                     721

                                      DISSENTING OPINION OF JUDGE OWADA

                        1. I have voted in favour of all the conclusions of the Court relating to
                     the merits of the dispute as contained in the operative paragraph of the
                     Judgment (paragraph 251, subparagraph (1) and subparagraphs (3)
                     through (6)). However, I have been unable to vote in favour of subpara-
                     graph (2) of the operative paragraph that relates to the issue of admissi-
                     bility of the claim by Nicaragua contained in its final submission I (3). I
                     wish to explain why I believe that the conclusion of the Court on this
                     point is not in line with the criterion for judging admissibility of a claim
                     as developed by the Court and not right as a matter of principle.
                        2. Nicaragua as Applicant, in its original submission contained in the
                     Application of 6 December 2001, stated inter alia that :
                               “Accordingly, the Court is asked to adjudge and declare :
                           �����������������������������������������������������������������������������������������������������������������
                               Second, in the light of the determinations concerning title requested
                           above, the Court is asked further to determine the course of the single
                           maritime boundary between the areas of continental shelf and exclu-
                           sive economic zone appertaining respectively to Nicaragua and
                           Colombia, in accordance with equitable principles and relevant cir-
                           cumstances recognized by general international law as applicable to
                           such a delimitation of a single maritime boundary.” (Application,
                           p. 8, para. 8.)
                     It maintained the same formulation in its Memorial submitted on 28 April
                     2003 (Memorial of Nicaragua, para. 3.39 ; Submissions at pp. 265‑267).
                     It, however, changed its submissions in its Reply of 18 September 2009
                     (submission I (3)). The final submissions of the Applicant, as read out at
                     the conclusion of the oral proceedings held on 1 May 2012, specifies its
                     claim as follows :
                               “I. May it please the Court to adjudge and declare that :
                           �����������������������������������������������������������������������������������������������������������������
                               (3) The appropriate form of delimitation, within the geographical
                           and legal framework constituted by the mainland coasts of Nicaragua
                           and Colombia, is a continental shelf boundary dividing by equal parts
                           the overlapping entitlements to a continental shelf of both Parties.”
                           (Judgment, para. 17.)
                       3. Colombia as Respondent lodged its objection to this, charging that
                     “Nicaragua’s maritime claims, and the basis on which those claims have
                     been formulated, have undergone a radical change at a very late stage

                     101

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                     722 	     territorial and maritime dispute (diss. op. owada)

                     of these proceedings” and that “this has fundamentally changed the
                     subject‑matter of the dispute which Nicaragua originally asked the Court to
                      decide” (CR 2012/12, p. 44, para. 2). It elaborated its contention of inad-
                      missibility of the new claim of the Applicant by stating that “Nicaragua
                      has not simply reformulated its claim ; it has changed the very subject‑
                      matter of the case” (ibid., p. 45, para. 10). It thus suggests that this new
                      position that the Applicant takes in the present case is contrary to Article 40
                      of the Statute and Article 38 of the Rules of Court (ibid., p. 49, para. 32).
                        In its final submission read out at the conclusion of the oral proceed-
                      ings on 4 May 2012, the Respondent stated as follows :
                             “. . . Colombia requests the Court to adjudge and declare :
                           (a) That Nicaragua’s new continental shelf claim is inadmissible and
                               that, consequently, Nicaragua’s Submission I (3) is rejected.”
                               (Judgment, para. 17.)
                        4. In this situation the Court, before proceeding to the examination on
                     the merits of the respective claims of the Parties, had to determine as a
                     preliminary issue whether this newly formulated submission of the claim
                     made by the Applicant in its final submission I (3) was admissible.
                        5. Both the Applicant and the Respondent cite the jurisprudence of
                     this Court principally on the basis of two recent cases before the Court —
                     that is, the case concerning Certain Phosphate Lands in Nauru and the
                     case concerning Ahmadou Sadio Diallo — in order to determine whether
                     or not this allegedly newly formulated claim of the Applicant can be con-
                     sidered admissible. For this purpose, both Parties developed their argu-
                     ments on the basis of the criteria developed by the Court in its
                     jurisprudence on admissibility of a new claim — that is, either the new
                     claim has been implicit in the Application or it arises directly out of the
                     question which is the subject‑matter of the Application.
                        6. In my view it is doubtful whether either of these two cases is strictly
                     pertinent to the present case. In each of these recent cases the alleged new
                     claim advanced at a later stage of the proceedings by the Applicant was,
                     in its essential character, a new additional claim which had not expressly
                     been included in the original Application but which the Applicant
                     claimed — and the Respondent denied — to have been covered by the
                     original claim formulated in the original Application. It is submitted that
                     such is not the situation in the present case. An automatic and mechani-
                     cal application of these precedents thus could miss the essence of the pres-
                     ent case.

