           DECLARATION OF JUDGE BENNOUNA

 ranslation]

 1. Although I voted in favour of the operative clause of the Judgment,
am not entirely convinced by all the Court’s reasoning. That is why I
ought it might be useful to explain my thinking by means of this dec-
  ation.
 2. In general, whenever the Court has had to rule on a territorial dis-
 te rooted in the colonial period of which the current protagonists are
ore or less victims, it has been faced with a real dilemma. This is why it
 s often wondered whether that period should be viewed through the
ns of concepts current at the time, and which are those of the dominant
 lonial Powers, or whether it should reinterpret them in the light of sub-
quent developments in international law, above all since the adoption,
 1960, of United Nations General Assembly Declaration 1514 (XV) on
e Granting of Independence to Colonial Countries and Peoples,
garded as the decolonization charter. While that concerns the problem
  the application of international law in time, or “intertemporal law”,
 re that problem arises in a situation not of the simple development of
e rules and principles but of a genuine break characterized by the
 vent of the right of peoples to self-determination and the definitive
 ndemnation of the distinction, perhaps dating back to the Roman
mpire, between so-called “civilized” and so-called “barbarian” peoples,
e former being destined to rule the latter.

3. So it is understandable that the Court should have shown some
sitation about venturing into the realm of colonial law as such for pos-
 le conclusions to the present situation, for fear that, as the principal
dicial organ of the United Nations, the finger might be pointed at it for
ving sanctioned or legitimized this law a posteriori. This is how it
und itself having to reinterpret the “mandate” system instituted by the
 ague of Nations in favour, precisely, of the right of peoples to self-
termination :

   “an international instrument has to be interpreted and applied within
   the framework of the entire legal system prevailing at the time of the
   interpretation. In the domain to which the present proceedings relate,
   the last fifty years, as indicated above, have brought important
   developments. These developments leave little doubt that the ulti-
   mate objective of the sacred trust was the self-determination and
   independence of the peoples concerned. In this domain, as else-
   where, the corpus iuris gentium has been considerably enriched, and

                                                                      120

   this the Court, if it is faithfully to discharge its functions, may not
   ignore.” (Legal Consequences for States of the Continued Presence
   of South Africa in Namibia (South West Africa) notwithstanding
   Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
   Reports 1971, pp. 31-32, para. 53.)

4. This same desire to interpret and apply certain concepts of colonial
w in the light of the upheavals the world has seen with the phenomenon
  decolonization and the emergence of a large number of new States
 to the international stage led the Court to reassess the concept of terra
llius in its Advisory Opinion of 16 October 1975 in the Western Sahara
se : “the State practice of the relevant period indicates that territories
habited by tribes or peoples having a social and political organization
 re not regarded as terrae nullius” (Advisory Opinion, I.C.J. Reports
75, p. 39, para. 80).

 5. From this the Court concluded that “in the case of such territories
e acquisition of sovereignty was not generally considered as effected
 ilaterally through ‘occupation’ of terra nullius by original title but
rough agreements concluded with local rulers” (ibid., p. 39). It was
cepted that colonial law introduced the category of terra nullius to
ganize the apportionment of a number of non-European territories,
hich were open to colonization and thus regarded as “without a mas-
 ”, the inference being without a declared European master. As
  Milano rightly noted :
   “terra nullius was used as a device to justify control and jurisdiction
   of areas, which were very often populated by indigenous people,
   who were not considered equals. Much of the international law of
   those times was based on the idea of the standard of civilization, by
   which an entity could enter into the realm of international society.
   Such standards were nearly exclusively European, and they did not
   allow the participation of any other form of social organisation.”
   (E. Milano, Unlawful Territorial Situations in International Law :
   Reconciling Effectiveness, Legality and Legitimacy, 2006, p. 72.)
 6. Moreover, whether colonization was by agreement with local tribes
  not had no bearing on the title to the territory of the European Power
 ncerned, as the Court would emphasize in the case concerning Land
 d Maritime Boundary between Cameroon and Nigeria. After pointing
 t that “during the era of the Berlin Conference the European Powers
 tered into many treaties with local rulers” and that “Great Britain con-
uded some 350 treaties with the local chiefs of the Niger delta” (Land
 d Maritime Boundary between Cameroon and Nigeria (Cameroon v.
 geria : Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002,
 404, para. 203), the Court adds :

                                                                      121

      “Even if this mode of acquisition does not reflect current interna-
   tional law, the principle of intertemporal law requires that the legal
   consequences of the treaties concluded at that time in the Niger delta
   be given effect today, in the present dispute.” (Land and Maritime
   Boundary between Cameroon and Nigeria (Cameroon v. Nigeria :
   Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002,
   p. 405, para. 205.)
 is same ambiguity, under cover of intertemporal law, is reflected in the
 y the structure of non-European States is taken into account in the
lonial period, since the Court has accepted their specificity while nev-
 heless submitting them to the Westphalian criteria of sovereignty. I
eded to draw attention to these hesitations between colonial law and
ntemporary law, which the mere reference to intertemporal law is
 ufficient to justify, in order to explain how far I could not fully share
e Court’s reasoning in this case between Malaysia and Singapore on
e issue of sovereignty over certain islets in the Straits of Singapore.

