                     74

                            DISSENTING OPINION OF JUDGE AD HOC CARON

                        Disagreement with dismissal by the Court of Colombia’s second preliminary
                     objection — Requirement that there be a “dispute” as a general limitation to the
                     contentious jurisdiction of the Court — Specific requirement for a “dispute” under
                     the Pact of Bogotá — Meaning of “dispute” — Unprecedented character of the
                     present case — Contention by Colombia that there is no dispute between the Par‑
                     ties resting on the allegation that no “claim” was made by Nicaragua that was
                     capable of being “positively opposed” by Colombia — No capacity for Court to
                     infer the existence of a “claim” giving rise to a dispute — To have jurisdiction,
                     Court must find that Nicaragua made a “claim” on those points of law or fact to
                     which the present proceedings relate — Evidence as to the existence of a “dis‑
                     pute” — No basis for a finding that there was a dispute between the Parties as to
                     the subject‑matter now before the Court prior to the filing of the Application.

                        Disagreement with dismissal by the Court of Colombia’s third preliminary
                     objection — Negotiation as a condition precedent to recourse to Court — Court’s
                     characterization of circumstances in which negotiation may be dispensed with —
                     Disagreement that those circumstances pertain in the present case — Evidentiary
                     record does not support conclusion that settlement not possible or contemplated by
                     the Parties — Interrelationship between second and third preliminary objection —
                     Importance of negotiations to defining the subject‑matter of the dispute ultimately
                     brought for judicial settlement.

                                                    I. Introduction

                       1. I respectfully dissent in respect of the Court’s finding on Colombia’s
                     second and third preliminary objections inasmuch as the Court’s reason-
                     ing departs from its own jurisprudence and is not supported by the evi-
                     dence before it. Beyond the particulars of this case, it is of great concern
                     that in finding that it possesses jurisdiction, the Court’s reasoning under-
                     mines in my opinion broader concepts underlying the peaceful settlement
                     of disputes.

                        2. The Court’s Judgment addresses its jurisdiction over the claims of
                     Nicaragua that base the Court’s competence first and foremost on Arti-
                     cle XXXI of the Pact of Bogotá. It is important to recall that the full title
                     of that Treaty is the “American Treaty on Pacific Settlement”. The Treaty
                     promotes the pacific settlement of disputes by setting forth various means
                     of doing so. The means set forth in the treaty begins with the “general
                     obligation to settle disputes by pacific means” (Chapter One, Articles I
                     to VIII), proceeds to “procedures of good offices and mediation” (Chap-

                     75

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                     75 	   sovereign rights and maritime spaces (diss. op. caron)

                     ter Two, Articles IX to XIV), sets forth a “procedure of investigation and
                     conciliation” (Chapter Three, Articles XV to XXX), and lastly reaches in
                     Chapter Four Article XXXI a “judicial procedure” of reference to this
                     Court, assuming that the parties have not provided instead for arbitration
                     (Chapter Five, Articles XXXVIII to XLIX). The Treaty is careful to
                     point out that the “order of the pacific procedures . . . does not signify the
                     parties may not have recourse to the procedure which they consider most
                     appropriate . . . or that any of them have preference over others except as
                     expressly provided” (Article III). But the phrase “except as expressly pro-
                     vided” is important. The exceptions expressly provided in each means of
                     settlement are important and are the bedrock of my dissent to the Court’s
                     Judgment in respect of the second and third preliminary objections.

                        3. There may not be a regimented staircase of procedures in the Pact of
                     Bogotá, but peaceful settlement within the scheme of the Pact carefully
                     climbs from dialogue in which each State’s concerns are voiced to each
                     other, upwards to the various means by which settlement may be negoti-
                     ated and finally to the power of the Court or a tribunal to decide “dis-
                     putes of a juridical nature”. A disagreement is more than a pattern of
                     conduct that might imply a difference in views. As the Pact recognizes,
                     communication is essential because a disagreement cannot be settled
                     unless there is a dialogue that defines what is in dispute. Indeed, unless a
                     dispute in this sense “exists”, then it is difficult to envision what is to be
                     negotiated.

                        4. I dissent from the Court’s Judgment because it fundamentally weak-
                     ens this scheme, reducing the complexity of the scheme for the settlement
                     of disputes set out in the American Treaty on Pacific Settlement into
                     essentially a simple acceptance of the Court’s jurisdiction. The Judgment
                     in profoundly shifting the requirement that there be a dispute holds that
                     the Applicant to the Court need not have engaged in dialogue, and need
                     not have expressed its concerns to the other State. Without such dialogue,
                     the Parties will not have had the opportunity to define the dispute, refine
                     the dispute, and — one can hope — narrow or even settle the dispute. As
                     critically, if the Applicant need not have engaged in dialogue with the
                     other Party, then any duty to negotiate as a practical matter is substan-
                     tially weakened. International disputes are complex and boundary dis-
                     putes are amongst the most difficult to resolve. The law gives answers, but
                     not necessarily the most nuanced answers, in such complex situations. It
                     is essential that the Court or a tribunal possess the jurisdiction to give the
                     answer to a dispute when necessary or when called upon by both parties.
                     But it is only necessary when the dispute between two States “cannot be
                     settled by direct negotiations” — language in the Pact of Bogotá that the
                     Court’s jurisprudence holds to be a precondition to jurisdiction under the
                     Pact. It is regrettable that the present Judgment in its holdings regarding
                     the second and third preliminary objections formally reaffirms, yet sub-

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                     76 	   sovereign rights and maritime spaces (diss. op. caron)

                     stantively negates, the requirement that a dispute exists and the obliga-
                     tion to pursue negotiations.

                                      II. The Second Preliminary Objection
                                          as to the Existence of a Dispute

                                      1. The Requirement that a Dispute Exist
                        5. The Court reaffirms in its Judgment that the existence of a dispute is
                     a precondition to the Court’s exercise of jurisdiction over this, and indeed
                     any, case. The Court, however, simultaneously also departs from its own
                     jurisprudence on this requirement. That jurisprudence indicates the
                     importance of initiating an assessment of the existence of a “dispute” with
                     identification of both a “claim” and “positive opposition” to that claim
                     by the States party to the Court’s proceedings. Applying the Court’s pre-
                     vious jurisprudence as to the meaning and existence of a dispute, I am
                     unable to see how a “dispute” as to the subject‑matter invoked by Nica-
                     ragua in its Application existed at the requisite date. In these circum-
                     stances, I am unable to agree with the Court’s claim to jurisdiction over
                     the present proceedings.

                        6. The requirement of a dispute between the parties is a general limita-
                     tion to the contentious jurisdiction of the Court. In the Nuclear Tests
                     cases, where partway through the proceedings the basis of the dispute was
                     found to have become moot, the Court stated: “the existence of a dispute
                     is the primary condition for the Court to exercise its judicial function”
                     (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974,
                     pp. 270‑271, para. 55 ; Nuclear Tests (New Zealand v. France), Judgment,
                     I.C.J. Reports 1974, p. 476, para. 58). Mootness involves the situation
                     where a dispute no longer exists. Ripeness asks whether a dispute exists,
                     that is, whether it has come into being. It is this latter situation that is at
                     issue in the second objection.

