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International Law

Nicaragua vs. Colombia 19 Dec 2012

Background to the Case

The case was initiated by Nicaragua in December 2001. Seventy-three years earlier, the 1928
Barcenas-Esguerra Treaty had dealt with issues of sovereignty of islands in the region and for some
time after that there was no obvious dispute between the two States. There were certainly no
maritime boundary issues because, in 1928, the only cause for such would have been a dispute over
overlapping claims to three nautical mile territorial seas; the islands were so far offshore (over 100
nautical miles) that this was simply not an issue – or regarded as potentially so.

On the basis of its interpretation of the 1928 treaty, Colombia exercised sovereignty over several
islands that were in very much closer proximity to the Nicaraguan coast than they were to
Colombia’s. Three island groups in particular – San Andres, Providencia and Santa Catalina – were
habitable islands that were expressly dealt with in the 1928 treaty. Today they are important tourist
destinations in the region. San Andres (pop: 70,000) is just over 100 nautical miles from the
Nicaraguan coast, while Providencia (pop: 5,000) and Santa Catalina are about 50 nautical miles to
the north east of San Andres and about 125 nautical miles from the Nicaraguan coast. All three
islands are in the region of 380 nautical miles from the Colombian coast. Two other physical
features located to the north of San Andres, Providencia and Santa Catalina – Quitasueňo and
Serrana – are very low lying, uninhabited banks or cays that were not expressly covered by the
provisions of the 1928 treaty but which Colombia has always since then regarded as its
territory. There was, though, some doubt as to the extent to which Quitasueno remained dry at high
tide, a factor that the Court was required to consider. If it remained above sea level at high tide, it
would be classed as an island and would generate a territorial sea – although almost certainly not an
EEZ, as to do so it would need to be able to sustain human habitation or economic life under Article
121(3) of the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS). If it was
submerged at high tide it would not qualify for island status, would not be appropriable as sovereign
territory, and could not, therefore, generate a territorial sea or any other jurisdictional zone.

At the time the 1928 treaty was negotiated, the potential for substantial resource exploitation in the
waters between the two States had not been a consideration and had not influenced the terms of the
treaty. The islands claimed by Colombia generated a three mile territorial sea but Colombian
sovereignty over them had relatively little geo-political, legal or, indeed, economic, impact on the
region. As the resources of the continental shelf emerged as a significant factor shaping the law of
the sea in the second half of the twentieth century, however, the terms of the 1928 treaty
increasingly came to be seen by Nicaragua as disadvantageous. Colombian sovereignty over the
islands would have substantial impact as newly extended coastal state jurisdiction was
established. The location of the islands had the potential greatly to restrict the extent of Nicaraguan
continental shelf and exclusive economic claims while at the same time giving Colombia a
disproportionately large area of jurisdiction. Nicaragua came to regard the situation as inequitable in
the new era of extended jurisdiction and maritime resource exploitation, especially given the fact that
the islands at the heart of the dispute were three times as distant from the Colombian mainland as
they were from the Nicaraguan. The latter began to challenge Colombian sovereignty of the islands.
The result was that the claims of both States to continental shelf and exclusive economic jurisdiction
overlapped significantly and the dispute intensified as the potential for economic exploitation

In very general terms, this is the historical background to the dispute (more detail can be found in the
Court’s Judgement and in the papers presented by both sides during the case.) Nicaragua took the
case to the ICJ confident that the Court would award it sovereignty over key islands. It then
expected the Court to define a maritime boundary using Nicaraguan sovereignty of the islands to
establish its continental shelf and exclusive economic zone (EEZ) in substantial areas previously
claimed by Colombia. Colombia, on the other hand, while reluctant to place the dispute with the
Court, was anticipating a rejection of Nicaraguan claims for sovereignty over the islands, which it
assumed would leave the Colombian claimed continental shelf and EEZ largely intact.

The Progress of the Case and the Court’s Judgement

The Court took seventeen days short of eleven years to reach its Judgement. One might ask why it
took so long. The answer lies in a combination of procedural requirements, the need for the Court
initially to consider its own jurisdiction before moving on to the merits of the dispute itself, and
technical complexities.

Following Nicaragua’s filing of its Application in 2001, there followed the usual promulgation by the
Court of deadlines for the submission of the Nicaraguan Memorial and the Colombian Counter-
Memorial; these were set for April and June 2003 respectively. In July 2003, however, Colombia
raised preliminary objections as to the Court’s jurisdiction and the proceedings on the merits were
duly suspended. Public hearings on the preliminary objections were held in June 2007 and the
Court handed down its judgement on these in December that year. With one important exception
(see below), it concluded that it did have jurisdiction to adjudicate on the dispute.

Colombia was then given a new deadline of 11 November 2008 to submit its Counter-Memorial on
the merits. This was met and there followed a further round of deadlines for a Nicaraguan Reply (18
September 2009) and a Colombian Rejoinder (18 June 2010). Public hearings on the merits were
eventually held between 23 April and 4 May 2012, with the Judgement handed down six months

Maritime boundary disputes are frequently complicated by technical factors and this was certainly
true in this case, in which hydrographic evidence concerning maritime features and tidal effects was
submitted to the Court by both parties. Their representatives in the proceedings included both legal
counsel and scientific and technical advisers, and each party challenged the other’s scientific and
technical methodologies in the process. The principal technical issues in focus in relation to the
question of sovereignty were to do with whether or not certain physical features qualified as islands
or cays, or were merely raised banks that only dried at some point below high tide. The precise
physical characteristics of the features and of the tides that affected them were important in
determining whether or not it was possible for either State to claim them as territory and whether
they would then, as a consequence, generate extensions of coastal state jurisdiction (territorial
jurisdiction, exclusive economic jurisdiction, or jurisdiction over the continental shelf). Following the
determination of sovereignty, further technical details were to do with the construction of the single
maritime boundary delimiting the two States’ continental shelves and EEZs.
While the time taken to reach the Judgement following Nicaragua’s initiation of the case may appear
unduly excessive to those unfamiliar with the ICJ’s proceedings, it was by no means unusual, and
the technical issues were also complex. The time was necessary for all of the details of the case to
be thoroughly researched and presented and then analysed by the Court.