7. Hence the Court, on the assumption “that it is not disputed that the
 ltanate of Johor, since it came into existence in 1512” (Judgment,
 ra. 52), established itself as a sovereign State with a “certain” though
determinate territorial domain under its sovereignty, took the view that
  authority was exercised through ties of “allegiance” with the “Orang
 ut, who inhabited or visited the islands in the Straits of Singapore,
cluding Pedra Branca/Pulau Batu Puteh” (ibid., para. 79).
8. The special structure of Johor (predecessor of Malaysia) in the colo-
al period was discussed in this case by reference to the Advisory Opin-
n on Western Sahara (ibid., paras. 76-79), according to which :
     “That the Sherifian State at the time of the Spanish colonization
   of Western Sahara was a State of a special character is certain. Its
   special character consisted in the fact that it was founded on the
   common religious bond of Islam existing among the peoples and on
   the allegiance of various tribes to the Sultan, through their caids or
   sheikhs, rather than on the notion of territory.” (I.C.J. Reports
   1975, p. 44, para. 95.)
 9. The Court, having thus paid tribute to the special character of the
 oroccan State in 1884, which was part of a different history to that
 shrined in Europe by the Treaties of Westphalia in the seventeenth cen-
ry, nevertheless took no account of this as regards the proofs of sov-
eignty, since it ultimately decided to base itself on the proofs of effec-
 e and continuous control over the territory.
 10. In the case which concerns us, Malaysia also based itself on the
 es of loyalty that existed between the Sultanate and the Orang Laut,
 e people of the sea’” (Judgment, para. 70). From this the Court con-
uded that
   “the Sultan of Johor’s authority exercised over the Orang Laut who

                                                                      122

   inhabited the islands in the Straits of Singapore, and who made this
   maritime area their habitat, confirms the ancient original title of the
   Sultanate of Johor to those islands, including Pedra Branca/Pulau
   Batu Puteh” (Judgment, para. 75).
 the meaning here that this sovereignty of Johor, founded on a historic
 e and on the loyalty of the peoples, will be protected from the vicissi-
des of relations between the European Powers in the region ? Appar-
tly not, since the Court accepts that the Anglo-Dutch Treaty of 1824,
limiting spheres of influence in the region, resulted in the dismember-
ent of the old Sultanate of Johor and the creation of two Sultanates, of
hor and of Riau-Lingga, in the context of the rivalry between the two
lonial Powers “vying for hegemony . . . in this part of the world” (ibid.,
 ra. 98). These practices were also well known in Africa, in the nine-
 nth century for example, when the ancient kingdoms were carved up
tween European Powers.

 11. As for the Sultanate of Johor, under the Crawfurd Treaty of
August 1824, it would have to cede the island of Singapore and the sur-
unding islands within 10 miles to the East India Company under Brit-
   control. On the basis of the preparations for the construction of a
 hthouse on Pedra Branca in the 1840s, the Court went on to examine
e conduct of Johor and the Singapore authorities in order to determine
hether the sovereignty of the first country over the islet concerned
 ssed to the second. The Court embarked on this analysis, although
ere was no independent expression of will either in Johor, whose sov-
eignty revealed itself to be fictitious, or a fortiori in Singapore, a British
lony. While it is true that the two Parties, before the Court, each
ught to draw advantage from the colonial history, is that any reason to
 low them on this ground ? Did the Court not decline to hold that
 uth Ledge, a low-tide elevation, could not form the object of an
 tonomous appropriation, detached from the delimitation of the terri-
rial sea, even though this had been argued by the two Parties ?
 12. Admittedly, when the Court is expressly mandated to pass judg-
ent on the basis of uti possidetis juris, as in a number of territorial dis-
 tes between African or Latin American countries, it is hard for it not
  venture into colonial law, even if only to assess what the administra-
 e boundaries drawn by the colonial Power or Powers were on the
 ainment of independence by the two Parties to the dispute before it.
  t this is not so in this case between Malaysia and Singapore, in which
e Court held that the critical date for Pedra Branca was 14 February
 80, and 6 February 1993 for Middle Rocks and South Ledge.

13. Hence, it is the conduct of Singapore following independence in
65 after its separation from the Federation of Malaysia, constituted in
63, and the conduct of that State itself, which will be decisive for deter-
ning sovereignty with respect to the islands concerned, in other words

                                                                          123

r almost 15 years in the case of Pedra Branca and 28 years for Middle
ocks and South Ledge. For all that period, we are here dealing with two
dependent States in control of their own foreign relations. The Court
ould thus have avoided losing its way in the labyrinth of the colonial
ght and its numerous fictions and among the shadowy figures of its
 eged actors. On the critical dates the Court fixed, the result would in
 y case have been the same.

