                      COUR INTERNATIONALE DE JUSTICE

                          RECUEIL DES ARRÊTS,
                   AVIS CONSULTATIFS ET ORDONNANCES

                         DIFFÉREND
                   TERRITORIAL ET MARITIME
                        (NICARAGUA c. COLOMBIE)

                        REQUÊTE DU HONDURAS
                         À FIN D’INTERVENTION

                          ARRÊT DU 4 MAI 2011

                             2011
                      INTERNATIONAL COURT OF JUSTICE

                        Reports of judgments,
                     ADVISORY OPINIONS AND ORDERS

                   territorial AND maritime
                            DISPUTE
                        (NICARAGUA v. COLOMBIA)

                      APPLICATION BY HONDURAS
                     FOR PERMISSION TO INTERVENE

                        JUDGMENT OF 4 MAY 2011

5 CIJ1020.indb 1                                       14/06/13 11:47

                                            Mode officiel de citation :
                           Différend territorial et maritime (Nicaragua c. Colombie),
                                        requête à fin d’intervention, arrêt,
                                            C.I.J. Recueil 2011, p. 420

                                               Official citation :
                           Territorial and Maritime Dispute (Nicaragua v. Colombia),
                               Application for Permission to Intervene, Judgment,
                                           I.C.J. Reports 2011, p. 420

                                                                               1020
                                                                No de vente:
                   ISSN 0074-4441                               Sales number
                   ISBN 978-92-1-071131-9

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                                                  4 MAI 2011

                                                   ARRÊT

                          DIFFÉREND
                    TERRITORIAL ET MARITIME
                     (NICARAGUA c. COLOMBIE)
                     REQUÊTE DU HONDURAS
                      À FIN D’INTERVENTION

                    TERRITORIAL AND MARITIME
                             DISPUTE
                     (NICARAGUA v. COLOMBIA)
                    APPLICATION BY HONDURAS
                   FOR PERMISSION TO INTERVENE

                                                 4 MAY 2011

                                                 JUDGMENT

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                                                                                420

                                           table of contents

                                                                                Paragraphs

                   Chronology of the Procedure                                             1-19
                     I. The Legal Framework                                               20-48
                       1. The capacities in which Honduras is seeking to intervene        22-30

                       2. The interest of a legal nature which may be affected            31-39
                       3. The precise object of the intervention                          40-48
                    II. Examination of Honduras’s Request for Permission to
                        Intervene49-75
                       1. The interest of a legal nature claimed by Honduras              57-65
                       2. The application of the principle of res judicata                66-70
                       3. Honduras’s request in relation to the 1986 Treaty               71-75
                   Operative Clause                                                          76

                                                                                4

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                                                                                421

                                   INTERNATIONAL COURT OF JUSTICE

                                                       YEAR 2011                                                2011
                                                                                4 May
                                                                                General List
                                                       4 May 2011                                             No. 124

                                TERRITORIAL AND MARITIME
                                         DISPUTE
                                          (NICARAGUA v. COLOMBIA)

                                       APPLICATION BY HONDURAS
                                      FOR PERMISSION TO INTERVENE

                      Legal framework — Conditions for intervention under Article 62 of the Statute
                   and Article 81 of the Rules of Court.
                      The capacities in which Honduras is seeking to intervene, as a party or, alterna‑
                   tively, as a non‑party — The status of intervener as a party requires the existence
                   of a basis of jurisdiction as between the States concerned, but such a basis of juris‑
                   diction is not a condition for intervention as a non‑party — If it is permitted by the
                   Court to become a party to the proceedings, the intervening State may ask for
                   rights of its own to be recognized by the Court in its future decision, which would
                   be binding for that State in respect of those aspects for which intervention was
                   granted, pursuant to Article 59 of the Statute — Whatever the capacity in which a
                   State is seeking to intervene, it is required to establish the existence of an interest
                   of a legal nature which may be affected by the decision in the main proceedings,
                   and the precise object of its intervention.
                      Article 81, paragraph 2 (a), of the Rules of Court — Interest of a legal nature
                   which may be affected by the decision of the Court in the main proceedings — In
                   contrast to Article 63 of the Statute, a third State does not have a right to inter‑
                   vene under Article 62 of the Statute — Difference between right and interest of a
                   legal nature in the context of Article 62 of the Statute — Interest of a legal nature
                   to be shown is not limited to the dispositif alone of a Judgment but may also relate
                   to the reasons which constitute the necessary steps to the dispositif.
                      Article 81, paragraph 2 (b), of the Rules of Court — Precise object of interven‑
                   tion certainly consists in informing the Court of the interest of a legal nature which
                   may be affected by the decision of the Court in the main proceedings, but also in
                   protecting that interest — Proceedings on intervention are not an occasion for the
                   State seeking to intervene or for the Parties to discuss questions of substance relat‑
                   ing to the main proceedings — A State requesting permission to intervene may not,

                                                                                5

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                                  territorial and maritime dispute (judgment)                        422

                   under the cover of intervention, seek to introduce a new case alongside the main
                   proceedings — While it is true that a State which has been permitted to intervene
                   as a party may submit claims of its own to the Court for decision, these have to be
                   linked to the subject of the main dispute.
                      Examination of Honduras’s Application for permission to intervene.
                      Whether Honduras has set out an interest of a legal nature in the context of
                   Article 62 of the Statute — Honduras has indicated the maritime area in which it
                   considers that it has an interest of a legal nature which may be affected by the
                   decision of the Court in the main proceedings — Honduras has stated that it can
                   assert rights relating to oil concessions, naval patrols and fishing activities in that
                   area — With regard to the area north of the bisector line established by the Court
                   in its 8 October 2007 Judgment in the case concerning the Territorial and Mari-
                   time Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicara-
                   gua v. Honduras), Honduras may have no interest of a legal nature which may be
                   affected by the decision in the present proceedings because the rights of Honduras
                   over that area have not been contested by Nicaragua or by Colombia — By virtue
                   of the principle of res judicata, as applied to the Court’s 8 October 2007 Judg‑
                   ment, Honduras cannot have an interest of a legal nature in the area south of the
                   bisector line established by the Court in that Judgment.

                      Whereas Honduras has claimed that it has an interest of a legal nature in deter‑
                   mining if and how the Court’s 8 October 2007 Judgment has affected the status
                   and application of the 1986 Maritime Delimitation Treaty between Honduras and
                   Colombia, the Court in that Judgment did not rely on that Treaty, in conformity
                   with the principle of res inter alios acta.
                      Whereas Honduras has requested that the Court grant it permission to intervene
                   as a party to fix the tripoint between Honduras, Nicaragua and Colombia, the
                   Court, having clarified matters pertaining to the 8 October 2007 Judgment and the
                   1986 Treaty, does not see any link between the issue of the tripoint raised by Hon‑
                   duras and the current case.
                      Honduras has thus failed to satisfy the Court that it has an interest of a legal
                   nature that may be affected by the decision of the Court in the main proceed‑
                   ings — There is consequently no need for the Court to consider any further ques‑
                   tions that have been put before it in the present proceedings.

                                                        JUDGMENT

                             President Owada ; Vice-President Tomka ; Judges Koroma, Al‑
                   Present :
                             Khasawneh, Simma, Abraham, Keith, Sepúlveda‑Amor, Bennouna,
                             Cançado Trindade, Yusuf, Xue, Donoghue ; Judges ad hoc Cot,
                             Gaja ; Registrar Couvreur.