Nicaragua submitted the dispute to the ICJ to achieve two objectives: first, a ruling that it has
sovereignty of various islands and cays located between Nicaragua and Colombia; and, second, the
delimitation by the Court of the maritime boundary between the two States. One can see that
Nicaragua wished to be granted sovereignty of certain islands in order to maximise the extent of its
continental shelf and exclusive economic zone – the islands having a potentially significant influence
on the extent of the resource zones that would be partially generated by them.

While the case was reasonably complex at the technical level, we need only briefly state its
outcome. The result was somewhat unexpected from the point of view of both parties. To start with,
the Court had concluded in its Judgement on Colombia’s Preliminary Objections that it had no
jurisdiction to consider Nicaragua’s claim to the islands of San Andres, Providencia and Santa
Catalina because sovereignty had been determined in Colombia’s favour by the 1928 treaty. In
effect, it was ruling in favour of Colombian claims to sovereignty over the islands. It also confirmed
Colombian sovereignty over various other islands, including Quitesueno and Serrana. What it then
went on to do was acknowledge the need, for reasons of equity, to grant no significance to
Quitesueno and Serrana in relation to delimitation of the continental shelf or EEZ. While Colombia
has the right to a 12 nautical mile territorial sea around these islands, it has no prospect of relying on
them to generate either a continental shelf or an EEZ. The islands were effectively left as Colombian
territorial enclaves within the Nicaraguan continental shelf and EEZ. While welcoming the Court’s
decision over sovereignty, Colombia effectively lost the case in the final analysis because of the
extensive sea area (approximately 30,000 square miles of ocean) it lost as a result of the ruling.
October 9, 1998
Judges Stephen M. Schwebel, Rosalyn Higgins, Dr. Ahmed S. El-Kosheri, Keith Highet
Sir Robert Y. Jennings, Presiding
Rañeses, Roberto Miguel O.
*The case is in article format. The regular digest format is, therefore, inapplicable.
** Please refer to the quoted provisions and block quotes have not been included. Pages of such quotes in the original were
indicated instead for easy reference.

The Controversy
In an “Agreement on Principles” of May 21, 1996, Eritea and Yemen agreed to renounce the use of force against
each other and “to settle their dispute on questions of territorial sovereignty and of delimitation of maritime
borders peacefully.”

The agreement implemented a two-stage process contemplated in the agreement on principles.

1. FIRST STAGE – The tribunal was to “decide territorial sovereignty [over the disputed islands in the
Red Sea], in accordance with the principles, rules and practice of Int’l law applicable to the matter, and
on the basis, in particular, of historic titles.
2. SECOND STAGE – The tribunal was to “issue an award delimiting maritime boundaries … taking into
account the opinion that it will have formed on questions of territorial sovereignty, the [UNCLOS], and
any other pertinent factor.”

While the text is extremely thorough, it is also a frustrating document:

1. Written by many hands such that its components and theories are internally inconsistent.
2. The bulk of the award which reviews the parties’ submissions is dismissive of their evidence
(“voluminous in character but… sparse in useful content,” according to the tribunal).
a. Such paucity, according to the Tribunal, may have been due to the fact that the disputed isands
are “uniformly attractive, unattractive, waterless, and habitable only with great difficulty.
b. Furthermore, both states were in civil wars during the arbitration proceedings.
The parties acknowledged (and the Tribunal accepted) that the Ottoman Empire had title to the islands.
1. How the Osmanlis secured and maintained title are not specified, presumably they were neither by
succession nor effective occupation.

Eritea claimed territorial sovereignty over all the islands by virtue of Italian sovereignty.
1. It was acquired by effective occupation sometime after Turkish renunciation.
2. Italian title was transferred to Ethiopia and, upon its accession to independence in 1993, Eritea
succeeded to it.

Temen based its claim on “original, historic or traditional Yemeni title,” from the 6 th century.
1. Ttitle was recognized by Yemen’s integration into the Ottoman Empire and “reverted: to Yemen upon
the empire’s demise.

Both Eritea and Yemen adduced evidence of more recent demonstrations of sovereignty, including Petroleum
exploration agreements and sovereignty.

Eritea contended that the scope of the dispute included the northern islands of Jabal al-Tayr and the Zubayr
group. Yemen disagreed, so Art. 2(2) of the Arbitration agreement requested the Tribunal to resolve the
1. The Tribunal took note of the possible discrepancy between the agreement on principles and the
arbitration agreement (in which case the latter would prevail).
2. However, it relied on the final sentence of Art. 2(2) of the arbitration agreement: “The Tribunal shall
decide on the definition of the scope of the dispute on the basis of the respective positions of the two
a. It held that all islands came within the scope of the dispute, reasoning that the parties’
positions at the time of the arbitration agreement “should form the basis for the determination
by the tribunal of the scope of the dispute.”
b. This, according to the author, is a curiously passive posture with respect to the matter in dispute.
i. The competence assigned to the Tribunal to make the decision was surrendered to
the broadest submission of one of the parties, for, in the nature of the situation, the
other party will always have to defend against it, if only for a special or conditional

In response to Yemen’s invocation of the doctrine of uti possidetis, the Tribunal wavered, doubting the law, but
giving some effect to Ottoman allocations of jurisdiction.
1. The factual predicate for the application of uti possidetis was a clear source of where the administrative
boundaries of the Ottoman Empire were located, which was the question at bar.
2. While skirting “the question whether the doctrine of uti possidetis, at the time thought of as essentially
one applicable to Latin America, could properly be applied to interpret a juridical question arising in
the Middle East shortly after the close of [WWI],” The Tribunal seemed to apply a type of uti possidetis
when it found that “even when the whole region was under Ottoman rule it would was assumed that
the powers of jurisdiction and administration over the islands should be divided between the two
opposite coasts.”

The Tribunal was rather defensive with respect to the information It had solicited regarding petroleum
agreements and explorations undertaken under the auspices of the respective parties.
1. Yemen contended that it was not relevant in the first phase of the arbitration and expressed concern
that it was being used to “prefigure… a median line.”
a. The Tribunal assured the parties that “no member of the of the Tribunal had mentioned equity
or equitable principles.”
i. As a general matter, however, it stated that it could not “accept the proposition that
the int’l law governing land territory and the int’l law governing maritime boundaries
are not only different but also discrete and bear no juridical relevance to each other.”
ii. The Tribunal insisted still that there could not be any question of drawing any
maritime boundary line based on equitable principles in the arbitration’s first stage.