14. Relating the practice for over a century, from the mid-nineteenth
 the mid-twentieth century, the Court finds only that Great Britain did
 it pleased on Pedra Branca without a thought for the title of sover-
 nty over this islet. It is nevertheless significant that the 1953 correspon-
nce, of which much is made in the Judgment (paras. 192-229) as proof
 the acceptance by the Parties of Singapore’s sovereignty (para. 229),
 s exchanged between the British Colonial Secretary of Singapore (Sing-
ore being a British colony) and the Acting Secretary of State of Johor
 reat Britain having control of that country’s defence and foreign rela-
 ns).
15. It is difficult to draw any conclusion from the Court’s summary of
 these colonial practices in the settlement of the dispute submitted to it
 special agreement in 2003, and concerning which it ought, in my view,
 entially to have relied on the conduct of the Parties as independent
ates. The legal categories of the colonial period cannot be recycled to
ake them presentable today as though it were just a matter of words.

                                       (Signed) Mohamed BENNOUNA.

                                                                         124


                     751

                                SEPARATE OPINION OF JUDGE DONOGHUE

                       Agrees with decision not to uphold Nicaragua’s claim to continental shelf beyond
                     200 nautical miles of its coast — Nicaragua did not adduce sufficient evidence to
                     support the claim — Misgivings about suggestion that the Court will not delimit
                     continental shelf beyond 200 nautical miles before outer limits are established
                     under Article 76 — Delimitation and delineation are distinct exercises —
                     Nicaragua’s methodology requires delineation as a step in delimitation of the
                     boundary — Delimitation of continental shelf beyond 200 nautical miles before
                     outer limits are established may be appropriate in some cases — Restates view that
                     Costa Rica and Honduras met criteria for Article 62 intervention as non‑parties.

                        1. I have voted not to uphold the Republic of Nicaragua’s claim to
                     continental shelf in the area beyond 200 nautical miles of its coast. The
                     Judgment states that “Nicaragua, in the present proceedings, has not
                     established that it has a continental margin that extends far enough to
                     overlap with Colombia’s 200‑nautical‑mile entitlement to the continental
                     shelf, measured from Colombia’s mainland coast” (Judgment, para. 129).
                     I agree with this conclusion because Nicaragua did not provide a suffi-
                     cient factual basis to permit the Court to conclude that continental shelf
                     exists beyond 200 nautical miles of Nicaragua’s coast or to specify with
                     the necessary precision the outer limits of any such shelf, which the Court
                     would need to do in order to apply the delimitation methodology pro-
                     posed by Nicaragua.
                        2. In this separate opinion, I first explain why I believe that Nicara-
                     gua’s claim to continental shelf in the area beyond 200 nautical miles of
                     its coast fails on the evidence. Next, I express my misgivings about the
                     reasons given by the Court for its rejection of this Nicaraguan submission
                     (“submission I (3)”), which suggest that the Court will not delimit conti-
                     nental shelf beyond 200 nautical miles of the coast of any State party to
                     the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”)
                     before the outer limits of such continental shelf have been established by
                     that State in accordance with Article 76 of UNCLOS. Delimitation of
                     maritime boundaries and delineation of the outer limits of the continental
                     shelf are distinct exercises. The methodology proposed by Nicaragua
                     blurs this distinction, because it uses the delineation of the outer limits of
                     the continental shelf as a step in delimitation of the boundary. Nonethe-
                     less, in other circumstances, it may be appropriate to delimit an area of
                     continental shelf beyond 200 nautical miles of a State’s coast before the

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                     outer limits of the continental shelf have been established. It is better to
                     leave open the door to such an outcome, so that the Court and the Com-
                     mission on the Limits of the Continental Shelf (the “Commission”) may
                     proceed in parallel to contribute to the public order of the oceans and the
                     peaceful resolution of maritime boundary disputes.

                       I also recall in this separate opinion that I dissented from the Court’s
                     decision not to permit Costa Rica and Honduras to intervene in this case
                     and explain why I continue to believe that those States should have been
                     permitted to intervene as non‑parties.

                                  I. The Factual Inadequacy of Nicaragua’s
                                     Evidence relating to the Outer Limits
                                        of Its Continental Shelf Claim

                        3. It is well established that coastal States have an entitlement to con-
                     tinental shelf within 200 nautical miles of the baselines from which the
                     territorial sea is measured (see Continental Shelf (Libyan Arab Jama‑
                     hiriya/Malta), Judgment, I.C.J. Reports 1985, p. 33, para. 34). This enti-
                     tlement, which is sometimes referred to as the “distance criterion”, is
                     reflected in Article 76, paragraph 1, of UNCLOS. Article 76, paragraph 1,
                     also provides that a coastal State has an entitlement to continental shelf
                     in the area beyond 200 nautical miles of its baselines on the basis of the
                     natural prolongation of its land territory to the outer edge of the conti-
                     nental margin (see also North Sea Continental Shelf (Federal Republic of
                     Germany/Denmark ; Federal Republic of Germany/Netherlands), Judg‑
                     ment, I.C.J. Reports 1969, p. 22, para. 19). I agree with the Court that
                     Article 76, paragraph 1, forms part of customary international law.