                        7. In addition to the requirement that a dispute exist as a general limi-
                     tation on the contentious jurisdiction of the Court, this limitation may
                     also arise from the particular instrument asserted to be the basis of the
                     Court’s jurisdiction. Thus, in this case, the Court’s Judgment refers also
                     to Article XXXI of the Pact of Bogotá, where the parties to the Pact
                     accept the Court’s jurisdiction in respect of “disputes of a juridical
                     nature . . .” (Judgment, paras. 15 and 50). The particular instrument may
                     place additional limitations on the jurisdiction of the Court, but these
                     further requirements are best viewed as additional requirements rather

                     77

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                     77 	   sovereign rights and maritime spaces (diss. op. caron)

                     than a change in the meaning of the term “dispute” itself. Such reasoning
                     is implicit in the Mavrommatis case where the Permanent Court of Inter-
                     national Justice (PCIJ) wrote :
                             “Before considering whether the case of the Mavrommatis conces-
                          sions relates to the interpretation of application of the Mandate and
                          whether consequently its nature and subject are such as to bring it
                          within the jurisdiction of the Court as defined in the article quoted
                          above, it is essential to ascertain whether the case fulfils all the other
                          conditions laid down in this clause. Does the matter before the Court
                          constitute a dispute between the Mandatory and another Member of
                          the League of Nations ? Is it a dispute which cannot be settled by
                          negotiation?” (Mavrommatis Palestine Concessions, Judgment No. 2,
                          1924, P.C.I.J., Series A, No. 2, p. 11 ; emphasis in the original.)
                     See also Application of the International Convention on the Elimination of
                     All Forms of Racial Discrimination (Georgia v. Russian Federation), Pre‑
                     liminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 84, para. 29
                     (holding that “consistency of usage suggests that there is no reason to
                     depart from the generally understood meaning of ‘dispute’ in the compro-
                     missory clause contained in Article 22 of CERD”).
                        8. The meaning of the term “dispute” is set forth reasonably fully in
                     the Court’s jurisprudence. In its Judgment in 1924 in the Mavrommatis
                     case, the PCIJ held that: “A dispute is a disagreement on a point of law
                     or fact, a conflict of legal views or of interests between two persons.”
                     (Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J.,
                     Series A, No. 2, p. 11.) This Court’s later jurisprudence concerning the
                     elements of a dispute adds detail and precision to the view of the PCIJ.
                     The Court in the South West Africa cases held :

                             “[I]t is not sufficient for one party to a contentious case to assert
                          that a dispute exists with the other party. A mere assertion is not
                          sufficient to prove the existence of a dispute any more than a mere
                          denial of the existence of the dispute proves its non‑existence. Nor is
                          it adequate to show that the interests of the two parties to such a case
                          are in conflict.” (I.C.J. Reports 1962, p. 328 ; emphasis added.)

                     If a mere conflict of interest as suggested in Mavrommatis is not “ade-
                     quate”, the Court refined the intensity element required of the dispute by
                     holding repeatedly that the claim of one State must be “positively
                     opposed” by another (South West Africa (Ethiopia v. South Africa ; Lib
                     eria v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports
                     1962, p. 328 ; Armed Activities on the Territory of the Congo (New Appli‑
                     cation: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction
                     and Admissibility, Judgment, I.C.J. Reports 2006, p. 40, para. 90 ; Applica‑
                     tion of the International Convention on the Elimination of All Forms of

                     78

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                     78 	   sovereign rights and maritime spaces (diss. op. caron)

                     Racial Discrimination (Georgia v. Russian Federation), Preliminary Objec‑
                     tions, Judgment, I.C.J. Reports 2011 (I), pp. 84‑85, para. 30).

                        9. Publicists examining the Court’s jurisprudence have elaborated
                     upon what in practice it means to require that the claim of one State is
                     “positively opposed” by another. Professor J. G. Merrills writes that: “A
                     dispute may be defined as a specific disagreement concerning a matter of
                     fact, law or policy in which a claim or assertion of one party is met with
                     refusal, counter‑claim or denial by another.” (J. G. Merrills, International
                     Dispute Settlement, 2nd ed., 1993, p. 1 ; emphasis added.) The idea that
                     “positive opposition” entails a rejection or denial by the opposing party
                     is implicit in the meaning of the word “opposed”. Likewise, in a leading
                     Commentary on the Statute of the ICJ, Professor Christian Tomuschat
                     writes that a dispute presupposes opposing views: “the Court has consis-
                     tently proceeded from the assumption that an applicant must advance a
                     legal claim” (Christian Tomuschat, “Article 36”, Andreas Zimmermann,
                     Christian Tomuschat, Karin Oellers‑Frahm and Christian J. Tams (eds.),
                     The Statute of the International Court of Justice. A Commentary, 2nd ed.,
                     2012, p. 642). Thus, the claim of legal violation by one party must be
                     positively opposed by the other party through that party’s rejection or
                     denial of the claim of legal violation.

                       10. In a minority of cases, the applicant’s claim of legal violation was
                     not met with “refusal”, but rather with silence. In such instances, the
                     Court has been practical rather than formalistic and indicated flexibility
                     as to how positive opposition is to be established. In 1927, for example,
                     the PCIJ observed that :

                             “In so far as concerns the word ‘dispute’, [. . .] according to the tenor
                          of Article 60 of the Statute, the manifestation of the existence of the
                          dispute in a specific manner, as for instance by diplomatic negotiations,
                          is not required.” (Interpretation of Judgments Nos. 7 and 8 (Factory at
                          Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 10.)
                       11. Similarly, the Court more recently in Georgia v. Russian Federation
                     summarizing its jurisprudence on the requirement stated :
                             “As the Court has recognized (for example, Land and Maritime
                          Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Pre‑
                          liminary Objections, Judgment, I.C.J. Reports 1998, p. 315, para. 89),
                          the existence of a dispute may be inferred from the failure of a State
                          to respond to a claim in circumstances where a response is called for.”
                          (Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 84,
                          para. 30.)
                       12. The practice of the Court in inferring opposition from “the failure
                     of a State to respond to a claim where a response is called for” reinforces

                     79

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                     79 	   sovereign rights and maritime spaces (diss. op. caron)

                     the conclusion that “positive opposition” generally requires a rejection or
                     denial by the other party. If this were not necessary, then the inference
                     made in the several cases of silence would not have been needed. In the
                     Hostages case, for example, the claim of legal violation by the Applicant,
                     the United States, was met with silence from the Respondent, Iran. The
                     Court in evaluating whether a dispute existed did not merely indicate that
                     the two Parties possessed different views or a conflict of interests. Rather,
                     the Court sifted through the statements of the United States so as to jus-
                     tify the necessary inference that Iran, despite its silence, positively opposed
                     the claim of the United States (United States Diplomatic and Consular
                     Staff in Tehran (United States of America v. Iran), Judgment, I.C.J.
                     Reports 1980, p. 25, para. 47).

                        13. The requirement that a dispute exist may thus be met where:
                     (1) there is a claim of legal violation by a State and such a claim is posi-
                     tively opposed, that is, rejected, by another State ; or (2) there is a claim
                     of legal violation by a State where positive opposition may be inferred
                     from the failure of another State to reply to the first State’s claim of legal
                     violation where such a response is called for.

                                2. The Unprecedented Character of the Present Case
                        14. To the best of my knowledge, the way in which the requirement as
                     to the existence of a dispute arises in this case is unprecedented in the
                     Court’s history. In all of the cases cited in the Court’s Judgment and in
                     this opinion, the case involved a situation where the applicant State has
                     stated clearly its claim of legal violation to the respondent State prior to
                     the date of its Application. The issue in those cases was primarily whether
                     the respondent State positively opposed, that is, rejected, the claim of
                     legal violation by the applicant State.
                        15. For example : the claims of Greece, and as a secondary matter its
                     national, were formal and unequivocal in the Mavrommatis case. Simi-
                     larly, in the Hostages case, the claim of legal violation by the United
                     States was abundantly clear through its despatch of a special emissary,
                     the views expressed by its chargé d’affaires in Tehran, and its representa-
                     tions before the United Nations Security Council (ibid., p. 25, para. 47).

                        16. In Georgia v. Russian Federation, the Court was confronted with
                     the question of whether the particular requirement for the existence of a
                     dispute under Article 22 of the 1965 International Convention on the
                     Elimination of All Forms of Racial Discrimination (“CERD”) was met
                     (“[A]ny dispute between two or more States parties with respect to the
                     interpretation or application of this Convention”). The issue in that case
                     was not whether Georgia had made a claim of legal violation at all but

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                     80 	   sovereign rights and maritime spaces (diss. op. caron)

                     precisely when in a long series of statements or letters it could be said that
                     such a claim was made to the Russian Federation “with respect to the
                     interpretation or application” of CERD. The Court had no difficulty in
                     ultimately finding that statements by the Georgian President in a Press
                     Conference held on 9 August 2008, the statement of the Georgian Repre-
                     sentative to the United Nations Security Council on 10 August 2008, a
                     published statement of the Georgian Foreign Minister on 11 August
                     2008, and a televised interview with the Georgian President on 11 August
                     2008 “expressly referred to alleged ethnic cleansing by Russian Forces”.
                     On that basis, the Court concluded that those actions constituted “claims
                     [that] were made against the Russian Federation” (Application of the
                     International Convention on the Elimination of All Forms of Racial Dis‑
                     crimination (Georgia v. Russian Federation), Preliminary Objections,
                     Judgment, I.C.J. Reports 2011 (I), p. 120, para. 113).