The Tribunal rejected Yemen’s argument for a reversion of title on the basis of law and facts.
1. Yemen had not established that the doctrine was part of international law.
2. Yemen had not persuaded the Tribunal that the historic bilad el Yemen had exercised territorial control
over coastal areas and perforce over the islands.
3. In any case, because the Ottoman Empire would have had title to the Islands and the Treaty of
Lausanne could have validly alienated that title, the chain of title necessary for a reversion would have
been interrupted.
4. In a shadowy application of the doctrine of uti possidetis, the Tribunal did take account of the exercise of
“jurisdiction” which could constitute “historic fact.”
a. The allocation of administrative powers over the Red Sea islands during the Osmanli period
was one such historic fact.

Sovereign title includes the capacity to alienate. Hence the successor to the Ottoman Empire was able to
alienate the islands as it did in the treaty of Lausanne’s Art. 16. [p. 670].
1. All the contested islands, according to the Tribunal were covered by such provision, despite
“intermittent acceptance that [some] were under the jurisdiction of Italy” and had “erga omnes effect.

As regards Yemen’s contention that the Lausanne treaty was res inter alios acta, the Tribunal said:

[t]his special category of treaties also represents a legal reality which necessarily impinges upon the third states,
because they have effect erga omnes. If State A has title to territory and passes it to State B, then it is legally without
purpose for State C to invoke the principle of res inter alios acta, unless its title is better than that of A (rather than
of B). In the absence of such better title, a claim of res inter alios acta is without legal import.
Yemen’s protests could have no effect on this alienation, as Yemen did not have title.

At the core of the Tribunal’s award is a reading of At. 16 of the Lausanne Treaty:

in 1923 Turkey renounced title to those islands over which it had sovereignty until then. They did not become res
nullius – that is to say, open to acquisitive prescription – by any state, including any of the High Contracting Parties
(including Italy). Nor did they automatically revert (insofar as they had ever belonged) to the Imam [Yemen].
Sovereign title over them remained indeterminate pro tempore.

In its view, the Tribunal was confirmed by the 1927 “Rome Conventions” which produced a signed record and
by the 1938 Anglo-Italian Agreement and Protocol, especially Art. 4 of Annex III., which had the effect of
depriving Italian actions of legal and title-generating force in the contested islands.
1. Arguably, such actions would have otherwise signified or constituted effective occupation.

This negative analysis of Art. 16 does not answer the question of who is the territorial sovereign of the contested
islands, but rather who was not the territorial sovereign and therefore could not pass title to a putative successor.
1. The analysis is oddly incomplete.
a. The Tribunal does not explain when and why Art. 16’s suspensive force ceased, such that the
Tribunal and the parties before it could determine only by reference to alleged effectivités of
Eritea and Yemen and without the participation of all the “parties concerned (e.g. states whose
ships traverse the Red Sea and are parties to the Lighthouse Convention, and also include the
UK, France, Ethiopia, Russia, Israel and the US).
b. If the class “parties concerned” is this large, then the relevance of may bilateral judicial and
arbitral precedents is called into question.

The tribunal concluded that Italy could not make q claim that it had title over the islands in dispute.
1. It is curious that the Tribunal interprets Art. 23 of the 1957 Peace Treaty as not merely relinquishing
its rights to participate as a “concerned party” in the disposition of the islands under Art. 16 of the
Treaty of Lausanne, but also as a renunciation of claims of Italy to the islands.
2. If Turkey had title until 1923, whereupon Art. 16 deprived Italian effectivités of legal effect, what
substantive Italian title was being renounced?
3. In the view of the Tribunal, the indeterminate status of the island was confirmed by a 1949 UN Working
Paper in connection with the preparation of the draft Eritrean Constitution.

With respect to the lighthouses on some of the contested islands, the Tribunal held that “[b]y the outreak of
[WWII] it may be said that the maintenance of the lights is seen as a non-sovereign act and there is agreement
that the underlying title to the islands concerned was left in abeyance.”
1. In this regard, various Ethiopian activities were immaterial to sovereignty.
2. Yet because “by the early 1970s Yemen was regarded by the [UK] as the leading party concerned for
purposes of Art. 16 of the Treay of Lausanne, at lest so far Abu Ali and Jabal al-Tayr were concerned,”
the fact that Yemen relit the lighthouse in 1987 was an act not “without significance by virtue of Art.
16 of the [said treaty].” As a legal matter:

The erection and maintenance of lights, outside of any treaty arrangements and for the indefinite future,
had certain implications. The acceptance of Yemen’s offer did not constitute recognition of Yemen
sovereignty over islands. But it did accept the reality that Yemen was best placed, and was willing, to
take on the role of providing and managing lights in that part of the Red Sea; and that when the time
came finally to determine the status of those islands Yemen would certainly be a “party concerned.”

Despite the fact that the Tribunal’s theory was based on a reading of Art. 16 that deprived manifestations of
sovereignty of acquisitive force, almost 1/3 of its opinion assesses the quality of the parties’ factual evidence
of alleged effectivités.
1. The tribunal found that legislative and constitutional acts by both parties lacked specific reference to
the islands by name.
2. It also found that “the activities of the parties in relation regulation of fishing allow no clear conclusion
to be drawn.”
3. It did not find that Ethiopian naval patrols were directed at fishing regulation, but concluded that there
was somewhat greater Yemeni in the granting of permission related to the islands.
4. No evidence of publication of general information regarding pilotage or maritime safety by Eritrea. On
the other hand, Yemen published six notices.
a. While not dispositive of the title, it supposes a presence and knolwdge of location.
5. It discounted the maintenance of the lighthouses, it took note of the placement of markers.
6. No manifestations may be inferred from SAR operations because they are a generalized duty
incumbent on any person or vessel.
7. It found sparse and inconsistent evidence of the maintenance of naval and coast guard patrols in the
waters around the islands on behalf of both parties.
a. However, from 1983-1991, it found “widespread surveillance and military reconnaissance
activities in the waters around the islands” by the Ethiopian Navy.
b. Yemen, on the other hand, conducted very few similar activities in the area.
i. They did not protest the Ethiopian presence, nor were permanent garrisons or
military posts were established in the islands until after 1995.
8. No legal significance can be ascribed to private fishing activities without evidence of state licensing
and enforcement.
a. State activity was the critical factor.
9. The maintenance of shrines and holy places was not deemed critical evidence, unless it was a
governmental activity.
10. Intentions with respect to governmental investment activity were, apparently, allowed some probative
11. The regulation of electronic equipment on the islands in the course of military activities was not
viewed as an exercise of sovereign authority, but appeared to allow more weight to a recent scientific
expedition by Yemen.
12. Overflights of uninhabited islans were not evidence of effectivités.