                        4. Unlike the existence of an entitlement to continental shelf based on
                     the distance criterion, the existence of continental shelf beyond 200 nauti-
                     cal miles is a question of fact that turns on geology and geomorphology.
                     It is therefore important to understand what facts Nicaragua asked the
                     Court to find pursuant to submission I (3).
                        5. Nicaragua claims that an extensive area of continental shelf exists in
                     the area beyond 200 nautical miles of its coast. The submission contained
                     in its Reply asked the Court to delimit a boundary in the area beyond
                     200 nautical miles of Nicaragua’s coast using specific co‑ordinates. In
                     submission I (3), however, Nicaragua framed its request more generally,
                     asking the Court to declare that the appropriate form of delimitation is
                     an equal division of the overlapping entitlements to continental shelf of
                     both Parties.
                        6. In its final form, Nicaragua’s submission regarding continental shelf
                     beyond 200 nautical miles is less precise than the submission contained in

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                     its Reply and appears to be amenable to at least two possible variations.
                     In the first variation, the Court would effect a precise delimitation, using
                     the methodology advanced in submission I (3). To do this, the Court
                     would divide in half the area of the Parties’ overlapping entitlements in
                     the area beyond 200 nautical miles of Nicaragua’s coast. In a second vari-
                     ation (suggested by Nicaragua’s counsel during oral proceedings), the
                     Court would not specify the location of a maritime boundary between the
                     Parties in the area more than 200 nautical miles from Nicaragua’s coast,
                     but instead would instruct the Parties to divide the overlapping entitle-
                     ments in that area into equal parts after Nicaragua has established the
                     outer limits of its continental shelf in accordance with UNCLOS Arti-
                     cle 76. I address these two variations in turn.

                        7. To effect the delimitation called for by the first variation of submis-
                     sion I (3), the Court would first have to determine the area of continental
                     shelf beyond 200 nautical miles of Nicaragua’s coast. This step would
                     require the Court to find that continental shelf exists in the area beyond
                     the 200‑nautical‑mile limit and to decide on the location of the outer lim-
                     its of such continental shelf. The Court would also have to determine the
                     co‑ordinates of Colombia’s entitlement (which Nicaragua would limit to
                     the entitlement projecting 200 nautical miles from Colombia’s mainland
                     coast). After deciding on these facts, the Court would measure and deter-
                     mine the co‑ordinates of the area of overlap and then would divide it
                     equally between the Parties.
                        8. The Court has repeatedly made clear that it is the duty of a party
                     asserting certain facts to establish the existence of those facts (Application
                     of the Interim Accord of 13 September 1995 (the former Yugoslav Republic
                     of Macedonia v. Greece), Judgment, I.C.J. Reports 2011 (II), p. 668,
                     para. 72 ; Maritime Delimitation in the Black Sea (Romania v. Ukraine),
                     Judgment, I.C.J. Reports 2009, p. 86, para. 68). Thus, to prevail with respect
                     to the first variation of submission I (3), Nicaragua bears, at a minimum,
                     the burden of establishing both the existence and the outer limits of any
                     continental margin extending beyond 200 nautical miles of its coast.
                        9. To support its claim that continental shelf exists beyond 200 nauti-
                     cal miles, Nicaragua referred to the “Nicaraguan Rise”, which it described
                     as “a shallow area of continental crust extending from Nicaragua to
                     Jamaica” that represents the natural prolongation of Nicaragua’s main-
                     land territory. As to the location of the outer limits of its continental
                     shelf, Nicaragua provided the Court with a list of co‑ordinates. Accord-
                     ing to Nicaragua, those co‑ordinates were determined by using public
                     domain datasets containing bathymetric data to locate the foot of the
                     continental slope. Nicaragua asserts that it then located the outer limits
                     of its continental shelf, in accordance with Article 76, paragraph 4, of
                     UNCLOS, by drawing a line 60 nautical miles from five foot‑of‑slope
                     points. To support its position, Nicaragua annexed technical information
                     providing what it described as “[p]reliminary information indicative of
                     the outer limits” of its continental shelf and referred the Court to the

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                     “Preliminary Information” that it had filed with the Commission on the
                     Limits of the Continental Shelf, set up under Annex II to the 1982 Con-
                     vention. As Nicaragua explained, the purpose of filing Preliminary Infor-
                     mation is to toll the deadline by which coastal States must make their
                     submissions to the Commission ; the Preliminary Information itself will
                     not be considered by the Commission.
                        10. Given Nicaragua’s responsibility to prove to the Court the existence
                     and extent of any entitlement to continental shelf beyond 200 nautical
                     miles of its coast, it was not incumbent on Colombia to offer a competing
                     understanding of the geological and geomorphological facts or to propose
                     an alternative set of geographic co‑ordinates setting forth the outer limits
                     of Nicaragua’s continental shelf. And, indeed, Colombia did not do so.
                     Instead, Colombia attacked the sufficiency of the evidence presented by
                     Nicaragua as “woefully deficient”. As Colombia’s counsel stated, Nicara-
                     gua asked the Court to proceed to a delimitation “based on rudimentary
                     and incomplete technical information” that would not satisfy the require-
                     ments of the Commission. Among other criticisms of Nicaragua’s data,
                     Colombia asserted that the foot‑of‑slope points used by Nicaragua did not
                     comply with the Commission’s guidelines because they were not supported
                     by the requisite data, and therefore were unsubstantiated.
                        11. It is telling that, by Nicaragua’s own admission, the information
                     that it furnished to the Court, drawn from the information that it pro-
                     vided to the Commission in the form of Preliminary Information, does
                     not include data and information that the Commission requires of the
                     submissions that it reviews. In a technical annex that Nicaragua provided
                     to the Court, Nicaragua acknowledged “issues with the data quality” that
                     would be corrected as necessary in the final submission to the Commis-
                     sion. It also noted that the choice of foot‑of‑slope points presented in the
                     technical document — the points from which Nicaragua derives the outer
                     limits that it asks the Court to accept — “should be treated as indicative
                     only”.