                        17. In the present proceeding, Colombia’s second preliminary objec-
                     tion does not reach the point of arguing that it did not positively oppose
                     a claim of Nicaragua. Colombia’s second preliminary objection argues a
                     more fundamental point, namely, that Nicaragua never made a claim
                     which Colombia could oppose.
                        18. This difference is significant. However, it is a difference not
                     addressed by the Judgment. It is appropriate for the Court to infer posi-
                     tive opposition to a claim. It is not in my view appropriate to infer the
                     assertion of the claim. First, such an inference eviscerates the requirement
                     that there be a dispute. Second, what does it mean for the requirement
                     that the respondent positively oppose a claim when the claim is not clear,
                     not to mention not explicit ? An inferred claim is not a claim. It is not
                     asking much of the applicant that they have formulated and communi-
                     cated in some fashion a claim. Third, to infer the claim itself leaves both
                     vague and unclear what the dispute is about. I agree that it is for the
                     Court to objectively determine what is in dispute and that it may thus
                     itself add clarity. For such an objective determination to be based upon
                     an assessment of the protests made, letters exchanged and later pleadings
                     is one thing. It is quite another matter for a court, however, to objectively
                     determine the existence of the dispute not from the articulation of a claim
                     by the applicant and response by (including unjustified silence of) the
                     respondent, but rather to infer it from the overall context in which the
                     parties co-exist. Such an attempt at objective determination is, in my
                     opinion, fraught with potential pitfalls for the parties and the Court and
                     could easily shade into an abuse of discretion. The dangers are evident in
                     the Court’s Judgment in this case.

                        19. The Court’s Judgment does not address the unprecedented charac-
                     ter of the present case. The Court reiterates at paragraph 50 of its Judg-
                     ment that it “must be shown that the claim of one party is positively

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                     81 	   sovereign rights and maritime spaces (diss. op. caron)

                     opposed by the other”, citing the South West Africa cases. The Court’s
                     Judgment, however, immediately adds a statement to the above quoted
                     text, that for the circumstances of this case, profoundly changes the appli-
                     cable law and masks the significant departure from its jurisprudence that
                     follows. The Court states that it “does not matter which one of them [i.e.,
                     the parties] advances a claim and which one opposes it”. Whether this
                     statement is correct depends upon the situation presented. It is starkly
                     incorrect for the situation presented in this case.
                        20. The overwhelming majority of contentious cases have involved dis-
                     putes where there has been a significant exchange of diplomatic protests
                     and letters between the parties concerning the subject of the dispute
                     before the Court. Even within those cases where a preliminary objection
                     is raised as to whether a dispute exists, that preliminary objection can
                     nevertheless be assessed against a factual background comprised of such
                     statements and protests. To the extent that the assertion in paragraph 50
                     refers to the situations just described, then I agree that it does not matter
                     in determining whether a dispute came into existence whether it is the
                     party who ultimately is applicant or respondent that initiated the exchange
                     of diplomatic protests and letters. All that matters is that the factual
                     record evidences that one party positively opposed the claim of the other.
                     But — critically — that is far from the situation presented in this case.

                       21. In particular, where one side has not positively opposed the claims
                     of the other but rather remained silent, it is the applicant who bears the
                     onus of demonstrating that that silence should nevertheless be taken as
                     an opposition to those claims. In cases involving such silence, it is always,
                     then, the applicant which will have made the requisite “claim” capable of
                     giving rise to a “dispute”. That is the situation presented by this case.

                        22. Before reviewing the outcome of the assessments by the Court of
                     the existence of the disputes that are the basis of Nicaragua’s claims, I
                     emphasize that Nicaragua does not dispute directly Colombia’s assertion
                     that there was no claim of legal violation as such by Nicaragua, not to
                     mention a formal claim by Nicaragua, prior to Nicaragua filing its Appli-
                     cation. Rather, Nicaragua argues that it is “obvious” that there is a dis-
                     pute. Nicaragua argues in its written statement at paragraph 3.5 that “[i]t
                     is perfectly obvious that Colombia and Nicaragua are in disagreement on
                     various points of law, and have a conflict of legal views and interests”.
                     Nicaragua, however, does not refer to evidence of a claim of legal viola-
                     tion by it in any form. Rather, Nicaragua at paragraph 3.15 of its written
                     statement to the preliminary objections of the Republic of Colombia
                     writes: “one might ask why Colombia considers that the onus was on
                     Nicaragua . . .”. But this is a different way of stating precisely what is
                     unprecedented about this case. The issue in this case is not that presented
                     to the Court by other cases. If this case were like the others, the issue
                     would be whether the Respondent — Colombia — positively opposed or
                     rejected the claim of Nicaragua. This case does not reach that question.

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                     The question in this case is whether the Applicant, having been bound by
                     Article 40 (1) of the Statute and Article 38 (2) of the Rules of Court to
                     state the “subject of the dispute” in its Application, ever communicated
                     the related claim of legal violation in any form so that it might be posi-
                     tively opposed by the Respondent, thus establishing the existence of a
                     dispute.

                       23. In light of the above, it is my view that a dispute cannot be taken
                     to have arisen between the Parties unless Nicaragua made a “claim” capa-
                     ble of rejection by Colombia and communicated it to Colombia in some
                     way. That is, Nicaragua must have — prior to filing its Application —
                     asserted against Colombia its views on those points of law or fact forming
                     the subject of the claims now before the Court.

                                              3. What the Court Holds
                        24. The Judgment of the Court begins correctly by asking what are the
                     disputes that Nicaragua asserts are the subject of the proceeding ; recog-
                     nizing that it is for the Court to objectively assess and specifically articu-
                     late the subject‑matter of the dispute. Looking to the Application and
                     Memorial of Nicaragua, the Court identifies two claims, each of which
                     rests on a distinct dispute. In the Application, the “Subject of the Dis-
                     pute” is described as first, “violations of Nicaragua’s sovereign rights and
                     maritime zones declared by the Court’s Judgment of 19 November 2012”
                     and second, “the threat of the use of force by Colombia in order to imple-
                     ment these violations” (Application of Nicaragua, p. 2, para. 2). The sub-
                     missions in the Memorial of Nicaragua confirm that these two claims are
                     the subject of this proceeding. Having identified two claims, the Judgment
                     of the Court proceeds to assess whether a dispute existed with respect to
                     either or both of them at the time of the Application.

                        25. As to whether a dispute existed as to the sovereign rights and mar-
                     itime zones of Nicaragua, the Court at paragraphs 69 to 74 concludes
                     that a dispute as to Nicaragua’s rights in the relevant maritime zones
                     existed at the time of the Application. In reaching this conclusion, the
                     Court’s Judgment refers to two specific items of evidence. What is strik-
                     ing and deserving of emphasis at this point is the contrast with Georgia v.
                     Russian Federation where the Court — in seeking to identify at what
                     point in time it could be said that a claim had been made by Georgia
                     which the Russian Federation could have positively opposed — the Court
                     reviewed over 50 specific items of evidence, comprising letters, statements,
                     decrees and filings by the Applicant, Georgia.
                        26. As to whether a dispute existed as to the threat of the use of force,
                     the Court at paragraphs 75 to 78 concludes that a dispute did not exist.

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                     83 	   sovereign rights and maritime spaces (diss. op. caron)

                     The Court does not state that a dispute did not exist because Nicaragua
                     failed to claim, protest or object to a threat of the use of force by Colom-
                     bia. It could have done so because there is no such claim, protest or threat
                     in the record. But it does not. Rather, the Judgment refers to two pieces
                     of evidence in which representatives of the Nicaraguan Government
                     described the situation at sea as calm.

                       27. The above holdings that one dispute existed while the other did not
                     are both flawed. Before laying out this critique, this dissent first must do
                     what the Court does not do ; that is, engage fully with the evidence.