The parties had differed on the probative value of the many maps that were adduced.
1. Eritrea contended that map evidence was contradictory and unreliable.
2. Yemen argued that it was important evidence of general opinion, of the attitueds of the parties and of
3. The Tribunal held that Temeni map evidence was “superior in cope and volume,” but was not decisive.

The tribunal, with regard to the information it had solicited from the parties with regard to petroleum
exploration and exploitation activities, concluded that offshore petroleum contracts entered into by the parties
failed to establish or even strengthen, either of their claims to sovereignty over the islands, “[t]hose contracts
however lend a measure of support to the median line between the coasts of [the two parties], drawn without
regard to the islands, dividing the respective jurisdictions of the parties.”
1. Nevertheless, the implementation of the petroleum contracts involved state activities to which the
Tribunal did allow legal significance.

The Tribunal’s Conclusions

1. The tribunal held that neither party was able to establish historic titlte to the islands, islets and rocks, and
that the relatively recent history of use and possession would prove decisive.
a. Yes, applying the test of “continuous and peaceful display of the functions of State within
a given region,” as established in Island of Palmas, or even accepting a test of “very little
in the way f actual exercise of sovereign rights,” the tribunal was not certain that either
party had demonstrated title.
2. The tribunal avoided an award of non liquet by reaching for criteria that the Arbitration Agreement
had not authorized:

In these circumstances where for all the reasons just described the activities relied upon by the parties,
though many, sometimes speak with an uncertain voice, it is surely right for the tribunal to consider
whether there are in the instant case other factors which might help to resolve some of these

3. The tribunal acknowledged that its departure was quite radical [p. 674 for the block quote].
a. The departure from the crompromis was even further than the preceding question
suggests, as the assignment of what the Tribunal styled the various “sub-units” of islands
was effected simply by a presumption of proximity.
i. Mohabbakah islands were assigned to Eritrea because of how close it was to the
Eritrean coast, regardless of the history.
ii. The High Islet, slightly more than 12 nautical miles from the territorial sea
baseline, was included in the assignment for the rather tautological reason that
it was part of the same group “sharing the same legal destiny.”
1. The effort by Eritrea to “leapfrog” seaward to include other islands
beyond the 12-mile territorial sea was blocked by the Tribunal, because
the more seaward islands do not benefit from the neo-presumption of
2. Yet the tribunal awarded the small Haycock islands which lie beyond
Eritrea’s territorial sea to Eritrea because Yemen failed to establish a
superior claim in light of the islands geographical proximity to Eritrea.
iii. A party seeking to defeat the presumption of proximity is, apparently, obliged to
submit a fully-established case to the contrary, while all that is needed to defeat the
proximity argument beyond the territorial sea is another relatively “superior title.”
1. Yemen could not only marshal a superior claim to overcome proximity,
but, in fact, Eritrea’s petroleum activity extended to the Haycock islands
while Yemen’s did not.
2. Such activity was not protested by Yemen.
iv. South West Rocks were also awarded to Eritrea because they “were, at various
times, considered to form the easternmost limit of African-coast jurisdiction” and
because of Italian “assertions of jurisdiction over all the proposed sites.”
1. The Tribunal, however, did not inquire as to whether the rocks were
capable of appropriation.
2. Nor did it explain why assertions of jurisdiction could not trump Art. 16
in any other areas should suddenly acquire a decisive legal valence.
3. Neither did it explain why uti possidetis, whose legal application was not
accepted, should have legal effect here,
v. The Hanish islands and Zuqar could not be adjudicated upon using the
propinquity presumption or “appurtenance factor”, which are in the center of the
red sea and divided by a median line.
1. According to the Tribunal neither party could make a historical claim to
the islands, hence, the Tribunal had to look into other factors.
a. Construction and maintenance of lighthouses – cogent evidence
of Yemen presence.
b. Naval patrols – Ambiguous. No compelling case for either party.
c. Petroleum agreements – no conclusive evidence could be
gleaned from such.
2. Thus, the tribunal was faced with a quandary of deciding when its record
was based on insufficient evidence. Hence, it looked to effectivités.
a. Yemen submitted 48 alleged “happenings or incidents in respect
of the islands between 1989- mid-1991”
b. On the basis of such, the Tribunal rules in favor of Yemen.
vi. With respect to Hanish, the Tribunal acknowledged that Eritrea’s claim was well-
established, however, Yemen had more to show by way of presence and display
of authority.
vii. With respect to Jabal al-Tayr and the Zubayr group, the tribunal noted the paucity
of evidence adduced by both sides, as well as the proximity of the islands to
Yemeni’s coast.
1. While the tribunal was ambivalent regarding the sovereignty
consequences of maintaining a lighthouse, it found that Yemen’s actions
in this regard and the response of the international maritime users was
a factor of some significance.
2. Hence, the tribunal rued in favor of Yemen in this regard.

Appraisal [Comments by the author]

Judicial Innovations
1. Consent of concerned parties – the tribunal’s construction of Art. 16 of the Lausanne Convention is the
basis for the rejection of Eritrea’s central argument.
a. But if the provision suspended resolution of the question of sovereignty disputes over the
islands, such that Italian actions did not constitute effectivités, when did Art. 16 become
b. If Art. 16 is still in force, then the consent of all concerned parties is required for the
submission of tha question to a third party.
c. However, not all parties agreed to the compromise. Thus, the tribunal’s construction of
Art. 16 raises questions about the tribunal’s jurisdiction.
d. This might have been obviated if the dispute was referred to the ICJ.
2. Arbitral review – The selection of 2 sitting judges has jurisdictional implications.
a. If the validity of the awards were challenged in the first or second stage, it would be
reasonable to assume that the ICJ would have been called upon to resolve the claims of
b. However, two of the judges, as quondam arbitrators, would have to recuse themselves.
c. These costs suggest that the utility and propriety of ICJ judges sitting as arbitrators in
public international disputes should be reconsidered.