                        The essence of the situation in the present case is that the Applicant
                     attempted to replace the original formulation of the claim submitted to
                     the Court in its Application by a newly formulated, ostensibly different,
                     claim relating to the existing dispute. In this sense, the present case is
                     unique and has no exact jurisprudential precedent of the Court.
                        7. If we try to find an analogous situation in the jurisprudence of the
                     Court, the case which is more akin to the situation in the present case would

                     102

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                     723 	     territorial and maritime dispute (diss. op. owada)

                     be the case concerning Société commerciale de Belgique (Judgment, 1939,
                     P.C.I.J., Series A/B, No. 78), between Belgium and Greece, which came
                     before the Permanent Court of International Justice in 1939. In this case, the
                     original claim of the Applicant, the Belgian Government, contained in its
                     Application, asked the Court to declare that “the Greek Government, by
                     refusing to carry out the arbitral awards in favour of the Belgian Company,
                     had violated its international obligations” (ibid., p. 170). In its Counter‑
                     Memorial, the Respondent disputed this allegation that it had refused to
                     carry out the arbitral awards. It advanced the contention that it had neither
                     refused to carry out the awards nor disregarded the acquired rights of the
                     Belgian company, and claimed that it had committed no act which was con-
                     trary to international law. Thereupon, the Applicant decided to treat these
                     declarations of the Greek Government as changing the character of the dis-
                     pute between the two Parties, and, at the conclusion of the oral pleadings,
                     the final submissions of the Belgian Government were given a new form. It
                     now asked the Court to rule that “all the provisions of the awards were bind-
                     ing on the Greek Government without reserve” (ibid., p. 171). No objection
                     was raised by the Respondent to this abandonment by the Applicant of its
                     original submissions which had asked the Court to declare that “the Greek
                     Government . . . had violated its international obligations” (ibid., p. 170) by
                     refusing to pay the arbitral awards in favour of the Belgian company.
                        8. It was under these unusual circumstances that the Court made the
                     following pronouncement :
                              “The Court has not failed to consider the question whether the
                           Statute and Rules of Court authorize the parties to transform the
                           character of a case as profoundly as the Belgian Government has done
                           in this case.
                              It is to be observed that the liberty accorded to the parties to amend
                           their submissions up to the end of the oral proceedings must be con-
                           strued reasonably and without infringing the terms of Article 40 of
                           the Statute and Article 32, paragraph 2, of the Rules which provide
                           that the Application must indicate the subject of the dispute. The
                           Court has not hitherto had occasion to determine the limits of this
                           liberty, but it is clear that the Court cannot, in principle, allow a
                           dispute brought before it by application to be transformed by amend-
                           ments in the submissions into another dispute which is different in
                           character. A practice of this kind would be calculated to prejudice the
                           interests of third States to which, under Article 40, paragraph 2, of
                           the Statute, all applications must be communicated in order that they
                           may be in a position to avail themselves of the right of intervention
                           provided for in Articles 62 and 63 of the Statute. Similarly, a complete
                           change in the basis of the case submitted to the Court might affect
                           the Court’s jurisdiction.” (Ibid., p. 173.)
                        Under these exceptional special circumstances of the case, the Court,
                     after thus stating the general principles governing this issue, nevertheless
                     accepted in the end this “transformation”. It declared that