                                        4. Assessing the Evidentiary Record
                        28. In assessing the evidence in this case, it is important at the outset
                     to point out what is not included. There is no diplomatic letter of protest
                     prior to the lodgment of Nicaragua’s Application. Although both sides
                     acknowledge there were meetings of the two Heads of State, there are no
                     minutes of those meetings nor are there any witness statements as to what
                     transpired at those meetings. Given that the requirement that a dispute
                     exists necessarily examines the claim of the applicant and the rejection or
                     denial of the respondent, it is particularly curious and telling that the
                     evidentiary record contains only a very limited number of statements
                     from Nicaraguan officials. In fact, there are only a handful of such state-
                     ments cited by the Parties. Moreover, the bulk of those derive from con-
                     temporaneous press reporting. The Court therefore is not presented here
                     with the possibility it had in Georgia v. Russian Federation of limiting its
                     search for a “claim” by the Applicant to statements made by that State in
                     “official documents and statements” (Application of the International Con‑
                     vention on the Elimination of All Forms of Racial Discrimination (Geor‑
                     gia v. Russia Federation), Preliminary Objections, Judgment, I.C.J. Reports
                     2011 (I), p. 86, para. 33). Indeed, only a small number of documents in
                     the present proceedings have been proffered as a possible source of any
                     such “claim”.

                        29. In addition, it is important to observe that, temporally, the state-
                     ments made by Nicaraguan officials prior to the filing of the Application
                     fall into two sets : a first set covers the three months immediately follow-
                     ing the issuance of the Court’s November 2012 Judgment ; and a second
                     set commences six months later and spans less than two months in the
                     period leading up to the filing of Nicaragua’s Application in these pro-
                     ceedings. In the following paragraphs, I assess whether any of the state-
                     ments disclose a “claim” which Colombia could “positively oppose” such
                     as to give rise to a “dispute” between the Parties. I furthermore assess

                     84

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                     84 	   sovereign rights and maritime spaces (diss. op. caron)

                     whether any such “claim” related to the subject of the claims now before
                     the Court.

                       30. On 21 November 2012, press reporting disclosed that Presi-
                     dent Ortega had welcomed the 2012 Judgment as a “national victory”,
                     the reporting further indicating that President Ortega had “urged the
                     South American nation to respect the high court’s decision” (Memorial of
                     Nicaragua, Annex 26, “International court gives Nicaragua more waters,
                     outlying keys to Colombia”, Dialogo, 21 November 2012, pp. 355‑356). I
                     am unable to see in these statements any “claim” against Colombia of a
                     breach of its obligations, let alone a “claim” with respect to a breach of
                     those rights now invoked by Nicaragua in these proceedings.

                        31. On 26 November 2012, President Ortega made an address to “the
                     people of Nicaragua” (Memorial of Nicaragua, Annex 27, “Message
                     from President Daniel [Ortega] to the people of Nicaragua”, El 19 Digi‑
                     tal, 26 November 2012, pp. 359‑362). In that address, the President
                     referred again to the 2012 Judgment to note “our concerns for the man-
                     ner in which [the President of Colombia] was reacting by rejecting the
                     ruling of the Court”, further noting that
                          “[d]uring the days following the ruling, President Santos toughened
                          his position by adding to his words, the mandate to the naval forces
                          of the Colombian armada to multiply their surveillance activities in
                          territories awarded by the International Court of Justice as maritime
                          territories to Nicaragua” (ibid., p. 359).
                     In that address, President Ortega went on to note that in response to
                     these words and acts “the Government of Nicaragua reacted very calmly”
                     and was “waiting and expect[s] the Government of Colombia to decide,
                     once and for all, to comply with the ruling of the Court”. He went on
                     to refer to Nicaragua’s desire to establish “new Conventions with Colom-
                     bia to combat drug trafficking and organized crime” and on “matters of
                     fisheries”.

                       32. Again, there is no claim in these statements concerning any threat
                     of the use of force by Colombia. There is, furthermore, no claim in respect
                     of a breach by Colombia of Nicaragua’s sovereign rights and maritime
                     spaces. At most, the statements made by President Ortega in this address
                     could constitute a claim in respect of Colombia’s implementation of the
                     2012 Judgment. As Nicaragua itself attests, however, the dispute it
                     invokes before the Court in the present proceedings “is not ‘a difference
                     of opinion or views between the parties as to the meaning or scope of a
                     judgment rendered by the Court’” (Memorial of Nicaragua, p. 17,
                     para. 1.33).
                       33. On 29 November 2012, President Ortega reportedly indicated — in
                     the lead‑up to a meeting between the two Presidents in Mexico — that he
                     wished to “shake hands with President Santos and say that I and the peo-

                     85

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                     85 	     sovereign rights and maritime spaces (diss. op. caron)

                     ple of Nicaragua want to fix this situation as fraternally as brothers”
                     (Memorial of Nicaragua, Annex 31, “Santos and Ortega will meet this
                     Saturday in Mexico City”, La República, 29 November 2012). There is no
                     official record of the exchanges between the Presidents at the meeting on
                     1 December 2012. Colombia cites a press statement of President Santos
                     that discloses some of what was discussed at that meeting, indicating that
                     President Santos had stated that :
                             “We — the Minister of Foreign Affairs and I — gathered with
                          President Ortega. We explained in the clearest way our position : we
                          want the Colombian rights, those of the raizales, not only with respect
                          to the rights of the artisanal fishermen but other rights, to be re‑
                          established and guaranteed. He [President Ortega] understood.

                          �����������������������������������������������������������������������������������������������������������������
                              We will keep looking for the mechanism that both the International
                          Court of The Hague and the international diplomacy have at their
                          disposal to re‑establish the rights infringed by the Judgment. That
                          does not exclude these channels of communication with Nicaragua. I
                          believe that those channels of communication are an important com-
                          plement.
                              In this sense we will continue — and we said this clearly to Presi-
                          dent Ortega — looking for the re-establishment of the rights that this
                          Judgment breached in a grave matter for the Colombians.” (Prelimi-
                          nary Objections of the Republic of Colombia, Annex 9, “Declaration
                          of the President of the Republic of Colombia”, 1 December 2012,
                          pp. 109‑110.)
                       34. A separate press report dated 3 December 2012 reports that Presi-
                     dent Santos, after the meeting :
                          “announced that as a result of this meeting with the Nicaraguan Pres-
                          ident, the two Governments will manage the matter of the ruling by
                          the Court in The Hague with forethought and discretion. ‘We are
                          going to manage this with prudence, with discretion, no insults by the
                          news media. If there is a problem, we will call each other’, he stated.”
                          (Written Statement of the Republic of Nicaragua to the Preliminary
                          Objections of the Republic of Colombia, Annex 5, “Government of
                          Colombia will not implement ICJ judgment until the rights of Colom-
                          bians have been restored”, El Salvador Noticias.net, 3 December 2012,
                          p. 103.)
                       35. Nicaragua observes that by this meeting it sought to “engage in a
                     constructive dialogue over implementation of the 19 November Judg-
                     ment” (Memorial of Nicaragua, para. 2.7). It further surmises that the
                     discussions between the Presidents at the meeting indicated that “Presi-
                     dent Santos’s position was that his country would not abide by the Judg-
                     ment until ‘we see that Colombians’ rights, that have been violated, are

                     86

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                     86 	   sovereign rights and maritime spaces (diss. op. caron)

                     re‑established and guaranteed in the future’” (CR 2015/23, p. 12, para. 9
                     (Arguëllo) ; Memorial of Nicaragua, para. 2.7). Nicaragua does not, how-
                     ever, tender any evidence as to the position taken by the Nicaraguan
                     President in the meeting, beyond asserting that :
                          “President Ortega stated Nicaragua’s position that, while the Judg-
                          ment of the Court had to be respected by both States, there was room
                          for discussion in regard to the manner of its implementation, and at
                          all events the matter had to be resolved peacefully and without con-
                          frontation.” (Memorial of Nicaragua, para. 2.7, citing a press report
                          written before the meeting: “Santos and Ortega will meet this Satur-
                          day in Mexico City”, La República, 29 November 2012 ; ibid.,
                          Annex 31, p. 379.)
                        36. In such a circumstance, it is impossible to infer that Nicaragua
                     made at that meeting any “claim” capable of giving rise to a “dispute”
                     between the Parties. Moreover, the contemporaneous public statements
                     by the Presidents focus upon Colombia’s compliance with the 2012 Judg-
                     ment. Any “claim” arising out of these statements, therefore, would per-
                     tain to a subject‑matter different to the alleged breach of Nicaragua’s
                     sovereign rights and maritime zones and of Colombia’s obligations in
                     respect to the use of force that Nicaragua invokes in these proceedings.