Procedural Innovations
1. Sequencing of issues – For reasons unknown, the parties decided to conduct the arbitration into
two separate phases: territorial sovereignty and maritime boundaries.
a. Yemen seemed anxious to insulate each stage from the other. In fact, it stated that the Tribunal
might be “prefigure” an eventual stage two maritime solution as an element of its thinking
about stage one.
b. The Tribunal allowed that there could be no question of prefiguring, and yet it stated that it is
unable to accept the proposition that IL governing land territory and IL governing maritime
boundaries have no juridical relevance to each other.
i. In fact, the islands were essentially awarded to the proximate littoral state.
2. Deciding as to scope – the tribunal determined the scope of the proceedings on the basis of the
positions of the parties.
a. When parties cannot agree on scope, the option of referring the matter to a tribunal facilitates
the arbitration agreement’s conclusion.
b. When a tribunal decides scope, the party that pressed for a narrower one has no choice but to
develop a defense against its adversary’s broader claims.
c. If the tribunal, instead of making an explicit decision, simply refers to the pleadings, the party
that pressed for a broader scope will always prevail.
d. Long-term consequence – disagreements about scope will prevent controversies from being
submitted to tribunals, making it more difficult to conclude arbitration agreements.
e. The formula used by the tribunal to couch its decision may not facilitate future agreements on
3. Hydrocarbon Location in Territorial and Maritime Boundary Dispute – the relevance of this request
[information on petroleum agreements] for determining sovereignty over contested islands is not
immediately apparent.
4. Critical Date – The tribunal’s ward contributes to the decay of the doctrine of critical date (cut-off
date for the admissibility of evidence).
a. A rigorous application of such would have precluded a decision, in light of the paucity of
credible historical evidence.
b. While the position of the tribunal in this regard is understandable, it should have crafted the
language which might have distinguished the general applicability of the doctrine from the
facts of the instant case.

Substantive Innovations
1. Avoiding Non Liquet by Innovative Presumptions – The Tribunal could not determine the dispute
by way of succession to title or effective occupation. The essential principles were expressed by
Max Huber in the Island of Las Palmas [p. 678].
a. The Tribunal was forced into an anomalous position of having to treat effective acts, such as
Italy’s, not as demonstrations of sovereignty but as exercises of jurisdiction.
i. In essence, “effective acts” were not to be treated as “effective acts.”
b. None of the parties were able to adduce evidence that would establish title by effective
c. The arbitration agreement did not empower the tribunal to award on the basis of a slightly
better claim.
d. Hence, the tribunal had to create a new law if it wished to issue an award.
i. The Tribunal prescribed a strong presumption in favor of state’s sovereignty over
maritime formations in its territorial sea by virtue of propinquity alone.
1. It is not new, but by the Tribunal’s formulation, it is now a presumption juris
et de jure – can only be defeated by a “fully-established case to the contrary.”
ii. The Tribunal also prescribed a presumption in favor of the most proximate coastal
state’s title – can only be defeated by a relatively stronger claim.
2. Reducing the Effective Occupation Requirement – Given the paucity of evidence, the Tribunal had
to render a decision on a different criterion than that contemplated in the Arbitration Agreement.
a. The criteria of Palmas and Clipperton were inapplicable because the islands in question were
at the very center of major navigation routes.
i. The inaccessibility factor used in Clipperton would have been reduced and the
requisite level of manifestation of sovereignty increased.
3. Territorializing Low-tide elevations – This may be the first instance in which an authoritative
decision has characterized low-tide elevations beyond the territorial sea as territory, in effect
assimilating them to islands. Yet, there is no discussion of the matter.
a. The author assumes that the intention was that formations in the territorial sea and the
Exclusive Economic Zones should pertain, presumptively, to the proximate coastal state, subject
to a better claim of another.
b. If these formations were endowed with their own EEZ and continental shelf, they could have a
significant effect on maritime boundary delimitation, especially vers de large, unless Article
121(3) of the Law of the Sea Convention is applied strictly.
i. The tribunal rejected the technique of “leapfrogging,” thus restraining some nationa
lunges for jurisdiction.
4. The Relative Value of Effectivités – No comparative appraisals of the relative value of different
forms of effectivités.
5. Uti Possidetis – The tribunal seemed uncomfortable in applying this doctrine. The critical question
it should have addressed, which it was reluctant to, is whether the policies of uti possidetis
expressed currently ejoy regional or general international support, and if not, whether they
6. Decolonization and Territorial Stability – The Tribunal declared that it has not been established as
to whether the doctrine of reversion is part of international law. From there, one could see the
cautious and conservative approach to decolonization’s effect on the stability of territorial
7. The Persistence of Eurocentrism – In an obiter, the Tribunal criticized the Eurocentric approach to
title acquisition manifested by implication in Western Sahara. Ultimately, the tribunal fell into the
same confusion.
a. The Tribunal was generous in finding int’l servitudes and in insisting on the protection of
traditional fishing rights, yet it persisted in demanding the extension of “socio-political power
over the geographic area” to secure title.
i. No cogent reason exists for not applying a kore sensitive socio-ecological test to
“uninhabited islands which are not claimed to be falling within the limits of historical
ii. If islands, like arid land-based areas, cannot support permanent habitation, but can
support a seasonal one, who owe fealty to a ruler, that should constitute an effectivité.
b. Should not seasonal and ecologically-dictated movement of people to waterless islands have
the same title-generative potential that it would have in arid and semi-arid areas?
i. International jurisprudence still seems captive to deeply held political-cultural
notions, unable to give recognize and give due effect to forms of political
organizations that have evolved in jurisdictions different from those of Europe.
Summaries of the Decisions