                     103

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                     724 	     territorial and maritime dispute (diss. op. owada)

                           “[t]he Court, however, considers that the special circumstances of this
                           case as set out above, and more especially the absence of any objection
                           on the part of the Agent for the Greek Government, render it advisable
                           that it should take a broad view and not regard the present proceed-
                           ings as irregular” (P.C.I.J., Series A/B, No. 78, p. 173 ; emphasis
                           added).
                        9. By comparison, it is not possible to find in the present case any such
                     exceptional special circumstances that could justify the drastic change in
                     the character of the claim. What is more pertinent and crucial, the
                     Respondent in the present case raised a strong objection to this novel
                     formulation of the claim advanced by the Applicant at that late stage of
                     the proceedings.
                        10. One could only surmise the background of this change of position
                     from what the Applicant explained before the Court :
                              “Once the Court had upheld ‘[Colombia’s] first preliminary objec-
                           tion . . . in so far as it concern[ed] the Court’s jurisdiction as regards
                           the question of sovereignty over the islands of San Andrés, Providen-
                           cia and Santa Catalina’ in its Judgment of 13 December 2007, Nica-
                           ragua could only accept that decision and adjust its submissions (and
                           its line of argument) accordingly.” (CR 2012/15, p. 38, para. 11.)

                        11. Whatever may be the background, what is essential for our assess-
                     ment of the situation is that, contrary to the case concerning Société Com‑
                     merciale de Belgique, the 2007 Judgment of the Court did not produce
                     any such fundamental change in the objective legal situation surrounding
                     the maritime delimitation of the area in question, as to require the Appli-
                     cant to give up its original position and to drastically change its principal
                     claim as well as its legal basis.

                       12. The present Judgment accepts that
                           “from a formal point of view, the claim made in Nicaragua’s final
                           submission I (3) (requesting the Court to effect a continental shelf
                           boundary dividing by equal parts the overlapping entitlements to a
                           continental shelf of both Parties) is a new claim in relation to the
                           claims presented in the Application and the Memorial” (Judgment,
                           para. 108).
                     It however rejects the contention of Colombia that this revised claim
                     transforms the subject‑matter of the dispute, arguing that “[t]he fact that
                     Nicaragua’s claim to an extended continental shelf is a new claim . . . does
                     not, in itself, render the claim inadmissible” (ibid., para. 109). It cites a
                     dictum from its own Judgment in the case concerning Ahmadou Sadio Diallo
                     that “the decisive consideration is the nature of the connection between
                     that claim and the one formulated in the Application instituting proceed-
                     ings” (ibid.). Relying largely upon the argument of the Applicant, the

                     104

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                     725 	    territorial and maritime dispute (diss. op. owada)

                     Judgment states that “the Application defined the dispute as ‘a group of
                     related legal issues subsisting between the Republic of Nicaragua and the
                     Republic of Colombia concerning title to territory and maritime delimita-
                     tion’” (Judgment, para. 111). On the basis of this understanding, the
                     Judgment concludes that “the [revised] claim . . . falls within the dispute
                     between the Parties relating to maritime delimitation and cannot be said
                     to transform the subject‑matter of that dispute” (ibid.). I respectfully dif-
                     fer from this perception of the Court about the nature and the
                     subject‑matter of the dispute as submitted to the Court by the Applicant.