                       37. On 5 December 2012, the Chief of Nicaragua’s army, Gen-
                     eral Avilés, confirmed that Nicaragua was in communication with the
                     Colombian authorities, and that “there has been no boarding to fishing
                     vessels” (CR 2015/22, p. 33, para. 10 (Bundy)). On the same date, Presi-
                     dent Ortega held further discussions with President Santos. Press report-
                     ing of that meeting indicated that :

                          “President Ortega also said that the Nicaraguan Navy has been
                          instructed to not detain any Colombian fishermen during what he
                          calls ‘the period of transition in the zone’.
                             ‘We have to do this gradually until there is full compliance with the
                          Court’s sentence, without affecting the reserve and without affecting
                          the fishermen and businesses on San Andres Island’, Ortega said.”
                          (Memorial of Nicaragua, Annex 33, “Nicaragua : no oil concessions
                          in Seaflower”, Nicaragua Dispatch, 6 December 2012, p. 387.)

                     Again, there is no indication in any of these statements of Nicaragua
                     claiming a breach by Colombia of its legal obligations, let alone a breach
                     of its obligations in respect of the use of force or of Nicaragua’s sovereign
                     rights and maritime zones.

                       38. The two Presidents met again in February 2013. Contemporaneous
                     press reporting indicates that :

                     87

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                     87 	   sovereign rights and maritime spaces (diss. op. caron)

                             “Ortega said that it is necessary to find mechanisms for consensus
                          through dialogue that will enable closer relations between the
                          two nations instead of confronting them. ‘I propose to the Govern-
                          ment of Colombia, to President (Juan Manuel) Santos, that the
                          sooner the better, we should organize these commissions to work so
                          that they can demarcate all of this in regard to the area where the
                          Raizal peoples can fish according to their historical rights’. . . Ortega
                          said that the issue has been manipulated in Colombia for ‘electoral’
                          purposes and that ‘there are powerful interests’ in having an armed
                          confrontation between Nicaragua and Colombia, in the waters
                          granted to his country by The Hague. [‘]I am certain that President
                          Santos and the People of Colombia know that the solution to the
                          ruling by the International Court of Justice is not the use of force ; it
                          is not the deployment of warships in the area, but rather to follow the
                          path to organize the ruling of the Court, organize it in terms of its
                          implementation, how to organize it, how to apply it’, he stated. Ortega
                          said that both in Mexico, during the takeover by President Enrique
                          Peña Nieto, and in the recent Summit of Latin American States in
                          Chile, he had the opportunity to discuss the issue with the Colombian
                          President and that they have always spoken of taking joint measures.
                          He said that his country has no interest in a confrontation with any-
                          one, and that the only thing its coast guard boats do is ‘to enforce the
                          ruling by The Hague ‘very firmly and with serenity’’, always watching
                          ‘so that the dialogue comes first’’.” (Memorial of Nicaragua,
                          Annex 35, “Nicaragua asks Bogotá to form The Hague Commis-
                          sions”, La Opinion, 22 February 2013, pp. 395‑396.)

                     This is the first statement on the record addressing the possibility of an
                     armed confrontation between the States. Two observations are, however,
                     in order. First, it is not the President who refers to such a possibility, but
                     the reporter. The President appears on the contrary to recognize that “the
                     People of Colombia know that the solution to the ruling by the Interna-
                     tional Court of Justice is not the use of force”. Second, the President
                     makes no specific allegation against Colombia of a breach of Nicaragua’s
                     sovereign rights or maritime zones or of Colombia’s obligations in respect
                     of the use of force. The statements simply cannot be read as a legal
                     “claim” against Colombia on these matters.
                        39. These statements make up the first set of evidence (November 2012
                     to February 2013). The second group of statements occur some
                     five months subsequent to the first group, in the lead‑up to the filing of
                     Nicaragua’s Application in these proceedings (August 2013 to Novem-
                     ber 2013).

                       40. A number of these statements indicate Nicaragua’s continued view
                     that the situation at sea was calm, disclosing no “claim” that Colombia
                     was violating Nicaragua’s sovereign rights and maritime zones or threat-

                     88

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                     88 	   sovereign rights and maritime spaces (diss. op. caron)

                     ening the use of force against Nicaragua. On 14 August 2013, for exam-
                     ple, President Ortega stated that :
                             “[W]e must recognize that . . . the Naval Force of Colombia, which
                          is very powerful, that certainly has a very large military power, has
                          been careful, has been respectful and there has not been any kind
                          of confrontation between the Colombian and Nicaraguan Navy”
                          (Preliminary Objections of Colombia, Annex 11, “Declaration of the
                          President of the Republic of Nicaragua”, 14 August 2013, p. 118).

                     On 18 November 2013, the Chief of Nicaragua’s naval forces, Admi-
                     ral Corrales Rodríguez, further stated that “[t]here have not been any
                     conflicts and that is why I want to highlight that in one year of being
                     there we have not had any problems with the Colombian Navy” (ibid.,
                     Annex 43, “Patrolling the recovered sea”, El Nuevo Diario, 18 November
                     2013, p. 355).
                       41. Other statements in this period pertain to the implementation of
                     the 2012 Judgment. On 23 August 2013, for example, press reporting
                     indicated that:
                             “Nicaragua . . . say[s] that the ruling is already being implemented
                          and that a decision by the Colombian Government not to abide by it
                          makes no sense. ‘The judgment of the ICJ has been in effect since
                          19 November 2012. What has happened is that Colombia has hired
                          a number of law firms to analyse the resources in the territory’, said
                          Mauricio Herdocia, the lawyer representing Nicaragua in this case.
                          ‘In the end all questions will be resolved by the ICJ, and according to
                          the Rules of the Court, when a State is preparing an appeal the judg-
                          ment must be respected’, added Herdocia.” (Memorial of Nicaragua,
                          Annex 38, “World Court ruling on maritime borders unenforceable
                          in Colombia : Vice-President”, Colombia Reports, 23 August 2013,
                          pp. 407‑408.)
                       42. This is not a statement stemming from the Nicaraguan Executive,
                     but in any case does not comprise any particular “claim” about Colom-
                     bia’s conduct capable of rejection by that State.

                       43. On 10 September 2013, President Ortega reportedly stated that :
                             ‘“The call that I make to President Santos, to the Government of
                          Colombia, to some Central American Governors that are throwing
                          out declarations talking about expansionism, is that these are times in
                          which law, and not force, must prevail . . . Going for force would mean
                          to go back to the Stone Age. If we take the lawful route that would
                          mean the strengthening of peace, if we go for force it would mean to
                          feed more wars in the world, if we go for law it would make wars go
                          away and to promote the peace in the world’, he assured. In that sense
                          he reaffirmed that Nicaragua is committed to peace, just like the coun-
                          tries of Latin America and the Caribbean.” (Memorial of Nicaragua,

                     89

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                     89 	     sovereign rights and maritime spaces (diss. op. caron)

                          Annex 39, “Daniel: 40 years from the martyrdom of Allende, peace
                          must prevail”, El 19 Digital, 11 September 2013, p. 411.)
                       44. In response to Colombia’s insistence on the negotiation between
                     the two States of a treaty to implement the 2012 Judgment, President
                     Ortega further stated that :
                            “We understand the position taken by President Santos, but we
                          cannot say that we agree with the position of President Santos . . .
                          We do agree that it is necessary to dialogue, we do agree that it is
                          necessary to look for some kind of agreement, treaty, whatever we
                          want to call it, to put into practice in a harmonious way, like brother
                          peoples, the Judgment of the International Court of Justice . . .”
                          (Memorial of Nicaragua, Annex 39.)
                     He also stated :
                            “The Court’s decisions are obligatory . . . They are not subject to
                          discussion. It’s disrespectful to the Court. It is as if we decided not to
                          abide by the ruling because we didn’t receive 100 percent of what we
                          asked, which in this case was the San Andrés archipelago.

