent Court of International Justice from the time it was a member of the League of Nations. Nicaragua argued that such a declaration was valid according to Article 36, Paragraph 5 of the Statute of the Court,6 which states that the declaration of acceptance of the compulsory jurisdiction of the Permanent Court of International Justice may be used as a basis of jurisdiction of the ICJ. Moreover, Nicaragua recalled that the Court, in the case concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), considered valid this same Nicaraguan declaration of acceptance of the facultative clause of compulsory jurisdiction of 24 September 1929.

B) Honduras’s Arguments Honduras presented two objections to the Court in relation to the Pact of Bogotá. The first concerned the interpretation of Article 31 of the said pact. During proceedings, Honduras sustained two different interpretations of the provision. First, it alleged that, according to the text of the Article, the ratification of the provision required a declaration of acceptance of jurisdiction under Article 36 of the Statute of the Court. This declaration would define precisely the extent to which the party attributed jurisdiction of the Court. Afterwards, however, Honduras claimed that the supplementary declaration was not necessary for the effective application of Article 31 of the pact, but if the party ever submitted such a declaration, the jurisdiction granted by that article would by as extensive as the declaration itself. Honduras was persuasive on this point because on 22 May 1986, that is, before the filing of the application instituting proceedings by Nicaragua (28 July 1986), it made a reservation to its the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.” 6 Article 36, Paragraph 5 of the Statute of the Court rules that: “5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.”

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declaration of acceptance of jurisdiction. The renewed declaration provided that the same would not apply to disputes related to facts or situations originating in armed conflicts in which Honduras could be considered directly or indirectly involved. In this way, if the Court was to consider Article 31 of the Pact of Bogotá restricted to the extent of the declaration, it would have to adjudge that it did not have jurisdiction to entertain the case due to the fact that the dispute originated in armed conflict. The second objection to the jurisdiction of the Court related to the Pact of Bogotá concerns the interpretation of Article 32.7 From Honduras’s point of view, Article 31 of the treaty established the extension of the jurisdiction attributed to the Court by the parties, while Article 32 determined the conditions required for the dispute to be taken to the ICJ. Based on these classifications, Honduras alleged that, as a condition laid down by Article 32, the dispute should have been firstly submitted to a conciliation procedure, and then, if there were no solution, the parties should have established an agreement on an arbitral procedure before taking the conflict to the ICJ. In this sense, Honduras argued that Nicaragua had not fulfilled these conditions before filing the application instituting proceedings.

III. Admissibility of the Application A) Honduras’s Arguments In order to prove that Nicaragua’s application should be considered inadmissible, Honduras presented four contentions, the first two of a general nature and the other two based on the Pact of Bogotá. In its first contention, Honduras alleged that the application submitted by Nicaragua was politically inspired and an artificial request. Concerning its being politically inspired, Honduras argued that Nicaragua submitted the dispute before the Court solely to exercise pressure on other states in Central America. The point regarding the artificialness of the application was based on the idea that Nicaragua, by opening proceedings against several 7

Article 32 of the Pact of Bogotá states the following: “When the conciliation procedure previously established in the present Treaty or by agreement of the parties does not lead to a solution, and the said parties have not agreed upon an arbitral procedure, either of them shall be entitled to have recourse to the International Court of Justice in the manner prescribed in Article 40 of the Statute thereof. The Court shall have compulsory jurisdiction in accordance with Article 36, paragraph 1, of the said Statute.”

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different states (see the cases Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States of America, 1986 and Border and Transborder Armed Actions, Nicaragua v. Costa Rica, 1986), acted in bad faith and contrary to the proper functioning of international justice, since it excluded facts related to the overall regional context of conflict in Central America, which in this case was prejudicial to Honduras. The second contention Honduras presented to the Court on the admissibility of the application is that such a document was excessively vague and the facts presented were not properly detailed. To sustain this position, Honduras argued that the facts presented were not well established chronologically and temporally. Moreover, it alleged that some facts were wrongly linked as effects of other facts. In short, Honduras contended that the application did not describe the dispute it wished to submit to the Court, leaving it vague and confusing, and therefore artificial. The third contention is related to Article 2 of the Pact of Bogotá.8 This provision establishes that the dispute between signatory states should be solved by procedures determined in the treaty itself only if the parties agreed that the dispute could not be solved by direct negotiations through the usual diplomatic channels. According to Honduras’s interpretation, Nicaragua proceeded directly to submit the dispute to one of the treaty’s procedures, the ICJ, without attempting to solve the dispute by direct diplomatic negotiations, and thereby violated the said provision. The fourth and last contention put forward by Honduras regards Article 4 of the Pact of Bogotá.9 This article states that a party cannot begin a new procedure to solve a conflict without the conclusion of a former procedure to solve that same dispute. Honduras claims that Nicaragua violated this article because when it opened proceedings in Court by filing an 8

Article 2 of the Pact of Bogotá reads 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.” 9 Article 4 of the Pact of Bogotá states that: “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 procedure is concluded.”

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application on 28 July 1986, overall conflict in Central America was still being resolved by the Contadora process. Briefly summarized, the Contadora group was formed by the Republic of Colombia, the United Mexican States, the Republic of Panama, and the Bolivarian Republic of Venezuela with the purpose of contributing, through mediation, to the resolution of problems in Central America. The group started a process of mediation and negotiation with the states involved in the conflicts (including both Nicaragua and Honduras) in early 1983. Honduras considered that the Contadora process was a “special procedure” according to the terms of Article 2 of the Pact of Bogotá, and therefore, that Nicaragua initiated a new procedure in the ICJ before seeing it to its conclusion.

B) Nicaragua’s Arguments Nicaragua exposed its views in relation to the last two contentions brought before the Court by Honduras. Regarding the third contention, Nicaragua alleged that the diplomatic negotiation provided for in Article 2 is not a precondition for seeking out other procedures also determined in the treaty, such as the ICJ. It argued that diplomatic negotiation is one of the possible ways to solve a conflict between two signatory states, but not a condition for the use of other procedures. Nicaragua also contended, in relation to the fourth contention, that the Contadora process could not be considered a “special procedure” according to the terms of Articles 2 and 4 of the Pact of Bogotá in solving the conflict since the matter in dispute in the Contadora process was different from the one brought before the ICJ.

IV. Judgment The Court began its judgment by analyzing whether it had jurisdiction or not, since it would only be necessary to consider admissibility if it adjudged that it had jurisdiction to entertain the dispute at hand. Nicaragua’s arguments on the matter of jurisdiction were not given any special attention by the Court since they constituted mere facts and not an interpretation of them, as did the Honduran arguments. For this reason, the Court moved on directly to consider Honduras’s arguments. The first of Honduras’s objections concerned the interpretation of Article 31. On this issue, the Court concluded that both interpretations presented by Honduras were misguided. In order to support its position, the Court examined the travaux préparatoires of the pact. Accordingly, a

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rightful interpretation of Article 31 would imply disregarding any reservation made in the declaration of acceptance of jurisdiction. Indeed, if the parties of the pact intended to make a reservation to the jurisdiction of the Court, they would have to do so by making a reservation to Article 31 itself, something the United States of America did. Thus, the Court did not consider that the Honduran reservation to its declaration was in any way an obstacle to the exercise of its jurisdiction on the case. The second objection brought up by Honduras concerns the interpretation of Article 32 of the Pact of Bogotá. The Court dismissed this allegation as well, arguing that it, too, consists of a misguided interpretation of the article. Similarly to the first objection, the Court based its decision on the travaux préparatoires of the pact. In this sense, in the draft of the proposition of a system for solutions to future conflicts between the parties, the committee took the position “that the principal procedure for the peaceful settlement of conflicts between the American States had to be judicial procedure before the International Court of Justice.”10 In the Court’s point of view, Honduras’s interpretation of the article as establishing conditions to take the dispute to the ICJ was contrary to this position insofar as the committee considered that taking a dispute to the ICJ was the main procedure to pacifically resolve a conflict, and not the last resource. Since Honduras’s objections to the jurisdiction of the Court under the Pact of Bogotá were dismissed by the Court, the Court concluded that it had jurisdiction to entertain the case under Article 31 of the pact and that, therefore, it was not necessary to analyze the validity of the declarations accepting the compulsory jurisdiction of the Court submitted by the parties. Having established that the Court had jurisdiction to entertain the dispute, it carried forth its judgment by analyzing the question of whether Nicaragua’s application was admissible. On this front, Honduras presented four contentions as outlined above. The first contention was that the application was politically intended and artificial. The Court dismissed this contention arguing, in relation to the allegedly political intentions of Nicaragua, that any dispute brought before the Court can have political aspects. Consequently, the Court did not look into the intention of parties when submitting a dispute. It is sufficient for the Court to accept to adjudge a dispute brought before it if it consists of a legal dispute (that is, a dispute capable of being resolved through the application of international 10 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 89, Paragraph 46.

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law and principles) and has jurisdiction to entertain it. Moreover, the Court was unable to uphold the claim related to the artificialness of the application, while Honduras was open to bringing forth any fact regarding the overall conflict of Central America that it considered relevant to the case. The Court also dismissed Honduras’s second contention, the one claiming that the application was vague, because it considered that it met with the conditions required under Article 40, Paragraph 1 of the Statute of the Court11 and Article 38, Paragraph 2 of the Rules of Court.12 The Court did not directly dismiss the third contention, since it agreed that Article 2 was a precondition for the use of other resources established in the treaty. It had to analyze, however, the opinion of the parties in relation to the possibility of resolving conflict by direct negotiation through the usual diplomatic channels by the time the application was submitted on 28 July 1986. This analysis was crucial insofar as if the parties agreed that resolving the conflict through diplomatic negotiation proved impossible, then Nicaragua would not have violated the said provision. This accordance could be even manifested through evidence and not formally expressed. In this sense, the Court noted that for a period of time bilateral communications occurred between the parties, but such communications led nowhere. The reason for the lack of solution in these communications was that Nicaragua believed the conflict had to be resolved bilaterally, while Honduras insisted it was multilateral conflict. The Court did not consider the Contadora process as a possible solution of diplomatic negotiation because it was not deemed direct negotiation through the usual diplomatic channels. Instead, it was made up of third states uniting to make proposals to resolve conflict in Central America. Since bilateral communications between the parties were unsuccessful and the Contadora process could not be considered as indicative that a possible diplomatic negotiation would resolve the conflict, the Court concluded that Nicaragua did not violate Article 2 of the Pact of Bogotá.

11

Article 40, Paragraph 1 of the Statute of the Court rules that: “1. Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be indicated.” 12 Article 38, Paragraph 2 of the Rules of Court provides that: “2. The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based.”

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Finally, with respect to Honduras’s fourth contention, regarding Article 4 of the Pact of Bogotá, the Court reached its decision based on a different aspect from that argued by the parties. While they, especially Nicaragua, were concerned with whether the Contadora process could be considered a “special procedure” or not according to Article 2 and Article 4 of the pact, the Court first analyzed whether the Contadora process could be considered “concluded” or not. It decided to establish this fact first because if the Contadora process were considered concluded, it would not be necessary to determine whether or not Nicaragua violated the provision. The Court first noted that in this case no formal act was necessary for the procedure to be considered concluded; rather, evidence that it had reached a point of stagnation was deemed sufficient. Evidence in this case consisted of the lack of a signatures on the Contadora Act and the states’ refusal of further negotiations, both of which were necessary to continue the process, as declared by the Contadora group itself in a letter handed to the Secretary General of the United Nations in September 1985. It was only on 1 October 1986, during the United Nations General Assembly, that the Contadora group expressed concern with the stagnation of the process and declared a new peace initiative, beginning in January 1987. The Court had to deal with the question of whether the Contadora process could be considered concluded by the time Nicaragua’s application was submitted to the Court, on 28 July 1986. The parties, during the period between the submission of the said letter by the Contadora members and the filing of the application, declared that the process had not been abandoned. Still, the Court considered that these declarations did not represent a concordance of views regarding the interpretation of the term “concluded” of Article 4 of the Pact of Bogotá. Indeed, it concluded that the Contadora process was concluded by the time Nicaragua submitted its application, due to the fact that the final and definite version of the Contadora Act was presented and subsequently rejected in the beginning of June 1986. Therefore, since the Contadora process was considered concluded, the Court did not need to determine whether it was a “special procedure” according to Article 2 of the Pact of Bogotá, in order to dismiss Honduras’s allegation based on Article 4 of the same pact. For the reasons exposed above, the Court voted as follows: “(1) Unanimously, Finds that it has jurisdiction under Article XXXI of the Pact of Bogotá to entertain the application filed by the government of the Republic of Nicaragua on 28 July 1986; (2) Unanimously,

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Finds that the application of Nicaragua is admissible.”13

2.2. Timeline DATE

29 July 1986

3 September 1986

DOCUMENT

CONTENT

Press Release No. 1986/10

Communicates Nicaragua’s submission of two applications instituting proceedings, one against Costa Rica and the other against Honduras. The document also provides information contained in the applications such as the basis of jurisdiction, main claims, and first submissions.

Press Release No. 1986/11

Presents the parties’ agents for the case: Carlos Argüello Gómez and Mario Carías on behalf of Nicaragua and Honduras, respectively. Moreover, it expresses Honduras’s allegation that the Court did not have jurisdiction to entertain the case and therefore requested that the preliminary stage of the proceedings deal exclusively with the matter of jurisdiction of the Court and the admissibility of the application.

13 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 107, Paragraph 99.

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22 October 1986 and 24 October 1986

24 February 1987

26 June 1987

14 August 1987

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Order and Press Release No.1986/14

Exposes the parties’ agreement and the Court’s decision to deal with the issue of jurisdiction and admissibility in the preliminary stage of the proceedings. Furthermore, it fixes the time limits for the filing of the first written procedures of the case: 23 February 1987 for Honduras’s Memorial and 22 June 1987 for Nicaragua’s Counter-Memorial.

Press Release No.1987/4

Reports the submission of Honduras’s Memorial on the issue of jurisdiction of the Court and admissibility of the application within the time limits established in the Order of 22 October 1986.

Press Release No.1987/16

Communicates the filing of Nicaragua’s Counter-Memorial on the matter of jurisdiction and admissibility within the time limits fixed by the Order of 22 October 1986.

Press Release No.1987/20

Notifies the parties of agreement of the request and the Court’s subsequent decision to postpone the opening of oral proceedings. The Court expressed that it would settle the date for the opening of such a procedure in due course.

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22 March 1988

31 March 1988

4 May 1988

20 December 1988

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Press Release No 1988/6

Notifies of Nicaragua’s reactivation of the case against Honduras by requesting the Court’s provisional measures. The Court recalled that provisional measures are considered a first priority and for this reason it would reach an early decision on the matter as soon as the parties are given a chance to be heard.

Order and Press Release No.1988/9

Communicates Nicaragua’s withdrawal of the request for provisional measures. The Court also notes that such a withdrawal was made before any hearing was held between the parties’ agents and the President of the Court on the matters of the provisional measure.

Press Release No.1988/13

Announces the opening of the oral proceedings concerning the issue of jurisdiction and admissibility by setting a Public Hearing to be held at the Peace Palace at The Hague on 6 June 1988.

Press Release No.1988/25

Exposes a brief summary of the judgment delivered by the Court, in which it decided in favor both of its jurisdiction to entertain the case and the admissibility of Nicaragua’s application.

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21 April 1989

31 August 1989 and 6 September 1989

14 December 1989 and 15 December 1989

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Order

Fixes time limits for the filing of the written proceedings on merits as follows: 19 September 1989 for the Memorial of the Republic of Nicaragua and 19 February 1990 for the Counter-Memorial of the Republic of Honduras.

Order and Press Release No.1989/19

Communicates the extension of Nicaragua’s time limit for the submission of its Memorial to 8 December 1989. The extension was requested due to agreements made between several presidents of Central America and was granted in agreement with Honduras’s agent. It is noted that the deadline for the filing of the Counter-Memorial by Honduras remains the same.

Order and Press Release No.1989/26

States the extension of time limits for the submission of Honduras’s Counter-Memorial until 11 June 1990, due to an agreement made by the parties’ Presidents in an attempt to achieve an extrajudicial solution to the case. The agreement provided that either one of the parties could request the Court to set a time limit for the Honduran Counter-Memorial if they did not arrive at a solution by that date. The Court established that an Order after 11 June 1990 should be published in order to guide future proceedings.

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Order and Press Release No.1992/11

Announces the removal of the case from the Court’s list as requested by Nicaragua in agreement with Honduras. The document also states that the reason for such a request was provided by Nicaragua in a letter dated 11 May 1992, in which it states that the parties had reached an extra-judicial solution.

Bibliography BUFFET-TCHAKALOFF, M.F. (1989) ‘La compétence de la C.I.J. dans l’affaire des actions frontalières et transfrontalières (NicaraguaHonduras),’ R.G.D.I.P., 93: 623-654. DECAUX, E. (1988) ‘L’arrêt de La C.I.J. dans l’affaire des actions armées frontalières et transfrontalières (Nicaragua c. Honduras), compétence et recevabilité,’ A.F.D.I, 34: 147-164. PATEL, Bimal N. (2002) ‘Case Concerning Border and Transborder Armed Actions (Nicaragua v. Costa Rica)’ in Bimal N. Patel The World Court Reference Guide: Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000), Hague/London/New York: Kluwer Law International. PATEL, Bimal N. (2002) ‘Case Concerning Border and Transborder Armed Action (Nicaragua v. Honduras)’ in Bimal N. Patel The World Court Reference Guide: Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000), Hague/London/New York: Kluwer Law International. TROOBOFF, David D. (1989) ‘Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility. 1988 ICJ Rep. 69, 28 ILM 335 (1989),’ The American Journal of International Law, 83. No. 2: 353-357. Online. Available.

CHAPTER III: TERRITORIAL AND MARITIME DISPUTES

1. MARITIME DELIMITATION IN THE CARIBBEAN SEA AND THE PACIFIC OCEAN (COSTA RICA V. NICARAGUA), 2014

1.1. Summary This case concerns a maritime delimitation dispute between the Republic of Costa Rica (hereinafter “Costa Rica”) and the Republic of Nicaragua (hereinafter “Nicaragua”) regarding the determination of boundaries in the Caribbean Sea and the Pacific Ocean.

I. Facts Costa Rica and Nicaragua have seaside territory facing the Caribbean Sea and the Pacific Ocean. The area, though, has no appropriate and definite definition of boundaries, so that there is an intersection of power over certain areas, inhibiting full exploration of the region. Numerous negotiation attempts occurred, all of which Costa Rica initiated, but they failed to resolve the issue at hand. In 2002, Nicaragua accepted to begin negotiations and a series of meetings followed. However, since each side had different, irreconcilable requests, an agreement was not reached and Nicaragua therefore unilaterally terminated the discussion. Considering that no boundaries were determined in these meetings, Nicaragua’s government issued a decree that created straight boundaries, meaning straight lines that divided each nation’s territory, followed by an amendment to Nicaragua’s domestic law suggesting that the maritime boundary defined by the decree was recognized by judgments of the International Court of Justice (hereinafter “ICJ”). This occurred without Costa Rica’s approval, interfering with its territorial sea and exclusive economic zone, and thereby constituting violation of its sovereignty and jurisdiction. Yet there was no ICJ decision on the specific boundaries. In March 2013, Costa Rica made another attempt to begin negotiations with Nicaragua. The latter accepted the invitation but refused to give in to Costa Rica’s demands, and therefore the negotiation process was once again terminated. On 19 July 2013, Costa Rica made another negotiation

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attempt, but Nicaragua never responded to the invitation, and deliberately decided to continue to apply the decree. Finally, on 25 February 2014, Costa Rica instituted proceedings against Nicaragua requesting that the Court aid in the delimitation of boundaries in the Caribbean Sea and the Pacific Ocean.

II. Jurisdiction Costa Rica claimed that the Court’s jurisdiction over the case was based on Article 36, Paragraphs 1 and 2,1 and on Article 402 of the Statute of the Court, as well as Article 383 of the Rules of Court. Furthermore, Costa 1

Article 36, Paragraphs 1 and 2, of the Statute of the Court affirms that: “1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.”. 2 Article 40 of the Statute of the Court states that: “1. Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be indicated. 2. The Registrar shall forthwith communicate the application to all concerned. 3. He shall also notify the Members of the United Nations through the Secretary-General, and also any other states entitled to appear before the Court.”. 3 Article 38 of the Rules of Court establishes that: “1. When proceedings before the Court are instituted by means of an application addressed as specified in Article 40, paragraph 1, of the Statute, the application shall indicate the party making it, the state against which the claim is brought, and the subject of the dispute. 2. The application shall specify as far as possible the legal grounds upon which the jurisdiction of the Court is said to be based; it shall also specify the precise nature of the claim, together with a succinct statement of the facts and grounds on which the claim is based. 3. The original of the application shall be signed either by the agent of the party submitting it, or by the diplomatic representative of that party in the country in which the Court has its seat, or by some other duly authorized person. If the application bears the signature of someone other than such diplomatic representative, the signature must be authenticated by the latter or by the competent authority of the applicant's foreign ministry. 4. The Registrar shall forthwith transmit to the respondent a certified copy of the application. 5. When

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Rica mentioned Article XXXI4 of the American Treaty on Pacific Settlement of Disputes (hereinafter “Pact of Bogotá”).5

III. Merits Costa Rica’s Arguments Costa Rica affirmed that the country had already attempted all possible forms of negotiation but that Nicaragua failed to cooperate, requesting, therefore, that the Court aid with the issue at hand. In addition, it contended that both countries were signatories to the United Nations Convention on the Law of the Sea6 and of the general international law of maritime delimitation, which is applied by the ICJ. Considering both documents mentioned above, the state asked that the Court allow Costa Rica’s Constitutional requirements to be fulfilled (expressed in Article 6 of the 1949 Constitution of Costa Rica): a 12 nautical-mile territorial sea, a 200 nautical-mile exclusive economic zone, and a continental shelf extending to the maximum seaward distance allowed under international law. Finally, it argued that there was no reasonable explanation to determine an equidistant delimitation, considering the concave shape of the southwestern Caribbean Sea, which would significantly limit Costa Rica’s the applicant state proposes to found the jurisdiction of the Court upon a consent thereto yet to be given or manifested by the state against which such application is made, the application shall be transmitted to that state. It shall not however be entered in the General List, nor any action be taken in the proceedings, unless and until the state against which such application is made consents to the Court's jurisdiction for the purposes of the case.”. 4 Article XXXI of the Pact of Bogotá states that: “In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the high contracting parties declare that they 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 them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.”. 5 American Treaty on Pacific Settlement (Pact of Bogotá) (Bogotá, 30 April 1948, 449 UNTS). 6 United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay, 10 December 1982, 31363 UNTS).

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maritime entitlements, consequently generating an unfair solution. It also argued that Nicaragua had several islands that would require an adjustment of all possible equidistant boundaries.

IV. Judgment Requested Costa Rica asked that the Court to determine: “[T]he complete course of a single maritime boundary between all the maritime areas appertaining, respectively, to Costa Rica and to Nicaragua in the Caribbean Sea and in the Pacific Ocean, on the basis of international law [...][and] the precise geographical co-ordinates of the single maritime boundaries in the Caribbean Sea and in the Pacific Ocean.”7

It also expressed its desire to appoint a judge ad hoc, as determined in Article 35 (I)8 of the Rules of Court and Article 319 of the Statute of the Court. 7

Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), Application Instituting Proceedings, I.C.J. 2013, p.8. 8 Article 35, Paragraph 1 affirms that: “If a party proposes to exercise the power conferred by Article 31 of the Statute to choose a judge ad hoc in a case, it shall notify the Court of its intention as soon as possible. If the name and nationality of the judge selected are not indicated at the same time, the party shall, not later than two months before the time-limit fixed for the filing of the Counter-Memorial, inform the Court of the name and nationality of the person chosen and supply brief biographical details. The judge ad hoc may be of a nationality other than that of the party which chooses him.”. 9 Article 31 of the Statute of the Court establishes that: “1. Judges of the nationality of each of the parties shall retain their right to sit in the case before the Court. 2. If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party may choose a person to sit as judge. Such person shall be chosen preferably from among those persons who have been nominated as candidates as provided in Articles 4 and 5. 3. If the Court includes upon the Bench no judge of the nationality of the parties, each of these parties may proceed to choose a judge as provided in paragraph 2 of this Article. 4. The provisions of this Article shall apply to the case of Articles 26 and 29. In such cases, the President shall request one or, if necessary, two of the members of the Court forming the chamber to give place to the members of the Court of the nationality of the parties concerned, and, failing such, or if they are unable to be present, to the judges specially chosen by the parties. 5. Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only. Any doubt upon this point shall be settled by the decision of the Court. 6. Judges chosen as laid down in paragraphs 2, 3, and 4 of this Article shall fulfill the conditions

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V. Final Considerations Since this case was exclusively based on Costa Rica’s application instituting proceedings it does not present Nicaragua’s arguments on the matter. A brief history of the proceedings as far as they went can be found in the timeline below.

1.2. Timeline DATE

DOCUMENT

26 February 2014

Press Release No. 2014/11

3 April 2014

Order and Press Release No. 2014/16

CONTENT Informs that Costa Rica instituted proceedings against Nicaragua regarding maritime disputes in the Caribbean Sea and the Pacific Ocean. Fixes the time limits for the filing of the initial requests.

required by Articles 2, 17 (Paragraph 2), 20, and 24 of the present Statute. They shall take part in the decision on terms of complete equality with their colleagues.”

2. ALLEGED VIOLATIONS OF SOVEREIGN RIGHTS AND MARITIME SPACES IN THE CARIBBEAN SEA (NICARAGUA V. COLOMBIA), 2013

2.1. Summary This case concerns a dispute between the Republic of Nicaragua (hereinafter “Nicaragua”) and the Republic of Colombia (“Colombia”) regarding the delimitation of boundaries between the continental shelves belonging to both countries, including certain areas of overlap.

I. Facts The controversial boundaries between Nicaragua and Colombia were analyzed in the judgment of 19 November 2012 in the case Territorial and Maritime dispute (Nicaragua v. Colombia),1 where the International Court of Justice (hereinafter “ICJ”) defined the single maritime boundary between both nations “within the 200 nautical-mile limit from the baselines from which the breadth of the territorial sea of Nicaragua is measured.”2 In this judgment, Nicaragua also requested that the Court explain or determine Nicaragua’s boundary in the area that overlapped with the continental shelf entitlements. However, in this case, the Court decided that Nicaragua did not establish that it did in fact have a continental shelf that extended into Colombia’s shelf and, therefore, it could not proceed as requested by Nicaragua. On 24 June 2013, Nicaragua submitted evidence illustrating that its continental margin extended beyond the beginning of Colombia’s continental shelf and that it lies closer than 200 nautical miles from Colombia’s coast. Furthermore, the state explained that there was no 1

Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012. 2 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 624.

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possibility for a bilateral negotiation since Colombia deliberately chose to apply its domestic law and disregard the Court’s previous decision. Also, Colombia’s government had requested that the Colombian Constitutional Court declare the unconstitutionality of the American Treaty on Pacific Settlement (hereinafter “Pact of Bogotá”),3 to which both Nicaragua and Colombia are parties. On 16 September 2013, Nicaragua filed an application against Colombia requesting the Court to engage in two distinct steps to solve the issue. It began by asking that the Court determine the specific course of the boundary of the continental shelf that lies between Nicaragua and Colombia, guided by the principles and rules of international law. Secondly, Nicaragua requested that the Court indicate the entitlements and obligations of both states regarding the area of overlap, specifically the use of resources of this region while the Court decided on the precise delimitation.

II. Jurisdiction Nicaragua based the Court’s jurisdiction on Article XXXI4 of the Pact of Bogotá, which determines that the ICJ has jurisdiction in any case concerning the interpretation of a treaty, international law, the violation of international law, and the extent of reparations, if applicable. After the Pact was signed, Colombia denounced it. However, according to its Article LVI,5 the denunciation can only take effect one

3

American Treaty on Pacific Settlement (Pact of Bogotá) (Bogotá, 30 April 1948, 449 UNTS). 4 Article XXXI of the Pact of Bogotá states that: “In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the high contracting parties declare that they 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 them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.” 5 Article LVI of the Pact of Bogotá affirms 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

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year after it has been made, thus, the Pact was applicable until 27 November 2013. Moreover, Nicaragua argued that the Court also had jurisdiction over this case granted by the previous judgment concerning this same case, already mentioned above (Territorial and Maritime Dispute, Nicaragua v. Colombia). Since the Court did not decide on all the merits of the case, arguing that it did not have sufficient information, it had to decide it then.

III. Merits Nicaragua’s Arguments Nicaragua argued that, as conceded by the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”)6 and customary international law, it has the right to a continental shelf extending throughout its continental margin and including an area beyond Nicaragua’s 200 nautical miles zone, which consequently overlaps with Colombia’s 200 nauticalmile zone. Nicaragua, therefore, asked the Court to delimit the area of overlap and determine the possible use of resources and of the region in itself without harming the use by the other country, as prescribed by the duty of good faith under international law, the rights of the sea, and the good faith owed by states before the Court.

IV. Judgment Requested In this context, Nicaragua asked the Court to: “[A]djudge and declare that Colombia is in breach of: [I]ts obligation not to use or threaten to use force under Article 2 (4) of the UN Charter and international customary law; [I]ts obligation not to violate Nicaragua’s maritime zones as delimited in paragraph 251 of the ICJ judgment of 19 November 2012 as well as Nicaragua’s sovereign rights and jurisdiction in these zones; [I]ts obligation not to violate Nicaragua’s rights under customary international law as reflected in Parts V and VI of UNCLOS; [A]nd that, consequently, Colombia is bound to comply with the judgment of 19 November 2012, wipe out the legal and material consequences of its

contracting parties. The denunciation shall have no effect with respect to pending procedures initiated prior to the transmission of the particular notification.” 6 United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay, 10 December 1982, 31363 UNTS).

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internationally wrongful acts, and make full reparation for the harm caused by those acts.”7

V. Final Considerations Since this case was exclusively based on Nicaragua’s application instituting proceedings it does not present Colombia’s arguments on the matter. A brief history of the proceedings as far as they went can be found in the timeline below.

2.2. Timeline DATE

7

DOCUMENT

CONTENT

27 November 2013

Press Release No. 2013/36

Nicaragua institutes proceedings against Colombia, concerning alleged violations of Nicaragua’s sovereign rights and maritime zones, previously determined by the Court in a judgment of 19 November 2012.

3 February 2014 and 4 February 2014

Order and Press Release No. 2014/4

Fixes the time limits for Memorial and CounterMemorial.

19 December 2014 and 22 December 2014

Order and Press Release No. 2014/34

Fixes the date of 20 April 2015 as the time limit for Nicaragua to present its written statement on the Preliminary Objections raised by Colombia.

Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Application instituting proceedings, I.C.J. 2013, p. 24.

2. Alleged Violations of Sovereign Rights and Maritime Spaces

31 July 2015

2 October 2015

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Press Release No. 2015/20

Informs that the Court is to hold Public Hearings on the Preliminary Objections raised by Colombia from 28 September to 2 October 2015.

Press Release No. 2015/25

Communicates the conclusion of the Public Hearings on Preliminary Objections and the beginning of the Court’s deliberation.

3. QUESTION OF THE DELIMITATION OF THE CONTINENTAL SHELF BETWEEN NICARAGUA AND COLOMBIA BEYOND 200 NAUTICAL MILES FROM THE NICARAGUAN COAST (NICARAGUA V. COLOMBIA), 2013

3.1. Summary This case refers to the filing of an application instituting proceedings by the Republic of Nicaragua (hereinafter “Nicaragua”) against the Republic of Colombia (hereinafter “Colombia”) and requiring the delimitation of maritime boundaries between the two parties.

I. Facts In the case Territorial and Maritime Dispute (Nicaragua v. Colombia), Nicaragua requested that the International Court of Justice (hereinafter “ICJ”) define its continental shelf beyond the 200 nautical miles to which it was entitled, corresponding to part of the Colombian shelf. On 10 April 2010, Nicaragua submitted its Preliminary Information to the Commission on the Limits of the Continental Shelf and, on 24 June 2013, introduced its final information to the commission. Nonetheless, the Court decided, on 19 November 2012, to keep the limit at 200 nautical miles from the Nicaraguan Coast, alleging that Nicaragua failed to prove that it had continental margin over such a limit. The states did not reach an agreement on the subject. In addition, Colombia’s government denied the applicability of the previous judgment, questioning the constitutionality of the American Treaty on Pacific Settlement (hereinafter “Pact of Bogotá”) 1 and its applicability to international law. Nicaragua therefore took the matter to the ICJ on 16 September 2013. 1

American Treaty on Pacific Settlement (Pact of Bogotá) (Bogotá, 30 April 1948, 449 UNTS).

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II. Jurisdiction The Court’s jurisdiction over this case is based on Article 312 of the Pact of Bogotá, which establishes a facultative clause accepting compulsory jurisdiction of the Court under the terms of Article 36, Paragraph 2 of the Statute of the Court.3 Both states are parties to the Pact of Bogotá with no reservation. Even though Colombia denounced the treaty on 27 November 2012, Article 56 of the Pact4 states that denunciations only take effect after one year. Thus, the Court still had jurisdiction at the time of the submission of the application.

2

Article 31 of the Pact of Bogotá states that: “In conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice, the high contracting parties declare that they 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 them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.” 3 Article 36, Paragraph 2, of the Statute of the Court provides that: “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. The interpretation of a treaty; b. Any question of international law; c. The existence of any fact which, if established, would constitute a breach of an international obligation; d. The nature or extent of the reparation to be made for the breach of an international obligation.” 4 Article 56 of the Pact of Bogotá asserts 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 transmission of the particular notification.”

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III. Merits A) Nicaragua’s Arguments Nicaragua asserted that United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”),5 as well as international customary law, guaranteed entitlement to a continental shelf that extends beyond the continental margin. In this sense, it advocated that the continental shelf reached beyond 200 nautical miles from its coast, overlapping with Colombia’s continental shelf, that is to say, in an area within 200 nautical miles from its coast. Therefore, the Court should determine the maritime boundary between the states, achieving an equitable result and preserving the rights of third states.

B) Colombia’s Arguments In a document from the Permanent Mission of Colombia, addressed on 29 April 2013 to the Secretary-General of the United Nations,6 the state affirmed that international customary law assured its sovereignty over the continental shelf. Therefore, unilateral acts by third states interfering in the use of the area, such as the filing of an application instituting proceedings, should not be accepted by Colombia.

IV. Judgment Requested Nicaragua, in its application instituting proceedings, requested the Court to adjudge and declare: “First: The precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to each of them beyond the boundaries determined by the Court in its judgment of 19 November 2012. Second: The principles and rules of international law that determine the rights and duties of the two states in relation to the area of overlapping continental shelf claims and the use of its resources, pending the delimitation of the maritime boundary between them beyond 200 nautical

5

United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay, 10 December 1982, 31363 UNTS). 6 UN doc. A/67/852, 2 May 2013.

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miles from Nicaragua’s coast.”7

V. Final Considerations With the exception of its Preliminary Objections to the jurisdiction of the Court, which are shown in the press releases listed in the timeline, this case does not completely include Colombia’s perspective since the country has not yet provided a response to Nicaragua. A brief history of the proceedings as far as they went can be found in the timeline below.

3.2. Timeline DATE

17 September 2013

9 December 2013 and 10 December 2013

7

DOCUMENT

CONTENT

Press Release No. 2013/21

Affirms that Nicaragua has instituted proceedings against Colombia, requesting the Court to determine the precise course of the maritime boundary between itself and Colombia in the areas of the continental shelf that belong to each state beyond the boundaries determined by the Court in its judgment of 19 November 2012.

Order and Press Release No. 2013/37

The Court fixes time limits for the filing of written pleadings by Nicaragua and Bolivia as follows: 9 December 2014 for the Memorial of Nicaragua and 9 December 2015 for the CounterMemorial of Colombia.

Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Application instituting proceedings, I.C.J. reports 2013, p.8.

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19 September 2014 and 3 October 2014

Order and Press Release No. 2014/29

Fixes the date of 19 January 2015 as the time limit within which Nicaragua is supposed to present its written statement on the Preliminary Objections raised by Colombia.

31 July 2015

Press Release No. 2015/21

Informs that the Court is to hold Public Hearings on Preliminary Objections from Monday 5 October to Friday 9 October 2015

Press Release No. 2015/26

Communicates that the Public Hearings on preliminary objctions have been concluded and that the Court is about to begin its deliberation.

9 October 2015

4. TERRITORIAL AND MARITIME DISPUTE (NICARAGUA V. COLOMBIA), 2001

4.1. Summary This case concerns the dispute between the Republic of Nicaragua (hereinafter “Nicaragua”) and the Republic of Colombia (hereinafter “Colombia”) on unsolved matters related to the sovereignty of certain territories, as well as the maritime delimitation between both states in the western Caribbean Sea.

I. Facts A) Geography Nicaragua and Colombia are both Latin American states. However, Nicaragua is located in middle Central America, between Honduras and Costa Rica, while Colombia is situated in northern South America, south of Panama. Both countries have coastlines on the Caribbean Sea, along which the present dispute took place. The Sketch-map1 below illustrates the area in dispute as well as the territories involved:

1 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 19. Sketch-map No.1: Geographical context.

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B) History On 24 March 1928, Nicaragua and Colombia concluded the Treaty Concerning Territorial Questions at Issue (hereinafter “1928 Treaty”).2 This agreement was signed by both states with the aim of solving all remaining territorial disputes between them. Nevertheless, it did not establish sovereignty over the reefs of Roncador, Quitasueño, and Serrana, since sovereignty over these territories was the subject of a dispute between Colombia and the United States of America (hereinafter “United States”). On the occasion of the ratification of this treaty, 5 May 1930, Nicaragua and Colombia also signed a Protocol of Exchange of Ratification (hereinafter “1930 Protocol”).3 This document reinforced the purpose of the 1928 Treaty, that is to say, to cease the territorial dispute between the two parties. In doing so, the 1930 Protocol established that the archipelago of San Andrés – one of the landmarks pointed out by the 1928 Treaty – would not extend beyond the 82nd degree longitude west of Greenwich. Decades later, on 4 June 1969, Colombia alleged that Nicaragua had given oil exploration concessions in areas beyond its territory and maritime area, specifically in Quitasueño and other maritime areas east of 2

Treaty Concerning Territorial Questions at Issue (1928 Treaty) (Managua, 24 March 1928). 3 Protocol of Exchange of Ratification (1930 Protocol) (Managua, 5 may 1930).

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the 82nd meridian. Colombia argued that Quitasueño was not covered under the 1928 Treaty since its sovereignty was disputed by Colombia and the United States, not Nicaragua. Moreover, Colombia claimed that Nicaragua, by granting oil exploration concessions situated east of the 82nd meridian, had violated the agreement expressed in the 1930 Protocol. On 12 June 1969, Nicaragua answered such allegations by asserting that the oil exploration concessions were given only to areas situated within its continental shelf. Furthermore, it contested Colombia’s position that considered the 1930 Protocol a type of maritime boundary between them. On this matter, Nicaragua understood that the archipelago San Andrés could not extend west of the 82nd meridian, which did not mean that it could not be eastern from that point. Therefore, because of the lack of precision of the 1930 Protocol concerning the 82nd meridian, it could not be upheld as a maritime boundary between the two countries. On 22 September 1969, Colombia sent a reply declaring sovereignty over the maritime area east of the 82nd meridian and pointing out that the reefs of Roncador, Quitasueño, and Serrana were not subject to either the 1928 Treaty or the 1930 Protocol. Nicaragua abstained from replying to such a note. Instead, it sent a memorandum, on 23 June 1971, to the United States, declaring sovereignty over the Roncador, Quitasueño, and Serrana cays, alleging that they were within its continental shelf. The United States, however, not only disregarded Nicaragua’s memorandum, it also affirmed, on 8 September 1972, an agreement with Colombia, in which it abdicated sovereignty over these territories – the Treaty Concerning the Status of Quitasueño, Roncador, and Serrana (hereinafter “Vásquez-Saccio Treaty”).4 Nicaragua’s reaction to such an agreement was to, once again, on 4 October 1972, declare sovereignty over the Roncador, Quitasueño, and Serrana cays by a formal declaration of its National Assembly. Moreover, it sent a note to the governments of the United States and Colombia opposing the Vásquez-Saccio Treaty. On July 1979, Nicaragua’s government was overthrown by the Frente Sandinista de Liberación Nacional. The following year, on 4 February 1980, the new government declared the 1928 Treaty null and invalid. This position was based on the premise that previous leaders of the Nicaraguan government, including the one who signed the treaty, were not legitimate, since they were installed by American forces of intervention. Colombia responded to this declaration on 5 February 1980, rejecting it for its 4

Treaty Concerning the Status of Quitasueño, Roncador, and Serrana (VásquezSaccio Treaty) (Bogotá, 8 September 1972, 1307 UNTS 21801).

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violations of the most basic principles of international law. Nevertheless, subsequent governments of Nicaragua maintained the position that the 1928 Treaty was null and invalid.

II. Jurisdiction When filing the application instituting proceedings, Nicaragua first presented Article 315 of the American Treaty on Pacific Settlement (hereinafter “Pact of Bogotá”) 6 as a basis of jurisdiction, since both states are parties to it. Moreover, Nicaragua also put forth the declarations submitted by the parties to the Permanent Court of Justice accepting its compulsory jurisdiction under Article 367 of the Statute as a basis of jurisdiction for the dispute at hand. Regarding the declarations, Nicaragua pointed out that they were a valid basis of International Court of Justice (hereinafter “ICJ”) jurisdiction for as long as their established time limit, 5

Article 31 of the Pact of Bogotá rules that: “In conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice, the high contracting parties declare that they 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 them concerning: (a) The interpretation of a treaty; (b) Any question of international law; (c) The existence of any fact which, if established, would constitute the breach of an international obligation; or (d) The nature or extent of the reparation to be made for the breach of an international obligation.” 6 American Treaty on Pacific Settlement (Pact of Bogotá) (Bogotá, 30 April 1948, 30 UNTS 449). 7 Article 36 of the Permanent Court of Justice read as follows: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in treaties and conventions in force. The Members of the League of Nations and the states mentioned in the Annex to the Covenant may, either when signing or ratifying the Protocol to which the present Statute is adjoined, or at a later moment, declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other member or state accepting the same obligation, the jurisdiction of the Court in all or any of the classes of legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation. The declaration referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain members or states, or for a certain time. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”

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due to Article 36, Paragraph 58 of the latter’s Statute. The jurisdiction of the Court was, however, disputed by Colombia in this case. Subsequently, it was the object of a preliminary judgment. Colombia opposed the Court’s jurisdiction to adjudge the case by alleging that it had withdrawn its declaration by December 2001, meaning that it was not enforced at the time Nicaragua filed its application. Moreover, Colombia claimed that it had made a reservation to such a declaration, limiting its application to facts occurring after 6 January 1932, and thus excluding its applications from questions related to the content of the 1928 Treaty and the 1930 Protocol. Colombia also opposed the Pact of Bogotá as a valid basis of jurisdiction for the case. It alleged that Article 69 of the mentioned agreement excluded the Court’s jurisdiction to deal with issues already agreed upon between the parties. In this sense, Colombia argued that the Court could not decide on the sovereignty of territories, since the 1928 Treaty and 1930 Protocol had already decided the matter. Regarding this matter, the Court decided in its judgment on the Preliminary Objections10 that it had jurisdiction, under Article 31 of the Pact of Bogotá, to adjudge the case concerning the maritime boundary delimitation between the two parties and the sovereignty of the territories that did not clearly belong to one of the parties of the 1928 Treaty. That is to say, the Court considered that it had jurisdiction to determine, besides the maritime delimitation, the sovereignty of any of the territories in dispute, excluding the islands of San Andrés, Providencia, and Santa Catalina.

8

Paragraph 5 of Article 36 of the Statute of the Court provides that: “Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.” 9 Article 6 of the Pact of Bogotá states that: “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.” 10 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007.

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III. Matters of Dispute Considering what was decided in its judgment on the Preliminary Objections, the Court decided that the judgment on the merits would have to deal with two questions. Firstly, the Court would have to decide upon the sovereignty of the territories in dispute, except for the islands of San Andrés, Providencia, and Santa Catalina. Secondly, the Court would have to determine the maritime boundary between Nicaragua and Colombia. In this sense, Nicaragua requested the Court to adjudge and declare that: “(1) The Republic of Nicaragua has sovereignty over all maritime features off her Caribbean coast not proven to be part of the ‘San Andrés Archipelago’ and in particular the following cays: the Cayos de Alburquerque; the Cayos del Este Sudeste; the Cay of Roncador; North Cay, South-west Cay and any other cays on the bank of Serrana; East Cay, Beacon Cay and any other cays on the bank of Serranilla; and Low Cay and any other cays on the bank of Bajo Nuevo. (2) If the Court were to find that there are features on the bank of Quitasueño that qualify as islands under international law, the Court is requested to find that sovereignty over such features rests with Nicaragua. (3) The appropriate form of delimitation, within the geographical and legal framework constituted by the mainland coasts of Nicaragua and Colombia, is a continental shelf boundary dividing by equal parts the overlapping entitlements to a continental shelf of both parties. (4) The islands of San Andrés and Providencia (and Santa Catalina) be enclaved and accorded a maritime entitlement of 12 nautical miles, this being the appropriate equitable solution justified by the geographical and legal framework. (5) The equitable solution for any cay, that might be found to be Colombian, is to delimit a maritime boundary by drawing a 3-nautical-mile enclave around them. II. Further, the Court is requested to adjudge and declare that: Colombia is not acting in accordance with her obligations under international law by stopping and otherwise hindering Nicaragua from accessing and disposing of her natural resources to the east of the 82nd meridian.”11

Colombia, however, requested the Court to adjudge and declare that: “(a) That Nicaragua’s new continental shelf claim is inadmissible and that, consequently, 11 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 16.

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Nicaragua’s Submission I (3) is rejected. (b) That Colombia has sovereignty over all the maritime features in dispute between the parties: Alburquerque, East-Southeast, Roncador, Serrana, Quitasueño, Serranilla and Bajo Nuevo, and all their appurtenant features, which form part of the archipelago of San Andrés. (c) That the delimitation of the exclusive economic zone and the continental shelf between Nicaragua and Colombia is to be effected by a single maritime boundary, being the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the parties is measured, as depicted on the map attached to these submissions. (d) That Nicaragua’s written Submission II is rejected.”12

IV. Merits A) Colombia’s Arguments First, in order to demonstrate that it was entitled to territories within the archipelago of San Andrés, namely the islands of Alburquerque, EastSoutheast, Roncador, Serrana, Quitasueño, Serranilla, and Bajo Nuevo, Colombia presented the Court with arguments of different natures. Indeed, these arguments were based on the 1928 Treaty, the 1930 Protocol, the principle of uti possidetis juris, effectivités, documents expressing the views of third party countries, and maps. Regarding the 1928 Treaty and the 1930 Protocol, Colombia first asserted that the islands in dispute had been considered a group constituting the archipelago of San Andrés throughout history, and that the 1928 Treaty and 1930 Protocol, not having relayed anything to the contrary, promoted this view. Secondly, it sustained that because the 1928 Treaty established the 82nd meridian as the western limit of the archipelago of San Andrés, Nicaragua abdicated sovereignty over any territory situated to its east. Regarding the principle of uti possidetis juris, which determines the sovereignty of territories based on who had the right to exercise it before independence, Colombia claimed that the Royal Order of 1803 granted the Viceroyalty of Santa Fé (New Granada) the right to exercise jurisdiction over the archipelago of San Andrés. The Viceroyalty of Santa Fé (New Granada) was the territorial unit under Spanish colonization that corresponded to the current territory of Colombia, Venezuela, Ecuador, 12 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 17.

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and Panama. Therefore, Colombia asserted its right to sovereignty over the archipelago based on the principle of uti possidetis juris. Colombia argued that since its former territorial unit (The Viceroyalty of Santa Fé) had sovereignty over these islands and effectively exercised this right, Colombia had the right to exercise such power after independence from Spain. Moreover, Colombia argued that, at the time of the Royal Order of 1803, the Captaincy-General of Guatemala, the territorial unit that corresponded to the current territory of Nicaragua, did not contest the jurisdiction granted to the Viceroyalty of Santa Fé (New Granada). Beyond the above-mentioned treaties and the principle of uti possidetis juris, Colombia presented several effectivités in order to prove its rights over the archipelago of San Andrés. Effectivités are administrative and legislative acts that a state has continuously enforced on a territory that are used as proof of its public exercise of jurisdiction over such a territory. In this sense, Colombia brought before the Court several different types of effectivités, such as enforcement of laws concerning fishing, immigration, environment, and economic activities. It also pointed out several public works promoted by the Colombian government on islands of the archipelago. Colombia argued that, in contrast to all of the effectivités that it presented before the Court, Nicaragua not only did not perform any act that could be interpreted as jurisdiction over the islands in dispute, but it also never contested any of Colombia’s acts. Still with regards to sovereignty over the islands and cays of the archipelago of San Andrés, Colombia submitted several treaties between different neighbor states as proof of their recognition of its sovereignty over these territories. It also submitted numerous maps made not only by the Colombian government, but also by third party states and even by Nicaragua, none of which attributed the territories in dispute to Nicaragua. In fact, the maps produced by the Nicaraguan government after 1980 specifically excluded all islands from the archipelago of San Andrés from its domain, except for the Corn islands, which are not in dispute in the present case. Finally, Colombia reinforced its claim that Nicaragua recognized its sovereignty over the islands and cays in dispute by presenting an exchange of notes between the two parties relating to the Loubet Award of 11 September 1900. This document, issued by the President of France at the time, explicitly attributed sovereignty over the islands of “Mangle Chico, Mangle Grande, Cayos-de-Alburquerque, San Andrés, Santa Catalina, Providencia, and Escudo-de-Veragua, as well as other islands, islets, and banks belonging to the former Province of Cartagena, under the

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denomination of Canton of San Andrés,”13 while also establishing a land boundary between Colombia and Costa Rica. Nicaragua responded to this Award with a Note dated 12 September 1900, in which it affirmed that it could not influence Nicaragua’s rights over islands occupied by its government. Nicaragua specifically directed this note to islands such as Great Corn and Little Corn, and none of the territories in dispute. From Colombia’s point of view, the note demonstrated that Nicaragua did not consider that the islands in dispute were under its domain. Moreover, Colombia stressed that any of the islands and cays belonging to the archipelago of San Andrés were occupied or otherwise under Nicaragua’s administration at the time Nicaragua issued its note. With regards to the maritime delimitation between the parties, first Colombia agreed that, although it is not party to the United Convention on the Law of the Sea (hereinafter “UNCLOS”), 14 some of its articles were based on customary law, and, for this reason, it agreed to submit to the provisions. Second, Colombia asserted that the Court should adopt its traditional methodology. It recognized, however, that the Court did not use such a methodology every time it was called upon to determine maritime delimitations between two states. Still, Colombia claimed that, from its point of view, no circumstance would make the traditional method impossible or contrary to international law. Therefore, Colombia required the Court to determine the maritime boundary as shown in the Sketchmap15 below:

13

Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 37, Paragraph 86. 14 United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay, 10 December 1982, 1833-1835 UNTS 31363). 15 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 52.

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B) Nicaragua’s Arguments Nicaragua, as well as Colombia, presented an interpretation of the 1928 Treaty and the 1930 Protocol, and relied on the principle of uti possidetis juris to prove to the Court its right to sovereignty over the islands of Alburquerque, East-Southeast, Roncador, Serrana, Quitasueño, Serranilla, and Bajo Nuevo. Nicaragua also contested several arguments brought forward by Colombia. According to Nicaragua, Paragraph 1 of Article 1 of the 1928 Treaty16 16 Paragraph 1 of Article 1 of the 1928 Treaty reads as follows: “The Republic of Colombia recognizes the full and entire sovereignty of the Republic of Nicaragua over the Mosquito coast between cape Gracias a Dios and the San Juan river, and aver Mangle Grande and Mangle Chico Islands in the Atlantic Ocean (Great Corn Island and Little Corn Island). The Republic of Nicaragua recognizes the full and

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is not clear with regards to the configuration of the archipelago of San Andrés. That is, it does not make explicit the islands and cays that constitute such a unit. In this vein, Nicaragua added that there was no historical or geographical evidence of the disputed territories being considered as a group composing the archipelago. In fact, it contended that, by using the geographic criteria of proximity, almost none of the islands in dispute are near the island of San Andrés, which supports Nicaragua’s arguments that these islands are not part of the archipelago and, therefore, that their sovereignty was not attributed to Colombia in the 1928 Treaty. Moreover, Nicaragua contended, regarding Paragraph 2 of Article 1 of the 1928 Treaty,17 that the exclusion from the treaty of the islands of Roncador, Quitasueño, and Serrana in the said provision meant that these territories did not comprise the archipelago of San Andrés. Concerning the 1930 Protocol, Nicaragua sustained before the Court the same argument that it had presented to Colombia in exchanges of notes in 1969. It argued that the 82nd meridian was never to be considered a maritime boundary between the two states. Instead, it was meant to be a western limit to the archipelago of San Andrés, which did not mean that Nicaragua abdicated from all territory east of such a meridian. Regarding the principle of uti possidetis juris, Nicaragua asserted that it had rights over the disputed islands based on several different documents, all of which referred to the Royal Decree of 28 June 1568. This decree declared that the Captaincy-General of Guatemala, a territory that later became the state of Nicaragua, had jurisdiction over the islands adjacent to the Mosquito Coast. Therefore, Nicaragua, relying on the above-mentioned principle, claimed that it had rights over the islands in dispute, since such islands were under the jurisdiction of its former territory at the time of independence. Although Nicaragua itself did not present arguments of a different nature than the one exposed, it contested numerous arguments brought up by Colombia in order to support its right to sovereignty. First, Nicaragua protested some aspects of the effectivités presented by Colombia. From its point of view, these effectivités could not be taken into consideration by the Court due to their overall nature. Nicaragua contended that for a legislative or administrative act to be considered as proof of the exercise of entire sovereignty of the Republic of Colombia over the islands of San Andrés, Providencia, and Santa Catalina and over the other islands, islets and reefs forming part of the San Andrés Archipelago.” 17 Article 1, Paragraph 2 of the 1928 Treaty states that: “The present Treaty does not apply to the reefs of Roncador, Quitasueño and Serrana, sovereignty overwhich is in dispute between Colombia and the United States of America.”

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sovereignty by a state, it has to be specifically associated with a territory, and, according to Nicaragua, the effectivités in question were associated with the archipelago of San Andrés as a whole but not its separate islands. Regarding the treaties submitted by Colombia, Nicaragua asserted that they could not be upheld against Nicaragua itself, since it was not a party to them, and they were basically bilateral treaties between Colombia and neighboring states. Furthermore, Nicaragua affirmed that the maps submitted by Colombia had no legend that could indicate their meaning and therefore could not be used as proof of Colombia’s sovereignty over the territories in dispute. Finally, Nicaragua denied that it recognized, in any way, Colombia’s sovereignty over the islands and cays in dispute. As far as the maritime delimitation was concerned, Nicaragua requested that the Court establish its continental shelf extending the traditional 200 nautical miles. The reason for such a request was that, according to Nicaragua, its territory extended to what was called the “Nicaragua Rise,” a superficial area extending seawards up to the Republic of Jamaica. Nicaragua recognized that, under Paragraph 8 of Article 76 of UNCLOS,18 in order for the extension of the continental shelf to be acceptable, it should be submitted to the Commission on the Limits of the Continental Shelf. In this sense, Nicaragua asserted that it had submitted “Preliminary Information” to the Commission, and that the required technical work was also well under way. Moreover, Nicaragua affirmed that its continental shelf would extend into the 200 nautical-mile continental shelf of Colombia. However, Nicaragua also recalled that according to Paragraph 1 of Article 76 of UNCLOS,19 the 200 nauticalmile continental shelf of Colombia should not be given preference over the extended continental shelf of Nicaragua. 18

Paragraph 8 of Article 76 of the UNCLOS states that: “8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal state to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal states on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal state on the basis of these recommendations shall be final and binding.” 19 Paragraph 1 of the UNCLOS provides the following: “1. The continental shelf of a coastal state comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.”

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Still in relation to the maritime delimitation between the parties, Nicaragua asserted that the traditional method adopted by the Court could not be applied to the present case, due to the geography of the entire area in dispute. Nicaragua contended that constructing a provisional line to then make alterations due to relevant facts, a traditional method adopted by the Court, would result in a disproportionate delimitation. Nicaragua also recalled that the Court did not apply such a method in cases where the result would be similar. Therefore, Nicaragua requested the Court adopt a method in which it would take into account the small size of the islands in dispute, as well as the fact that they are situated, from its point of view, within its continental shelf. For the above-mentioned reasons, Nicaragua requested the Court to determine the maritime boundary as illustrated in the Sketch-map below20:

V. Judgment In its judgment on the merits of the case, the Court was called upon to decide the sovereignty of the islands of Alburquerque, East-Southeast, 20 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 43.