                        13. In its nature, this sudden change of position on the part of the
                     Applicant cannot but be described as anything but a radical transforma-
                     tion of the subject‑matter of the dispute itself. If the jurisprudence of the
                     Court for admissibility of a new claim were to be applicable to the present
                     case, it would be difficult to justify this newly formulated claim as a claim
                     “[that] must have been implicit in the application . . . or must arise
                     ‘directly out of the question which is the subject‑matter of that Applica-
                     tion’” (Certain Phosphate Lands in Nauru (Nauru v. Australia), Prelimi‑
                     nary Objections, Judgment, I.C.J. Reports 1992, p. 266, para. 67).
                        14. The Applicant argues that the legal situation after this newly refor-
                     mulated submission replaced its original submission remains no different
                     from the legal situation that had existed before ; that the subject of the
                     dispute has thus not been modified. It is argued that the issue of the subject
                     of the dispute was, and still is, nothing else than “to obtain declarations
                     concerning title and the determination of maritime boundaries [between
                     Nicaragua and Colombia]” as paragraph 9 of the Application makes clear
                     and “should not be confused with the means by which it is suggested to
                     resolve it” (CR 2012/15, p. 37, para. 9). I am unable to agree with this posi-
                     tion. The legal character of a continental shelf based on the distance crite-
                     rion and that of a continental shelf based on the natural prolongation
                     criterion are quite distinct ; thus the rules applicable for determining the
                     continental margin boundary on the basis of the principle of natural pro-
                     longation extending beyond the 200 mile limit of the continental shelf as
                     against the continental shelf determined by the distance criterion of
                     200 nautical miles from the coast of the land territory (United Nations
                     Convention on the Law of the Sea, Art. 76) are entirely distinct and differ-
                     ent from the rules applicable for determining the extent of the continental
                     shelf between the opposite or adjacent states (ibid., Art. 83).
                        15. In effect, what is proposed by the Applicant by way of its newly
                     reformulated submission I (3) is not something that can be characterized
                     as relating only to “the means by which it is suggested to resolve [the dis-
                     pute]” (CR 2012/15, p. 37, para. 9 ; emphasis added).
                        16. With regard to the subject‑matter of the “dispute”, for the resolu-
                     tion of which the newly reformulated claim of an extended continental
                     shelf of Nicaragua is purportedly being advanced, replacing the original
                     request for “a single maritime boundary” (Application, para. 8), it is to
                     be noted that there is no express definition in the Application to indicate

                     105

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                     726 	     territorial and maritime dispute (diss. op. owada)

                     what exactly in the view of the Applicant constitutes the dispute being
                     submitted by the Applicant in the present case, except for several general
                     references to “the dispute”, such as that “[t]he dispute [submitted to the
                     Court] consists of a group of related legal issues . . . concerning title to
                     territory and maritime delimitation” (Application, para. 1). Nowhere in
                     the Application is to be seen what concretely is the dispute that the Appli-
                     cant is envisaging to refer to the Court.
                        It is only when we come to the crucial part of the Application which
                     deals with concrete requests for the Court to adjudge and declare in the
                     present case (ibid., para. 8), that the Application specifically states that :
                           “in the light of the determinations concerning title requested above,
                           the Court is asked further to determine the course of the single mar-
                           itime boundary between the areas of continental shelf and exclusive
                           economic zone appertaining respectively to Nicaragua and Colombia,
                           in accordance with equitable principles and relevant circumstances
                           recognized by general international law as applicable to such a delim-
                           itation of a single maritime boundary”.
                     This language could not be clearer ; its purport is to identify a very spe-
                     cific objective that the Applicant seeks to attain by the Judgment, that is,
                     the determination of the course of a single maritime boundary constitut-
                     ing both the continental shelf boundary and the economic zone bound-
                     ary. It cannot be read as merely indicating one possible means to be
                     employed by the Court for achieving the general objective of demarcating
                     maritime areas lying between the two Parties.
                        17. If this were a case submitted jointly by the disputing parties through
                     a special agreement, such language as is used in this Application would
                     undoubtedly have constituted a binding agreement of the parties setting
                     out the framework of the task assigned to the Court, from which the
                     Court could not derogate. While it is true that such is not the case in the
                     present proceedings, this Application, which the other Party not only did
                     not contest with regard to the existence and the contents of this dispute
                     but which it positively acted upon as defining the framework and the
                     scope of the dispute in the present proceedings, should be regarded as
                     constituting the agreed basis of the framework of the case before the
                     Court.
                        In this sense it must be said that the present situation is qualitatively
                     different from the situation where parties are free to choose, modify or
                     even discard the means through which they argue their respective cases on
                     a defined point at issue.
                        18. It may be accepted that the “principal purpose of this Application”
                     seeking the judicial settlement of the dispute may have been “to obtain
                     declarations concerning title and the determination of maritime boundar-
                     ies” (CR 2012/15, p. 35, para. 6). Nonetheless, the specific request submit-
                     ted by the Applicant to the Court for achieving this general purpose was
                     for the Court “to determine the course of the single maritime boundary
                     between the areas of continental shelf and exclusive economic zone apper-