                     In the case concerning the territorial and maritime dispute,
                     between
                   the Republic of Nicaragua,
                   represented by
                     H.E. Mr. Carlos José Argüello Gómez, Ambassador of the Republic of Nica
                        ragua to the Kingdom of the Netherlands,

                                                                                6

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                                 territorial and maritime dispute (judgment)                  423

                      as Agent and Counsel ;
                      H.E. Mr. Samuel Santos, Minister for Foreign Affairs,
                      Mr. Alex Oude Elferink, Deputy‑Director, Netherlands Institute for the Law
                         of the Sea, Utrecht University,
                      Mr. Alain Pellet, Professor at the Université de Paris Ouest, Nanterre‑La
                         Défense, Member and former Chairman of the International Law Commis-
                         sion, associate member of the Institut de droit international,
                      Mr. Paul Reichler, Attorney‑at‑Law, Foley Hoag LLP, Washington D.C.,
                         member of the Bars of the United States Supreme Court and the District of
                         Columbia,
                      Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad
                         Autónoma, Madrid, member of the Institut de droit international,
                      as Counsel and Advocates ;
                      Mr. Robin Cleverly, M.A., D.Phil, C.Geol, F.G.S., Law of the Sea Consult-
                         ant, Admiralty Consultancy Services,
                      Mr. John Brown, Law of the Sea Consultant, Admiralty Consultancy Services,

                      as Scientific and Technical Advisers ;
                      Mr. César Vega Masís, Director of Juridical Affairs, Sovereignty and Terri-
                         tory, Ministry of Foreign Affairs,
                      Mr. Julio César Saborio, Juridical Adviser, Ministry of Foreign Affairs,

                      Mr. Walner Molina Pérez, Juridical Adviser, Ministry of Foreign Affairs,

                      Ms Tania Elena Pacheco Blandino, Juridical Adviser, Ministry of Foreign
                         Affairs,
                      as Counsel ;
                      Ms Clara E. Brillembourg, Foley Hoag LLP, member of the Bars of the Dis-
                         trict of Columbia and New York,
                      Ms Carmen Martinez Capdevila, Doctor of Public International Law, Uni-
                         versidad Autónoma, Madrid,
                      Ms Alina Miron, Researcher, Nanterre Centre for International Law
                         (CEDIN), Université de Paris Ouest, Nanterre‑La Défense,
                      Mr. Edgardo Sobenes Obregon, First Secretary, Embassy of Nicaragua in the
                         Kingdom of the Netherlands,
                      as Assistant Counsel,
                      and
                    the Republic of Colombia,
                    represented by
                      H.E. Mr. Julio Londoño Paredes, Professor of International Relations, Uni-
                         versidad del Rosario, Bogotá,
                      as Agent ;
                      H.E. Mr. Guillermo Fernández de Soto, Chair of the Inter‑American Juridi-
                         cal Committee, Member of the Permanent Court of Arbitration and former
                         Minister for Foreign Affairs,

                                                                                7

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                                 territorial and maritime dispute (judgment)                  424

                      as Co‑Agent ;
                      Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law,
                         University of Cambridge, member of the Institut de droit international,
                         Barrister,
                      Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris, member of the
                         New York Bar, Eversheds LLP, Paris,
                      Mr. Marcelo Kohen, Professor of International Law at the Graduate Insti-
                         tute of International and Development Studies, Geneva, associate member
                         of the Institut de droit international,
                      as Counsel and Advocates ;
                      H.E. Mr. Francisco José Lloreda Mera, formerly Ambassador of the Repub-
                         lic of Colombia to the Kingdom of the Netherlands and Permanent Repre-
                         sentative of Colombia to the OPCW, former Minister of State,
                      Mr. Eduardo Valencia‑Ospina, Member of the International Law Commis-
                         sion,
                      H.E. Ms Sonia Pereira Portilla, Ambassador of the Republic of Colombia to
                         the Republic of Honduras,
                      Mr. Andelfo García González, Professor of International Law, former Deputy
                         Minister for Foreign Affairs,
                      Ms Victoria E. Pauwels T., Minister‑Counsellor, Ministry of Foreign Affairs,

                      Mr. Julián Guerrero Orozco, Minister‑Counsellor, Embassy of Colombia in
                         the Kingdom of the Netherlands,
                      Ms Andrea Jiménez Herrera, Counsellor, Ministry of Foreign Affairs,
                      as Legal Advisers ;
                      Mr. Thomas Fogh, Cartographer, International Mapping,
                      as Technical Adviser ;
                    on the Application for permission to intervene filed by the Republic of Hondu-
                    ras,
                    represented by
                       H.E. Mr. Carlos López Contreras, Ambassador, National Counsellor at the
                          Ministry of Foreign Affairs,
                       as Agent ;
                       Sir Michael Wood, K.C.M.G., member of the English Bar, Member of the
                          International Law Commission,
                       Ms Laurence Boisson de Chazournes, Professor of International Law at the
                          University of Geneva,
                       as Counsel and Advocates ;
                       H.E. Mr. Julio Rendón Barnica, Ambassador, Ministry of Foreign Affairs,

                      H.E. Mr. Miguel Tosta Appel, Ambassador, Chairman of the Honduran
                        Demarcation Commission, Ministry of Foreign Affairs,
                      Mr. Sergio Acosta, Chargé d’affaires a.i. at the Embassy of Honduras, in the
                        Kingdom of the Netherlands,
                      Mr. Richard Meese, avocat à la Cour d’appel de Paris,
                      Mr. Makane Moïse Mbengue, Doctor of Law, Senior Lecturer at the Univer-
                        sity of Geneva,

                                                                                8

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                                  territorial and maritime dispute (judgment)                      425

                      Ms Laurie Dimitrov, pupil barrister at the Paris Bar, Cabinet Meese,
                      Mr. Eran Sthoeger, Faculty of Law, New York University,
                      as Counsel ;
                      Mr. Mario Licona, Ministry of Foreign Affairs,
                      as Technical Adviser,
                      The Court,
                      composed as above,
                      after deliberation,
                      delivers the following Judgment :
                       1. On 6 December 2001, the Republic of Nicaragua (hereinafter “Nicara-
                    gua”) filed in the Registry of the Court an Application instituting proceedings
                    against the Republic of Colombia (hereinafter “Colombia”) in respect of a dis-
                    pute consisting of a “group of related legal issues subsisting” between the two
                    States “concerning title to territory and maritime delimitation” in the western
                    Caribbean.
                       As a basis for the jurisdiction of the Court, the Application invoked the pro-
                    visions of Article XXXI of the American Treaty on Pacific Settlement signed on
                    30 April 1948, officially designated, according to Article LX thereof, as the
                    “Pact of Bogotá” (hereinafter referred to as such), as well as the declarations
                    made by the Parties under Article 36 of the Statute of the Permanent Court of
                    International Justice, which are deemed, for the period which they still have to
                    run, to be acceptances of the compulsory jurisdiction of the present Court pur-
                    suant to Article 36, paragraph 5, of its Statute.
                       2. Pursuant to Article 40, paragraph 2, of the Statute, the Registrar immedi-
                    ately communicated the Application to the Government of Colombia ; and, pur-
                    suant to paragraph 3 of that Article, all other States entitled to appear before
                    the Court were notified of the Application.
                       3. Pursuant to the instructions of the Court under Article 43 of the Rules of
                    Court, the Registrar addressed to all States parties to the Pact of Bogotá the
                    notifications provided for in Article 63, paragraph 1, of the Statute. In accor-
                    dance with the provisions of Article 69, paragraph 3, of the Rules of Court, the
                    Registrar moreover addressed to the Organization of American States (herein
                    after the “OAS”) the notification provided for in Article 34, paragraph 3, of the
                    Statute. The Registrar subsequently transmitted to that organization copies of
                    the pleadings filed in the case and asked its Secretary‑General to inform him
                    whether or not it intended to present observations in writing within the meaning
                    of Article 69, paragraph 3, of the Rules of Court. The OAS indicated that it did
                    not intend to submit any such observations.
                       4. Since the Court included upon the Bench no judge of the nationality of
                    either of the Parties, each Party proceeded to exercise its right conferred by Arti-
                    cle 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case.
                    Nicaragua first chose Mr. Mohammed Bedjaoui, who resigned on 2 May 2006,
                    and subsequently Mr. Giorgio Gaja. Colombia first chose Mr. Yves Fortier,
                    who resigned on 7 September 2010, and subsequently Mr. Jean‑Pierre Cot.
                       5. By an Order of 26 February 2002, the Court fixed 28 April 2003 as the
                    time‑limit for the filing of the Memorial of Nicaragua and 28 June 2004 as the
                    time‑limit for the filing of the Counter‑Memorial of Colombia. Nicaragua filed
                    its Memorial within the time‑limit thus prescribed.