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Roncador, Serrana, Quitasueño, Serranilla, and Bajo Nuevo, as well as to determine the maritime boundary between Nicaragua and Colombia. The Court began its judgment by examining the parties’ arguments and deciding upon the sovereignty of the above-mentioned islands. To this end, the ICJ had to preliminarily decide which islands were capable of appropriation. In order to be considered capable of appropriation, an island must be considerably above water during periods of high tide. Consequently, Quitasueño was the only island that raised the question of possible appropriation. In order to reach a conclusion on the matter, the Court evaluated the scientific studies brought forward by each one of the parties. Colombia’s study was based on the Grenoble Tide model and qualified more than half of Quitasueño’s features as appropriable. Nicaragua contested such a method, alleging that it was inappropriate for studying shallow waters. Instead, it presented the Admiralty Total Tide model, which qualified only one of Quitasueño’s features as capable of appropriation. The Court upheld Nicaragua’s argument and considered that only that one feature, referred to as QS-32, was capable of appropriation. Having decided which territories were capable of appropriation, the Court started considering the parties’ arguments as to their sovereignty. The first point considered by the Court was the argument related to the 1928 Treaty and 1930 Protocol. The Court accepted both of Nicaragua’s arguments that the 1928 Treaty did not specify the composition of the archipelago of San Andrés and that the 1930 Protocol did not limit Nicaragua’s territories to the east. The Court noted, though, that some of the islands in dispute could be considered to belong to the archipelago due to their proximity to the island of San Andrés. Moreover, the Court accepted Colombia’s argument that the exclusion of the Roncador, Quitasueño, and Serrana islands from the treaty did not mean that they were not a part of the archipelago, since it would be unnecessary to exclude islands from the scope of the treaty that were never in it. Still, the Court considered that the overall nature of the 1928 Treaty and 1930 Protocol were insufficient to determine the sovereignty of the disputed island. Thus, it moved on to analyze the application of the principle of uti possidetis juris. From the Court’s point of view, the uti possidetis juris principle, as well as the 1928 Treaty and 1930 Protocol, were inconclusive in determining the sovereignty of the islands and cays. The reason for this is that none of the colonial documents provided by the parties clearly and specifically mentions the territories in dispute. Instead, all of the documents refer to the area in which these territories are situated in a very

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general way. Therefore, the determination of the sovereignty of the islands depended on the analysis of the effectivités brought forward by Colombia before the Court. When examining effectivités, the Court must determine the critical date beforehand. This date represents the day that the dispute between the parties was consolidated and establishes which effectivités are relevant for the purpose of the case since only the facts occurring prior to it are considered relevant. The idea is to not consider relevant the acts engaged in by a state with the sole purpose of generating proof on its behalf, since the states were already in dispute. In the present case, after considering the parties’ views on the subject, the Court decided that the critical date was 12 June 1969, when Nicaragua expressed its disagreement as to the sovereignty of the islands in dispute. The Court noted, before evaluating Colombia’s effectivités, that for the purpose of demonstrating the exercise of sovereignty over small islands, simple administrative and legislative acts and their enforcement in the disputed areas were sufficient. Moreover, the Court affirmed that one criterion for determining sovereignty based on effectivités was the extent of the acts of one of the states claiming sovereignty in opposition to the acts of another state that also claimed sovereignty. For these reasons, the Court decided that the effectivités presented by Colombia were a strong support of its claims, especially considering Nicaragua’s lack of such evidence. Regarding the other documents presented by Colombia, such as maps and treaties with third party states, the Court noted that although this type of documentation is not considered decisive to determine sovereignty, they reinforced Colombia’s claim. Furthermore, given Colombia’s argument that Nicaragua recognized its sovereignty over the disputed territories, the Court considered that Nicaragua’s response to the Loubet Award, although it did not explicitly recognize Colombia’s sovereignty, did in fact demonstrate that Nicaragua’s sole concern was the Corn Islands, and that this could be interpreted as though it did not consider the islands in dispute to be sovereign at the time. For the reasons exposed above, the Court finally decided that Colombia had jurisdiction over the islands in dispute. Moving on to the delimitation of the maritime boundary between the parties, the Court was called upon first to deal with the question of whether Nicaragua has the right to extend its 200 nautical-mile continental shelf, as well as to fix the relevant coast and maritime area, rather than just determine the actual maritime boundary. Concerning the first matter, the Court recalled that UNCLOS provides that Nicaragua’s request should have been submitted to the Commission on the Limits of the Continental

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Shelf. Despite Nicaragua’s efforts to prove the advanced stage of such a submission, the Court decided that both the preliminary information granted and the lack of commission positioning supported Colombia’s claims that Nicaragua’s request was unfounded, and, therefore, rejected its request for an extension of the continental shelf. The Court then proceeded to determine the relevant coasts and maritime area for the purpose of delimiting the maritime boundary between Nicaragua and Colombia. After considering the parties’ positions on the subject, the Court decided that the relevant coasts should only be the ones that would be in conflict between them. For this reason, the Court determined that the relevant Nicaraguan coasts should be its Caribbean Sea coast as well as the islands parallel to it. As for the Colombian coasts, the Court ruled that its continental coast was irrelevant for the purpose of delimiting a maritime boundary, since it did not overlap with Nicaragua’s continental shelf. However, the Court considered that the islands to which it had attributed sovereignty to Colombia on the occasion of the present judgment were to be considered as relevant coasts, since they overlapped with the Nicaraguan continental shelf. Finally, the Court determined that the islands’ entire coastlines should be considered, and not only the coast opposite from Nicaragua’s. The reason for such a consideration was the possibility of an entitlement of a continental shelf for these islands. If ever these islands were entitled to a continental shelf of their own, it would surround the islands’ entire coastline. Having decided the relevant coasts, the Court examined the relevant maritime area. When deciding such a matter, it adopted the same criterion as when it determined the relevant coasts. That is to say, it considered a maritime area to be relevant when the maritime spaces to which each of the parties were entitled to overlapped. For this reason, after considering the differing opinions of the parties, and having them agree that such an area did not extend into their established maritime boundaries with third party states, the Court determined the relevant maritime area. This area would be comprised of by the maritime border between Nicaragua and Honduras to the north, the maritime boundary between Colombia and Costa Rica and Colombia and Panama to the south, Nicaragua’s coast to the west, and 200 nautical miles of the Nicaraguan continental shelf to the east. The Court, before actually proceeding to the delimitation of the maritime boundary, explained its method of delimitation. It considered that Nicaragua’s request for a different methodology was unfounded, since it was based on the idea that the islands belonging to Colombia were situated within 200 nautical miles of continental shelf, an argument

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considered irrelevant for the purpose of determining a maritime boundary by the Court. For this reason, the Court noted that it would adopt its traditional methodology, which is made up of several stages. In the first stage, the Court delineates a provisional equidistance line based on points situated on the relevant coasts. Then it proceeds to adjust the provisional line by considering relevant circumstances that, if left unconsidered, can result in a very disproportionate division. Finally, the Court runs a disproportionality test, in which it examines whether the maritime area granted to each party based on the already adjusted provisional equidistance line is remarkably disproportionate to its respective relevant coasts. The Court began its delimitation by establishing the base points for delineating the provisional line. It determined that for the Nicaraguan coast the base points would be situated on Edinburg Reef, Muerto Cay, Miskitos Cays, Ned Thomas Cays, Roca Tyra, Little Corn Island, and Great Corn Island. As for the base points of the Colombian coast, the Court determined that these would be placed on Santa Catalina, Providencia, San Andrés Islands, and Alburquerque Cays. On this occasion, the Court noted that it did not place base points on the smaller islands because this would deform the provisional line. After determining the provisional line, the Court then considered that the only relevant circumstances for adjusting it were the disparity in lengths of the relevant coasts and the overall geographical context. These circumstances, from the Court’s point of view, and according to Nicaragua’s claims, would deprive Nicaragua of a great part of its continental shelf in relation to the dimension of the Colombian features. For these reasons, the Court decided that it was necessary to move the provisional equidistance line west, until it reached 12 nautical miles of the exclusive economic zone of the Colombian islands, since the Court considered these 12 nautical miles incapable of suppression. After several other minute changes to the provisional equidistance line, the Court submitted it to the disproportionality test. It noted, at this stage, that the aim of the maritime delimitation is not to achieve a proportionate result between the parties. Hence, the point of the disproportionality test is exclusively to determine whether the delimitation made so far is so disproportionate as to make it impossible for the result to be equitable. With this in mind, the Court decided based on the disproportionality test that the delimitation as it stood did not affect the equitability of the solution. The maritime boundary established by the Court is illustrated in the

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Sketch-map21 below:

After considering all the arguments put forth by the parties as outlined above, the Court decided as follows: “(1) Unanimously, Finds that the Republic of Colombia has sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla; (2) By fourteen votes to one, Finds admissible the Republic of Nicaragua’s claim contained in its final submission I (3) requesting the Court to adjudge and declare that “[t]he appropriate form of delimitation, within the geographical and legal framework constituted by the mainland coasts of Nicaragua and Colombia, is a continental shelf boundary dividing by equal parts the overlapping entitlements to a continental shelf of both parties; […] (3) Unanimously, Finds that it cannot uphold the Republic of Nicaragua’s claim contained in its final submission I (3); 21 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 94.

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(4) Unanimously, Decides that the line of the single maritime boundary delimiting the continental shelf and the exclusive economic zones of the Republic of Nicaragua and the Republic of Colombia shall follow geodetic lines connecting the points with co-ordinates: Latitude north Longitude west 1. 13° 46' 35.7" 81° 29' 34.7" 2. 13° 31' 08.0" 81° 45' 59.4" 3. 13° 03' 15.8" 81° 46' 22.7" 4. 12° 50' 12.8" 81° 59' 22.6" 5. 12° 07' 28.8" 82° 07' 27.7" 6. 12° 00' 04.5" 81° 57' 57.8" From point 1, the maritime boundary line shall continue due east along the parallel of latitude (co-ordinates 13° 46' 35.7" N) until it reaches the 200nautical-mile limit from the baselines from which the breadth of the territorial sea of Nicaragua is measured. From point 6 (with co-ordinates 12° 00' 04.5" N and 81° 57' 57.8" W), located on a 12-nautical-mile envelope of arcs around Alburquerque, the maritime boundary line shall continue along that envelope of arcs until it reaches point 7 (with coordinates 12° 11' 53.5" N and 81° 38' 16.6" W) which is located on the parallel passing through the southernmost point on the 12-nautical-mile envelope of arcs around East-Southeast Cays. The boundary line then follows that parallel until it reaches the southernmost point of the 12nautical-mile envelope of arcs around East-Southeast Cays at point 8 (with co-ordinates 12° 11' 53.5" N and 81° 28' 29.5" W) and continues along that envelope of arcs until its most eastward point (point 9 with co-ordinates 12° 24' 09.3" N and 81° 14' 43.9" W). From that point the boundary line follows the parallel of latitude (co-ordinates 12° 24' 09.3" N) until it reaches the 200–nautical–mile limit from the baselines from which the territorial sea of Nicaragua is measured; (5) Unanimously, Decides that the single maritime boundary around Quitasueño and Serrana shall follow, respectively, a 12-nautical-mile envelope of arcs measured from QS 32 and from low-tide elevations located within 12 nautical miles from QS 32, and a 12-nautical-mile envelope of arcs measured from Serrana Cay and the other cays in its vicinity; (6) Unanimously, Rejects the Republic of Nicaragua’s claim contained in its final submissions requesting the Court to declare that the Republic of Colombia is not acting in accordance with its obligations under international law by preventing the Republic of Nicaragua from having access to natural resources to the east of the 82nd meridian.”22

22 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 98- 100.

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4.2. Timeline DATE

6 December 2001

DOCUMENT

CONTENT

Press Release No.2001/34

Declares that Nicaragua instituted proceedings against Colombia, affirming that legal issues exist regarding territorial and maritime delimitation.

26 February 2002

Order

Fixes the time limits of 28 April 2003 for the filing of the Memorial by Nicaragua and 28 June 2004 for the filing of the Counter-Memorial by the Colombia.

1 March 2002

Press Release No.2002/7

Announces the time limits for the Memorial and Counter-Memorial that were established in the 26 February 2002 Order.

24 September 2003

Order

Here the Court fixed 26 January of 2004 as a time limit for the submission of the written statement as requested by Nicaragua, and agreed upon by Colombia.

29 September 2003

Press Release No.2003/32

Announces the time limits fixed for the submission of the written statement

15 November 2006

Press Release No.2006/37

States that the Public Hearings regarding Preliminary Objections to the jurisdiction of the Court will open on 4 June 2007.

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11 May 2007

Press Release No.2007/13

Contains the official schedule for the Public Hearings to be held on 4 June 2007.

8 June 2007

Press Release No.2007/16

States the end of the Public Hearings. The Court will now begin its deliberation.

Press Release No.2007/29

Affirms that the Court is set to deliver its judgment on the Preliminary Objections raised by the Republic of Colombia on 13 December 2007.

Press Release No.2007/30

Sets forth the decision of the Court concerning the Preliminary Objections. The Court finds that it does not have jurisdiction to decide on the matter of sovereignty over the islands already defined by the 1928 Treaty between Colombia and Nicaragua. However, it affirms that it has jurisdiction to judge the sovereignty over other maritime delimitation disputes involved in the case and presented by the parties.

30 November 2007

13 December 2007

11 February 2008

Order

The Court fixes the time limit of 11 November 2008 for the filing of the Counter-Memorial by the Republic of Colombia.

12 February 2008

Press Release No.2008/4

Announces the time limit for the filing of the Colombian CounterMemorial.

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18 December 2008

Order

Requires that Nicaragua submit a Reply and Colombia submit a Rejoinder. The ICJ also fixes the time limits of 18 December 2009 for the Reply and 18 June 2010 for the Rejoinder.

19 December 2008

Press Release No.2008/43

Publicizes the time limits fixed in the 18 December 2008 Order.

Press Release No.2010/4

Notifies that Costa Rica filed an application for permission to intervene in the case on 25 February 2010. The country affirms that the territory disputed between Nicaragua and Colombia includes part of its own.

Press Release No.2010/18

Communicates that Honduras also filed an application requesting permission to intervene in this case, on 10 June 2010. Honduras states that the dispute concerns an area of the Caribbean Sea in which it has rights and interests.

Press Release No.2010/32

States that from 11 to 22 October 2010 the Court will hold Public Hearings regarding Costa Rica’s and Honduras’s applications for permission to intervene.

Press Release No.2010/33

Sets forth the ending of the Public Hearings on whether to grant Costa Rica permission to intervene in this case. The Court will now begin its deliberation.

26 February 2010

16 June 2010

28 September 2010

15 October 2010

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Press Release No.2010/34

Notifies that the Public Hearings concerning Honduras’s application for permission to intervene in this case have been concluded. The Court will now begin its deliberation on the matter.

Press Release No.2011/13

Communicates that the Court will deliver its decision on both applications for permission to intervene on 4 May 2011 during two Public Hearings.

Press Release No.2011/16

Contains information about the decision of the Court regarding Costa Rica’s application for permission to intervene. It finds that this permission cannot be granted.

4 May 2011

Press Release No.2011/17

Reveals the Court’s decision about Honduras’s application for permission to intervene in this case. It concluded that permission should not be conceded to Honduras.

16 February 2012

Press Release No.2012/11

States that the Court will hold Public Hearings from 23 April to 4 May 2012 on the merits of the case.

9 May 2012

Press Release No.2012/17

Declares that the Public Hearings regarding the merits of the case have been concluded. The Court will now begin its deliberation.

22 October 2010

15 April 2011

4 May 2011

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8 November 2012

19 November 2012

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Press Release No.2012/32

Discloses the date when the Court will deliver its judgment. 19 November 2012 is chosen as the date for the Public Hearing where the judgment will be read by the President of the Court, judge Peter Tomka.

Press Release No.2012/33

Contains the final decision made by the Court regarding this case. The ICJ delimits a single maritime boundary and the sovereignty issues raised by the parties.

Bibliography BEKKER, Pieter H.F. (2001) ‘Nicaragua Sues Colombia before the World Court over a Dispute Concerning Territorial Questions and Maritime Delimitation in the Western Caribbean,’ American Society of International Law. Online. Available

DE LA FAYETTE, Louise Angélique (2009) ‘Territorial and Maritime Dispute Case (Nicaragua v Colombia),’ Max Planck Encyclopedia of Public International Law, Online. Available

GAO, Jianjung (2013) ‘A Note on the Nicaragua v. Colombia Case,’ Ocean Development and International Law, 44: 219-234. GROSSMAN, Nienke (2013) ‘Territorial and Maritime Dispute (Nicaragua v. Colombia),’ The American Journal of International Law, 107. No. 2:396-403. KWIATKOWSKA, Barbara (2008), ‘The 2007 Nicaragua v. Colombia Territorial and Maritime Dispute (Preliminary Objections) Judgment: a Landmark in the Sound Administration of International Justice’ in Isabelle Buffard, James Crawford, Alain Pellet and Stephan Wittich (eds) International law between universalism and fragmentation: Festschrift in honour of Gerhard Hafner, Leiden: Martinus Nijhoff Publishers, pp. 909-942.

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LAMUS, Andrés Sarmiento (2012) ‘La Corte Internacional de Justicia y la Intervención de Terceros en Cuestiones Maritimas: a Proposito de la Decision em las Solicitudes de Intervención de Costa Rica y Honduras em la Controvérsia Territorial y Maritima (Nicaragua v. Colombia),’ Anuario Colombiano de Derecho Internacional, 5:123-151. LATHROP, Coalter G. (2008), ‘Introductory note to International Court of Justice (ICJ): Territorial and Maritime Dispute (Nicaragua v. Colombia) (Preliminary Objections),’ International Legal Materials, 27. No. 1: 1-4. NAVIA, Rafael Nieto (2015), ‘Some Remarks on the Territorial and Maritime Dispute (Nicaragua v. Colombia) Case’ in Lilian del Castillo, Marcelo G. Kohen, Francisco Orrego Vicuña, Bernard H. Oxman, Tullio Treves and Rüdiger Wolfrum (eds) Law of the sea, from Grotius to the International Tribunal for the Law of the Sea: liber amicorum Judge Hugo Caminos, Leiden; Boston: Brill Nijhoff, pp. 545-562. RIESENBERG, David P. (2013) ‘Territorial and Maritime Dispute (Nicaragua v. Colombia): An Introductory Note,’ International Legal Materials, 52. No. 1:1-71. TANAKA, Yoshifumi (2013) ‘Reflections on the Territorial and Maritime Dispute Between Nicaragua and Colombia Before the International Court of Justice,’ Leiden Journal of International Law, 26: 909-931.

5. MARITIME DISPUTE (PERU V. CHILE), 2008

5.1. Summary This case concerns the dispute between the Republic of Peru (hereinafter “Peru”) and the Republic of Chile (hereinafter “Chile”) over the delimitation of their maritime zones in the Pacific Ocean. In addition, the dispute also involves Chile’s recognition of Peru’s sovereignty over 200 nautical miles from its coast.

I. Facts A) Geography Peru and Chile are located on the Pacific coast of South America. They share land frontiers, with Chile situated south of Peru. The geography of the area does not present any distinguishing characteristics. The coast that links both states is quite continuous and uniform, as shown in the map1 at the end of the present section.

B) History Immediately following the end of Spanish colonization in Peru and Chile, in 1821 and 1818, respectively, the countries did not share land boundaries. Instead, the territory between them belonged to the government of Bolivia. This original geopolitical situation changed with the end of the war started by Chile in 1879, namely the War of the Pacific. After this event, all of Bolivia’s territory on the Pacific coast became part of Chile, which therefore came to share land frontiers with Peru. Moreover, Peru made an agreement with Chile that granted it temporary possession of the former Peruvian provinces of Tacna and Arica. These provinces’ definite sovereignty was established on 3 June 1929, when both parties signed the Treaty for the Settlement of the Dispute regarding Tacna

1

Maritime Dispute (Peru v. Chile), Judgment, I.C.J Reports 2014, p. 13.

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and Arica (hereinafter the “1929 Treaty of Lima”)2. This agreement stipulated that Tacna would be returned to Peru and that Chile would keep Arica. The treaty also determined the land boundaries between the two states. In 1947, Peru as well as Chile made independent internal declarations establishing certain maritime rights 200 miles from their coasts. These statements will be mentioned jointly from now on as the “1947 proclamations.” Also, in the following decades, more specifically in 1952, 1954, and 1967, Peru, Chile, and Ecuador participated in several conferences in which twelve legal documents were debated concerning the present case, including the Declaration on the maritime zone (hereinafter “1952 Santiago Declaration”)3 and the Agreement Relating to a Special Maritime Frontier Zone (hereinafter “1954 Special Maritime Zone”).4

II. Jurisdiction Chile, as well as Peru, took part in the American Treaty on Pacific Settlement (hereinafter “Pact of Bogotá”).5 In Article XXXI,6 the treaty establishes as compulsory the jurisdiction of the International Court of Justice (hereinafter “ICJ”) in disputes involving, among other situations, any question of international law. Therefore, based on this jurisdiction clause signed by both countries, the case at hand was submitted by Peru to the ICJ on 16 January 2008.

2

Treaty for the Settlement of the Dispute regarding Tacna and Arica (1929 Treaty of Lima) (Lima, 3 June 1929, LNTS 94 (1929): 401–411). 3 Declaration on the maritime zone (1952 Santiago Declaration) (Santiago, 18 August 1952, UNTS. I-14758). 4 Agreement Relating to a Special Maritime Frontier Zone (1954 Special Maritime Zone) (Lima, 3 June 1954, UNTS I-40521). 5 American Treaty on Pacific Settlement (Pact of Bogota) (Bogotá, 30 April 1948, 449 UNTS). 6 Article XXXI of The Pact of Bogotá asserts: “In conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice, the high contracting parties declare that they 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 them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.”

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III. Matters of Dispute As already mentioned, the dispute at hand concerns the delimitation of maritime boundaries between Peru and Chile. The position of each state diverges as to the existence of such a delimitation. That is, while Chile argues that a maritime boundary has been enforced based on historical and legal evidence, Peru claims there has never been an agreement capable of clearly determining the boundaries between the two countries. Instead, Peru requested that the Court clear and definitely determine this delimitation accordingly to the Peruvian proposal. Moreover, since Chile refuses to acknowledge Peru’s sovereignty rights over the established 200 nautical miles from its baseline, which is also separate from Chile’s Exclusive Economic Zone and the continental shelf, Peru also requested that the Court declare such rights. The countries’ final submissions to the Court went as follows. Peru requested that the Court adjudge and declare that: “1) the delimitation between the respective maritime zones between the Republic of Peru and the Republic of Chile, is a line starting at ‘Point Concordia’ (defined as the intersection with the low-water mark of a 10kilometre radius arc, having as its center the first bridge over the River Lluta of the Arica-La Paz railway) and equidistant from the baselines of both parties, up to a point situated at a distance of 200 nautical miles from those baselines; and 2) beyond the point where the common maritime border ends, Peru is entitled to exercise exclusive sovereign rights over a maritime area lying out to a distance of 200 nautical miles from its baselines.”7

As for Chile, it requested that the Court: “dismiss Peru’s claims in their entirety; and adjudge and declare that: (i) the respective maritime zone entitlements of Chile and Peru have been fully delimited by agreement; (ii) those maritime zone entitlements are delimited by a boundary following the parallel of latitude passing through the most seaward boundary marker of the land boundary between Chile and Peru, known as Hito No. 1, having a latitude of 18° 21' 00" S under WGS 84 Datum; and (iii) Peru has no entitlement to any maritime zone extending to the south of that parallel.”8

7 8

Maritime Dispute (Peru v. Chile), Judgment, I.C.J Reports 2014, p. 11. Maritime Dispute (Peru v. Chile), Judgment, I.C.J Reports 2014, p. 12.

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Peru’s proposal for the maritime boundary delimitation, as well as the demarcation that Chile claims to already exist, can be seen in the Map No.29 below:

IV. Merits A) Chile’s Arguments In order to sustain its position that the maritime boundary between the two states not only exists but had also been enforced by both throughout the years, Chile presented several agreements made by the parties as well as Peru’s 1947 declaration expressing its unilateral position on this issue. The most important treaties brought by Chile before the Court were the 1952 Santiago Declaration, the various 1954 agreements – namely the Complementary Convention to the 1952 Santiago Declaration10, the 9

See Sketch-Map No.2, in Maritime Dispute (Peru v. Chile), Judgment, I.C.J Reports 2014, p. 16. 10 The Complementary Convention to the 1952 Santiago Declaration.

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Agreement relating to Measures of Supervision and Control of the Maritime Zones of the Signatory Countries,11 and the Agreement relating to a Special Maritime Frontier Zone – and the 1968-1969 lighthouse arrangements. The Court, however, began its deliberation by analyzing Chile’s argument on the presentation of the 1947 proclamations. These proclamations were made by each of the parties’ governments in order to make an international statement concerning the subject of Pacific coast fishery exploitation, which had been put at risk by other governments that expressed interest in the area. Both Chile and Peru proclaimed in their declarations certain rights over the 200 nautical miles from their respective coasts. Chile presented Peru’s declaration as evidence not merely of an indication of the previous existence of a maritime boundary between the two countries, but also as a demarcation spontaneously recognized by Peru following the exact criteria that Chile claims to be agreed on by both parties. The criteria followed an imaginary parallel line to a distance of 200 nautical miles from the point on the coast where the land boundary of these countries is situated. Later on in the proceedings, Chile clarified that it recognized that Peru’s proclamation itself did not determine a maritime boundary between them, but Chile relied on it to illustrate Peru’s utilization of the tracé parallèle method, as well as to demonstrate its importance as an antecedent to the 1952 Santiago Declaration. In fact, the 1952 Santiago Declaration is the main treaty brought up by Chile in order to prove the existence of a maritime boundary between both states. Chile contends that by determining, in Paragraph IV,12 the sovereignty and jurisdiction of certain islands, the treaty also delimits the maritime boundaries where these islands are situated. This argument is based on the idea that it would only be possible for the parties to effectively and coherently exercise jurisdiction and sovereignty over their respective islands if the maritime area outlined by the parallel in which these islands are situated were also under its jurisdiction. Moreover, Chile 11

Agreement relating to Measures of Supervision and Control of the Maritime Zones of the Signatory Countries. 12 Paragraph IV of the 1952 Santiago Declaration rules that: “IV. In the case of island territories, the zone of 200 nautical miles shall apply to the entire coast of the island or group of islands. If an island or group of islands belonging to one of the countries making the declaration is situated less than 200 nautical miles from the general maritime zone belonging to another of those countries, the maritime zone of the island or group of islands shall be limited by the parallel at the point at which the land frontier of the states concerned reaches the sea.”

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points out that the mentioned treaty has different degrees as to its aim and purpose. That is, although its general object and purpose is the protection of natural resources of the area from other states, the treaty can be considered to have a more specific object, namely a joint declaration of sovereignty. Under Chile’s point of view, by ratifying the 1952 Santiago Declaration, each party was claiming sovereignty over different parts of the area that they intended to protect. Beyond the 1952 Santiago Declaration, Chile also presented some of the agreements made by the parties during the meeting of the Permanent Commission for the South Pacific in 1954. The Complementary Convention to the 1952 Santiago Declaration was considered by Chile to be the main outcome of the conference. Chile brought this convention before the ICJ with the purpose of demonstrating Peru’s reinforcement of the 1952 Santiago Declaration, since the agreement aimed to reassert the sovereignty and jurisdiction established two years earlier. The second agreement made by the parties in 1954, and to which Chile referred during the presentation of its arguments, was the Agreement relating to Measures of Supervision and Control of the Maritime Zones of the Signatory Countries. Chile argued that Article 113 and Article 214 implied the existence of a maritime boundary. In fact, Chile affirmed that the existence of a maritime demarcation between the parties was a prerequisite for the agreement to make sense since in these articles one can find expressions such as “in its [signatory country] maritime zone” and “exclusively in the waters of its [signatory country] jurisdiction.” Finally, among the various 1954 agreements, Chile submitted to the Court the Agreement relating to a Special Maritime Frontier Zone. This agreement was made in order to avoid unintentional violations of the maritime frontier on the high seas by small vessels, which was rather common. Chile highlighted Article 115 of the said agreement to argue over 13 Article 1 of the Agreement relating to Measures of Supervision and Control of the Maritime Zones of the Signatory Countries reads as follows: “It shall be the function of each signatory country to supervise and control the exploitation of the resources in its Maritime Zone by the use of such organs and means as it considers necessary.” 14 Article 2 of the Agreement relating to Measures of Supervision and Control of the Maritime Zones of the Signatory Countries states that: “The supervision and control referred to in article one shall be exercised by each country exclusively in the waters of its jurisdiction.” 15 Article 1 of the 1954 Special Maritime Zone determines that: “1. A special zone is hereby established, at a distance of [‘a partir de’] 12 nautical miles from the coast, extending to a breadth of 10 nautical miles on either side of the parallel

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the existence of a maritime boundary. According to this provision, the maritime boundary between the two countries existed and was delimited by a parallel. In order to further persuade the Court of the existence of the maritime frontier, Chile also mentioned the 1968-1969 lighthouse arrangements. These arrangements concerned the construction of two lighthouses, one by each country on the point on the land border that reaches the sea, namely Boundary Maker No.1. Chile contended that these arrangements clearly expressed the parties’ intention to delimit their maritime boundaries once the Peruvian Ministry of Foreign Affairs, during its initials discussions, signed a document that determined the carrying of “an on-site study for the installation of leading marks visible from the sea to materialize the parallel of the maritime frontier originating at Boundary Marker number one (No. 1).”16

B) Peru’s Arguments Peru began its attempt to refute the existence of the maritime boundary claimed by Chile by giving its interpretation of the aforesaid 1947 proclamation. In its view, the proclamations made both by Chile and Peru that year were aimed at making a statement before third states concerning maritime resources. Peru recognized that these proclamations could be considered initial efforts in the sense of fixing a definite maritime boundary, but did not settle the maritime frontier itself. Moreover, Peru contended that these proclamations were neither agreed upon by the parties, nor did they contain a co-ordinate that might lead to the belief that their boundaries were determined. Therefore, according to Peru, the Court should consider these proclamations merely as a unilateral claim over maritime resources. Carrying on with its refutation of Chile’s arguments, Peru expressed its view concerning the 1952 Santiago Declaration. Firstly, in relation to the treaty in general, Peru stated that it only concerned the sovereignty and jurisdiction of 200 nautical miles from the coast toward the sea, but did not establish any kind of lateral boundary. Furthermore, specifically regarding the provision highlighted by Chile, in Paragraph IV, Peru contended that its purpose was only to clarify the sovereignty and jurisdiction of the islands in this specific situation in order to avoid future tensions between which constitutes the maritime boundary [‘el límite marítimo’] between the two countries.” 16 Maritime Dispute (Peru v. Chile), Judgment, I.C.J Reports 2014, p. 38, Paragraph 96.

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the countries should they ever come to fix their maritime boundaries. In fact, Peru affirmed that if the maritime boundary actually existed before the agreement it would not have been necessary to include Paragraph IV, since the maritime boundary itself would establish the entitlement of the islands. Regarding the 1954 agreements, Peru agreed with Chile that the Complementary Convention to the 1952 Santiago Declaration was indeed a reinforcement of what the signatory countries established in the 1952 Santiago Declaration. However, Peru considered that the 1952 Santiago Declaration’s only purpose was to establish regional solidarity in reason of the threat that third states represented to their natural maritime resources. That is, both Chile and Peru agreed that the Complementary Convention to the 1952 Santiago Declaration reinforced the agreement made two years before, but they diverge as to the content of the reassertion. Although Peru did not make any reference to the arguments brought up by Chile based on the Agreement relating to Measures of Supervision and Control of the Maritime Zones of the Signatory Countries, or to the agreement itself, it presented several arguments to withdraw Chile’s argument that the Agreement relating to a Special Maritime Frontier Zone established a maritime boundary. First, Peru argued that the term “two countries” found in Article 1 meant only Peru and Ecuador, and thus was not applicable to its southern maritime border. Peru then stated that Chile’s delay of nearly 40 years to ratify and register this agreement proved that Chile did not consider it to be as important as a treaty that establishes a maritime frontier. Finally, Peru alleged that the jurisdiction set forth in such an agreement was of a temporary and limited functional nature, therefore not being an indication of a definite maritime boundary. Finally, Peru set forth its interpretation of the 1968-1969 lighthouse arrangements. Its take on the building of these lighthouses is that they were clearly built as a practical solution to problems concerning coastal fishing incidents and not to establish a definite maritime boundary. To prove its point, Peru stressed the beacon’s range of a maximum of 15 nautical miles from the coast, a rather small range to be considered a permanent international maritime boundary. Moreover, Peru asserted that there was no mention of these arrangements being used as maritime frontiers between the two states during the process, nor were these arrangements related to any existing maritime delimitation.

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V. Judgment The judgment required by the parties in this case depends upon a few questions. The first and most important question the Court faced was whether the maritime boundary between Peru and Chile existed. If so, then the Court should also describe this maritime boundary. That is, the Court should determine its nature and extent as well as its starting point and its course. In this sense, the Court first analyzed all arguments presented by the parties concerning the existence of an agreed maritime boundary. To start with, the Court examined the arguments related to the 1947 proclamations. Since both parties agreed that the proclamations themselves did not establish a maritime boundary, the Court only took them into consideration if they expressed the states’ intention of a future maritime delimitation. In this account, the Court concluded, based on several of the proclamations’ characteristics such as their provisional nature and language expressing conditions related to the future, that there was evidence that the parties recognized the need to establish their maritime boundary. The arguments based on the 1952 Santiago Declaration, however, diverge as to whether it fixes the parties’ maritime boundaries or not. For this reason, the Court made a more profound interpretation of this declaration and analyzed its terms based on Article 3117 and Article 3218 of 17 Article 31 of the Vienna Convention on the Law of Treaties of 1969 reads as follows: “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 object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: 12 (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” 18 Article 32 of the Vienna Convention on the Law of Treaties of 1969 states the following: “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its

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the Vienna Convention on the Law of Treaties of 1969 (hereinafter “VCLT”). 19 The Court concluded that the 1952 Santiago Declaration did not establish an official international maritime boundary between Peru and Chile. This understanding relies essentially on the fact that the agreement does not present the characteristics expected from a treaty created with this purpose, such as specific co-ordinates and cartographic material. Besides a general lack of information, the delimitation of a lateral boundary is also non-existent. As previously stressed by Peru, the 1952 Santiago Declaration only mentions a limit of the maritime zone in Paragraph IV, and yet it does not establish lateral limits, except for island territories. The Court considers the lack of lateral limits determinant to its conclusion. Moreover, the Court analyzed the purpose of the agreement, in accordance with Article 31 of the VCLT and later it also analyzed its minutes, according to Article 32 of the VCLT. Regarding the purpose of the treaty, the Court concluded, and then confirmed in the minutes, that it was related to the protection of common natural resources that had an impact on the parties’ economy and not the delimitation of their maritime boundary. The Court then proceeded to analyze the 1954 agreements presented by Chile. Concerning the Complementary Convention to the 1952 Santiago Declaration, the Court merely acknowledged the purpose of this agreement to reassert the claim of entitlement over natural resources in the face of the threat represented by third states, since the parties agreed on this subject. Then, the Court gave its judgment concerning the Agreement relating to Measures of Supervision and Control of the Maritime Zones of the Signatory Countries and the 1954 Special Maritime Zone. Regarding the first treaty, the Court did not consider determinant the presence of the terms Chile pointed out in its argument, “in its [signatory country] maritime zone” and “exclusively in the waters of its [signatory country] jurisdiction.” On the contrary, the Court found that such terms could be related to other maritime zones such as the ones established in the 1952 Santiago Declaration. The Court noted that the maritime zones to which it refers do not represent the official maritime boundary between the countries, which is the subject of the present dispute, but rather maritime

conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” 19 Vienna Convention on the Law of Treaties of 1969 (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331).

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zones determined for specific reasons – in the case of the 1952 Santiago Declaration, the protection of natural maritime resources. With regards to the 1954 Special Maritime Zone, the Court dismissed Peru’s arguments that the meaning of the term “two countries” would refer exclusively to Peru and Ecuador and, therefore, would only be applicable to them. Furthermore, the Court also rejected Peru’s argument that Chile’s delay in the ratification and registration of the current treaty implied a lack of importance. The Court found that Chile’s apparent delay did not imply that it did not intend to establish something as important as a maritime boundary. The single argument presented by Peru that the Court accepted concerning the 1954 Special Maritime Zone was that its purpose was indeed specific. However, the Court stated that no matter how specific the agreement’s aim was, Article 1 leaves no doubt that the parties agreed on the existence of a determined maritime boundary, even if the nature and extent of such a delimitation was not clear in the provision. Finally, the Court interpreted the 1968-1969 lighthouse arrangements. In this sense it concluded that although the arrangements have a limited field of action, as agreed upon by the parties, they are based on the premise that a maritime boundary that follows a parallel beyond 12 nautical miles from the coast existed. Therefore, the Court adjudged that both the 1954 Special Maritime Zone and the 1968-1969 lighthouse arrangements indicate the existence of an agreed maritime boundary between the parties without exposing its nature and extent. Having concluded that the maritime boundary exists, the Court then faced the problem of determining the nature and extent of such a delimitation. In order to answer the first point concerning the determination of the nature of the maritime delimitation, the Court turned to the context of the 1947 proclamations and the 1952 Santiago Declaration. In such legal documents, the parties did not differentiate between the water column and the sea-bed and its subsoil. Consequently, since the parties did not see the need for such a distinction, the Court determined that the nature of the existing maritime boundary is an allpurpose one. The problem regarding the extent of the maritime boundary was ultimately more complicated. On this subject, the Court took into consideration several points, such as legislative practice, development in the law of the sea, fishing potential and activities, etc. Since the Court first recognized the existence of a maritime boundary based on the 1954 Special Maritime Frontier Agreement, and such a treaty was made in order to avoid incidents between Peruvian and Chilean fishermen of small vessels, the Court decided that the extent of such a maritime zone should

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at least include the area where these fishing activities occurred. In this sense, considering the area where the most fished species could be found in the early 1950s, the Court decided that the maritime boundary established should extend to a minimum of 60 nautical miles. However, the all-purpose nature of the said boundary implies that analyzing fishing activity alone cannot determine its extent. For this reason, the Court also turned to the states’ practice at the time. The exclusive economic zone of 200 nautical miles established nowadays by general practice and in the 1982 United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”),20 was not generally accepted back then. The parties recognized that the 200 nautical miles that they established in the 1952 Santiago Declaration did not correspond to international law at the time. In fact, the rule that was generally accepted during this period was the right to six nautical miles of territorial sea with a further fishing zone of another six nautical miles. After analyzing all considerable evidence, the Court decided that the extent of the maritime boundary established could not have trespassed 80 nautical miles along a parallel extending from its starting point. The starting point was determined by the Court, based on the 1968-1969 lighthouse arrangements, to be the Boundary Marker No.1. Finally, having established the existence, nature, and course of the existing maritime boundary, the Court deliberated about the course of the maritime boundary beyond what had already been established by the parties in the 1954 Special Maritime Frontier Agreement. In order to do so, the Court based its judgment on Article 74, Paragraph 121 of UNCLOS that establishes the need to achieve an equitable solution. The methodology used by the Court to delimit the boundary includes three different stages. The first one concerns the construction of a provisional equidistance line, the second considers the need to make any sort of adjustment, and the last regards the carrying out of a disproportionality test. After using this methodology, the Court came to the following conclusion: “The maritime boundary between the parties starts at the intersection of the parallel of latitude passing through Boundary Marker No. 1 with the low-water line, and extends for 80 20 United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay, 10 December 1982, 31363 UNTS). 21 Article 74 of the UNCLOS states the following: “The delimitation of the exclusive economic zone [continental shelf] between states with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.”

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nautical miles along that parallel of latitude to Point A. From this point, the maritime boundary runs along the equidistance line to Point B, and then along the 200-nautical-mile limit measured from the Chilean baselines to Point C.”22 The illustration of the Court’s conclusion can be seen in the map No.423 represented below:

Considering the arguments exposed by the parties and the Court, the detailed voting proceeded as follows:

22

Maritime Dispute (Peru v. Chile), Judgment, I.C.J Reports 2014, p. 67, Paragraph 196. 23 See Map No.4, Maritime Dispute (Peru v. Chile), Judgment, I.C.J Reports 2014, p. 66.

5. Maritime Dispute (Peru v. Chile), 2008 “The Court, (1) By fifteen votes to one, Decides that the starting-point of the single maritime boundary delimiting the respective maritime areas between the Republic of Peru and the Republic of Chile is the intersection of the parallel of latitude passing through Boundary Marker No. 1 with the low-water line; […] (2) By fifteen votes to one, Decides that the initial segment of the single maritime boundary follows the parallel of latitude passing through Boundary Marker No. 1 westward; […] (3) By ten votes to six, Decides that this initial segment runs up to a point (Point A) situated at a distance of 80 nautical miles from the starting-point of the single maritime boundary; […] (4) By ten votes to six, Decides that from Point A, the single maritime boundary shall continue south-westward along the line equidistant from the coasts of the Republic of Peru and the Republic of Chile, as measured from that point, until its intersection (at Point B) with the 200-nautical-mile limit measured from the baselines from which the territorial sea of the Republic of Chile is measured. From Point B, the single maritime boundary shall continue southward along that limit until it reaches the point of intersection (Point C) of the 200-nautical-mile limits measured from the baselines from which the territorial seas of the Republic of Peru and the Republic of Chile, respectively, are measured; […] (5) By fifteen votes to one, Decides that, for the reasons given in paragraph 189 above, it does not need to rule on the second final submission of the Republic of Peru.”24

24

Maritime Dispute (Peru v. Chile), Judgment, I.C.J Reports 2014, p. 67-68.

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5.2. Timeline DATE

16 January 2008

31 March 2008 and 1 April 2008

27 April 2010 and 28 April 2010

DOCUMENT

CONTENT

Press Release No.2008/1

Concerns the submission of the application instituting proceedings to the ICJ. The application was submitted by Peru against Chile and it concerns a dispute over the delimitation of maritime boundaries between both states.

Order and Press Release No. 2008/6

Determines the time limits for the filing of written proceedings, established as follows: 20 March 2009 for the Memorial of the Republic of Peru and 9 March 2010 for the Counter-Memorial of the Republic of Chile. These deadlines were based on a provisional date both Peru and Chile’s agents presented to the President of the Court at a meeting held on 14 March 2008.

Order and Press Release No.2010/11

Establishes time limits for the filing of the Reply and Rejoinder by Peru and Chile, respectively. The proposal to submit these written proceedings to the Court came from the government of Peru, in agreement with the government of Chile, at a meeting held on 12 April 2010 with the President of the Court, owing to the number of points still in dispute after the first round of written pleadings. Having the

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President of the Court authorize the submission, the deadline established was 9 November 2010 for the Reply from the Republic of Peru and 11 July 2011 for the Rejoinder from the Republic of Chile.

22 March 2012

23 November 2012

14 December 2012

Press Release No. 2012/15

Publishes the schedule of the oral proceedings, to be held from Monday 3 to Friday 14 December 2012. Also, it presents a brief history of the proceedings of the case.

Press Release No.2012/35

Concerns the relocation of the Public Hearings, which were scheduled for the press release No. 2012/15 of 22 March 2012, due to the renovation of the Great Hall of Justice of the Peace Palace. This press release determines the seating location and the permitted number of the Diplomatic Corps, the press, and the public. In addition, it settles the rules and media information required specifically by the press.

Press Release No. 2012/37

Announces the end of the oral proceedings and declares the beginning of the Court’s deliberation. It then presents the leading agents of the public hearings: Mr. Allen Wagner from the delegation of Peru and Mr. Albert van Klaveren Stork from the delegation of Chile. Afterwards, it points out each of the parties’ final submissions to the Court.

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13 December 2013

Press Release No. 2013/40

Declares that the Court is to deliver its judgment on the case on 27 January 2014. The document also establishes the rules for admission for the diplomatic corps, members of the public, and media representatives. It also provides practical information to the press.

27 January 2014

Press Release No. 2014/2

Informs that the Court established the course of a single maritime boundary between Peru and Chile.

Bibliography CAZALA, Julien (2008) ‘Retour sur les méthodes de délimitation juridictionnelle d’espaces maritimes mises en oeuvre dans quelques affaires récentes,’ AFDI, vol. 54, pp. 411-427. CRAWFORD, James (2012) ‘Maritime Dispute (Peru v Chile) The Boundary Agreement.’ ERAZO, Jaime Lagos (2014) ‘Proceedings concerning the Maritime Dispute (Peru v. Chile),’ Revista Tribuna Internacinal, 3: 33-59. GUTIERREZ CASTILLO, V. (2006) ‘Le Chili versus le Pérou: étude sur leurs conflits frontaliers dans l’océan Pacifique,’ ADM, tome 11. HORNA, Angel V (2009) ‘Maritime Dispute (Peru v. Chile): Background and Preliminary Thoughts,’ Ocean Yearbook, 23: 193-229. JAIN, Abhimanyu George (2015) ‘Maritime Dispute (Peru v. Chile),’ The American Journal of International Law, 109. No. 2: 379-389. LIRA, Cristián Delpiano (2011) ‘Delimitación Marítima en el Derecho Internacional: La Tesis Chilena Frente al Conflicto de Límites con el Perú.’ RIESENBERG, David P. (2014) ‘(Introductory Note to) Maritime Dispute (Peru v. Chile) (I.C.J.),’ International legal materials: current documents, 53. No. 3: 425-476.

6. TERRITORIAL AND MARITIME DISPUTE BETWEEN NICARAGUA AND HONDURAS IN THE CARIBBEAN SEA (NICARAGUA V. HONDURAS), 1999

6.1. Summary This case concerns the dispute between the Republic of Nicaragua (hereinafter “Nicaragua”) and the Republic of Honduras (hereinafter “Honduras”) on the delimitation of their maritime boundaries in the Caribbean Sea as well as the recognition of sovereignty over certain islands in this area.

I. Facts A) Geography Nicaragua and Honduras are neighbor states in Central America, with the first located south of the latter. Both have access to the Pacific Ocean on their west coast, and the Caribbean Sea on their east coast. The dispute involving the two states specifically concerns the maritime boundary and islands’ sovereignty in the Caribbean Sea. The territorial borderline of Nicaragua and Honduras up to their eastern coast is determined by the course of the River Coco. This river forms a delta and flows into the Caribbean Sea at Cape Gracias a Dios, which is the point that forms the states’ boundary along their eastern coastline. The coastlines nearly structure a right angle that extends out to the ocean. Moreover, because of its intense morpho-dynamism, the mouth of the River Coco is continuously changing shape and forming unstable islands and shoals.

B) History Both Nicaragua and Honduras were Spanish colonies until 1821. Upon independence, they were granted sovereignty over the territory formerly

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belonging to each province. The islands comprised in such territories were not identified by name at the time. After the process of independence, both states attempted to clearly determine their boundaries on several occasions. On 7 October 1894, the Gámez-Bonilla Treaty was concluded, generally determining the boundaries between both states, and entering into force in 1896. This treaty confirmed the method – the uti possidetis juris principle – used by the Spanish government in attributing sovereignty over the provinces’ territory upon Nicaragua and Honduras’ independence. The principle determines that recently formed states ought to have sovereignty over the same extent of territory as their prior sovereign entity. Later, based on the above-mentioned treaty, a Mixed Boundary Commission was created to delimit, in more specific terms, the boundaries between the two states. This delimitation, however, was not sufficient to clearly decide the matter. For this reason, Nicaragua and Honduras requested, as provided in Article 3 of the Gámez Bonilla Treaty, that the King of Spain, King Alfonso XIII, arbitrate the demarcation of the remaining area. Such a request resulted in the 1906 Arbitral Award delivered by the King on 19 March 1912. Nevertheless, Nicaragua questioned not only the validity of the said Award but also its obligation to fulfill it. This denial meant that the matter was not settled until 1957. That year, the Organization of American States (hereinafter “OAS”) was able to make Nicaragua and Honduras agree on taking the questions related to the Arbitral Award to the International Court of Justice (hereinafter “ICJ”). In its judgment, the Court reaffirmed the validity and binding force of the document. Although the controversy on the validity of the 1906 Arbitral Award was settled, its implementation remained a matter of dispute between Honduras and Nicaragua. In an attempt to diminish this dispute, Nicaragua requested that the Inter-American Peace Committee intervene. As a result, in 1962 the Commission established by the Committee determined the land boundary by distributing several markers. The conflict between Nicaragua and Honduras was apparently settled, in 1977, when Nicaragua began negotiations with Honduras on the maritime boundary in the Caribbean Sea. Later, the parties were compelled to create several Mixed Commissions due to a series of incidents concerning mutual attacks on fishing vessels. Neither one of the efforts were effective in deciding upon the delimitation of a maritime boundary. For this reason, on 29 November 1999 Nicaragua submitted the dispute to the ICJ by filing an application instituting proceedings against Honduras.

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II. Jurisdiction In the present case, Nicaragua attributed competence to the ICJ for the settlement of the dispute based on Article 311 of the American Treaty on the Pacific Settlement (hereinafter “Pact of Bogotá”).2 Nicaragua relied as well on both parties’ declarations accepting the compulsory jurisdiction of the ICJ under the terms of Article 36, Paragraph 2, of the Statute of the Court.

III. Matters of Dispute As mentioned, the current dispute concerns the delimitation of the maritime boundary in the Caribbean Sea between Nicaragua and Honduras. This was the initial request made by Nicaragua in its application instituting proceedings. However, during the proceedings, Nicaragua requested that the Court also determine sovereignty over certain islands, namely Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay – all of which, for geographical reasons, the Court considered inappropriate to examine. This request was the object of a judgment of admissibility, but was not pleaded in the application. The Court adjudged the matter admissible since it would already have to decide upon the sovereignty of the islands in order to determine the maritime boundary. That is to say, Nicaragua’s request to the Court for a judgment on the sovereignty over the islands was only considered admissible because it was comprised in the original request presented in the application instituting proceedings.

1 Article XXXI of The Pact of Bogotá asserts:"In conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice, the high contracting parties declare that they 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 them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.” 2 American Treaty on Pacific Settlement (Pact of Bogota) (Bogotá, 30 April 1948, 30 UNTS 449).

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Having determined that the Court should decide on two different matters – the delimitation of the maritime boundary and the attribution of sovereignty – it was imperative to establish a critical date. This date determined which events were relevant for assessing and validating effectivités. On this matter the Court decided that, considering the two different questions in dispute, it was necessary to stipulate two distinct dates. Next the Court decided that these dates were 21 March 2001 for sovereignty of the islands and 21 March 1977 for the maritime boundary between the parties. The critical date to decide the sovereignty of the islands was based on the date of the filing of the Memorial by Nicaragua, that is to say the day that Nicaragua first requested such sovereignty. The critical date for the delimitation of a maritime boundary was determined to be 1977 based on the fact that it was that year that Nicaragua began initiating negotiations with Honduras on the matter. Keeping these points in mind, the parties’ final submissions are, on behalf of Nicaragua: “The bisector of the lines representing the coastal fronts of the two parties as described in the pleadings, drawn from a fixed point approximately 3 miles from the river mouth in the position 15° 02' 00" N and 83° 05' 26" W, constitutes the single maritime boundary for the purposes of the delimitation of the disputed areas of the territorial sea, exclusive economic zone and continental shelf in the region of the Nicaraguan Rise. The starting-point of the delimitation is the thalweg of the main mouth of the River Coco such as it may be at any given moment as determined by the Award of the King of Spain of 1906. Without prejudice to the foregoing, the Court is required to decide the question of sovereignty over the islands and cays within the area in dispute.”3

On behalf of Honduras: “The islands Bobel Cay, South Cay, Savanna Cay and Port Royal Cay, together with all other islands, cays, rocks, banks and reefs claimed by Nicaragua which lie north of the 15th parallel are under the sovereignty of the Republic of Honduras.

3

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 13.

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The starting-point of the maritime boundary to be delimited by the Court shall be a point located at 14° 59.8' N latitude, 83° 05.8' W longitude. The boundary from the point determined by the Mixed Commission in 1962 at 14° 59.8' N latitude, 83° 08.9' W longitude to the starting-point of the maritime boundary to be delimited by the Court shall be agreed between the parties to this case on the basis of the Award of the King of Spain of 23 December 1906, which is binding upon the parties, and taking into account the changing geographical characteristics of the mouth of the river Coco (also known as the river Segovia or Wanks). East of the point at 14° 59.8' N latitude, 83° 05.8' W longitude, the single maritime boundary which divides the respective territorial seas, exclusive economic zones and continental shelves of Honduras and Nicaragua follows 14° 59.8' N latitude, as the existing maritime boundary, or an adjusted equidistance line, until the jurisdiction of a third state is reached.”4

The final submissions of each of the parties is more clearly illustrated in the Sketch-map No. 25 below:

4

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 14. 5 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 31. Sketch-map No.2.

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IV. Meerits A) Honduras’ss Argumentss According tto its final suubmissions, Honduras claim med the existeence of a previously eestablished maaritime bound dary and allegeed to have sovereignty over the islaands of Bobel Cay, Savann na Cay, Port Royal Cay, and a South Cay. With rregards to the latter, Hondu uras presentedd evidence su uch as the principle off uti possidetiss juris and paast effectivitéss, among otheers, to the Court. First, thee principle of uti possidettis juris was used by Hon nduras to prove its sovvereignty oveer the islands by b alleging thhat it was the only o state

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to claim such sovereignty following independence. In other words, from Honduras’s point of view, the fact that it was the only state to claim and exercise sovereignty over the islands following independence implies it has rights over them. In order to prove that it in fact exercised sovereignty over the islands, Honduras presented a series of effectivités. The Court separated such effectivités into different categories, namely legal and administrative control, application and enforcement of criminal and civil law, regulation of immigration, regulation of fisheries activities, naval patrols oil concessions, and public works. At this point it is important to recall that the effectivités presented by Honduras had to concern the critical date set by the Court on the issue of sovereignty over the islands, namely 21 March 2001. That is to say, the only relevant effectivités on the matter were the ones that happened before the established date. On this subject, Honduras presented several criminal complaints over the islands from the 1990s to 2001 in the category of application and enforcement of criminal and civil law effectivités. It also brought before the Court immigration and work permits as well as fishing permits granted to the inhabitants of the islands as evidence of immigration and fishery regulations. Moreover, as an indication of a public work on the said islands, Honduras submitted to the Court an authorization granted by its government for the construction of a private antenna on Bobel Cay. Beyond the principle of uti possidetis juris and the effectivités that enforce it, Honduras, still hoping to persuade the Court of its sovereignty over the islands, presented maps and bilateral treaties with third states. The purpose of the latter was to demonstrate that third states recognized Honduras’s sovereignty over the islands. In fact, as an attempt to also expose such recognition, Honduras brought before the Court the history of negotiations of a Central America-Dominican Republic Free Trade Agreement. This agreement included an annex that provided that the Media Luna cays were under its sovereignty. According to Honduras, the Media Luna cays referred to a group of islands that included Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay. Moving on to the second matter under dispute, Honduras held to the existence of a previous traditional maritime boundary between the two states. To sustain this point, Honduras once again relied on the principle of uti possidetis juris and defended an existing tacit agreement between Nicaragua and Honduras on the matter. Concerning the principle uti possidetis juris, Honduras did not present any argument as to why was such a principle applicable in this case. It limited itself to alleging that the maritime boundary enforced between the

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two parties was the one delimited by the 15th parallel extending from the Cape Gracias a Dios. Honduras defended the existence of that specific maritime delimitation based on the idea of a tacit agreement not only between Honduras and Nicaragua but also within the scope of the international community. To prove this tacit agreement, it presented bilateral treaties with third states and reports of international organizations, such as the Food and Agricultural Organization, the Inter-American Development Bank, and the United Nations Development Programme. It also alleged that Nicaragua was silent as to oil concessions made by Honduras in the area and even agreed on the delimitation regulating fishing.

B) Nicaragua’s Arguments Nicaragua argued that neither the matter of sovereignty over the islands nor the delimitation of a maritime boundary between the two states was settled. From its point of view, the sovereignty of the islands was never established, and the maritime boundary was not clearly or officially determined, since it was the Court’s task to adjudge such matters. Regarding the sovereignty of the islands, Nicaragua alleged that the principle of uti possidetis juris could not be used to determine the matter since the Spanish government did not attribute the features to one state or another. Nicaragua also put forward that there was no specific treaty regulating the matter, nor did the 1906 Arbitral Award decide upon it. In this scenario, Nicaragua requested the Court to declare that it had sovereignty over them due to the fact that it already had sovereignty over the island closest to the islands’ coasts. Nicaragua, however, did not present any effectivités that would further imply its sovereignty. Concerning the delimitation of the maritime boundary, Nicaragua denied the existence of a previous boundary established by a tacit agreement. To sustain such a position, it first affirmed that the reports Honduras presented by international organizations did not intend to express their position on the maritime boundaries between Nicaragua and Honduras. Moreover, Nicaragua alleged that during the exchange of diplomatic negotiations initiated after the attacks of fishing vessels near the 15th parallel, although the Honduran government first asserted that the 15th parallel was a traditional boundary between the two countries, the

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same government came to admit that “the maritime border between Honduras and Nicaragua [had] not yet been legally delimited.”6 As a response to the Honduran argument that Nicaragua agreed on the traditional maritime boundary regulating fishing, Nicaragua maintained that it had never accepted or recognized the so-called “traditional” maritime boundary, namely the 15th parallel. It even maintained that this argument was flawed due to the simple fact that Nicaragua occupied part of the Honduran territory until 1960, when the Court affirmed the validity and binding character of the 1906 Arbitral Award. Indeed, Nicaragua argued that this fact also explained why, from its perspective, the oil concessions made by Honduras, on which point Nicaragua was accused of being silent, failed to provide a clear boundary.

V. Judgment While delivering its judgment the Court first decided upon the matter of the sovereignty of the Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay islands. Although the uti possidetis juris principle, the maps and the bilateral treaties with third states preselected by Honduras were rejected by the Court on this matter, it still attributed sovereignty to Honduras over such islands based on the effectivités exposed. The uti possidetis juris principle was rejected because the Court considered that Honduras was unable to present evidence to prove that the Spanish government had, in any way, attributed such territories to the Honduran province, before its independence, or to the Honduran state, after its independence. According to the Court, such an attribution was essential for the application of the principle. The maps brought before the Court by Honduras were dismissed as insufficient to prove sovereignty over the islands. Finally, the Court dismissed the bilateral agreements, primarily because of Nicaragua’s clear opposition to such treaties. The sovereignty of Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay were granted to Honduras because it proved, through effectivités, that it had been, even for a very short period, exercising jurisdiction over these territories as if it had sovereignty over them. The Court recognized that the fact that Honduras claimed sovereignty and Nicaragua did not was not sufficient in itself to settle the matter. However, it highlighted that Nicaragua was unable to present any relevant effectivités that would prove its domain or interest over the islands. Its only argument 6

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 25.