                     106

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                     727 	    territorial and maritime dispute (diss. op. owada)

                     taining respectively to Nicaragua and Colombia” (Application, para. 8),
                     and not such a generally formulated request that “whatever method or
                     procedure is adopted by the Court to effect the delimitation . . . the deci-
                     sion [of the Court] leaves no more maritime areas pending delimitation
                     between Nicaragua and Colombia” (CR 2012/8, p. 25, para. 44).
                        19. Having discussed so far in terms of the concrete context of the
                     case, I wish to turn now to what in my view is an even more important
                     point — namely, the consideration of judicial policy of this Court. The
                     present instance of what I believe to be a transformation of the dispute
                     already before the Court into another dispute is different in character
                     from the normal case of procedural irregularities, to which the Court,
                     being an international jurisdiction, can sometimes take a more flexible
                     position. The present case in my view is not a mere matter of procedural
                     formality with only a limited impact on the procedural fairness of the
                     case in issue.

                        20. In the case concerning Certain Phosphate Lands in Nauru, the
                     Court took the view that from a formal point of view the additional claim
                     relating to certain outside assets that appeared in the Nauruan Memorial
                     was a new claim as compared with the original claim presented in the
                     Application. Nevertheless, it took the position that it should consider
                     whether, although formally a new claim, this claim could be considered as
                     included in the original claim in substance. In considering this point, the
                     Court took careful account of the position enunciated by the Perma-
                     nent Court of International Justice in an earlier case that “[t]he Court,
                     whose jurisdiction is international, is not bound to attach to matters of
                     form the same degree of importance which they might possess in munici-
                     pal law” (Mavrommatis Palestine Concessions, Judgment No. 2, 1924,
                     P.C.I.J., Series A, No. 2, p. 34). After an extensive consideration of this
                     point, the Court nonetheless came to the conclusion that “the Nauruan
                     claim . . . is inadmissible inasmuch as it constitutes, both in form and in
                     substance, a new claim, and the subject of the dispute originally submit-
                     ted to the Court would be transformed if it entertained that claim” (Cer‑
                     tain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary
                     Objections, Judgment, I.C.J. Reports 1992, p. 267, para. 70).
                        21. In the present case the same consideration should apply. If the
                     Court were to accept this radical change in the Applicant’s submission,
                     then the whole issue of maritime delimitation would acquire a totally dif-
                     ferent legal character, not only in form but also in substance. Depending
                     upon whether the Court is deciding on the issue of maritime demarcation
                     between the two States in relation to the sea areas covering both conti-
                     nental shelf and exclusive economic zone, or the issue of the delimitation
                     of the continental shelf alone of the two States respectively based on
                     totally different theoretical grounds, the legal character of the issue
                     involved can be totally different. The latter issue would involve an exami-
                     nation of such basic questions as the following : one fundamental point to
                     be clarified in relation to the latter issue, which does not exist in the for-

                     107

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                     728 	     territorial and maritime dispute (diss. op. owada)

                     mer issue, relates to the question of geological or geomorphological fea-
                     tures of the maritime areas involved, including the geological nature of
                     the relevant islands, islets, cays and other maritime features in the area.
                     Another difficult question will arise in relation to the unsettled doctrine of
                     how to effect a maritime delimitation of overlapping areas of continental
                     shelf entitlements between two States claimed on the strength of different
                     legal bases by each Party — one claim based on the criterion of natural
                     prolongation extending beyond 200 nautical miles from the baseline of
                     the coast, the other based on the criterion of pure distance. No State
                     practice has developed and no jurisprudence exists on this point. Yet
                     another difficulty the Court will have to face is the question of applicabil-
                     ity vel non of the relevant prescriptive conditions contained in UNCLOS,
                     especially its Article 76, to the extent that one of the Parties, Colombia, is
                     not a party to the Convention.