                                                                                9

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                                  territorial and maritime dispute (judgment)                    426

                       6. On 15 May 2003, referring to Article 53, paragraph 1, of the Rules of
                    Court, the Government of the Republic of Honduras (hereinafter “Honduras”)
                    asked to be furnished with copies of the pleadings and documents annexed in
                    the case. Having ascertained the views of the Parties pursuant to that same pro-
                    vision, the Court decided to grant this request. The Registrar duly communi-
                    cated this decision to the Honduran Government and to the Parties.

                        7. On 21 July 2003, within the time‑limit set by Article 79, paragraph 1, of
                    the Rules of Court, Colombia raised preliminary objections to the jurisdiction
                    of the Court. Consequently, by an Order of 24 September 2003, the Court,
                    noting that by virtue of Article 79, paragraph 5, of the Rules of Court, the pro-
                     ceedings on the merits were suspended, fixed 26 January 2004 as the time‑limit
                     for the presentation by Nicaragua of a written statement of its observations and
                     submissions on the preliminary objections made by Colombia. Nicaragua filed
                     such a statement within the time‑limit thus prescribed, and the case thus became
                     ready for hearing in respect of the preliminary objections.

                       8. Between 2005 and 2008, referring to Article 53, paragraph 1, of the Rules
                    of Court, the Governments of Jamaica, Chile, Peru, Ecuador, Venezuela and
                    Costa Rica asked to be furnished with copies of the pleadings and documents
                    annexed in the case. Having ascertained the views of the Parties pursuant to that
                    same provision, the Court decided to grant each of these requests. The Registrar
                    duly communicated these decisions to the said Governments and to the Parties.

                       9. The Court held public hearings on the preliminary objections raised by
                    Colombia from 4 to 8 June 2007. In its Judgment of 13 December 2007, the
                    Court concluded that it had jurisdiction, under Article XXXI of the Pact of
                    Bogotá, to adjudicate upon the dispute concerning sovereignty over the mari-
                    time features claimed by the Parties, other than the islands of San Andrés,
                    Providencia and Santa Catalina, and upon the dispute concerning the maritime
                    delimitation between the Parties.
                       10. By an Order of 11 February 2008, the President of the Court fixed
                    11 November 2008 as the new time‑limit for the filing of Colombia’s Counter‑
                    Memorial. That pleading was duly filed within the time‑limit thus prescribed.

                       11. By an Order of 18 December 2008, the Court directed Nicaragua to sub-
                    mit a Reply and Colombia to submit a Rejoinder and fixed 18 September 2009
                    and 18 June 2010 as the respective time‑limits for the filing of those pleadings.
                    The Reply and the Rejoinder were duly filed within the time‑limits thus pre-
                    scribed.
                       12. On 10 June 2010, Honduras filed an Application for permission to inter-
                    vene in the case pursuant to Article 62 of the Statute. It stated therein that the
                    object of this Application was :
                            “Firstly, in general terms, to protect the rights of the Republic of Hon-
                         duras in the Caribbean Sea by all the legal means available and, conse-
                         quently, to make use for that purpose of the procedure provided for in
                         Article 62 of the Statute of the Court.
                            Secondly, to inform the Court of the nature of the legal rights and inter-
                         ests of Honduras which could be affected by the decision of the Court,
                         taking account of the maritime boundaries claimed by the Parties in the case
                         brought before the Court . . .

                                                                                10

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                                  territorial and maritime dispute (judgment)                     427

                           Thirdly, to request the Court to be permitted to intervene in the current
                         proceedings as a State party. In such circumstances, Honduras would rec-
                         ognize the binding force of the decision that would be rendered. Should the
                         Court not accede to this request, Honduras requests the Court, in the alter-
                         native, for permission to intervene as a non‑party.”

                    In accordance with Article 83, paragraph 1, of the Rules of Court, certified
                    copies of Honduras’s Application were communicated forthwith to Nicaragua
                     and Colombia, which were invited to furnish written observations on that Appli
                     cation.
                        13. On 2 September 2010, within the time‑limit fixed for that purpose by the
                     Court, the Governments of Nicaragua and Colombia submitted written obser-
                     vations on Honduras’s Application for permission to intervene. In its observa-
                     tions, Nicaragua stated that the request to intervene failed to comply with the
                     Statute and the Rules of Court and that it therefore “opposes the granting of
                     such permission, and . . . requests that the Court dismiss the Application for
                     permission to intervene filed by Honduras”. For its part, Colombia indicated
                     inter alia in its observations that it had “no objection” to Honduras’s request
                     “to be permitted to intervene as a non‑party”, and added that it “considers that
                     [Honduras’s request to be permitted to intervene as a party] falls to the Court to
                     decide”. Nicaragua having objected to the Application, the Parties and the Gov-
                     ernment of Honduras were notified by letters from the Registrar dated 15 Sep-
                     tember 2010 that the Court would hold hearings, in accordance with Article 84,
                     paragraph 2, of the Rules of Court, to hear the observations of Honduras, the
                     State applying to intervene, and those of the Parties to the case.

                       14. After ascertaining the views of the Parties, the Court decided that copies
                    of the written observations which they had furnished on Honduras’s Applica-
                    tion for permission to intervene would be made accessible to the public on the
                    opening of the oral proceedings.
                       15. At the public hearings held on 18, 20, 21 and 22 October 2010 on whether
                    to grant Honduras’s Application for permission to intervene, the Court heard
                    the oral arguments and replies of the following representatives :

                    For Honduras : H.E. Mr. Carlos López Contreras, Agent,
                                   Sir Michael Wood,
                                   Ms Laurence Boisson de Chazournes.
                    For Nicaragua : H.E. Mr. Carlos José Argüello Gómez, Agent,
                                    Mr. Alain Pellet.
                    For Colombia : H.E. Mr. Julio Londoño Paredes, Agent,
                                   Mr. James Crawford,
                                   Mr. Rodman R. Bundy,
                                   Mr. Marcelo Kohen.