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was that it had sovereignty over the closest island to these coasts. The Court rejected such an argument, alleging that the adjacency provided in the independence treaties had to do with the states’ mainland and not offshore territory. Therefore, the Court decided that sovereignty over the islands ought to be attributed to Honduras. Regarding the second matter under dispute, namely the maritime boundary in the Caribbean Sea between Nicaragua and Honduras, the Court decided that there was no traditional preexisting one. For this reason, it considered the parties’ proposals and clearly delimited the boundary. The Court rejected Honduras’s argument that there existed a traditional boundary, established by the principle of uti possidetis juris along the 15th parallel, and enforced by a tacit agreement. The principle of uti possidetis juris was dismissed by the Court for the same reason it was dismissed in the case of sovereignty over the islands, namely because of the lack of a maritime boundary delimited by the Spanish government. Indeed, the Spanish government had no need to determine such delimitation for its provinces, and did not do so in the 1906 Arbitral Award either. The tacit agreement was, in turn, rejected by the Court, primarily because of the exchange of diplomatic notes between the two parties, in which Nicaragua denied the existence of the said tacit agreement and Honduras admitted the non-existence of a legally delimited boundary. Having decided that a maritime boundary between Nicaragua and Honduras did not exist, it was then up to the Court to determine one. In order to do so, it applied the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”).7 By the time Nicaragua filed the application instituting proceedings, it was not party to UNCLOS. However, it agreed to apply the convention together with Honduras, since it became party to it afterwards and it contained important provisions applicable to the dispute at hand. Article 158 of UNCLOS establishes the principle of equidistance. This provision determines that the rule on delimiting a maritime boundary

7

United Nations Convention on the Law of the Sea (UNCLOS) (Montego Bay, 10 December 1982, 1833 UNTS 31363). 8 Article 15 of the UNCLOS provides the following: “Where the coasts of two states are opposite or adjacent to each other, neither of the two states is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two states is measured. The above provision does not apply, however, where it is necessary by

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between two adjacent coasts should be the drawing of an equidistant line between them. However, even though Honduras mentioned such a method in its final submissions, both parties agreed that the establishment of an equidistant line, as just as it may be in the present, may lead to a disproportioned division in the future, due to the active morpho-dynamics of the mouth of River Coco. In order to solve such a dilemma, the Court highlighted that although an equidistance line is the rule, in virtue of what the provision called “special circumstances” it is possible to use different, and yet not less valid, methods. From the Court’s point of view and based on the provision that originated Article 15 of the UNCLOS – Article 129 of the 1958 Convention on the Territorial Sea and the Contiguous Zone10 – the particular morpho-geography of the coast in this case falls under an exception entitled “special circumstances”. For this reason, the Court decided that Nicaragua’s proposal to establish a bisector line was appropriate, given that it considered it as a substitute to the equidistance line. Considering the arguments outlined above, the Court decided on the sovereignty of the Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay islands and the delimitation of the territorial sea, as well as the delimitation, course, starting-point, and endpoint of the maritime boundary between Nicaragua and Honduras in the Caribbean Sea, as follows: “(1) Unanimously, Finds that the Republic of Honduras has sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay and South Cay;

reason of historic title or other special circumstances to delimit the territorial seas of the two states in a way which is at variance therewith.” 9 Article 12 of the 1958 Convention on the Territorial Sea and the Contiguous Zone rules as follows: “Where the coasts of two states are opposite or adjacent to each other, neither of the two states is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two states is measured. The provisions of this paragraph shall not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two states in a way which is at variance with this provision. 2. The line of delimitation between the territorial seas of two states lying opposite to each other or adjacent to each other shall be marked on large-scale charts officially recognized by the coastal states.” 10 Convention on the Territorial Sea and the Contiguous Zone (Geneva, 29 April 1958, 516 UNTS 7477).

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Chapter III (2) By fifteen votes to two, Decides that the starting-point of the single maritime boundary that divides the territorial sea, continental shelf and exclusive economic zones of the Republic of Nicaragua and the Republic of Honduras shall be located at a point with the co-ordinates 15° 00' 52" N and 83° 05' 58"; […] (3) By fourteen votes to three, Decides that starting from the point with the co-ordinates 15° 00' 52" N and 83° 05' 58" W the line of the single maritime boundary shall follow the azimuth 70° 14' 41.25" until its intersection with the 12-nautical-mile arc of the territorial sea of Bobel Cay at point A (with co-ordinates 15° 05' 25" N and 82° 52' 54" W). From point A the boundary line shall follow the 12nautical-mile arc of the territorial sea of Bobel Cay in a southerly direction until its intersection with the 12-nautical-mile arc of the territorial sea of Edinburgh Cay at point B (with co-ordinates 14° 57' 13" N and 82° 50' 03" W). From point B the boundary line shall continue along the median line which is formed by the points of equidistance between Bobel Cay, Port Royal Cay and South Cay (Honduras) and Edinburgh Cay (Nicaragua), through point C (with co-ordinates 14° 56' 45" N and 82° 33' 56" W) and D (with co-ordinates 14° 56' 35" N and 82° 33' 20" W), until it meets the point of intersection of the 12-nautical-mile arcs of the territorial seas of South Cay (Honduras) and Edinburgh Cay (Nicaragua) at point E (with coordinates 14° 53' 15" N and 82° 29' 24" W). From point E the boundary line shall follow the 12-nautical-mile arc of the territorial sea of South Cay in a northerly direction until it meets the line of the azimuth at point F (with co-ordinates 15° 16' 08" N and 82° 21' 56" W). From point F, it shall continue along the line having the azimuth of 70° 14' 41.25" until it reaches the area where the rights of third states may be affected; […] (4) By sixteen votes to one, Finds that the parties must negotiate in good faith with a view to agreeing on the course of the delimitation line of that portion of the territorial sea located between the endpoint of the land boundary as established by the 1906 Arbitral Award and the starting-point of the single maritime boundary determined by the Court to be located at the point with the coordinates 15° 00' 52" N and 83° 05' 58" W.”11

And illustrated in the Sketch-map12 below:

11 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 105. 12 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007, p. 107.Sketch-Map No.8.

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6.2. Timeline DATE

DOCUMENT

CONTENT

Press Release No.1999/40

Reports the submission of an application by Nicaragua to the Court, in which the country institutes proceedings against Honduras and asks that the ICJ determine a single maritime boundary between the countries.

Order and Press Release No.2000/10

States the time limits that the ICJ fixed for the filing of the written pleadings. The dates fixed by the Court were 21 March 2001 for Nicaragua’s Memorial and 21 March 2002 for Honduras’s Counter-Memorial.

Order and Press Release No.2002/17

The Court replies to a request by both parties that a Reply by Nicaragua and a Rejoinder by Honduras be authorized. The ICJ responds positively to the request and fixes the following time limits for these: 13 January 2003 for Nicaragua’s Reply and 13 August 2003 for Honduras’s Rejoinder.

19 July 2006

Press Release No.2006/31

Informs that the Public Hearings of the case will open on March 5 2007, when the parties will discuss the merits of the dispute before the ICJ.

13 February 2007

Press Release No.2007/7

Discloses the schedule of the aforementioned Public Hearings.

8 December 1999

21 March 2000 and 23 March 2000

13 June 2002 and 18 June 2002

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13 September 2007

8 October 2007

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Press Release No.2007/9

Notifies the conclusion of the Public Hearings held by the Court, which will now begin its deliberation.

Press Release No.2007/19

Sets the date when the Court’s final decision will be revealed. 8 October 2007 is the day chosen for the public seating when the judgment of the case will be read by the President of the Court, judge Rosalyn Higgins.

Press Release No.2007/23

Concerns the content of the judgment released by the Court on 8 October 2007. In its final decision, the ICJ finds that Honduras has sovereignty over Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay. The Court also draws a single maritime boundary between the two countries.

Bibliography DE LA LAFAYETTE, Louise Angélique (2009) ‘Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea Case (Nicaragua v Honduras),’ Max Planck Encyclopedia of Public International Law. Online. Available

KIRK, Elizabeth A. (2008) ‘I. Case Concerning Territorial and Maritime Dispute Between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras),’ Judgment of 8 October 2007’, International and Comparative Law Quarterly, 57: 701-709. LATHROP, Coalter G. (2008) ‘Territorial and Maritime Dispute Between Nicaragua And Honduras In The Caribbean Sea (Nicaragua v. Honduras),’ The American Journal of International Law, Vol. 102. No. 1, pp. 113-119’ January 2008. Online. Available: http://www.jstor.org/stable/40007771

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NAVIA, Rafael Nieto (2009) ‘La Decisión de la Corte Internacional de Justicia Sobre Excepciones Preliminares en El Caso de Nicaragua v. Colombia,’ Anuario Colombiano de Derecho Internacional, 2: 11-57. ROS, Nathalie (2007) ‘L’arrêt rendu par la Cour internationale de justice le 8 octobre 2007 en l’affaire du différend territorial et maritime entre le Nicaragua et le Honduras dans la mer des Caraïbes,’ ADM, vol. 12, pp. 9-64. SALGAR, Carlos, and TREMOLADA, Eric (2008) ‘El Caribe Occidental en la Corte Internacional de Justicia: Comentarios a las Últimas Decisiones de la Corte a las Demandas Interpuestas por Nicaragua contra Honduras y Colombia,’ Revista Derecho Del Estado, 28: 223246.

7. CASE CONCERNING THE ARBITRAL AWARD MADE BY THE KING OF SPAIN ON 23 DECEMBER 1906 (HONDURAS V. NICARAGUA), 1960

7.1. Summary This case concerns a dispute between the Republic of Honduras (hereinafter “Honduras”) and the Republic of Nicaragua (hereinafter “Nicaragua”) over the Arbitral Award rendered by the King of Spain on 23 December 1906 to establish an international boundary between the two states.

I. Facts On 7 October 1894 Honduras and Nicaragua signed the Gámez-Bonilla Treaty, the aim of which was to settle the boundary between them through the creation of a Mixed Commission. The treaty also established that whatever points remained unsolved by the Commission should be taken to an arbitral tribunal, made up of a representative of each state and a member of the Diplomatic Corps accredited to Guatemala. The GámezBonilla Treaty further determined that, should it be impossible for a public figure of the Diplomatic Corps to participate in the arbitral tribunal, matters still in dispute should be submitted to the Spanish government. As a result, the parties involved submitted unsettled matters regarding the delimitation of their boundary to an arbitral tribunal. On 2 December 1899 and 21 August 1902, their representatives unsuccessfully attempted to designate a third member of this tribunal. They took no further measure until 1 October 1904, when they met with the Spanish Minister in Central America. On that occasion, they accepted to refer the matter to the King of Spain, who would act as arbitrator. The Spanish Minister formally notified the head of state of both countries. Shortly afterward, the Presidents of Honduras and Nicaragua expressed their wish that the King of Spain accept such a position. On 17 October 1904, notification of the King of Spain’s acceptance

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was sent to the Spanish Minister in Central America, who promptly informed the governments of Honduras and Nicaragua. On 21 October 1904 and 24 October 1904, the Spanish Minister in Central America suggested that the President of Honduras and the President of Nicaragua, respectively, extend the term of the Gámez-Bonilla Treaty, since the agreement, according to Article XI,1 would soon expire. Nevertheless, no one took action in this regard. Over two years later, on 23 December 1906, the King of Spain delivered an Arbitral Award. On 25 December 1906, the President of Nicaragua sent a congratulatory telegram to the President of Honduras, since he considered the decision made by the King of Spain regarding the boundary delimitation to be favorable to Honduras. On that occasion, the Nicaraguan head of state also stated that the controversy was resolved in a satisfactory manner. Finally, on 9 January 1907, the Nicaraguan Minister of Foreign Affairs sent a note of appreciation to the Spanish Chargé d’Affaires regarding the King of Spain’s courtesy in resolving the dispute. On 28 January 1907, the Arbitral Award was published in full in Nicaragua’s Official Gazette. Later, on 1 December 1907, the President of Nicaragua addressed the country’s National Legislative Assembly, reaffirming his satisfaction with the solution rendered by the King of Spain. For the first time, however, he stated that such a decision required clarification in order to be implemented, since it allegedly contained obscure and contradictory points. On 26 December 1907, the Nicaraguan Minister of Foreign Affairs also addressed the Nicaraguan National Legislative Assembly and reiterated the President’s position that the King of Spain should clarify his decision. Despite these pronouncements, Nicaragua did not formally request clarification from the King of Spain. On 19 March 1912, Nicaragua challenged the validity of the nomination of the King of Spain as well as his decision in a note sent to 1

Article XI of the Gaméz-Bonilla Treaty reads as follows: “The periods stipulated in this treaty for the appointment of arbitrators, the initiation of studies, the ratifications and the exchange thereof, as well as any other periods herein fixed, shall not be fatal nor shall they in any way produce nullity. The object of these periods has been to speed up the work; but if for any reason they cannot be complied with, it is the will of the high contracting parties that the negotiation be carried on to its conclusion in the manner herein stipulated, which is the one they deem most appropriate. To this end they agree that this Treaty shall be in force for a period of ten years, in case its execution should be interrupted, within which period it may be neither revised nor amended in any manner whatever, nor the matter of boundaries be settled by any other means.”

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the Foreign Minister of Honduras. In 1920, Nicaragua also alleged that the Gámez-Bonilla Treaty had expired on 7 October 1904, rendering invalid the entire Arbitral Award process carried out by the King of Spain. Considering Nicaragua’s position, Honduras submitted an application instituting proceedings against Nicaragua to the International Court of Justice (hereinafter “ICJ”) on 1 July 1958.

II. Jurisdiction When addressing the present dispute to the ICJ, Honduras relied upon the Washington Agreement of 21 July 1957 (hereinafter “Washington Agreement”), to which both Honduras and Nicaragua were parties, as the basis of jurisdiction. Moreover, in its application, Honduras also presented declarations of acceptance of compulsory jurisdiction according to Article 36, Paragraph 22 of the Statute of the Court submitted by both states.

III. Matters of Dispute Honduras submitted the case to the Court in order to enforce compliance with the King of Spain’s Arbitral Award, since Nicaragua had repeatedly denied its validity on various occasions. Accordingly, Honduras presented, as final submissions, the following requests: “May it please the Court: I. To adjudge and declare that the government of the Republic of Nicaragua is under an obligation to give effect to the arbitral award made on 23 December 1906 by His Majesty the King of Spain. II. Furthermore, to place on record the reservation which the government of Honduras formulates in regard to its right to ask for compensation in respect of the prejudice that has been caused to it as a result of the nonexecution of the said arbitral award. III. To reject the submissions of Nicaragua. The government of Honduras will be able to give these submissions a final character, to modify them or to supplement them after hearing the 2

Article 36, Paragraph 2 of the Statute of the Court states that: “2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.”

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Nicaragua, when presenting its defense before the Court, challenged the validity of the Award in the following ways: “May it please the Court, Rejecting the submissions of Honduras, I. To adjudge and declare that the decision given by King Alfonso XII1 on 23 December 1906 invoked by Honduras does not possess the character of a binding arbitral award; II. To adjudge and declare that the so-called 'arbitral' decision is in any case incapable of execution by reason of its omissions, contradictions and obscurities; III. To adjudge and declare in consequence that Nicaragua and Honduras are in respect of their frontier in the same legal situation as before 23 December 1906; IV. To adjudge and declare in consequence that, as al1 phases of the disagreement have not been settled by the Judgment of the Court, the parties are bound, in accordance with the agreement reproduced in the resolution of 5 July 1957 of the Organization of American States, to conclude an additional agreement within a period of three months from the date of the delivery of the judgment, with a view to submitting forthwith the disagreement concerning their frontier to the arbitral procedure provided by the Pact of Bogotá.”4

In analyzing Honduras and Nicaragua’s final submissions, it may be concluded that the task before the Court was to adjudge whether or not the Award was valid and binding for the parties involved. The Court recalled, furthermore, that it was not acting as a Court of Appeal, since the GámezBonilla Treaty established that the arbitration would settle the matter without the possibility of appeal. Therefore, the Court was not to consider the merit of the decision delivered by the King of Spain. Rather, it had only to decide whether such a decision was valid and capable of execution, and thus binding for Nicaragua.

3

Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J reports 1960, p.8-9. 4 Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J reports 1960, p.10-11.

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IV. Merits A) Nicaragua’s Arguments The first contention Nicaragua put forward was that the procedures established by the Gámez-Bonilla Treaty were not exhausted before the King of Spain was designated as arbitrator of the dispute between Honduras and Nicaragua. From Nicaragua’s perspective, considering Article 35 and Article 56 of the treaty, the possibility of creating an arbitral tribunal composed of three public figures was not fulfilled, since only two members of the Diplomatic Corps accredited to Guatemala were recruited. There was no other attempt to request the participation of other members of the Diplomatic Corps or any other foreign or Central American public figure, as provided for in Article 5. For this reason, Nicaragua considered both the designation of the King of Spain as sole arbitrator of the dispute and his Arbitral Award to be invalid. Even if the Court considered the designation of the King of Spain as valid, Nicaragua argued, as its second contention, that the Arbitral Award was invalid due to the Gámez-Bonilla Treaty no longer being in force both at the time of the King’s acceptance of the role of arbitrator and, evidently, at the time that the Award was delivered. Nicaragua based this contention on Article XI of the Gámez-Bonilla Treaty, which established that the agreement would be in force for a period of ten years. The treaty was signed on 7 October 1894 and lapsed, according to Nicaragua, on 7 October 1904, ten days before the King accepted to arbitrate the dispute. 5

Article 3 of the Gámez-Bonilla Treaty provides that: “The point or points of the boundary line which may not have been settled by the Mixed Commission referred to in this Treaty, shall be submitted, no later than one month after the final session of the said Commission, to the decision, without appeal, of an arbitral tribunal which shall be composed of one representative for Honduras and another for Nicaragua, and of one Member of the foreign Diplomatic Corps accredited to Guatemala, the latter to be elected by the first two, or chosen by lot from two lists each containing three names, and proposed one by each party.” 6 Article 7 of the Gámez-Bonilla Treaty rules that: “In case the foreign Diplomatic Representative should decline the appointment, another election shall take place within the following ten days, and so on. When the membership of the foreign Diplomatic Corps is exhausted, any other foreign or Central American public figure may be elected, b y agreement of the Commissions of Honduras and Nicaragua, and should this agreement not be possible, the point or points in controversy shall be submitted to the decision of the government of Spain, and, failing this, to that of any South American government upon which the Foreign Offices of both countries may agree.”

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Thus, Nicaragua considered that the treaty’s ten-year validity period began when it was signed, not when it was ratified, which happened on 24 December 1986. This interpretation is based on the fact that Article IX7 of the Gámez-Bonilla Treaty provided for the creation of a Mixed Commission prior to the ratification of the treaty. Nicaragua also requested that the Court nullify the King’s Arbitral Award. Despite Honduras’s position on the matter, Nicaragua believed it was in the right due to the reservation Honduras made to the Washington Agreement, expressed in Appendix B8 of the document. Nicaragua based this third contention on evidence that the King of Spain allegedly exceeded his jurisdiction, that the Award itself contained an essential error, according to Nicaragua’s interpretation of the documents and other evidence presented to the King of Spain, and, finally, that the basis of the decision was unfounded. Specifically with regards to the allegation that the King of Spain exceeded his jurisdiction, Nicaragua contended that the situation resulted from a lack of observance of Article 29 of the Gámez-Bonilla Treaty and 7

Article IX of the Gámez-Bonilla Treaty reads as follows: “The provision in the preceding article shall in no way hinder the immediate organization of the Mixed Commission, which shall begin its studies no later than two months after the last ratification, in conformity with the provisions of the present Convention, without prejudice to so doing prior to the ratifications, should these be delayed, in order to take advantage of the dry or summer season.” 8 Appendix B of the Washington Agreement states that: “Nicaragua, when it appears before the International Court of Justice, will answer the claim of Honduras, presenting reasons, actions, and facts, and opposing the exceptions that it considers appropriate, in order to impugn the validity of the Arbitral Award of 23 December 1906, and its compulsory force, and also invoking al1 those rights that may be in its interest. Nicaragua has maintained and now maintains that its boundaries with Honduras continue in the same legal status as before the issuance of the above mentioned Arbitral Award. The foregoing reference to the position of Nicaragua in this proceeding is only of a general nature and in no wise constitutes a definition or limitation of the matter to be submitted to the Court, or a formula that restricts in any way the exercise of the right that Nicaragua will maintain before the Court.” 9 Article 2 of the Gámez-Bonilla Treaty rules that: “The Mixed Commission, composed of an equal number of members appointed by both parties, shall meet at one of the border towns which offers the greater conveniences for study, and shall there begin its work, adhering to the following rules: 1. Boundaries between Honduras and Nicaragua shall be those lines on which both Republics may be agreed or which neither of them may dispute. 2. Those lines drawn in public documents not contradicted by equally public documents of greater force shall also constitute the boundary between Honduras and Nicaragua. 3. It is to be understood

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compliance with the same provision. This provision sets out the rules that the Mixed Commission should have observed while delimiting the land boundary between Honduras and Nicaragua. According to Nicaragua, the King of Spain exceeded his jurisdiction by establishing compensations while delimiting the land boundary, as provided for in Article 2, Paragraph 6 of the treaty, since such power was exclusively delegated to the Mixed Commission. At the same time, Nicaragua contended that the King of Spain exceeded his jurisdiction by failing to observe the rules established in Article 2, Paragraph 3 of the treaty. Concerning this last point, Nicaragua upheld that the King of Spain disregarded this rule by granting Honduras territories that belonged to Nicaragua at the time of independence, as evidenced in certain historical documents. Finally, Nicaragua requested the Court to declare that, even if it considered the King of Spain’s Arbitral Award to be valid, its execution was impossible due to inherent omissions, contradictions, and obscurities. In order to illustrate this, Nicaragua showed how the Award used the mouth of the Segovia or Coco rivers as a delimiting point, which was meaningless, since the mouth of a river is not a fixed location. Lastly, it pointed out that the Award also left kilometers of space unaccounted for in the delimitation line.

that each Republic is owner of the territory which at the date of independence constituted, respectively, the provinces of Honduras and Nicaragua. 4. In determining the boundaries, the Mixed Commission shall consider fully proven ownership of territory and shall not recognize juridical value to de facto possession alleged by one party or the other. 5. In case of lack of proof of ownership the maps of both Republics and public or private documents, geographical or of any other nature, which may shed light upon the matter, shall be consulted; and the boundary line between the two Republics shall be that which the Mixed Commission shall equitably determine as a result of such study. 6. The same Mixed Commission, if it deems it appropriate, may grant compensations and even fix indemnities in order to establish, in so far as possible, a well-defined, natural boundary line. 7. In studying the plans, maps and other similar documents which the two governments may submit, the Mixed Commission shall prefer those which it deems more rational and just. 8. In case the Mixed Commission should fail to reach a friendly agreement on any point, it shall record this fact separately in two special books, signing the double detailed record, with a statement of the allegations of both parties, and it shall continue its study in regard to the other points of the line of demarcation, disregarding the above referred point until the limit at the extreme end of the dividing line is fixed. 9. The books referred to in the preceding clause shall be sent by the Mixed Commission, one to each of the interested governments, for its custody in the national archives.”

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B) Honduras’s Arguments As noted above, when Honduras submitted the present dispute to the Court, it did so in order to enforce the execution of the Arbitral Award delivered by the King of Spain on 23 December 1906. Honduras considered that such an Award was valid, binding for Nicaragua, and capable of execution. Indeed, Honduras challenged Nicaragua’s right to question the validity of the Award since its official position regarding the entire process of delimitation was one of agreement and satisfaction; it only started to question the Award’s validity six years after the King of Spain concluded the matter. Nicaragua, for its part, upheld the right to question the validity of the Award based on its reservation to the Washington Agreement. Honduras agreed that Nicaragua had such a right, but also argued that the Court did not have to deal with the question of the validity of the Award considering both the time lapsed since its delivery and Nicaragua’s historical position vis-à-vis the said Award. Accordingly, Honduras maintained that any contention put forward by Nicaragua regarding the validity of the GámezBonilla Treaty was irrelevant. Honduras did, however, specifically address one contention upheld by Nicaragua, namely that the Gámez-Bonilla Treaty had lapsed before the King of Spain’s acceptance of the role of arbitrator in the case. Regarding this matter, Honduras contended that the treaty was in force, since the tenyear period established by Article XI could not have begun prior to the exchange of ratifications between the parties involved. Indeed, Honduras argued that Article IX, by allowing for the creation of a Mixed Commission without ratification, reinforced such an idea once the said provision led to the understanding that this authorization was of an exceptional nature. Following this reasoning, Honduras concluded that the Gámez-Bonilla Treaty lapsed on 24 December 1906. Therefore, the acceptance of the King of Spain as arbitrator and the delivery of the Award, which occurred on 17 October 1904 and 23 December 1906, respectively, took place before the expiration of the treaty and should both be considered valid.

V. Judgment The Court began its deliberation by addressing the question of whether or not the King of Spain was designated according to the proper proceedings of the Gámez-Bonilla Treaty. The Court noted that although the representatives of Honduras and Nicaragua did not exhaust the

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proceedings as established by the treaty, it could not uphold Nicaragua’s contention that this fact jeopardized the validity of the King of Spain’s designation as arbitrator. The Court reached this conclusion based on the fact that the representatives were able to interpret the Gámez-Bonilla Treaty in order to establish the most relevant procedural provisions to be followed. The Court understood that, by exercising this power, the parties’ representatives agreed to carry out the procedures as they did. Thus, it concluded that Nicaragua’s contention could not be upheld. The Court then proceeded to analyze Nicaragua’s argument concerning the alleged expiration of the Gámez-Bonilla Treaty before the King of Spain agreed to arbitrate the dispute. From the Court’s point of view, this argument could also not be upheld. The reasoning behind such a conclusion relies not on the treaty itself, since, as the Court observed, there was no legal provision for the date it would come into force. Rather, the Court based its decisions on factual evidence. As mentioned previously, the parties agreed to delegate the role of solving the dispute to the King of Spain in a meeting held on 2 October 1904. The Court could not be convinced that, if either party interpreted the treaty to have lapsed on 7 October 1904, as contended by Nicaragua, that they would agree to initiate an arbitration procedure, which is quite a complex procedure, five days prior to the lapse of the treaty that regulated the matter. Furthermore, the Court noted that despite the Spanish Minister of Central America’s warning and suggestion that the terms of the Treaty be extended, Honduras and Nicaragua did not take action in this regard. Finally, the Court stated that Honduras’s argument based on the exceptional nature of Article XI was well founded. Therefore, it concluded that the treaty entered into force on the date the parties exchanged ratification, 24 December 1896, and expired on 24 December 1906 – a day after the delivery of the award and conclusion of the dispute – and not on 7 October 1904, as adjudicated by Nicaragua. Regarding Nicaragua’s request for nullity of the Arbitral Award delivered by the King of Spain, the Court rejected all of its arguments. It promptly dismissed Nicaragua’s allegations of essential error and lack of foundation for the Award, since neither was verified by the Court. As for the argument that the King of Spain had exceeded his jurisdiction, the Court first stated that he did observe Article 2, Paragraph 3 of the treaty with respect to the territories that constituted the province of Honduras and Nicaragua at the time of their independence, in as much as his decision was based on geographical and historical documents. Moreover, the Court was of the view that compensating parties while delimiting their boundaries did not constitute an excess of jurisdiction,

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since there was no provision in the treaty preventing the arbitrator from complying with rules that are binding for the Mixed Commission. In fact, the Court noted that there was also no evidence in the sense that Article 2 was addressed exclusively to the Mixed Commission. It therefore concluded that Nicaragua did not present any valid grounds to support its request for nullity of the Gámez-Bonilla Treaty. After rejecting all contentions put forward by Nicaragua regarding the validity of the Arbitral Award, the Court then turned to the question of whether such a decision was executable or not. Nicaragua presented two situations to demonstrate how obscure, unclear, and contradictory the Award was: the establishment of the mouth of the Segovia or Coco rivers as a delimiting point and the gap of kilometers in the delimitation line presented by the Award. Concerning the first point, the Court noted that the Award actually established the delimitation through the thalweg of the river, which, from the Court’s point of view, did not conflict with the execution of the Award. With regards to the alleged gap of kilometers in the delimitation provided by the Award, the Court was unable to find such a space. The Court therefore concluded that Nicaragua was unable to prove the existence of obstacles to the execution of the Award. In accordance with the arguments outlined above, the Court decided the present case as follows: “The Court, by fourteen votes to one, finds that the Award made by the King of Spain on 23 December 1906 is valid and binding and that Nicaragua is under an obligation to give effect to it.”10

7.2. Timeline DATE

3 July 1958

DOCUMENT

CONTENT

Press Release No.1958/7

Concerns the filing of an application instituting proceedings against Nicaragua by Honduras. The dispute taken to the ICJ involves the application of the Arbitral Award made by the King of Spain on 23 December 1906 regarding the border delimitation between the two states.

10 Arbitral Award made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua), Judgment, I.C.J reports 1960, p. 29.

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Order and Press Release No.1958/10

Establishes the time limits for the filing of written proceedings as follows: 5 January 1959 for Honduras’s Memorial; 5 May 1959 for Nicaragua’s CounterMemorial; 3 August 1959 for Honduras’s Reply; and 3 November 1959 for Nicaragua’s Rejoinder.

7 October 1959

Order and Press Release No.1959/45

Refers to the two-month extension for the filing of the Rejoinder, as requested by Nicaragua. Once there were no objections from Peru, the Court agreed to postpone the time limit of the Rejoinder to 4 January 1960.

21 March 1960

Press Release No.1960/2

Determines the date of the opening of oral proceedings. The Public Hearings at the ICJ were set to be held on 15 September 1960.

10 September 1960

Press Release No.1960/20

Summarizes the history of proceedings before the oral statements and briefly explains the dispute involving the case. Also publishes the ad hoc judge choice made by the parties involved in the case, as provided for by Article 31, Paragraph 3 of the Statute of the Court. Roberto Ago and Francisco Urrutia Holguín were chosen as judges by Honduras and Nicaragua, respectively.

15 September 1960

Press Release No.1960/21

Records the first day of Public Hearings and establishes the extension of Honduras’s oral statements to 16 September 1960.

Press Release No. 1960/23

Reports the occurrence of 11 Public Hearings during the week in which Honduras finalized its first round of oral argumentation. Also fixes 27 September 1960 as the date when Nicaragua would begin its oral statements.

3 September 1958 and 5 September 1958

24 September 1960

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Press Release No. 1960/24

Records the occurrence of 11 Public Hearings during that week in which Nicaragua finalized its first round of oral argumentation. Also fixes the date for Honduras’s oral Reply as 6 October 1960.

Press Release No. 1960/25

Reports the occurrence of four Public Hearings since 6 October 1960, in which Honduras presented its oral Reply. Also fixes 10 October 1960 as the date when Nicaragua would begin its oral Rejoinder.

12 October 1960

Press Release No. 1960/26

Records the occurrence of four Public Hearings on 10 October 1960 and 11 October 1960 in which Nicaragua presented its oral Rejoinder. Also declares the closure of oral proceedings.

14 November 1960

Press Release No.1960/30

Decides that the Court will hold a Public Hearing to announce its judgment on the present case on 18 November 1960.

Press Release No. 1960/31

Publishes the Court’s decision on the case and presents a brief summary of the judgment. Announces the votes and decisions given to each question set out in the written proceedings.

4 October 1960

8 October 1960

18 November 1960

Bibliography CAVARÉ, L. (1964) ‘L’arret de La C.I.J. du 18 novembre 1960 et les moyens d’assurer l’exécution des sentences arbitrales,’ Mélanges offerts à Henri Rolin. Problèmes de droit des gens, Paris: Pedone, pp. 39-54. GUYOMAR, G. (1960) ‘Affaire de La sentence rendue par le Roi d’Espagne le 23 décembre 1906. arrêt du 18 novembre 1960,’ A.F.D.I., 6: 362-371.

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OLIVER, Covey T. (1961) ‘Case Concerning the Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua),’ The American Journal of International Law, 55. No 2: 478-489. Online. Available PATEL, Bimal N. (2002) ‘Case Concerning the Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua)’ in Bimal N. Patel The World Court Reference Guide: Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000), Hague/London/New York: Kluwer Law International. ROSENNE, Shabtai (2006) ‘Chapter 4 – Paragraph 1.54: The Arbitral Award of the King of Spain Case (1960-1963)’ in Shabtai Rosenne The Law and Practice of the International Court 1920-2005 – Volume I: The Court and the United Nations, Hague/London/Boston: Martinus Nijhoff Publishers. VERZIJL, J.H.W. (1966) ‘Case Concerning the Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua)’ in The Jurisprudence of the World Court: A Case by Case Commentary – Volume II: The International Court of Justice (1947-1965), Leyden: A.W. Sijthoff. VERZJIL, J. H. W. (1961) ‘Affaire de La sentence arbitrale rendue par le Roi d’Espagne le 23 décembre 1906 (Honduras c. Nicaragua),’ N.I.L.R., 8: 113-128. WAELBROECK, M. (1961) ‘L’acquiescement en droit des gens. Commentaire de l’arrêt de La C.I.J. du 18 de novembre 1960,’ R.D.I., 44: 38-53.

8. LAND, ISLAND AND MARITIME FRONTIER DISPUTE (EL SALVADOR V. HONDURAS – NICARAGUA INTERVENING), 1986

8.1. Summary This case concerns three disputes between the Republic of El Salvador (hereinafter “El Salvador”) and the Republic of Honduras (hereinafter “Honduras”): a land boundary dispute, a dispute over the legal situation of the islands in the Gulf of Fonseca, and a dispute regarding the sovereignty of the maritime space within and outside the aforementioned gulf. The latter includes an intervention by the Republic of Nicaragua (hereinafter “Nicaragua”).

I. Facts A) Geography1 El Salvador, Honduras, and Nicaragua are all located in Central America. El Salvador borders the Pacific Ocean, and is located south-west of Honduras. Honduras borders the Atlantic Ocean on its biggest coast, and the Pacific Ocean on its smaller one. Finally, Nicaragua lies south-east of Honduras, and borders both oceans. Sections of all three states form the Gulf of Fonseca, in the Pacific Ocean, where there is a group of islands. Six pieces of land come into question between El Salvador and Honduras in this case. The first section “runs from the agreed tripoint where the frontiers of El Salvador, Guatemala and Honduras converge [...] the ‘point known as El Trifinio on the summit of the Cerro Montecristo”2.

1

Sketch-maps can be found in the judgment at pages: 403 (first sector), 425 (second sector), 439 (third sector), 478 (fourth sector), 518 (fifth sector), 545 (sixth sector) and 587 (Gulf of Fonseca). 2 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 401, Paragraph 68.

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The second section “lies between the Pefia de Cayaguanca, the most easterly point of the second agreed section of the frontier [...], and the confluence of the stream of Chiquita or Oscura with the river Sumpul, the most westerly point of the third agreed section [...]”3. The third section “is that between the boundary marker of the Pacacio, on the river of that name, and the boundary marker called Poza del Cajon, on the river known as El Amatillo or Gualcuquin”4. The fourth section “is that between the source of the Orilla stream and the boundary marker known as Malpaso de Similatón”5. The fifth section “is, like the first four sectors, defined by the endpoints of the adjacent agreed sections, referred to in Article 16 of the 1980 General Treaty of Peace: these endpoints are defined in that Article as follows: in the west, ‘the point on [the] north bank [of the Torola river] where it is joined by the Manzupucagua stream,’ and in the east ‘the Paso de Unire, in the Unire river’”6. The sixth section “is that between the endpoint of the seventh and last of the agreed sections listed in Article 16 of the 1980 General Treaty of Peace, namely a point on the river Goascorán known as Los Amates, and the waters of the Gulf of Fonseca.”7 The Court describes the Gulf of Fonseca as follows: “The Gulf of Fonseca lies on the Pacific coast of Central America, opening to the ocean in a generally south-westerly direction. The north-west coast of the Gulf is the land territory of El Salvador, and the south-east coast that of Nicaragua; the land territory of Honduras lies between the two, with a substantial coast on the inner part of the Gulf. The entry to the Gulf, between Punta Arnapala in El Salvador to the north-west, and Punta Cosigüina in Nicaragua to the south-east, is some 19 nautical miles wide. The penetration of the Gulf from a line drawn between these points varies between 30 and 32 nautical miles. Within the Gulf of Fonseca, there is a considerable number of islands and islets.”8 3

Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 424, Paragraph 104. 4 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 438, Paragraph 128. 5 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 476, Paragraph 186. 6 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 517, Paragraph 268. 7 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992. p. 543, Paragraph 306. 8 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene, Judgment, I.C.J. Reports 1990, p.12, Paragraph 24.

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B) History The parties involved, as well as the intervening state, all belonged to the Spanish Empire in Central America. Their independence from Spain in 1821 resulted in the Federal Republic of Central America, made up of by El Salvador, Honduras, Costa Rica, Guatemala, and Nicaragua. The Federal Republic of Central America was later dissolved in 1839, when El Salvador and Honduras became independent states. By the time of their independence, El Salvador and Honduras agreed to keep Spain’s administrative boundaries. These were drawn according to the principle of uti possidetis juris, which was deemed fundamental in determining frontiers. Within this context, the problem of the boundaries remained, since El Salvador and Honduras had defined which colonial administrative division they possessed, but did not agree on the exact territory they corresponded to. This was especially difficult given that the areas under dispute were not well known or explored by the time of the Spanish Empire’s boundary delimitation. This lack of a precise boundary definition led to conflicts, first in 1854 over the islands, and then in 1884 over the maritime space. The controversy concerning land possession eventually culminated in a war between El Salvador and Honduras in 1969. During the disputes, parts of the land in question were delimited, but the largest boundary was only established in 1980, when a mediation that had begun in 1978 led to the General Treaty of Peace9, signed by both parties. Even so, this treaty provided that a joint frontier commission should determine the distribution of the contested land sectors and the legal situation of the maritime space and Gulf of Fonseca islands. According to the treaty, if the commission could not reach a solution within five years, El Salvador and Honduras should negotiate a special agreement by submitting the case to the International Court of Justice (hereinafter “ICJ”). In fact, since a full agreement was not reached, El Salvador and Honduras signed a special agreement on 24 May 1986, referring the matter to the ICJ.

9

General Peace Treaty Between the Republics of El Salvador and Hunduras (Lima, 30 October 1980, 21856 UNTS).

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II. Jurisdiction Jurisdiction in this case relies on Article 36, Paragraph 110 of the Rules of Court, which accepts special agreements conceding competence to the Court. The parties signed the Special Agreement to Submit to the Decision of the International Court of Justice the Terrestrial, Insular and Maritime Border Dispute Existing Between the Two Countries (hereinafter “Special Agreement”) 11 on 24 May 1986 and filed in the Registry of the Court on 11 December 1986. It is important to note that this special agreement asks for a Chamber composed of three members to adjudge the case, as written in Article 1.12 There was disagreement as to whether Article 2, Paragraph 213 of the Special Agreement provided jurisdiction for the delimitation of maritime space. El Salvador alleged that the Chamber was expected to decide only the legal situation, that is, the predominant juridical regime in the area. Honduras, on the other hand, claimed that there was an entire context behind the need for delimitation. The Chamber, for its part, decided solely on the legal situation. Another disagreement concerned jurisdiction for the Gulf of Fonseca islands. Honduras claimed that the Chamber had no jurisdiction over the islands, with the exception of Meanguera and Meanguerita, since there was no real dispute over the others. El Salvador, however, presented 10

Article 36, Paragraph 1 of the Statute of the International Court of Justice reads as follows: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” 11 Special Agreement to submit to the decision of the International Court of Justice the terrestrial, insular and maritime border dispute existing between the two countries (Esquipulas, 24 May 1986, 24358 UNTS). 12 Article 1 of the Special Agreement provides that: “1. In application of Article 34 of the General Treaty of Peace, signed on 30 October 1980, the parties submit the issues mentioned in Article 2 of the present Special Agreement to a chamber of the International Court of Justice, composed of three members, with the consent of the parties, who will express this in a joint form to the President of the Court, this agreement being essential for the formation of the chamber, which will be constituted in accordance with the procedures established in the Statute of the Court and in the present Special Agreement. 2. In addition the chamber will include two judges ad hoc specially nominated one by El Salvador and the other by Honduras, who may have the nationality of the parties.” 13 Article 2, Paragraph 2 of the Special Agreement states that: “The parties request the Chamber: (…) 2. To determine the legal situation of the islands and maritime spaces.”

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arguments concerning the islands. Thus, the Chamber deemed there to be a real dispute over the islands of Meanguera, Meanguerita, and El Tigre and, consequently, concluded its jurisdiction of their sovereignty.

III. Matters of Dispute As explained above, this case is divided into three different disputes. The first one concerns land boundaries, since the states involved disagree as to the co-ordinates and ownership of some frontier sections of land. The second one concerns the legal situation – that is, the ownership – of the Gulf of Fonseca islands. There is also a discussion as to which islands are involved in the proceeding, as already shown in the “Jurisdiction” section above. Finally, the third issue concerns the maritime space within and outside the Gulf of Fonseca. While El Salvador and Honduras reclaimed sovereignty over it, Nicaragua alleged that any decision the Court made on the matter would affect its status quo. In its final submission, El Salvador asked the Chamber to adjudge and declare that the co-ordinates of the disputed areas were those referred to in its Memorial,14 as well as: “B. Concerning the legal situation of the islands: The sovereignty over all the islands within the Gulf of Fonseca, and, in particular, over the islands of Meanguera and Meanguerita, belongs to El Salvador, with the exception of the island of Zacate Grande and the Farallones islands. C. Concerning the determination of the legal situation of the maritime spaces: 1. The Chamber has no jurisdiction to effect any delimitation of the maritime spaces. 2. The legal situation of the maritime spaces within the Gulf of Fonseca corresponds to the legal position established by the judgment of the Central American Court of Justice of 9 March 1917. 3. The legal situation of the maritime spaces outside the Gulf of Fonseca is that: (a) Honduras has no sovereignty, sovereign rights, or jurisdiction in or over them; and (b) [T]he only states which have sovereignty, sovereign rights, or jurisdiction in or over them are states with coasts that directly front on the

14 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p.371, Paragraph 24.

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Pacific Ocean, of which El Salvador is one.”15

Honduras also asked the Court to state that the co-ordinates of the territories in dispute were the same as those it submitted in its statement,16 as well as: “B. With respect to the island dispute: – To adjudge and declare that only Meanguera and Meanguerita islands are in dispute between the parties and that the Republic of Honduras has sovereignty over them. C. With respect to the maritime dispute: (1) To adjudge and declare that the régime of the waters in the Bay of Fonseca, the delimitation of the maritime areas in that Bay, and the rights of Honduras beyond the closing line of the Bay of Fonseca, in the Pacific Ocean, and the delimitation of the maritime areas attaching to the two parties by means of a line are matters of dispute to be decided by the Chamber of the Court in accordance with the Special Agreement concluded by the parties in 1986. (2) Concerning the zone subject to delimitation within the Gulf: To adjudge and declare that the community of interests existing between El Salvador and Honduras by reason of their both being coastal states bordering on an enclosed historic bay produces between them a perfect equality of rights, which has nevertheless never been transformed by the same states into a condominium; To adjudge and declare, therefore, that each of the two states is entitled to exercise its powers within zones to be precisely delimited between El Salvador and Honduras; to adjudge and declare that the course of the line delimiting the zones falling, within the Gulf, under the jurisdiction of Honduras and El Salvador respectively, taking into account al1 the relevant circumstances for the purpose of arriving at an equitable solution, shall be defined as follows: the line equidistant from the low-water line of the mainland and island coasts of the two states, starting within the Bay of La Union, from the mouth of the Rio Goascorán [...] and extending to the point situated at a distance of 1 nautical mile from the Salvadorean island of Conchaguita and from the Honduran island of Meanguera, to the south of the first and to the West of the second; From that point, the line joining points situated at a distance of 3 nautical miles from the Salvadorean coast as far as the point where it meets the closing line of the Gulf [...]; Honduras as coastal states bordering on the Gulf implies an equal right for 15

Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 371, Paragraph 24. 16 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p.375.

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Chapter III both to exercise their jurisdictions over maritime areas situated beyond the closing line of the Gulf; To adjudge and declare that the closing-line across the mouth of the Bay from Punta Amapala to Punta Cosiguina is the baseline from which a delimitation line outside the Bay shall be projected into the Pacific, and further to determine that this should be from a point which lies 3 miles from the low-water mark on the coast of El Salvador. (3) Concerning the zone outside the Gulf: To adjudge and declare that the delimitation line productive of an equitable solution, when account is taken of al1 the relevant circumstances, is represented by a line extending for 200 miles on such a bearing as will give to Honduras a maritime area which is equitable and proportionate to the length of the Honduran coast, starting from the closing line of the Gulf at a point situated at a distance of 3 nautical miles from the coast of El Salvador, thus delimiting the territorial sea, exclusive economic zone and continental shelf of El Salvador and Honduras.”17

IV. Merits A) El Salvador’s Arguments In order to prove the possession, extension, and location of the disputed land areas, El Salvador presented titles emitted by Spain during its domain over Central America. Among these, it emphasized formal title deeds to commons (“títulos ejidales”), documents that attested to jurisdiction of the administrative provinces and were, therefore, the best form of evidence in an application of the uti possidetis juris principle. These title deeds did not constitute private property but, according to El Salvador, were given to the municipal councils of corresponding Indigenous communities in order for them to control the land. El Salvador also used arguments of human nature and effectivités with regards to Article 2618 of the General Treaty of Peace. It claimed to need land to accommodate its population, even though it did not ask for a 17

Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 375. 18 Article 26 of the General Treaty of Peace states that: “For the delimitation of the frontier line in areas subject to controversy, the Joint Frontier Commission shall take as a basis the documents which were issued by the Spanish Crown or by any other Spanish authority, whether secular or ecclesiastical, during the colonial period, and which indicate the jurisdictions or limits of territories or settlements. It shall also take into account other evidence and arguments of a legal, historical, human or any other kind, brought before it by the parties and admitted under international law.”

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boundary delimitation based exclusively on this argument. Additionally, it presented its own administrative documents, alleging that they demonstrated Salvadorean occupation of the land and the supply of public services by the government – and thus, the will to possess the territories. In order to obtain evidence in situ, El Salvador requested that the Chamber arrange an expert opinion, relying on Articles 6619 and 5020 of the Rules of Court, since it was difficult to access the areas in question. To defend its possession of the first sector of the land boundary, El Salvador claimed that the largest part of this area was under the título ejidal of the Mountain of Tenpanguisir, which was situated in the province of San Salvador and which, according to the state, became part of its territory by the time of independence. This could be proved through the title of Citalá. With regards to the area between the title of Citalá and the international tripoint, El Salvador used arguments of effectivités, pointing to the villages and hamlets administered by Citalá. As proof, it presented a report by a Honduran ambassador attesting to the existence of such places. Finally, it called attention to the presence of Salvadorean landowners in the disputed area within 40 kilometers of the frontier line claimed by Honduras, thereby providing an argument of human kind. In terms of the second sector of the disputed land boundary, El Salvador based its claims on the titles of Jupula, from 1742, and Ocotepeque, from 1818. If the latter had been given to the municipal administration through the title of Ocotepeque in 1742, as Honduras claimed, it would have included the Mountain of Cayaguanca. Moreover, relying on the republican title of Dulce Nombre de la Palma, from 1833, El Salvador suggested that the mountain extend from Peña de Cayaguanca, coinciding with the title of Jupula. As for the western frontier, it was defined by the Sumpul River. Ultimately, El Salvador claimed a 19

Article 66 of the Rules of Court establishes that: “The Court may at any time decide, either proprio motu or at the request of a party, to exercise its functions with regard to the obtaining of evidence at a place or locality to which the case relates, subject to such conditions as the Court may decide upon after ascertaining the views of the parties. The necessary arrangements shall be made in accordance with Article 44 of the Statute.” 20 Article 55 reads as follows: “1. There shall be annexed to the original of every pleading certified copies of any relevant documents adduced in support of the contentions contained in the pleading. 2. If only parts of a document are relevant, only such extracts as are necessary for the purpose of the pleading in question need be annexed. A copy of the whole document shall be deposited in the Registry, unless it has been published and is readily available. 3. A list of all documents annexed to a pleading shall be furnished at the time the pleading is filed.”

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“triangular strip along and outside the both west boundary of the Dulce Nombre de la Palma title,”21 arguing that the area was occupied and administrated by Salvadoreans. Moving on to the third sector of the land boundary, El Salvador based its request for delimitation on arguments of post-independence effectivités and human kind, as well as on the Arcatao title, from 1724. According to the state, most of the north-western area of the sector was occupied and administrated by Salvadoreans, and the title itself granted another part of the land to El Salvador. Arguments of this kind were also applied by the state when addressing the south-east area. Concerning the fourth sector of the land boundary, El Salvador disagreed with Honduras on its extension and possession. According to El Salvador, the boundary extended 8 kilometers north and was contained by the province of San Miguel. El Salvador presented a title from 1745, referring to the communities of Arambala and Perquín (province of San Miguel), and thereby concluding that the sector extended north and south of the Negro-Quiagara River. As for the subsector of Colomoncagua, located in the south-west, questions arose over the extension of land in the province of Comayagua (west) and the territory of the Arambala-Perquín and Torola communities, in the province of San Miguel (east/south-east). To prove its position on the matter, El Salvador presented two documents from the colonial period: a re-measurement and a title from 1844. In addition, it claimed west and south-west lands from the title of Arambala Perquín, questioning the concept of crown land. Finally, El Salvador questioned the location of the Malpaso de Similatón, one of the topographical points that determined the eastern part of the boundary, and presented evidence of effectivités in the northern area of the Negro-Quiagara River. With respect to the fifth sector of the land boundary, El Salvador relied on both a survey and a 1760 title granted to the village of Polorós (province of San Miguel). Based on this evidence, it claimed what was, according to its interpretation, the northern part of the territory granted by the title. It also requested the western area of the sector, based on arguments of human kind. In the eastern part of the sector, El Savador and Honduras agreed on the limit of the area, which was the Unire River. However, they disagreed which tributary headwater constituted the boundary line 21 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 436, Paragraph 124.

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Debating the sixth sector the land boundary, El Salvador affirmed that the course of the Goascorán River, which defines the frontier, used to be different. It contended that there was a rule of avulsion in Spanish colonial law that supported its claim. In addition, it contended that the course of the river would have reverted to the way it used to be, but that Honduras intervened, building a wall in 1916. To prove these allegations, El Salvador presented evidence, including a survey from 1695. As for the Alcadía Mayor de Minas of Tegucigalpa, another disputed area within the sixth sector, El Salvador did not accept Honduras’s claims to the area, since the territory was already independent in 1821. In terms of the legal situation of the Gulf of Fonseca islands, El Salvador claimed to possess all of them, except for Zacate Grande and the Farallones. As evidence, it presented documents proving its jurisdiction over the islands, titles showing that the province of San Salvador administrated them, and a testimony from an inhabitant of the island of Meanguera, who confirmed El Salvador’s sovereignty over the territory. Based on these arguments, El Salvador requested that the Chamber decide based on contemporary law, effectivités, and historical titles. Lastly, El Salvador contended that the Chamber had no jurisdiction over the delimitation of maritime space, as already explained in the “Jurisdiction” section above. It agreed with Honduras and Nicaragua that the Gulf could be interpreted as a historic bay, but claimed that its legal situation was that of a condominium. Any delimitation should be preceded by an agreement between the parties involved, which could only be reached once the legal situation itself was determined. What is more, El Salvador affirmed that if the Chamber delimited the space, but did not define its legal situation, practical problems would arise over questions such as traffic and access. The party also defended, based on a judgment of 1917, the existence of a division inside the gulf, and stated that Honduras’s claims concerned only its inner area. Finally, the parties involved discussed the limit line of the gulf as its baseline.

B) Honduras’s Arguments Honduras, like El Salvador, presented titles from the colonial and republican eras as evidence of the location, extension, and possession attested to in its submissions. It denied El Salvador’s claims related to effective control, since the boundaries were fixed according to the administrative ones at the time of independence. Thus, any argument of effectivités should only take into account the context prior to

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independence. Honduras presented arguments of effectivités such as documents from its administration, accepting their confirmatory role while admitting uti possidetis juris as the main principle guiding the decisions of the Chamber, as established in Article 26 of the General Treaty of Peace. In addition, Honduras rejected El Salvador’s arguments of human kind, presenting documents that showed that it too could rely on arguments of this nature. With regards to the first sector of the land boundary, Honduras, like El Salvador, recognized that its biggest area was in the título ejidal, which included the Tepangüisir Mountain. However, the territory was also addressed in a title from 1776, which granted the area to Honduras’s province of Ocotepeque. Furthermore, Honduras raised a point concerning a triangular area where the title of Ocotepeque overlapped with the northeastern boundary of the province of Citalá, causing disagreement between the parties. In the area between this international tripoint and the title of Citalá, Honduras alleged that it was crown land in the province of Gracias a Dios, since it was represented in a colonial map of the area. It also relied on arguments of effectivités, and to prove its pleadings, presented its own administrative documents. Concerning the second sector of the land boundary, Honduras based its requests on the Jupula title, from 1742. This title granted exploration of the crown land, Cayaguanca Mountain, to the Indigenous community of Ocotepeque, and thus belonged to the province of Gracias a Dios, where the community lived. Moreover, it stated that the mountain extended throughout the entire area of the sector in dispute. Honduras also interpreted the title of Dulce Nombre de la Palma differently from El Salvador, and used titles and effectivités arguments to confirm its position. Regarding the third sector of the land boundary, Honduras claimed to have uti possidetis juris of the area in 1821, relying on titles from 1719 to 1779. It also presented the title of San Juan de Arcatao and republican documents that, it believed, demonstrated its entitlement to the southeastern area of the sector. Besides these allegations, Honduras also submitted documents as evidence of effectivités over the territory. In the fourth sector of the land boundary dispute, Honduras claimed that the boundary followed the Negro-Quiagara River, whose northern area belonged to the province of Comayagua. It alleged that El Salvador’s Minister of Foreign Relations sent a note on 14 May 1861 recognizing that the land belonged to the Arambala-Perquín community, and that it straddled an international frontier. With respect to the subsector of Comonguaca, the end-point of the sector, and the Malpaso de Similatón,

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Honduras presented general titles and documents, as well as arguments of effectivités, to prove its interpretation of ownership and localization. In terms of the fifth sector of the land boundary and an interpretation of the Polorós title, Honduras accepted that the boundary used to be across from the Torola River, but explained that it should nevertheless follow the river since El Salvador agreed to establish the frontier there in the 19th century. With regards to the western part of the sector, it stated that this land belonged to the village of Cacaoterique, in the province of Comayagua, and was not included in the Polorós title. In addition, Honduras disagreed that the headwater of the Unire River defined the eastern frontier, and claimed instead that the actual one was “a straight line corresponding to the south-western limit of the lands comprised in the 1738 Honduran title of San Antonia de Padua.”22 It also presented arguments and evidence of effectivités in the sector. In the sixth sector of the land boundary dispute, Honduras claimed that the Goascorán River had defined the boundary since 1821 and, from that time onward, never changed its course. As evidence, the party referred to documents, titles, and a map from the 17th and 19th centuries. It also claimed possession of the Ramaditas islands, located within the Gulf, since its territory lay north-west of them. As already explained in the “Jurisdiction” section above, El Salvador and Honduras disagreed not only with regards to the possession of the Gulf islands, but also which islands were in dispute and whether the Chamber had jurisdiction to decide over them. In this context, Honduras alleged that there was no real dispute over El Tigre Island, but that both Meanguera and Meanguerita Islands belonged to it. It affirmed that, according to Article 26 of the General Treaty of Peace, the Chamber could only make a decision based on the principle of uti possidetis juris of 1821. In order to prove its sovereignty over the islands using this kind of argument, Honduras presented documents showing that they belonged to its bishop, as well as to the ecclesiastical jurisdiction assigned to the bishop of Comayagua. Additionally, it explained historical events that confirmed the theory of colonial effectivités over the islands. Finally, with regards to the legal situation of maritime space, Honduras relied on Article 2, Paragraph 2 of the Special Agreement to claim that a boundary should lie within and outside the gulf area. It argued against El Salvador’s position on the existence of a condominium, claiming that there was no agreement defining such a legal situation and that the judgment of 22 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 538, Paragraph 298.

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1917 could not be opposed to other states. In addition, Honduras alleged that what the Central American Court meant was not condominium, but rather joint sovereignty. As a result, it defended the concept of a community of interests. Honduras affirmed that the delimitation was a necessary prerequisite in defending a community of interests, and that the Special Agreement did not mention it explicitly because El Salvador’s constitution would not allow it to sign an agreement to discuss the Gulf waters. Nevertheless, Honduras used an argument of effectiveness, explaining that the context of conflict between the parties and the rest of the agreement led to a delimitation. It claimed that even the Joint Frontier Commission understood this when it enacted the same provision in Article 1823 of the General Treaty of Peace. Moreover, Honduras agreed with the understanding that the maritime space in dispute constituted a historical bay.

V. Judgment The Chamber began by noting that the principle of uti possidetis juris must guarantee that frontiers between states remain the same as they were upon independence. Thus, the judgment mainly concerned facts prior to 1821. The Chamber then noted that some of the titles presented by the parties were not exactly titles according to the Court’s interpretation. While a decree in which the Spanish Crown fixed the territory of a province was an actual title, some of the documents brought forth by the parties were “colonial effectivités,” that is: “the conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during the colonial period.”24 Additionally, the Court explained that the land’s topographical features should guide its decision in order to avoid further discussions of fixed boundaries. Still, it

23 Article 18 of the General Treaty of Peace reads as follows: “The El SalvadorHonduras Joint Frontier Commission, established on 1 May 1980, whose terms of reference form part of this Treaty from the time of its entry into force, shall have the following functions: (1) It shall demarcate the frontier line which has been described in Article 16 of this Treaty; (2) It shall delimit the frontier line in the areas not described in Article 16 of this Treaty; (3) It shall demarcate the frontier line in areas subject to controversy, once the definition of such a line has been concluded; (4) It shall determine the legal situation of islands and maritime areas.” 24 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 389, Paragraph 45.

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emphasized, this choice of guideline did not mean that the judgment would be based on the concept of a natural frontier. The Chamber recalled that Article 525 of the Special Agreement defined the principle of uti possidetis juris as the main guideline in the case, but it also established rules of international law applicable to the parties involved. In the same vein, it emphasized that Article 26 was not to be understood as a legal clause, but rather a provision of evidence, since the parties involved could not ask to apply the uti possidetis juris principle while redefining it in its agreement. Hence, the presence of Indigenous communities and private property (the títulos ejidales) was not conclusive. Still, in the absence of proper titles issued by colonial Spain, the títulos ejidales would serve as evidence. In deciding this, the Chamber avoided answering the parties’ question regarding the status of common title deeds in Spanish colonial law. It denied El Salvador’s request to act according to Articles 66 and 50 of the Rules of Court, considering the solicitation unnecessary, and trusted the parties to resolve possible cases in which one country’s nationals lived within the boundaries of the other. As for the first sector of the land boundary, the Chamber considered that the original title defining ownership of the area was irrelevant, since the parties engaged in negotiations before 1972 and, on all occasions, understood the frontier to be the title of Citalá and Ocotepeque. The Chamber emphasized that uti possidetis juris would not exclude territorial dispositions after 1821 and concluded that, as far as the triangular area defined by the parties was concerned, there was no proof of overlap between the titles. In terms of the disagreement over the Citalá title, it found Honduras’s view to be preferable. Finally, the Chamber affirmed that the available evidence did not prove the parties’ arguments of effectivités concerning the territory between the title of Citalá and the international tripoint, since it did not show the exercise of state administration in the area. Due to insufficient evidence, it denied El Salvador’s allegation that Honduras faced a constitutional restriction 40 kilometers from the frontier. The limit line established by the Chamber was, therefore, the same as that negotiated in 1934. Even though El Salvador did not ratify it, there was consent between the parties over the line, which followed unambiguous reference points.

25 Article 5 of the Special Agreement states that: “In accordance with the provisions of the first paragraph of Article 38 of the Statute of the International Court of Justice, the Chamber, when delivering its Judgment, will take into account the rules of international law applicable between the parties, including, where pertinent, the provisions of the General Treaty of Peace.”