                        22. These are not issues which were envisaged by the Parties or by the
                     Court when the original submission of the Applicant was made in its
                     Application and its Memorial ; nor were they argued in full at the last
                     stage of the written proceedings or at the stage of oral proceedings by
                     both of the Parties. The contradiction inherent in the position of the
                     Applicant is well illustrated in the following confirmatory statement in
                     the Memorial of the Applicant itself :
                              “The Relevance of Geology and Geomorphology
                              The position of the Government of Nicaragua is that geological
                           and geomorphological factors have no relevance for the delimitation
                           of a single maritime boundary within the delimitation area.” (Memo-
                           rial of Nicaragua, p. 215, para. 3.58.)
                        23. One important point for the Court to consider is that this radical
                     change in the Applicant’s position took its concrete form only in late
                     2007, ostensibly in connection with the 2007 Judgment of the Court on
                     the Preliminary Objections phase of the case (13 December 2007), more
                     than six years after the dispute had been submitted in its original form in
                     2001. The rationale of the prohibition of the transformation of the dis-
                     pute into a new dispute is solidly founded on the consideration of fair
                     administration of justice to be applied to both parties and the consider-
                     ation of legal stability and predictability. This to my mind is an essential
                     point of principle to be emphasized in the present setting as a matter of
                     judicial policy of the Court.
                        24. In light of this situation, it should be no source of surprise to find
                     that the Court in the present Judgment has found, while accepting that the
                     newly reformulated claim of the Applicant is procedurally admissible, that
                     it nonetheless could not entertain the examination of the substantive claim
                     of the Applicant on this point. What the Court decided to do in this Judg-
                     ment, after upholding the procedural admissibility of submission I (3) of
                     the Application, was to engage in the analysis of the essential legal nature
                     of this claim (Part IV), treating it separately from the more general exami-

                     108

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                     729 	    territorial and maritime dispute (diss. op. owada)

                     nation of the original claim of the Applicant relating to the delimitation of
                     the relevant maritime area between the two opposing States (Part V).
                     Clearly the Court has concluded that the issue now raised by Nicaragua in
                     its final submission I (3) was of such a nature that the Court at this stage
                     of the proceedings should not address it as if it were part and parcel of the
                     general basket of issues relating to the maritime delimitation raised in the
                     Application of Nicaragua. It is in my view for this reason that the Court
                     did not proceed to dispose of this Nicaraguan submission I (3) by simply
                     rejecting it on the basis of inadequacy of evidence produced by Nicaragua.
                     More than the issue of evidence is involved, as is revealed in the treatment
                     of the problem involved in Part IV of the Judgment.
                        25. Reflecting this anomalous situation the present Judgment, while
                     accepting that the reformulated claim of the Applicant is procedurally
                     admissible, analyses the essential legal nature of this claim in an indepen-
                     dent Part IV, in between Part III (which deals with the procedural issue
                     of admissibility of the reformulated claim of the Applicant in I (3) of its
                     final submissions) and Part V (which discusses the general issues of mari-
                     time delimitation). The Judgment treats this as a separate issue from
                     either of the other two issues, arriving at the conclusion that this claim
                     had to be rejected. For this reason, among others, Part IV is kept separate
                     from Part III and Part V.

                        26. This approach adopted in the Judgment would seem to reflect the
                     awareness on the part of the Court of the differences that exist in the legal
                     nature of the two different issues involved in relation to the regions of the
                     continental shelf, as described in paragraph 21 above. This to me is one
                     more reason why the Court should have distanced itself from this newly
                     reformulated claim of Nicaragua by declaring it to be inadmissible in the
                     present proceedings.

                                                                    (Signed) Hisashi Owada.

                     109

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