                                                            *

                      16. In its Application for permission to intervene, the Honduran Govern-
                    ment stated in conclusion that it

                                                                                11

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                                 territorial and maritime dispute (judgment)                       428

                        “seeks the Court’s permission to intervene as a party in the current proceed-
                        ings in order to settle conclusively, on the one hand, the dispute over the
                        delimitation line between the endpoint of the boundary fixed by the Judg-
                        ment of 8 October 2007 [in the case concerning the Territorial and Maritime
                        Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicara‑
                        gua v. Honduras)] and the tripoint on the boundary line in the 1986 Mari-
                        time Delimitation Treaty, and, on the other hand, the determination of the
                        tripoint on the boundary line in the 1986 Maritime Delimitation Treaty
                        between Colombia and Honduras. In the alternative, Honduras seeks the
                        Court’s permission to intervene as a non-party in order to protect its rights
                        and to inform the Court of the nature of the legal rights and interests of the
                        Republic of Honduras in the Caribbean Sea which could be affected by the
                        decision of the Court in these proceedings.” (Para. 36.)
                    In its Written Observations on Honduras’s Application for permission to inter-
                    vene, Nicaragua submitted
                        “that the Application for permission to intervene filed by Honduras does not
                        comply with the Statute and Rules of Court and therefore [it] : (1) opposes
                        the granting of such permission, and (2) requests that the Court dismiss the
                        Application for permission to intervene filed by Honduras” (para. 39).
                    In its Written Observations on Honduras’s Application for permission to inter-
                    vene, Colombia submitted as follows :
                          “With respect to the request to be permitted to intervene as a non‑party,
                        Colombia has no objection. Colombia has acknowledged that vis‑à‑vis
                        Honduras it is bound by the delimitation agreed in the 1986 Treaty between
                        Colombia and Honduras. However, this is not the case vis‑à‑vis Nicaragua
                        and Colombia has consequently reserved its rights in this area.

                           With respect to the Honduran request to be permitted to intervene as a
                        party, Colombia understands that this request raises issues relating to the
                        Court’s 2007 Judgment in the Nicaragua v. Honduras case to which Colom-
                        bia was not a party. Consequently, Colombia considers that this request
                        falls to the Court to decide under Article 62 of the Statute, taking into
                        account whether the object and purpose of the request relates to interven-
                        tion under Article 62 in the main case between Nicaragua and Colombia or
                        to another dispute not directly at issue in the pending case.”

                      17. At the oral proceedings, the following submissions were presented :
                    On behalf of the Government of Honduras,
                    at the hearing of 21 October 2010 :
                           “Having regard to the Application and the oral pleadings,
                           May it please the Court to permit Honduras :
                        (1) to intervene as a party in respect of its interests of a legal nature in the
                            area of concern in the Caribbean Sea (paragraph 17 of the Application)
                            which may be affected by the decision of the Court ; or

                                                                                12

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                                  territorial and maritime dispute (judgment)                     429

                         (2) in the alternative, to intervene as a non‑party with respect to those
                             interests.”
                    On behalf of the Government of Nicaragua,
                    at the hearing of 22 October 2010 :
                            “In accordance with Article 60 of the Rules of the Court and having
                         regard to the Application for permission to intervene filed by the Republic
                         of Honduras and its oral pleadings, the Republic of Nicaragua respectfully
                         submits that :
                            The Application filed by the Republic of Honduras is a manifest chal-
                         lenge to the authority of the res judicata of your 8th of October 2007 Judg-
                         ment. Moreover, Honduras has failed to comply with the requirements
                         established by the Statute and the Rules of the Court, namely, Article 62,
                         and paragraph 2, (a) and (b), of Article 81 respectively, and therefore
                         Nicaragua (1) opposes the granting of such permission, and (2) requests that
                         the Court dismiss the Application for permission to intervene filed by Hon-
                         duras.”
                    On behalf of the Government of Colombia,
                    at the hearing of 22 October 2010 :
                            “In light of the considerations stated during these proceedings, [the] Gov-
                         ernment [of Colombia] wishes to reiterate what it stated in the Written
                         Observations it submitted to the Court, to the effect that, in Colombia’s
                         view, Honduras has satisfied the requirements of Article 62 of the Statute
                         and, consequently, that Colombia does not object to Honduras’s request
                         for permission to intervene in the present case as a non‑party. As concerns
                         Honduras’s request to be permitted to intervene as a Party, Colombia like-
                         wise reiterates that it is a matter for the Court to decide in conformity with
                         Article 62 of the Statute.”

                                                              *
                                                          *       *

                       18. In its Application for permission to intervene dated 10 June 2010
                    (see paragraph 12 above), Honduras made clear that it primarily sought
                    to be permitted to intervene in the pending case as a party, and that if the
                    Court did not accede to that request, it wished, in the alternative, to be
                    permitted to intervene as a non‑party.
                       Honduras defined the object of its intervention according to whether its
                    primary or alternative request to intervene were granted : if the former, to
                    settle the maritime boundary between itself and the two States Parties to
                    the case ; if the latter, to protect its rights and legal interests and to inform
                    the Court of the nature of these, so that they are not affected by the future
                    maritime delimitation between Nicaragua and Colombia.

                       19. Referring to Article 81 of the Rules of Court, Honduras set out in
                    its Application what it considers to be the interest of a legal nature which
                    may be affected by the Court’s decision on the delimitation between Nica-
                    ragua and Colombia, the precise object of the intervention, and the basis

                                                                                13

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                                 territorial and maritime dispute (judgment)                430

                    of jurisdiction which is claimed to exist as between itself and the Parties
                    to the main proceedings.

                                           I. The Legal Framework

                       20. The legal framework of Honduras’s request to intervene is set out
                    in Article 62 of the Statute and Article 81 of the Rules of Court.
                       Under Article 62 of the Statute :
                          “1. Should a State consider that it has an interest of a legal nature
                        which may be affected by the decision in the case, it may submit a
                        request to the Court to be permitted to intervene.
                          2. It shall be for the Court to decide upon this request.”
                      Under Article 81 of the Rules of Court :
                           “1. An application for permission to intervene under the terms of
                        Article 62 of the Statute, signed in the manner provided for in Arti-
                        cle 38, paragraph 3, of these Rules, shall be filed as soon as possible,
                        and not later than the closure of the written proceedings. In excep-
                        tional circumstances, an application submitted at a later stage may
                        however be admitted.
                           2. The application shall state the name of an agent. It shall specify
                        the case to which it relates, and shall set out :
                        (a) the interest of a legal nature which the State applying to intervene
                             considers may be affected by the decision in that case ;
                        (b) the precise object of the intervention ;
                        (c) any basis of jurisdiction which is claimed to exist as between the
                             State applying to intervene and the parties to the case.
                           3. The application shall contain a list of the documents in support,
                        which documents shall be attached.”
                       21. Intervention being a proceeding incidental to the main proceedings
                    before the Court, it is, according to the Statute and the Rules of Court,
                    for the State seeking to intervene to set out the interest of a legal nature
                    which it considers may be affected by the decision in that dispute, the
                    precise object it is pursuing by means of the request, as well as any basis
                    of jurisdiction which is claimed to exist as between it and the parties. The
                    Court will first examine the capacities in which Honduras is seeking to
                    intervene, before turning to the other constituent elements of the request
                    for permission to intervene.