                        12. Thus, this first variation of submission I (3) (like the submission in
                     Nicaragua’s Reply) would require the Court to reach factual conclusions
                     about the outer limits of Nicaragua’s continental shelf beyond 200 nauti-
                     cal miles of its coast on the basis of data that are “indicative” and that
                     will be revised or more fully supported in a final submission to the Com-
                     mission. Nicaragua failed to explain why the absence of certain support-
                     ing data required by the Commission, a body of technical experts, should
                     not concern the Court. If the information falls short of what is needed to
                     permit factual conclusions by expert scientists, surely it cannot be a suf-
                     ficient basis for the Members of this Court to reach factual conclusions
                     about the location of the outer limits of the continental shelf beyond
                     200 nautical miles of Nicaragua’s coast.

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                       13. It also is notable that Nicaragua proposed only to credit Colombia
                     with a 200‑nautical‑mile entitlement projecting from its mainland coast.
                     Without explanation, it excluded from consideration the continental shelf
                     entitlements generated by the Colombian islands of San Andrés, Provi-
                     dencia, and Santa Catalina (which the Parties agreed generate continental
                     shelf entitlements) in the area beyond 200 nautical miles of Nicaragua’s
                     coast.

                        14. Thus, to the extent that submission I (3) calls upon the Court to
                     delimit a specific continental shelf boundary in the area beyond 200 nau-
                     tical miles, I believe the Court was correct in not upholding the submis-
                     sion.

                         15. The second variation of submission I (3), suggested by Nicaragua’s
                     counsel in the oral proceedings, would call upon the Court not to effect a
                     precise delimitation, but rather to specify that the boundary between the
                     Parties is the median line between the outer limit of Colombia’s 200‑
                     nautical‑mile zone and the outer limits of Nicaragua’s continental shelf
                      fixed in accordance with UNCLOS Article 76. The Court was wise not
                      to accept this invitation. The Court has not been presented with sufficient
                      evidence in these proceedings to conclude that there is an area of conti-
                      nental shelf beyond 200 nautical miles of Nicaragua’s coasts. Moreover,
                      the suggestion by Nicaragua is, in essence, a request that the Court delimit
                      any area of overlap solely on the basis of the first step of the Court’s
                      established three‑step process — the construction of a provisional median
                      line — without an appreciation of the size of the area to be delimited and
                      without a factual basis to consider any circumstances calling for adjust-
                      ment of the median line or disproportionality. As the Court stated in its
                      most recent maritime delimitation case “[t]he object of delimitation is to
                      achieve a delimitation that is equitable, not an equal apportionment of
                      maritime areas” (Maritime Delimitation in the Black Sea (Romania v.
                      Ukraine), Judgment, I.C.J. Reports 2009, p. 100, para. 111). The Court
                      therefore could not have upheld Nicaragua’s submission I (3) without
                      simply assuming that an equal division of the Parties’ overlapping entitle-
                      ments would be equitable. Such an assumption would be on shaky ground
                      so long as the extent of any Nicaraguan entitlement to continental shelf
                      beyond 200 nautical miles of its coast remains unsupported by sufficient
                      evidence.

                       16. Under either of these two variations, the Court lacks a sufficient
                     factual basis to embrace Nicaragua’s proposed methodology. Thus, Nica-
                     ragua’s submission I (3) could not be upheld.

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                                  II. Misgivings about the Court’s Rationale
                              for Deciding not to Uphold Nicaragua’s Submission
                                        relating to Continental Shelf
                                          beyond 200 Nautical Miles

                       17. The Judgment states the Court’s conclusion that Nicaragua has
                     not established in these proceedings that it has a continental margin that
                     extends far enough to overlap with the 200‑nautical‑mile entitlement
                     extending from Colombia’s mainland coast, but the Court does not lay
                     out the factual inadequacies summarized above. I regret that it did not do
                     so, because those inadequacies provide a clear and case‑specific rationale
                     for the Court’s rejection of Nicaragua’s submission I (3).