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With regards to the second sector of the land boundary, the Chamber found that the title of Jupula proved that Cayaguanca Mountain was crown land and that the Ocotepeque community from the province of Gracias a Dios was entitled to cultivate it. Thus, the area belonged to Honduras, since that is where the province is located. The Chamber did not accept El Salvador’s argument concerning the 1818 survey, and understood that the community was entitled to the surrounding area as well as to the mountain. As far as the extension of the mountain was concerned, the Chamber found no evidence of boundary disposition. Thus, it decided that the Dulce Nombre de la Palma title delimited the north-western boundary, while the eastern boundary was limited by the Sumpul River, which both parties recognized. The Chamber understood, furthermore, that the titles presented by Honduras did not conflict with the previous one. In dealing with the arguments of effectivités, it concluded that the states had no evidence of such allegations. Lastly, the Chamber examined the issue of the land between Peña de Cayaguanca and the western boundary of Dulce Nombre de la Palma. It noted that none of the parties made any specific claim to the area, but that this did not prevent it from delimiting the extension of the mountain. Therefore, it established that, due to an absence of criteria, the southern boundary would be a straight line between the states. In addition, it considered that the area between the title of Jupula and La Palma belonged to Honduras. The Chamber divided the dispute concerning the third sector of land into three main questions. The first question concerned the western area of the sector. Honduras argued that titles prior to independence guaranteed its possession of the land with regards to the uti possidetis juris principle, and that El Salvador presented arguments of effectivités post-independence. The Chamber confirmed Honduras’s view and defined the frontier based on the titles presented. The second question concerned the validity and relationship of the different titles presented by the parties. Since it was not possible to reconcile the indicated landmarks, the Chamber concluded that “the most that can be achieved is a line which harmonizes with such features as are identifiable with a high degree of probability, corresponds more or less to the recorded distances and does not leave any major discrepancy unexplained.”26 In this vein, it indicated a boundary based on the geography of the area. The third and last point, finally, concerned the south-eastern section of the land. Upon analyzing the conflicting titles to 26 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p.456, Paragraph 155.

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this area, the Chamber found a common line to fix the boundary. In addition, it noted that none of the effectivités arguments were sufficient to establish a boundary. With respect to the fourth sector of the land boundary, the two main problems were the location of the frontier and, given uti possidetis juris, the extension of San Miguel Province. First, the Chamber recalled a dispute between two Indigenous communities that led to a judicial decision, in 1773, over the extension of San Miguel. The Court of Guatemala also came to a decision on the subject in 1815. Even so, the Chamber did not consider these decisions to be conclusive. The Chamber did, however, consider the note that Honduras presented from El Salvador’s Minister of Foreign Relations as evidence that El Salvador recognized the Arambala-Perquín title to extend across the boundary. Next, delimiting the south-western part of the sector, the subsector of Colomonguaca, the Chamber listed and analyzed the titles presented, ultimately deciding on the western, eastern, and south-eastern boundaries. It established the Las Cañas River as the frontier between the provinces and considered that the end point of the sector followed the line claimed by Honduras. It confirmed the alleged uti possidetis juris of El Salvador in the western and south-western areas of the Arambala-Perquín title and found a dispute over an area formerly agreed upon east of the boundary line. The Chamber understood that, though it had no jurisdiction over that which was already agreed upon, it could not be stopped from delimiting the Malpaso de Similatón, which affected the aforementioned area. Since none of the parties alleged uti possidetis juris over the area, the Chamber relied on equity infra legem, as well as a non-ratified delimitation from 1869 that was never questioned by El Salvador or Honduras. Lastly, regarding the effectivités arguments, the Chamber found that none of them were sufficient to alter its decision. With regards to the fifth sector of the land boundary, the Chamber concluded that the land granted by San Miguel in the title of Polorós was under its jurisdiction. Thus, it presumed that such land belonged to the province of San Miguel. Next, it analyzed the interpretations of the title of Polorós, observing that none of the views presented by the parties accorded with its text. In order to reach an understanding, therefore, it interpreted the title in light of republican ones. In addition, the Chamber denied Honduras’s arguments that an extinct village affected the land distribution, but agreed with El Salvador that the Torola River constituted the frontier. As far as the eastern part of the sector was concerned, the Chamber decided, along with El Salvador, that the tributary headwater of the Unire

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River was the one it indicated. With regards to the western Polorós lands, it considered the Torola River to constitute the boundary line. El Salvador’s contentions of human kind over a strip of the sector were not evidenced. Lastly, the Chamber found that allegations of effectivités in the area were insufficient. With regards to the Goascorán River, the Chamber concluded that there was no evidence that the change in its course was that claimed by El Salvador. Allegations that the river changed course before 1821 would not be accepted since they did not accord with the history of the dispute. Next, the Chamber analyzed the titles relative to the course of the river in 1821, in particular an expedition report from 1794 to 1796 and a map drawn up after this expedition, in 1804. It also emphasized the negotiations of 1880 and 1884 in which El Salvador and Honduras consented that the river constituted the frontier and described its course. Based on this evidence, the Chamber found that the river had not changed course. Even if El Salvador’s claim that the river would have reverted to its prior course was proven right, and it was not, it would not affect its decision. Finally, the Chamber addressed the Bay of La Union. It noticed that the parties involved had not claimed the islands there and considered them to belong to Honduras, since they were left in its territory according to the established frontier line. The Chamber struggled to adjudge the legal situation of the Gulf of Fonseca islands, based exclusively on the uti possidetis juris principle. Because Spanish colonial law was ambiguous and El Salvador and Honduras showed different documents and historical facts, which they also interpreted in different ways, the Chamber decided to accept postindependence effectivités as evidence of uti possidetis juris. Thus, it considered the conduct of the parties immediately following independence. It recalled Article 26 of the General Treaty of Peace, which authorized the Chamber to decide the case based on different guidelines of international law, as well as the Minquiers and Ecrehos27 case, from 1953, which stated that “Where the relevant administrative boundary was illdefined or its position disputed, [...] the behavior of the two newly independent states in the years following independence may well serve as a guide to where the boundary was, either in their shared view, or in the view acted on by one and acquiesced in by the other.”28

27

Minquiers and Ecrehos (France/United Kingdom), Judgment, I.C.J. Reports 1951. 28 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p. 565, Paragraph 345.

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With respect to El Tigre Island, the Chamber understood that the behavior of the parties led to the conclusion that El Salvador accepted Honduras’s possession of the island. As for Meanguera and Meanguerita, which were considered interdependent by the Chamber, it was concluded that the existence of Salvadorean inhabitants in the area, as well as the lack of claims from Honduras until 1991, permitted the presumption of Honduras’s consent to the sovereignty of El Salvador over the islands. While analyzing the legal situation of the maritime space, the Chamber responded to the parties’ claim that Nicaragua intervened in too many questions, including unrelated ones. It said that it would only consider Nicaragua’s arguments when appropriate. Next, it considered the question of whether the Special Agreement called for a delimitation of maritime space. It observed Article 3129 of the Vienna Convention on the Law of Treaties (hereinafter “VCLT”)30 and concluded that it was not possible to come out with an ordinary meaning of the agreement. In the land dispute, the Chamber was explicitly asked to delimit its territory, but in the island dispute, it was asked to define their legal situation. This was also the case for the maritime space, where it was up to the Chamber to define its sovereignty. The Chamber concluded that if the intention was to delimit the area, there would be an express provision on it. Since it was not the case, it considered the analysis of the legal situation to be sufficient. Although Honduras alleged that the context of the treaty was related to the need for delimitation in the disputed areas, the Chamber responded that the context of the elaboration of an agreement was only a supplementary means of interpretation, and could not prevail over the agreement’s text. It also denied Honduras’s arguments regarding El Salvador’s constitution and its assumed prohibition of any territory negotiation. Finally, the Chamber concluded that an interpretation of the Joint Commission in relation to delimitation could be accepted according to Article 31, Paragraph 3 (b) of the VCLT and customary international law. Nevertheless, it could not predominate over the absence of an explicit reference to delimitation. With regards to maritime space within the Gulf of Fonseca, the Chamber emphasized that, according to modern law, it refers to internal waters when surrounded by only one state. El Salvador, Honduras, and 29

Article 31, Paragraph 3 (b) of the Vienna Convention on the Law of Treaties provides that: “There shall be taken into account, together with the context: [...] (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation.” 30 Vienna Convention on the Law of Treaties (1969 Vienna Convention) (Vienna, 23 May 1969, 1155 UNTS 18232).

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Nicaragua agreed, however, that it was a historic bay, that is, as defined in the Court’s precedent Fisheries case, “waters which are treated as internal waters but would not have the character were it not for the existence of a historical title.”31 The Chamber considered such a precedent along with the Continental Shelf case, wherein the Court explained that “general international law [...] does not provide for a single régime for ‘historic waters’ or ‘historic bays,’ but only for a particular régime for each of the concrete, recognized cases of historic waters.”32 Since a historical bay has no defined regime, the Chamber would have to check its history in order to understand how the countries treated it. Recalling this history, the Chamber emphasized the Central American Court’s judgment of 1917, in which it decided three main points: the states’ entitlement to an area within three nautical miles of the coast, with rights of passage to the others states; rights of inspection within a strip of nine nautical miles; and an agreement between Nicaragua and Honduras that defined a partial boundary between them. While the Court decided that the area was territorial water, the Chamber did not understand it to mean territorial sea. Regarding El Salvador’s allegation that the Chamber should apply the adequate rules for a single state bay, it considered that there was no obligation to do so. Nevertheless, it did in fact need to recognize the rights of innocent passage in the area, something it had never done in the area outside the margin of each state. The three states involved in the case agreed that the area was a historical bay with characteristics of a closed sea, which the Chamber accepted, but explained that the latter should still determine the question of its sovereignty. Thus, the Chamber decided that, since the maritime space was a historical bay, it should not apply the concept of plural state bays. It recalled the judgment of 1917, which deemed the case to be one of coownership. Since the parties had continued to share the area, the Chamber concluded that the regime was one of condominium. This kind of regime was the only one that came close to the uti possidetis principle, since the states never divided the area among themselves, and even the 1900 division between Honduras and Nicaragua was not supported by the principle. Next, the Chamber found no relevant difference between the concepts of community of interests and condominium, as alleged by Honduras. It

31

Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p.130. Continental Shelf (Tunisia/Lybian Arab Jimahiriya), Judgment, I.C.J. Reports 1982, p. 74.

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also denied El Salvador’s argument concerning the limitation of Honduras’s interests to the area within the gulf. The Chamber decided that the close line between the gulf and the waters outside it was the line from Punta Amapala to Punta Consiguina. It explained, therefore, that the area was also a baseline since it defined two different juridical regimes. The area inside the gulf, the Chamber decided, was sui generis, since it had the characteristics of internal waters but was also the object of a condominium. In turn, the three-mile limit from the coast was deemed internal water for each state since it could not be classified as territorial sea due to the absence of a continental shelf, high seas, or an exclusive economic zone beyond it. Even so, both areas within the gulf were subject to the right of innocent passage. Since the area between the close line and the three-mile limit was considered a condominium, the Chamber decided that all three states were equally entitled to it, with the exception of situations involving customary law and international treaties. The area outside the gulf was also considered to belong to the three states. The Chamber made an exception regarding the area within 200 miles of the coasts of El Salvador and Nicaragua because of the exclusive economic zone guaranteed by international law. The rest of the area was defined as territorial sea and the Chamber concluded that the three states were entitled to exploit its resources, It was up to them, however, to sign an agreement dividing it into different economic zones, as well as in the area inside the gulf. Lastly, the Chamber discussed the effects of the judgment on the intervening state. It explained that, although Nicaragua claimed to be bound to the result, its written submission demonstrated the opposite. As a rule, a judgment should not be res judicata to states that are not the parties, as established in Article 5933 of the Statute of the Court. Even so, in its judgment of 13 September 1990 the Court decided that if parties consented to the intervention, the result would be binding. Since the parties involved in this case never positioned themselves in accordance with the intervention, Nicaragua was not considered bound to such a judgment. Due to the reasoning outlined above, the Chamber decided as follows: “Unanimously, Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the first sector of their common frontier not 33

Article 59 of the Statute of the Court provides that: “The decision of the Court has no binding force except between the parties and in respect of that particular case.”

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Chapter III described in article 16 of the General Treaty of Peace signed by the parties on 30 October 1980 is as follows: From the international tripoint known as El Trifinio on the summit of the Cerro Montecristo [...], the boundary runs in a generally easterly direction along the watershed between the rivers Frío or Sesecapa and Del Rosario as far as the junction of this watershed with the watershed of the basin of the quebrada de Pomola [...]; thereafter in a north-easterly direction along the watershed of the basin of the quebrada de Pomola until the junction of this watershed with the watershed between the quebrada de Cipresales and the quebrada del Cedrón, Peña Dorada and Pomola proper [...]; from that point, along the last-named watershed as far as the intersection of the center-lines of the quebradas of Cipresales and Pomola [...]; thereafter, downstream along the center-line of the quebrada de Pomola, until the point on that center-line which is closest to the boundary marker of Pomola at El Talquezalar; and from that point in a straight line as far as that marker [...]; from there in a straight line in a south-easterly direction to the boundary marker of the Cerro Piedra Menuda [...], and thence in a straight line to the boundary marker of the Cerro Zapotal [...] 426. […] Unanimously, Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the second sector of their common frontier not described in article 16 of the General Treaty of Peace signed by the parties on 30 October 1980 is as follows: From the Peña de Cayaguanca [...], the boundary runs in a straight line somewhat south of east to the Loma de Los Encinos [...], and from there in a straight line to the hill known as El Burro or Piedra Rajada [...]; from there the boundary runs in a straight line to the head of the quebrada Copantillo, and follows the middle of the quebrada Copantillo downstream to its confluence with the river Sumpul [...], and then follows the middle of the river Sumpul downstream to its confluence with the quebrada Chiquita or Oscura [...] 427. […] Unanimously, Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the third sector of their common frontier not described in article 16 of the General Treaty of Peace signed by the parties on 30 October 1980 is as follows: From the Pacacio boundary marker [...] along the río Pacacio upstream to a point [...] west of the Cerro Tecolate or Los Tecolates; from there up the quebrada to the crest of the Cerro Tecolate or Los Tecolates [...], and along the watershed of this hill as far as a ridge approximately 1 kilometer to the north-east [...]; from there in an easterly direction to the neighboring hill above the source of the Torrente La Puerta [...] and down that stream to where it meets the river Gualsinga [...]; from there the boundary runs along the middle of the river Gualsinga downstream to its confluence with the river Sazalapa [...], and thence upstream along the middle of the river Sazalapa to the confluence of the quebrada Llano Negro with that river

8. Land, Island and Maritime Frontier Dispute [...]; from there south-eastwards to the top of the hill [...], and thence southeastwards to the crest of the hill marked on the map as a spot height of 1,017 meters [...]; from there the boundary, inclining still more to the south, runs through the triangulation point known as La Cañada [...] to the ridge joining the hills indicated on the map as Ceno El Caracol and Cerro El Sapo [...] and from there to the feature marked on the map as the Portillo El Chupa Miel [...]; from there, following the ridge, to the Cerro El Cajete [...], and thence to the point where the present-day road from Arcatao to Nombre de Jestis passes between the Cerro El Ocotillo and the Cerro Lagunetas [...]; from there south-eastwards to the crest of a hill marked on the map as a spot height of 848 meters [...]; from there slightly south of eastwards to a quebrada and down the bed of the quebrada to its junction with the Gualcuquin river [...]; the boundary then follows the middle of the Gualcuquin river downstream to the Poza del Cajon [...] 428. […] By four votes to one, Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the fourth sector of their common frontier not described in Article 16 of the General Treaty of Peace signed by the parties on 30 October 1980 is as follows: From the source of the Orilla stream [...], the boundary runs through the pass of El Jobo to the source of the Cueva Hedionda stream [...], and thence down the middle of that stream to its confluence with the river Las Cañas [...], and thence following the middle of the river upstream as far as a point [...] near the settlement of Las Piletas; from there eastwards over a col indicated as point E on Map No. IV annexed [...], to a hill indicated as point F on Map No. IV annexed [...], and then north-eastwards to a point on the river Negro or Pichigual [...]; downstream along the middle of the river Negro or Pichigual to its confluence with the river Negro-Quiagara [...]; then upstream along the middle of the river Negro-Quiagara as far as the Las Pilas boundary marker [...], and from there in a straight line to the Malpaso de Similatón [...] 429. […] Unanimously, Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the fifth sector of their common frontier not described in Article 16 of the General Treaty of Peace signed by the parties on 30 October 1980 is as follows: From the confluence with the river Torola of the stream identified in the General Treaty of Peace as the quebrada de Mansupucagua [...], the boundary runs upstream along the middle of the river Torola as far as its confluence with a stream known as the quebrada del Arena1 or quebrada de Aceituno [...]; thence up the course of that stream as far as a point at or near its source [...], and thence in a straight line somewhat north of east to a hill some: 1,100 meters high [...]; thence in a straight line to a hill near the river Unire [...], and thence to the nearest point on the river Unire; down- stream along the middle of that river to the point known as the Paso de Unire [...]

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Chapter III 430. […] Unanimously, Decides that the boundary line between the Republic of El Salvador and the Republic of Honduras in the sixth sector of their common frontier not described in article 16 of the General Treaty of Peace signed by the parties on 30 October 1980 is as follows: From the point on the river Goascorán known as Los Amates [...], the boundary follows the course of the river downstream, in the middle of the bed, to the point where it emerges in the waters of the Bahia La Uni6n, Gulf of Fonseca, passing to the north-west of the Islas Ramaditas [...] 431. […] 1. By four votes to one, Decides that the parties, by requesting the Chamber, in Article 2, Paragraph 2, of the Special Agreement of 24 May 1986, ‘to determine the legal situation of the islands,’ have conferred upon the Chamber jurisdiction to determine, as between the parties, the legal situation of all the islands of the Gulf of Fonseca; but that such jurisdiction should only be exercised in respect of those islands which have been shown to be the subject of a dispute; [...] 2. Decides that the islands shown to be in dispute between the parties are: (i) By four votes to one, EI Tigre; [...] (ii) Unanimously, Meanguera and Meanguerita; 3. Unanimously Decides that the island of El Tigre is part of the sovereign territory of the Republic of Honduras; 4. Unanimously Decides that the island of Meanguera is part of the sovereign territory of the Republic of El Salvador; 5. By four votes to one, Decides that the island of Meanguerita is part of the sovereign territory of the Republic of El Salvador. [...] 432. […] By four votes to one, Decides that the legal situation of the waters of the Gulf of Fonseca is as follows: The Gulf of Fonseca is an historic bay the waters whereof, having previously to 1821 been under the single control of Spain, and from 1821 to 1839 of the Federal Republic of Central America, were thereafter succeeded to and held in sovereignty by the Republic of El Salvador, the Republic of Honduras, and the Republic of Nicaragua, jointly, and continue to be so held, as defined in the present Judgment, but excluding a belt, as at present established, extending 3 miles (1 marine league) from the littoral of each of the three states, such belt being under the exclusive sovereignty of the coastal state, and subject to the delimitation between Honduras and Nicaragua effected in June 1900, and to the existing rights

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of innocent passage through the: 3-mile belt and the waters held in sovereignty jointly; the waters at the central portion of the closing line of the Gulf, that is to say, between a point on that line 3 miles (1 marine league) from Punta Amapala and a point on that line 3 miles (1 marine league) from Punta Cosigüina, are subject to the joint entitlement of all three states of the Gulf unless and until a delimitation of the relevant maritime area be effected; [...] 2. By four votes to one, Decides that the parties, by requesting the Chamber, in Article 2, Paragraph 2, of the Special Agreement of 24 May 1986, ‘to determine the legal situation of the … maritime spaces,’ have not conferred upon the Chamber jurisdiction to effect any delimitation of those maritime spaces, whether within or outside the Gulf; [...] 3. By four votes to one, Decides that the legal situation of the waters outside the Gulf is that, the Gulf of Fonseca being an historic bay with three coastal states, the closing line of the Gulf constitutes the baseline of the territorial sea; the territorial sea, continental shelf and exclusive economic zone of El Salvador and those of Nicaragua off the coasts of those two states are also to be measured outwards from a section of the closing line extending 3 miles (1 marine league) along that line from Punta Amapala (in El Salvador) and 3 miles (1 marine league) from Punta Cosiguina (in Nicaragua) respectively; but entitlement to territorial sea, continental shelf and exclusive economic zone seaward of the central portion of the closing line appertains to the three states of the Gulf, El Salvador, Honduras, and Nicaragua; and that any delimitation of the relevant maritime areas is to be effected by agreement on the basis of international law. [...].”34

8.2. Timeline DATE

DOCUMENT

CONTENT

11 December 1986

Press Release No.1986/16

Communicates the submission of the case upon signing a Special Agreement on 24 May 1986.

34 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, p.610, Paragraph 425.

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8 May 1987 and 11 May 1987

Order and Press Release No. 1987/9

15 May 1987

Press Release No.1987/10

27 May 1987, 29 May 1987, and 3 June 1987

Orders and Press Release No.1987/15

Decides and announces the Court’s unanimous creation of a special Chamber to adjudge the case. The Chamber is composed of judges Shigueru Oda, José Sette-Camara, and Sir Robert Jennings, as well as Nicolas Valticos, and Michel Virally, as judges ad hoc. Observes that the composition of the Court at the time of the previous Order and Press Release was: Nagendra Singh, as President; Kéba Mbaye as VicePresident; judges Manfred Lachs, José Maria Ruda, Shigeru Oda, Roberto Ago, José SetteCamara, Stephen M. Schwebel, Sir Robert Jennings, Mohammed Bedjaoui, Ni Zhengyu, Jens Evensen, and Nikolai Tarassov; and Valencia-Ospina as Registrar. Notes that the unanimity mentioned before concerns only the present members. Defines and announces the Chamber’s time limit of 1 June 1988 for the filing of the Memorials, 1 February 1989 for the Counter-Memorials, and 1 August 1989 for the Replies. Also reports that the Chamber elected judge José Sette-Camara as its President.

8. Land, Island and Maritime Frontier Dispute

2 November 1987

Press Release No.1987/25

10 November 1987

Press Release No.1987/28

1 June 1988

Press Release No.1988/14

12 January 1989

Order

261

Notes that the Chamber will hold its first public sitting on 9 November 1987, when the judges ad hoc will make the declarations requested by the Statute of the Court and its Rules. Communicates the events of the public sitting of 9 November 1987. Informs that the judges ad hoc made their solemn declarations and that the President and Vice-President of the Chamber, as well as the Ambassador of El Salvador to the Netherlands, Mr. R. Zaldivar Brizuela, and the agent of Honduras, Mr. C. R. Reina, made speeches. Reminds parties involved of the time limit for the filing of Memorials. Notes that the Memorials were delivered on the date, within the time limit, and that the Ministers for External Relations of the parties were present on the occasion. Recalls the composition of the Chamber and the time limit for the filing of the next written proceedings. Extends the previously fixed time limits for the filing of Counter-Memorials and Replies to 10 February 1989 and 15 December 1989, respectively.

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13 January 1989

Orders

15 January 1990

Press Release No.1990/1

28 February 1990 and 6 March 1990

Order and Press Release No.1990/6

30 May 1990

Press Release No.1990/7

One Order extends the time limit for the filing of Replies to 12 January 1990, in accordance with a request made by the government of Honduras and accepted by the government of El Salvador. The second Order declares that the Chamber dealing with the case will be composed of judges José SetteCamara, President of the Chamber; Shigeru Oda and Sir Robert Jennings; as well as judges Nicolas Valticos and Torres Bernardez, chosen as judges ad hoc. Notifies that the parties delivered the Replies on 12 January 1990, within the fixed time limit. Recalls that the parties exchanged Memorials on 1 June 1988 and Counter-Memorials on 10 February 1989. Reports that on 17 November 1989, Nicaragua filed an application with the ICJ to intervene in the case and that the Court emitted an Order, which was appended with dissenting opinions by judges Elias, Tarassov, and Shahabuddeen, providing that the intervention of Nicaragua should be adjudged by the Chamber. Communicates that on 5 June 1990 the Chamber will have Public Hearings on the application to intervene submitted by Nicaragua.

8. Land, Island and Maritime Frontier Dispute

11 June 1990

Press Release No.1990/8

5 September 1990

Press Release No.1990/15

13 September 1990

Press Release No.1990/16

14 September 1990 and 10 October 1990

Order and Press Release No.1990/17

18 June 1991

Press Release No.1991/18

17 August 1992

Press Release No.1992/21

263

Informs that the Public Hearings on the intervention of Nicaragua concluded on 8 June 1990 and lists the representatives of each state. Also announces that the Chamber will begin its judgment and that the date of its release has yet to be established. Notifies that the judgment on the intervention of Nicaragua will be read during a public sitting on 13 September 1990. Announces that the Chamber delivered its judgment and found the intervention of Nicaragua acceptable since it proved to have interests of a legal nature in the case. Establishes and announces that the Chamber will have additional written pleadings and that the time limit for the submission of Nicaragua’s written statement is 14 December 1990. Also notes that the parties involved may submit their own observations on the statements of the intervener until 14 March 1991. Reports that the Public Hearings opened on 15 April 1991 and concluded on 14 June 1991. Also lists the representatives of each state, as well as the topics touched upon during the sessions. Communicates that the Chamber will deliver its judgment on 11 September 1992, at a public sitting.

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11 September 1992

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Press Release No.1992/22

Notifies that the Chamber delivered its judgment on the case, ruling on the land boundaries and the legal situation of the islands and maritime space.

Bibliography BEKKER, Peter H.F. (1998) ‘Land, Island and Maritime Frontier Dispute (El Salvador/Honduras)’ in Peter F.F. Bekker Commentaries on World Court Decisions (1987-1996), Hague/London/Boston: Martinus Nijhoff Publishers. —. (1998) ‘Land, Island and Maritime Frontier Dispute (El Salvador/Honduras; Nicaragua Intervening)’ in Peter F.F. Bekker Commentaries on World Court Decisions (1987-1996), Hague/London/Boston: Martinus Nijhoff Publishers. BRANT, L. N. C. (2003) ‘L’autorité de La chose jugée et la révision devant la Cour internationale de justice à la lumière des derniers arrêts de celle-ci (Yougoslavie c. Bosnie et El Salvador c. Honduras),’ A.F.D.I., 49: 248-265. BUFFET-TCHAKALOFF, Marie-France (1989) ‘La compétence de la Cour internationale de Justice dans l’affaire des « Actions frontalières et transfrontalières » (Nicaragua-Honduras),’ Revue Générale de Droit International Public, pp. 623-654. DECAUX, E. (1992) ‘Le différend frontalier terrestre, insulaire et maritime (El Salvador/Honduras), arrêt de la Chambre de la CIJ du 11 septembre 1992. La délimitation terrestre,’ AFDI, 38: 393-426. EVANS, Malcolm. (1992) ‘Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras): The Nicaraguan Intervention,’ The International and Comparative Law Quarterly, Vol. 41, No. 4, pp. 896-906. Online. Available. < http://www.jstor.org/stable/761039> HARTZENBUSCH, Catharine A. (1993), ‘Land, Island and Maritime Frontier Dispute (El Salv./ Hond.) Gen. No. 75, 1992 I.C.J.: (Judgment of Sept. 11) (Nicar. intervening),’ Harvard International Law Journal, 32. No. 1: 241-257. KOHEN, Marcelo G. (1990) ‘La requête à fin d'intervention du Nicaragua dans l'affaire Du différend frontalier, terrestre, insulaire et maritime (Salvador/Honduras). L'ordonnance de la Cour du 28 février 1990 et

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l'arrêt de Chambre du 13 septembre 1990,’ Annuaire Français de Droit International, 36: 341-367. KOHEN, M. G. (1993) ‘L’uti possidetis revisité: l’arrêt du 11 septembre 1992 dans l’affaire El Salvador/Honduras,’ RGDIP, 97: 939-973. LUCCHINI, L. (1992) ‘Le différend entre le Honduras et El Salvador devant La CIJ. Aspects insulaires et maritimes,’ AFDI, 38: 427-459. PATEL, Bimal N. (2002) ‘Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras)’ in Bimal N. Patel The World Court Reference Guide: Judgments, Advisory Opinions and Orders of the Permanent Court of International Justice and the International Court of Justice (1922-2000), Hague/London/New York: Kluwer Law International. PHILIPP, Christiane E ‘Land. (2007) ‘Island and Maritime Frontier Dispute Case’ (El Salvador/Honduras: Nicaragua Intervening), Max Planck Encyclopedia of Public International Law, April 2007. Online. Available

RATNER, Steven R. (1991) ‘Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application to Intervene,’ The American Journal of International Law, Vol. 85, No. 4, pp. 680-686. Online. Available. < http://www.jstor.org/stable/2203274> ROSENNE, Shabtai (2006) ‘Chapter 4 – Paragraph 1.57B: The Land, Island and Maritime Frontier Dispute Between El Salvador and Honduras’ in Shabtai Rosenne The Law and Practice of the International Court 1920-2005 – Volume I: The Court and the United Nations, Hague/London/Boston: Martinus Nijhoff Publishers. ROTTEM, Gideon. (1993) ‘Land, Island and Maritime Frontier Dispute,’ The American Journal of International Law, Vol. 87, No. 4, pp. 618626. Online. Available SHAW, Malcolm N. (1993) ‘Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), Judgment of 11 September 1992,’ The International and Comparative Law Quarterly, Vol. 42, No.4, pp. 929-937. Online. Available. —. (2005) ‘Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening), (El Salvador v Honduras), Judgment of 18 December 2003,’ The International and Comparative Law Quarterly, Vol. 54, No. 4, pp. 1013-1022. Online. Available.

9. APPLICATION FOR REVISION OF THE JUDGMENT OF 11 SEPTEMBER 1992 IN THE CASE CONCERNING THE LAND, ISLAND AND MARITIME FRONTIER DISPUTE (EL SALVADOR V. HONDURAS), 2002

9.1. Summary This case concerns a Request for Revision made by the Republic of El Salvador (hereinafter “El Salvador”) to the Chamber of the International Court of Justice (hereinafter “ICJ”) related to the Land, Island, and Maritime Frontier Dispute1 case, based on alleged new facts regarding the sixth sector of land then disputed between El Salvador and the Republic of Honduras (hereinafter “Honduras”).

I. Facts The case concerning the Land, Island, and Maritime Frontier Dispute (El Salvador v. Honduras – Nicaragua intervening) was adjudged on 11 September 1992 by a composed Chamber of the ICJ. The case involved three main disputes: one regarding the six sectors of land, the second one regarding which state had sovereignty over the islands of the Gulf of Fonseca, and the last regarding the legal situation of the maritime space within and outside the Gulf. The Chamber relied mainly on the uti possidetis juris principle guided by the administrative boundaries established by the time of the Spanish colony, as well as on the conduct of the states after independence from the emperor, in 1821, and arguments of effectivités and human kind. To this end, it analyzed historical and republican titles, as well as other historical documents presented by the parties. In defending its possession of the sixth sector of the land boundary, El 1

Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992.

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Salvador claimed that the frontier was defined in accordance with the Goascorán River, but that the course of that river would have abruptly changed, probably during the 17th century, that is, after the boundary was defined. It contended that the avulsion should be considered in the light of Spanish and international law, which provided that the boundary would follow the original course of the river. Honduras, on the other hand, alleged that the course of the Goascorán River had not changed since the delimitation of the boundary. In order to prove such an affirmation, it presented documents to the Chamber, among which the map “Carta Esférica” and the report of the 1794 expedition of El Activo received special attention. The Chamber decided in accordance with Honduras’s arguments, and found that “[n]o record of such an abrupt change of course having occurred has been brought to the Chamber’s attention, but were the Chamber satisfied that the river’s course was earlier so radically different from its present one, then an avulsion might reasonably be inferred.” It stated, however, that “[t]here is no scientific evidence that the previous course of the Goascorán was such that it debouched in the Estero la Cutú [...] rather than any of the other neighboring inlets of the coastline, such as the Estero El Coyol.”2 It did not consider the effect of the avulsion as if it had been proved, but concluded, based on different grounds, that the conduct of the state led to a recognition of the actual course of the river, since it agreed on the boundary negotiated between the parties at Saco in 1880. Evidences presented by Honduras, especially the documents mentioned above, were considered enough to prove that the course was the one adopted since the definition of the boundary. Claiming to have new facts that would justify the Chamber’s review of the sector boundary, El Salvador presented an application for revision on 10 September 2002, relying on Article 61 of the Statute of the Court.3 2

Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1986, p. 199, Paragraphs 308 and 309. 3 Article 61 of the Statute of the Court states that: “1. An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the Judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence. 2. The proceedings for revision shall be opened by a judgment of the Court expressly recording the existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring the application admissible on this ground. 3. The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision. 4. The application for revision must be made at latest within six months of the discovery of the new fact. 5. No application for

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II. Jurisdiction The jurisdiction of this case is defined by Article 61, Paragraphs 2 and Article 26, Paragraph 24 of the Statute of the Court; Article 100 of the Rules of Court5; and Article 1 of the Special Agreement6 between El Salvador and Honduras of 24 May 1986. According to these articles, a state can go back to the Court and ask for a revision of a previous judgment as long as the application fulfills certain requisites. Since the original case was judged by a Chamber, the application for revision must also be analyzed by one.

III. Matters of Dispute This case consists above all of El Salvador’s claim to have new facts justifying a change of boundary decided on by the Chamber in the previous case concerning the area of the sixth sector of land. Meanwhile, Honduras denied any cause for revising the decision. In its final submissions, El Salvador asked the Chamber to adjudge and declare that:

revision may be made after the lapse of ten years from the date of the judgment.” 4 Article 26, Paragraph 2 of the Statute of the Court provides that: “The Court may at any time form a chamber for dealing with a particular case. The number of judges to constitute such a chamber shall be determined by the Court with the approval of the parties.” 5 Article 100 of the Rules of Court establishes that: “1. If the judgment to be revised or to be interpreted was given by the Court, the request for its revision or interpretation shall be dealt with by the Court. If the judgment was given by a Chamber, the request for its revision or interpretation shall be dealt with by that Chamber. 2. The decision of the Court, or of the Chamber, on a request for interpretation or revision of a judgment shall itself be given in the form of a Judgment.” 6 Article 1 of the Special Agreement between El Salvador and Honduras provides that: “1. In application of Article 34 of the General Treaty of Peace, signed on 30 October 1980, the parties submit the issues mentioned in Article 2 of the present Special Agreement to a chamber of the International Court of Justice, composed of three members, with the consent of the parties, who will express this in a joint form to the President of the Court, this agreement being essential for the formation of the chamber, which will be constituted in accordance with the procedures established in the Statute of the Court and in the present Special Agreement. 2. In addition the chamber will include two judges ad hoc specially nominated one by El Salvador and the other by Honduras, who may have the nationality of the parties.”

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“1. The application of El Salvador is admissible based on the existence of new facts of such a nature as to leave the case open to revision, pursuant to Article 61 of the Statute of the Court, and; 2. Once the request is admitted that it proceed to a revision of the judgment of 11 September 1992, so that a new judgment fixes the boundary line in the sixth disputed sector of the land boundary between El Salvador and Honduras as follows: ‘Starting at the old mouth of the Goascorán River at the entry point known as the Estero de la Cutú, located at latitude 13 degrees 22 minutes 00 seconds north and longitude 87 degrees 41 minutes 25 seconds west, the border follows the old bed of the Goascorán River for a distance of 17,300 meters up to the place known as Rompición de Los Amates, located at latitude 13 degrees 26 minutes 29 seconds north and longitude 87 degrees 433 minutes 25 seconds west, which is where the Goascorán River changed course.’” 7

As for Honduras, in its final submissions it asked the Chamber to “declare the inadmissibility of the application for revision presented on 10 September 2002 by El Salvador.”8

IV. Merits A) El Salvador’s Arguments El Salvador based its application on Articles 61 of the Statue of the Court and 999 of the Rules of Court. Although Article 61 provides that there may 7 Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island, and Maritime Frontier Dispute (El Salvador v. Honduras), Judgment, I.C.J. Reports 2003, p. 9, Paragraph 14. 8 Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island, and Maritime Frontier Dispute (El Salvador v. Honduras), Judgment, I.C.J. Reports 2003, p. 9, Paragraph 14. 9 Article 99 of the Rules of Court states that: “1. A request for the revision of a Judgment shall be made by an application containing the particulars necessary to show that the conditions specified in Article 61 of the Statute are fulfilled. Any documents in support of the application shall be annexed to it. 2. The other party shall be entitled to file written observations on the admissibility of the application within a time-limit fixed by the Court, or by the President if the Court is not sitting. These observations shall be communicated to the party making the application. 3. The Court, before giving its judgment on the admissibility of the application may afford the parties a further opportunity of presenting their views thereon. 4. If the Court finds that the application is admissible it shall fix time limits for such further proceedings on the merits of the application as, after ascertaining the views of the

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be a first judgment on the admissibility of the application, the state claimed that, since Honduras asked the Chamber to “require previous compliance with the 1992 judgment as a condition precedent to the admissibility of the application for revision,” it implicitly acquiesced with its adequacy, allowing the Chamber, therefore, to directly analyze the merits. Nevertheless, it presented arguments in order to convince the Chamber of its accordance with the requisites of Article 61. El Salvador claimed to have two new facts: one concerning the avulsion of the Goascorán River, and the other regarding the report of the 1794 expedition of El Activo. With respect to the first, it alleged to have found scientific, technical, and historical evidence of changes to the river’s course. According to the state, the evidence could be classified as “new facts” if Article 61 were interpreted along with the travaux préparatoires of the Statute of the Permanent Court of International Justice. It also mentioned a precedent from the Franco-German Mixed Arbitral Tribunal. El Salvador explained that this evidence could confirm the avulsion of the river, which used to fall in the Estero de la Cutú. According to Spanish colonial law, the boundary should follow the river’s course according to the definition of uti possidetis. It also contended that the absence of this evidence at the time of the original case was not due to negligence. Instead, it was due to insufficient technology at the time, the civil war and political situation of the sixth sector, which impeded access to it, as well as the difficulty of obtaining studies kept in the Library of Honduras. Regarding the Carta Esférica and the report of the expedition, El Salvador claimed to have found different versions of these documents and even doubted their originality. Since the Chamber had given them a special probative character, the questions raised could justify a revision. Furthermore, new documents are themselves new facts, which can also affect other ones, justified El Salvador. It argued that there was no negligence related to the absence of this evidence in the first judgment, since the state was then going through a civil war. Finally, El Salvador asked the Chamber to consider, besides the new facts presented, those already assessed in the previous judgment, since the evidence would lead to a revised interpretation.

parties, it considers necessary. 5. If the Court decides to make the admission of the proceedings in revision conditional on previous compliance with the judgment, it shall make an order accordingly.”

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B) Honduras’s Arguments Based on an advisory opinion emitted by the ICJ, Honduras argued that evidence supporting a fact already explored could not be considered as new. Thus, El Salvador’s request was not for a revision but for a whole new interpretation of the case. Specifically with regards to the avulsion of the Goascorán River, Honduras contended that the evidence was not relevant, since the point of the Chamber’s decision was El Salvador’s conduct during the negotiations of Saco. Therefore, it contended that the evidence was available by the time of the judgment, and that its absence was due to neglect. With this, Honduras alleged that the application did not observe the requisites of Article 61 and should be dismissed. The state also observed that the previously mentioned document was delivered one day before its expiration, as defined by Article 61, Paragraph 5, and that this implied bad faith. Considering El Salvador’s allegations regarding the Carta Esférica and the expedition report, Honduras affirmed that such documents could not be considered as new ones, since they were already presented by the party itself in the prior judgment and that the differences were insignificant. Besides, these documents were available in the days of the 1992 proceedings, so that their absence constituted negligence. Lastly, Honduras emphasized that what El Salvador wanted was for the previous judgment to be reconsidered, and that this exceeded the scope of Article 61.

V. Judgment The Chamber began by analyzing El Salvador’s arguments regarding the supposed Honduran acquiescence with the admissibility of the application. It observed that Article 61 of its Statute provided the judgment on the adequacy of the application and that consent would not be enough to accept it. Furthermore, Honduras only said in its letter that it would ask the Chamber to require the respect of the previous judgment, but never really sent such a solicitation. Besides, the request that the state was about to make was already guaranteed in Articles 61, Paragraph 3 of the Statute and 99, Paragraph 5, of the Rules of Court, so it did not characterize consent. The Chamber emphasized the need for all elements of Article 61 to be present in the case, since otherwise it would not be admissible. Supposing the facts were “new,” it found that evidence on the avulsion of the river

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could not be considered decisive, since the ratio of the decision, likewise argued by Honduras, was not the lack of proof, but the conduct of El Salvador in the negotiated area. With respect to the Carta Esférica and the report of the 1794 expedition, it concluded that it did give them a probative role, but the differences between those already assessed and the ones presented by El Salvador were not significant. Consequently, the Chamber understood that none of the facts could be considered decisive and, therefore, that they did not comply with Article 61. Finally, the Chamber agreed that it should consider new facts along with the previously analyzed ones, in order to better understand the whole context of the case, but stated that “the Chamber cannot find admissible an application for revision on the basis of facts which El Salvador itself does not allege to be new facts within the meaning of Article 61.”10 The final decision was as follows: “By four votes to one, Finds that the application submitted by the Republic of El Salvador for revision, under Article 61 of the Statute of the Court, of the judgment given on 11 September 1992, by the Chamber of the Court formed to deal with the case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), is inadmissible.”11

9.2. Timeline DATE

10 September 2002

10

DOCUMENT

CONTENT

Press Release No.2002/21

Communicates the filing of an application for revision by El Salvador concerning the Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua Intervening) case, adjudged on 11 September 1992 by a Chamber of the ICJ.

Application for Revision of the Judgment of 11 September 1992 concerning the Land, Island and Maritime Frontier Dispute (El Honduras), Judgment, I.C.J. Reports 2003, p.23, Paragraph 58. 11 Application for Revision of the Judgment of 11 September 1992 concerning the Land, Island, and Maritime Frontier Dispute (El Honduras), Judgment, I.C.J. Reports 2003, p.23, Paragraph 60.

in the Case Salvador v. in the Case Salvador v.

9. Application for Revision of the Judgment of 11 September 1992

27 November 2002 and 20 December 2002

Order and Press Release No.2002/40

25 July 2003

Press Release No.2003/23

1 September 2003

Press Release No.2003/27

12 September 2003

Press Release No.2003/30

2 December 2003

Press Release No.2003/40

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Composes and communicates a special Chamber to deal with the case. Its members are, along with those chosen by the parties involved: G. Guillaume as President; F. Rezek and T. Buergenthal as judges; and S. Torres Bernárdez (indicated by Honduras) and F. H. Paolillo (indicated by El Salvador) as judges ad hoc. It also fixes 1 April 2003 as the time limit for Honduras’s written observations. Recalls the history of the proceedings and determines the period for the Public Hearings concerning the admissibility of the application from Monday 8 September to Friday 12 September 2003. Determines the program of hearings as 8 September 2003 and 9 September 2003 for the first round of the oral proceedings, concerning El Salvador and Honduras, respectively; and 10 September 2003 and 12 September 2003 for the second round, following the same order. Communicates that, as the Public Hearings are concluded, the Chamber will analyze the admissibility of the application. Also presents the final submissions of the parties involved. Notifies that the judgment will be delivered on 18 December 2003 and read in a public section by the President of the Chamber.

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18 December 2003

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Press Release No.2003/43

Explains the Chamber’s reasoning and the result of the judgment, that is, the inadmissibility of the application for revision.

10. ANTARCTICA (UNITED KINGDOM V. ARGENTINA/CHILE), 1955

10.1. Summary This case concerns the filing of applications instituting proceedings by the United Kingdom of Great Britain and Northern Ireland (hereinafter “United Kingdom”) against the Republic of Chile (hereinafter “Chile”) and the Republic of Argentina (hereinafter “Argentina”) regarding sovereignty over some of the Falkland Islands.

I. Facts In 1925, Argentina began encroaching in the Falkland Islands area, installing a wireless telegraphic post and applying its own rules to it, despite British. Argentina responded to the protests, alleging that its territorial jurisdiction extended de jure and de facto to the islands of South Orkneys and South Georgia. In 1937, through its ambassador in London, Argentina claimed all of the Falkland Islands for itself. In 1941, it started building posts on the islands and sending naval expeditions to the region, claiming the area based on Spanish heritage. The state published a memorandum in 1943 reaffirming its claims to the islands, to which the United Kingdom responded by referring to its titles to the area, denying any valid interest Argentina could have. In 1940, Chile’s presidency emitted a decree concerning its sovereignty over a region within specified co-ordinates, providing that “[a]l1 lands, islands, islets, reefs of rocks, glaciers (pack-ice) already known, or to be discovered, and their respective territorial waters, in the sector between longitudes 53' and 90" west, constitute the Chilean Antarctic or Chilean Antarctic territory.”1 Although the text made reference only to Antarctic territories, the United Kingdom considered it to include areas outside the Antarctic Circle, as long as they were located within such co-ordinates. The islands of South Georgia, South Orkneys, 1

Antarctica (United Kingdom v. Chile), I.C.J. Reports 1955, p.49, Paragraph 3.

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South Shetlands, Sandwich and the territory of Graham Land would, therefore, be approached, even though they were part of the Falkland Islands, a region claimed by the United Kingdom. In February 1941, the United Kingdom sent an official protest against the Chilean decree and, in January 1946, Chile addressed this protest, questioning British sovereignty over the areas and claiming them on geographical, historical, diplomatic, and administrative grounds. In 1947, Chile started to establish posts on the islands, while the states discussed the matter via diplomatic correspondence. Still in 1941, Argentina installed posts over the islands and sent expeditions to the region, while keeping a meteorological station authorized by the United Kingdom. It published a memorandum in 1943 reaffirming its position on the islands, which the United Kingdom responded to. From that moment on, the states kept the discussion going through diplomatic communication while the government of the Falkland Islands intervened locally. In December 1947, the United Kingdom asked Argentina and Chile to take the cases to the International Court of Justice (hereinafter “ICJ”), alleging that it would then accept its jurisdiction, to which the states refused. The invitation was renewed in 1948, 1951, and 1953, with the suggestion of an ad hoc Arbitral Tribunal. Since the states did not accept, the United Kingdom independently took the dispute to the ICJ.

II. Jurisdiction The jurisdiction of the Court in this case is based on Article 36 (1) of the Statute of the Court2 and on the clause submitted by the United Kingdom at the end of the application providing that: “The United Kingdom government [...] declares that it hereby submits to the jurisdiction of the Court for the purposes of the case referred to the Court in the present application.”3 4 By the time the United Kingdom filed the application, the states had not accepted the jurisdiction.

2

Article 36 (1) of the Statute of the Court provides that: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” 3 Antarctica (United Kingdom v. Chile), Application Instituting Proceedings, I.C.J. Reports 1955, p.73, Paragraph 40. 4 Antarctica (United Kingdom v. Argentina), Application Instituting Proceedings, I.C.J. Reports 1955, p.36, Paragraph 42.

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III. Merits United Kingdom’s Arguments The state’s arguments are based on the fact that sovereignty was exercised over the islands for many years before the beginning of the other states’ claims, as well as on their recognition, at some point, of this sovereignty. In this vein, the United Kingdom started by pointing out the history of the islands. According to the party, they were discovered, mostly, by Englishmen, and in the cases they were not, the state emphasized that the discoveries were not made by Spanish, Argentines or Chileans. Such discoveries started in 1678 and were followed by acts of annexation by the English Crown. Later, in 1843, the United Kingdom emitted Royal Letters Patent concerning settlement in the islands. Such documents gave provisions forming and regarding the colony of the Falkland Islands government. By the year 1917, the United Kingdom affirmed, every island was distinguished in annex to these letters and, therefore, submitted to the government of the colony of the Falkland Islands. The state described the ways it dealt with administration of the islands, emphasizing the effectiveness of its laws, especially since they regulated important activities such as whaling and sealing. The crown maintained, it argued, magistrates in the islands in order to guarantee the enforcement of these laws. It claimed to have stayed active in the area until the Second World War, not only with commercial activities, but also scientific research and expeditions. During the war, it used the areas as strategic ones, making sure they were not used by its enemies. In 1944, facing threats by Chile and Argentina, the United Kingdom established permanent shore bases on the islands and sent ships to the area. It also designed the Falkland Islands Dependencies Survey, responsible for administering these bases. It affirmed that such acts show the continuous exercise of sovereignty over the Falkland Islands. In 1946, Chile responded to the United Kingdom’s protest of 1941, saying it never knew about the Letters Patent and that it exercised its own sovereignty over the areas. After responding to the British protest, Chile established posts in the islands, causing the first to protest again, but which had no effect. To the Chilean response, the United Kingdom addressed specific points in its application. In the first place, the Letters Patent were public, it affirmed, and were only of a declaratory nature, since what really defined British dominium of the area were its acts of sovereignty. In addition, the state contended that there were Chilean whaling companies acting in the

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area, and that they were acting with the license required by the government of the Falkland Islands, thus, recognizing its sovereignty. To further demonstrate that Chile knew about British claims to the areas, the United Kingdom pointed out that Chile had earlier proposed to Argentina to divide the Antarctic region between the states, to which Argentina answered that the area was already claimed by the United Kingdom. Later, when Argentina started claiming the South Shetlands, Chile officially opposed it. Finally, in response to Chile’s claims based on an arbitral award by King Eduard VII, the United Kingdom answered that the arbitral procedure did not concern areas outside the continent. The same arguments were used in the application against Argentina, since a member of the Argentine Ministry of Marine had negotiated a lease. The object of such leasing was a building where an Argentine whaling company was to be installed, indicating that the state also recognized such sovereignty since it followed the instructions given by British administrators. Moreover, in 1908, Argentina requested the terms of the Royal Letters Patent, which were sent by the British government. The United Kingdom affirmed it received a note from Argentina thanking it for sending the titles, leading it to believe that there was no dispute related to the area. Finally, in 1912, the states negotiated the transference of the South Orkneys to Argentina for a British legation in Buenos Aires. Even though the treaty was not signed, the United Kingdom affirmed that it pointed to Argentina’s recognizing its sovereignty over the islands at the time. Still with regards to Argentina, the United Kingdom affirmed that the party tried to reconsider the negotiations refused in 1912 while discussing the acts of 1925 regarding the telegraph post. According to the state, this suggestion made by Argentina indicated that it recognized the weakness of its own arguments. The United Kingdom emphasized that the states never reclaimed the regions through the magistrates or the diplomats established there. Argentina only claimed the islands of South Orkneys and South Georgia in 1925. The first claims concerning the whole group of islands were only in 1937. Chile only began to express its interests in the areas in 1939, when it established a commission to analyze the Antarctic region situation and in 1940, when it emitted the decree referred to above. The applicant stressed that by this time there were conferences on the activities of whaling in the Antarctic area and that the topic of the Falkland Islands was well covered, but Chile did not manifest itself. This was to be expected from a state concerned with the activities developed in its lands. Argentina, for its part, only manifested itself in the conferences of 1937. The United Kingdom

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concluded this part of its application accusing Argentina and Chile of adopting policies of usurpation. Regarding the events after 1925 and 1937 concerning Argentina, and 1940, concerning Chile, the United Kingdom explained that they were not relevant before international law for two main reasons. First, international law does not consider what happens once a conflict begins. In this sense, the states’ actions were only in order to improve their legal positions in the disputes. Second, since the United Kingdom already had titles from at least 1908, when the Royal Letters Patent were emitted, such actions were illegal and invalid, and could not have any legal impact. Finally, the United Kingdom recalled the jurisprudence of the ICJ, commenting on where they would be relevant. In this vein, it affirmed that the principal test to define whether a state possessed an area was the sovereignty test, that is, the presence of the exercise of a state’s power over a place over time. The state argued that this was the case of the Falkland Islands, so no Spanish title –if there were any– or geographical rule could preponderate over such a fact. It added, moreover, that the titles were a question of fact and law and did not depend on the recognition of another state, as stated by the Court in its jurisprudence. Lastly, the party claimed that the juridical and administrative grounds alleged by Chile were, in fact, in accordance with its argumentation, since they had always followed the established British rules, emphasizing, moreover, that the fact that both Argentina and Chile claimed the same regions also indicated a weakness in the requests.

IV. Judgment Requested Based on the facts claimed above, the United Kingdom requested the Court to declare, in the case of Argentina: “(1) [T]hat the United Kingdom, as against the Republic of Argentina, possesses, and at all material dates has possessed, valid and subsisting legal titles to the sovereignty over all the territories comprised in the Falkland Islands Dependencies, and in particular South Sandwich Islands, South Georgia, the South Orkneys, South Shetlands, Graham Land and Coats Land; (2) [T]hat the pretensions of the Republic of Argentina to the territories comprised in the Falkland Islands Dependencies, and in particular South Sandwich Islands, South Georgia, the South Orkneys, South Shetlands, Graham Land and Coats Land, and her encroachments and pretended acts of sovereignty in or relative to any of those territories are, under international law, illegal and invalid;

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Chapter III (3) [T]hat the Republic of Argentina is bound to respect the United Kingdom's sovereignty over the territories comprised in the Falkland Islands Dependencies, and in particular South Sandwich Islands, South Georgia, the South Orkneys, South Shetlands, Graham Land and Coats Land, to cease her pretensions to exercise sovereignty in or relative to those territories and, if called on by the United Kingdom, to withdraw from them all or any Argentine personnel and equipment.”5

Regarding the case against Chile, the United Kingdom asked the Court to declare: “(1) [T]hat the United Kingdom, as against the Republic of Chile, possesses, and at al1 material dates has possessed, valid and subsisting legal titles to the sovereignty of the South Shetlands and Graham Land; (2) [T]hat the pretensions of the Republic of Chile to the South Shetlands and Graham Land and her encroachments and pretended acts of sovereignty in or relative to those territories are, under international law, illegal or invalid; (3) [T]hat the Republic of Chile is bound to respect the United Kingdom's sovereignty over the South Shetlands and Graham Land, to cease her pretensions to exercise sovereignty in, or relative to those territories and, if called on by the United Kingdom, to withdraw from them al1or any Chilean personnel and equipment.”6

V. Final Considerations Since this case was based exclusively on the United Kingdom’s applications instituting proceedings, it does not present Argentina or Chile’s arguments on the matter. A brief history of the proceedings as far as they went can be found in the timeline below.

5

Antarctica (United Kingdom v. Argentina), Application Instituting Proceedings, I.C.J. Reports 1955, p.38, Paragraph 46. 6 Antarctica (United Kingdom v. Chile), Application Instituting Proceedings, I.C.J. Reports 1955, p.75, Paragraph 44.

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10.2. Timeline DATE

DOCUMENT

6 May 1955

Press Release No.1955/26

16 and 17 March 1953

Order and Press Release No. 1956/5

CONTENT Communicates the filing of two applications instituting proceedings by the United Kingdom against Chile and Argentina. Removes both cases from the list of the Court since jurisdiction had not been accepted by the parties.

CHAPTER IV ENVIRONMENTAL LAW AND ACTIVITIES CARRIED OUT IN THE BORDER AREA

1. CONSTRUCTION OF A ROAD IN COSTA RICA ALONG THE SAN JUAN RIVER (NICARAGUA V. COSTA RICA), 2011/ CERTAIN ACTIVITIES CARRIED OUT BY NICARAGUA IN THE BORDER AREA (COSTA RICA V. NICARAGUA), 2010

1.1. Summary This case concerns the judgment of two disputes between the Republic of Costa Rica (hereinafter “Costa Rica”) and the Republic of Nicaragua (hereinafter “Nicaragua”). The first dispute was presented as the Costa Rica v. Nicaragua case and is related to activities of dredging in the San Juan River carried out by Nicaragua. The second one, the Nicaragua v. Costa Rica case, concerns the construction of a road by Costa Rica in the border area, which allegedly caused environmental damage to neighboring Nicaragua. The proceedings were joined by the International Court of Justice (hereinafter “ICJ”) by two Orders on 13 April 2013.

I. Facts A) Geography Costa Rica and Nicaragua are border states separated by the San Juan River, with Costa Rica located to the south. The San Juan River, at a point named “Delta Colorado” or “Delta Costa Rica,” splits into two flows. The one located to the north is the Lower San Juan, which reaches the Caribbean Sea within 30 kilometers from the delta, receiving about 10 per cent of the San Juan River’s water. To the south is the Colorado River, running approximately 20 kilometers before reaching the Caribbean Sea and receiving about 90 per cent of San Juan’s water. Between the two branches is an area called Isla Calero, where a region referred to as Isla Portillos or Harbor Head is found. North of this smaller area, there is a lagoon called Laguna Los Portillos or Harbor Head Lagoon. It does not reach the Caribbean Sea due to the presence of a sandbar on the coast. Isla Calero is located within the North-east

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Caribbean W Wetland, an area designatted of internaational imporrtance by Costa Rica uunder the Connvention on Wetlands W of Innternational Im mportance Especially aas Waterfowl Habitat (hereiinafter “Ramssar Conventio on”).1 The following arrea, referred to t as the San Juan River W Wildlife Refug ge is also considered oof internationaal importance,, as designatedd by Nicaragu ua. The folloowing map2 reepresents the geography g of the area:

B) History The disputees between thhe two states began as earlly as the 185 50s. After hostilities inn 1857, Nicarragua and Costa Rica signned the 1858 Treaty T of Limits (hereeinafter “18588 Treaty”), wh hich determinned the frontieer. It was also decidedd that, although Nicaraguaa had dominiuum and imperrium over the river, Coosta Rica was allowed to naavigate it for ppurposes of co ommerce. As the yyears passed,, Nicaragua changed c its pposition regarrding the validity of tthe 1858 Treaaty on several occasions. T This led to thee question being submiitted to the arbbitral award of o the Presidennt of the Unitted States of America (hereinafter “United “ Statess”), Grover Clleveland, in 1886. 1 The 1

Conventionn on Wetlands of Internationaal Importance Especially as Waterfowl W Habitat (Ram msar, 2 January 1971, 14583 UN NTS). 2 Certain Acttivities Carriedd out by Nicara agua in the Borrder Area (Cossta Rica v. Nicaragua)/C Construction off a Road in Costa C Rica aloong the San Juan J River (Nicaragua vv. Costa Rica), Judgment, J I.C.JJ. Reports 20155, p. 31.

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Cleveland Award concluded for the validity of the 1858 Treaty. It also clarified other points of confusion, such as the possibility of works of improvement along the San Juan River, the construction of a channel, and the diversion of the river’s waters. Following the decision, the parties signed the Pacheco-Matus Convention on Border Demarcation, establishing two Demarcation Commissions. The differences that arose during the process were resolved by the engineer General Edward Porter Alexander, himself appointed by the President of the United States through the Alexander Awards. In the 1980s, further disagreements arose between the states, especially concerning Costa Rica’s right of navigation along the San Juan River. This particular dispute was analyzed by the ICJ in the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua)3 judgment. On 18 October 2010 Nicaragua began dredging the San Juan River, supposedly in order to improve its navigability. According to Costa Rica, such a process created an artificial channel, while Nicaragua affirmed to be working on an already existing one. After attempts at solving the case through diplomacy and recurring to the Organization of American States (hereinafter “OAS”) without success, Costa Rica took the case to the ICJ on 18 November 2010. During the proceedings, Costa Rica also accused Nicaragua of invading its territory with military force during work along the river in 2013, leading to environmental damage. In December 2010, Costa Rica started construction of Route 1856 Juan Rafael Mora Porras, located along the frontier with Nicaragua and following the course of the San Juan River. Through the declaration of a state of emergency, Costa Rica exempted the project from an obligatory environmental impact assessment. On 22 December 2011, Nicaragua filed an application instituting proceedings against Costa Rica, alleging environmental harm caused by the construction of such a road. After the beginning of the proceedings, Nicaragua suggested, on 19 December 2012, that the Court consider joining the proceedings of the cases. After hearing Costa Rica’s position, the ICJ decided, through separate Orders on 13 April 2013, to join them.