                                                       *   *
                          1. The Capacities in which Honduras Is Seeking to Intervene
                      22. Honduras is seeking permission to intervene as a party in the case
                    before the Court in order to achieve a final settlement of the dispute

                                                                                14

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                                 territorial and maritime dispute (judgment)                 431

                    between itself and Nicaragua, including the determination of the tripoint
                    with Colombia, and, in the alternative, as a non‑party, in order to inform
                    the Court of its interests of a legal nature which may be affected by the
                    decision the Court is to render in the case between Nicaragua and Colom-
                    bia, and to protect those interests.
                       23. Referring to the jurisprudence of the Court, Honduras considers
                    that Article 62 of the Statute allows a State to intervene either as a party
                    or a non‑party. In the former case, a basis of jurisdiction as between the
                    State seeking to intervene and the parties to the main proceedings is
                    required, and the intervening State is bound by the Court’s judgment,
                    whereas in the latter, that judgment has effect only between the parties to
                    the main proceedings, pursuant to Article 59 of the Statute. Honduras
                    maintains that in the present proceedings, Article XXXI of the Pact of
                    Bogotá founds the Court’s jurisdiction as between itself, Nicaragua and
                    Colombia. For a State seeking to intervene as a party, according to Hon-
                    duras, intervention consists in “asserting a right of its own with respect to
                    the object of the dispute”, so as to obtain a ruling from the Court on such
                    a right.
                       24. Honduras points out that, unlike intervention as a non‑party,
                    intervention as a party, in view of its object, results in making the Court’s
                    decision on the specific point or points on which the intervention was
                    permitted binding on the intervener, and thus in making Articles 59 of the
                    Statute and 94 of the Charter applicable to the intervener.

                       25. For Nicaragua, whatever the two alternative capacities in which
                    Honduras is seeking to intervene, both would continue to be governed by
                    Article 62 of the Statute and would have to meet the sine qua non condi-
                    tion or conditions laid down by that provision, namely that the State
                    must be able to show an interest of a legal nature which may be affected
                    by the decision in a dispute submitted to the Court. It points out that
                    Honduras, in any event, may not intervene as a party, if for no other
                    reason than the absence of a basis of jurisdiction, since Article VI of the
                    Pact of Bogotá excludes from the Court’s jurisdiction “matters already
                    settled . . . by decision of an international court”. In Nicaragua’s view,
                    Honduras’s argument consists in reopening delimitation issues already
                    decided by the Judgment of the Court of 8 October 2007 (Territorial and
                    Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
                    (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 659).
                       26. Colombia notes that intervention is an incidental procedure and
                    may not be used to tack on a new case, distinct from the case that exists
                    between the original parties. It accepts that both forms of intervention, as
                    a party and as a non‑party, require proof of the existence of an interest of
                    a legal nature, although it questions whether the same criterion applies to
                    this interest in both cases.

                                                         *
                                                                                15

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                                 territorial and maritime dispute (judgment)                  432

                       27. The Court observes that neither Article 62 of the Statute nor
                    Article 81 of the Rules of Court specifies the capacity in which a State
                    may seek to intervene. However, in its Judgment of 13 September 1990 on
                    Nicaragua’s Application for permission to intervene in the case concer-
                    ning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras),
                    the Chamber of the Court considered the status of a State seeking to
                    intervene and accepted that a State may be permitted to intervene under
                    Article 62 of the Statute either as a non‑party or as a party :
                            “It is therefore clear that a State which is allowed to intervene in a
                         case, does not, by reason only of being an intervener, become also a
                         party to the case. It is true, conversely, that, provided that there be
                         the necessary consent by the parties to the case, the intervener is not
                         prevented by reason of that status from itself becoming a party to the
                         case.” (Land, Island and Maritime Frontier Dispute (El Salvador/Hon‑
                         duras), Application for Permission to Intervene, Judgment, I.C.J.
                         Reports 1990, pp. 134‑135, para. 99.)
                       28. In the opinion of the Court, the status of intervener as a party
                    requires, in any event, the existence of a basis of jurisdiction as between
                    the States concerned, the validity of which is established by the Court at
                    the time when it permits intervention. However, even though Article 81 of
                    the Rules of Court provides that the application must specify any basis of
                    jurisdiction claimed to exist as between the State seeking to intervene and
                    the parties to the main case, such a basis of jurisdiction is not a condition
                    for intervention as a non‑party.
                       29. If it is permitted by the Court to become a party to the proceed-
                    ings, the intervening State may ask for rights of its own to be recognized
                    by the Court in its future decision, which would be binding for that State
                    in respect of those aspects for which intervention was granted, pursuant
                    to Article 59 of the Statute. A contrario, as the Chamber of the Court
                    formed to deal with the case concerning the Land, Island and Maritime
                    Frontier Dispute (El Salvador/Honduras) has pointed out, a State permit-
                    ted to intervene in the proceedings as a non‑party “does not acquire the
                    rights, or become subject to the obligations, which attach to the status of
                    a party, under the Statute and Rules of Court, or the general principles of
                    procedural law” (ibid., p. 136, para. 102).
                       30. The fact remains that, whatever the capacity in which a State is
                    seeking to intervene, it must fulfil the condition laid down by Article 62
                    of the Statute and demonstrate that it has an interest of a legal nature
                    which may be affected by the future decision of the Court. Since Arti-
                    cle 62 of the Statute and Article 81 of the Rules of Court provide the legal
                    framework for a request to intervene and define its constituent elements,
                    those elements are essential, whatever the capacity in which a State is
                    seeking to intervene ; that State is required in all cases to establish its
                    interest of a legal nature which may be affected by the decision in the
                    main case, and the precise object of the requested intervention.

                                                        *   *
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                                 territorial and maritime dispute (judgment)                 433

                            2. The Interest of a Legal Nature which May Be Affected
                       31. Honduras takes the view that there are two principles underpin-
                    ning Article 62 of the Statute. Under the first of these, it is for the State
                    wishing to intervene to “consider” whether one or more of its interests of
                    a legal nature may be affected by the decision in the case, and it alone is
                    able to appreciate the extent of the interests in question. According to the
                    second principle, it is for that State to decide whether it is appropriate to
                    exercise a right of intervention before the Court.
                       For Honduras, therefore, Article 62, like Article 63, lays down a right
                    to intervene for the States parties to the Statute, whereby it is sufficient
                    for one of them to “consider” that its interests of a legal nature may be
                    affected in order for the Court to be bound to permit intervention.
                    According to Honduras, if that interest is genuine, the Court does not
                    have the discretion not to authorize the intervention.
                       32. Nicaragua, for its part, sees it as incorrect to contend that a right
                    to intervene exists under Article 62 of the Statute, this being, rather, a
                    right to apply to intervene, since it is for the Court to determine objec-
                    tively whether the legal interest relied upon is real and whether it really
                    may be affected in the case in relation to which it is raised in incidental
                    proceedings. For Nicaragua, the claims of the State seeking to intervene
                    must be credible enough to be seen as a genuine legal interest at stake.

                                                         *
                      33. The Court observes that, as provided for in the Statute and the
                    Rules of Court, the State seeking to intervene shall set out its own interest
                    of a legal nature in the main proceedings, and a link between that interest
                    and the decision that might be taken by the Court at the end of those
                    proceedings. In the words of the Statute, this is “an interest of a legal
                    nature which may be affected by the decision in the case” (expressed more
                    explicitly in the English text than in the French “un intérêt d’ordre
                    juridique . . . pour lui en cause” ; see Article 62 of the Statute).