                        18. The Judgment alludes to legal and institutional reasons for reject-
                     ing Nicaragua’s submission I (3). As discussed below, I agree with the
                     Court that those considerations counsel against delimitation in the area
                     beyond 200 nautical miles of Nicaragua’s coast, because the delimitation
                     methodology proposed by Nicaragua would require delineation of the
                     outer limits as the first step in the delimitation. To the extent that the
                     Judgment suggests a more general bar on the delimitation of entitlements
                     to continental shelf in areas beyond 200 nautical miles of coastal base-
                     lines, however, I respectfully disagree.

                        19. Delimitation of a maritime boundary is an exercise that is distinct
                     from the delineation of the outer limits of continental shelf. UNCLOS
                     makes clear that the Commission’s role in making recommendations to
                     coastal States regarding the establishment of the outer limits of the conti-
                     nental shelf is “without prejudice” to the delimitation of continental shelf
                     (Art. 76, para. 10). The International Tribunal for the Law of the Sea
                     affirmed this distinction in Dispute concerning Delimitation of the Mari‑
                     time Boundary between Bangladesh and Myanmar in the Bay of Bengal
                     (Bangladesh/Myanmar), Judgment of 14 March 2012, ITLOS, p. 120,
                     para. 410), stating that :
                             “[T]he fact that the outer limits of the continental shelf beyond
                           200 nautical miles have not been established does not imply that the
                           Tribunal must refrain from determining the existence of entitlement
                           to the continental shelf and delimiting the continental shelf between
                           the parties concerned.”
                        20. The Judgment recalls the Tribunal’s conclusion that scientific evi-
                     dence was not in dispute in that case and emphasizes that the case before
                     the Tribunal differed from the present case because Bangladesh and
                     Myanmar were both UNCLOS States parties and both had made submis-
                     sions to the Commission (although the Commission had made no recom-

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                     757 	 territorial and maritime dispute (sep. op. donoghue)

                     mendations). The Tribunal also noted that the area to be delimited was
                     far from the outer edge of the continental margin, such that delimitation
                     by the Tribunal could not prejudice the interests of third States in the sea
                     bed and ocean floor and subsoil thereof, beyond the limits of national
                     jurisdiction (Judgment of 14 March 2012, p. 115, para. 368).

                        21. Under these circumstances, the Tribunal rejected the contention
                     that it should not delimit in the area beyond 200 nautical miles of the par-
                     ties’ coasts. While the Tribunal cautioned that it would have been hesi-
                     tant to proceed with delimitation had there been uncertainty about the
                     existence of continental margin in the area in question (ibid., pp. 135-136,
                     para. 443), it made clear that “the absence of established outer limits of a
                     maritime zone does not preclude delimitation of that zone” (ibid., p. 115,
                     para. 370).
                        22. The distinction between delimitation of a maritime boundary and
                     delineation of the outer limits of the continental shelf is also evident in
                     the practice of some States (including UNCLOS States parties) that have
                     entered into agreements delimiting continental shelf in an area more than
                     200 nautical miles from their coasts before the outer limits have been
                     established (see David A. Colson, “The Delimitation of the Outer Conti-
                     nental Shelf between Neighboring States”, 97 American Journal of Inter‑
                     national Law (2003), p. 91). If the geography permits, it is possible for two
                     States to delimit overlapping entitlements to continental shelf in an area
                     more than 200 nautical miles from their coasts without specifying the
                     outer limits of their respective continental shelf entitlements, through
                     techniques such as the use of a directional arrow that extends the agreed
                     line of delimitation to the outer limits of the continental shelf, without
                     specifying the precise location of those limits. Such a delimitation would
                     not prejudice the interests of third States in the area beyond national
                     jurisdiction.

                        23. As noted above, Nicaragua’s proposed delimitation methodology
                     blurs the usual distinction between delimitation of a maritime boundary
                     and delineation of the outer limits of the continental shelf, because it
                     requires delineation as an initial step in delimitation. If the Court did so
                     before Nicaragua had established the outer limits of its continental shelf
                     based on the Commission’s recommendations (pursuant to the first varia-
                     tion discussed above), a variety of institutional and legal difficulties could
                     emerge in the future. For example, the Court’s conclusions regarding the
                     location of the outer limits, in a judgment that is binding on the parties,
                     might differ from recommendations that later emerge from the Commis-
                     sion. This possibility is a consequence of the particular delimitation meth-
                     odology requested by Nicaragua and it militates in favour of the Court’s
                     decision not to uphold Nicaragua’s submission I (3).

