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?
Turning first to the Continental Shelf beyond 200 NM case. Colombia raised five preliminary objections to the Court’s jurisdiction, arguing that: 1) there was no jurisdiction ratione temporis under the Pact of Bogota because Nicaragua “instituted proceedings on 16 September 2013, after Colombia’s notice of denunciation became effective on 27 September 2012”; 2) the Court had no ‘continuing jurisdiction’ having already fully dealt with Nicaragua’s claims in the 2012 Judgment; 3) Nicaragua’s claim is barred by res judicata; 4) Nicaragua’s claim attempts to appeal and revise the Court’s 2012 Judgment; and 5) Nicaragua’s requests were inadmissible because the Commission on the Limits of the Continental Shelf had not yet made recommendations to Nicaragua with respect to its claimed outer continental shelf and as such, no delimitation issue was pending before the Court. [Continental Shelf beyond 200 NM Judgment on Preliminary Objections, para. 15.]
In its Judgment on Preliminary Objections, the Court unanimously rejected the first objection, finding that the Colombian denunciation had not yet been effective according to the 1-year period indicated in Article LVI of the Pact of Bogota, by the time Nicaragua filed its Application. [Continental Shelf beyond 200 NM Judgment on Preliminary Objections, para. 46 in relation to para. 126 dispositif]. It then went on to unanimously find that there was no ground to rule upon the second objection [see para. 126(1)(d) dispositif]. The third objection was rejected on a split vote (8-8), finding, among others, that while “the Court decided, in subparagraph 3 of the operative clause of the 2012 Judgment, that Nicaragua’s claim could not be upheld, it did so because the latter had yet to discharge its obligation, under paragraph 8 of Article 76 of UNCLOS to deposit with the CLCS the information on the limits of its continental shelf beyond 200 nautical miles required by the provision and by Article 4 of Annex II of UNCLOS” [see Continental Shelf beyond 200 NM Judgment on Preliminary Objections para. 84 in relation to para. 126]. The court thus “did not settle the question of delimitation in 2012 because it was not, at that time, in a position to do so.” (see para. 85.) Since Nicaragua did not seek a “revision” of the 2012 Judgment but apparently a matter left undecided by the Court (notwithstanding the plain letter of its operative clause dispositif), the Court also rejected the fourth objection unanimously. The Court then voted 11-5 to reject the fifth preliminary objection but unanimously upheld Colombia’s objection insofar as Nicaragua’s Second Request.
As a result of its Judgment on Preliminary Objections in this case, the Court will thus proceed to the merits only on Nicaragua’s first Request, namely, to delimit the continental shelf boundary, beyond the single maritime and continental shelf boundary set by the Court in its 2012 Judgment. This finding itself invites future uncertainty over the finality and stability of a “single maritime boundary” which does include continental shelf boundaries that the Court had, in many years of its own practice, treated as a matter for final adjudication in cases such as Gulf of Maine (between the United States and Canada), Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean (between Nicaragua and Honduras), Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (between Qatar and Bahrain), Maritime Delimitation in the Black Sea (between Romania and Ukraine), among others. Considering the unequivocal language adopted by the Court in the dispositif in its 2012 Judgment (and the Court’s admission in its 2016 Judgment on Preliminary Objections that it did not, at that time, examine evidence on the claimed continental shelf beyond 200 NM – see paras. 82-84 of the Continental Shelf beyond 200 NM Judgment on Preliminary Objections), one certainly wonders whether the Court will open itself to reopening other settled ‘single maritime boundary’ delimitations on the basis of similar evidentiary oversight (or lack thereof) by the parties or the Court. Certainly this lends at least either the perception of a somewhat ‘revisionist’ resonance to the evidence marshaled by parties and accepted by the Court in single maritime boundary delimitation cases, or alternatively, the perception that the Court admitted imprecision in the drafting of its judgments of single maritime boundary delimitations.