Land and Maritime Boundary

(Cameroon v. Nigeria)
In an application dated 29 March 1994, amended on 6 June 1994, Cameroon asked the Court to
determine the question of sovereignty over the Bakassi Peninsula and over islands in Lake Chad,
and to specify the course of the land and maritime boundary between itself and Nigeria. As a basis
of jurisdiction Cameroon referred to the declaration made by both States under Article 36, paragraph
2, of the Statute of the Court. On 13 December 1995 Nigeria raised eight preliminary objections to
the jurisdiction of the Court and the admissibility of Cameroon's claims. The proceedings on the
merits were accordingly suspended and time-limits fixed within which Cameroon had to present its
observations on the preliminary objections. While the procedure on the preliminary objections was
pending, Cameroon, on 12 February 1996, requested the Court to indicate provisional measures
after "serious armed incidents" had taken place on 3 February between the forces of both Parties in
the Bakassi Peninsula.
Indication of Provisional Measures
Order of 15 March 1996
In its request for provisional measures Cameroon had asked the Court to indicate that the armed
forces of the Parties should withdraw to the position they were occupying before the Nigerian armed
attack of 3 February 1996 and that the Parties should abstain from all military activity along the
entire boundary as well as from any act which might hamper the gathering of evidence. In its order
the Court found that "both Parties should ensure that no action of any kind, and particularly no action
by their armed forces, is taken which might prejudice the rights of the other in respect of whatever
judgment the Court may render in the case, or which might aggravate or extend the dispute before
it". The reasoning of the Court was based on its power to preserve the rights which may be adjudged
in the merits. The fact that the President of the Republic of Togo had conducted a mediation
resulting in a communiqué announcing the cessation of all hostilities published on 17 February 1996
did not, according to the Court, deprive it of its power to indicate provisional measures of protection.
Since the events that had given rise to the request and particularly the killing of persons caused
irreparable damage to the rights that the Parties may have over the Peninsula and since persons in
the disputed area and consequently rights of the Parties were exposed to serious risk, the indication
of interim measures was justified in order not to jeopardise the settlement of the dispute. The Court
underlined that the indication of provisional measures did not affect the pending question of
jurisdiction and admissibility or the decision to be taken on the merits.
Jurisdiction of the Court and Admissibility of the Application
Judgment of 11 June 1998
On June 11, 1998, the ICJ delivered its decision on the preliminary objections in the case. It rejected
seven of the eight objections and stated that the eighth objection had not an exclusively preliminary
character and thus joined it to the merits
With its first objection Nigeria contended that the Court had no jurisdiction in the case due to the fact
that the declaration of Cameroon under Article 36, paragraph 2, of the Statute and dating 3 March
1994 had been transmitted to the parties of the Statute only nearly one year later. The effect of the
belated transmission was that Nigeria did not know of the acceptance of the jurisdiction by
Cameroon on the date of the filing of the application. The ICJ rejected the objection concluding that
the general rule reflected in Articles 16 and 24 of the Vienna Convention on the Law of Treaties,
which , as the Court observed, may only be applied to declarations accepting the Court's jurisdiction
as obligatory by analogy, was that the deposit of the instrument of ratification, acceptance, approval
or accession establishes the consent of a State to be bound by a treaty. The treaty enters into force
as regards that State on the day of the deposit. By these findings the ICJ confirmed its decision
concerning the Right of Passage over Indian Territory-Case. The ICJ rejected the argument of
Nigeria that the omission of information concerning the acceptance of the Court's jurisdiction
infringed upon the principle of good faith. Good faith does neither contain an obligation to inform
other States parties to the Statute of the intention to accept the Court's jurisdiction nor to bring
proceedings before the Court. Finally the ICJ did not accept the objection of Nigeria claiming that
there was no reciprocity because of the lack of information. As in other cases already the Court
observed in this regard that the notion of reciprocity is concerned with the scope and substance of
commitments entered into and not with the formal conditions of their creation, duration or extinction.
The delay in the receipt of the copies of the declaration of acceptance did therefore not affect the
principle of reciprocity.
In its second objection Nigeria stated that for a period of 24 years the Parties had tried to settle the
dispute and that this meant that they accepted a duty to settle all boundary questions by bilateral
negotiation, Cameroon being, according to the argument of Nigeria, thus estopped from turning to
the Court. With regard to the first argument the Court found that the negotiations could not imply an
exclusion of the possibility to bring the dispute before the Court since in Article 33 of the UN Charter
negotiation and judicial settlement are enumerated together. As to the argument of estoppel the
Court observed that this would only exist if by its acts or declarations Cameroon had consistently
made it fully clear that it agreed to settle the dispute by negotiation alone, which condition was not
fulfilled in the present case.
The third objection related to the boundary delimitation in the Lake Chad which, according to Nigeria,
was entrusted to the exclusive competence of the "Lake Chad Basin Commission". The Statute of
this Commission, which was established as an international organization, did, however, not contain
any provisions for the settlement of disputes through the Commission and did furthermore not allow
to consider it as a "regional arrangement or agency" within the meaning of Article 52 of the UN
Charter. But even if it were otherwise the existence of procedures for regional negotiation could not
prevent the Court from exercising its functions. Even the fact that the Commission was engaged in
finding a demarcation in the Lake Chad Basin could not lead to judicial self-restraint of the Court on
grounds of judicial propriety. Therefore, the Court rejected also the third objection.
The fourth objection related to the fact that the boundary between Cameroon and Nigeria in Lake
Chad affected at its final point a third State, the Republic of Chad, and that therefore the Court could
not determine this tripoint without the participation of the third State in the proceedings. This
question had already been dealt with by the Court in prior cases and the Court found that in this
case the legal interests of Chad as a third State not party to the case did not constitute the very
subject matter of the case so that the Court could proceed without the participation of Chad.
With its fifth objection Nigeria alleged that there was no dispute concerning "boundary delimitation as
such" throughout the whole length of the boundary from the tripoint in Lake Chad to the sea. With
regard to its prior statements concerning the question of the existence of a dispute the Court found
that not the whole boundary was in dispute but that Nigeria had not clearly presented its own
position of that matter in order to see as to which sectors of the boundary there was agreement
between the parties and where not. Thus it was impossible to define at this stage of the proceedings
the exact scope of the claim; however, it was evident that a dispute existed between the two parties,
at least as to the legal bases of the boundary.
The sixth objection was to the effect that there was no basis for a judicial determination that Nigeria
was responsible under international law for the alleged frontier incursions. Nigeria contended that
the submissions of Cameroon in this respect were not precise enough as to dates, circumstances
and locations and that therefore Nigeria did not have the necessary knowledge in order to prepare
its reply. The Court stated that this objection concerned mainly the requirements which an
application must meet under Article 38, paragraph 2, of the Rules and that this provision did not
preclude later additions to the statement of the facts and the grounds on which a claim is based
because it does not provide that the applicant State is strictly limited to what it had said in its
In its seventh objection Nigeria contended that for two reasons there was no legal dispute
concerning the delimitation of the maritime boundary between the two Parties which was at the
present time appropriate for resolution by the Court. In the first place, no determination of the
maritime boundary was possible prior to the determination of title in respect of the Bakassi
Peninsula, and secondly, after having determined the title over the Bakassi Pensinsula, the issues of
maritime delimitation had first to be addressed by the Parties on order to effect a delimitation by
agreement according to the Convention on the Law of the Sea. The Court rejected both arguments.
It found that, indeed, it had first to determine the title over Bakassi Peninsaula, but since it was
seized with both questions it was free to arrange the order in which it would address the issues
before it. As to the question of the necessity of first trying to delimit the boundary by agreement, the
Court noted that it had not been seized on the basis of Article 36, paragraph 1, of the Statute and , in