                       34. It is up to the State concerned to apply to intervene, even though
                    the Court may, in the course of a particular case, draw the attention of
                    third States to the possible impact that its future judgment on the merits
                    may have on their interests, as it did in its Judgment of 11 June 1998 on
                    preliminary objections in the case concerning Land and Maritime Bound‑
                    ary between Cameroon and Nigeria (Cameroon v. Nigeria) (I.C.J. Reports
                    1998, p. 324, para. 116).
                       35. In contrast to Article 63 of the Statute, a third State does not have
                    a right to intervene under Article 62. It is not sufficient for that State to
                    consider that it has an interest of a legal nature which may be affected by
                    the Court’s decision in the main proceedings in order to have, ipso facto,
                    a right to intervene in those proceedings. Indeed, Article 62, paragraph 2,

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                                 territorial and maritime dispute (judgment)                    434

                    clearly recognizes the Court’s prerogative to decide on a request for per-
                    mission to intervene, on the basis of the elements which are submitted to
                    it.
                        36. It is true that, as it has already indicated, the Court “does not con-
                    sider paragraph 2 [of Article 62] to confer upon it any general discretion to
                    accept or reject a request for permission to intervene for reasons simply of
                    policy” (Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application
                    for Permission to Intervene, Judgment, I.C.J. Reports 1981, p. 12, para. 17).
                    It is for the Court, responsible for safeguarding the proper administration
                    of justice, to decide whether the condition laid down by Article 62, para-
                    graph 1, has been fulfilled. Consequently, Article 62, paragraph 2, accord-
                    ing to which “[it] shall be for the Court to decide upon this request”, is
                    markedly different from Article 63, paragraph 2, which clearly gives cer-
                    tain States “the right to intervene in the proceedings” in respect of the
                    interpretation of a convention to which they are parties.
                        37. The Court observes that, whereas the parties to the main proceed-
                    ings are asking it to recognize certain of their rights in the case at hand, a
                    State seeking to intervene is, by contrast, contending, on the basis of Arti-
                    cle 62 of the Statute, that the decision on the merits could affect its inter-
                    ests of a legal nature. The State seeking to intervene as a non‑party
                    therefore does not have to establish that one of its rights may be affected ;
                    it is sufficient for that State to establish that its interest of a legal nature
                    may be affected. Article 62 requires the interest relied upon by the State
                    seeking to intervene to be of a legal nature, in the sense that it has to be
                    the object of a real and concrete claim of that State, based on law, as
                    opposed to a claim of a purely political, economic or strategic nature. But
                    this is not just any kind of interest of a legal nature ; it must in addition
                    be possible for it to be affected, in its content and scope, by the Court’s
                    future decision in the main proceedings.

                       Accordingly, an interest of a legal nature within the meaning of Arti-
                    cle 62 does not benefit from the same protection as an established right
                    and is not subject to the same requirements in terms of proof.
                       38. The decision of the Court granting permission to intervene can be
                    understood as a preventive one, since it is aimed at allowing the interven-
                    ing State to take part in the main proceedings in order to protect an inter-
                    est of a legal nature which risks being affected in those proceedings. As to
                    the link between the incidental proceedings and the main proceedings, the
                    Court has previously stated that “the interest of a legal nature to be
                    shown by a State seeking to intervene under Article 62 is not limited to
                    the dispositif alone of a judgment. It may also relate to the reasons which
                    constitute the necessary steps to the dispositif.” (Sovereignty over Pulau
                    Ligitan and Pulau Sipadan (Indonesia/Malaysia), Application for Permis‑
                    sion to Intervene, Judgment, I.C.J. Reports 2001, p. 596, para. 47.)
                       39. It is for the Court to assess the interest of a legal nature which may
                    be affected that is invoked by the State that wishes to intervene, on the
                    basis of the facts specific to each case, and it can only do so “in concreto

                                                                                18

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                                 territorial and maritime dispute (judgment)                435

                    and in relation to all the circumstances of a particular case” (Land, Island
                    and Maritime Frontier Dispute (El Salvador/Honduras), Application for
                    Permission to Intervene, Judgment, I.C.J. Reports 1990, p. 118, para. 61).

                                     3. The Precise Object of the Intervention
                       40. Under Article 81, paragraph 2 (b), of the Rules of Court, an appli-
                    cation for permission to intervene must set out “the precise object of the
                    intervention”.
                       41. Honduras is requesting the Court, in the context of its Application
                    for permission to intervene as a party, to determine the course of the
                    maritime boundary between itself, Nicaragua and Colombia in the mari-
                    time zone in question, and to fix the tripoint on the boundary line under
                    the 1986 Treaty. In the alternative, the object of Honduras’s intervention
                    as a non‑party is “to protect its rights and to inform the Court of the
                    nature of the legal rights and interests of the Republic of Honduras in the
                    Caribbean Sea which could be affected by the decision of the Court in the
                    pending case”.
                       42. Nicaragua, for its part, takes the view that Honduras is endeavour-
                    ing to convince the Court to rule, in fact, on the course of its own bound-
                    ary with the Parties, and that “the only purpose of Honduras’s hoped-for
                    intervention is to call into question the 2007 Judgment determining its
                    maritime boundary with Nicaragua along its entire length”.
                       43. As for Colombia, it points out that intervention may not be used
                    to tack on a new case, distinct from the case that exists between the ori
                    ginal parties, but considers that Honduras qualifies to intervene as a non-
                    party under Article 62 of the Statute, and that it is for the Court to go
                    further, if it so decides, by allowing that State to intervene as a party.

                                                         *
                       44. The Court recalls that Honduras’s request for permission to inter-
                    vene is an incidental procedure and that, whatever the form of the
                    requested intervention, as a party or as a non‑party, the State seeking to
                    intervene is required by the Statute to demonstrate the existence of a legal
                    interest which may be affected by the decision of the Court in the main
                    proceedings. It follows that the precise object of the intervention must be
                    connected with the subject of the main dispute between Nicaragua and
                    Colombia.
                       45. The Court points out, moreover, that the written and oral proceed-
                    ings concerning the Application for permission to intervene must focus on
                    demonstrating the interest of a legal nature which may be affected ; these
                    proceedings are not an occasion for the State seeking to intervene or for
                    the Parties to discuss questions of substance relating to the main proceed-
                    ings, which the Court cannot take into consideration during its examina-
                    tion of whether to grant a request for permission to intervene.

                                                                                19

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                                 territorial and maritime dispute (judgment)                 436

                       46. As the Court has previously stated, the raison d’être of intervention
                    is to enable a third State, whose legal interest might be affected by a pos-
                    sible decision of the Court, to participate in the main case in order to
                    protect that interest (see paragraph 38 above).
                       47. The Court notes that a State requesting permission to intervene
                    may not, under the cover of intervention, seek to introduce a new case
                    alongside the main proceedings. While it is true that a State which has
                    been permitted to intervene as a party may submit claims of its own to the
                    Court for decision, these have to be linked to the subject of the main dis-
                    pute. The fact that a State is permitted to intervene does not mean that it
                    can alter the nature of the main proceedings, since intervention “cannot be
                    [a proceeding] which transforms [a] case into a different case with different
                    parties” (Land, Island and Maritime Frontier Dispute (El Salvador/Hondu‑
                    ras), Application for Permission to Intervene, Judgment, I.C.J. Reports
                    1990, p. 134, para. 98 ; see also Continental Shelf (Libyan Arab Jamahiriya/
                    Malta), Application for Permission to Intervene, Judgment, I.C.J. Reports
                    1984, p. 20, para. 31).
                       48. Therefore, the purpose of assessing the connection between the
                    precise object of the intervention and the subject of the dispute is to
                    enable the Court to ensure that a third State is actually seeking to protect
                    its legal interests which may be affected by the future judgment.