3

Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009.

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II. Jurisdiction The jurisdiction of the Court in the two cases is based on Article 314 of the American Treaty on Pacific Settlement (hereinafter “Pact of Bogotá”),5 since both states are parties to it without relevant reservations. Moreover, grounds of jurisdiction for the cases are also found in the declarations submitted by the parties according to Article 36, Paragraph 26 of the Statute of the Court.

III. Matters of Dispute In the Costa Rica v. Nicaragua case, the parties presented the following final submissions. On behalf of Costa Rica: “[…] [T]he Republic of Costa Rica requests the Court to: (1) reject all Nicaraguan claims; (2) adjudge and declare that: (a) sovereignty over the ‘disputed territory’ […] belongs to the Republic of Costa Rica; (b) by occupying and claiming Costa Rican territory, Nicaragua has breached: (i) the obligation to respect the sovereignty and territorial integrity of the Republic of Costa Rica, within the boundaries delimited by 4 Article 31 of the Pact of Bogotá provides that: “In conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they 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 them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.” 5 American Treaty on Pacific Settlement (Pact of Bogotá) (Bogotá, 30 April 1948, 449 UNTS). 6 Article 36, Paragraph 2 of the Statute of the Court provides that: “2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.”

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Chapter IV the 1858 Treaty of Limits and further defined by the Demarcation Commission established by the Pacheco-Matus Convention, in particular by the first and second Alexander Awards; (ii) the prohibition of the threat or use of force under Article 2 (4) of the Charter of the United Nations and Article 22 of the Charter of the Organization of American States; (iii) the prohibition to make the territory of other states the object, even temporarily, of military occupation, contrary to Article 21 of the Charter of the Organization of American States; and (iv) the obligation of Nicaragua under Article IX of the 1858 Treaty of Limits not to use the San Juan River to carry out hostile acts; (c) by its further conduct, Nicaragua has breached: (i) the obligation to respect Costa Rica’s territory and environment, including its wetland of international importance under the Ramsar Convention ‘Humedal Caribe Noreste’ […]; (ii) Costa Rica’s perpetual rights of free navigation on the San Juan in accordance with the 1858 Treaty of Limits, the 1888 Cleveland Award and the Court’s judgment of 13 July 2009; (iii) the obligation to inform and consult with Costa Rica about any dredging, diversion or alteration of the course of the San Juan River, or any other works on the San Juan River that may cause damage to Costa Rican territory (including the Colorado River), its environment, or Costa Rican rights […]; (iv) the obligation to carry out an appropriate transboundary environmental impact assessment, which takes account of all potential significant adverse impacts on Costa Rican territory; (v) the obligation not to dredge, divert or alter the course of the San Juan River, or conduct any other works on the San Juan River, if this causes damage to Costa Rican territory (including the Colorado River), its environment, or to Costa Rican rights under the 1888 Cleveland Award; (vi) the obligations arising from the Orders of the Court indicating provisional measures of 8 March 2011 and 22 November 2013; (vii) the obligation to consult with Costa Rica on the implementation of obligations arising from the Ramsar Convention, […]; and (viii) the agreement between the parties, established in the exchange of notes dated 19 and 22 September 2014, concerning navigation on the San Juan River by Costa Rica to close the eastern caño [channel] constructed by Nicaragua in 2013; (d) Nicaragua may not engage in any dredging operations or other works if and to the extent that these may cause damage to Costa Rican territory (including the Colorado River) or its environment, or which may impair Costa Rica’s rights […], including its right not to have its territory occupied without its express consent; (3) to order, in consequence, that Nicaragua must: […] (b) cease all dredging activities on the San Juan River in the vicinity of Delta Costa Rica and in the lower San Juan River, pending: (i) an appropriate transboundary environmental impact assessment, which takes account of all potential significant adverse impacts on Costa Rican territory, carried out by Nicaragua and provided to Costa Rica; (ii) formal written notification to Costa Rica of further dredging plans in

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the vicinity of Delta Costa Rica and in the lower San Juan River, not less than three months prior to the implementation of any such plans; and (iii) due consideration of any comments made by Costa Rica upon receipt of said notification; (c) make reparation in the form of compensation for the material damage caused to Costa Rica, including but not limited to: (i) damage arising from the construction of artificial caños [channels] and destruction of trees and vegetation on the ‘disputed territory’; (ii) the cost of the remediation measures carried out by Costa Rica in relation to those damages, including but not limited to those taken to close the eastern caño [channel] constructed by Nicaragua in 2013, pursuant to Paragraph 59 (2) (E) of the Court’s Order on Provisional Measures of 22 November 2013; […] (d) provide satisfaction so to achieve full reparation of the injuries caused to Costa Rica in a manner to be determined by the Court; (e) provide appropriate assurances and guarantees of non-repetition of Nicaragua’s unlawful conduct, in such a form as the Court may order; and (f) pay all of the costs and expenses incurred by Costa Rica in requesting and obtaining the Order on Provisional Measures of 22 November 2013, including, but not limited to, the fees and expenses of Costa Rica’s counsel and experts, with interest, on a full indemnity basis.”7

On behalf of Nicaragua: “[…] [T]he Republic of Nicaragua respectfully requests the Court to: (a) dismiss and reject the requests and submissions of the Republic of Costa Rica; (b) adjudge and declare that: (i) Nicaragua enjoys full sovereignty over the caño [channel] joining Harbor Head Lagoon with the San Juan River proper, the right bank of which constitutes the land boundary as established by the 1858 Treaty as interpreted by the Cleveland and Alexander Awards; (ii) Costa Rica is under an obligation to respect the sovereignty and territorial integrity of Nicaragua, within the boundaries delimited by the 1858 Treaty of Limits as interpreted by the Cleveland and Alexander Awards; (iii) Nicaragua is entitled, in accordance with the 1858 Treaty as interpreted by the subsequent arbitral awards, to execute works to improve navigation on the San Juan River as it deems suitable, and that these works include the dredging of the San Juan de Nicaragua River; (iv) the only rights enjoyed by Costa Rica on the San Juan de Nicaragua River are those defined by said Treaty as interpreted by the Cleveland and 7

Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, pp. 20-23.

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290 Alexander Awards.”8

In the Nicaragua v. Costa Rica case, the parties presented the following final submissions. On behalf of Nicaragua: “1. […] [T]he Republic of Nicaragua respectfully requests the Court to adjudge and declare that, by its conduct, the Republic of Costa Rica has breached: (i) its obligation not to violate the integrity of Nicaragua’s territory as delimited by the 1858 Treaty of Limits as interpreted by the Cleveland Award of 1888 and the five Awards of the Umpire E. P. Alexander of 30 September 1897, 20 December 1897, 22 March 1898, 26 July 1899, and 10 March 1900; (ii) its obligation not to damage Nicaraguan territory; (iii) its obligations under general international law and the relevant environmental conventions, including the Ramsar Convention on Wetlands, the Agreement over the Border Protected Areas between Nicaragua and Costa Rica (International System of Protected Areas for Peace [SI-A-PAZ] Agreement), the Convention on Biological Diversity and the Convention for the Conservation of the Biodiversity and Protection of the Main Wildlife Sites in Central America. 2. Nicaragua also requests the Court to adjudge and declare that Costa Rica must: (i) cease all its continuing internationally wrongful acts that affect or are likely to affect the rights of Nicaragua; (ii) inasmuch as possible, restore the situation to the status quo ante, in full respect of Nicaragua’s sovereignty over the San Juan de Nicaragua River, including by taking the emergency measures necessary to alleviate or mitigate the continuing harm being caused to the River and the surrounding environment; (iii) compensate for all damages caused insofar as they are not made good by restitution, including the costs added to the dredging of the San Juan de Nicaragua River, with the amount of the compensation to be determined in a subsequent phase of the case. 3. Furthermore, Nicaragua requests the Court to adjudge and declare that Costa Rica must: (i) not undertake any future development in the area without an appropriate transboundary Environmental Impact Assessment and that this assessment must be presented in a timely fashion to Nicaragua for its analysis and reaction; (ii) refrain from using Route 1856 to transport hazardous material as long 8

Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 23.

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as it has not given the guarantees that the road complies with the best construction practices and the highest regional and international standards of security for road traffic in similar situations. 4. The Republic of Nicaragua further requests the Court to adjudge and declare that Nicaragua is entitled: (i) in accordance with the 1858 Treaty as interpreted by the subsequent arbitral awards, to execute works to improve navigation on the San Juan River and that these works include the dredging of the San Juan de Nicaragua River to remove sedimentation and other barriers to navigation.”9

On behalf of Costa Rica: “[…] Costa Rica requests the Court to dismiss all of Nicaragua’s claims in this proceeding.”10

IV. Merits A) Costa Rica’s Arguments In the Costa Rica v. Nicaragua case, Costa Rica presented arguments concerning sovereignty over the disputed territory, violations of international environmental law, compliance with the provisional measures determined by the Court, rights of navigation, and rights of reparation. Initially, Costa Rica approached what it considered to be breaches of its sovereignty and territorial integrity according to the definitions of the 1858 Treaty and subsequent awards. The state affirmed that Nicaragua violated Costa Rica’s rights while excavating a channel that connected the San Juan River to the Harbor Head Lagoon and, following the work, claiming the territory for itself. The applicant also accused Nicaragua of invading its territory with military force while carrying out the construction of two more channels in 2013. It further emphasized that all arguments on the matter were based on the understanding that Costa Rica’s territory extended through the right bank of the Lower San Juan River to the Caribbean Sea. What is more, according to Costa Rica, the presence of a channel in the region connecting the San Juan River to the lagoon should not be considered in defining sovereignty over the land, 9

Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, pp. 28-29. 10 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 29.

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since the channel was an artificial one, built by Nicaragua in 2010. To prove such a claim, the state presented satellite photos from August 2010. It also argued that the photos presented by Nicaragua should not be considered relevant since they did not show the area of the channel, due to their poor quality. Still regarding the question of sovereignty over the territory, Costa Rica presented arguments of effectivités, such as the absence of claims by Nicaragua until 2010, the legislation it approved specifically concerning the area and, finally, the registration of Isla Portillos as wetlands of international importance under the Ramsar Convention, whereas Nicaragua registered the near area of Refugio de Vida Silvestre Rio San Juan and did not include the disputed territory. Moreover, Costa Rica questioned the legitimacy of the evidence brought by Nicaragua, since it considered the reports made by the state’s own officials to be questionable. Finally, Costa Rica observed that the occupation and claims over its territory by Nicaragua constituted violations of Article IX11 of the 1858 Treaty, as a hostile act; Article 2 (4)12 of the United Nations Charter (hereinafter “UN Charter”),13 and Articles 2114 and 2215 of the Organization of the American States Charter (hereinafter “OAS Charter”).16 11 Article IX of the 1858 Treaty states that: “Under no circumstances, and even in case that the Republics of Costa Rica and Nicaragua should unhappily find themselves in a state of war, neither of them shall be allowed to commit any act of hostility against the other, whether in the port of San Juan del Norte, or in the San Juan River, or the Lake of Nicaragua.” 12 Article 2 (4) of the UN Charter provides that: “The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. (4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” 13 Charter of the United Nations (United Nations Charter) (San Francisco, 24 October 1945, 1 UNTS XVI). 14 Article 21 of the OAS Charter determines that: “The territory of a State is inviolable; it may not be the object, even temporarily, of military occupation or of other measures of force taken by another State, directly or indirectly, on any grounds whatever. No territorial acquisitions or special advantages obtained either by force or by other means of coercion shall be recognized.” 15 Article 22 of the OAS Charter reads as follows: “The American States bind themselves in their international relations not to have recourse to the use of force, except in the case of self-defense in accordance with existing treaties or in fulfillment thereof.” 16 Charter of the Organization of American States (Organization of American States Charter) (Bogotá, 30 April 1948, 119 UNTS 1609).

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Regarding the breaches of international environmental law, Costa Rica attributed different violations to Nicaragua. First, it argued that there was a breach of obligation to prepare an environmental impact assessment before carrying out the dredging works. According to Costa Rica, the assessment prepared by Nicaragua in 2006 did not prove that there would be no significant transboundary harm and did not address the wetlands of Costa Rica. To confirm such an argument, it referred to a document named “Report: Ramsar advisory mission no. 72 of April 2011.” Second, it alleged that Nicaragua had not complied with an obligation to notify and consult with border states before engaging in work that could possibly provoke harm to international land. According to the state, this obligation was provided not only by general international law, but also by Article 3, Paragraph 217 and Article 518 of the Ramsar Convention, as well as Articles 13 (g)19 and 33 of the Convention for the Conservation of the Biodiversity and Protection of Priority Wildlife Areas in Central America (hereinafter “Convention for the Conservation of Biodiversity”). Lastly, it accused Nicaragua of causing harm to its land on the right bank of the Colorado River, and affirmed that Nicaragua should have to pay compensation for it. To prove that harm had occurred, it presented evidence of the reduction of the Colorado River’s flow. Costa Rica then addressed the disregard of provisional measures provided by the ICJ on 8 March 2011 and 22 November 2013. According to Costa Rica, Nicaragua ignored the measures since its civilians, as part 17 Article 3 Paragraph 2 of the Ramsar Convention states that: “Each contracting party shall arrange to be informed at the earliest possible time if the ecological character of any wetland in its territory and included in the List has changed, is changing or is likely to change as the result of technological developments, pollution or other human interference. Information on such changes shall be passed without delay to the organization or government responsible for the continuing bureau duties specified in Article 8.” 18 Article 5 of the Ramsar Convention provides that: “The Contracting Parties shall consult with each other about im plementing obligations arising from the Convention especially in the case of a wetland extending over the territories of more than one Contracting Party or where a water system is shared by Contracting Parties. They shall at the same time endeavour to co-ordinate and support present and future policies and regulations concerning the conservation of wetlands and their flora and fauna.” 19 Article 13 (g) of the Convention for the Conservation of the Biodiversity read as follows: “The following actions should be taken in order to comply fully with the present Convention: (g) facilitate the exchange of information among national institutions, the countries of the Central American region and other international organizations.”

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of an environmental movement, occupied the area, followed by military occupation in 2013 and excavation work of two other channels. Finally, Costa Rica affirmed that Nicaragua violated its rights of navigation provided by the 1858 Treaty, the Cleveland and Alexander Award, and the ICJ’s judgment of 13 July 2009. The state related five cases in which the Nicaraguan authorities had impeded Costa Rica’s civilians from navigating the San Juan River. For procedural reasons, it affirmed that such a claim was already in its application, as Nicaragua affirmed they exceeded the case’s matters of dispute. In the Nicaragua v. Costa Rica case, on the other hand, Costa Rica was accused of several breaches of obligations related to international environmental law. In its submissions, therefore, it tried to demonstrate the lack of significant risk and damage related to the transboundary area. In the first place, the party attempted to deny Nicaragua’s allegations that Costa Rica had violated the international obligation to carry out an environmental impact assessment. In this sense, the state affirmed that there was no significant risk of transboundary harm and that the river was not likely to be affected by the low quantity of sediment caused by the road. Still, it affirmed that domestic and international law allowed for an exception concerning such a requirement. According to Costa Rica, the emergency state it found itself in dispensed it of the environmental study. The construction of the road, it explained, was adequate to the emergency since it would facilitate access to the area where there was risk of military confrontation with Nicaragua. Furthermore, it alleged to have carried out several environmental studies during the construction work and made a preliminary assessment of the risk. From these, it concluded that there was no real danger to Nicaragua since the road was a small one and constructed over several pre-existing tracks, while the sediment would not affect Nicaraguan territory. Regarding Nicaragua’s affirmations that it had breached obligations to notify and consult, Costa Rica claimed it contacted Nicaragua in order to establish a visit to the area. Yet, it did not consider itself obliged by such a requirement, since Nicaragua had caused Costa Rica to be in a state of emergency in the first place. It also affirmed having contacted the Ramsar Secretariat according to the proceedings established in the treaty. Finally, it affirmed that there was no reason for Nicaragua to invoke the 1858 Treaty as it had, since the road was located entirely in Costa Rican territory. Addressing accusations made by Nicaragua that it had caused harm to the transboundary area, Costa Rica started by explaining that the erosion seen in the area next to the San Juan River was a natural phenomenon and

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that the sediment deposed in the water was not a pollutant since it represented only a small amount of the sediment already common in the river. Even so, it affirmed to have been working on reducing the erosion and deposit of sediment in the area. Still defending the fact that its work had not caused any harm, Costa Rica claimed that Nicaragua had no proof of significant harm according to certain objective criteria. Regarding the effects on the Lower San Juan, Costa Rica affirmed that it was also natural and that it was unrelated to the road. Still, it affirmed that Nicaragua was assuming dredging was necessary, when in fact the natural cycle of the river involved depositing accumulated sediment in the Caribbean Sea. Costa Rica then went on to address accusations of causing harm to fauna, the quality of the water, and the health of the local communities, as well as affecting tourism in the region. It questioned a study presented by Nicaragua on local species, affirming that it did not prove any harm; rather, the study showed how the impact was localized and did not affect the entire river. Still, it accused Nicaragua of over- speculation regarding the matter, since it considered there to be no proof of allegations. Costa Rica concluded by stating that the several accusations of breaching international obligations were unfounded. It stated that, because there was no harm to the wetlands, the Ramsar Convention could not be invoked, and that there was no provision applicable to the case in the International System of Protected Areas for Peace [SI-A-PAZ] Agreement. Furthermore, it claimed that the Central American Convention for Protection of the Environment, also referred by Nicaragua, was irrelevant to the case and that there was no legal basis to invoke the Regional Agreement on the Transboundary Movement of Hazardous Wastes.20 Finally, Costa Rica affirmed that there was no impact to navigation, as Nicaragua claimed, and that the road was entirely located within Costa Rican territory, so that it did not characterize a violation of state sovereignty or territorial integrity.

B) Nicaragua’s Arguments In the Costa Rica v. Nicaragua case, Nicaragua defended itself from allegations that it had violated Costa Rican sovereignty and international environmental law. The state addressed Costa Rica’s accusations concerning its sovereignty 20

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel, 22 March 1989, 1673 UNTS 28911)

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by stating that it had only carried out dredging activities in its own territory. According to the state, since there was a natural channel connecting the San Juan River to the Harbor Head Lagoon, the territory was under Nicaraguan jurisdiction, according to its interpretation of the 1858 Treaty, the Cleveland, and the Alexander Awards. The state claimed having carried out the dredging activities only in order to improve the navigability of an already existing channel, which was navigable during a period of the year. To prove the natural existence of the channel, it presented satellite pictures of the area dating back to 1961 and three affidavits of Nicaraguan policemen and military agents. Still, it made reference to a 1949 and a 1971 National Geographic Institute of Costa Rica map which, it believed, showed a channel in the location of the one dredged in 2011. To conclude on the sovereignty matters, it presented effectivités arguments. Nicaragua presented affidavits of state officials that suggested that, at least since the 1970s, Nicaragua exercised sovereignty in the territory. Still, it affirmed that the evidence shown by Costa Rica did not present any concrete activities on the ground, but only on paper. Concerning the international environmental law allegations made by Costa Rica, Nicaragua explained that it concluded an environmental impact assessment suggesting that there was no significant risk to the transboundary area. As for the report by the Ramsar authorities, it affirmed that it was only a draft and had never been concluded. Furthermore, Nicaragua had already presented this point of view at the Ramsar Secretariat. As for the obligations to notify and consult, Nicaragua defended that the 1858 Treaty was limiting, since it was lex specialis and presented no provision in this sense. Still, it claimed that the Convention for Conservation of the Biodiversity only suggested that states share information, but did not require them to do so. Moreover, there was no risk of transboundary harm, so that there was no obligation to notify or consult. Concluding on this matter, Nicaragua claimed that Costa Rica had not proved any harm to its territory and, even if there were any, it would not be unlawful, since it had the right to maintain and improve the San Juan River, according to the Cleveland Award.21 21

Nicaragua refers to a passage that read as follows: “The Republic of Costa Rica cannot prevent the Republic of Nicaragua from executing at her own expense and within her own territory such works of improvement, provided such works of improvement do not result in the occupation or flooding or damage of Costa Rica territory, or in the destruction or serious impairment of the navigation of the said River or any of its branches at any point where Costa Rica is entitled to navigate

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Regarding the provisional measures Costa Rica affirmed it had violated, Nicaragua did not deny the presence of military personnel and the excavation of two more channels, but it did consider the question to be redundant since the Court had already addressed the situation through its Orders. Finally, Nicaragua questioned the admissibility of the application concerning the rights of navigation appointed by Costa Rica. However, the state only contested three of the situations described by the applicant. In the case Nicaragua v. Costa Rica, Nicaragua identified several international environmental law violations in the actions carried out by Costa Rica. First, it addressed the lack of an environmental impact assessment previous to the construction work of Costa Rica’s road. It found no bona fide emergency, since the road was not located in the disputed territory and the state of emergency was declared by Costa Rica only months after the work began. Besides, it considered that Costa Rica was trying to justify a violation of international law with its own domestic law, which was unacceptable. Nicaragua claimed violations of Article 12 of the Convention of Biological Diversity,22 the 1858 Treaty, the Ramsar Convention (Article 3, Paragraph 2 and Article 5), and customary law, since allegedly Costa Rica neither notified nor consulted the party. Having addressed the procedural violations committed by Costa Rica, Nicaragua moved on to the obligations of not causing damage to its territory. First, it claimed that the road was causing the dumping of large quantities of sediment, and that the sediment was a pollutant. Even though it defended there to be such a large amount of sediment, it claimed that, according to the International Law Commission’s Draft Articles on Prevention of Transboundary Harm, any measurable change meant significant harm. It also found there to be changes in the morphology of the river, causing difficulties in navigation activities and requiring the expansion of a dredging program. Regarding the Low San Juan River, Nicaragua appointed an even lower capacity for accumulated sediment, since the river already contained the same. The Republic of Costa Rica has the right to demand indemnification for any places belonging to her on the right bank of the River San Juan which may be occupied without her consent, and for any lands on the same bank which may be flooded or damaged in any other way in consequence of works of improvement.” 22 Convention on Biological Diversity (Rio de Janeiro, 5 June 1992, 1760 UNTS 30619).

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plenty. The deposit of sediment coming from the road would diminish the navigability of the river and the quantity of water reaching the wetlands, which were dependent on it to maintain ecological balance. Nicaragua stated that the increased concentration of sediment had affected local species and that the quality of the water had diminished. As evidence, it presented studies, including one from the Tropical Science Center from January 2015. It also alleged harm to the health of local communities and to tourism activities, since the road had affected the natural landscape of the area. Moreover, it considered that the road represented a significant future risk, as hazardous substances could end up in the river in the case of accidents. For these reasons, Nicaragua found Costa Rica to be in violation of Article 3, Paragraph 1 of the Ramsar Convention; against the object and purpose of the 1990 SI-A-PAZ Agreement; Articles 323 and 824 of the 23 Article 3 of the Convention on Biological Diversity reads as follows: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” 24 Article 8 of the Convention on Biological Diversity states that: “Each Contracting Party shall, as far as possible and as appropriate: (a) Establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity; (b) Develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity; (c) Regulate or manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use; (d) Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings; (e) Promote environmentally sound and sustainable development in areas adjacent to protected areas with a view to furthering protection of these areas; (f) Rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies; (g) Establish or maintain means to regulate, manage or control the risks associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health; (h) Prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species; (i) Endeavour to provide the conditions needed for compatibility between present uses and the conservation of biological diversity and the sustainable use of its components; (j) Subject to its national legislation, respect, preserve and maintain

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Convention on Biological Diversity; the Central American Convention for the Protection of the Environment and the Tegucigalpa Protocol to the Charter of the Organization of Central American States;25 and Article 3 of the Regional Agreement on the Transboundary Movement of Hazardous Wastes. Finally, Nicaragua accused Costa Rica of “physical invasions”26 through the creation of deltas with sediment in the river, considering these to be in violation of its sovereignty and territorial integrity along the San Juan River.

V. Judgment First, the Court addressed the Costa Rica v. Nicaragua case, deciding whether Nicaragua had violated Costa Rican sovereignty and international environmental law obligations, as well as the provisional measures and Costa Rica’s rights of navigation along the San Juan River. Concerning the first issue, the Court considered it uncontested that Nicaragua had carried out dredging activities in the area. The question posed before the Court was whom the disputed area belonged to, since both states presented arguments based on assumptions that they possessed it. The Court began by defining the disputed territory. In this sense, it followed its own definition presented in the Order of 8 March 2011, concluding that the disputed area was made up of the “northern part of Isla Portillos, that is to say, the area of wetland of some 3 square kilometers knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices; (k) Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations; (l) Where a significant adverse effect on biological diversity has been determined pursuant to Article 7, regulate or manage the relevant processes and categories of activities; and (m) Cooperate in providing financial and other support for in-situ conservation outlined in subparagraphs (a) to (l) above, particularly to developing countries.” 25 Tegucigalpa Protocol to the Charter of the Organization of Central American States (Tegucigalpa, 13 December 1991, 1695 UNTS 8048). 26 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 74, Paragraph 221.

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between the rights bank of the disputed caño [channel],27 the right bank of the San Juan River up to its mouth at the Caribbean Sea and the Harbor Head Lagoon.”28 The Court then went on to analyze the 1858 Treaty, the Cleveland Award, and the Alexander Award, since the parties had invoked them. It concluded that they “together, provide that the right bank of a channel of the river forms the boundary on the assumption that this channel is a navigable ‘outlet of commerce.’ Thus, Costa Rica’s rights of navigation are linked with sovereignty over the right bank, which has clearly been attributed to Costa Rica as far as the mouth of the river”.29 If the channel connecting the San Juan River to the Harbor Head Lagoon were already existent, however, it would belong to Nicaragua, prohibiting Costa Rica from claiming rights to sovereignty until the mouth of the river. Therefore, the Court should conclude whether the channel was artificial or not. To decide on the question, it analyzed various evidence brought forth by the parties. First, it explained that the satellite pictures were irrelevant since it was impossible to see the channel or ascertain whether it constituted the disputed area. Regarding the affidavits presented by Nicaragua, the Court recalled its jurisprudence to conclude that the circumstances of their production – that is, the elaboration by Nicaraguan authorities with the purpose of litigation – rendered them of little help to Nicaragua. As for the maps presented by the parties, even though the Court recognized the general importance of maps as a statement of geographical facts, it found that they could not support the parties, since they were small-scale and did not focus on the details of the dispute. It then addressed the effectivités presented by both states, affirming that they were of limited importance, since sovereignty was already defined in the 1858 Treaty and the subsequent awards. Finally, the Court analyzed the expert studies and declarations. Experts from both states agreed that the channel did not connect the river to the lagoon by mid-summer 2011. The Court considered it doubtful that a channel had existed before the dredging work carried out by Nicaragua. It was also unlikely that the channel was navigable at the time, as Nicaragua had affirmed. Another point considered was the removal of trees of 27

The one excavated in 2010. Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 35, Paragraph 69. 29 Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 39, Paragraph 76. 28

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considerable size and age during the dredging work, indicating that the area was occupied by vegetation for a long time. Considering such evidence, the Court concluded that the channel was artificial and that Costa Rica had sovereignty over the territory. Since the activities carried out by Nicaragua had not been contested during the proceedings, the ICJ found that Nicaragua should be held accountable for its unlawful activities. As a last approach to the issue, the Court found that Costa Rica had not proved any hostile act from Nicaragua and, therefore, that the accusation of a violation of Article IX of the 1858 Treaty could not be accepted. Concerning the allegations of violation of the UN Charter and the OAS Charter, the ICJ concluded that it had already deemed Nicaragua’s activities unlawful, so there was no need to separately address each treaty. The Court moved on to the next issue presented by the parties, that is, the alleged breaches of international environmental law. It began by stating that the realization of an environmental impact assessment should be interpreted as an international obligation related to the due diligence required of each state concerning transboundary lands. It analyzed the assessment prepared by Nicaragua in 2006 and concluded that it addressed the dredging activities as a whole and that there was no risk of harm to the Colorado River nor to the Costa Rican protected wetlands. Since there was no risk involved, the Court found that no obligation to notify and consult had been violated. Still, it emphasized that, in contrast to Nicaragua’s statement, the 1858 Treaty did not exclude such obligations presented in other treaties and in customary international law. It also observed that the Ramsar Convention contained an obligation to notify, and not a suggestion, as Nicaragua claimed. As for the harm alleged by Costa Rica, the Court did not find sufficient evidence either of the deposit of sediment in the right bank of the Colorado River, or of any damage to the wetlands. As for the alleged violations of the provisional measures determined by the Court, it emphasized that, in contrast to Nicaragua’s claims, the appropriate moment to address such violations was during the judgment of the dispute, since it had only ceased them through its referred Orders. Considering the uncontested presence of military forces in Costa Rica’s territory, and its activities of excavation, the Court found Nicaragua responsible. It also emphasized that responsibility for the violation of provisional measures was independent from the issue of sovereignty, since ignoring the Court’s Orders was in itself a violation. Regarding the violations of Costa Rica’s rights of navigation, the Court affirmed that the submissions presented by the applicant were not limited to the dredging activities and that the application was admissible. It then

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recalled Article VI30 of the 1858 Treaty and the Cleveland Award, as well as the Court’s judgment in the Dispute Regarding Navigational and Related Rights,31 concluding that Costa Rica had rights of navigation along the river and that it was not limited to commercial activities. Having recalled this, it observed that two of the cases presented by Costa Rica were not contested and, therefore, that Nicaragua was responsible for violating Costa Rica’s rights. Since the cases were uncontested, there was no need for the Court to analyze them. Finally, the Court addressed the reparation required by Costa Rica. It affirmed that there was no need to presume bad faith on the part of Nicaragua and establish guarantees of non-repetition, since it had complied with the last Orders. Nicaragua, though, owed material damage to Costa Rica, to be calculated in separate proceedings. Finally, the Court mentioned Article 6432 of its Statute to affirm that Nicaragua had violated the provisional measures, requiring more proceedings in Court, but that it did not constitute an exception to the rule of Article 64, considering the judgment as a whole. The Court went on to the judgment of the Nicaragua v. Costa Rica case. In this case, it had to decide whether there had been any violation of procedural and substantial obligations concerning international environmental law by Costa Rica while carrying out construction of the 1856 Road. Initially, the Court turned to the question of whether there was, in fact, an obligation to carry out an environmental impact assessment. As in its decision in the Costa Rica v. Nicaragua part of the judgment, the Court recalled the international obligation to carry out such a study. It observed, however, that a preliminary assessment would be adequate to measure the risk and, therefore, that there was no need to prepare a more detailed 30

Article VI of the 1858 Treaty states that: “The Republic of Nicaragua shall have exclusive dominium and imperium over the waters of the San Juan River from its origin in the lake to its mouth at the Atlantic Ocean; the Republic of Costa Rica shall however have a perpetual right of free navigation on the said waters between the mouth of the river and a point located three English miles below Castillo Viejo, [con objetos de comercio], whether with Nicaragua or with the interior of Costa Rica by the rivers San Carlos or Sarapiquí or any other waterway starting from the section of the bank of the San Juan established as belonging to that Republic. The vessels of both countries may land indiscriminately on either bank of the section of the river where navigation is common, without paying any taxes, unless agreed by both governments.” 31 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009. 32 Article 64 of the Statute of the Court provides that: “Unless otherwise decided by the Court, each party shall bear its own costs.”

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study. Nevertheless, the Court affirmed that Costa Rica had no evidence of such a preliminary analysis. Moreover, the road was, in contrast to Costa Rica’s claims, of a significant proportion and extremely close to the San Juan River. Yet the fact that it was being built over deforested areas and close to internationally protected wetlands indicated considerable risk of transboundary harm. The Court then proceeded to Costa Rica’s allegations of exceptions to the environmental study in cases of emergency. First, the Court emphasized that no domestic rule could justify the breach of an international obligation. Moreover, it found that Costa Rica did not prove the emergency that could justify the project, especially since the road was not located in the disputed territory; it would take years for the project to be concluded; the emergency decree was sanctioned months after the construction began; and the fact that the ICJ was already about to provide provisional measures concerning the invasion by Nicaragua by the time of the beginning of the construction activities. Once there was no emergency, the Court found it unnecessary to address the possibility of an exception to international law. Finally, the Court addressed the other studies prepared by Costa Rica and concluded that, even though they indicated effects of the construction and how to diminish them, they were only post hoc evaluations, while there was an international obligation to carry out a study ex ante. Thus, it concluded that Costa Rica had violated its obligation to carry out an environmental impact assessment previous to the work. Concerning the obligation to notify and consult, the ICJ considered that the 1858 Treaty posed no rights to Nicaragua in Costa Rican territory, so that there was no obligation under this treaty. Still, Costa Rica had informed the Ramsar Secretariat, as provided by the convention. Even though it made such comments, the Court did not address the issue further since it had already decided on the breach of the obligation of preparing an environmental study. The Court then proceeded to analyze the alleged transboundary harm caused by Costa Rica. It stated that the concept of any measurable change being interpreted as harm per se could not be accepted and that Nicaragua failed to prove that the sediment concentration in the river had reached a critical level. Based on the experts’ reports, it found that the volume of sediment derived from the road was of two per cent a year, at most. The Court also concluded that Nicaragua failed to prove any change in the river morphology or damage to navigation. It considered Nicaragua’s arguments as mere speculation. Its conclusion was not any different when analyzing the fauna of the river. The studies only showed that the impact

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was localized, there was, therefore, no evidence that the ecosystem had been affected by the construction of the road. The Court reached the same conclusion when it came to tourism activities and the health of local populations. Concerning the alleged violations of several treaties, the Court affirmed that Nicaragua had not shown how the violations took place, since it only listed international provisions. Still, it affirmed that the accusations of invasion through the deposit of sediment were unconvincing. Finally, the Court affirmed that there had been no material injury, so that reparation should not be required of Costa Rica. The road, in contrast to what Nicaragua requested, should not be destroyed since this was not the most adequate solution. According to the Court, Costa Rica should keep on with its environmental studies and measures to diminish the effect of the road in the region. The final decision went as follows: “The Cout, (1) By fourteen votes to two, Finds that Costa Rica has sovereignty over the “disputed territory”, as defined by the Court in paragraphs 69-70 of the present Judgment […]; (2) Unanimously, Finds that, by excavating three caños [channels] and establishing a military presence on Costa Rican territory, Nicaragua has violated the territorial sovereignty of Costa Rica; (3) Unanimously, Finds that, by excavating two caños [channels] in 2013 and establishing a military presence in the disputed territory, Nicaragua has breached the obligations incumbent upon it under the Order indicating provisional measures issued by the Court on 8 March 2011; (4) Unanimously, Finds that, for the reasons given in paragraphs 135-136 of the present Judgment, Nicaragua has breached Costa Rica’s rights of navigation on the San Juan River pursuant to the 1858 Treaty of Limits; (5) (a) Unanimously, Finds that Nicaragua has the obligation to compensate Costa Rica for material damages caused by Nicaragua’s unlawful activities on Costa Rican territory; (b) Unanimously, Decides that, failing agreement between the Parties on this matter within 12 months from the date of this Judgment, the question of compensation due to Costa Rica will, at the request of one of the Parties, be settled by the Court, and reserves for this purpose the subsequent procedure in the case concerning Certain Activities carried out by Nicaragua in the Border Area

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(Costa Rica v. Nicaragua); (c) By twelve votes to four, Rejects Costa Rica’s request that Nicaragua be ordered to pay costs incurred in the proceedings […]; (6) Unanimously, Finds that Costa Rica has violated its obligation under general international law by failing to carry out an environmental impact assessment concerning the construction of Route 1856; (7) By thirteen votes to three, Rejects all other submissions made by the Parties.”33

1.2. Timeline Costa Rica v. Nicaragua DATE

19 November 2010

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DOCUMENT

CONTENT

Press Release No.2010/38

States that Costa Rica submitted an application instituting proceedings against Nicaragua for its military incursion into the plaintiff’s territory and other hazards to the area that would be caused by the channel Nicaragua planned to build. In the application Costa Rica also requested provisional measures to use military force in the disputed area in order to stop the dredging of the river.

Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p. 76, Paragraph 299.

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7 December 2010

13 January 2011

23 February 2011

Press Release No.2010/40

Sets the dates of the Public Hearings to be held in the Peace Palace. The first round of oral observations was scheduled for 11 January 2011 and the second round for 12 January 2011 (Costa Rica) and 13 January 2011 (Nicaragua). It also provides information on public access, video streaming, and practical information for the media.

Press Release No.2011/1

Notifies the conclusion of the Public Hearings, during which Costa Rica requested provisional measures. The country asked the Court to order Nicaragua not to cross the right bank of the San Juan River and the banks between Laguna Los Portillos and the Taura River. Also, Costa Rica asked the Court to rule, via provisional measures, that Nicaragua stop the dredging of the river and not engage in any other activities that could harm Costa Rica until the Court decided on the case. Yet in the Public Hearings, Nicaragua asked the Court to dismiss this provisional measure.

Press Release No.2011/5

Establishes the date of 8 March 2011 for the delivery of the Order concerning the provisional measures by the Court. It then provides a brief history of the proceedings carried out so far.

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8 March 2011

5 April 2011 and 14 April 2011

17 April 2013 and 23 April 2013

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Order and Press Release No. 2011/6

Rules about the provisional measure requested by Costa Rica. The Court stated that both parties should not send either civilians or military crew to the disputed area. In spite of this, the Court permitted Costa Rica to send civilian personnel with the sole purpose of protecting the local environment from the construction of the canal. Finally, the Court established that neither party could engage in any activity that might heighten the dispute and that both countries had to inform the Court of compliance with these measures.

Order and Press Release No.2011/12

Institutes the time limits for Costa Rica’s Memorial and Nicaragua’s Counter-Memorial. Costa Rica had until 5 December 2011 to prepare its Memorial, and Nicaragua until 6 August 2012 to prepare its CounterMemorial.

Order and Press Release No.2013/10

Determines the joinder of proceedings of the present case with Construction of a road along the San Juan River (Nicaragua v. Costa Rica). Based on the principles of sound administration and economy of justice, the Court decided to join the two proceedings. They involve the same parties, the same documents of international law and, in fact, the same area of conflict and harmful acts against the environment. Joining both cases is favorable to the Court as it would enable them to address related subjects concurrently.

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Order and Press Release No.2013/12

Rules about Nicaragua’s counterclaims. Nicaragua requested the Court to declare that: (1) it has full sovereignty over the area that in the past was San Juan del Norte Bay; (2) it has full navigation rights to the Colorado part of the San Juan River; (3) Costa Rica has responsibility towards Nicaragua for breaches of international law resulting from the construction of a road alongside the San Juan; and (4) Costa Rica is responsible for the non-compliance of the 8 March 2011 Court’s provisional measures. The Court determined that there was no need to adjudicate about the admissibility of the first counterclaim. The second and third ones were inadmissible, as they had no direct connection to Costa Rica’s claims. Finally, the Court decided that the fourth counter-claim should not be entertained as such. It stated that this was not the way to address the breach of the 8 March 2011 Order, which would have to take place later on in the proceedings.

Order and Press Release No.2013/18

Determines the Court’s decision on the modification of provisional measures. The Court found that there were no new circumstances able to modify its decision about the 8 March 2011 Order and so it reaffirmed the provisional measures that were set by it.

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25 September 2013

02 October 2013

07 October 2013

15 October 2013

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Press Release No.2013/23

Concerns Costa Rica’s request for new provisional measures. The provisional measures requested were: (1) the suspension of work in the artificial channels; (2) the retraction of Nicaragua’s personnel infrastructure and equipment involved in such construction; (3) Costa Rica´s right to be allowed to work on the damage that this construction might have caused and; (4) the immediate notification of the parties’ compliance with the new provisional measures.

Press Release No.2013/25

Establishes the dates of the Public Hearings to be held in the Peace Palace concerning Costa Rica’s request for new provisional measures. The first round of observations was scheduled for 14 October 2013 (Costa Rica) and 15 October 2013 (Nicaragua), and the second round for 16 October 2013 (Costa Rica) and 17 October 2013 (Nicaragua).

Press Release No.2013/26

Concerns the Public Hearings of 14– 17 October 2013. It sets the procedures for admission, video streaming, and practical information for the media.

Press Release No.2013/27

Concerns Nicaragua’s request for provisional measures. The country asked the Court to order that Costa Rica: (1) give out an environmental impact assessment document; (2) reduce the rate of road-fill where there is risk of eroded material ending up in the San Juan river; (3) eliminate or greatly reduce the probabilities of sedimentation in all streams near the

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road; (4) improve the distribution of concentrated road runoff and increase the number of road drainage structures so as to reduce road surface erosion and the risk of sedimentation; (5) control the erosion and sedimentation that occurred during the years the road was built; and (6) not renew any activities regarding construction until the Court’s decision.

17 October 2013

21 October 2013

19 November 2013

Press Release No.2013/28

States the conclusion of the Public Hearings on Costa Rica’s request for new provisional measures. Costa Rica’s conclusion to the event is the request of new provisional measures indicated in the 25 September 2013 Press Release. Nicaragua’s conclusion is the dismissal of Costa Rica’s request.

Press Release No.2013/30

Establishes the Public Hearings to be held in the Peace Palace on Nicaragua’s request for new provisional measures. The first round of observations is scheduled for 5 November 2013 (Nicaragua) and 6 November 2013 (Costa Rica), and the second round for 7 November 2013 (Nicaragua) and 8 November 2013 (Costa Rica). It also provides information about public access, video streaming, and practical information for the media.

Press Release No.2013/34

Informs that the Court will deliver its Order on Costa Rica’s request for new provisional measures on 22 November 2013. It also gives the procedures for the public at the hearing of the new Order.

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Sets a new provisional measure related to Costa Rica’s request. The Court ruled, aside from the reaffirmation of the previous provisional measures, that Nicaragua could not dredge or engage in other activities in the disputed area, especially if it involved the construction of the two new canals. It also stated that Nicaragua had two weeks from the date of this Order to fill the trench on the eastern new canal and submit evidence of completion to the Court. Nicaragua should remove any kind of personnel in the area, whether civilian or military, and prevent anyone, even Nicaraguan private personnel, from entering, with the exception of those filling the trench. The Court also ruled that Costa Rica had the right to take any appropriate measures regarding the new canals to avoid irreparable damage. Costa Rica for its part, had to notify Nicaragua of such measures and avoid any other effects on the San Juan River. Lastly, the Court stated that both countries had to regularly inform them about compliance to these measures.

22 November 2013

Order and Press Release No.2013/35

16 February 2015

Press Release No.2015/7

Informs that the Court is to hold Public Hearings from Tuesday 14 April to Friday 1 May 2015.

30 March 2015

Press Release No.2015/9

Gives notice that the Court has changed its schedule for the Public Hearings.

10 April 2015

Press Release No.2015/10

Informs that experts present their opinions during the Public Hearings.

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1 May 2015

Press Release No.2015/11

Notifies that the Public Hearings have been concluded and that the Court is to begin its deliberation.

4 December 2015

Press Release No.2015/30

Informs that the Court is to deliver its judgment on 16 December.

16 December 2015

Press Release No.2015/32

Notifies that a decision has been reached in the case and exposes the Court’s reasoning.

Nicaragua v. Costa Rica

DATE

22 December 2011

23 January 2012 and 26 January 2012

DOCUMENT

CONTENT

Press Release No.2011/40

Concerns the submission of an application instituting proceedings to the Court. It was submitted Nicaragua against Costa Rica with regard to “violations of Nicaraguan sovereignty and major environmental damages to its territory.”

Order and Press Release No.2012/3

The Court fixes the time limits of 19 December 2012 for Nicaragua’s Memorial of the Republic of Nicaragua and 19 December 2013 for Costa Rica’s Counter-Memorial. This decision is based on Articles 48 of the Statute of the Court and 31, 44, 45 §1, 48, and 49 of the Rules of Court.

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17 April 2013 and 29 April 2013

18 April 2013 and 1 May 2013

25 July 2013

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Order and Press Release No.2013/10

Determines the joining of the proceedings in the present case with the ones in the case “Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua).” It is based on Articles 48 of the Statute of the Court and 47 of the Rules of Court and the principles of sound administration of justice and the need for judicial economy.

Order and Press Release No.2013/12

Concerns Nicaragua’s four counterclaims, which were denied by the Court. Nicaragua’s first counter-claim lost its purpose after the joining of the cases, because it has the same subject matter as the country’s principal claim in the Nicaragua v. Costa Rica case. Concerning Nicaragua’s second and third counter-claims, the Court stated that “There is no direct connection, either in fact or in law, between Nicaragua’s second and third counterclaims and Costa Rica’s principal claims. Consequently, those counterclaims are inadmissible as such.” The Court also affirmed that it is not necessary to analyze Nicaragua’s fourth counter-claim, as it can be referred to in further proceedings.

Press Release No.2013/18

States that the Court denied the requests from both Nicaragua and Costa Rica, which had asked for the modification of provisional measures enlisted in the Order of 8 March 2011.

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15 October 2013

21 October 2013

08 November 2013

10 December 2013

Press Release No.2013/27

Notifies about a recent request made by Nicaragua to the Court. The country asked the Court to demand that Costa Rica fulfill the Order of 8 March 2011’s provisional measures.

Press Release No.2013/30

Regards the Court’s response to Nicaragua’s request for provisional measures. It scheduled to hold Public Hearings, where this concern could be debated, from Tuesday 5 to Friday 8 November 2013.

Press Release No.2013/32

Shows that the Public Hearings have been concluded, indicating that the Court will now begin its deliberation. In the oral proceedings, Nicaragua emphasized the requests made to the Court indicated in the 2013/27 press release. Then, Costa Rica asked the Court to dismiss this claim. The requests from both countries were based on Article 60 of the Rules of Court. The Court’s decision will be announced in a public sitting, on a date to be announced.

Press Release No.2013/38

Announces the date that the Court was set to publish the last Order concerning this case – 13 December 2013. This was also the day when the President of the Court, Mr. Peter Tomka, read the Order during a Public Seating at the Peace Palace.

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Order

315

Informs the Court’s decision about Nicaragua’s request for provisional measures, which was debated during the Public Hearings mentioned in 2013/30 and 2013/32 press releases. The Court then denied the Request for Provisional Measures, stating, however, that this decision does not affect the merits of the case. The Court authorizes Nicaragua and Costa Rica to submit, respectively, a Reply and a Rejoinder. It fixes the time limits as 4 August 2014 for Nicaragua and 2 February 2015 for Costa Rica.

3 February 2014 and 6 February 2014

Order and Press Release No.2014/5

16 February 2015

Press Release No.2015/7

Informs that the Court is to hold Public Hearings from 14 April to 1 May 2015.

30 March 2015

Press Release No.2015/9

Gives notice that the Court has changed the schedule for the Public Hearings.

10 April 2015

Press Release No.2015/10

Informs that the experts will make their presentations during the sessions on 14,17, 20, and 24 April 2015.

1 May 2015

Press Release No.2015/11

Notifies that the Public Hearings have been concluded and that the Court is to begin its deliberation.

4 December 2015

Press Release No.2015/30

Informs that the Court is to deliver its judgment on 16 December.

16 December 2015

Press Release No.2015/32

Notifies the reaching of a decision in the case and exposes the Court’s reasoning.

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Bibliography BROOKS, Samantha (2011) ‘Dispute over San Juan River,’ ICE Case Studies Number 253. Online. Available LAMUS, Andrés Sarmiento (2013), ‘Revocation and Modification of Provisional Measures Orders in the International Court of Justice: the Court’s Order Regarding Certain Activities Carried Out by Nicaragua in the Border Area and the Case Concerning Construction of a Road in Costa Rica along the San Juan River Joint Proceedings,’ The Law and Practice of International Courts and Tribunals: A Practioner’s Journal, 12. No. 3: 431-461.

2. DISPUTE REGARDING NAVIGATIONAL AND RELATED RIGHTS (COSTA RICA V. NICARAGUA), 2005

2.1. Summary This case concerns the dispute between the Republic of Costa Rica (hereinafter “Costa Rica”) and the Republic of Nicaragua (hereinafter “Nicaragua”) over the extension Costa Rica’s rights of free navigation on the San Juan River as well as the extent of Nicaragua’s power of intervention over such a river.

I. Facts A) Geography Nicaragua and Costa Rica are both situated in Central America. Nicaragua is located north of Costa Rica. The two states are partly divided by a land boundary to the west and by the San Juan River, to the east, where the dispute took place. The San Juan River has its source in Lake Nicaragua, which is situated shortly north of the land boundary between both states to the west, and flows east until it is split in two and reaches the Caribbean Sea. The part of the San Juan River that establishes the international boundary between Nicaragua and Costa Rica starts at a point below the small Nicaraguan city of Castillo Viejo and extends up until Punta de Castilla. The Sketch-map1 below illustrates the geography of the area where the dispute took place.

1 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 18.

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B) History Soon after their independence in 1821, Nicaragua and Costa Rica became part of the Federal Republic of Central America. However, the two states separated from the Republic in 1838 and, ever since 1857, have engaged in negotiations to settle their borders. Throughout the year 1857 the parties signed two treaties, but failed to ratify them. First, on 15 April 1858, Nicaragua and Costa Rica successfully signed and ratified the Treaty of Limits (hereinafter “1858 Treaty”). This treaty not only established the boundary between both states, but also recognized Nicaraguan sovereignty over the San Juan River and Costa Rica’s rights of

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free navigation on the river for the purpose of commerce. This treaty was later the object of several challenges put forward by Nicaragua, making it necessary to submit it to the arbitration of the President of the United States of America (hereinafter “the United States”), President Grover Cleveland. An Arbitral Award was also requested to decide whether Costa Rica’s vessels of war or revenue service would have the right to navigate freely on the San Juan River according to the 1858 Treaty. On 22 March 1888, President Cleveland delivered an Arbitral Award (hereinafter “Cleveland Award”) stating that the 1858 Treaty was valid and that the Costa Rican vessels of war and revenue could be included in Costa Rica’s right of free navigation as long as it navigated with the purpose of commerce. On 5 August 1914, Nicaragua and the United States signed a treaty in which Nicaragua perpetually allowed the United States to construct and maintain an inter-oceanic canal on the San Juan River. Costa Rica upheld that such a treaty violated the 1858 Treaty, since it provided that any project of this nature should be consulted over beforehand. In 1916, the case was taken to the Central American Court of Justice, which decided in Costa Rica’s favor by affirming that Nicaragua had violated both the 1858 Treaty and the Cleveland Award. Finally, in 1956, Nicaragua and Costa Rica signed the Fournier-Sevilla Agreement with the purpose of making it easier to navigate on the San Juan River as well as to establish a cooperation policy on the safeguarding of the river. From the 1980s onward, Nicaragua began to adopt several restrictive measures against Costa Rican citizens with regards to the San Juan River. These measures included prohibition to navigate the river without passports and departure clearance certificates, the adoption of charges to issue such certificates, and the prohibition of the navigation of the Costa Rican police force, among others. Costa Rica protested against these measures, alleging that they violated its right of free navigation. Nicaragua, however, contended that the measures derived from its sovereign rights over the river and that they were necessary for the maintenance of Nicaragua's national security. Nicaragua’s unchanging position led to Costa Rica’s submission of an application instituting proceedings against Nicaragua before the International Court of Justice (hereinafter “ICJ”) on 29 September 2005.

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II. Jurisdiction In its application instituting proceedings, Costa Rica found the jurisdiction of the Court to entertain the present case on two bases. First it relied on declarations of acceptance of the compulsory jurisdiction of the Court according to Paragraph 2 of Article 362 of the Statute of the Court submitted by both Nicaragua and Costa Rica on 24 September 1929 and 20 February 1973, respectively. Second, Costa Rica relied on the American Treaty on Pacific Settlement (hereinafter "Pact of Bogotá”),3 also signed by both parties. Nicaragua did not contend the basis of jurisdiction presented by Costa Rica. However, there are two important points to highlight concerning Nicaragua’s declaration of acceptance of the compulsory jurisdiction of the Court. First, Nicaragua’s declaration was submitted to the Permanent Court of International Justice as a declaration of acceptance of compulsory jurisdiction of the ICJ due to Paragraph 5 of Article 364 of its Statute. Second, Nicaragua made a reservation to its declaration on 26 September 2002 that excluded from the Court’s jurisdiction conflicts involving legal documents signed before 31 December 1901.

III. Matters of Dispute The questions that the Court was called upon to decide were established and derived from submissions put forward by both parties during the proceedings. These submissions were, on the part of Costa Rica:

2

Paragraph 2 of Article 36 states that: “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.” 3 American Treaty on Pacific Settlement (Pact of Bogotá) (Bogotá, 30 April 1948, 30 UNTS 449). 4 Article 26, Paragraph 5 of the Statute of the Court declares: Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their terms.”

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“May it please the Court to adjudge and declare that, by its conduct, the Republic of Nicaragua has violated: (a) [T]he obligation to allow all Costa Rican vessels and their passengers to navigate freely on the San Juan for purposes of commerce, including communication and the transportation of passengers and tourism; (b) [T]he obligation not to impose any charges or fees on Costa Rican vessels and their passengers for navigating on the River; (c) [T]he obligation not to require persons exercising the right of free navigation on the River to carry passports or obtain Nicaraguan visas; (d) [T]he obligation not to require Costa Rican vessels and their passengers to stop at any Nicaraguan post along the River; (e) [T]he obligation not to impose other impediments on the exercise of the right of free navigation, including timetables for navigation and conditions relating to flags; (f) [T]he obligation to allow Costa Rican vessels and their passengers while engaged in such navigation to land on any part of the bank where navigation is common without paying any charges, unless expressly agreed by both governments; (g) [T]he obligation to allow Costa Rican official vessels the right to navigate the San Juan, including for the purposes of re-supply and exchange of personnel of the border posts along the right bank of the River with their official equipment, including service arms and ammunition, and for the purposes of protection as established in the relevant instruments, and in particular the Second article of the Cleveland Award; (h) [T]he obligation to facilitate and expedite traffic on the San Juan, within the terms of the Treaty of 15 April 1858 and its interpretation by the Cleveland Award of 1888, in accordance with Article 1 of the bilateral Agreement of 9 January 1956; (i) [T]he obligation to permit riparians of the Costa Rican bank to fish in the River for subsistence purposes. Further, the Court is requested to adjudge and declare that by reason of the above violations, Nicaragua is obliged: (a) [I]mmediately to cease all the breaches of obligations which have a continuing character; (b) [T]o make reparation to Costa Rica for all injuries caused to Costa Rica by the breaches of Nicaragua’s obligations referred to above, in the form of the restoration of the situation prior to the Nicaraguan breaches and compensation in an amount to be determined in a separate phase of these proceedings; and (c) [T]o give appropriate assurances and guarantees that it shall not repeat its unlawful conduct, in such form as the Court may order.”5

5 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 16.

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For its part, the submissions presented on behalf of Nicaragua were the following: “May it please the Court to adjudge and declare that: The requests of Costa Rica in her Memorial, Reply and oral pleadings are rejected in general, and in particular, on the following bases: (a) [E]ither because there is no breach of the provisions of the Treaty of Limits of 15 April 1858 or any other international obligation of Nicaragua; (b) [O]r, as appropriate, because the obligation breach of which is alleged, is not an obligation under the provisions of the Treaty of Limits of 15 April 1858 or under general international law. Moreover the Court is also requested to make a formal declaration on the issues raised by Nicaragua in Section II of Chapter VII of her CounterMemorial, in Section I, Chapter VI, of her Rejoinder and as reiterated in these oral pleadings.”6

The Court concluded that in order to deliver a judgment on the aforementioned submissions, it would first have to determine the extent of Costa Rica’s right of free navigation on the San Juan River, according to the 1858 Treaty. Second, the Court would have to establish whether Nicaragua had power of regulation on the San Juan River, and, if so, to what extent. Only after deciding upon these matters would the Court be able to analyze the submissions put forward by both parties and determine the means necessary to prevent an eventual violation of international law.

IV. Merits A) Costa Rica’s Arguments The first point discussed before the Court concerned Costa Rica’s right of free navigation. In this sense, Costa Rica sustained that its right of free navigation derived not only from rules of general international law, but also and primarily from the 1858 Treaty, specifically Article VI7 of the 6

Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 17. 7 Article VI of the Treaty of Limits provides the following: “The Republic of Nicaragua shall have exclusive dominium and imperium over the waters of the San Juan River from its origin in the lake to its mouth at the Atlantic Ocean; the Republic of Costa Rica shall however have a perpetual right of free navigation on the said waters between the mouth of the river and a point located three English miles below Castillo Viejo, [con objetos de comercio], whether with Nicaragua or with the interior of Costa Rica by the rivers San Carlos or Sarapiquí or any other

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said treaty. From Costa Rica’s point of view, the aforementioned provision clearly established its perpetual right to navigate freely on the waters of the south bank of the river that constituted the international frontier of both states. The point of conflict over the Article concerned the expression “con objetos de comercio,” since it was seen as a condition to exercise the right of free navigation. Costa Rica argued that the aforementioned expression meant that Costa Rica could navigate freely on the south bank of the waters of the San Juan River as long as it did so with the purpose of commerce in the most comprehensive meaning of the term, which included, for example, both the right of tourists to navigate and unprofitable activities. Therefore, Costa Rica understood the term “con objetos” as meaning “with the purpose of” and the term “comercio” as any type of activity, profitable or not. The right of free navigation on the San Juan River, according to Costa Rica, was a right protected by customary international law as well. In this sense, Costa Rica contended that the San Juan River was an international river, and since Costa Rica itself was a riparian state of such a river, it naturally had the right to freely navigate on its respective bank of the river, which, due to its geographical position, was the south bank. Finally, Costa Rica upheld that, as a consequence of its right of free navigation on the south bank of the San Juan River, and interpreting the term “comercio” in its broadest sense, the Costa Rican inhabitants of the villages situated on the south bank of the river had the right to navigate freely as well as to fulfill their basic daily needs. With regards to Nicaragua’s power of regulation, Costa Rica presented a few points for the Court’s consideration. By signing the 1858 Treaty, Costa Rica agreed that Nicaragua had the right to exercise sovereignty over the San Juan River. For this reason, Costa Rica understood that Nicaragua had the right to issue regulations concerning the river. However, Costa Rica did not agree that such regulations could be imposed on Costa Rica without previous notice and consultation or that they could restrain its right of free navigation on the San Juan River. Costa Rica also positioned itself against several specific Nicaraguan measures enforced after the 1980s, including: the requirement of every Costa Rican vessel to stop and identify itself on Nicaraguan government waterway starting from the section of the bank of the San Juan established as belonging to that Republic. The vessels of both countries may land indiscriminately on either bank of the section of the river where navigation is common, without paying any taxes, unless agreed by both governments.” Translation from Spanish provided by the ICJ.