pursuance of it, in accordance with Part XV of the Convention on the Law of the Sea, but on the
basis of Article 36, paragraph 2, of the Statute which does not require prior negotiations before
addressing the Court. Therefore the Court rejected this objection also.
With its eighth objection Nigeria argued that the question of maritime delimitation necessarily
involved rights and interests of third States and was to that extent inadmissible without the
participation of those third States in the proceedings. The Court found that this question was relevant
only with respect to the maritime boundary beyond a particular point G within the Gulf of Guinea and
that, in fact, the rights and interests of Equatorial Guinea and Sao Tome and Principe could possibly
become involved if the Court acceded to Cameroon's request. Whether this would be the case could,
however, not be decided as a preliminary matter but only in the context with the merits of
Cameroon's request. Therefore, the Court stated that the eighth preliminary objection did not
possess an exclusively preliminary character.
This decision was taken by different majorities concerning the different objections. The three
dissenting Judges, Weeramantry, Koroma and Ajibola (the latter one agreeing only with the decision
on the second objection and the first part of the seventh objection), centre particularly on the
decision on the first objection referring to the Court's jurisdiction. They all censured the reference
made to the Right of Passage case which they regarded as an inappropriate interpretation of Article
36, paragraph 4, of the Statute.
Request for Interpretation of the Judgment of 11 June 1998
Judgment of 25 March 1999
On 28 October 1998 Nigeria requested the Court to interpret the Judgment delivered on 11 June
1998 concerning preliminary objections. Since the objections had been rejected by the Court and
thus the question of Nigeria's responsibility "for certain incidents said to have occurred at various
places at Bakassi and Lake Chad and along the length of the frontier between those two regions"
was to be adjudged by the Court, Nigeria now contended that the Judgment of 11 June did not
specify "which of these incidents were to be considered as part of the merits of the case". Nigeria
also maintained that the Judgment was unclear as to whether "Cameroon was entitled at various
times, after the submission of its Amended Application, to bring before the Court new incidents". The
Judgment was, according to Nigeria, to be interpreted as meaning "that so far as concerns the
international responsibility of Nigeria...the dispute before the Court does not include any alleged
incidents other than (at most) those specified in the Application ... and Additional Application".
The first question was whether a request for the interpretation of a judgment concerning preliminary
objections was possible at all. The Court found that such a request was possible under Article 60 of
the Statute because this article as well as Article 98 of the Rules of Court only refer to "judgments"
without making any difference as to the type of the judgment. However, according to the second
sentence of Article 60 the request for interpretation must relate to the operative part of the judgment
and cannot concern the reasons except in so far as these are inseparable from the operative part. In
the present case the request for interpretation concerned, according to the findings of the Court,
several reasons of the Judgment which are inseparable from the operative part so that the
conditions for jurisdiction of the Court to entertain the request for interpretation were met.
The Court then turned to the admissibility of the request which is of special interest because of the
need to avoid impairing the finality, and delaying the implementation, of the Court's judgments.
Given that Article 60 is not concerned with questions of appeal, the aim of a request for
interpretation has strictly to centre upon the interpretation and clarification of the meaning of what
the Court already has decided with binding force. In the present case the concern of Nigeria related
to the requirements which an application must meet according to Article 38 of the Statute. This
question was the subject-matter of the sixth preliminary objection and the Court had already decided
in its Judgment of 11 June that the limit of the freedom to present additional facts and legal
considerations is that there must not be a transformation of the dispute brought before the Court. In
the present case the Court had stated in its Judgment of 11 June that the introduction of additional
incidents by Cameroon had not transformed the dispute and had thus not made a distinction
between "incidents" and "facts", a finding which was not shared by the dissenting judges
Weeramantry, Koroma and ad hoc judge Ajibola. According to the Court, this question had therefore
already been dealt with and rejected in that Judgment and constituted thus res iudicata.
By its second and third submission Nigeria had requested the Court to interpret its Judgment in the
sense that Cameroon could not introduce further facts and that the question whether the facts
alleged by Cameroon are established or not related only to those facts stated in the Application and
Additional Application. In the view of the Court, these submissions, however, endeavour to remove
from the Court's consideration elements of law and fact which the Court had, in its Judgment of 11
June, already authorized Cameroon to present, or which Cameroon has not yet put forward.
Therefore, the Court found that it was not able to entertain these submissions; the request for
interpretation being consequently found to be inadmissible.
Finally, the Court had to decide on the question of costs, because Cameroon had asked the Court to
charge Nigeria with the costs caused by the request for interpretation. With a view to the general rule
in Article 64 of the Statute which confirms the basic principle regarding the question of costs in
contentious proceedings before international tribunals, namely that each party shall bear its own
costs, the Court decided that there was no reason in the present case to depart from this rule.
Order of 30 June 1999
In its counter-memorial filed with the Court in May 1999, Nigeria had submitted counter-claims
contending that Cameroon had cited, in its written pleadings, a variety of incidents along the border
and had brought in issue the international responsibility of Nigeria. Nigeria now pointed out that
"there are [however] many cases in which incursions are occurring along the border from the
Cameroon side and for which Cameroon is internationally responsible". Nigeria accordingly asked
the Court to declare the responsibility of Cameroon with regard to those incursions as well as its
obligation for compensation. The Court declared the counter-claims admissible which, consequently,
will be dealt with simultaneously with the claims of Cameroon in the merits phase.
Under Article 80, para. 1 of the Rules of Court a counter-claim may be presented when it is directly
connected with the subject-matter of the claim and when it comes within the jurisdiction of the Court.
In the present case the counter-claims rested on facts of the same nature as the corresponding
claims of Cameroon and were therefore directly connected to the claims of Cameroon. Moreover,
the claims of both States "pursue the same legal aim, namely the establishment of legal
responsibility and the determination of the reparation due on this account". For these reasons the
counter-claims were declared admissible.
Intervention by Equatorial Guinea
Order of 21 October 1999
On 30 June 1999 Equatorial Guinea filed an application for permission to intervene in the case
between Cameroon and Nigeria pursuant to Art. 62 of the Statute. The object of its intervention was
"to protect [its] legal rights in the Gulf of Guinea by all legal means" and "to inform the Court of
Equatorial Guinea's legal rights and interests so that these may remain unaffected as the Court
proceeds to address the question of the maritime boundary between Cameroon and Nigeria".
Equatorial Guinea underlined that its intervention only concerned the aspects of the maritime
boundary and furthermore that it did not seek a determination of its own maritime boundaries with
the those of Cameroon or Nigeria because these should be determined by negotiation. It only sought
assurance that the boundary to be determined by the Court would not cross over the median line
with Equatorial Guinea.
While Cameroon informed the Court that it had no objection in principle to the intervention, Nigeria
left it to the Court to judge on the permission to intervene. The Court found that Equatorial Guinea
had sufficiently established that it had an interest of a legal nature which could be affected by the
judgment and that the object pursued by Equatorial Guinea, namely to inform the Court of its legal
rights which are at issue in the dispute, was a valid object under the rules governing intervention.
Furthermore, the Court pointed out that, as had been stated by the Chamber of the Court in
the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras), Application by Nicaragua for
permission to intervene, Judgment of 13 September 1990, the purpose of an intervention under Art.
62 of the Statute does not require the existence of a valid link of jurisdiction between the intervener
and the parties to the case and that therefore in the case at stake where no jurisdictional link existed
between the parties and the would-be-intervener there was nothing to prevent the application by
Equatorial Guinea from being granted. Therefore the Court unanimously decided that Equatorial
Guinea was permitted to intervene to the extent set out in its Application.
Armed Activities on the territory of the Congo (Democratic
Republic of the Congo v. Rwanda)