                                                        *   *
                                 II. Examination of Honduras’s Request for
                                           Permission to Intervene

                       49. In specifying its interests of a legal nature that may be affected by
                    the decision of the Court, Honduras in its Application states that the
                    1986 Maritime Delimitation Treaty between Honduras and Colombia
                    (hereinafter referred to as “the 1986 Treaty”) recognizes that the area
                    north of the 15th parallel and east of the 82nd meridian involves Hondu-
                    ras’s legitimate rights and interests of a legal nature (see sketch‑map
                    below, p. 441). Honduras argues that the Court should, in its decision in
                    the present case, take full account of such rights and interests in the
                    above‑mentioned area, which, it maintains, were not addressed in the
                    2007 Judgment of the Court in the case concerning Territorial and Mari‑
                    time Dispute between Nicaragua and Honduras in the Caribbean Sea
                    (Nicaragua v. Honduras) (Judgment, I.C.J. Reports 2007 (II), p. 658)
                    (hereinafter referred to as “the 2007 Judgment”). Since the Court is going
                    to determine the allocation of the “delimitation area” proposed by Nica-
                    ragua in the main proceedings, Honduras is of the view that the Court
                    will inevitably have to decide whether the 1986 Treaty is in force and
                    whether it does or does not accord Colombia rights in the area in dispute
                    between Colombia and Nicaragua. Therefore Honduras maintains that
                    the status and substance of the 1986 Treaty are at stake in the present
                    case.

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                                 territorial and maritime dispute (judgment)                437

                       50. Honduras claims that by virtue of the 1986 Treaty, in the area east
                    of the 82nd meridian, it is still entitled to certain sovereign rights and
                    jurisdiction such as oil concessions, naval patrols and fishing activities.
                    Honduras contends that Nicaragua as a third party to the 1986 Treaty
                    cannot rely on the said treaty to maintain that the maritime area in ques-
                    tion appertains to Nicaragua alone. Honduras is convinced that, without
                    its participation as an intervening State, the decision of the Court may
                    irreversibly affect its legal interests if the Court is eventually to uphold
                    certain claims put forward by Nicaragua.

                       51. Honduras argues that the 2007 Judgment did not settle the entire
                    Caribbean Sea boundary between Nicaragua and Honduras. In its opin-
                    ion, the fact that the arrow on the bisector boundary appearing on one of
                    the sketch‑maps in the 2007 Judgment stops at the 82nd meridian,
                    together with the wording of the dispositif of the Judgment, indicates that
                    the Court made no decision about the area lying east of that meridian
                    (see sketch‑map below, p. 441). According to Honduras, because the
                    Court in the 2007 Judgment did not rule on the 1986 Treaty, a matter
                    that the Court was not asked to address, there still exists uncertainty to
                    be resolved in regard to the respective sovereign rights and jurisdiction of
                    the three States in the area, namely, Honduras, Colombia and Nicaragua.
                    To be more specific, Honduras takes the view that the Court has not
                    determined the final point of the boundary between Honduras and Nica-
                    ragua, nor has it specified that the final endpoint will lie on the azimuth
                    of the bisector boundary line. As the object of its Application, Honduras is
                    requesting the Court, in the event it is granted permission to intervene as
                    a party, to fix the tripoint between Honduras, Nicaragua and Colombia,
                    and thus to reach a final settlement of maritime delimitation in the area.
                       52. In explaining its understanding of the effect of the 2007 Judgment
                    with respect to the legal reasoning stated in paragraphs 306 to 319 of the
                    Judgment under the heading “Starting‑point and endpoint of the mari-
                    time boundary”, Honduras contends that these paragraphs are not part
                    of res judicata, and that, in paragraph 319, the Court was not ruling on a
                    specific matter, but rather indicating to the Parties the methodology it
                    could use without prejudging a final endpoint, and without prejudging
                    which State or States could be considered as the third States. Thus, in its
                    view, paragraph 319 does not rule upon any matter at all and res judicata
                    in principle only applies to the dispositif of the Judgment.

                       53. Nicaragua and Colombia, the Parties to the main proceedings,
                    hold different positions towards Honduras’s request. Nicaragua is defi-
                    nitely opposed to the Application by Honduras for permission to inter-
                    vene, either as a party or a non‑party. Nicaragua takes the position that
                    Honduras’s request fails to identify any interest of a legal nature that may
                    be affected by the decision of the Court as required by Article 62 of the
                    Statute and challenges the res judicata of the 2007 Judgment.

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                                 territorial and maritime dispute (judgment)                 438

                       54. Nicaragua contends that Honduras has no interest of a legal nature
                    south of the delimitation line fixed by the Court in the 2007 Judgment,
                    including the area bounded by that line in the north and the 15th parallel
                    in the south. According to Nicaragua, the 1986 Treaty cannot be relied
                    on against it because it encroaches on its sovereign rights. Nicaragua
                    argues that the 2007 Judgment, with full force of res judicata, settles the
                    entire Caribbean Sea boundary between Nicaragua and Honduras, and
                    that res judicata extends not only to the dispositif, but also to the reason-
                    ing, in so far as it is inseparable from the operative part. Nicaragua is of
                    the view that the Application instituted by Honduras attempts to reopen
                    matters between Nicaragua and Honduras that have already been decided
                    by the Court and therefore should be barred by the principle of res judi‑
                    cata.
                       55. Colombia, on the other hand, is of the view that Honduras has
                    satisfied the test to intervene as a non-party in the case under Article 62
                    of the Statute. Moreover, it raises no objection to the request of Hondu-
                    ras to intervene as a party. Colombia focused its arguments on the effect
                    of the 2007 Judgment on the legal rights of Colombia vis‑à‑vis Nicaragua
                    in the area which the 1986 Treaty covers. Colombia asserted that its bilat-
                    eral obligations towards Honduras under the 1986 Treaty did not prevent
                    it from claiming in the present proceedings rights and interests in the area
                    north of the 15th parallel and east of the 82nd meridian as against Nica-
                    ragua, because what it had committed to Honduras under the 1986 Treaty
                    was only applicable to Honduras.

                                                            *
                       56. According to Article 62 of the Statute and Article 81 of the Rules
                    of Court, the State applying to intervene has to satisfy certain conditions
                    in order for intervention to be permitted. Either as a party or a non‑party,
                    the State requesting permission to intervene should demonstrate to the
                    Court that it has an interest of a legal nature that may be affected by the
                    decision of the Court in the main proceedings. The Court, in ascertaining
                    whether Honduras has or has not met the criteria in Article 62 of the
                    Statute concerning intervention, will first of all examine the interests as
                    claimed by Honduras in its Application. The Court is mindful, as stated
                    previously, that in analysing such interests, the Court neither has the
                    intention to construe the meaning or scope of the 2007 Judgment in the
                    sense of Article 60 of the Statute, nor to address any subject‑matter that
                    should be dealt with at the merits phase of the main proceedings (see
                    paragraph 45 above). The Court must not in any way anticipate its deci-
                    sion on the merits (see Land, Island and Maritime Frontier Dispute
                    (El Salvador/Honduras), Application for Permission to Intervene, Judg‑
                    ment, I.C.J. Reports 1990, p. 118, para. 62).