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posts along the river; the mandatory issue of departure clearance certificates; the obligation of every Costa Rican to issue a visa and tourist cards to be allowed to circulate on the San Juan River; the adoption of charges to issue such documents; the stipulation of a timetable for Costa Rica’s vessels to navigate the river and, finally, the obligatory use of the Nicaraguan flag on all of Costa Rica’s vessels while circulating the San Juan River. Costa Rica contended that these measures were unreasonable and limited Costa Rica’s right of free navigation. Moreover, Costa Rica accused Nicaragua of using the protection of the environment as an excuse to enforce its regulations. The last point Costa Rica requested from the Court was a declaration reaffirming Costa Rican riparians’ right to subsistence fishing on the south bank of the San Juan River. Although this request was not made during Costa Rica’s application instituting proceedings, it sustained that the request was admissible due to the fact that in the application itself Costa Rica had reserved its rights to add or change information and submissions of the mentioned application at any time further in the proceedings. Furthermore, Costa Rica contended that its request was admissible despite not being in its application instituting proceedings because Nicaragua had only started to prevent riparians from fishing after the beginning of the proceedings. Moreover, Costa Rica argued that subsistence fishing among Costa Rica’s riparian community was a question directly derived from the original application, and was therefore admissible. In relation to the merits of this matter, Costa Rica contended that the above-mentioned activity was a right based on customary international law.

B) Nicaragua’s Arguments Nicaragua began its defense by dealing with the question of the extension of Costa Rica’s right of free navigation on the south bank of the San Juan River. In this regard, Nicaragua first sustained that, contrary to what Costa Rica suggested, the San Juan River was not an international river. Indeed, it pointed out that the 1858 Treaty established the border between both parties in a way that the river in question was solely under Nicaragua’s sovereignty. Therefore, even if a customary law that regulated the suggested regime did exist, which Nicaragua also denied, it would not be applicable due to the 1858 Treaty. In regard to Article VI of the 1858 Treaty, the provision which established Costa Rica’s perpetual right of free navigation “con objetos de comercio” and Nicaragua’s sovereignty over the San Juan River, Nicaragua acknowledged the existence of Costa Rica’s right, but it

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disagreed with the meaning of the expression “con objetos de comercio.” Such a divergence implied a different vision of the conditions necessary to exercise the right of free navigation by Costa Rica. Nicaragua understood “con objetos” in its concrete sense, that is to say, it considered this expression to mean material objects that were involved in a commercial transaction. Moreover, Nicaragua interpreted the term “comercio” as meaning trade of goods in its strictest sense, and not including any type of service like transport of tourists. Nicaragua sustained this argument based on the idea of commerce that existed when the treaties were concluded. At the time, commerce was exclusively the exchange of goods rather than services. Therefore, the condition necessary for a Costa Rican vessel to navigate freely on the San Juan River, according to Nicaragua, was that it carried objects involved in commercial exchange. Following this argument, Nicaragua contended, with regards to the navigation of Costa Rican riparians in order to meet the basic necessities of their everyday life, that such an activity was not protected by the right of free navigation conferred to Costa Rica’s commercials vessels. This position is based on the idea that activities carried out by riparians, including seeking medical care or education, were not within the scope of the term “con objetos de comercio,” according to Nicaragua. In relation to its power of regulation, Nicaragua sustained that, since it had sovereignty over the San Juan River, it was its right to establish regulations without any type of consultation or prior notice to Costa Rica. Moreover, Nicaragua argued that the regulations and measures adopted by its government were essential for environmental protection and law enforcement in an area of its domain. Since Costa Rica questioned the legality of several specific Nicaraguan measures, Nicaragua presented its defense in relation to each of these measures. First, it argued that the obligation imposed on Costa Rican vessels of stopping at any Nicaraguan post along the river to identify its passengers and cargo was a matter not only of law enforcement but also environmental protection and navigational security. Concerning the mandatory issue of departure clearance certificates for Costa Rican vessels that were to navigate the San Juan River, Nicaragua alleged that this measure prevented vessels without proper care to navigate and pollute the river and also prevented the transportation of illegal loads. Costa Rica also challenged the imposition of visas and tourist cards on Costa Rican citizens found aboard vessels navigating the San Juan River. With regards to this specific measure, Nicaragua first stated that its right to request such documents derived from its right to exercise sovereignty over the San Juan River. However, Nicaragua also pointed out that, although

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visas and tourist cards were mandatory for all non-nationals, it had made exceptions for Costa Rican citizens from riparian communities as well as all merchants who regularly navigated the San Juan River to exercise commercial activities. With regards to the charges collected by its government, Nicaragua pointed out that they did not constitute payments to navigate the San Juan River. Instead, they represented only the amount necessary to issue documents such as visas and tourist cards. Therefore, according to Nicaragua, these charges did not constitute an interference with Costa Rica’s right of free navigation on the San Juan River. Costa Rica also inquired into the legality of Nicaragua’s imposition of a timetable to circulate on the San Juan River. Nicaragua again contented that the sole purpose of such an imposition was to guarantee safety and avoid criminal activities. Moreover, Nicaragua pointed out that this imposition was indiscriminately binding, that is to say, the measure was enforced on Nicaraguans as well as on other foreigners. Finally, Costa Rica presented its position with regards to the mandatory flying of the Nicaraguan flag on Costa Rica’s vessels. Nicaragua alleged, however, that not all of Costa Rica’s vessels were obliged to fly the Nicaraguan flag. In fact, according to the Action Plan of the Army of Nicaragua, Nicaragua argued that its flag should only be flown on boats that had a flagpole or a stern turret. This information is relevant in so far as the majority of Costa Rica’s navigation facilities were very small wooden boats or with small motors, few of which had a flag display, again according to Nicaragua. This information led to the conclusion that very few boats were actually obliged to fly the Nicaraguan flag, so, according to Nicaragua, the mandatory flying of the Nicaraguan flag was not a measure that affected the right of free navigation. Moreover, Nicaragua sustained that this was a reasonable measure that was inherent to its sovereignty over the San Juan River. The last point deliberated upon during the proceedings had to do with the subsistence fishing of Costa Rican riparians. Nicaragua first stated that the 1858 Treaty did not establish that Costa Rica’s citizens had the right to engage in such an activity, and questioned the protection of this activity by customary international law. Moreover, Nicaragua, after the first round of written proceedings, challenged the admissibility of such a submission on the grounds that it was not directly derived from the application instituting proceedings submitted by Costa Rica.

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IV. Judgment The Court began its deliberation by establishing the extent of Costa Rica's right of free navigation on the south bank of the San Juan River. As presented by the parties, Costa Rica’s right of free navigation was agreed upon while establishing the 1858 Treaty, and was specifically provided for in Article VI of that document. The provision, as interpreted by the Court, established that the San Juan River was under Nicaragua’s sovereignty, even though a part of it constituted the international boundary between the two states. This particular part of the river was divided into two banks: the north and south bank. As already explained, although sovereignty over the entire river belongs to Nicaragua, the 1858 Treaty established that Costa Rican vessels had the right of free navigation “con objetos de comercio.” Therefore, the task before the Court was to delimit the extent of Costa Rican rights based on an interpretation of the meaning of the term “con objetos de comercio.” The Court interpreted the terms of the 1858 Treaty according to customary law. The principles of customary law in interpreting treaties are found in Articles 318 and 329 of the 1969 Vienna Convention on the Law of Treaties (hereinafter “VCLT”).10 Since these provisions merely 8

Article 31 of the VCLT reads as follows: “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 object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.” 9 Article 32 of the VCLT provides that: "Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” 10 Vienna Convention on the Law of Treaties (1969 Vienna Convention) (Vienna, 23 May 1969, 1155 UNTS 18232).

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reflected customary law, it is irrelevant that Nicaragua was not party to the VCLT and that the 1858 Treaty was concluded long before the convention in question. Before actually applying the principles established in the VCLT to determine the meaning of the term “con objetos de comercio,” the Court concluded beforehand that although limitation of sovereignty should not be presumed, the 1858 Treaty was not to be interpreted restrictively, since it was the result of an agreement between the two parties. Following the same reasoning, the Court also decided that neither Nicaragua’s sovereignty nor Costa Rica’s right of free navigation should initially be considered over the other. The Court then proceeded to interpret the meaning of the term “con objetos de comercio” and concluded that it meant “with the purpose of commerce” in the broadest sense, which included services such as the transportation of tourists. The Court reached this understanding first with regards to the expression “con objetos” by ascertaining that adopting the meaning intended by Nicaragua –that is, material objects involved in commercial transactions –causes the rest of the phrase of Article VI to be meaningless. Moreover, the treaties signed prior to the 1858 Treaty that failed to enter into force suggested that if the meaning of the term “con objetos” were to be the one alleged by Nicaragua, it would have been made more explicit. The reason for this is that in these other documents the expression “artículos de comercio” was used rather than “con objetos.” With regards to the expression “comercio,” the Court did not agree with Nicaragua that the idea of commerce adopted should be the one commonly used at the time of the conclusion of the treaty. In fact, the Court understood that the expressions used in an agreement are not immune to change. The development of the meaning of the expressions over time may result in a tacit agreement. However, the Court did not agree with Costa Rica’s excessively broad interpretation of the expression either. From the Court’s point of view, Article VI of the 1858 Treaty did not include unprofitable activities, since such activities could not be considered commercial ones. Therefore, the Court concluded that the term “con objetos de comercio” meant “for the purpose of commerce,” which included profitable services. Despite having decided that Costa Rica’s right of free navigation, as established in Article VI, did not comprise unprofitable activities, the Court decided that the Costa Rican riparian population had the right to navigate freely on the south bank of the San Juan River. The Court came to this conclusion not only because other provisions of the 1858 Treaty guarantee such a right, but also because the riparian community already

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existed and used the river for its basics daily needs at the time of the conclusion of the treaty. The Court believed that this last fact, together with the geographical characteristics of Costa Rica’s coast, made it unlikely that the intention of the treaty was to prohibit activities carried out by the riparian population, otherwise it would have done so explicitly. Since the treaty did not have the intention of prohibiting it, the Court decided that the riparians had the right to freely navigate the south bank of the San Juan River to fulfill their everyday necessities. After deciding upon the matters regarding Costa Rica’s right of free navigation, the Court moved on to the question of whether Nicaragua had the right to enforce regulations and, if so, to what extent. Preliminarily, the Court stated that it is beyond doubt that the part of the San Juan River which is not within Costa Rica’s right of free navigation is under Nicaragua’s power of regulation. Indeed, the Court pointed out that it was only called upon to decide the legitimacy of Nicaragua’s regulations in the part of the San Juan River where Costa Rica could exercise its right of free navigation. In this sense, according to what was presented by the parties, the Court concluded that Nicaragua had power of regulation due to its sovereignty over the San Juan River. The Court proceeded to analyze whether Costa Rica had the right of prior notice and consultation with regards to Nicaragua’s regulations. Costa Rica contented that Nicaragua was obliged to notify its regulations, from the Court’s point of view. However, the 1858 Treaty itself did not bind Nicaragua in this sense. Nevertheless, the Court concluded that Nicaragua was obliged to notify Costa Rica for several reasons. First, the Court recalled that in the Fournier-Sevilla Agreement, Nicaragua and Costa Rica agreed to cooperate to facilitate navigation on the San Juan River. Refusing to inform Costa Rica of the rules in force would make the objective of such an agreement unfeasible, from the Court’s point of view. Moreover, the Court was of the understanding that if these regulations were to be applied to Costa Rican citizens, in order to meet their purposes, citizens had to be made aware of them. Finally, the Court concluded that although Nicaragua was obliged to notify, it was not bound to consult over the implementation of its regulations with Costa Rica. Since Costa Rica challenged the legality of these specific Nicaraguan measures, the Court pointed out several characteristics that Nicaragua’s regulations should have in order to be considered legal. For example, regulations should not make it impossible for Costa Rica to exercise its right of free navigation, and they should have a valid objective. With this in mind, the Court began its analysis regarding the measures adopted by Nicaragua in the 1980s as brought up by Costa Rica.

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Initially, the Court examined whether Nicaragua could require Costa Rican vessels to stop at Nicaraguan posts along the river and identify its passengers and cargo. From its point of view, Costa Rica failed to prove the unreasonableness of this measure. In fact, the Court affirmed that Nicaragua had the right to acknowledge what and who entered its territory insofar as it is a right inherent to its sovereignty. The Court then proceeded to evaluate the legitimacy of Nicaragua’s enforcing the issue of departure clearance certificates for all Costa Rican vessels. In this regard, the Court first noted that Nicaragua’s intention in promoting this measure, namely environmental protection and navigational safety, was valid. Moreover, the Court recalled that this measure had never affected Costa Rica’s exercise of its right of free navigation. Finally, the Court concluded that, since Costa Rica itself did not demonstrate willingness to pursue the issuing of such a certificate, Nicaragua’s initiative was legitimate and lawful. Another point brought up by Costa Rica had to do with Nicaragua’s demand for all Costa Ricans travelling on the San Juan River to carry visas or tourist cards. Here, the Court upheld Costa Rica’s contention that requiring visas and tourist cards implied that Nicaragua could discretionarily determine who was able to exercise their right of free navigation. The Court noted, however, that Nicaragua was prevented from requiring visas and tourist cards only for those who exercised the right of free navigation. All others, especially the ones who intend to navigate along the north bank of the San Juan River, could be asked to carry visas or tourist cards. Having decided that Nicaragua could not require visas and tourist cards for those exercising their right of free navigation, the Court accordingly concluded that the charges related to these documents could not be collected. This decision was based on Nicaragua’s argument that fees were collected exclusively to issue these documents and not as a payment to navigate the river. Moreover, the Court affirmed that this decision did not relate exclusively to the charges for visas and tourist cards, but also to charges for the issue of departure clearance certificates for vessels exercising their right of free navigation. Costa Rica also contended that Nicaragua’s settling timetables for the navigation of vessels was an unreasonable measure. From the Court’s point of view, Costa Rica was not able to prove its alleged unreasonableness. In fact, as the Court pointed out, there was no evidence that there was any navigational activity on the San Juan River late at night. Further, the Court understood that Nicaragua’s purpose in enforcing timetables for navigation, that is, to ensure navigational safety, was indeed

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legitimate and not discriminating. The lack of discrimination between Nicaraguan and Costa Rican vessels on the enforcement of the timetables set by Nicaragua was a point considered by the Court as very relevant, as the lack of discrimination was one of the characteristics set out by the Court as being a condition for a measure limiting the right of free navigation to be considered legal. Finally, the Court analyzed whether forcing Costa Rican vessels to fly the Nicaraguan flag while on the San Juan River was an illegal regulation. With regards to this matter the Court was of the view that demanding to fly the Nicaraguan fly while navigating the San Juan River was one of Nicaragua’s prerogatives as sovereign. Furthermore, the Court recalled that no Costa Rican vessel was ever prevented from navigating the river due to the lack of a Nicaraguan flag, which proved that such a regulation did not affect Costa Rica’s right of free navigation. Therefore, the Court did not uphold Costa Rica’s allegation that this requirement was illegal. The last point deliberated upon by the Court was whether the Costa Rican riparians had the right to fish for subsistence, since Costa Rica requested a declaration stating as much. However, before discussing the merit of this submission, the Court had to deal with the question of its admissibility, as it was brought up by Nicaragua. Although Nicaragua sustained that the discussion of this point was inadmissible because it was not directly derived from the application and, therefore, was untimely, the Court concluded otherwise. The Court decided that Costa Rica’s submission was admissible because of its proximity with the subject matter of Costa Rica’s application, and also due to the fact that, since it was presented early in the written proceedings, it did not put Nicaragua at a disadvantage. Moving on to the merits of the matter, the Court decided that Costa Rican riparians had the customary right to fish for subsistence. This conclusion was based on the fact that Nicaragua had never questioned this activity prior to instituting proceedings in Court, as well as the fact that Nicaragua failed to prove that this was not a recurrent and unquestioned activity that had been carried out for a considerable amount of time. According to the reasons exposed above, the Court voted as following: “(1) As regards Costa Rica’s navigational rights on the San Juan River under the 1858 Treaty, in that part where navigation is common, (a) Unanimously, Finds that Costa Rica has the right of free navigation on the San Juan River for purposes of commerce; (b) Unanimously,

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Chapter IV Finds that the right of navigation for purposes of commerce enjoyed by Costa Rica includes the transport of passengers; (c) Unanimously, Finds that the right of navigation for purposes of commerce enjoyed by Costa Rica includes the transport of tourists; (d) By nine votes to five, Finds that persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s right of free navigation are not required to obtain Nicaraguan visas; […] (e) Unanimously, Finds that persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s right of free navigation are not required to purchase Nicaraguan tourist cards; (f) By thirteen votes to one, Finds that the inhabitants of the Costa Rican bank of the San Juan River have the right to navigate on the river between the riparian communities for the purposes of the essential needs of everyday life which require expeditious transportation; […] (g) By twelve votes to two, Finds that Costa Rica has the right of navigation on the San Juan River with official vessels used solely, in specific situations, to provide essential services for the inhabitants of the riparian areas where expeditious transportation is a condition for meeting the inhabitants’ requirements; […] (h) Unanimously, Finds that Costa Rica does not have the right of navigation on the San Juan River with vessels carrying out police functions; (i) Unanimously, Finds that Costa Rica does not have the right of navigation on the San Juan River for the purposes of the exchange of personnel of the police border posts along the right bank of the river and of the re-supply of these posts, with official equipment, including service arms and ammunition; (2) As regards Nicaragua’s right to regulate navigation on the San Juan River, in that part where navigation is common, (a) Unanimously, Finds that Nicaragua has the right to require Costa Rican vessels and their passengers to stop at the first and last Nicaraguan post on their route along the San Juan River; (b) Unanimously, Finds that Nicaragua has the right to require persons travelling on the San Juan River to carry a passport or an identity document; (c) Unanimously, Finds that Nicaragua has the right to issue departure clearance certificates to Costa Rican vessels exercising Costa Rica’s right of free navigation but does not have the right to request the payment of a charge for the issuance of such certificates; (d) Unanimously,

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Finds that Nicaragua has the right to impose timetables for navigation on vessels navigating on the San Juan River; (e) Unanimously, Finds that Nicaragua has the right to require Costa Rican vessels fitted with masts or turrets to display the Nicaraguan flag; (3) As regards subsistence fishing, By thirteen votes to one, Finds that fishing by the inhabitants of the Costa Rican bank of the San Juan River for subsistence purposes from that bank is to be respected by Nicaragua as a customary right; […] (4) As regards Nicaragua’s compliance with its international obligations under the 1858 Treaty, (a) By nine votes to five, Finds that Nicaragua is not acting in accordance with its obligations under the 1858 Treaty when it requires persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s right of free navigation to obtain Nicaraguan visas; […] (b) Unanimously, Finds that Nicaragua is not acting in accordance with its obligations under the 1858 Treaty when it requires persons travelling on the San Juan River on board Costa Rican vessels exercising Costa Rica’s right of free navigation to purchase Nicaraguan tourist cards; c) Unanimously, Finds that Nicaragua is not acting in accordance with its obligations under the 1858 Treaty when it requires the operators of vessels exercising Costa Rica’s right of free navigation to pay charges for departure clearance certificates; (5) Unanimously, Rejects all other submissions presented by Costa Rica and Nicaragua.”11

11 Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, pp. 60-63.

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2.2. Timeline

DATE

DOCUMENT

CONTENT

Press Release No.2005/20

Concerns the filing of an application to the ICJ, whereby Costa Rica instituted proceedings against Nicaragua over a dispute regarding the navigational and related rights of Costa Rica on the San Juan River.

29 November 2005

Order

Fixes the time limits for the Costa Rican Memorial and Nicaraguan Counter-Memorial as 29 August 2006 and 29 May 2007, respectively.

2 December 2005

Press Release No.2005/24

Publishes the time limits fixed by the Court for the Memorial by Costa Rica and the CounterMemorial by Nicaragua.

Order

Fixes the time limits for the Costa Rican Reply and Nicaraguan Rejoinder as 15 January 2008 and 15 July 2008, respectively.

12 October 2007

Press Release No.2007/24

Reports how the Court authorized the submission of a Reply by Costa Rica and a Rejoinder by Nicaragua and fixes the time limits of these pleadings.

5 February 2009

Press Release No.2009/10

Displays the dates of the Public Hearings at the Peace Palace, seat of the ICJ, which will be from 2 March 2009 to 12 March 2009.

29 September 2005

9 October 2007

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12 March 2009

Press Release No.2009/15

Illustrates the conclusions of the Public Hearings and presents the final submissions of the parties.

6 July 2009

Press Release No.2009/23

Reports how the Court has fixed 13 July 2009 as the date it will deliver its judgment on the case.

Press Release No.2009/24

Publishes the Court’s decision on the case and presents a brief summary of the judgment. It exposes the votes and decisions given to each question set out in the written proceedings. Among other rulings, the Court determines that Costa Rica has the right of free navigation on the San Juan River for purposes of commerce, which includes the transport of passengers, specifically of tourists, and that such passengers are not required to obtain Nicaraguan visas or Nicaraguan tourist cards. Furthermore, the inhabitants of the Costa Rican bank of the San Juan River have the right to navigate on the river between riparian communities for purposes of essential needs of everyday life, and so forth.

13 July 2009

Bibliography BEDERMAN, David J. (2010) ‘Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua),’ The American Journal of International Law, Vol. 104, No. 3. Online. Available < http://www.jstor.org/stable/10.5305/amerjintelaw.104.3.0454 > BJORGE, Eirik (2011) ‘International Court of Justice, Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica V

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Nicaragua) Judgment of 13 July 2009,’ International and Comparative Law Quarterly, 60: 271-279 Online. Available DAWIDODOWICZ, Martin (2011) ‘The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflection on Costa Rica v. Nicaragua,’ Leiden Journal of International Law, 24: 201-222. FEOLA, Emanuele (2011) ‘I principi sull’interpretazione dei trattati nella giurisprudenza recente della Corte Internazionale di Giustizia nel caso: Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua),’ La Comunità Internazionale: rivista trimestrale della Società Italiana per l’Organizzazione Internazionale, 66. No. 3: 473493. GROSSMAN, Nienke (2009) ‘Introductory Note to the International Court of Justice: Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua),’ International Legal Materials, 48. No. 5: 11801182. Online. Available ISLIKER, Franziska, (2010) ‘Dispute regarding Navigational and Related Rights Case,’ Max Planck Encyclopedia of Public International Law. Online. Available LATHROP, Coalter G. (2010) ‘Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua),’ The American Journal of International Law, Vol. 104, No. 3, pp. 454-461. Online. Available

NOLTE, Georg (2012) ‘Between Contemporaneous and Evolutive Interpretation: the Use of Subsequent Practice in the Judgment of the International Court of Justice Concerning the Case of Costa Rica v. Nicaragua (2009)’ in Liber Amicorum and Rüdinger Wolfrum Coexistence, Cooperation and Solidarity- Volume I, Leiden/Boston: Martinus Nijhoff Publishers.

3. PULP MILLS ON THE RIVER URUGUAY (ARGENTINA V. URUGUAY), 2006

3.1. Summary This case concerns the dispute between the Republic of Argentina (hereinafter “Argentina”) and the Eastern Republic of Uruguay (hereinafter “Uruguay”) over alleged violations committed by the latter while authorizing the construction of two pulp mills and commissioning one of them on the Uruguayan bank of the River Uruguay.

I. Facts A) Geography The dispute took place on the River Uruguay, which partially constitutes the international boundary between the South American states of Argentina and Uruguay. More specifically, it revolves around the Uruguayan city of Fray Bentos, located in south-western Uruguay, just opposite the Argentine city of Gualeguaychú. The location of the pulp mills that originated the case is illustrated in the Sketch-map1 below:

1 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 25.

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B) History On 7 April 1961, Argentina and Uruguay signed a treaty on the boundary constituted by the River Uruguay (hereinafter “1961 Treaty”).2 Together, they decided that the river’s administration would be set out by a proper statute since it delimited the international boundary between the states. Accordingly, in 1975 the Argentine and Uruguayan governments concluded the Statute of the River Uruguay (hereinafter “1975 Statute”).3 Besides regulating several matters such as the use of the river water and its conservation, the 1975 Statute established the Administrative Commission of the River Uruguay (hereinafter “CARU”). The aim of the commission was to provide joint administration of the River Uruguay by Argentina and Uruguay in order to implement the substantive rules set out by the 1975 Statute itself. On 22 July 2002, the company Celulosas de M’Bopicuá S.A. (hereinafter “CMB”), formed by the Empresa Nacional de Celulosas de España (hereinafter “ENCE") submitted a project and environmental 2

Treaty concerning the boundary constituted by the River Uruguay (1961 Treaty) (Montevideo, 7 April 1961, 635 UNTS 9076). 3 Statute of the River Uruguay (1975 Statute) (Salto, 26 February 1975, 1295 UNTS 21425).

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impact assessment (hereinafter “EIA”) to the Uruguayan government of what would be called the CMB (ENCE) mill. At that same time, a representative of CMB notified CARU of the project. CARU’s President then requested a copy of the EIA submitted to the Minister of Uruguay’s National Directorate for Environment (hereinafter “DINAMA”) on 22 July 2002. On 14 May 2003, only after CARU requested it a second time, did DINAMA provide a document summarizing the public release of the EIA filed by CMB. A month later, the subcommittee on Water Quality and Pollution Control of CARU sent the document out for technical analysis. Following a Public Hearing on 21 July 2003 regarding CMB’s application for environmental authorization, CARU requested more information from the Uruguayan government on the CMB (ENCE) mill project. Again, only after CARU reiterated its request did the Uruguayan government provide, on 2 October 2003, an internal document between DINAMA and another Uruguayan Ministry in which the first recommended granting the initial environmental authorization (hereinafter “AAP”) to CMB for the construction of the CMB (ENCE) mill. On 9 October 2003, the same date the Presidents of both states met, the Uruguayan government issued an APP to CMB for the construction of a pulp mill. While Argentina argued that the Uruguayan President promised at that meeting that the APP would not be issued prior to Argentina’s environmental remarks, Uruguay argued that the Argentine President accepted not to oppose the project of the CMB (ENCE) mill itself. Uruguay’s failure to submit essential documents to CARU regarding the CMB (ENCE) mill project was followed by an unanswered complaint made by the Argentine representative of CARU. According to Argentina, Uruguay issued the APP without following the proper proceedings established in the 1975 Statute, leading CARU to suspend its work on 17 October 2003. On 27 October 2003, the Uruguayan government provided Argentina not only with a copy of the EIA submitted by CMB on 22 July 2002, but also a copy of DINAMA’s assessment report and the APP. Still, Argentina stated that Uruguay did not follow the proceedings established in the 1975 Statute and requested further documentation. Accordingly, Uruguay submitted a full copy of the CMB (ENCE) mill project to Argentina.  Argentina transmitted all documentation to CARU on 23 February 2004 and the foreign ministers of both states reached an understanding on future proceedings during a meeting held on 2 March 2004. CARU then reestablished its work on 15 May 2004. On 28 November 2004, following CARU’s approval of a monitoring plan of the water quality in the CMB (ENCE) mill area, the Uruguayan government authorized initial

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construction work, which was suspended four months later and then permanently suspended by CMB on 21 September 2006. At the same time as it dealt with the CMB (ENCE) mill dispute, Uruguay’s second pulp mill project became the object of a dispute before the International Court of Justice (hereinafter “ICJ”). The second pulp mill was a joint venture between Botnia S.A. and Botnia Fray Bentos S.A., and was later called the Orion (Botnia) mill. The companies submitted the project and requested an APP from the Uruguayan government between late 2003 and April 2004. Following this, CARU representatives met with Orion (Botnia) mill representatives several times with the purpose of acquiring information on the project from 29 April to 19 October 2004. On 12 November 2004, CARU approved the monitoring plan of water quality for the Orion (Botnia) mill prepared by the subcommittee on Water Quality and Pollution Control and on 14 November 2004 it forwarded the request from that same subcommittee to the Uruguayan government for more information on the APP.  In February 2005, the Uruguayan government issued an APP for the Orion (Botnia) mill. Representatives of the Argentine government questioned this measure in the CARU meetings of 11 March 2005 and 6 May 2005. As was the case of the CMB (ENCE) mill, Argentina argued that Uruguay did not respect the proceedings set forth by the 1975 Statute. Argentina and Uruguay’s divergent positions led them to create a High-Level Technical Group (hereinafter “GTAN”) on 31 May 2005. The aim of the group was to reach a solution concerning both the CMB (ENCE) and Orion (Botnia) mills within 180 days. Once the deadline passed, however, they announced their failure, on 31 January 2006 (Uruguay) and 3 February 2006 (Argentina). In the following months, Uruguay’s government issued several different authorizations for the Orion (Botnia) mill, followed by Argentina’s continued request to suspend the construction of both mills. Although the Uruguayan President requested that the works be suspended in both mills, on 11 March 2006, their construction was resumed.  Argentina submitted an application to the ICJ instituting proceedings against Uruguay on 4 May 2006. Even so, Uruguay continued to authorize several measures concerning the Orion (Botnia) mill, including the commissioning of a port terminal, followed by a notification to CARU. As a last attempt to settle the conflict between the two states, the King of Spain was called upon to negotiate a solution, ultimately without success. Finally, on 8 November 2007, Uruguay authorized the commissioning of the Orion (Botnia) mill, which began operating the following day.

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II. Jurisdiction In its application instituting proceedings against Uruguay, Argentina relied on the Court’s jurisdiction to entertain the present case according to Article 60, Paragraph 14 of the 1975 Statute, as provided by Article 36, Paragraph 15 of the Statute of the Court. Although Uruguay accepted such a jurisdiction, it questioned whether all of Argentina’s claims fell within this scope. It contended that the Court could decide upon any claim related to environmental damage as long as it affected the River Uruguay, since jurisdiction of the Court was established by the 1975 Statute itself.  Argentina, on the other hand, argued that the 1975 Statute should be interpreted according to principles and rules of international law regarding water resources and environmental protection, as established by Article 31, Paragraph 3 (c)6 of the Vienna Convention on the Law of Treaties.7 Furthermore, it claimed that Article 18 and Article 419 of the 1975 Statute 4

Article 60, Paragraph 1 of the 1975 Statute reads as follows: “Any dispute concerning the interpretation or application of the Treaty and the Statute which cannot be settled by direct negotiations may be submitted by either party to the International Court of Justice.” 5 Article 36, Paragraph 1 of the Statute of the Court rules that: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force.” 6 Article 31, Paragraph 3 (c) of the Vienna Convention on the Law of Treaties states that: “3. There shall be taken into account, together with the context: (c) Any relevant rules of international law applicable in the relations between the parties.” 7 Vienna Convention on the Law of Treaties (Vienna Convention on the Law of Treaties) (Vienna, 23 May 1969, 1155 UNTS 18232). 8 Article 1 of the 1975 Statute provides that: “The parties agree on this Statute, in implementation of the provisions of Article 7 of the Treaty concerning the Boundary Constituted by the River Uruguay of 7 April 1961, in order to establish the joint machinery necessary for the optimum and rational utilization of the River Uruguay, in strict observance of the rights and obligations arising from treaties and other international agreements in force for each of the parties.”. 9 Article 41 of the 1975 Statute reads as follows: “Without prejudice to the functions assigned to the Commission in this respect, the parties undertake: (a) to protect and preserve the aquatic environment and, in particular, to prevent its pollution, by prescribing appropriate rules and [adopting appropriate] measures in accordance with applicable international agreements and in keeping, where relevant, with the guidelines and recommendations of international technical bodies; (b) not to reduce in their respective legal systems:1) the technical requirements in force for preventing water pollution, and 2) the severity of the penalties established for violations; (c) to inform one another of any rules which

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implemented a regime that obliged the parties to comply with other treaties and conventions on environmental issues. The interpretation of both points led Argentina to defend that the Court had jurisdiction to entertain claims regarding environmental damage in the area of the River Uruguay, such as noise and visual pollution.  Regarding the arguments put forward by Argentina, Uruguay stated that the 1975 Statute was already written according to the principles and rules of general international law, and that interpreting such a document according to the Vienna Convention on the Law of Treaties would not make a practical difference. It also argued that other treaties and conventions regarding environmental issues were irrelevant to the present case, either because they were unrelated or because Uruguay had not breached them. Moreover, Uruguay contended that relying on conventions other than the 1975 Statute would be out of the Court’s scope of jurisdiction. It did not agree with Argentina that Article 1 and Article 41 of the 1975 Statute referred to other legal documents to which it was bound.  The Court was then called upon to decide the scope of its jurisdiction. First, with regards to Argentina’s claim that the 1975 Statute should be interpreted according to the Vienna Convention on the Law of Treaties, the Court pointed out that although the 1975 Statute was concluded before the convention entered into force, its rules and principles of customary law, such as Article 31, Paragraph 3 (c), should be considered when interpreting its provisions. However, the Court, upon literal analysis, decided that Article 1 and Article 41 of the 1975 Statute were not referral clauses, as claimed by Argentina.  In other words, the Court concluded that the parties involved did not bind themselves to obligations other than the ones set out in the statute itself. Therefore, since Argentina did not base any claims on the 1961 Treaty, the Court decided that the scope of its jurisdiction extended exclusively to that which was provided in the 1975 Statute. Having decided this, the Court concluded the issue of jurisdiction by asserting that, in interpreting the 1975 Statute, Argentine claims that were not strictly related to the River Uruguay could not be sustained before the Court, since these claims would fall out of the scope of the 1975 Statute and, thus, from the Court’s jurisdiction as well.

they plan to prescribe with regard to water pollution in order to establish equivalent rules in their respective legal systems.”

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III. Matters of Dispute In its final submissions, Argentina requested the Court:  “1. [T]o find that by authorizing [T]he construction of the ENCE mill; [T]he construction and commissioning of the Botnia mill and its associated facilities on the left bank of the River Uruguay, the Eastern Republic of Uruguay has violated the obligations incumbent on it under the Statute of the River Uruguay of 26 February 1975 and has engaged its international responsibility; 2. [T]o adjudge and declare that, as a result, the Eastern Republic of Uruguay must: (i) [R]esume strict compliance with its obligations under the Statute of the River Uruguay of 1975; (ii) [C]ease immediately the internationally wrongful acts by which it has engaged its responsibility; (iii) [R]e-establish on the ground and in legal terms the situation that existed before these internationally wrongful acts were committed; (iv) [P]ay compensation to the Argentine Republic for the damage caused by these internationally wrongful acts that would not be remedied by that situation being restored, of an amount to be determined by the Court at a subsequent stage of these proceedings; (v) [P]rovide adequate guarantees that it will refrain in future from preventing the Statute of the River Uruguay of 1975 from being applied, in particular the consultation procedure established by Chapter II of that Treaty.”10

For its part, Uruguay presented the following final submissions: “On the basis of the facts and arguments set out in Uruguay’s CounterMemorial, Rejoinder and during the oral proceedings, Uruguay requests that the Court adjudge and declare that the claims of Argentina are rejected, and Uruguay’s right to continue operating the Botnia plant in conformity with the provisions of the 1975 Statute is affirmed.”11

According to the submissions submitted by the parties, as well as the Court’s decision with regards to its jurisdiction – that it should exclusively interpret the 1975 Statute – the Court was called upon to decide whether 10

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 21. 11 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 21.

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Uruguay had breached its procedural obligations under the 1975 Statute when it authorized construction of the CMB (ENCE) and Orion (Botnia) mills without properly consulting Argentina via CARU. Next, the Court was called upon to decide whether or not the fact that Uruguay authorized a commissioning of the Orion (Botnia) mill constituted a violation to a substantive obligation according to the same legal document.

IV. Merits A) Argentina’s Arguments Argentina began its argument by asserting that Uruguay had breached the procedural obligations set out in the 1975 Statute. From its point of view, this also implied a direct violation of the substantive obligations provided for in the statute. In fact, Argentina argued that since the object and purpose of the 1975 Statute was to establish a co-operational regime in which the parties involved could effectively rationalize the use of the River Uruguay’s resources, breaching of the procedural rules also made it impossible to comply with the statute’s substantive obligations. With regards to procedural obligations, Argentina accused Uruguay of failing to observe all rules in this category, which were established in Articles 7 to 12 of the 1975 Statute. In particular, it claimed that by not respecting the first procedural act laid down in Article 712 – that is, the obligation to inform CARU of projects involving River Uruguay resources – Uruguay did not observe the remaining procedures. As provided for in Article 7, Argentina should have been informed via CARU of the construction of both the CMB (ENCE) and Orion (Botnia) mills, the commissioning of the second mill, and the extraction of water from the River Uruguay. 12 Article 7 of the 1975 Statute rules that: “If one party plans to construct new channels, substantially modify or alter existing ones or carry out any other works which are liable to affect navigation, the regime of the river or the quality of its waters, it shall notify the Commission, which shall determine on a preliminary basis and within a maximum period of 30 days whether the plan might cause significant damage to the other party. If the Commission finds this to be the case or if a decision cannot be reached in that regard, the party concerned shall notify the other party of the plan through the said Commission. Such notification shall describe the main aspects of the work and, where appropriate, how it is to be carried out and shall include any other technical data that will enable the notified party to assess the probable impact of such works on navigation, the regime of the river or the quality of its waters.”

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Argentina understood that CARU was an independent and essential commission needed to fulfill the 1975 Statute’s objectives. For this reason, it argued that submitting information to CARU was crucial in order to determine whether the project might influence the river or not. Argentina claimed that initial information on the pulp mills should have been submitted to CARU as soon as the Uruguayan government was informed of the project. Argentina argued that even if the information was not substantial initially, it should have been submitted to CARU as soon as it was available, which was not the case, given that Uruguay presented information only after issuing authorization for the preparatory work of the mills. Since a decision could not be reached due to the lack of information from Uruguay, Argentina felt that Uruguay had also breached Article 7 of the 1975 Statute by not properly notifying the Argentine government. In this respect, Argentina contended that information presented on the environmental impact was incomplete. It was also not presented via CARU, as required by the 1975 Statute. Indeed, the aforementioned information was only provided to the Argentine government after Uruguay had granted an APP to the companies constructing the pulp mills. Moreover, Argentina pointed out that any informal meetings between CARU and representatives of the companies responsible for the mills did not excuse Uruguay from its responsibility to notify Argentina via CARU, according to Article 7 of the 1975 Statute. As will be discussed later in greater detail, Uruguay claimed that the rules of the 1975 Statute were unnecessary given that the parties agreed to solve problems using alternative means. It pointed to two occasions on which they reached an agreement on their own: one when their foreign ministers met on 2 March 2004 and the other when they decided to create GTAN. Argentina contended that despite the parties’ divergence as to the content of these agreements, it did not renounce the procedures established in the 1975 Statute on either occasion. From its point of view, these agreements attempted to ensure the procedures established in the 1975 Statute. Argentina also asserted that while the parties tried to reach an agreement regarding the pulp mills, Uruguay should not have issued authorizations of any kind and should have suspended all work in progress, as requested by its government. Finally, Argentina’s last argument concerned continuous violations of the 1975 Statute obligations, claiming that Uruguay authorized successive activities involving the construction and commissioning of the mills even after GTAN failed to reach a decision between the parties and the Court deliberated on the matter. According to Argentina’s interpretation, Article

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1213 read together with Article 60 of the 1975 Statute clearly determined that the Court should decide upon the matter only in the last instance. Thus, by not waiting for the Court’s judgment on the matter before proceeding to develop the mills, Uruguay continuously violated the procedures set out in the 1975 Statute. Before approaching the Court regarding Uruguay’s alleged breach of substantive obligation, Argentina requested that the burden of proof be reversed given its difficulty in producing it. Moreover, Argentina alleged that the 1975 Statute provided that such a burden should be equally distributed among the parties involved. It also presented its views on the importance of each type of proof produced. Argentina then proceeded to outline its claims related to the substantive obligations set out in the 1975 Statute, accusing Uruguay of breaching the obligations established in Article 1, Article 35,14 Article 36,15 and Article 41 of the said legal document: namely, violating the purpose of the Statute, the obligation to manage soil so as not to affect the quality of the river water, the obligation to co-ordinate measures to avoid ecological imbalance, and the obligation to prevent pollution in order to preserve the river’s aquatic life. The first substantive obligation Argentina claimed that Uruguay breached was Article 1 of the 1975 Statute, which laid down the statute’s objective and purpose. Argentina argued that Uruguay violated such a provision by violating other substantive obligations, such as Article 35 and Article 36. Specifically, it claimed that Uruguay violated Article 35 by allowing a eucalyptus plantation, created in order to support the Orion (Botnia) mill, to affect the quality of River Uruguay’s water. With regards to Article 36, Argentina maintained that Uruguay affected the balance of River Uruguay’s ecosystem by allowing the Orion (Botnia) mill to discharge toxins into the river. 13 Article 12 of the 1975 Statute establishes that: “Should the parties fail to reach agreement within 180 days following the notification referred to in Article 11, the procedure indicated in Chapter XV shall be followed.” 14 Article 35 of the 1975 Statute provides that: “The parties undertake to adopt the necessary measures to ensure that the management of the soil and woodland and the use of groundwater and the waters of the tributaries of the river do not cause changes which may significantly impair the regime of the river or the quality of its waters.” 15 Article 36 of the 1975 Statute reads as following: “The parties shall co-ordinate, through the Commission, the necessary measures to avoid any change in the ecological balance and to control pests and other harmful factors in the river and the areas affected by it.”

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Finally, Argentina argued that Uruguay failed to comply with Article 41 of the 1975 Statute since it did not submit a complete or timely environmental impact assessment. According to Argentina, the environmental impact assessment that Uruguay presented after implementing the project did not contain the necessary information as stipulated by the 1975 Statute and other documents of international law for the evaluation of environmental damage. Moreover, Argentina alleged that Uruguay violated Article 41 of the 1975 Statute by allowing the Orion (Botnia) mill to function without using the proper technology to avoid pollution. This negligence resulted in the Orion (Botnia) mill discharging toxic substances that affected the river’s biodiversity, as well as causing air pollution.

B) Uruguay’s Arguments Argentina’s first accusation before the Court was that Uruguay breached procedural obligations established in the 1975 Statute and, therefore, violated substantive obligations as well. Uruguay considered this to be a false accusation, since it led to the belief that a breach of the first necessarily implied a violation of the second. It argued that, despite the obvious importance of procedural obligations in fulfilling substantive ones, they are distinctive from one another and it is up to the Court to decide which are breached or not in each case. In Uruguay’s view, CARU was not an independent commission that could act separately from the Argentine and Uruguayan states. This explains why Uruguay did not consider its failure to inform CARU as particularly significant. In fact, Uruguay contended that if both parties decided to proceed with the matter differently from that which was established in the 1975 Statute, as it argued they did, there was no point in considering a breach of procedural obligations. Uruguay maintained that the parties involved dismissed CARU’s preliminary evaluation of both pulp mill projects, making it unnecessary to inform CARU of such projects. Even so, it contended that CARU had been informed of the projects before their implementation. It also argued that since CARU requires sufficient enough information to determine whether or not a project might damage the other party involved, such information should not be submitted until all data is collected. In this sense, Uruguay acknowledged that in order to acquire the technical information necessary for CARU’s evaluation, it might eventually need to start implementing the project. When addressing the claim that it had failed to notify Argentina via

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CARU of the projects and their environmental impact assessments, Uruguay merely affirmed that it carried out such assessments in accordance with its internal laws, and that these assessments were not necessary in order for the Uruguayan government to grant an APP to the companies responsible for the pulp mills. As mentioned above, Uruguay maintained that it did not breach procedural obligations under the 1975 Statute since the parties did not agree to follow them for these specific matters. To argue its point, Uruguay first presented before the Court the understanding reached between the Argentine and Uruguayan foreign ministers on 2 March 2004. According to Uruguay, on this occasion, party representatives decided to dismiss the procedures established in the 1975 Statute by agreeing to exchange information regarding the CMB (ENCE) mill directly between governments. It argued that such an agreement was later extended to the Orion (Botnia) mill as well. Still according to Uruguay, since the parties were unable to reach a decision via the first agreement, they created GTAN as a means of deciding matters involving the pulp mills using a different procedure from the one established in the 1975 Statute. While both agreements were being reached, Uruguay continued to issue authorizations and did not demand the suspension of work on the mills, claiming that the 1975 Statute did not require it to do so. It also considered that given the preliminary nature of the projects and the time the authorizations were issued, these measures would not hurt ongoing negotiations with Argentina. Indeed, after the failure of GTAN, Uruguay claimed to have made progress in implementing the projects, and argued that a lack of agreement did not grant Argentina the right to intervene. Since the 1975 Statute did not rule on the subject, it believed it had the right to develop the projects until the Court decided upon them. Next, Uruguay turned to its alleged violation of the substantive obligations established in the 1975 Statute, namely, that it breached the objective and purpose of the statute, and that it violated the obligation to manage soil in order to avoid contaminating river water, to co-ordinate measures to guarantee the ecological balance of the river, and to prevent pollution. First, Uruguay stated that by no means had it violated the purpose of the 1975 Statute, as is set out in Article 1. From its point of view, the use of the river for industrial purposes did not affect its rational and equitable use. Second, Uruguay claimed that Argentina’s argument involving Article 35 and the eucalyptus plantation was unfounded. Next, it addressed Argentina’s argument regarding the balance of the River Uruguay ecosystem. Uruguay maintained that it did not violate Article 36 of the

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1975 Statute because this provision merely required the parties to act in accordance with what was jointly decided by CARU. In this sense, it upheld that the Orion (Botnia) mill project complied with all regulations set out by CARU and, for this reason, did not breach Article 36. Finally, Uruguay dealt with the claim that it had breached Article 41 of the 1975 Statute for several different reasons. While it acknowledged the importance of the environmental impact assessment, it contended that there was no provision either in the 1975 Statute or other international documents determining the content of such an assessment. It also maintained that the environmental impact assessment was complete enough since it did consider, along with the environmental impact per se, other sites for the Orion (Botnia) mill and the effects the mill would have on the Argentine and Uruguayan riparian community. Uruguay also alleged that there was no evidence – besides a sporadic incident – to support the claim that it had breached Article 41 by allowing the Orion (Botnia) mill to operate without the proper technology, causing both water contamination and air pollution.

IV. Judgment The Court began its deliberation by considering the parties’ positions on Uruguay’s alleged violation of procedural obligations under the 1975 Statute. Although it acknowledged the need for procedural obligations in order to ensure compliance with substantive ones, especially in a regime of co-operation such as the one set out by the 1975 Statute, it found that Argentina’s claim that the breach of the first implied a breach of the second could not be upheld. The Court agreed that it had to decide itself which circumstances constituted a violation of the 1975 Statute. The Court then proceeded to analyze Argentina’s claims concerning procedural obligations by considering whether Uruguay indeed failed to comply with the most important obligation established in Article 7 of the 1975 Statute, that is, the need to inform CARU of any plan that might cause damage to the River Uruguay. In contrast to Uruguay’s position on the matter, the Court asserted the importance of CARU as a legal entity and independent commission responsible for implementing the regime established by the 1975 Statute. It considered it inadmissible for the parties involved, particularly Uruguay, to view CARU as merely one of many possible means to decide matters regarding the River Uruguay. Indeed, the Court asserted that under no circumstances could either party decide unilaterally to dismiss the procedural obligations carried out via CARU and agreed upon in the 1975 Statute.

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In terms of the claim that Uruguay failed to inform CARU of the mill projects and later notify Argentina of them, the Court upheld Argentina’s argument that the information to be submitted to CARU did not initially have to be extensive, since the commission would only use it for the purpose of establishing a preliminary evaluation of damage that the project in question might cause. The Court also noted that Uruguay did not provide such information before granting an APP to the companies responsible for the mills, and that the meetings involving company representatives and CARU did not serve as a substitute. However, the Court agreed that, since the 1975 Statute did not require it, Uruguay did not have to inform CARU of every action and measure taken regarding the mill projects. Still, the Court concluded that Uruguay failed to inform CARU of these projects.  Consequently, the Court decided that Uruguay also failed to properly notify Argentina. It deemed that such a notification should have occurred before Uruguay began implementing the projects in order for Argentina to present its views on the environmental impact of the mills. Furthermore, the Court rejected Uruguay’s contention that the evaluation of environmental impact proceeded in accordance with its domestic law. It pointed out that the rule established in Article 2716 of the Vienna Convention on the Law of Treaties is a customary international law that prevents a state from invoking internal laws should it fail to comply with its international commitments. The Court then proceeded to examine whether, as Uruguay argued, the parties involved had agreed not to follow the procedures set out in the 1975 Statute. Ultimately, it found that the argument for alternative agreements as a means of deciding the matter of the pulp mills could not be upheld. It based this understanding first on the fact that Uruguay did not respect the agreement carried out by the Argentine and Uruguayan foreign ministers, in which the Uruguayan government agreed to provide Argentina with information regarding the pulp mill projects. For this reason, even if the agreement were to represent an alternative procedure, it depended on Uruguay’s compliance to be considered as such by the Court. The second agreement, the one reached by the parties’ presidents and that culminated in the creation of GTAN, was not considered an alternative procedure since, from the Court’s point of view, it constituted a mechanism to establish negotiations as provided for in Article 12 of the 1975 Statute. Thus, the Court concluded that neither one of the agreements 16

Article 27 of the Vienna Convention on the Law of Treaties reads as following: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.”

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presented by Uruguay constituted a dismissal of the procedural obligations established in Article 7 to 12 of the 1975 Statute. Moreover, the Court noted that by successfully implementing the projects during the period in which the parties were still negotiating, Uruguay violated its obligation to negotiate, as provided for in Article 12 of the statute. Argentina’s last point about procedural obligations concerns the claim that Uruguay continuously violated such obligations by not waiting for the Court’s judgment before issuing authorizations for the pulp mills. Although referring the dispute to the Court was a possibility, as established in Article 60 of the 1975 Statute, it could not decide whether the construction of the mills could be carried out or not. Indeed, the Court decided that, following the end of the negotiation period, Uruguay was no longer in breach of procedural obligations since the Court’s jurisdiction is confined to the interpretation and application of the 1975 Statute and these negotiations constituted a last attempt to decide upon the matter. Thus, although Uruguay had breached the procedural obligations set forth by the statute while the parties still negotiated, the Court concluded that it did not continuously breach its obligations afterwards, and that the implementation of the pulp mills occurred at its own risk. Finally, the Court addressed Argentina’s claims regarding the substantive obligations arising from the 1975 Statute. Before doing so, however, it judged that Argentina’s request for reversal of the burden of proof could not be upheld. Moreover, the Court affirmed that there was no provision in the 1975 Statute establishing an equal burden of proof between the parties involved. Thus, as the applicant in the case, Argentina maintained the burden of proof. Argentina’s first claim in this regard concerned Uruguay’s violation of Article 1 of the said statute, that is to say, violation of the purpose of the document and not complying with the other provisions therein. The Court deemed that such a claim could not be upheld, since Article 1, though it determines the meaning of the statute’s substantive obligations, does not create an obligation in and of itself. The Court then analyzed Argentina’s claim that Uruguay failed to comply with Article 35 of the Statute by allowing a eucalyptus plantation to support the Orion (Botnia) mill, consequently affecting the water quality of the River Uruguay. The Court found, in accordance with Uruguay’s view, that Argentina did not possess evidence to support its claim. Next, the Court proceeded to examine the merits of Argentina’s claim regarding Article 36 of the 1975 Statute. First it noted that this provision refers to an obligation of conduct and not an obligation of result. That is to say, in requiring the parties involved to co-operate in order to maintain the

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balance of the River Uruguay’s ecosystem, the provision requests that they act in accordance with what they both decided regarding CARU. For this reason, the Court upheld Uruguay’s contention that its actions regarding the Orion (Botnia) mill complied with CARU’s regulations and, therefore, with Article 36 of the 1975 Statute. Finally, the Court dealt with Argentina’s contention that Uruguay had breached Article 41 of the 1975 Statute. Because this matter depended on an interpretation of the 1975 Statute and CARU’s regulations, the Court decided that Uruguay did not in fact breach Article 41. The decision was based first on the fact that there were no legal documents binding the parties to a specific kind of environmental impact assessment. From the Court’s point of view, it was up the parties involved to determine the information necessary for each environmental impact assessment.  The Court also acknowledged that Uruguay did indeed consider different sites for the Orion (Botnia) mill and the effects it would have on the riparian population, proving that its environmental impact assessment was not as unsubstantial as Argentina claimed. Furthermore, the Court considered there to be no evidence showing that the Orion (Botnia) mill production technology failed to prevent pollution. On the contrary, Argentina did not provide sufficient proof that the Orion (Botnia) mill discharges affected either water or air quality. Therefore, the Court concluded that Uruguay did not, in the end, breach Article 41 of the 1975 Statute. Given the arguments outlined above, the Court voted as follows:  “(1) By thirteen votes to one, Finds that the Eastern Republic of Uruguay has breached its procedural obligations under Articles 7 to 12 of the 1975 Statute of the River Uruguay and that the declaration by the Court of this breach constitutes appropriate satisfaction; […] (2) By eleven votes to three, Finds that the Eastern Republic of Uruguay has not breached its substantive obligations under Articles 35, 36 and 41 of the 1975 Statute of the River Uruguay; […] (3) Unanimously, Rejects all other submissions by the parties.”17

17 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 96.

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3.2. Timeline DATE

DOCUMENT

CONTENT

4 May 2006

Press Release No.2006/17

Concerns the filing of an application to the ICJ, whereby Argentina instituted proceedings against Uruguay in a dispute over Uruguay’s alleged breaches of obligations incumbent upon it under the 1975 Statute of the River Uruguay. Argentina also filed a request for the indication of provisional measures claiming that the continued construction of the work in question would significantly aggravate the economic, social, and environmental impact in the area.

11 May 2006

Press Release No.2006/19

Announces the dates of Public Hearings on the request for the indication of provisional measures as 8 June and 9 June 2006.

29 May 2006

Press Release No.2006/20

Concerns accreditation procedures for the press to attend the Public Hearings on 8 and 9 June 2006.

29 May 2006

Press Release No.2006/21

Concerns admission procedures for members of the public who wish to attend the Public Hearings on 8 and 9 June 2006.

9 June 2006

Press Release No.2006/22

Announces the conclusion of the Public Hearings regarding the request for the indication of provisional measures.

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Press Release No.2006/25

States that soon the Court will give its Order on the request for the indication of provisional measures concerning the case at hand.

Press Release No.2006/26

Concerns accreditation procedures for the press to attend the public sitting in which the President of the ICJ, judge Rosalyn Higgins, will read the Court’s Order regarding the request for the indication of provisional measures.

Press Release No.2006/27

Announces admission procedures for members of the public who wish to attend the public sitting in which the President of the ICJ, judge Rosalyn Higgins, will read the Court’s Order regarding the request for the indication of provisional measures.

13 July 2006

Order and Press Release No.2006/28

Establishes that the circumstances do not require the exercise of the Court’s power to indicate provisional measures. Also fixes the time limits for the Argentine Memorial and the Uruguayan Counter-Memorial as 15 January 2007 and 20 July 2007, respectively.

17 July 2006

Press Release No.2006/29

Regards the fixing of time limits for the filing of the initial pleadings as they were established in the Order of 13 July 2006.

6 July 2006

7 July 2006

7 July 2006

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Press Release No.2006/40

Reports the Uruguayan request for the indication of provisional measures regarding the blocking by Argentine citizens of a vital international bridge as a protest to try and prevent the construction of the Botnia cellulose plant.

Press Release No.2006/42

Displays the schedule of the Public Hearings for the Uruguayan request for the indication of provisional measures. The Public Hearings will be held on 18 and 19 December 2006.

19 December 2006

Press Release No.2006/44

Publishes the conclusion of the Public Hearings on the provisional measures and asserts the Court’s statement to quickly deliver its decision. At the conclusion of the oral proceedings both parties presented their final submissions: Uruguay requested the Court to order Argentina to cease aggravating the dispute and Argentina claimed that the Court had no jurisdiction to entertain such an inadmissible request.

17 January 2007

Press Release No.2007/1

Announces the Court’s decision to have a public sitting in which it will read its Order.

Order and Press Release No.2007/2

Establishes, by 14 votes to one, that the circumstances are not such as to require the Court’s exercise of power to indicate provisional measures. In fact, this power can only be exercised if there is an urgent need to prevent irreparable prejudice to the rights that are the subject of the dispute.

29 November 2006

8 December 2006

23 January 2007

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Order

Fixes the time limits for the Argentine Reply and the Uruguayan Rejoinder as 29 January 2008 and 29 July 2008, respectively.

17 September 2007

Press Release No.2007/20

Concerns the authorization by the Court for the parties to further develop certain points still in dispute via a Reply and a Rejoinder. The Order fixed by the Court establishes 29 January 2008 as the time limit for the Reply by Argentina and 29 July 2008 as the time limit for the Rejoinder by Uruguay.

16 July 2009

Press Release No.2009/25

Displays the schedule for the Public Hearings that will be held at the Peace Palace from 14 September 2009 to 2 October 2009.

2 December 2009

Press Release No.2009/228

Announces the conclusion of the Public Hearings and summarizes the final submissions by both parties to the Court.

26 March 2010

Press Release No.2010/7

Fixes 20 April 2010 as the date of the public sitting in which the Court will read its judgment.

19 April 2010

Press Release No.2010/8

Announces that the reading of the judgment will stream live online and furnishes some practical information for all those interested in watching.

14 September 2007

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20 April 2010

Press Release No.2010/10

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Summarizes the Court’s judgment. The Court finds that by authorizing the construction and commission of the Orion pulp mill, Uruguay has breached its procedural obligations to cooperate with Argentina but has not breached its substantive obligations to protect the environment as provided for in the 1975 Statute.