Brief Fact Summary. Rwanda (D) challenged the jurisdiction of the International Court
of Justice when a suit was filed against her by the Democratic Republic of the Congo (P).

Synopsis of Rule of Law. The International Court of Justice lacks jurisdiction based on
a treaty in which one party to such a treaty excludes dispute settlement obligations under
the treaty before becoming a party, and fails to take formal acts to bring about withdrawal
of the reservation.

Facts. In the suit filed by the Republic of the Congo (DRC) (P) against Rwanda (D), the
DRC (P) tried to base the jurisdiction of the International Court of Justice on nine treaties
with dispute settlement clauses that provided for such jurisdiction. Of the nine treaties,
Rwanda (D) excluded dispute settlement obligations in seven of the treaties while it was
not party to the remaining two. Based on the nature of its obligations, Rwanda (D)
challenged the jurisdiction of the International Court of Justice.
Discussions of some of the treaties were omitted by the excerpt. The treaties involved
were Convention on Privileges, Immunities of the Specialized Agencies, Genocide
Convention, Article IX, Convention on Racial Discrimination against Women, Article 29,
World Health Organization Constitution, Article 75. Unesco Convention, Article XIV,
Montreal Convention, Article 14, Vienna Convention, Article 66 and Convention Against
Torture. Rwanda (D) was not party to the first two treaties.

Issue. Does the International Court of Justice lacks jurisdiction based on a treaty in which
one party to such a treaty excludes disputes settlement obligations under the treaty before
becoming a party and fails to make formal acts to bring about withdrawal of the


(Judge not stated in casebook excerpt) Yes. The International Court of Justice lacks
jurisdiction based on a treaty in which one party to such a treaty excludes dispute
settlement obligations under the treaty before becoming a party and fails to take formal
acts to bring about withdrawal of the reservation.
Firstly as at the time of a 1993 peace agreement to withdrawing all reservations to human
rights treaties, Rwanda (D) may have committed itself, though this withdrawal was
effectuated by the Rwanda (D) minister of justice, Rwanda (D) never for once take formal
acts to bring about withdrawal of reservation. Deciding on whether to withdraw reservation
with a state’s domestic legal order is not the same as implementation of that decision by
the national authorities within the international legal order, which can only come to pass
by notification to the other state parties to the parties in question through the Secretary-
General of the United Nations.
Secondly, the existence of a dispute that implicates peremptory norms of general
international law does not imply that it is not part of the principles that jurisdiction always
relies on the consent of the parties. The treaty was however held not to form the basis of
jurisdiction because the DRC (P) failed to prove beyond reasonable doubt that it initiated
arbitration proceedings against Rwanda (D) under the Convention on Discrimination
against Women.

Discussion. The analysis of the treaties in the casebook excerpt is similar to the Court’s
analysis of treaties. The main principle here is that the I.C.J will not advance the case
past the preliminary matter of jurisdiction where a state has not granted consent to the
I.C.J’s jurisdiction, whatever atrocities have in fact been committed by the non-consenting
state. Also, reversal of the position requires an overt act by the state in a situation like
this, where there is evidence of non-consent, in order to convince the Court that after all,
consent to the I.C.J’s jurisdiction was granted