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                              Nicaragua wants peace . . . We have no expansionist aims . . . we
                          only want what the Court at The Hague granted us in its ruling.”
                          (Written Statement of the Republic of Nicaragua to the Preliminary
                          Objections of the Republic of Colombia, Annex 7, “Colombia will
                          Challenge Maritime Border with Nicaragua”, ABC News, 10 Septem-
                          ber 2013, p. 115.)

                        45. Three points are striking about these 10 September remarks. First,
                     President Ortega, in discussing the preference of Nicaragua for “peace”
                     does not make any allegation against Colombia that Colombia is threat-
                     ening that “peace” nor any claim that Nicaragua’s legal rights were being
                     infringed by Colombia. Second, the statements were made a day after
                     Colombia passed Decree No. 1946, yet that Decree is not referred to by
                     President Ortega even though it now forms a core part of the “dispute”
                     said to have arisen before the two Parties at this time (Memorial of Nica-
                     ragua, pp. 26‑33). Third, to the extent that these statements disclose any
                     “claim” by Nicaragua or disagreement between the Parties, it would
                     appear only to relate to the actions necessary for the Parties to give effect
                     to the 2012 Judgment and specifically, as Nicaragua notes, the “legal
                     requirement for a treaty in order to make the November 2012 Judgment
                     effective or binding on the Parties” (ibid., para. 2.59). They do not, how-
                     ever, disclose any “claim” in respect of an alleged violation by Colombia
                     of Nicaragua’s sovereign rights or maritime zones nor any threat of the
                     use of force.

                     90

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                        46. On 12 September 2013, the National Assembly of Nicaragua
                     declared “its full endorsement of the position of the Government of Nica-
                     ragua for a peaceful solution through a treaty implementing the Judg-
                     ment” (Memorial of Nicaragua, para. 2.59 and Annex 40, “Assembly of
                     Nicaragua supports dialogue with Colombia”, El Universal, 12 Septem-
                     ber 2013). It furthermore “urge[d] Colombia to comply with international
                     law and to abide by the ruling of the International Court of Justice, which
                     is final and of unavoidable compliance”. This declaration, at most, could
                     imply a claim that Colombia had yet to comply with the 2012 Judgment,
                     but does not indicate any “claim” that Colombia was breaching Nicara-
                     gua’s sovereign rights or maritime zones nor threatening the use of force
                     as a result of any such alleged non‑compliance.

                       47. On 13 September 2013, President Ortega reiterated his call for the
                     creation of a commission to oversee implementation of the 2012 Judg-
                     ment, stating :
                             “We are ready, we are willing to create the corresponding commis-
                          sion to meet with a commission from our brother country Colombia,
                          from the Colombian Government, and that together we can work to
                          make possible the implementation of the Court’s Judgment, and this
                          will be supported, ratified ; because the Judgment has been delivered
                          already, it is just about laying it down, so that it will be laid down in
                          what will be a treaty between Colombia and Nicaragua . . . In that
                          treaty, Colombia and Nicaragua will be proceeding with the Judg-
                          ment’s compliance, with the ICJ’s Judgment. This is the Peace path,
                          the Unity path, the Fraternity path.” (Preliminary Objections of
                          Colombia, Annex 41, “Ortega says that Nicaragua is ready to create
                          a Commission to ratify the Judgment of the ICJ”, La Jornada, 13 Sep-
                          tember 2013, p. 345.)
                       48. This is the last statement of President Ortega cited by the Parties
                     prior to the filing of Nicaragua’s Application on 26 November 2013.

                       49. None of the above statements is — either alone or collectively —
                     capable of being read to constitute a “claim” capable of rejection by
                     Colombia. What is telling is the silence in these statements, and the state-
                     ments which have not been adduced. Two points bear emphasizing.

                        50. First, there is no evidence that Nicaragua ever framed claims
                     against Colombia’s acts by reference to the legal rights now before the
                     Court. In fact, the statements made by Nicaraguan officials were gener-
                     ally vague and unspecific. To the extent that they were specific, they
                     referred not to the subject‑matter of the claims now before the Court
                     but rather to the steps necessary to ensure compliance with the 2012
                     Judgment.
                        51. Second, a number of the statements tend to indicate the opposite

                     91

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                     91 	    sovereign rights and maritime spaces (diss. op. caron)

                     conclusion : that the Parties did not consider that their claims were “posi-
                     tively opposed”, rather indicating their constructive attempts to imple-
                     ment the 2012 Judgment.

                        52. While it might be appropriate, as I stated earlier, to infer that a
                     respondent’s conduct impliedly rejected claims raised by an applicant, the
                     converse cannot be true. It is not possible for Colombia to reject — either
                     expressly or impliedly — claims that were never raised. In the circum-
                     stances of this case, it is difficult to see how any of the above statements
                     constituted a “claim” capable of being “positively opposed” by Colom-
                     bia, or capable of resulting in a “disagreement on a point of law or fact”
                     between the Parties in relation to the rights now in dispute.

                        53. I conclude from my review of the factual record that, prior to filing
                     its Application, Nicaragua made no claim that Colombia had breached
                     its sovereign rights or maritime spaces or had unlawfully threatened the
                     use of force. In such a circumstance, there could be no “dispute” between
                     the Parties with respect to these matters at the requisite date. To the
                     extent that any dispute did arise, that dispute could only be characterized
                     as relating to the Parties’ interpretation of, or compliance with, the 2012
                     Judgment. That is not a matter brought by Nicaragua before the Court
                     for determination in these proceedings.

                          5. The Court’s Analysis Is Contradicted by the Evidentiary Record
                       54. Having assessed the evidentiary record before the Court, I return
                     to the Court’s holdings, summarized above, that one dispute existed while
                     the other did not.
                       55. The Court begins its analysis of whether a dispute existed as to
                     Nicaragua’s sovereign rights and maritime spaces in paragraph 69 by
                     observing that :
                          “following the delivery of the 2012 Judgment, the President of Colom-
                          bia proposed to Nicaragua to negotiate a treaty concerning the effects
                          of that Judgment, while the Nicaraguan President, on a number of
                          occasions, expressed a willingness to enter into negotiations for the
                          conclusion of a treaty to give effect to the Judgment, by addressing
                          Colombia’s concerns in relation to fishing, environmental protection
                          and drug trafficking”.

                     A logical conclusion of this circumstance in my opinion would be that
                     following the delivery of the 2012 Judgment there was no dispute between
                     the Parties as regards Nicaragua’s sovereign rights and maritime spaces.
                     Oddly, in my view, the Court, anticipating its conclusion, concludes in
                     paragraph 69 that “the fact that the Parties remained open to a dialogue
                     does not by itself prove that, at the date of the filing of the Application,
                     there existed no dispute between them”.

                     92

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                        56. As stated at paragraph 25 (above), the Court proceeds in para-
                     graph 69 to refer to two pieces of evidence. One is a 1 December 2012 state-
                     ment of President Santos of Colombia and the other is a 10 September
                     2013 statement of President Ortega of Nicaragua. These are the only pieces
                     of evidence the Court references to support its conclusion that “[i]t is appar-
                     ent from these statements that the Parties held opposing views on the ques-
                     tion of their respective rights in the maritime areas covered by the
                     2012 Judgment” and therefore that a dispute existed. In particular, it
                     reaches the conclusion that “the Parties held opposing views” by juxtapos-
                     ing the December 2012 statement of President Santos of Colombia with the
                     September 2013 reported statement of President Daniel Ortega of Nicara-
                     gua. Three deficiencies in the Court’s reasoning need to be emphasized :
                     — First, jurisprudentially, the question is whether Nicaragua ever stated
                       a claim which Colombia could have positively opposed. In this sense,
                       only one of the two pieces of evidence is relevant. The question is not
                       whether statements by two States separated by almost a year should
                       be read to suggest a conflict of interests.