Bibliography BEKKER, Pieter H. F. (2007) ‘Introductory Note to Pulp Mills on the River Uruguay (Argentina v. Uruguay), International Court of Justice, Provisional Measures Order, January 23, 2007,’ International Legal Materials, 46. No. 2: 311-313. Online. Available

DE MULDER, Jan (2010) ‘International Court of Justice Judgment on the Paper Mill Permit Dispute Between Argentina and Uruguay Recognizes the Requirement of Environmental Impact Assessment in a Transboundary Context,’ Review of European Community & International Environmental Law 19 (2) 2010. DI MARTINO, Luigi Alberto (2011) ‘Institutional Deficit for Crossborder Conflict Resolution: the Conflict Over the Construction of a Pulp Mill Near the Uruguay River,’ Journal of Borderlands Studies. 24:3:115-130. ESCARCENA, Sebastián Lopez (2012) ‘El Asunto de las Plantas de Celulosa sobre el Río Uruguay/ The Pulp Mills Over the River Uruguay Case: Comentario de la Sentencia de la Corte Internacional de Justicia, de Fecha 20 de Abril de 2010, ’ Revista Chilena de Derecho, 39. No. 3: 849-860. Online. Available

LAZICC, Djurdja (2010) ‘Pulp Mills on the River Uruguay (Arg. v. Uru.) (ICJ), Introductory Note,’ International Legal Materials, 49. No. 4: 1118-1180. Online. Available

MONCAYO, Guillermo R., and VON HASE, Martin Moncayo (2011) ‘The International Court of Justice and the Environment: The Recent Paper Mills Case’ in Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus

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Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (eds) From Bilateralism to Community Interest, Oxford: Oxford University Press. PAYNE, Cymie R. (2011) ‘Pulp Mills on the River Uruguay (Argentina v. Uruguay),’ The American Journal of International Law, vol. 105. No. 1: 94-101. SACCUCCI, Andrea (2008) ‘Fond du litige en indication de mesures conservatoires. Réflexions en marge des ordonnances de la C.I.J. dans l’affaire des usines de pâte à papier,’ Revue Générale de Droit International Public, Volume 112, Numéro 4, pp.718-795.

4. AERIAL HERBICIDE SPRAYING (ECUADOR V. COLOMBIA), 2008

4.1. Summary This case concerns the filing of an application instituting proceedings by the Republic of Ecuador (hereinafter “Ecuador”) against the Republic of Colombia (hereinafter “Colombia”) due to damage caused by the latter’s spraying of herbicide in the border area of the two countries.

I. Facts It is common knowledge that Colombia is one of the world’s biggest producers of coca and opium poppies, and, for this reason, it suffers from intense violence caused by drug trafficking. In 2000, in an attempt to diminish such violence, the government of Colombia adopted the Plan Colombia. This plan consisted of eradicating illicit drug plantations by using airplanes and helicopters to spray them with powerful herbicides. Such fumigations happened systematically throughout the early 2000s, including in the border area of Colombia and Ecuador. The fumigations that occurred along the San Miguel River (in the border area of the two states) produced several effects shortly after they began. Ecuador reported the death of two Ecuadorians, crop destruction, sickness, and the contamination of the above-mentioned river. In fact, Ecuador blamed the spraying for the process of desertification seen in certain areas along its borders. It claimed that the crops destroyed throughout the years by herbicide spraying were the main source of income for the families who planted them. For this reason, it was impossible for people to remain in the area, explaining the 50 per cent evasion rate of families living within 10 kilometers of the border area. As soon as Ecuador’s government became aware of the situation and its effects, which happened still in the year 2000, it initiated various attempts at diplomatic negotiation with Colombia. For example, it requested that Colombia establish a 10-kilometer no-spraying zone along their border, but Colombia rejected such a request and made it clear that it had no interest in addressing Ecuador’s concerns. Colombia continued to

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refuse Ecuador’s attempts at negotiation until late 2003, when both states agreed to establish a special Scientific and Technical Commission in order to determine the effects of the spraying on Ecuador. After four meetings, the Commission terminated its activities without reaching a definite conclusion. The lack of success of the Scientific and Technical Commission led Ecuador to attempt diplomatic negotiations once more. On these occasions, Ecuador came to believe that Colombia would suspend the spraying due to an agreement reached by the parties. The following year, however, Colombia resumed fumigations at the beginning of the annual spraying cycle. Ecuador’s last effort to reach a conclusion on the matter before taking the case to the International Court of Justice (hereinafter “ICJ”) resulted in the creation of another joint Scientific and Technical Commission. The second Commission produced the same results as the first, and terminated without consensus between the states. Finally, after exhausting all possibilities of peaceful settlement of the dispute through usual and unusual diplomatic channels, Ecuador submitted an application instituting proceedings against Colombia to the ICJ on 31 March 2008.

II. Jurisdiction Ecuador attributed jurisdiction to the Court to adjudge the present case based on Article 311 of the Pact of Bogotá of 30 April 1948.2 This article is a facultative clause of acceptance of compulsory jurisdiction according to the terms of Article 36, Paragraph 23 of the Statute of the Court, to which both states are parties with no reservation. 1

Article 31 of the Pact of Bogotá of 1948 reads as follow: “In conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice, the high contracting parties declare that they 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 them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.”. 2 American Treaty on Pacific Settlement (Pact of Bogota) (Bogotá, 30 April 1948, 30 UNTS 449). 3 Article 36, Paragraph 2 of the Statute of the Court asserts: “2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a.

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III. Merits A) Ecuador’s Arguments Ecuador sustained in its application that Colombia had violated Ecuador’s rights under customary and conventional international law for the reasons exposed above. Despite the fact that the fumigations were public knowledge, Ecuador was still called upon to prove the causal link between these sprayings and their alleged damage. In order to establish such a link, Ecuador presented several scientific studies on the herbicide used by Colombia. Although Colombia denied Ecuador access to the precise composition of the herbicide, it did report that its main active ingredient was glyphosate, mixed with polyethoxylated tallowamine. According to Ecuador, glyphosate was chosen as the main active ingredient of the herbicide for its known non-selective characteristic, which allows it to kill any type of plant. Another alleged positive characteristic of this ingredient is that it has minimal effect on humans and animals. Ecuador first objected to the apparent beneficial use of a glyphosatebased herbicide by pointing out the extensive warnings listed on a glyphosate-based weed killer available in other parts of the world. These warnings point out collateral effects caused by certain types of manipulation and contact with the ingredient, such as gastrointestinal irritation and eye injuries. Moreover, Ecuador sustained that laboratory studies showed that this chemical had adverse effects in all of the standard toxicology testing it was submitted to. Although the tests were not conducted on humans, the adverse effects they pointed out are observed in studies with people commonly exposed to glyphosate, such as farmers. Still concerning the cause-effect link between damage and the chemicals used during the sprayings, Ecuador brought before the Court studies demonstrating that beyond the risks glyphosate represents on its own, its mixture with polyethoxylated tallowamine results in even more severe damage. Finally, Ecuador alleged that Colombia, during the spraying period, constantly violated Ecuadorian airspace. This claim was based on the fact that Colombian aircrafts eventually sprayed the herbicide on the border of the two states and, in order to resume spraying in Colombia, they had to the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation.”

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perform maneuvers in Ecuador’s airspace. Ecuador added that on certain occasions when these maneuvers occurred, Colombian aircrafts continued spraying after entering Ecuador’s airspace.

B) Colombia’s Arguments4 During diplomatic negotiations between the parties, as exposed above, Ecuador requested that Colombia establish a 10-kilometer no-spraying zone along their border. Colombia dismissed such a request alleging that spraying was the most effective method of protection against violence involved in narcotrafficking. In fact, according to Colombia’s government, this protection would also benefit Ecuador, since it would prevent the threat and its consequences from spreading into Ecuadorian territory. Moreover, Colombia alleged that the forced destruction of illicit crops, as well as the method used by Colombia – which it claimed to be in accordance with the preservation of human health –met with the principle of precaution established in the 1992 Rio Declaration on Environment and Development.5

IV. Judgment Requested For the reasons exposed above, Ecuador, in its application instituting proceedings, requested the Court to adjudge and declare that: “(A) Colombia has violated its obligations under international law by causing or allowing the deposit on the territory of Ecuador of toxic herbicides that have caused damage to human health, property and the environment; (B) Colombia shall indemnify Ecuador for any loss or damage caused by its internationally unlawful acts, namely the use of herbicides, including by aerial dispersion, and in particular: (i) [D]eath or injury to the health of any person or persons arising from the use of such herbicides; and (ii) [A]ny loss of or damage to the property or livelihood or human rights of such persons; and (iii) [E]nvironmental damage or the depletion of natural resources; and

4

The arguments here exposed were extracted from Ecuador’s application instituting proceedings. They do not, therefore, constitute official arguments presented by Colombia before the Court. 5 Convention on Biological Diversity (1992 Rio Declaration on Environment and Development) (Rio de Janeiro, 29 December 1993, 1760 UNTS 30619).

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(iv) [T]he costs of monitoring to identify and assess future risks to public health, human rights and the environment resulting from Colombia’s use of herbicides; and (v) [A]ny other loss or damage; and (C) Colombia shall (i) [R]espect the sovereignty and territorial integrity of Ecuador; and (ii) [F]orthwith, take all steps necessary to prevent, on any part of its territory, the use of any toxic herbicides in such a way that they could be deposited onto the territory of Ecuador; and (iii) [P]rohibit the use, by means of aerial dispersion, of such herbicides in Ecuador, or on or near any part of its border with Ecuador.”6

V. Final Considerations Since this case was exclusively based on Ecuador’s application instituting proceedings it does not present Colombia’s arguments on the matter. A brief history of the proceedings as far as they went can be found in the timeline below.

4.2. Timeline DATE

1 April 2008

30 May 2008 and 2 June 2008

6

DOCUMENT

CONTENT

Press Release No.2008/5

Communicates the filing of an application instituting proceedings by Ecuador against Colombia due to alleged herbicide spraying and its consequential damage to Ecuador’s territory. The document also exposes Ecuador’s submissions to the Court expressed in the application.

Fixes the time limits for the filing of Order and Press the first written proceedings as 29 Release April 2009 for Ecuador’s Memorial No.2008/13 and 29 March 2010 for Colombia’s Counter-Memorial.

Aerial Herbicide Spraying (Ecuador v. Colombia), Application Instituting proceedings, I.C.J reports 2008, p.26.

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25 June 2010 And 2 July 2010

19 October 2011 and 21 October 2011

13 September 2013 and 17 September 2013

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Reports the fixing of time limits for the submission of the second round of Order and Press written proceedings: 31 January 2011 Release for the Reply of Ecuador and 1 No.2010/20 December 2011 for the Rejoinder of Colombia. Reports Colombia’s request and Order and Press Ecuador’s subsequent acceptance of Release the extension of time limits for the No.2011/31 filing of Colombia’s Rejoinder for 1 February 2012. Communicates the receipt of a letter on 12 September 2013 by Ecuador’s agent stating that an agreement reached between the parties on 9 Order and Press September 2013 fully solved the Release dispute and, hence, requesting the No.2013/20 discontinuance and removal of the case from the Court. The document, thus, declares the acceptance of such a request.

CHAPTER V OBLIGATION TO NEGOTIATE

1. OBLIGATION TO NEGOTIATE ACCESS TO THE PACIFIC OCEAN (BOLIVIA V. CHILE), 2013

1.1. Summary This case concerns a territorial dispute between two South American states: the Plurinational State of Bolivia (hereinafter “Bolivia”) and the Republic of Chile (hereinafter “Chile”) concerning the violation of Chile’s obligation to negotiate with Bolivia in order to ensure the latter’s access to the Pacific Ocean.

I. Facts Bolivia acquired its independence in 1825, boasting a coastline hundreds of kilometers long with Peru to the north and Chile to the south over the 25th parallel. Several years later, in 1866, a treaty set the boundary between Chile and Bolivia at the 24th parallel, a decision that was later confirmed by the Treaty of 6 August 1874.1 Chile’s military invasion of Bolivia in 1879, however, sparked the War of the Pacific, a conflict that resulted in Bolivia losing access to the sea and suffering from social and economic downfall ever since. This military occupation was then maintained by the Truce Pact of April 1884, when Bolivia – acting under pressure – permitted Chilean forces to remain on its coast.2 Nevertheless, Chile had been aware of Bolivia’s cry for sovereign access to the sea and deemed it legitimate. In this sense, the Special Treaty

1

Treaty between the Republics of Chile and Bolivia, respecting boundaries (Sucre, 6 August 1874). 2 Truce Pact between the Republics of Bolivia and Chile (the Truce Pact, Valparaiso, 4 April 1884), translation from Spanish available at Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings, I.C.J. 2013, Annex 5.

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on the Transfer of Territories of 1895 came as an attempt to solve land disputes between the two countries.3 In 1904, Bolivia and Chile signed the Treaty of Peace and Friendship.4 This gave Chileans authority to administrate the occupied Bolivian territories, though it did not free Chile of its responsibility to help Bolivia find its way to the Pacific Ocean, since the treaty itself did not repeal the previous agreements in their various forms. Then, in 1910, Bolivia made all South American countries aware of its intention to gain access to the sea through the Peruvian provinces of Tacna and Arica, both confronted with instability at the time. Chile went on to sign a Protocol in 1920 supporting this position.5 After several mutual commitments were made, Bolivia and Chile tried to arrange another deal in June 1950. This time, Bolivia was determined to express its “fundamental need for obtaining an own and sovereign access to the Pacific Ocean”6 and wanted direct negotiations with Chile.7 Again, Chile displayed a willingness “to formally enter into a direct negotiation aiming at finding the formula which would make it possible to grant Bolivia an own and sovereign access to the Pacific Ocean and for Chile to obtain compensations that are not of a territorial nature and that effectively take into account its interests.”8 Then, in February 1975, both countries’ Presidents signed the Joint Declaration of Charaña, signaling their intention to maintain a positive approach to one another with the aim of solving Bolivia's troubling

3

Treaty between the Republics of Chile and Bolivia (Special Treaty on the Transfer of Territories) (Santiago, 18 May 1895). 4 Treaty between the Republics of Chile and Bolivia (Treaty of Peace and Friendship, Santiago, 20 October 1904). 5 Protocol signed between the Bolivian Minister of Foreign Affairs, Carlos Gutiérrez, and the Extraordinary Envoy and Plenipotentiary Minister of the Republic of Chile, Emilio Bello Codesido (10 January 1920), available at Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings, I.C.J. 2013, Annex 9. 6 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings (note from Bolivia - 1 June 1950), I.C.J. 2013, p. 14. 7 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings (note from Bolivia - 1 June 1950), I.C.J. 2013, p. 4. 8 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings (note from Chile – 20 June 1950), I.C.J. 2013, p. 1.

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confinement.9 As part of the negotiations, Chile claimed it was ready to enter into talks with Bolivia regarding the concession of “a strip of land North of Arica up to the Línea de la Corcordia.”10 In June 1987, although it had consistently shown sympathy towards Bolivia’s claim, Chile declined another proposal to provide its neighbor with sovereign access to the Pacific Ocean. Previously in 1979, the General Assembly of the Organization of American States had adopted Resolution 426, advising all states concerned to “open negotiations for the purpose of providing Bolivia with a free and sovereign territorial connection with the Pacific Ocean.”11 With this warning, the General Assembly tried to look into the dispute from a broader, hemispheric point of view. Moreover, it guaranteed that this territorial dispute would not escape its agenda. Indeed, the organization issued several resolutions afterwards recognizing Bolivia’s claims in the matter.12 In the year 2000, Chile and Bolivia’s Ministers of Foreign Affairs agreed on a joint communiqué for a bilateral solution, a position later upheld by both countries’ Presidents. Six years later, in 2006, an agreement between Evo Morales and Michelle Bachelet on the “Agenda of the 13 points” gave hope to a concrete solution for the “Maritime Issue,” mentioned in point VI.13 A meeting scheduled for the year 2010 was then called off solely by Chile, and negotiations never took place again. In 2011, Bolivia's President requested Chile's government to present him with a concrete plan ensuring Bolivia would regain its access to the

9

Joint declaration between the Republics of Chile and Bolivia (Charaña Act, Charaña, 8 February 1975). 10 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings (note from Chile – 19 December 1975), I.C.J. 2013, p. 16. 11 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings (note from Bolivia - 1 June 1950), I.C.J. 2013, p. 16. 12 Resolution No. 426, General Assembly of the Organization of American States (31 October 1979), available at http://www.oas.org/en/sla/docs/ag03793E01.pdf. 13 Minutes of the 2nd Meeting of the Working Group on Bilateral Affairs BoliviaChile, Agenda of the 13 Points (17 July 2006), available at Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings, I.C.J. 2013, Annex 15.

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sea.14 This time, Chile denied Bolivia had any legal basis to reclaim Chilean territories in order to make its way to the Pacific Ocean. Chilean authorities also disregarded later claims made by the President of Bolivia at the UN General Assembly that negotiations remained open with Chile, maintaining that they owed nothing to Bolivia.15 Moreover, in 2012, when Bolivia's President again took to the UN General Assembly to ask for a “peaceful solution” between the countries, Chile publicly rejected the very existence of any dispute.16 According to Bolivia, the assessment of these facts denotes Chile's clear unwillingness to reach a peaceful solution to the dispute, thus leading to the need to submit the issue to the International Court of Justice (hereinafter “ICJ”).

II. Jurisdiction Article XXXI17 of the American Treaty on Pacific Settlement of 30 April 194818 – also known as the Pact of Bogotá – constitutes the basis for the

14

Declaration of the President of Bolivia, Evo Morales Ayma (17 February 2011), available at Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings, I.C.J. 2013, Annex 17. 15 Speech by the President of Chile, Sebastian Pinera Echeñique, on the occasion of the 15th plenary meeting of the 66th period of sessions of the UN General Assembly (22 September 2011), Doc. UN A/66/PV.15, available at: http://gadebate.un.org/66/chile. 16 Declaration by the Minister of Foreign Affairs of Chile (26 September 2012), available at Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings, I.C.J. 2013, Annex 2; and Speech by the Minister of Foreign Affairs of Chile, Alfredo Moreno Charme, during the 15th plenary meeting of the 67th period of sessions of the UN General Assembly (28 September 2012), Doc. UN A/67/PV.15, available at: http:/lwww.minrel.gob.cl/prontus_minrel/site/artic/20120928/pags/201209281640 05.php. 17 Article XXXI of the American Treaty on Pacific Settlement states that: “In conformity with Article 36, Paragraph 2, of the Statute of the International Court of Justice, the high contracting parties declare that they 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 them concerning: a) The interpretation of a treaty; b) Any question of international law; c) The existence of any fact which, if established, would constitute the breach of an international obligation; d) The nature or extent of the reparation to be made for the breach of an international obligation.”

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Court’s jurisdiction in the present dispute. Both states are parties to the treaty, and neither of them has any relevant reservation that might be an obstacle to the admissibility of this case before the Court. 19 Their membership in the United Nations also makes them ipso iure parties of the Statute of the Court and, hence, all conditions have been met for the application in terms of admissibility. The jurisdiction was questioned by Chile in its Preliminary Objections, which were judged on 24 September 2015. The state argued that the Court had no jurisdiction due to Article VI20 of the Pact of Bogotá. According to the state’s representatives, the question brought by Bolivia in its application was not the obligation to negotiate itself, but the terms of the negotiation. It would not be possible, therefore, for the Court to define the terms of the agreement without annulling the 1904 Peace Treaty. Chile emphasized that sovereignty over the territories that kept Bolivia from the Pacific Ocean had already been defined in Article II21 of the mentioned treaty. If the Court were able to decide on the negotiation asked by Bolivia, it would necessarily ignore the definitions of the treaty. The application, in the way it was presented by Bolivia was, according to Chile, an artificial form of getting a judicial base to disregard the previous agreement. Bolivia, in turn, answered that it had only asked for the Court to define the obligation to negotiate and that the terms of the negotiation were not to be decided by it. It also emphasized that the obligation to negotiate was already expressed in the treaty stressed by Chile, but that it could also be 18

American Treaty on Pacific Settlement (Pact of Bogotá) (Bogotá, 30 April 1948, 449 UNTS). 19 Plurinational State of Bolivia, Instrument of Ratification of the “Pact of Bogota,” 14 April 2011, and, Instrument of Withdrawal of Reservation to the “Pact of Bogota,” 10 April 2013, available at Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings, I.C.J. 2013, Annex 3; Republic of Chile, Decree No. 526 of 21 August 1967, published in Official Gazette No. 26837 of 6 September 1967, available at Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting proceedings, I.C.J. 2013, Annex 4. 20 Article VI of the Pact f Bogotá provides that: “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.” 21 Article II of the 1904 Peace Treaty states that: “By the present Treaty, the territories occupied by Chile by virtue of article 2 of the Truce Pact of April 4, 1884, are recognized as belonging absolutely and in perpetuity to Chile.”

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seen as independent of such a treaty, since many others had already defined the agenda. Based on the arguments presented, the Court decided for Bolivia’s claims, emphasizing expressions of the very application in which it would ask for the obligation to negotiate. It stressed that even if Bolivia’s objective was to obtain sovereignty over the territory, it had only demanded the Court to decide on the obligation to negotiate and these should be distinguished from each other. Once it concluded for the matter in dispute, the Court proceeded to verify if such a question was, as had been claimed by Chile, really settled between the parties. It analyzed the agreement and found that there was no barrier to the approach of Bolivia’s request. Thus, it decided for the continuity of the judgment, since it concluded having jurisdiction on the case.

III. Merits Bolivia’s Arguments Though Chile argued that there has never been an agreement with Bolivia obliging it to negotiate part of its coastline territory, Bolivia claimed the existence of such an obligation under international law on the basis of agreements, declarations, and diplomatic exchange between the parties ever since 1895. In spite of these previous demonstrations of good will, Bolivia argued that Chile now refused to accept it had any duty towards it. This denial led to a belief in Bolivia that a dialogue with Chile was no longer possible, and so the Court was asked to intervene in the matter.

IV. Judgment Requested Based on the arguments outlined above, Bolivia asked to Court to adjudge and declare that: “(a) Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia a fully sovereign access to the Pacific Ocean; (b) Chile has breached the said obligation;

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Chapter V (c) Chile must perform the said obligation in good faith, promptly, formally, within a reasonable time and effectively, to grant Bolivia a fully sovereign access to the Pacific Ocean.”22

In addition, Bolivia felt it could request at any time an arbitral tribunal in accordance with the obligation under Article XII of the Treaty of Peace and Friendship and the Protocol of 16 April 1907, in case claims came to light from the treaty. Finally, Bolivia also requested the designation of an ad hoc judge. Therefore, in accordance with the provisions of Article 40 of the Rules of Court, Ambassador Eduardo Rodríguez Veltzé was appointed by the country’s President.

V. Final Considerations Since this case was exclusively based on Bolivia’s application instituting proceedings it does not present Chile’s arguments on the matter. A brief history of the proceedings as far as they went can be found in the timeline below.

22

Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Application instituting), I.C.J. 2013, p. 20, Paragraph 32.

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1.2. Timeline DATE

DOCUMENT

CONTENT

Press Release No.2013/11

Affirms that Bolivia has instituted proceedings against Chile, requesting the Court to adjudge and declare that: (a) Chile has the obligation to negotiate with Bolivia in order to reach an agreement granting Bolivia full sovereign access to the Pacific Ocean; (b) Chile has breached the said obligation; (c) Chile must perform the said obligation in good faith, promptly, formally, within a reasonable amount of time, and effectively, to grant Bolivia full sovereign access to the Pacific Ocean.

18 June 2013 and 1 July 2013

Order and Press Release No.2013/15

Fixes time limits for the filing of the written pleadings from Bolivia and Chile, as follows: 17 April 2014 for the Memorial of Bolivia and 18 February 2015 for the Counter-Memorial of Chile.

15 July 2014 and 16 July 2014

Order and Press Release No.2014/24

Fixes 14 November 2014 as the time limit within which Bolivia may present its written statement on the Preliminary Objections raised by Chile.

16 February 2015

Press Release No.2015/8

Gives notice that the Court is to hold Public Hearings from 4 to 8 May 2015.

24 April 2013

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Press Release No.2015/13

Informs that the Public Hearings have been concluded and that the Court is to begin its deliberation.

9 September 2015

Press Release No. 2015/22

Informs about the Preliminary Objections regarding the jurisdiction, presented by Chile. It also gives notice of the judgment on such Preliminary Objections to be delivered on 24 September 2015.

24 September 2015

Press Release No. 2015/23

Concerns the rejection of the Preliminary Objections raised by Chile by the Court.

25 September 2015

Press Release No. 2015/24

Informs that the time limit for the delivery of the Counter-Memorial by Chile is 25 July 2016.

8 May 2015

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EYFFINGER, Arthur (2007) The 1907 Hague Peace Conference: The Conscience of the Civilizes World, Hague: Judi Cap. —. (1996) The International Court of Justice 1946-1996, Hague/London/Boston: Kluwer Law International. GARAVITO, César Rodriguez (ed.) (2011) El derecho en América Latina: un mapa para el pensamiento jurídico del siglo XXI, Bogotá: Siglo XXI Editores. GILL, Terry D. (1989) A Case Study of the International Court, Dordrecht/Boston/London: Martinus Nijhoff Publishers. —. (2003) Rosenne’s The World Court: what it is and how it works, Leiden; Boston: Martinus Nijhoff Publishers. GUTIERREZ, Carlos Jose (1978) La Corte de Justicia Centroamericana, San José: Ediciones Juricentro S.A. HIGGS, A. Pearce (1909) The Hague Peace Conferences and Other International Conferences Concerning the Laws and Usage of War, Cambridge: Cambridge University Press. HOWARD, Lawrence A. (1981) The Local and General Context of the Central American Court of Justice, Washington: Washington University. JACOBINI, H. B. (1954) A Study of the Philosophy of International Law as Seen in the Works of Latin American Writers, The Hague: Martinus Nijhoff. JAKSIC, Ivan (2001) Andrés Bello: la pasión por el orden, Imagen de Chile; Santiago de Chile: Editorial Universitaria. KOLB, R. (2013) The International Court of Justice, Oxford/Portland: Hart Publishing. LAMBERT, Edouard (1921), Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis, Paris : Marcel Giard et Cie. LAUTERPACHT, Sir Hersch (1934) The Development of International Law by the Permanent Court of International Justice, Longmans, Green and Co. —. (1958) The Development of International Law by the International Court, London: Stevens & Sons Limited. —. (1933) The Function of Law in the International Community, Oxford: Clarendon Press. MACKENZIE, Mauricio (1955) Los ideales de Bolívar en el derecho internacional americano, Bogotá: Biblioteca Del Ministerio De Gobierno: Colección Bolivariana. MANLEY, Hudson O. (1943) The Permanent Court of International Justice – 1920-1943, New York: The MacMillan Company.

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MCWHINNEY, Edward (1979) The World Court and the Contemporary International Law-Making Process, Alphen aan den Rjin: Sijthoff & Noordhoff. NIÑO, Ivonne González (1985) Simón Bolívar, precursor del derecho internacional americano, Bogotá: Instituto Colombiano de Estudios Latinoamericanos y del Caribe. PLANAS-SUÁREZ, S. (1924) La doctrina de Monroe y la doctrina de Bolívar: los grandes principios de la política internacional americana, Habana: El Siglo XX. POSADA, Edgar Vieira (2004) La integración de América Latina: del Congreso Anfictiónico de Panamá en 1826 a una comunidad Latinoamericana o Sudamericana de naciones en el año 2010, Colección Biblioteca Del Profesional; Bogotá: Editorial Pontificia Universidad Javeriana. QUESADA, Ernesto (1919) La Doctrina Drago, Buenos Aires: Talleres Gráficos del Ministerio de Agricultura de la Nación. ROSENNE, Shabtai (1983) Procedure in the International Court: A Commentary on the 1978 Rules of the International Court of Justice, Hague/Boston/London: Martinus Nijhoff Publishers. —. (2005) Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea, Oxford: Oxford University Press. —. (2006) The Law and Practice of the International Court 1920-2005: Volume I – The Court and the United Nations, Leiden: Martinus Nijhoff Publishers. —. (2007) Les Conférences de la Paix de la Haye de 1899 et 1907 et Le Arbitrage International, Bruxelles: Bruyant. SCHULTE, Constanze (2004) Compliance with Decisions of the International Court of Justice, Oxford: Oxford University Press. SCOTT, James Brown (1909) The Hague Peace Conferences of 1899 and 1907 – A Series of Lectures Delivered Before the Johns Hopkins University in the Year 1908 – Volume I, Baltimore: The Johns Hopkins Press. SHAHABUDDEEN, Mohamed (1996) Precedent in the World Court, Cambridge: Cambridge University Press. TRINDADE, Antônio A. Cançado (2010) International Law for Humankind, Towards a New Jus Gentium, Leiden/Boston: Martinus Nijhoff Publishers. VENZKE, Ingo Venzke (2012) How Interpretation Makes International Law: On Semantic Change and Normative Twists, Oxford: Oxford University Press.

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VERZJIL, J. H. W. (1976) International Law in Historical Perspective, Leyden : A. W. Sijthoff. VIANNA, Manoel Álvaro De Souza Sá (1912) De la non existence d'un droit international americain; dissertation présentée au Congres Scientifique Latino-Américain (Premier Pan-Américain), Rio de Janeiro: L. Figueredo. VIANNA, Sá (1912) De la Non Existence d’un Droit International Américain, Rio de Janeiro : L. Figueredo. VON BOGDANDY, Armin and VENZKE, Ingo (2012) International Judicial Lawmaking. On Public Authority and Democratic Legitimation in Global Governance, Springer. YEPES, Jesús María (1938) Alejandro Alvarez, créateur du droit international américain. La notion de l'universalité du droit des gens en rapport avec les conceptions internationales américaines, Paris: Les Éditions internationales. —. (1945) Philosophie du panamericanisme et organisation de la paix: le droit panamericain, Neuchatel: Editions de la Baconniere. —. (1955) Del Congreso de Panamá a la Conferencia de Caracas, 18261954: el genio de Bolívar a través de la historia de las relaciones interamericanas, Caracas: Cromotip.

II. Collected Courses of The Hague Academy of International Law ABOU-EL-WAFA, A. (2009) ‘Les différends internationaux concernant les frontières terrestres dans la jurisprudence de la Cour internationale de justice,’ RCADI, tome 343, pp. 9-570. ARRIGHI, J.-M. (2011) ‘L’Organisation des États américains et le droit international,’ RCADI, tome 355. BARBERIS, J. A. (1992) ‘Les règles spécifiques du droit international en Amérique latine,’ RCADI, tome 235, pp. 81-230. BARCIA TRELLES (1930) C., ‘La doctrine de Monroe dans son développement historique particulièrement en ce qui concerne les relations interaméricaines,’ RCADI, tome 32, pp. 391-606. BASTID, S. (1962) ‘Les probl. (1962) -606.ne les relations interam internatio,’ RCADI, 107: 361-496. CAFLISCH, L. (2001) ‘Cent ans de règlement pacifique des différends interétatiques,’ RCADI, tome 288, pp. 245-468. CAMINOS, H. (1998) ‘The Role of the Organization of American States in the Promotion and Protection of Democratic Governance,’ RCADI, tome 273, pp. 103-238.

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GUANI, A. (1925) ‘La solidarité internationale dans l'Amérique Latine,’ RCADI, tome 8, pp. 203-340. MATOS, J. (1929) ‘L'Amérique et la Société des Nations,’ RCADI, tome 28, pp. 1-104. PLANAS-SUAREZ, S. (1924) ‘L'extension de la doctrine de Monroe en Amérique du Sud,’ RCADI, tome 5, pp. 267-366. SÁNCHEZ-RODRÍGUEZ (1997) ‘L'uti possidetis et les effectivités dans les contentieux territoriaux et frontaliers,’ RCADI, tome 263, pp. 149382. TRINDADE, Antônio A. Cançado (2005) ‘International Law for Humankind: Towards a New Jus Gentium,’ RCADI, vol. 316, pp. 9439. —. (2005) ‘International Law for Humankind: Towards a New Jus Gentium,’ RCADI, vol. 317, pp. 9-312. URRUTIA, F.-J. (1928) ‘La codification du droit international en Amérique,’ RCADI, tome 22, pp. 81-236. YEPES, J. M. (1930) ‘La contribution de l'Amérique latine au développement du droit international public et privé,’ RCADI, tome 32. pp. 691-800. —. (1934) ‘Les problèmes fondamentaux du droit des gens en Amérique,’ RCADI, tome 47, pp. 1-144.

III. Articles ALUNNI, Sylvain (2008) "La Politique Juridique Exterieure: des EtatsUnis a L’Epreuve de Federalisme: L’Affaire Medellin v. Texas”,L’Observateur des Nations Unis, 24: 317-327. ALTER, Karen (2011) ‘The Evolving International Judiciary,’ Annual Review of Law and Social Science 7: 387-415. ALVAREZ, Alejandro (1905) ‘Origen y desarrollo del derecho internacional americano, in Tercer Congreso Científico Latino Americano, Rio de Janeiro. —. (1907) ‘Le droit international américain, son origine et son évolution, RGDIP, XIV, p. 393. —. (1907) ‘ Le droit international américain, son origine et son évolution,o Revue Générale de Droit International Public, XIV. —. (1909) ‘Latin America and International Law, American Journal of International Law, 3.2: 269-353. ALVAREZ-JIMENES, Alberto (2012) ‘Boundary Agreements in the International Court of Justice’s Case Law, 2000-2010,’ The European Journal of International law, 23.2: 495-515.

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AL-KHASAWNEH, Awn (2010) ‘Address to the Managua Meeting of International and Regional Courts of Justice of the World,’ Revista do Instituto Brasileiro de Direitos Humanos, 10: 37-43. AMANCIO ALCORTA (1883) ‘La ciencia del derecho internacional. A propósito de la obra de Calvo,’ Nueva Revista, VII. BETHELL, Leslie (2010) ‘Brazil and slie (2010) in,’ Journal of Latin American Studies, 42: 457-485. CALVO, Carlos (1883) ‘Polémica Calvo-Alcorta, ’ Nueva Revista de Buenos Aires 8: 629-631. CARON, David (2000), ‘War and International Adjudication: Reflections on the 1899 Peace Conference,’ American Journal of International Law, 94: 4-30. CARRUBBA, Clifford J. (2005) ‘Courts and Compliance in International Regulatory Regimes,’ Journal of Politics, 67: 669-89. CHARNEY, Jonathan I. (1999) ‘The Impact on the International Legal System of the Growth of International Courts and Tribunals,’ Journal of International Law and Politics, 31.4: 697-708. DAWSON, F. F. (1981) ‘Contributions of lesser developed nations to international law: the Latin American experience,’ Case Western Reserve Journal of International Law, 13: 37-81. DUPUY, Pierre-Marie (1999) ‘The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice,’ Journal of International Law and Politics, 31.4: 791808. ESPIELL, Héctor Gros (2001) ‘La doctrine Du Droit International en l’Amérique Latine avant la première conférence panaméricaine (Washington, 1889),’ Journal of the History of International Law, 3 :117. ESQUIROL, Jorge L. (2008) ‘The Failed Law of Latin America,’ The American Journal of Comparative Law, 56: 75-124. —. (2008) ‘Alejandro Álvarez’s Latin America Law: A Question of Identity,’ Leiden Journal of International Law, 19: 931-956. GOBAT, Michael (2013) ‘The Invention of Latin America: A Transnational History of Anti-Imperialism, Democracy, and Race,’ American Historical Review, 118.5: 1345-1345. HUDSON, Manley O. (1948) ‘The Pact of Bogota,’ The American Journal of International Law, 42: 608-632. JACOB, Marc (2011), ‘Precedents: Lawmaking through International Adjudication,’ German Law Journal, 12: 1005-1032. JACOBINI, H. B. (1975) ‘International law in Latin America,’ Lawyer of the America’s, 7: 605-613.

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JOHNS, Fleur, SKOUTERIS, Thomas, and WERNER, Wouter (2006) ‘Editors’ Introduction: Alejandro Álvarez and the Launch of the Periphery Series,’ Leiden Journal of International Law, 19: 875-877. KINGSBURY, Benedict (1999) ‘Foreword: Is the Proliferation of International Courts and Tribunals A Systematic Problem?,’ Journal of International Law and Politics, 31.4: 679-696. KOHEN, Marcelo G. (2009) ‘L’uti possedetis et les delimitations maritimes,’ Le process international. Liber Amicorum Jean-Pierre Cot, Brussels, Bruylant, pp. 155-170. —. (2009), ‘La contribution de l’Amérique latine au développement progressif du droit international en matière territoriale,e Relations internationales, Paris, 139 : 13-29. LANDAUER, Carl (2006) ‘A Latin American in Paris: Alejandro Álvarez’s Le droit international américain,i Leiden Journal of International Law, 19 : 957-981. LANFRANCHI, Marie-Pierre (2008) ‘L’Affaire des Usines de Pate a Papier : un Etat des Lieux,e L’Observateur des Nations Unies, 24 : 3763. LE CANNU, Paul-Jean, and DRABKIN, Daniel (2008) ‘Assessing the Role of the Permanent Court of Arbitration in the Peaceful Settlement of International Disputes, L’Observateur des Nations Unis, 24 : 81213. LORCA, A. B. (2006) ‘Alejandro Álvarez Situated: Modernities and Modernisms that Subvert,’ Leiden Journal of International Law, 19: 879-930. —. (2006) ‘International Law in Latin America or Latin American International Law? Rise, Fall, and Retrieval of a Tradition of Legal Thinking and Political Imagination,’ Harvard International Law Journal, 47, number 1. LORCA, A.B., ESQUIROL, Jorge, LANDAUER, Carl, OBREGÓN, Liliana and ZOBEL, Katharina (2006) ‘Special Issue: Alejandro Álvarez (Periphery Series),’ Leiden Journal of International Law, 9/4. LORCA. A.B. (2010) ‘Universal International Law: Nineteenth-Century History of Impositions and Appropriation,’ Harvard International Law Journal, 51.2: 475-552. LOWE, Vaughan (2012), ‘The Function of Litigation in International Society,’ International and Comparative Law Quarterly, 61: 209-222. MCWHINNEY, Edward (2006) ‘The International Court of Justice and International Law-making: the Judicial Activism/Self-Restraint Antinomy,’ Chinese Journal of International Law, 5.1: 3-13.

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MOURRE, Alexis (2006) ‘Perspectives of International Arbitration in Latin America,’ The American Review of International Arbitration, 17.4: 598-613. NELSON, L.D.M. (1973) ‘The Arbitration of Boundary Disputes in Latin America,’ Netherlands International Review, 20:267-295. OBREGÓN, Liliana (2005) ‘The Colluding Worlds of the Lawyer, the Scholar and the Policy Maker: A View of International Law from Latin America,’ Wisconsin International Law Journal, 23:145-172. —. (2006) ‘Between Civilization and Barbarism: Creole interventions in international law,’ Third World Quarterly, 27. No. 5: 815-832. —. (2006) ‘Completing Civilization: Creole Consciousness and International Law in Nineteenth-Century Latin America,’ International Law and its Others. —. (2006) ‘Note to Dissent: The International Life of Alejandro Álvarez,’ Leiden Journal of International Law, 19: 983-1016. —. (2012) ‘Regionalism Constructed: a Short History of Latin American International Law,’ European Society of International Law – Conference Paper Series, 5: 1-14. OELLER-FRAHN, Karin (2008) ‘The Part of the International Court of Justice in Solving Disputes between American States,’ L’Observateur des Nations Unies, 24: 7-35. OWADA, Hisashi (2009) ‘The Changing Docket of the International Court of Justice and Significance of the Change Going Forward,’ Proceedings of the Annual Meeting (American Society of International Law), 103: 399-403. QUINTANA, Juan José (1992) ‘The Latin American Contribution to International Adjudication: the Case of the International Court of Justice,’ Netherlands International Law Review, 39: 127-154. RANGEL, Vicente Marotta (2008) ‘International Law, Regional Developments: Latin America,’ Max Planck Encyclopedia of Public International Law, Oxford: Oxford University Press. ROMANO, Cesare P.R. (1999) ‘The Proliferation of International Judicial Bodies: The Pieces of the Puzzle,’ Journal of International Law and Politics, 34.1: 709-790. SAMORE, William (1958) ‘The New International Law of Alejandro Alvarez,’ The American Journal of International Law, 52: 41-54. SHANY, Yuval (2009) ‘No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary,’ European Journal of International Law 20: 73-91.

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SLOANE, Robert D. (2009) ‘Breaking the Genuine Link: the Contemporary International Legal Regulation of Nationality,’ Harvard International Law Journal, 50.1: 1-60. STEINHARDT, Ralph G. (2009) ‘The International Court of Justice at Several Crossroads,’ Proceedings of the Annual Meeting (American Society of International Law), 103: 397-398 TAMS, Christian Tams and TZANAKOPOULOS, Antonious (2010) ‘Barcelona Traction at 40: The ICJ as an Agent of Legal Development,’ Leiden Journal of International Law 23: 781-800. THIBAUT, Françoise (1971) ‘L’Amérique latine et l’évolution du droit international de la mer,’ Revue Générale de Droit International Public, pp. 742-758. TREVES, Tullio (1999) ‘Conflicts Between the International Tribunal for the Law of the Sea and the International Court of Justice,’ Journal of International Law and Politics, 31.4: 809-821. VENZKE, Ingo Venzke (2012) ‘The Role of International Courts as Interpreters and Developers of the Law: Working out the Jurisgenerative Practice of Interpretation,’ Loyola of Los Angeles International and Comparative Law Review, 34:119-51. VILLALPANDO, Santiago (2013) ‘On the International Court of Justice and the Determination of Rules of Law,’ Leiden Journal of International Law, 26: 243-251. VIÑUALES, Jorge E. (2008) ‘The Contribution of the International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment,’ Fordham International Law Journal, 32: 232-258. VON BOGDANDY, Armin, and VENZKE, Ingo (2012) ‘In Whose Name? An Investigational of International Court’s Public Authority and Its Democracy Justification,’ The European Journal of International Law, 23.1: 7-41. VON BOGDANDY, Armin and VENZKE, Ingo (2012) ‘On the Functions of International Courts: An Appraisal of Their Burgeoning Public Authority,’ ACIL Research Paper No 2012-10: 1-29. VON BOGDANDY, Armin and VENZKE, Ingo (2011) ‘Beyond Dispute: International Judicial Institutions as Lawmakers,’Special Issue, German Law Journal, 12: 980-1004. VON BOGDANDY, Armin, DANN, Philipp, GOLDMANN (2008) ‘Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities,’ German Law Journal, 9:1375.

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VON BOGDANDY, Armin (2001), ‘Law and Politics in the WTO – Strategies to Cope with a Deficient Relationship,’ Max Planck Yearbook of United Nations Law, 5: 609-674. WEERAMANTRY, Christopher G. (1997), ‘The Function of the International Court of Justice in the Development of International Law, Leiden Journal of International Law, 10: 309-340. ZOBEL, Katharina (2006) ‘Judge Alejandro Álvarez at the International Court of Justice (1946–1955): His Theory of a ‘New International Law’ and Judicial Lawmaking,’ Leiden Journal of International Law, 19: 1017-1040.

IV. Book Chapters ABI-SAAB, Georges (1996), ‘The International Court as a World Court’ in Vaughan Lowe and Malgosia Fitzmaurice (eds) Fifty Years of the International Court of Justice, Cambridge: Cambridge University Press, pp. 3-16. ANAND, Ram Prakash (2001) ‘Enhancing the Acceptability of Compulsory Procedures of International Dispute Settlement’ in Jochen A. Frowein, and Rüdiger Wolfrum (eds) Max Planck Yearbook of United Nations Law – Volume 5, Hague/London/New York: Kluwer Law International. BAKER, Betsy (2009) ‘The Hague Peace Conferences (1899 and 1907)’ in R. Wolfrum (ed) Max Planck Encyclopedia of Public International Law Volume IV, Oxford: Oxford University Press. BARBOZA, Julio (2000) ‘The Customary Rule: From Chryssalis to Butterfly’ in Calixto A. Armas Barea, Julio A. Barberis, Julio Barboza, Hugo Caminos, Enrique Candioti, Ernesto de la Guardia, Horténcia D. T. Gutierrez Posse, Guillermo Moncayo, Ernesto J. Rey Castro, and Raúl E. Vinuesa (eds) Liber Amicorum ‘In Memorian’ of José María Ruda, Hague/London/Boston: Kluwer Law International. BEDJAOUI, Mohammed (2000) ‘Présences Latino-Americaines à la Cour Internationale de Justice’ in Calixto A. Armas Barea, Julio A. Barberis, Julio Barboza, Hugo Caminos, Enrique Candioti, Ernesto de la Guardia, Horténcia D. T. Gutierrez Posse, Guillermo Moncayo, Ernesto J. Rey Castro, and Raúl E. Vinuesa (eds) Liber Amicorum ‘In Memorian’ of José María Ruda, Hague/London/Boston: Kluwer Law International. BERMAN, Sir Franklin (2013) ‘The International Court of Justice as an Agent of Legal Development?’ in Christian J. Tams and James Sloan

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(eds) The Development of International Law by the International Court of Justice, Oxford: Oxford University Press BERNÁRDEZ, Santiago Torres (2000) ‘Are Prior Negotiations a General Condition for Judicial Settlement by the International Court of Justice?’ in Calixto A. Armas Barea, Julio A. Barberis, Julio Barboza, Hugo Caminos, Enrique Candioti, Ernesto de la Guardia, Horténcia D. T. Gutierrez Posse, Guillermo Moncayo, Ernesto J. Rey Castro, and Raúl E. Vinuesa (eds) Liber Amicorum ‘In Memorian’ of José María Ruda, Hague/London/Boston: Kluwer Law International. BERNHARDT, Rudolf (2006) ‘Article 59’ in Andreas Zimmermann, Christian Tomuschat, and Karin Oellers-Frahn (eds) The Statute of the International Court of Justice – A Commentary, Oxford: Oxford University Press. BIGGS, Gonzalo (2011) ‘Bernardo Cremade’s Contribution to the Development of Arbitration Law in Latin America’ in M.Á. Fernandéz-Ballesteros, and David Arias (eds) Liber Amicorum Bernardo Cremades, Madrid: La Ley. BRAGHETTA, Adriana (2011) ‘Polygamy of Treaties in Arbitration: Latin American and Mercosul Perspective’ in M.Á. FernandézBallesteros, and David Arias (eds) Liber Amicorum Bernardo Cremades, Madrid: La Ley. BRANT, Leonardo Nemer Caldeira (2005) ‘L’autorité des arrêts de la Cour Internationale de Justice’ in Charalambos Apostolidis Les arrêts de la Cour Internationale de Justice, Dijon : Editions Universitaires de Dijon. BRETT, Annabel (2012) ‘Chapter 46 – Francisco de Vitoria (1483-1546) and Francisco Suárez (1548-1617)’ in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law, Oxford: Oxford University Press. BURGORGUE-LARSEN, Laurence (2009) ‘El Sistema Interamericano de Protección de los Derechos Humanos entre Clasicismo y Creatividad’ in Armin von Bogdandy, César Landa Arroyo and Mariela Morales Antoniazzi (eds) ¿Integración suramericana a través del Derecho?, Madrid: Centro Políticos y Constitucionales, pp. 287-313. CAMINOS, Hugo (1999) ‘Some Considerations on Harmonization of Preexisting 200 Mile Territorial Sea Claims in Latin American Part V of the United Nations Convention on the Law of the Sea’ in Christiane Philipp (ed) Liber Amicorum Günther Jaenicke, Berlin: Springer. —. (2000) ‘José María Ruda (1924-1994)’ in Calixto A. Armas Barea, Julio A. Barberis, Julio Barboza, Hugo Caminos, Enrique Candioti, Ernesto de la Guardia, Horténcia D. T. Gutierrez Posse, Guillermo

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Moncayo, Ernesto J. Rey Castro, and Raúl E. Vinuesa (eds) Liber Amicorum ‘In Memorian’ of José María Ruda, Hague/London/Boston: Kluwer Law International. CAVALLAR, Georg (2012) ‘Chapter 52 – Jean-Jacques Rousseau (17121778)’ in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law, Oxford: Oxford University Press. CHINKIN, Christiane (2006) ‘Article 62’ in Andreas Zimmermann, Christian Tomuschat, and Karin Oellers-Frahn (eds) The Statute of the International Court of Justice – A Commentary, Oxford: Oxford University Press. —. (2006) ‘Article 63’ in Andreas Zimmermann, Christian Tomuschat, and Karin Oellers-Frahn (eds) The Statute of the International Court of Justice – A Commentary, Oxford: Oxford University Press. DHOKALIA, R.P. (1994) ‘International Court in Transition: Challenges to its Effectiveness from South-West Decision to Nicaragua Judgment’ in B.C. Nirmal, and R.P. Dhorkalia (eds) International Court in Transition (Essays in Memory of Professor Dharma Pratap), Allahabad: Chugh Publications. DIGGELMANN, Oliver (2012) ‘Chapter 61 – Max Huber (1874-1960)’ in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law, Oxford: Oxford University Press. —. (2012) ‘Chapter 62 – Georges Scelle (1878-1961)’ in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law, Oxford: Oxford University Press. ESPIELL, Héctor Gros (1987) ‘Andres Bello y el Derecho Internacional’ in Giovanni Pugliese and Isidro Morales Paúl (eds) Andres Bello y El Derecho Latinoamericano – Congreso Internacional, Caracas: La Casa de Bello. ESQUIROL, Jorge L. (2012) ‘Chapter 23 – Latin America’ in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law, Oxford: Oxford University Press. FASSBENDER, Bardo (2012) ‘Chapter 63 – Hans Kelsen (1881-1973)’ in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law, Oxford: Oxford University Press. —. (2012) ‘Chapter 64 – Carl Schmitt (1888-1985)’ in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of the History of International Law, Oxford: Oxford University Press. FERNANDES, Raoul (1924) ‘L’Amérique du Sud et la Société dês Nations’ in Rask-Orstedfonden Les Origines et L’oeuvrede la Société des Nations, Copenhague: Gyldendalske Boghandel.

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FITZMAURICE, Malgosia (1986) ‘Paragraph 5 – Diplomatic Asylum’ in The Law and Procedure of the International Court of Justice: Volume I, Cambridge: Grotius Publications Limited. —. (2000) ‘The Optional Clause System and the Law of Treaties: Issues of Interpretation in Recent Jurisprudence of the International Court of Justice’ in Hillary Charlesworth and Robert McCorquodale (eds) The Australian Yearbook of International Law – Volume 20, Sidney: Robert Burton Printers. —. (2011) ‘International Court of Justice, Optional Clause’ in Rüdiger Wolfrum (eds) Max Planck Encyclopedia of Public International Law Volume V, Oxford: Oxford University Press. —. (2013) ‘The International Court of Justice and the International Environmental Law’ in Christian J. Tams and James Sloan (eds) The Development of International Law by the International Court of Justice, Oxford: Oxford University Press. GAMIO, José Maria (2000) ‘Semblanza Del Dr. Eduardo Jiménez de Aréchaga’ in Augusto Durán Martinez (ed) Estudios em Memoria de Eduardo Jiménez de Aréchaga’, Uruguay: Universidad Católica. GEISS, Robin, and ZIMMERMANN, Andreas (2006) ‘Article 61’ in Andreas Zimmermann, Christian Tomuschat, and Karin Oellers-Frahn (eds) The Statute of the International Court of Justice – A Commentary, Oxford: Oxford University Press. GROS, André (1989) ‘Le Cour Internationale de Justice 1946-1986: Les Reflexions D’um Juge’ in Yoram Dinstein (ed) International Law at a Time of Perplexity, Dordrecht/Boston/London: Martinus Nijhoff Publishers. HESS, Burkhand, and WIIK, Astrid (2012) ‘Affected Individuals in Proceedings Before the ICJ, the Itols and the Echr’ in Liber Amicorum and Rüdinger Wolfrum Coexistence, Cooperation and SolidarityVolume I, Leiden/Boston: Martinus Nijhoff Publishers. HOPPE, Carsten (2011) ‘Trends and Trials: the Implement of Consular Rights a Decade after Lagrand’ in Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (eds) From Bilateralism to Community Interest, Oxford: Oxford University Press. HOUSE, Robert, and TEITEL, Ruti (2011) ‘Global Judicial Activism Fragmentation, and the Limits of Constitutionalism in International Law’ in Ulrich Fastenrath, Rudolf Geiger, Daniel-Erasmus Khan, Andreas Paulus, Sabine von Schorlemer and Christoph Vedder (eds) From Bilateralism to Community Interest, Oxford: Oxford University Press.

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JENNINGS, Robert (1989) ‘The Collegiate Responsibility and Authority of the International Court of Justice’ in Yoram Publishers.Dinstein (ed) International Law at a Time of Perplexity, Dordrecht/Boston/London: Martinus Nijhoff. JESUS, José Luis (2012) ‘Judges Ad Hoc in the International Tribunal for the Law of the Sea’ in Liber Amicorum and Rüdinger Wolfrum Coexistence, Cooperation and Solidarity- Volume I, Leiden/Boston: Martinus Nijhoff Publishers. KAPPOR, S.K. (1994) ‘Enforcement of Judgments and Compliance with Advisory Options of the International Court of Justice’ in B.C. Nirmal, and R.P. Dhorkalia (eds) International Court in Transition (Essays in Memory of Professor Dharma Pratap), Allahabad: Chugh Publications. KAWANO, Mariko (2009) ‘The Administration of Justice by the International Court of Justice and the Parties’ in Sienho Yee, and Jacques-Ivan Morin (eds) Multiculturalism and International Law, Leiden/Boston: Martinus Nijhoff Publishers. KINGSBURY, Benedict (2012) ‘International Courts: Uneven Judicialization in Global Order’ in James Crawford and Martti Koskenniemi (eds) Cambridge Companion to International Law, Cambridge: Cambridge University Press, pp. 203-227. KOHEN, Marcelo G. (2009) ‘L’uti Possidetis Iuris et les Espaces Maritimes’ in Le proces international: liber amicorum Jean-Pierre Cot, Bruxelles: Bruylant. KOROMA, Abdul G. (2006) ‘International Court of Justice, Rules and Practice Directions’ in Rüdiger Wolfrum (ed) Max Planck Encyclopedia of Public International Law Volume V, Oxford: Oxford University Press. —. (2009) ‘International Law and Multiculturalism’ in Sienho Yee, and Jacques-Ivan Morin (eds) Multiculturalism and International Law, Leiden/Boston: Martinus Nijhoff Publishers. —. (2010) ‘Chapter 21 - The Binding Nature of the Decisions of the International Court of Justice’ in Laurence Boisson de Chazournes and Marcelo Kohen (eds) International Law and the Quest for its Implementation, Leiden/Boston: Brill. KOSKENNIEMI, Martti (2008), ‘The Ideology of International Adjudication and the 1907 Hague Conference’ in Yves Daudet (ed), Topicality of the 1907 Hague Conference, Leiden: Nijhoff, pp. 127152. LEE, Jaemin (2007) ‘The United Nations Security Council and the International Court of Justice: Co-Operation, Co-Existence, and Co-

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Involvement’ in B.S. Chimni, Myioshi Masahiro, and Thio Li-ann (eds) Asian Yearbook of International Law – Volume 12, Leiden/Boston: Martinus Nijhoff Publishers. LOWE, Vaughan (2000) ‘Overlapping Jurisdiction in International Tribunals’ in Hillary Charlesworth and Robert McCorquodale (eds) The Australian Yearbook of International Law – Volume 20, Sydney: Robert Burton Printers. LOWE, Vaughan, and TZANAKOPOULOS, Antonios (2013) ‘The Development of the Law of the Sea by the International Court of Justice’ in Christian J. Tams and James Sloan (eds) The Development of International Law by the International Court of Justice, Oxford: Oxford University Press. MACALISTER-SMITH, Peter (1994) ‘The Diverse Approaches to International Adjudication with Particular Reference to International Court of Justice’ in B.C. Nirmal, and R.P. Dhorkalia (eds) International Court in Transition (Essays in Memory of Professor Dharma Pratap), Allahabad: Publications. MALVIYA, R.A. (1994) ‘Contribution of the International Court of Justice to the Development of the Law of the Sea: a Case Study’ in B.C. Nirmal, and R.P. Dhorkalia (eds) International Court in Transition (Essays in Memory of Professor Dharma Pratap), Allahabad: Chugh Publications. MERRILS, J.G. (2009) ‘Chapter Seventeen – Does the Optimal Clause Still Matter?’ in Kayian Homi Kaikobad and Michael Bohlander (eds) International Law and Power: Perspectives on Legal Order and Justice, Leiden/Boston: Martinus Nijhoff Publishers. —. (1994) ‘The Role and Limits of International Arbitration’ in B.C. Nirmal, and R.P. Dhorkalia (eds) International Court in Transition (Essays in Memory of Professor Dharma Pratap), Allahabad: Chugh Publications. MOSLER, Hermann (1989) ‘The ad hoc Chambers of the International Court of Justice: Evaluation After Five Years of Experience’ in Yoram Publishers.Dinstein (ed) International Law at a Time of Perplexity, Dordrecht/Boston/London: Martinus Nijhoff. NAVIA, Rafael Nieto (2000) ‘Jurisprudencia en Materia de Delimitación Marítima’ in Calixto A. Armas Barea, Julio A. Barberis, Julio Barboza, Hugo Caminos, Enrique Candioti, Ernesto de la Guardia, Horténcia D. T. Gutierrez Posse, Guillermo Moncayo, Ernesto J. Rey Castro, and Raúl E. Vinuesa (eds) Liber Amicorum ‘In Memorian’ of José María Ruda, Hague/London/Boston: Kluwer Law International.

