The International Court of Justice simultaneously issued two intriguing judgments on 17 March 2016, both involving applications filed by Nicaragua against Colombia, and both of which have some nexus to the Court’s 19 November 2012 Judgment in Territorial and Maritime Dispute (Nicaragua v. Colombia). To recall, the Court in its 2012 Judgment had affirmed Colombia’s sovereignty over seven islands, drawn a single maritime boundary delimiting the continental shelf and exclusive economic zones of Nicaragua and Colombia, and rejected Nicaragua’s request to have Colombia declared in breach of international law for allegedly denying Nicaragua’s access to natural resources to the east of the 82nd meridian. (2012 Judgment, dispositif, para. 251)
Thereafter, Nicaragua instituted two Applications on matters appearing to flow from, but alleged to be extraneous to, the Court’s 2012 maritime delimitation Judgment. In its 2013 Application in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) [hereafter, “Application on Sovereign Rights and Maritime Spaces Violations”], Nicaragua alleged, among others, that Colombia violated Nicaragua’s rights pertaining to maritime zones defined under the Court’s 2012 maritime delimitation Judgment and that Colombia had also breached the obligation not to use or threaten to use force. On the other hand, in its 2013 Application in Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) [hereafter, “Continental Shelf beyond 200 NM Application”], Nicaragua requested the Court to declare “the precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to them beyond the boundaries determined by the Court in its Judgment of 19 November 2012” [hereafter, “first Request”], as well as “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 boundary between them beyond 200 nautical miles from Nicaragua’s coast.” [hereafter, “second Request”] (Continental Shelf beyond 200 NM Application, para. 12).
At the core of Colombia’s preliminary objections in both cases was the argument that the Court had already resolved the alleged matters in the 2012 Judgment, and accordingly, incidents related to these matters thereafter ought to be enforced under the canonical rule in Article 94(2) of the UN Charter (“[i]f 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.”). Nicaragua’s theory was essentially based on the characterization of fresh disputes with Colombia that may have some factual/legal nexus with the 2012 Judgment, but were, ultimately, left undetermined or outside the purview of the 2012 Judgment. It is highly interesting to see how this theory mainly prevailed in the Court’s 17 March 2016 Judgment on Preliminary Objections in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) [hereafter, “Sovereign Rights and Maritime Spaces Violations Judgment on Preliminary Objections”] and its 17 March 2016 Judgment on Preliminary Objections in the Question of the Delimitation of the Continental Shelf Between Nicaragua and Colombia Beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia) [hereafter, “Continental Shelf beyond 200 NM Judgment on Preliminary Objections”]. The Court’s unprecedented acceptance of jurisdiction for certain claims in both of these Nicaraguan applications certainly provoke new lines of inquiry on lines of demarcation between issues of enforcement of the Court’s judgments, and related but separate claims that could be instituted fresh with the Court, without triggering the rule on enforcing ICJ judgments through the more political forum of the Security Council. How was the Court able to assume jurisdiction in these cases, and what do these decisions bode for the settled rule on the finality of the Court’s judgments?