                     — Second, the statements cited at most suggest a conflict of interests as
                       to compliance with the 2012 Judgment. But non‑compliance with the
                       2012 Judgment is a matter that both Nicaragua and the Court repeat-
                       edly state is not the dispute before the Court. The statements of Pres-
                       ident Ortega (there are two on 10 September 2013), as quoted fully
                       and discussed at paragraphs 43 to 45 above, in discussing the prefer-
                       ence of Nicaragua for “peace” does not make any allegation against
                       Colombia that Colombia is threatening that “peace” nor make any
                       claim that Nicaragua’s legal rights were being infringed by Colombia.
                       In addition, the statements were made a day after Colombia passed
                       Decree No. 1946, yet that Decree is not referred to by President Ortega
                       even though it now forms a core part of the “dispute” said to have
                       arisen before the two Parties at this time (Memorial of Nicaragua,
                       pp. 26‑33). The 10 September 2013 statements do not communicate
                       any “claim” in respect of an alleged violation by Colombia of
                       Nicaragua’s sovereign rights or maritime zones nor any threat of the
                        use of force.

                     — Third, it is striking that the Court chooses to juxtapose two state-
                        ments made almost a year apart. Arguably more relevant than the
                        1 December 2012 statement of President Santos (made only days after
                        the delivery of the Judgment) is the interview that took place with the
                        Colombian Minister for Foreign Affairs on 15 September 2013 shortly
                        after President Ortega’s statement of 10 September 2013. Minister
                        María A. Holguín’s views are reported as follows :

                     93

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                     93 	     sovereign rights and maritime spaces (diss. op. caron)

                            “María A. Holguín speaks about the four pillars for the defence of
                          National sovereignty in the Caribbean.
                            The Minister of Foreign Affairs María Angela Holguín explained
                          to El Tiempo the scope of the ‘integral strategy’ to defend the Colom-
                          bian sovereignty in the Caribbean Sea. She stated that the Govern-
                          ment does not disregard the Court of The Hague’s Judgment — in
                          which this Tribunal recognized greater rights to Nicaragua over those
                          waters, but that the country ‘is facing a legal obstacle’ to apply it.

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                               How and when would you dialogue with Nicaragua to sign a border
                          treaty ?
                               Colombia is open to a dialogue with Nicaragua to sign a treaty that
                          establishes the boundaries and a legal regime that contributes to the
                          security and stability in the region. The Government has said that it
                          awaits the decision of the Constitutional Court before initiating any
                          action.” (Preliminary Objections of Colombia, Annex 42, “The
                          Minister of Foreign Affairs explains in detail the strategy vis‑à‑vis
                           Nicaragua”, El Tiempo, 15 September 2013, p. 349.)

                     The Court fails to engage with these contemporaneous statements by
                     Minister Holguín. The above statements contextualize the earlier state-
                     ments of President Santos, and indicate that Colombia was not “oppos-
                     ing” the implementation of the 2012 Judgment, nor contesting its binding
                     character, but rather questioning the legal steps necessary to apply it.

                        57. In paragraph 70 of the Judgment, referring to “Colombia’s procla-
                     mation of an ‘Integral Contiguous Zone’”, the Court writes that “the Par-
                     ties took different positions on the legal implications of such action in
                     international law”. In so asserting, however, the Court does not cite any
                     evidence indicating in what form or by which means those “different posi-
                     tions” were expressed. And nor could it : such evidence is simply not in
                     the record before the Court.
                        58. The Court in paragraph 72 observes that a “formal diplomatic pro-
                     test” is not a prerequisite. I agree. However, the problem in the instant
                     case is that there also is not an informal protest or any statement that is
                     a claim by Nicaragua of violation of a legal right. The Judgment does not
                     address Colombia’s objection that there was no such claim or complaint
                     in any form. Instead, the Judgment — again without reference to the
                     record — states that :

                          “in the specific circumstances of the present case, the evidence clearly
                          indicates that . . . Colombia was aware that its enactment of
                          Decree 1946 and its conduct in the maritime areas declared by the

                     94

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                     94 	   sovereign rights and maritime spaces (diss. op. caron)

                          2012 Judgment to belong to Nicaragua were positively opposed by
                          Nicaragua” (Judgment, para. 73).
                     This statement by the Court turns completely on its head its jurispru-
                     dence as to the requirement that a dispute exist at the time an Application
                     is filed. In this case, the Court does not ask whether the Applicant —
                     Nicaragua — made in any form a claim of legal violation prior to the
                     lodgment of the Application. Rather, it infers that the Respondent must
                     have been “aware” that the Applicant positively opposed actions that the
                     Respondent had taken. With all due respect, this reasoning misappre-
                     hends the Court’s jurisprudence regarding the requirement that a dispute
                     exist. This reasoning through its silence does not accurately represent the
                     record. This holding in practice signals the end of the application of a
                     reasoned requirement that a dispute exist.

                        59. Turning to the assessment by the Court of whether a dispute
                     existed as to the threat of the use of force, the Court does not state that a
                     dispute does not exist because Nicaragua failed to claim, protest or object
                     to a threat of the use of force by Colombia. It could have done so because
                     there is no such claim, protest or threat in the record. But it does not.
                     Rather, the Judgment refers to evidence in which representatives of the
                     Nicaraguan Government described the situation at sea as calm. A state-
                     ment of the President of Nicaragua on 14 August 2013 that “there has not
                     been any kind of confrontation” between the naval forces of the
                     two States. A statement by the Chief of the Nicaraguan Naval Force on
                     18 November 2013 that there were neither problems nor conflicts with the
                     Colombian navy. Surprisingly, the Judgment does not discuss whether
                     there was a claim of legal violation in the first instance. The Judgment
                     confuses the identification of a claim of legal violation by the Applicant
                     with the perhaps necessary inference of a positive opposition to such a
                     claim by the Respondent. Putting aside why statements that the situation
                     is calm or that there are no conflicts are relevant to an asserted dispute as
                     to the threat of force, the fact is that there is no claim, in any form, by
                     Nicaragua prior to the lodgment of the Application objecting to a threat
                     of the use of force by Colombia.

                        60. If the Judgment had found that there was no dispute as to the
                     threat of the use of force because there was no claim of legal violation in
                     that regard by Nicaragua, then the same reasoning should lead to the
                     same conclusion that there was no dispute in regard to Nicaragua’s rights
                     in the relevant maritime zones.

                     95

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                     95 	    sovereign rights and maritime spaces (diss. op. caron)

                            III. The Third Preliminary Objection as to the Possibility
                                                 of Negotiations

                        61. Article II of the Pact of Bogotá provides in part that “in the event
                      that a controversy arises between two or more signatory States which, in
                      the opinion of the parties, cannot be settled by direct negotiations through
                      the usual diplomatic channels, the parties bind themselves to use the pro-
                     cedures established in the present Treaty . . .”. The Court in its Judgment
                     proceeds from the basis of its 1988 holding that the reference to direct
                     negotiation in Article II of the Pact “constitutes . . . a condition precedent
                     to recourse to the pacific procedures of the Pact in all cases” (Border and
                     Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and
                     Admissibility, Judgment, I.C.J. Reports 1988, p. 94, para. 62). In so pro-
                     ceeding, the Court in paragraph 95 holds that the test for determining
                     whether settlement is not possible is “whether the evidence provided dem-
                     onstrates that, at the date of Nicaragua’s filing of the Application, neither
                     of the Parties could plausibly maintain that the dispute between them
                     could be settled by direct negotiations through the usual diplomatic
                     channels” (Judgment, para. 95).

                        62. The Court finds that “[n]o evidence submitted to the Court indi-
                     cates that, on the date of Nicaragua’s filing of the Application, the Parties
                     had contemplated, or were in a position, to hold negotiations to settle the
                     dispute concerning the alleged violations by Colombia of Nicaragua’s
                     rights in the maritime zones” and on that basis rejects Colombia’s third
                     preliminary objection (ibid., paras. 100‑101).