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APPENDIX

I - Tables Table 1. Cases by Region Table 2. Cases brought by Latin American States Table 3. Cases brought against Latin American States Table 4. Cases and Basis of Jurisdiction Table 5. Composition of the bench in Latin American Cases Table 6. Cases and Judgments Table 6-A. Jurisdiction Table 6-B. Merits Table 7. Cases and Orders Table 7-A. Intervening Party Table 7-B. Provisional Measures Table 7-C. New Provisional Measures and Modification of Provisional Measures Table 7-D. Composition of Chamber, Joinder of Proceedings and Counter-claims Table 8. Latin American Judges Table 9. Latin American Ad Hoc Judges and Cases Table 10. Latin American Judges and Cases Table 10-A. Separate opinion Table 10-B. Dissenting opinion Table 10-C. Individual opinion Table 10-D. Declaration

Appendix

396

II - Graphics 1. Contentious cases by Region 2. Contentious cases by Region and Year of Submission 3. Contentious cases involving Latin American States

A Latin American Guide to the International Court of Justice Case Law 397

Table 1. Cases by Region Region of Applicant

Africa

Cases x South West Africa (Ethiopia v. South Africa) x South West Africa (Liberia v. South Africa) x Northern Cameroons (Cameroon v. United Kingdom) x Continental Shelf (Tunisia/Libyan Arab Jamahiriya) x Continental Shelf (Libyan Arab Jamahiriya/Malta) x Frontier Dispute (Burkina Faso/Republic of Mali) x Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) x Territorial Dispute (Libyan Arab Jamahiriya/Chad) x Maritime Delimitation between Guinea-Bissau and Senegal (Guinea-Bissau v. Senegal) x Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) x Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) x Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) x Kasikili/Sedudu Island (Botswana/ Namibia) x Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) x Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Burundi) x Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) x Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda) x Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) x Frontier Dispute (Benin/Niger) x Certain Criminal Proceedings in France (Republic of the Congo v. France) x Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) x Frontier Dispute (Burkina Faso/Niger) x Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)

Total

23

398

Asia

Europe

Appendix x Temple of Preah Vihear (Cambodia v. Thailand) x Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) x Trial of Pakistani Prisoners of War (Pakistan v. India) x Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) x Aerial Incident of 10 August 1999 (Pakistan v. India) x Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) x Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand) x Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v. Australia) x Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) x Fisheries (United Kingdom v. Norway) x Protection of French Nationals and Protected Persons in Egypt (France v. Egypt) x Rights of Nationals of the United States of America in Morocco (France v. United States of America) x Ambatielos (Greece v. United Kingdom) x Anglo-Iranian Oil Co. (United Kingdom v. Iran) x Minquiers and Ecrehos (France/United Kingdom) x Nottebohm (Liechtenstein v. Guatemala) x Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America) x Electricité de Beyrouth Company (France v. Lebanon) x Antarctica (United Kingdom v. Argentina) x Antarctica (United Kingdom v. Chile) x Certain Norwegian Loans (France v. Norway) x Right of Passage over Indian Territory (Portugal v. India) x Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) x Interhandel (Switzerland v. United States of America) x Aerial Incident of 27 July 1955 (United Kingdom v. Bulgaria) x Sovereignty over Certain Frontier Land (Belgium/Netherlands) x Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) x Compagnie du Port, des Quais et des Entrepôts de Beyrouth and Société Radio-Orient (France v. Lebanon)

8

50

A Latin American Guide to the International Court of Justice Case Law 399 x North Sea Continental Shelf (Federal Republic of Germany/ Denmark) x North Sea Continental Shelf (Federal Republic of Germany/Netherlands) x Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland) x Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) x Aegean Sea Continental Shelf (Greece v. Turkey) x Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) x East Timor (Portugal v. Australia) x Passage through the Great Belt (Finland v. Denmark) x Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) x Gabþíkovo-Nagymaros Project (Hungary/Slovakia) x Fisheries Jurisdiction (Spain v. Canada) x LaGrand (Germany v. United States of America) x Legality of Use of Force (Serbia and Montenegro v. Belgium) x Legality of Use of Force (Serbia and Montenegro v. Canada) x Legality of Use of Force (Serbia and Montenegro v. France) x Legality of Use of Force (Serbia and Montenegro v. Germany) x Legality of Use of Force (Serbia and Montenegro v. Italy) x Legality of Use of Force (Serbia and Montenegro v. Netherlands) x Legality of Use of Force (Serbia and Montenegro v. Portugal) x Legality of Use of Force (Yugoslavia v. Spain) x Legality of Use of Force (Serbia and Montenegro v. United Kingdom) x Legality of Use of Force (Yugoslavia v. United States of America) x Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia)** x Certain Property (Liechtenstein v. Germany) x Maritime Delimitation in the Black Sea (Romania v. Ukraine) x Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia

400

Latin America

Appendix v. Russian Federation) x Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece) x Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) x Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) x Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland) x Asylum (Colombia/Peru) x Haya de la Torre (Colombia v.Peru) x Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) x Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) x Border and Transborder Armed Actions (Nicaragua v. Costa Rica) x Border and Transborder Armed Actions (Nicaragua v. Honduras) x Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) x Vienna Convention on Consular Relations (Paraguay v. United States of America) x Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) x Territorial and Maritime Dispute (Nicaragua v. Colombia) x Avena and Other Mexican Nationals (Mexico v. United States of America) x Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) x Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations (Commonwealth of Dominica v. Switzerland) x Pulp Mills on the River Uruguay (Argentina v. Uruguay) x Maritime Dispute (Peru v. Chile) x Aerial Herbicide Spraying (Ecuador v. Colombia) x Certain Questions concerning Diplomatic Relations (Honduras v. Brazil) x Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) x Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) x Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile)

23

A Latin American Guide to the International Court of Justice Case Law 401

Middle East

North America

Oceania

x Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia) x Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) x Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) x Aerial Incident of 27 July 1955 (Israel v. Bulgaria) x Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America) x Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) x Oil Platforms (Islamic Republic of Iran v. United States of America) x Treatment in Hungary of Aircraft and Crew of United States of America (United States of America v. Hungarian People's Republic) x Treatment in Hungary of Aircraft and Crew of United States of America (United States of America v. Union of Soviet Socialist Republics) x Aerial Incident of 10 March 1953 (United States of America v. Czechoslovakia) x Aerial Incident of 7 October 1952 (United States of America v. Union of Soviet Socialist Republics) x Aerial Incident of 27 July 1955 (United States of America v. Bulgaria) x Aerial Incident of 4 September 1954 (United States of America v. Union of Soviet Socialist Republics) x Aerial Incident of 7 November 1954 (United States of America v. Union of Soviet Socialist Republics) x United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) x Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) x Elettronica Sicula S.p.A. (ELSI) (United States of America v. Italy) x Nuclear Tests (Australia v. France) x Nuclear Tests (New Zealand v. France) x Certain Phosphate Lands in Nauru (Nauru v. Australia) x Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case x Whaling in the Antarctic (Australia v. Japan: New

4

10

8

402

Appendix Zealand intervening) x Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India) x Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. Pakistan) x Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom)

A Latin American Guide to the International Court of Justice Case Law 403

Table 2. Cases brought by Latin American States Case

Applicant Country

Defendant Country

Asylum

Colombia

Peru

Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case

Colombia

Peru

Haya de la Torre

Colombia

Peru

Nottebohm

Liechtenstein

Guatemala

Arbitral Award Made by the King of Spain on 23 December 1906

Honduras

Nicaragua

Military and Paramilitary Activities in and against Nicaragua

Nicaragua

United States of America

Border and Transborder Armed Nicaragua Actions

Costa Rica

Border and Transborder Armed Nicaragua Actions

Honduras

Land, Island and Maritime Frontier Dispute

El Salvador

Honduras

Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute

El Salvador

Honduras

Vienna Convention on Consular Relations

Paraguay

United States of America

Intervening Party

El Salvador

Nicaragua

404

Appendix

Territorial and Maritime Dispute between Nicaragua and Nicaragua Honduras in the Caribbean Sea

Honduras

Territorial and Maritime Dispute

Nicaragua

Colombia

Avena and Other Mexican Nationals

Mexico

United States of America

Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals

Mexico

United States of America

Status vis-à-vis the Host State of a Diplomatic Envoy to the United Nations

Commonwealt Switzerland h of Dominica

Dispute regarding Navigational Costa Rica and Related Rights

Nicaragua

Pulp Mills on the River Uruguay

Argentina

Uruguay

Maritime Dispute

Peru

Chile

Aerial Herbicide Spraying

Ecuador

Colombia

Certain Questions concerning Diplomatic Relations

Honduras

Brazil

Certain Activities carried out by Nicaragua in the Border Area

Costa Rica

Nicaragua

A Latin American Guide to the International Court of Justice Case Law 405

Construction of a Road in Costa Rica along the San Juan River

Nicaragua

Costa Rica

Obligation to Negotiate Access to the Pacific Ocean

Bolivia

Chile

Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia Nicaragua beyond 200 nautical miles from the Nicaraguan Coast

Colombia

Alleged Violations of Sovereign Rights and Maritime Nicaragua Spaces in the Caribbean Sea

Colombia

Maritime Delimitation in the Caribbean Sea and the Pacific Ocean

Nicaragua

Costa Rica

406

Appendix

Table 3. Cases brought against Latin American States Case

Applicant

Defendant

Asylum

Colombia

Peru

Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case

Colombia

Peru

Haya de la Torre

Colombia

Peru

Nottebohm

Liechtenstein Guatemala

Antarctica Antarctica

United Kingdom United Kingdom

Intervening Party

Argentina Chile

Arbitral Award Made by the King of Spain on 23 December 1906

Honduras

Nicaragua

Border and Transborder Armed Actions

Nicaragua

Costa Rica

Border and Transborder Armed Actions

Nicaragua

Honduras

Land, Island and Maritime Frontier Dispute

El Salvador

Honduras

Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute

El Salvador

Honduras

Nicaragua

A Latin American Guide to the International Court of Justice Case Law 407

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea

Nicaragua

Honduras

Territorial and Maritime Dispute

Nicaragua

Colombia

Dispute regarding Navigational and Related Rights

Costa Rica

Nicaragua

Pulp Mills on the River Uruguay

Argentina

Uruguay

Maritime Dispute

Peru

Chile

Aerial Herbicide Spraying

Ecuador

Colombia

Certain Questions concerning Honduras Diplomatic Relations

Brazil

Certain Activities carried out by Nicaragua in the Border Costa Rica Area

Nicaragua

Construction of a Road in Costa Rica along the San Juan River

Nicaragua

Costa Rica

Obligation to Negotiate Access to the Pacific Ocean

Bolivia

Chile

Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast

Nicaragua

Colombia

408

Appendix

Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea

Nicaragua

Colombia

Maritime Delimitation in the Caribbean Sea and the Pacific Ocean

Costa Rica

Nicaragua

A Latin American Guide to the International Court of Justice Case Law 409

Table 4. Cases and Basis of Jurisdiction Basis of Jurisdiction Case

Treaties

Declarations Recognizing the Jurisdiction of the Court as Compulsory

Special Agreement

Asylum

Agreement of Lima between Colombia and Peru (31 August 1949)

Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case

Agreement of Lima between Colombia and Peru (31 August 1949)

Haya de la Torre

Protocol of Friendship and Cooperation between the Republic of Colombia and the Republic of Peru, signed at Rio de Janeiro on May 24th, 1934

410

Nottebohm

Appendix Liechstenstein: The government of the Principality of Liechtenstein, duly authorized by His Serene Highness, the Reigning Prince François Joseph II, in accordance with the Order of the Diet of the Principality of Liechtenstein dated 9 March 1950, which came into force on 10 March 1950, declares by these presents that the Principality of Liechtenstein recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation. The present declaration, which is made under Article 36 of the Statute of the International Court of Justice, shall take effect from the date on which the Principality becomes a party to the Statute and shall have effect as long as the declaration has not been revoked subject to one year's notice. Done at Vaduz, 10 March 1950. Guatemala: The government of Guatemala declared that, in accordance with Article 36 (ii)

A Latin American Guide to the International Court of Justice Case Law 411

Arbitral Award Made by the King of Spain on 23 December 1906

and (iii) of the Statute of the International Court of Justice, it recognizes as compulsory, ipso facto and without special agreement, in relation to any other state accepting the same obligation, and for a period of five years, the jurisdiction of the Court in all legal disputes. This declaration does not cover the dispute between England and Guatemala concerning the restoration of the territory of Belize, which the government of Guatemala would, as it has proposed, agree to submit to the judgment of the Court, if the case were decided ex aequo et bono, in accordance with Article 38 (ii) of the said Statute. Guatemala, 27 January 1947 Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. Honduras: There's no information on the text of Declaration recognizing the jurisdiction of the Court as Compulsory prior to 1986.

Appendix

412

Military and Paramilitary Activities in and against Nicaragua

Treaty of Friendship, Commerce and Navigation between the Unites States of America and the Republic of Nicaragua signed at Managua on 21 January 1956 (Art. XXIV)

Border and Transborder Armed Actions

American Treaty on Pacific Settlement Pact of Bogota (Art. XXXI)

Border and Transborder Armed

American Treaty on Pacific

Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. Costa Rica: The government of Costa Rica recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes of the kinds referred to in Article 36, paragraph 2, of the Statute of the International Court of Justice. This Declaration shall be valid for a period of five years and shall be understood to be tacitly renewed for like periods, unless denounced before the expiration of the said period. San José, 5 February 1973.

A Latin American Guide to the International Court of Justice Case Law 413 Actions

Land, Island and Maritime Frontier Dispute

Settlement Pact of Bogota (Art. XXXI) Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. Honduras: The government of the Republic of Honduras, duly authorized by the National Congress under Decree No. 7586 of 21 May 1986 to modify the Declaration made on 20 February 1960 concerning Article 36 (2) of the Statute of the International Court of Justice, hereby declares that it modifies the Declaration made by it on 20 February 1960 as follows: 1. It recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes concerning: (a) The interpretation of a treaty; (b) Any question of international law; (c) The existence of any fact which, if established, would constitute a breach of an international obligation; (d) The nature or extent of the reparation to be made for the breach of an international obligation. 2. This Declaration shall not apply, however, to the

Special Agreement between El Salvador and Honduras to submit the land, island and maritime frontier dispute between the two states to the International Court of Justice for a decision, sipned in the City of Esquipulas, Republic of Guatemala. on 24 May 1986 (Art. 8)

414

Appendix following disputes to which the Republic of Honduras may be a party: (a) Disputes in respect of which the parties have agreed or may agree to resort to other means for the pacific settlement of disputes; (b) Disputes concerning matters subject to the domestic jurisdiction of the Republic of Honduras under international law; (c) Disputes relating to facts or situations originating in armed conflicts or acts of a similar nature which may affect the territory of the Republic of Honduras, and in which it may find itself involved directly or indirectly; (d) Disputes referring to: (i) Territorial questions with regard to sovereignty over islands, shoals and keys; internal waters, bays, the territorial sea and the legal status and limits thereof; (ii) All rights of sovereignty or jurisdiction concerning the legal status and limits of the contiguous zone, the exclusive economic zone and the continental shelf; (iii) The airspace over the territories, waters and zones referred to in this subparagraph. 3. The government of Honduras also reserves the right at any time to supplement, modify or withdraw this Declaration or the reservations contained therein by giving notice to the Secretary-General of the United Nations. 4. This Declaration replaces the

A Latin American Guide to the International Court of Justice Case Law 415 Declaration made by the government of Honduras on 20 February 1960. National Palace, Tegucigalpa, D.C., 22 May 1986. Special Agreement between El Salvador and Honduras to submit the land, island and maritime frontier dispute between the two states to the International Court of Justice for a decision, signed in the City of Esquipulas, Republic of Guatemala. on 24 May 1986 (Art. 8)

Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute

Vienna Convention on Consular Relations

Vienna Convention’s Optional Protocol concerning the Compulsory Settlement of Disputes (Art.1)

Territorial and Maritime Dispute between Nicaragua and Honduras in the

American Treaty on Pacific Settlement Pact of Bogota (Art. XXXI)

Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. Honduras:The government of

416 Caribbean Sea

Appendix the Republic of Honduras, duly authorized by the National Congress under Decree No. 7586 of 21 May 1986 to modify the Declaration made on 20 February 1960 concerning Article 36 (2) of the Statute of the International Court of Justice, hereby declares that it modifies the Declaration made by it on 20 February 1960 as follows: 1. It recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes concerning: (a) The interpretation of a treaty; (b) Any question of international law; (c) The existence of any fact which, if established, would constitute a breach of an international obligation; (d) The nature or extent of the reparation to be made for the breach of an international obligation. 2. This Declaration shall not apply, however, to the following disputes to which the Republic of Honduras may be a party: (a) Disputes in respect of which the parties have agreed or may agree to resort to other means for the pacific settlement of disputes; (b) Disputes concerning matters subject to the domestic jurisdiction of the Republic of Honduras under international

A Latin American Guide to the International Court of Justice Case Law 417

American Treaty on Territorial Pacific and Maritime Settlement Dispute Pact of Bogota (Art. XXXI)

law; (c) Disputes relating to facts or situations originating in armed conflicts or acts of a similar nature which may affect the territory of the Republic of Honduras, and in which it may find itself involved directly or indirectly; (d) Disputes referring to: (i) Territorial questions with regard to sovereignty over islands, shoals and keys; internal waters, bays, the territorial sea and the legal status and limits thereof; (ii) All rights of sovereignty or jurisdiction concerning the legal status and limits of the contiguous zone, the exclusive economic zone and the continental shelf; (iii) The airspace over the territories, waters and zones referred to in this subparagraph. 3. The government of Honduras also reserves the right at any time to supplement, modify or withdraw this Declaration or the reservations contained therein by giving notice to the Secretary-General of the United Nations. 4. This Declaration replaces the Declaration made by the government of Honduras on 20 February 1960. National Palace, Tegucigalpa, D.C., 22 May 1986. Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929.

Appendix

418

Reservation Nicaragua will not accept the jurisdiction or competence of the International Court of Justice in relation to any matter or claim based on interpretations of treaties or arbitral awards that were signed and ratified or made, respectively, prior to 31 December 1901. Managua, 23 October 2001.

Avena and Other Mexican Nationals

Optional protocol to the Vienna convention on consular relations concerning the compulsory settlement of disputes (Arts. 5 and 36)

Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals

Vienna Convention's Optional Protocol concerning the Compulsory Settlement of Disputes (Arts. 5 and 36)

Dispute regarding Navigational and Related Rights

Costa Rica: The government of Costa Rica recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes of the kinds referred to in Article 36, paragraph 2, of the Statute of

A Latin American Guide to the International Court of Justice Case Law 419

Status vis-àvis the Host State of a Diplomatic Envoy to the United Nations

the International Court of Justice. This Declaration shall be valid for a period of five years and shall be understood to be tacitly renewed for like periods, unless denounced before the expiration of the said period. San José, 5 February 1973. Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. Reservation Nicaragua will not accept the jurisdiction or competence of the International Court of Justice in relation to any matter or claim based on interpretations of treaties or arbitral awards that were signed and ratified or made, respectively, prior to 31 December 1901. Managua, 23 October 2001. Commonwealth of Dominica: The Commonwealth of Dominica hereby accepts the compulsory jurisdiction of the International Court of Justice Vienna and makes this Declaration Convention's under article 36(2) of the Optional Statute of the Court. Protocol 17 March 2006. concerning the Switzerland: The Swiss Compulsory Federal Council, duly Settlement of authorized for that purpose by a Disputes Federal decree which was (art.1) adopted on 12 March 1948 by the Federal Assembly of the Swiss Confederation and became operative on 17 June 1948,

420

Pulp Mills on the River Uruguay

Appendix Hereby declares that the Swiss Confederation recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation. This declaration, which is made under Article 36 of the Statute of the International Court of Justice, shall take effect from the date on which the Swiss Confederation becomes a party to that Statute and shall have effect as long as it has not been abrogated subject to one year's notice. Done at Berne, 6 July 1948. Uruguay: On behalf of the government of Uruguay, I recognize, in relation to any Member or state accepting the same obligation, that is to say, on the sole condition of reciprocity, the jurisdiction of the Court as compulsory, ipso facto and without special convention. Argentina: There is no information on the text of Declaration recognizing the jurisdiction of the Court as Compulsory.

A Latin American Guide to the International Court of Justice Case Law 421

Maritime Dispute

American Treaty on Pacific Settlement Pact of Bogota (Art. XXXI)

Peru: In accordance with Article 36, paragraph 2, of the Statute of the International Court of Justice, the government of Peru recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation and on condition of reciprocity, the jurisdiction of the International Court of Justice in all legal disputes, until such time as it may give notice withdrawing this declaration. This declaration does not apply to any dispute with regard to which the parties have agreed or shall agree to have recourse to arbitration or judicial settlement for a final and binding decision or which has been settled by some other method of peaceful settlement. The government of Peru reserves the right at any time by means of a notification addressed to the SecretaryGeneral of the United Nations to amend or withdraw this declaration or reservations set out herein. Such notification shall take effect on the day on which it is received by the Secretary-General of the United Nations. This declaration shall apply to countries that have entered reservations or set conditions with respect to it, with the same restrictions as set by such countries in their respective declarations. Lima, 9 April 2003. Chile: There's no information on the text of Declaration

Appendix

422

Aerial Herbicide Spraying

American Treaty on Pacific Settlement Pact of Bogota (Art. XXXI)

Certain Questions concerning Diplomatic Relations

American Treaty on Pacific Settlement Pact of Bogota (Art. XXXI)

recognizing the jurisdiction of the Court as Compulsory. Ecuador: There is no information on the text of Declaration recognizing the jurisdiction of the Court as Compulsory. Colombia: There is no information on the text of Declaration recognizing the jurisdiction of the Court as Compulsory. Honduras: The government of the Republic of Honduras, duly authorized by the National Congress under Decree No. 7586 of 21 May 1986 to modify the Declaration made on 20 February 1960 concerning Article 36 (2) of the Statute of the International Court of Justice, hereby declares that it modifies the Declaration made by it on 20 February 1960 as follows: 1. It recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes concerning: (a) The interpretation of a treaty; (b) Any question of international law; (c) The existence of any fact which, if established, would constitute a breach of an international obligation; (d) The nature or extent of the reparation to be made for the breach of an international obligation. 2. This Declaration shall not

A Latin American Guide to the International Court of Justice Case Law 423 apply, however, to the following disputes to which the Republic of Honduras may be a party: (a) Disputes in respect of which the parties have agreed or may agree to resort to other means for the pacific settlement of disputes; (b) Disputes concerning matters subject to the domestic jurisdiction of the Republic of Honduras under international law; (c) Disputes relating to facts or situations originating in armed conflicts or acts of a similar nature which may affect the territory of the Republic of Honduras, and in which it may find itself involved directly or indirectly; (d) Disputes referring to: (i) Territorial questions with regard to sovereignty over islands, shoals and keys; internal waters, bays, the territorial sea and the legal status and limits thereof; (ii) All rights of sovereignty or jurisdiction concerning the legal status and limits of the contiguous zone, the exclusive economic zone and the continental shelf; (iii) The airspace over the territories, waters and zones referred to in this subparagraph. 3. The government of Honduras also reserves the right at any time to supplement, modify or withdraw this Declaration or the reservations contained therein by giving notice to the Secretary-General of the United Nations.

Appendix

424

Certain Activities carried out by Nicaragua in the Border Area

American Treaty on Pacific Settlement Pact of Bogota (Art. XXXI)

4. This Declaration replaces the Declaration made by the government of Honduras on 20 February 1960. National Palace, Tegucigalpa, D.C., 22 May 1986. Brasil: There's no information on the text of Declaration recognizing the jurisdiction of the Court as Compulsory. Costa Rica: The government of Costa Rica recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes of the kinds referred to in Article 36, paragraph 2, of the Statute of the International Court of Justice. This Declaration shall be valid for a period of five years and shall be understood to be tacitly renewed for like periods, unless denounced before the expiration of the said period. San José, 5 February 1973. Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. Reservation Nicaragua will not accept the jurisdiction or competence of the International Court of Justice in relation to any matter or claim based on interpretations of treaties or arbitral awards that were signed and ratified or made,

A Latin American Guide to the International Court of Justice Case Law 425

Construction of a Road in Costa Rica along the San Juan River

American Treaty on Pacific Settlement Pact of Bogota (Art. XXXI)

Obligation to Negotiate Access to the Pacific

American Treaty on Pacific Settlement -

respectively, prior to 31 December 1901. Managua, 23 October 2001. Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. Reservation Nicaragua will not accept the jurisdiction or competence of the International Court of Justice in relation to any matter or claim based on interpretations of treaties or arbitral awards that were signed and ratified or made, respectively, prior to 31 December 1901. Managua, 23 October 2001. Costa Rica: The government of Costa Rica recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes of the kinds referred to in Article 36, paragraph 2, of the Statute of the International Court of Justice. This Declaration shall be valid for a period of five years and shall be understood to be tacitly renewed for like periods, unless denounced before the expiration of the said period. San José, 5 February 1973.

Appendix

426 Ocean

Pact of Bogota (Art. XXXI)

Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast

American Treaty on Pacific Settlement Pact of Bogota (Art. XXXI)

Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea

American Treaty on Pacific Settlement Pact of Bogota (Art. XXXI)

Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. Reservation Nicaragua will not accept the jurisdiction or competence of the International Court of Justice in relation to any matter or claim based on interpretations of treaties or arbitral awards that were signed and ratified or made, respectively, prior to 31 December 1901. Managua, 23 October 2001. Colombia: There's no information on the text of Declaration recognizing the jurisdiction of the Court as Compulsory. Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. Reservation Nicaragua will not accept the jurisdiction or competence of the International Court of Justice in relation to any matter or claim based on interpretations of treaties or arbitral awards that were signed and ratified or made, respectively, prior to 31 December 1901. Managua, 23 October 2001.

A Latin American Guide to the International Court of Justice Case Law 427

Maritime Delimitation in the Caribbean Sea and the Pacific Ocean

American Treaty on Pacific Settlement Pact of Bogota (Art. XXXI)

Colombia: There's no information on the text of Declaration recognizing the jurisdiction of the Court as Compulsory. Costa Rica: The government of Costa Rica recognizes as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes of the kinds referred to in Article 36, paragraph 2, of the Statute of the International Court of Justice. This Declaration shall be valid for a period of five years and shall be understood to be tacitly renewed for like periods, unless denounced before the expiration of the said period. San José, 5 February 1973. Nicaragua: On behalf of the Republic of Nicaragua I recognize as compulsory unconditionally the jurisdiction of the Permanent Court of International Justice. Geneva, 24 September 1929. Reservation Nicaragua will not accept the jurisdiction or competence of the International Court of Justice in relation to any matter or claim based on interpretations of treaties or arbitral awards that were signed and ratified or made, respectively, prior to 31 December 1901. Managua, 23 October 2001.

428

Appendix

Table 5. Composition of the bench in Latin American Cases Case

Asylum

Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case

Haya de la Torre

Judges Alejandro Alvarez José Philadelpho de Barros e Azevedo Abdel Hamid Badawi Jules Basdevant Charles De Visscher José Gustavo Guerrero Green H. Hackworth Hsu Mo Helge Klaestad Sergei Borisovitch Krylov Sir Arnold Duncan McNair John Erskine Read Bohdan Winiarski Milovan Zoriþiü Luis Alayza y Paz Soldán José Joaquim Caicedo Castilla Alejandro Alvarez Jules Basdevant Charles De Visscher José Gustavo Guerrero Green H. Hackworth Hsu Mo Helge Klaestad Sergei Borisovitch Krylov Sir Arnold Duncan McNair John Erskine Read Bohdan Winiarski Luis Alayza y Paz Soldán José Joaquim Caicedo Castilla Abdel Hamid Badawi Pacha Jules Basdevant Charles De Visscher Joé Gustavo Guerrero Green H. Hackworth Hsu Mo Helge Klaestad Sir Arnold Duncan McNair John Erskine Read Bohdan Winiarski Judge Zoriþiü Luis Alayza y Paz Soldán José Joaquim Caicedo Castilla

A Latin American Guide to the International Court of Justice Case Law 429 Alejandro Alvarez Enrique C. Armand-Ugon Abdel Hamid Badawi Jules Basdevant Levi Fernandes Carnero Roberto Cordova José Gustavo Guerrero Green H. Hackworth Hsu Mo Nottebohm Helge Klaestad Feodor Ivanovitch Kojevnikov Sir Arnold Duncan McNair Lucio Manuel Moreno Quintana John Erskine Read Bohdan Winiarski Sir Muhammad Zafrulla Khan Milovan Zoriþiü Carlos García Bauer Paul Guggenheim Ricardo Joaquim Alfaro Enrique C. Armand-Ugon Abdel Hamid Badawi Roberto Cordova Green H. Hackworth Helge Klaestad Feodor Ivanovitch Kojevnikov Arbitral Award Made by the King of Lucio Manuel Moreno Quintana Spain on 23 December 1906 Sir Percy Claude Spender Jean Spiropoulus Vi Kuiyuin Wellington Koo Bohdan Winiarski Sir Muhammad Zafrulla Khan Roberto Ago Francisco Urrutia Holguin Roberto Ago Mohammed Bedjaoui Guy Ladreit de Lacharrière Abdallah Fikri El-Khani Taslim Olawale Elias Military and Paramilitary Activities Jens Evensen in and against Nicaragua Manfred Lachs Kéba Mbaye Platon Dmitrievich Morozov Hermann Mosler Nagendras Singh Ni Zhengyu

430

Appendix

Shigeru Oda José Maria Ruda Stephen M. Schwebel José Sette-Camara Sir Robert Yewdall Jennings Claude-Albert Colliard Roberto Ago Mohammed Bedjaoui Taslim Olawale Elias Jens Evensen Gilbert Guillaume Manfred Lachs Border and Transborder Armed Kéba Mbaye Actions Ni Zhengyu Shigeru Oda José Maria Ruda Mohamed Shahabuddeen Sir Robert Yewdall Jennings Nikolai Konstantinovitch Tarassov Roberto Ago Mohammed Bedjaoui Taslim Olawale Elias Jens Evensen Gilbert Guillaume Manfred Lachs Border and Transborder Armed Kéba Mbaye Actions Ni Zhengyu Shigeru Oda José Maria Ruda Mohamed Shahabuddeen Sir Robert Yewdall Jennings Nikolai Konstantinovitch Tarassov Shigeru Oda José Sette-Camara Land, Island and Maritime Frontier Sir Robert Yewdall Jennings Dispute Santiago Torres Bernárdez Nicolas Valticos Awn Shawkat Al-Khasawneh Thomas Buergenthal Nabil Elaraby Application for Revision of the Carl-August Fleischhauer Judgment of 11 September 1992 in Gilbert Guillaume the Case concerning the Land, Island Géza Herczegh and Maritime Frontier Dispute Dame Rosalyn Higgins Pieter H. Kooijmans Abdul G. Koroma

A Latin American Guide to the International Court of Justice Case Law 431

Vienna Convention on Consular Relations

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea

Territorial and Maritime Dispute

Shigeru Oda Gonzalo Parra-Aranguren Raymond Ranjeva Francisco Rezek Shi Jiuyong Vladlen Stepanovich Vereshchetin Felipe H. Paolillo Santiago Torres Bernárdez Mohammed Bedjaoui Carl-August Fleischhauer Gilbert Guillaume Géza Herczegh Dame Rosalyn Higgins Abdul G. Koroma Pieter H. Kooijmans Shigeru Oda Gonzalo Parra-Aranguren Raymond Ranjeva Francisco Rezek Stephen M. Schwebel Shi Jiuyong Vladlen Stepanovich Vereshchetin Christopher Gregory Weeramantry Ronny Abraham Awn Shawkat Al-Khasawneh Mohamed Bennouna Thomas Buergenthal Dame Rosalyn Higgins Kenneth Keith Abdul G. Koroma Hisashi Owada Gonzalo Parra-Aranguren Raymond Ranjeva Bernardo Sepúlveda-Amor Shi Jiuyong Bruno Simma Leonid Skotnikov Peter Tomka Giorgio Gaja Santiago Torres Bernárdez Ronny Abraham Awn Shawkat Al-Khasawneh Mohamed Bennouna Thomas Buergenthal Antônio Augusto Cançado Trindade Joan E. Donoghue

432

Avena and Other Mexican Nationals

Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals

Appendix Dame Rosalyn Higgins Kenneth Keith Abdul G. Koroma Hisashi Owada Gonzalo Parra-Aranguren Raymond Ranjeva Julia Sebutinde Bernardo Sepúlveda-Amor Shi Jiuyong Bruno Simma Leonid Skotnikov Peter Tomka Xue Hanquin Abdulqawi Ahmed Yusuf Jean Pierre-Cot Yves L. Fortier Giorgio Gaja Thomas A. Mensah Awn Shawkat Al-Khasawneh Thomas Buergenthal Nabil Elaraby Carl-August Fleischhauer Gilbert Guillaume Géza Herczegh Dame Rosalyn Higgins Pieter H. Kooijmans Abdul G. Koroma Shigeru Oda Hisashi Owada Gonzalo Parra-Aranguren Raymond Ranjeva Francisco Rezek Shi Jiuyong Peter Tomka Vladlen Stepanovich Vereshchetin Bernardo Sepúlveda-Amor Ronny Abraham Awn Shawkat Al-Khasawneh Mohamed Bennouna Thomas Buergenthal Dame Rosalyn Higgins Kenneth Keith Abdul G. Koroma Hisashi Owada Raymond Ranjeva Bernardo Sepúlveda-Amor

A Latin American Guide to the International Court of Justice Case Law 433

Dispute regarding Navigational and Related Rights

Pulp Mills on the River Uruguay

Maritime Dispute

Leonid Skotnikov Peter Tomka Ronny Abraham Awn Shawkat Al-Khasawneh Mohamed Bennouna Thomas Buergenthal Antônio Augusto Cançado Trindade Cristopher Greenwood Kenneth Keith Abdul G. Koroma Hisashi Owada Bernardo Sepúlveda-Amor Shi Jiuyong Leonid Skotnikov Abdulqawi Ahmed Yusuf Gilbert Guillaume Ronny Abraham Awn Shawkat Al-Khasawneh Mohamed Bennouna Thomas Buergenthal Antônio Augusto Cançado Trindade Christopher Greenwood Dame Rosalyn Higgins Kenneth Keith Abdul G. Koroma Hisashi Owada Gonzalo Parra-Aranguren Raymond Ranjeva Bernardo Sepúlveda-Amor Shi Jiuyong Bruno Simma Leonid Skotnikov Peter Tomka Abdulqawi Ahmed Yusuf Santiago Torres Bernárdez Raúl Emilio Vinuesa Ronny Abraham Mohamed Bennouna Judge Bhandari Antônio Augusto Cançado Trindade Joan E. Donoghue Giorgio Gaja Kenneth Keith Hisashi Owada Julia Sebutinde Bernardo Sepúlveda-Amor

434

Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)/ Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)

Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile)

Appendix Leonid Skotnikov Peter Tomka Xue Hanquin Abdulqawi Ahmed Yusuf Gilbert Guillaume Francisco Orrego-Vicuña Ronny Abraham Abdulqawi Ahmed Yusuf Hisashi Owada Peter Tomka Mohamed Bennouna Antônio Augusto Cançado Trindade Christopher Greenwood Xue Hanquin Joan E. Donoghue Giorgio Gaja Julia Sebutinde Dalveer Bhandari Robinson Gevorgian Christopher Dugard Gilbert Guillaume Ronny Abraham Abdulqawi Ahmed Yusuf Hisashi Owada Peter Tomka Mohamed Bennouna Antônio Augusto Cançado Trindade Christopher Greenwood Xue Hanquin Joan E. Donoghue Giorgio Gaja Julia Sebutinde Dalveer Bhandari Patrick Lipton Robinson Kirill Gevorgian Yves Daudet Louise Arbour

A Latin American Guide to the International Court of Justice Case Law 435

Table 6. Cases and Judgments Table 6-A. Jurisdiction Judgment: Jurisdiction Case Separate Opinion Dissenting Opinion Nottebohm Military and Paramilitar y Activities in and against Nicaragua Border and Transborde r Armed Actions Territorial and Maritime Dispute

Declaration Helge Klaestad

Nagendra Singh Manfred Lachs J.M. Ruda T. O. Elias Roberto Ago José Sette-Camara Ni Zhengyu

Shigeru Oda Stephen Schwebel Sir Robert Yewdall Jennings

Stephen Schwebel Mohamed Shahabuddeen Shigeru Oda

Manfred Lachs

Ronny Abraham Raymond Ranjeva

Kenneth Keith Gonzalo ParraAwn Shawkat AlAranguren Khasawneh Bruno Simma Mohamed Bennouna Peter Tomka Giorgio Gaja

Obligation to Negotiate Access to Antônio Augusto the Pacific Cançado Trindade Ocean (Bolivia v. Chile)

Louise Arbour

Mohamed Bennouna Giorgio Gaja

Appendix

436

Table 6-B. Merits Judgment: Merits Case

Separate Opinion

Asylum

Dissenting Opinion Alejandro Alvarez Abdel Hamid Badawi John Erskine Read José Philadelpho de Barros e Azevedo José Joaquim Caicedo Castilla

Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case Haya de la Torre

Milovan Zoriþiü

José Joaquim Caicedo Castilla

Luis Alayza y Paz Soldán Helge Klaestad John Erskine Read Paul Guggenheim

Nottebohm

Arbitral Award Made by the King of Spain on 23 December 1906 Military and Paramilitary Activities in and against

Declaration

Sir Percy Claude Spender

Lucio Manuel Francisco Urrutia Moreno Holguin Quintana

Roberto Ago Taslim Olawale Elias Manfred Lachs

Shigeru Oda Stephen M. Schwebel Sir Robert

A Latin American Guide to the International Court of Justice Case Law 437

Nicaragua

Nagendra Singh Judge Ni José Maria Ruda Judge SetteCama

Land, Island Santiago Torres and Maritime Bernárdez Frontier Nicolas Valticos Dispute Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea Raymond Territorial and Ranjeva Maritime Abdul G. Dispute Koroma Avena and Other Mexican Nationals

Ronny Abraham Joan E. Donoghue

Yewdall Jennings

Shigeru Oda

Shigeru Oda

Felipe H. Paolillo

Santiago Torres Bernárdez

Gonzalo ParraAranguren Giorgio Gaja

Hisashi Owada

Kenneth Keith Xue Hanquin Jean-Pierre Cot Thomas A. Mensah

438

Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals Dispute regarding Navigational and Related Rights Pulp Mills on the River Uruguay

Maritime Dispute

Certain Activities carried out by Nicaragua in the Border Area/ Construction of a Road in Costa Rica along the San Juan River

Appendix

Gonzalo ParraAranguren Peter Tomka Judge Vereshchetin Bernardo Sepúlveda-Amor

Raymond Ranjeva Shi Jiuyong

Abdul G. Bernardo Koroma Sepúlveda-Amor Ronny Abraham Bernardo Sepúlveda-Amor Leonid Skotnikov Antônio Augusto Cançado Trindade Christopher Greenwood Kenneth Keith Santiago Torres Bernárdez Hishashi Owada Antônio Augusto Cançado Trindade Joan E. Donoghue Dalveer Bhandari Patrick Robinson John Dugard

Gilbert Guillaume

Awn Shawkat Al-Khasawneh Bruno Simma Raúl Emilio Vinuesa

Leonid Skotnikov Abdulqawi Ahmed Yusuf

Peter Tomka Christopher Greenwood Julia Sebutinde John Dugard Abdulqawi A. Yusuf Kirill Gevorgian Gilbert Guillaume

A Latin American Guide to the International Court of Justice Case Law 439

Table 7. Cases and Orders Table 7-A. Intervening Party Judgment: Intervening Party Case Separate Opinion Arbitral Award Made by the King of Spain on 23 December 1906

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea

Dissenting Opinion Declaration

Roberto Ago Mohammed Bedjaoui Judge de Lacherrière Hermann Mosler Stephen M. Nagendra Singh Schwebel Shigeru Oda José Maria Ruda Sir Robert Yewdall Jennings

Costa Rica: Ronny Abraham Awn Shawkat AlKhasawneh Antônio Augusto Cançado Trindade Joan E. Donoghue Abdulqawi Ahmed Yusuf Honduras: Ronny Abraham Joan E. Donoghue

Costa Rica: Kenneth Keith Giorgio Gaja Honduras: Awn Shawkat AlKhasawneh Kenneth Keith Antônio Augusto Cançado Trindade Abdulqawi Ahmed Yusuf

440

Appendix

Table 7-B. Provisional Measures Order: Provisional Measures Case

Military and Paramilitary Activities in and against Nicaragua

Separate Opinion on Provisional Measures

Dissenting Opinion on Provisional Measures

Hermann Mosler Stephen M. Sir Robert Schwebel Yewdall Jennings Abdul G. Koroma Shigeru Oda Stephen M. Schwebel

Vienna Convention on Consular Relations Avena and Other Mexican Nationals Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals

Shigeru Oda

Judge Buerguenthal Kenneth Keith Hisashi Owada Leonid Skotnikov Peter Tomka

Ronny Abraham Pulp Mills on the Mohamed River Uruguay Bennouna Certain Activities carried out by Nicaragua in the Border Area

Declaration on Provisional Measures

Abdul G. Koroma Bernardo Sepúlveda-Amor Christopher J.R. Dugard

Raúl Emilio Vinuesa

Raymond Ranjeva Christopher Greenwood Leonid Skotnikov Xue Hanquin Gilbert Guillaume

A Latin American Guide to the International Court of Justice Case Law 441

Table 7-C. New Provisional Measures and Modification of Provisional Measures

Order: New Provisional Measures Case Separate Dissenting Opinion Opinion Pulp Mills on the River Uruguay Certain Activities carried out by Nicaragua in the Border Area Certain Activities carried out by Nicaragua in the Border Area

Santiago Torres Bernárdez Antônio Augusto Cançado Trindade

Declaration

Order: Modificatio n of Provisional Measures Dissenting Opinion

Judge Buerguenthal Abdul G. Koroma Christopher J.R. Dugard Gilbert Guillaume Antônio Augusto Cançado Trindade Christopher J.R. Dugard

Appendix

442

Table 7-D. Composition of Chamber, Joinder of Proceedings and Counter-claims

Case

Order: Composition of Chamber

Order: Joinder of Proceedings

Order: Counterclaims

Declaration

Separate Opinion

Declaration

Application for Revision of the Judgment of 11 September 1992 in the Shigeru Oda Case concerning the Land, Island and Maritime Frontier Dispute Certain Activities carried out by Nicaragua in the Border Area

Antônio Augusto Cançado Trindade

Gilbert Guillaume

A Latin American Guide to the International Court of Justice Case Law 443

Table 8. Latin American Judges

Name

Country

Judge

President

Alejandro Alvarez

Chile

1946-1955

Andrés AguilarMawdsley

Venezuela

1991-1995

Antônio Augusto Cançado Trindade

Brazil

Bernardo Sepúlveda-Amor

Mexico

2006-2015

Eduardo Jiménez de Aréchaga

Uruguay

1970-1979

Enrique c. Armand-Ugon

Uruguay

1952-1961

Francisco Rezek

Brazil

1996-2006

Gonzalo ParraAranguren

Venezuela

1996-2009

Isidro Fabela

Mexico

1946-1952

José Gustavo Guerrero

El Salvador

1946-1958

1946-1949

José Luis Bustamante y Rivero

Peru

1961-1970

1967-1970

José Maria Ruda

Argentina

1996-1991

1988-1991

José Philadelpho de Barros e Azevedo

Brazil

1946-1951

José Sette-Camara

Brazil

1979-1988

VicePresident

2009 2012-2015 1976-1979

1949-1955

1982-1985

Appendix

444

Levi Fernandes Carneiro

Brazil

1951-1955

Lucio Manuel Moreno Quintana

Argentina

1955-1964

Luis Padilla Nervo Mexico

1964-1973

Ricardo Joaquin Alfaro

Panama

1959-1964

Roberto Córdova

Mexico

1955-1964

Mohamed Shahabuddeen

Guyana

1988-1997

1961-1964

A Latin American Guide to the International Court of Justice Case Law 445

Table 9. Latin American Ad Hoc Judges and Cases Judge Ad Hoc

Name

Country

Antônio Augusto Cançado Trindade

Brazil

Costa Rica

Bernardo Sepúlveda-Amor

Mexico

Mexico

Carlos Garcia Bauer

Guatemala

Guatemala

Party

Libyan Arab Jamahiriya Libyan Arab Jamahiriya Eduardo Jiménez de Aréchaga

Uruguay Libyan Arab Jamahiriya

Enrique c. Armand-Ugon

Uruguay

Spain

Felipe H. Paolillo

Uruguay

El Salvador

Case Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) Avena and Other Mexican Nationals (Mexico v. United States of America) Nottebohm (Liechtenstein v. Guatemala) Continental Shelf (Tunisia/Libyan Arab Jamahiriya) Continental Shelf (Libyan Arab Jamahiriya/Malta) Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya) Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962) Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:

Appendix

446

Nicaragua intervening) (El Salvador v. Honduras) Maritime Dispute (Peru v. Francisco Orrego Chile Chile Chile) Vicuña Arbitral Award Made by the King of Spain on 23 Francisco Urrutia Colombia Nicaragua December 1906 (Honduras Holguin v. Nicaragua) Continental Shelf (Libyan Jorge Castañeda Mexico Malta Arab Jamahiriya/Malta) Colombia Asylum (Colombia/Peru) Request for Interpretation of the Judgment of 20 José Joaquin Colombia November 1950 in the Colombia Caicedo Castilla Asylum Case (Colombia v. Peru) Haya de la Torre Colombia (Colombia v. Peru) Maritime Delimitation and Territorial Questions José María Ruda Argentina Qatar between Qatar and Bahrain (Qatar v. Bahrain) José SetteLibyan Arab Territorial Dispute (Libyan Brazil Camara Jamahiriya Arab Jamahiriya/Chad) Peru

Luis Alayza y Paz Soldán

Peru

Peru

Peru

Raúl Emilio Vinuesa

Argentina Argentina Ecuador

Mohamed Shahabuddeen

Guyana

Bahrain

Asylum (Colombia/Peru) Request for Interpretation of the Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru) Haya de la Torre (Colombia v. Peru) Pulp Mills on the River Uruguay (Argentina v. Uruguay) Aerial Herbicide Spraying (Ecuador v. Colombia) Maritime Delimitation and Territorial Questions

A Latin American Guide to the International Court of Justice Case Law 447

between Qatar and Bahrain (Qatar v. Bahrain) Indonesia

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia)

Appendix

448

Table 10. Latin American Judges and Cases Table 10-A. Separate Opinion Name

Separate Opinion

Alejandro Alvarez

Cofu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) Judgment of 25 March 1948 and Judgment of 9 April 1949 Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment of 20 April 2010 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) Judgment of 30 November 2010 Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand) Order of 18 July 2011

Antônio Augusto Cançado Trindade

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) Judgment of 19 June 2012 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) Judgment of 20 July 2012 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Order of 6 February 2013 Frontier Dispute (Burkina Faso/Niger) Judgment of 16 April 2013 Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) Order of 17 April 2013 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) Order of 17 April 2013

A Latin American Guide to the International Court of Justice Case Law 449

Request for Interpretation of the Judgment of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand) Judgment of 11 November 2013 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) Order of 22 November 2013 Questions relating to the Seizure and Detention of Certain Documents and Data (Timor--Leste v. Australia) Order of 3 March 2014 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Judgment of 31 March 2014 Questions relating to the Seizure and Detention of Certain Documents and Data (Timor--Leste v. Australia) Order of 22 April 2015 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) Judgment of 24 September 2015 Certain Activities carried out by Nicaragua in th Border Area/Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) Judgment of 16 December 2015 Avena and Other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004 Bernardo SepúlvedaAmor

Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua) Judgment of 13 July 2009 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) Order of 8 March 2011

Eduardo Jiménez de Aréchaga

Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan) Judgment of 18 August 1972

450

Appendix

Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Judgment of 25 July 1974 Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland) Judgment of 25 July 1974 Aegean Sea Continental Shelf (Greece v. Turkey) Order of 11 September 1976 Continental Shelf (Tunisia/Libyan Arab Jamahiriya) Judgment of 24 February 1982 Continental Shelf (Libyan Arab Jamahiriya/Malta) Judgment of 21 March 1984 Continental Shelf (Libyan Arab Jamahiriya/Malta) Judgment of 3 June 1985 Enrique c. Armand-Ugon

Aerial Incident of 27 July 1955 (Israel v. Bulgaria) Judgment of 26 May 1959

Francisco Orrego Vicuña

Maritime Dispute (Peru v. Chile) Judgment of 27 January 2014 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) Judgment of 27 February 1998

Francisco Rezek Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) Judgment of 27 February 1998 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Order of 8 December 2000

A Latin American Guide to the International Court of Justice Case Law 451

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Judgment of 14 February 2002 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of 11 July 1996 Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 12 December 1996 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) Judgment of 11 June 1998 Legality of Use of Force (Yugoslavia v. United States of America) Order of 2 June 1999

Gonzalo ParraAranguren

Legality of Use of Force (Serbia and Montenegro v. United Kingdom) Order of 2 June 1999 Legality of Use of Force (Yugoslavia v. Spain) Order of 2 June 1999 Legality of Use of Force (Serbia and Montenegro v. Portugal) Order of 2 June 1999 Legality of Use of Force (Serbia and Montenegro v. Netherlands) Order of 2 June 1999 Legality of Use of Force (Serbia and Montenegro v. Italy) Order of 2 June 1999 Legality of Use of Force (Serbia and Montenegro v. Germany) Order of 2 June 1999 Legality of Use of Force (Serbia and Montenegro v. France) Order of 2 June 1999

452

Appendix

Legality of Use of Force (Serbia and Montenegro v. Canada) Order of 2 June 1999 Legality of Use of Force (Serbia and Montenegro v. Belgium) Order of 2 June 1999 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) Order of 8 December 2000 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 16 March 2001 LaGrand (Germany v. United States of America) Judgment of 27 June 2001 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) Judgment of 10 October 2002 Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 6 November 2003 Avena and Other Mexican Nationals (Mexico v. United States of America) Judgment of 31 March 2004 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Judgment of 19 December 2005 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore) Judgment of 23 May 2008 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France) Judgment of 4 June 2008

A Latin American Guide to the International Court of Justice Case Law 453

Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962) Judgment of 24 July 1964 South West Africa (Liberia v. South Africa) Judgment of 18 July 1966 José Luis Bustamante y Rivero

South West Africa (Ethiopia v. South Africa) Judgment of 18 July 1966 North Sea Continental Shelf (Federal Republic of Germany/Netherlands) Judgment of 20 February 1969 North Sea Continental Shelf (Federal Republic of Germany/Denmark) Judgment of 20 February 1969 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962) Judgment of 5 February 1970 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Judgment of 25 July 1974 Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland) Judgment of 25 July 1974

José María Ruda

Aegean Sea Continental Shelf (Greece v. Turkey) Order of 11 September 1976 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Order of 4 October 1984 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Judgment of 26 November 1984 Continental Shelf (Libyan Arab Jamahiriya/Malta) Judgment of 3 June 1985

454

Appendix

Application for Revision and Interpretation of the Judgment of 24 February 1982 in the Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jamahiriya) Judgment of 10 December 1985 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Judgment of 27 June 1986 Continental Shelf (Libyan Arab Jamahiriya/Malta) Judgment of 3 June 1985 José SetteCamara

Lucio Manuel Moreno Quintana

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Judgment of 27 June 1986 Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) Judgment of 28 November 1958 North Sea Continental Shelf (Federal Republic of Germany/Netherlands) Judgment of 20 February 1969

Luis Padilla Nervo

North Sea Continental Shelf (Federal Republic of Germany/Denmark) Judgment of 20 February 1969 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) (New Application: 1962) Judgment of 5 February 1970

Ricardo Joaquin Temple of Preah Vihear (Cambodia v. Thailand) Alfaro Judgment of 15 June 1962 Roberto Córdova

Interhandel (Switzerland v. United States of America) Judgment of 21 March 1959

Mohamed Shahabuddeen

Border and Transborder Armed Actions (Nicaragua v. Honduras) Judgment of 20 December 1988

A Latin American Guide to the International Court of Justice Case Law 455

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) Order of 13 December 1989 Aerial Incident of 3 July 1988 (Islamic Republic of Iran v. United States of America) Order of 13 December 1989 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) Order of 2 March 1990 Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) Judgment of 12 November 1991 Passage through the Great Belt (Finland v. Denmark) Order of 29 July 1991 Passage through the Great Belt (Finland v. Denmark) Order of 29 July 1991 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) Order of 14 April 1992 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) Order of 14 April 1992 Certain Phosphate Lands in Nauru (Nauru v. Australia) Judgment of 26 June 1992 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) Judgment of 14 June 1993 Territorial Dispute (Libyan Arab Jamahiriya/Chad) Judgment of 3 February 1994 East Timor (Portugal v. Australia) Judgment of 30 June 1995

456

Appendix

East Timor (Portugal v. Australia) Judgment of 30 June 1995 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Order of 22 September 1995 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of 11 July 1996 Oil Platforms (Islamic Republic of Iran v. United States of America) Judgment of 12 December 1996

A Latin American Guide to the International Court of Justice Case Law 457

Table 10-B. Dissenting Opinion Name

Alejandro Alvarez

Dissenting Opinion Asylum (Colombia/Peru) Judgment of 10 November 1950 Anglo-Iranian Oil Co. (United Kingdom v. Iran) Judgment of 22 July 1952

Andrés AguilarMawdsley

Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) Judgment of 12 November 1991 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) Order of 28 May 2009 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) Order of 6 July 2010 Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) Judgment of 1 April 2011

Antônio Augusto Cançado Trindade

Territorial and Maritime Dispute (Nicaragua v. Colombia) Judgment of 4 May 2011 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) Order of 4 July 2011 Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) Judgment of 3 February 2012 Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) Order of 16 July 2013 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Judgment of 3 February 2015

458

Bernardo Sepúlveda-Amor

Appendix

Request for Interpretation of the Judgment of 31 March 2004 in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Mexico v. United States of America) Judgment of 19 January 2009 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Order of 18 August 1972

Eduardo Jiménez de Aréchaga

Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland) Order of 18 August 1972 Nuclear Tests (New Zealand v. France) Judgment of 20 December 1974 Nuclear Tests (Australia v. France) Judgment of 20 December 1974 Interhandel (Switzerland v. United States of America) Judgment of 21 March 1959

Enrique c. Armand-Ugon

Sovereignty over Certain Frontier Land (Belgium/Netherlands) Judgment of 20 June 1959 Right of Passage over Indian Territory (Portugal v. India) Judgment of 12 April 1960

Felipe H. Paolillo

Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras) Judgment of 18 December 2003

Francisco Orrego Vicuña

Maritime Dispute (Peru v. Chile) Judgment of 27 January 2014

Francisco Rezek

Kasikili/Sedudu Island (Botswana/Namibia) Judgment of 13 December 1999

Gonzalo ParraAranguren

Gabþíkovo-Nagymaros Project (Hungary/Slovakia) Judgment of 25 September 1997

A Latin American Guide to the International Court of Justice Case Law 459

Kasikili/Sedudu Island (Botswana/Namibia) Judgment of 13 December 1999 José Gustavo Guerrero

Certain Norwegian Loans (France v. Norway) Judgment of 6 July 1957

José Luis Bustamante y Rivero

Northern Cameroons (Cameroon v. United Kingdom) Judgment of 2 December 1963

José Philadelpho de Barros e Azevedo

Cofu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania) Judgment of 9 April 1949 Asylum (Colombia/Peru) Judgment of 10 November 1950 Continental Shelf (Libyan Arab Jamahiriya/Malta) Judgment of 21 March 1984

José Sette-Camara Territorial Dispute (Libyan Arab Jamahiriya/Chad) Judgment of 3 February 1994 Anglo-Iranian Oil Co. (United Kingdom v. Iran) Judgment of 22 July 1952

Levi Fernandes Carneiro

Rights of Nationals of the United States of America in Morocco (France v. United States of America) Judgment of 27 August 1952 Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America) Judgment of 15 June 1954

Lucio Manuel Moreno Quintana

Sovereignty over Certain Frontier Land (Belgium/Netherlands) Judgment of 20 June 1959 Right of Passage over Indian Territory (Portugal v. India) Judgment of 12 April 1960

460

Appendix

Temple of Preah Vihear (Cambodia v. Thailand) Judgment of 15 June 1962 South West Africa (Liberia v. South Africa) Judgment of 18 July 1966 South West Africa (Ethiopia v. South Africa) Judgment of 18 July 1966 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Judgment of 2 February 1973

Luis Padilla Nervo

Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Order of 17 August 1972 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Order of 17 August 1972 Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland) Order of 17 August 1972 Fisheries Jurisdiction (United Kingdom of Great Britain and Northern Ireland v. Iceland) Judgment of 2 February 1973

Raúl Emilio Vinuesa

Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgment of 20 April 2010

Roberto Córdova

Application of the Convention of 1902 Governing the Guardianship of Infants (Netherlands v. Sweden) Judgment of 28 November 1958

Mohamed Shahabuddeen

Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) Order of 28 February 1990

A Latin American Guide to the International Court of Justice Case Law 461

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 15 February 1995

Table 10-C. Individual Opinion Name Alejandro Alvarez Levi Fernandes Carneiro

Individual Opinion Fisheries (United Kingdom v. Norway) Judgment of 18 December 1951 Ambatielos (Greece v. United Kingdom) Judgment of 1 July 1952 Minquiers and Ecrehos (France/United Kingdom) Judgment of 17 November 1953

Appendix

462

Table 10-D. Declaration Name

Declaration Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) Order of 14 April 1992

Andrés AguilarMawdsley

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) Order of 14 April 1992 Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) Judgment of 14 June 1993 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) Judgment of 30 November 2010 Territorial and Maritime Dispute (Nicaragua v. Colombia) Judgment of 4 May 2011

Antônio Augusto Cançado Trindade

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) Order of 20 September 2011 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) Order of 1 July 2015

Bernardo Sepúlveda-Amor

Maritime Dispute (Peru v. Chile) Judgment of 27 January 2014 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland) Order of 17 August 1972

Eduardo Jiménez de Fisheries Jurisdiction (United Kingdom of Great Aréchaga Britain and Northern Ireland v. Iceland) Order of 17 August 1972 Nuclear Tests (New Zealand v. France) Order of

A Latin American Guide to the International Court of Justice Case Law 463

22 June 1973 Nuclear Tests (Australia v. France) Order of 22 June 1973 Nuclear Tests (New Zealand v. France) Order of 20 December 1974 Nuclear Tests (Australia v. France) Judgment of 20 December 1974 Nuclear Tests (Australia v. France) Order of 20 December 1974 Gabþíkovo-Nagymaros Project (Hungary/Slovakia) Judgment of 25 September 1997 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) Judgment of 10 October 2002 Francisco Rezek

Application for Revision of the Judgment of 11 July 1996 in the Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections (Yugoslavia v. Bosnia and Herzegovina) Judgment of 3 February 2003 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) Judgment of 23 October 2001

Gonzalo ParraAranguren

Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras) Judgment of 8 October 2007 Territorial and Maritime Dispute (Nicaragua v. Colombia) Judgment of 13 December 2007 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Judgment of 18 November 2008

464

Appendix

Certain Norwegian Loans (France v. Norway) Judgment of 6 July 1957 Lucio Manuel Moreno Quintana

Ricardo Joaquin Alfaro

Mohamed Shahabuddeen

Arbitral Award Made by the King of Spain on 23 December 1906 (Honduras v. Nicaragua) Judgment of 18 November 1960 Temple of Preah Vihear (Cambodia v. Thailand) Judgment of 26 May 1961 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain) Judgment of 1 July 1994 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) Order of 15 March 1996

A Latin American Guide to the International Court of Justice Case Law 465 1. Contentious cases by Region

Region of Applicant States North America 8% Middle East 3%

Oceania 4% Africa 20% Asia 6%

Latin America 20%

Europe 39%

North Region of Defendant States Oceania America 3% 8% Middle East Africa 4% 14% Asia 8% Latin America 18% Europe 45%

Appendix

466

2. Contentious cases by Region and Year of Submission 15 12 9 6 3 0 1947 1953 1958 1967 1976 1982 1987 1991 1995 2000 2004 2009 2014 Africa Europe Middle East Oceania

Asia Latin America North America

Latin America 4 3 2 2 1 0 1947

1954

1960

1973

1982

1988

1993

1999

2004

2010

A Latin American Guide to the International Court of Justice Case Law 467 3. Contentious cases involving Latin American States

Latin American Applicant States

Commonwealth of Dominica 4% Paraguay 4%

Colombia 9%

El Salvador 4% Argentina 4%

Nicaragua 35%

Peru 4% Ecuador 4%

Mexico 9% Honduras 9%

Costa Rica 9%

Bolivia 5%

Latin American Defendant States Uruguay Brazil 5% 5% Peru 9% Colombia 18%

Honduras 14%

Guatemala 4% Argentina 4%

Chile 14%

Costa Rica 9%

Nicaragua 18%