Turning now to the Sovereign Rights and Maritime Spaces Violations case, one encounters some parallels. Colombia also raised five preliminary objections, with a few similar to those it raised in the Continental Shelf beyond 200 NM case: 1) no jurisdiction ratione temporis since proceedings were instituted by Nicaragua after Colombia filed its notice of denunciation; 2) absence of a dispute between the parties as of the date of the filing of the application; 3) Nicaragua had not tried to settle the dispute through diplomatic negotiation as required in the Pact of Bogota; 4) the Court does not have any “inherent jurisdiction” that would enable it to pronounce on alleged non-compliance with its previous judgment; and 5) the Court does not have jurisdiction with regard to compliance with a prior judgment, which is the real subject-matter of Nicaragua’s claims. (Sovereign Rights and Maritime Spaces Violations Judgment on Preliminary Objections, para. 17). Similar to its Judgment on Preliminary Objections in the Continental Shelf beyond NM case, the Court unanimously rejected Colombia’s first objection and found no ground to rule on the fourth objection. The Court rejected both the third and fifth preliminary objections on a 15-1 vote. It also rejected Colombia’s second preliminary objection insofar as the existence of a dispute on regarding Colombia’s alleged violations of Nicaragua’s sovereign rights in maritime zones, but upheld the objection insofar as the alleged existence of a dispute on the basis of alleged Colombian use or threat of use of force. The case will therefore proceed on the merits only insofar as the alleged Colombian violations of Nicaragua’s sovereign rights in maritime zones. (see Sovereign Rights and Maritime Spaces Violations Judgment on Preliminary Objections, para. 111 dispositif). The Court implicitly differentiated Nicaragua’s application from its 2012 Judgment, finding that the alleged maritime incidents occurring after the 2012 judgment involved Colombia’s “continued [exercise of] jurisdiction in the maritime spaces that Nicaragua claimed as its own on the basis of the 2012 Judgment”. [Sovereign Rights and Maritime Spaces Violations Judgment on Preliminary Objections, para. 71.] In regard to the fifth objection alleging that recourse to the Court was not a legally correct alternative to enforcing ICJ judgments through the Security Council under Article 94(2) of the UN Charter, the Court’s pronouncement was cryptic, if not somewhat circular (considering that Nicaragua’s own application expressly referred to rights in maritime zones defined under the Court’s 2012 Judgment):
“109. Colombia’s fifth preliminary objection rests on the premise that the Court is being asked to enforce its 2012 Judgment. The Court agrees with Colombia that it is for the Court, not Nicaragua, to decide the real character of the dispute before it (see paragraph 51 above). Nevertheless, as the Court has held (see paragraph 79 above), the dispute before it in the present proceedings concerns the alleged violations by Colombia of Nicaragua’s rights in the maritime zones which, according to Nicaragua, the Court declared in its 2012 Judgment appertain to Nicaragua. As between Nicaragua and Colombia, those rights are derived from customary international law. The 2012 Judgment of the Court is undoubtedly relevant to that dispute in that it determines the maritime boundary between the Parties and, consequently, which of the Parties possesses sovereign rights under customary international law in the maritime areas with which the present case is concerned. In the present case, however, Nicaragua asks the Court to adjudge and declare that Colombia has breached “its obligation not to violate Nicaragua’s maritime zones as delimited in paragraph 251 of the Court[’s] Judgment of 19 November 2012 as well as Nicaragua’s sovereign rights and jurisdiction in these zones” and “that, consequently, Colombia has the obligation to wipe out the legal and material consequences of its internationally wrongful acts, and make full reparation for the harm caused by those acts” (see paragraph 12 above). Nicaragua does not seek to enforce the 2012 Judgment as such. The Court is not, therefore, called upon to consider the respective roles accorded to the Meeting of Consultation of Ministers of Foreign Affairs (by Article L of the Pact of Bogotá), the Security Council (by Article 94, paragraph 2, of the Charter) and the Court.” (Emphasis added.)
Following from the Court’s idiosyncratic pronouncement above, it might appear that framing a continuing duty to make reparations from breach of rights declared in maritime zones would now be sufficient (at least under the present Judgment) for the Court to take the case on the merits, rather than refer the parties to enforcement proceedings at the Security Council under Article 94(2) of the UN Charter. This shades a traditional understanding of the Security Council’s exclusive authority to enforce ICJ judgments, which contemplates “all measures which are necessary and proportionate for giving effect to the judgment…[including] coercive measures.” [Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm, Christian J. Tams (eds.), The Statute of the International Court of Justice: A Commentary (2nd ed.), at p. 1443.] At the very least, one has to question the formerly comprehensive scope of enforcement of ICJ judgments that is envisaged exclusively for the Security Council, when the Court now perplexingly appears to accept a broad (if not amorphously defined) form of reparations that somehow includes allegations of breaches arising from a State’s ‘continued’ exercise of jurisdiction over maritime zones defined in an ICJ judgment.
The Court’s 17 March 2016 Judgments on Preliminary Objections in the two Nicaragua v. Colombia cases are not, in a strict sense, matters that involve the legal question of concurrent jurisdiction between the Court and the Security Council’s Chapter VII powers (e.g. recalling how the United States argued in Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, para. 40, that Libya’s seisin of the Court was meant to ‘undo the Security Council’s actions’ under its resolutions 731, 748, and 883). However, the 17 March 2016 Judgments do lend direct insight into how today’s Court analytically regards what had been a strict UN Charter rule in Article 94(2) for enforcing ICJ judgments, vis-à-vis permitting creatively formulated ‘new’ claims that could potentially disrupt or disturb its maritime delimitation rulings. We are certainly in new theoretical territory that shades Security Council ‘enforcement’ with ‘new claims’ before the World Court.