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                        24. Today’s Judgment does not call attention to the particular compli-
                     cations caused by Nicaragua’s proposed methodology. Instead, the Court
                     relies on a statement that it made in the Judgment rendered in 2007 in
                     Territorial and Maritime Dispute between Nicaragua and Honduras in the
                     Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports
                     2007 (II). In that case, the Court stated that the maritime boundary
                     between the two States (both of which are States parties to UNCLOS)
                     should not be interpreted as extending more than 200 nautical miles from
                     the baselines because “any claim of continental shelf rights beyond
                     200 [nautical] miles must be in accordance with Article 76 of UNCLOS
                     and reviewed by the Commission on the Limits of the Continental Shelf”
                     (ibid., p. 759, para. 319).
                        25. I have been puzzled by the quoted statement from the Court’s 2007
                     Judgment. I regret that the Court reaffirms that statement today without
                     acknowledging that delimitation is not precluded in every case in which
                     an UNCLOS State party seeks delimitation of continental shelf beyond
                     200 nautical miles before having established the outer limits of such con-
                     tinental shelf. Each such case must be considered in light of the particular
                     facts and circumstances. The general abstention from delimitation that
                     the Court suggested in 2007 would go too far. The Bangladesh/Myanmar
                     case illustrates that where the existence of continental shelf in the relevant
                     area is not in dispute and the methodology and geography do not require
                     a court or tribunal to make any factual finding regarding the outer limits
                     of the continental shelf, the “distinct” exercises of delimitation and delin-
                     eation of the outer limits of the continental shelf may proceed in parallel,
                     regardless of whether a State has established the outer limits of its conti-
                     nental shelf. That is quite a different situation from the one the Court
                     faces in the present case, in which the proposed delimitation methodology
                     would require the Court to reach conclusions about the same question of
                     fact that the technical experts comprising the Commission would also
                     address after receiving a complete submission from Nicaragua.

                        26. I am also troubled that the Court today extends the reasoning of
                     the 2007 Nicaragua v. Honduras Judgment to the present case, despite the
                     fact that Colombia is not an UNCLOS State party and customary inter-
                     national law thus governs. The Court today appears to suggest that it will
                     not entertain a proposed delimitation of continental shelf beyond
                     200 nautical miles of the coast of a State party to UNCLOS unless the
                     procedures contemplated in UNCLOS Article 76 have been completed,
                     even if the second State involved in the delimitation is not an UNCLOS
                     State party. The stated rationale is that Nicaragua has obligations to
                     other UNCLOS States parties. Nicaragua has obligations to its treaty
                     partners, of course, but the Court offers scant explanation for its conclu-
                     sion that those obligations preclude delimitation in this case.

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                         27. The Commission’s expectation that decades will elapse before it
                      will complete the work resulting from the submissions that it has received
                      to date makes it especially unfortunate that the Court has extended its
                      statement from the 2007 Nicaragua v. Honduras Judgment to apply not
                     only to a proposed delimitation between two States parties to UNCLOS,
                     but also to a proposed delimitation as between one UNCLOS State party
                     and one State that is not a party to UNCLOS.
                         28. The Court does not address the situation of two States, neither of
                     which is a party to UNCLOS, which seek to delimit their respective
                     entitlements to continental shelf in an area beyond 200 nautical miles of
                      their coasts. It goes without saying that such States have no duty to make
                      submissions to the Commission, so the Court’s observations regarding
                      Nicaragua’s obligations to States parties to UNCLOS cannot be extended
                      to them.
                         29. I do not mean to suggest here that the Court should be indifferent
                      to interests other than those of the two Parties to a proposed delimita-
                      tion. In the Western Caribbean, for example, the crowded geography
                      means that a delimitation methodology that is based on the location of
                      the outer limits of the continental shelf has potential implications for
                      third States with 200‑nautical‑mile entitlements that are opposable to a
                      claim to continental shelf beyond 200 nautical miles. The Court must take
                      account of such interests of non‑party States regardless of whether a State
                      asserting an entitlement to continental shelf beyond 200 nautical miles of
                      its coast is an UNCLOS State party.
                         30. The relationship between the Commission’s role under Article 76
                      of UNCLOS and that of an international court or tribunal asked to
                      delimit continental shelf beyond 200 nautical miles of a State’s coast is
                      not a tidy one. The Commission has decided that it will not consider sub-
                      missions that relate to areas in which the boundary is in dispute unless it
                      has the consent of the affected States. If the Court’s 2007 pronouncement
                      is understood to apply broadly, this Court can be expected to shy away
                      from the delimitation of boundaries in respect of continental shelf that is
                      beyond the 200‑nautical‑mile limit whenever the outer limits of the conti-
                      nental shelf claimed by an UNCLOS State party have not been estab-
                      lished on the basis of Commission recommendations. This would leave
                      some UNCLOS States parties in an unsatisfactory situation. If an area is
                      not delimited and therefore remains the subject of a dispute, the Commis-
                      sion will not make recommendations about the outer limits (absent the
                      consent of all involved States). And if the outer limits have not been
                      established on the basis of Commission recommendations, the Court’s
                      2007 statement suggests that it will not proceed with a delimitation. In
                      effect, each institution holds the door open and waits for the other to
                      walk through it. This outcome should be avoided where possible, as it
                      constricts the ways in which this Court and the Commission can contrib-
                      ute to the public order of the oceans and the peaceful resolution of mari-
                      time boundary disputes.