                       63. I agree with the Court that an obligation to negotiate is satisfied if
                     there is no prospect of settlement. The PCIJ in Mavrommatis articulated
                     such an exception to the negotiations requirement present in that case as
                     follows :
                             “Negotiations do not of necessity always presuppose a more or less
                          lengthy series of notes and despatches ; it may suffice that a discussion
                          should have been commenced, and this discussion may have been very
                          short ; this will be the case if a dead lock is reached, or if finally a
                          point is reached at which one of the Parties definitely declares himself
                          unable, or refuses, to give way, and there can therefore be no doubt
                          that the dispute cannot be settled by diplomatic negotiation.” (Mavrom‑
                          matis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A,
                          No. 2, p. 13.)
                        64. The Court’s conclusion in paragraph 100, however, that “[n]o evi-
                     dence” indicates that “the Parties had contemplated, or were in a posi-
                     tion, to hold negotiations to the settle the dispute” (Judgment, para. 100)
                     is not only not supported by the evidence, it is contradicted by the evi-
                     dence.
                        65. The Court at the outset of its reasoning observes that “through

                     96

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                     96 	   sovereign rights and maritime spaces (diss. op. caron)

                     various communications between the Heads of State of the two countries
                     since the delivery of the 2012 Judgment, each Party had indicated that it
                     was open to dialogue to address some issues raised by Colombia as a
                     result of the Judgment” (Judgment, para. 97). This statement is a correct
                     reflection of the evidence.
                        66. The Court also observes that
                             “[t]he issues that the Parties identified for possible dialogue include
                          [1] fishing activities of the inhabitants of San Andrés, Providencia and
                          Santa Catalina in waters that have been recognized as appertaining
                          to Nicaragua by the Court, [2] the protection of the Seaflower Bio-
                          sphere Marine Reserve, and [3] the fight against drug trafficking in
                          the Caribbean Sea” (ibid.).
                     This statement is also a correct reflection of the evidence.
                        67. As an initial matter therefore, the Court’s statement that there is
                     “[n]o evidence” to indicate that the Parties contemplated negotiation is
                     inconsistent with the record.
                        68. The Court’s holding, however, is more subtly worded, focusing as
                     it does on there being no evidence that the Parties contemplated negotia-
                     tions “to settle the dispute” (ibid., para. 100 ; emphasis added).

                        69. Examined more closely, the Court’s reasoning relies upon its view
                     that, although the Parties expressed a willingness to discuss substantive
                     issues, they had each imposed certain preconditions to any such negotia-
                     tions that were so diametrically opposed that the Parties did not contem-
                     plate, or were not in a position to negotiate, a settlement. The Court
                     constructs these preconditions in paragraph 98 of the Judgment.
                        70. Regarding Nicaragua’s asserted preconditions, the Court in para-
                     graph 98 appears to refer to its own characterization of what it has held
                     to be Nicaragua’s dispute. The Court writes “for Nicaragua, such nego-
                     tiations had to be restricted to the modalities or mechanisms for the
                     implementation of the [2012] Judgment”. It does not rely on any state-
                     ment of Nicaragua. Indeed, it offers no citation to any piece of evidence.
                        71. Regarding Colombia’s asserted preconditions, the Court in para-
                     graph 98 states that Colombia did not “define” the subject‑matter of the
                     negotiations in the same way. In doing so, it quotes the interview with the
                     Colombian Minister for Foreign Affairs María A. Holguín on 15 Septem-
                     ber 2013 that is reproduced in full at paragraph 56 above. The Court at
                     paragraph 98 uses the Minister’s statement that Colombia is open to a
                     dialogue with Nicaragua to “sign a treaty that establishes the boundaries”
                     to make its point that while the two nations may have been open to dia-
                     logue they held quite different views about the content of such dialogue
                     that made the prospects for settlement extremely unlikely.
                        72. The Court’s juxtaposition of negotiating objectives is unfounded
                     both in the record and in law.
                     — First, the Court repeatedly, and with good reason, in the Judgment
                         elsewhere refers to the importance of examining substance and not

                     97

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                     97 	      sovereign rights and maritime spaces (diss. op. caron)

                          form. Yet in this holding its reasoning rests on formalities of negotia-
                          tion rather than their substance. As described above, the Parties
                          repeatedly indicated they were open to discuss many areas of sub-
                          stance with fishing rights being a particularly significant one. Settle-
                          ment of any of the substantive areas may have resolved matters.
                          Settlement of any of the substantive areas certainly would have nar-
                          rowed matters. Preconditions (if there were any) themselves may be
                          simply a part of a negotiating stance and for this reason need to be
                          appraised carefully.

                     — Second, perhaps a juxtaposition of negotiating preconditions could
                       indicate that the chances of a negotiated settlement were remote if
                       there were clear statements indicating that a party was open to dia-
                       logue only if the particular issue of concern was resolved first. But that
                       is not the case here. There are no such statements in the record by
                       Colombia (or Nicaragua) in the relevant months leading up to the fil-
                       ing of the Application of Nicaragua.

                     — Third, and most strikingly, the record directly contradicts the Court’s
                       holding. It is true that the Colombian Foreign Minister’s statement
                       did “define” in some sense an aim of the negotiations from Colom-
                       bia’s perspective. But it did not do so in a way different from that of
                       Nicaragua and certainly did not do so in the way the Court suggests.
                       The Court quotes this statement to support the idea that Colombia
                       sought a treaty that would re‑establish the boundaries it had prior to
                       the 2012 Judgment. It is that assertion which would be incompatible
                       with the Court’s unsupported construction of Nicaragua’s negotiating
                       position in the same paragraph. But that assertion also is flatly con-
                       tradicted by the record. The Foreign Minister’s statement clearly does
                       not seek to re‑establish the boundaries that existed before the Judg-
                       ment but rather to establish the boundaries of the Judgment through
                       an implementing treaty that will satisfy the internal legal requirements
                       of Colombian constitutional law. She states :

                               “[T]he Government does not disregard the Court of The Hague’s
                           Judgment — in which this Tribunal recognized greater rights to Nic-
                           aragua over those waters —, but that the country ‘is facing a legal
                           obstacle’ to apply it.
                           �����������������������������������������������������������������������������������������������������������������
                               Colombia is open to a dialogue with Nicaragua to sign a treaty that
                           establishes the boundaries and a legal regime that contributes to the
                           security and stability in the region. The Government has said that it
                           awaits the decision of the Constitutional Court before initiating any
                           action.” (Preliminary Objections of Colombia, Annex 42, “The Min-
                           ister of Foreign Affairs Explains in Detail the Strategy vis‑à‑vis Nic-
                           aragua”, El Tiempo, 15 September 2013, p. 349.)

                     98

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                     98 	   sovereign rights and maritime spaces (diss. op. caron)

                        73. Having reaffirmed the obligation to pursue negotiations under
                     Article II of the Pact of Bogotá, the Court finds contrary to the state-
                     ments of the Parties that there was no prospect of settlement. I dissent.
                     This conclusion is not supported by the evidence, and is more broadly of
                     concern, for the Court in so doing undermines the centrality of a duty to
                     negotiate both as a part of the peaceful settlement of disputes and spe-
                     cifically as a part of the scheme set out by the Pact of Bogotá. It is impor-
                     tant to recall the insights of the PCIJ in this respect :

                            “The Court realizes to the full the importance of the rule laying
                          down that only disputes which cannot be settled by negotiation should
                          be brought before it. It recognizes, in fact, that before a dispute can
                          be made the subject of an action at law, its subject-matter should have
                          been clearly defined by means of diplomatic negotiations.” (Mavrom‑
                          matis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A,
                          No. 2, p. 15.)

                                           IV. Concluding Observation

                        74. The Court in objectively determining the subject‑matter of the dis-
                     putes before it can be called upon to make fine distinctions. In the present
                     case, it has distinguished very finely between a claim for non‑compliance
                     with a judgment of the Court and a claim for violation of the rights
                     granted by such judgment. This dissent makes clear that the Court is not
                     nearly as adept at distinguishing whether a certain piece of evidence bears
                     on non‑compliance with the 2012 Judgment or on a violation of sovereign
                     rights and maritime spaces defined in the 2012 Judgment. The ease with
                     which these two claims overlap and the difficulty the Court has in assess-
                     ing the evidence will likely complicate the Court’s task at the merits phase
                     of this case.

                                                                 (Signed) David D. Caron.

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