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                                III. A Postscript regarding the Failed Efforts
                                         by Costa Rica and Honduras
                                           to Intervene in This Case

                        31. I have voted for each of the dispositive paragraphs of the Judg-
                     ment and concur largely with the Court’s reasoning, except for the discus-
                     sion of the delimitation of the continental shelf in the area beyond
                     200 nautical miles of Nicaragua’s coast. Thus, I agree that Colombia, not
                     Nicaragua, has sovereignty over the features in dispute and I concur both
                     with the delimitation effected by the Court and with the rejection of Nica-
                     ragua’s submission II in dispositive paragraph (6).

                       32. As the Court notes, pursuant to Article 59 of the Statute of the
                     Court, its Judgment binds only the Parties. In addition, the Judgment indi-
                     cates that the Court has taken account of the interests of neighbouring
                     third States. No other third‑State interests were presented to the Court.
                       33. The interests of the Republic of Costa Rica and the Republic of
                     Honduras deserve additional comment, because those States filed Appli-
                     cations to intervene in this case on the basis of Article 62 of the Statute of
                     the Court. The Court rejected those Applications. I disagreed with the
                     decision to reject the Applications of Costa Rica and Honduras to inter-
                     vene as non‑parties and set forth my reasons in two dissenting opinions.

                        34. The Judgment takes account of the interests of these two States,
                     but this does not change my view that both Costa Rica and Honduras
                     met the criteria for intervention under Article 62.
                        35. I illustrate this point with one example. As I described in my dis-
                     senting opinion to the Court’s Judgment rejecting the Application of
                     Honduras (Territorial and Maritime Dispute (Nicaragua v. Colombia),
                     Application by Honduras for Permission to Intervene, Judgment,
                     I.C.J. Reports 2011 (II)), the Court’s Judgment on the merits of this case
                     had the potential to affect at least one interest of a legal nature pertaining
                     to Honduras. That interest stemmed directly from the case referred to
                     above — the Court’s 2007 Judgment in the case between Nicaragua and
                     Honduras (Territorial and Maritime Dispute between Nicaragua and Hon‑
                     duras in the Caribbean Sea (Nicaragua v. Honduras), Judgment,
                     I.C.J. Reports 2007 (II)). In that decision, the Court delimited the mari-
                     time boundary between Nicaragua and Honduras by deciding that from
                     a final turning point, the line should continue along a particular azimuth
                     “until it reaches the area where the rights of third States may be affected”
                     (ibid., p. 763, para. 321 (3)). As I explained in my dissent, if the maritime
                     boundary drawn by the Court in the present case were to intersect with
                     the Nicaragua/Honduras boundary, the point of intersection would be a
                     de facto endpoint to the 2007 line defining the Nicaragua/Honduras
                     boundary (see my dissenting opinion in the case concerning Territorial
                     and Maritime Dispute (Nicaragua v. Colombia), Application by Honduras
                     for Permission to Intervene, Judgment, I.C.J. Reports 2011 (II), p. 436,

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                     para. 49). This possibility can be seen in the map that accompanies the
                     Court’s Judgment rejecting the intervention application, which shows
                     Colombia’s proposed median line, which was before the Court when it
                     was considering whether Honduras had an “interest of a legal nature
                     which may be affected” by the Judgment. (Sketch‑map No. 3 in today’s
                     Judgment, p. 672, again shows Colombia’s proposed median line.)
                        36. The steps that the Court followed in arriving at the final boundary
                     illustrate why the Court should have concluded that Honduras had dem-
                     onstrated an interest of a legal nature that might have been affected by
                     the Judgment, thus meeting the requirements of Article 62. The boundary
                     line that was proposed by Colombia differs from the provisional median
                     line constructed by the Court today (sketch‑map No. 8, p. 701). When the
                     sketch‑map accompanying the Judgment of 4 May 2011 on intervention
                     is compared with sketch‑map No. 8 in today’s Judgment, it can be seen
                     that the provisional median line drawn by the Court in today’s decision
                     veers further to the east than does the median line proposed by Colombia
                     and considered by the Court in the intervention proceedings. The two
                     lines proceed on different courses because the Court did not make use of
                     base points on either Serrana or Quitasueño to construct the provisional
                     median line. As a result, the Court’s provisional median line does not
                     intersect with the boundary between Nicaragua and Honduras estab-
                     lished by the 2007 Judgment.

                        37. The fact that one Party proposed a boundary line proceeding to a
                     point of intersection with the Honduras/Nicaragua boundary line meant
                     that Honduras had a concrete interest of a legal nature that may have
                     been affected by the Court’s Judgment. If the Court had placed a base
                     point on either Serrana or Quitasueño (as Colombia proposed), the posi-
                     tion and angle of the Court’s provisional median line could have caused
                     it to proceed in a more northerly direction and thus to intersect with the
                     Nicaragua/Honduras boundary line (like the boundary line proposed by
                     Colombia). Had such a provisional median line not been modified (which
                     could not have been foreseen at the intervention phase), this would have
                     created the de facto endpoint to the Nicaragua/Honduras boundary.
                     Thus, the selection of base points had the potential to affect Honduras’s
                     interest of a legal nature, justifying its intervention as a non‑party.

                                                               (Signed) Joan E. Donoghue.

                     141

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