                                                        *       *
                                                                                22

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                                 territorial and maritime dispute (judgment)                   439

                             1. The Interest of a Legal Nature Claimed by Honduras
                      57. The Court will first examine the interest that Honduras has claimed
                    for protection by intervention. Honduras indicates that the zone contain-
                    ing its interest of a legal nature that may be affected by the decision of
                    the Court lies within a roughly rectangular area as illustrated in the
                    sketch‑map attached herewith on page 441. It further states that the
                    south line and the east line of the rectangle, that are identical with the
                    boundary in the 1986 Treaty, run as follows :
                           “[S]tarting from the 82nd meridian, the boundary goes due east
                         along the 15th parallel until it reaches meridian 79° 56´ 00˝. It then
                         turns due north along that meridian. Some distance to the north, it
                         turns to follow an approximate arc to the west of some cays and
                         Serranilla Bank, until it reaches a point north of the cays . . .”
                       58. The Court observes that Honduras, in order to demonstrate that it
                    has an interest of a legal nature in the present case, contends that it is
                    entitled to claim sovereign rights and jurisdiction over the maritime area
                    in the rectangle. In concrete terms, Honduras states that it can assert
                    rights relating to oil concessions, naval patrols and fishing activities in
                    that area. In its arguments, Honduras raises a number of issues that
                    directly put into question the 2007 Judgment, in which the maritime
                    boundary between Honduras and Nicaragua was delimited.
                       59. Honduras’s interest of a legal nature relates essentially to two
                    issues : whether the 2007 Judgment has settled the entire maritime bound-
                    ary between Honduras and Nicaragua in the Caribbean Sea and what
                    effect, if any, the decision of the Court in the pending proceedings will
                    have on the rights that Honduras enjoys under the 1986 Treaty.

                       60. In its Application, Honduras explains that it and Colombia possess
                    rights in the maritime zone north of the 15th parallel as they are gener-
                    ated by the Honduran coast, on the one hand, and by the Archipelago of
                    San Andrés, Serranilla and the island of Providencia, on the other. Due
                    to their overlapping claims, the 1986 Treaty was concluded. The Court
                    cannot fail to observe that Honduras’s position on the status of the
                    15th parallel as stated in the present case is not raised for the first time as
                    between Honduras and Nicaragua. As a matter of fact, it was duly con-
                    sidered by the Court in the delimitation of their maritime boundary in the
                    2007 Judgment.
                       61. In the Nicaragua v. Honduras case in which the 2007 Judgment was
                    rendered, one of Honduras’s principal arguments with respect to the
                    delimitation was that the 15th parallel, either as a traditional line or by
                    tacit agreement of the neighbouring States, should serve as the maritime
                    boundary between Honduras and Nicaragua. The Court in that judg-
                    ment, however, rejected both of these legal grounds and gave no effect to
                    the 15th parallel as the boundary line. By virtue of the 2007 Judgment,

                                                                                23

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                                 territorial and maritime dispute (judgment)                   440

                    therefore, the 15th parallel plays no role in the consideration of the mari-
                    time delimitation between Honduras and Nicaragua. In other words, the
                    matter has rested on res judicata for Honduras in the present proceedings.

                       62. In establishing a single maritime boundary between Nicaragua and
                    Honduras, delimiting their respective territorial seas, continental shelves
                    and exclusive economic zones in the disputed area, the Court in the 2007
                    Judgment drew up a straight bisector line, with some adjustments taking
                    into account Honduras’s islands off the coastline. In the present proceed-
                    ings, Honduras and Nicaragua hold considerably different positions on
                    the effect of this bisector boundary. They differ as to whether the 2007
                    Judgment has specified an endpoint on the bisector line, whether the
                    bisector line extends beyond the 82nd meridian and, consequently,
                    whether the 2007 Judgment has definitively delimited the entire maritime
                    boundary between Honduras and Nicaragua in the Caribbean Sea. The
                    Court notes Honduras’s assertion that these issues, if not answered,
                    would certainly affect the finality and stability of the legal relations bet
                    ween the two Parties.

                       63. In the Court’s reasoning in paragraphs 306‑319 of the 2007 Judg-
                    ment, there are two aspects that the Court considers as directly bearing
                    on the above issues. The Court recalls, first, that in the 2007 Judgment, it
                    was only after the Court came to the conclusion that there may be poten-
                    tial third-State interests in the area that it decided not to rule on the issue
                    of the endpoint. Logically, if Point F on the bisector line had been deter-
                    mined as the endpoint, as interpreted by Honduras, it would have been
                    unnecessary for the Court to continue considering where third-State
                    interests might possibly lie because Point F would in any event be devoid
                    of potential effect on the rights of any third State. Secondly, it was because
                    of the claim raised by Honduras that a delimitation continuing beyond
                    the 82nd meridian would affect Colombia’s rights that the Court took full
                    account of the arguments put forward by Honduras in regard to the
                    third‑State rights and made sure
                         “that any delimitation between Honduras and Nicaragua extending
                         east beyond the 82nd meridian and north of the 15th parallel (as the
                         bisector adopted by the Court would do) would not actually prejudice
                         Colombia’s rights because Colombia’s rights under [the 1986 Treaty]
                         do not extend north of the 15th parallel” (Territorial and Maritime
                         Dispute between Nicaragua and Honduras in the Caribbean Sea (Nica
                         ragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), pp. 758‑759,
                         para. 316 ; emphasis added).

                      According to the Court’s reasoning, the bisector line with a defined
                    azimuth, after Point F, is to continue as a straight line subject to the
                    curve of the Earth and run the whole course of the maritime boundary

                                                                                24

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                                                          territorial and maritime dispute (judgment)                                                    441

                Area in which Honduras claims to have                                                             Area in which Honduras claims to have an interest
                                                                                of a legal nature which may be affected
                  an interest of a legal nature which                                                             by the Court's decision
                may be affected by the Court's decision                                                           Maritime boundary line established by the Court
                                                                                in its Judgment of 8 October 2007 in the case
                    This sketch-map has been prepared for illustrative purposes only,                             concerning Territorial and Maritime Dispute
                             on the basis of a map presented by Honduras                                          between Nicaragua and Honduras in the
                                                         Mercator Projection (15° N)                              Caribbean Sea (Nicaragua v. Honduras) (see
                                                                  WGS 84                                          I.C.J. Reports 2007 (II), p. 761, sketch-map No. 7)

                                                                                Delimitation line in the 1986 Treaty
                                                                                between Honduras and Colombia

                                                                                Maritime features
                                                       Point F
               HONDURAS
                                                                               olombia
                                                      in it s R y claimed by C

                                                                                a
                                                                                agu
               NICARAGUA

                                                                                r
                                                                ej oinder

                                                                                Nica
                                                                                by
                                                                                ed
                                                              r
                                                   e bounda

                                                                                epl laim
                                                                                ts R y c
                                                                                y
                                                                                in i ndar
                                         M ar it im

                                                                                CARIBBEAN SEA
                                                                                bou
                                                                                ime
                                                                                r it
                                                                                Ma

                    C
                        O
                            S
                                TA
                                     R
                                                                                COLOMBIA
                                     IC
                                         A

                                                                                PANAMA

                                                                                25

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                                 territorial and maritime dispute (judgment)                 442

                    between Honduras and Nicaragua as long as there are no third‑State
                    rights affected. It thus delimits the maritime zones respectively accruing
                    to Honduras and Nicaragua in the Caribbean Sea, which by definition
                    should cover the area in the rectangle.

                       64. In examining Honduras’s argument, the Court finds it difficult to
                    appreciate Honduras’s contention that “a boundary that does not have
                    an endpoint, clearly cannot be settled in its entirety”, because that was
                    not the first time that the Court left open the endpoint of a maritime
                    boundary to be decided later when the rights of the third State or States
                    were ascertained. As the Court held in the 2007 Judgment, it is “usual in
                    a judicial delimitation for the precise endpoint to be left undefined in
                    order to refrain from prejudicing the rights of third States” (Territorial
                    and Maritime Dispute between Nicaragua and Honduras in the Caribbean
                    Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 756,
                    para. 312 ; see also Continental Shelf (Tunisia/Libyan Arab Jamahiriya),
                    Judgment, I.C.J. Reports 1982, p. 91, para. 130 ; Continental Shelf (Lib‑
                    yan Arab Jamahiriya/Malta), Application for Permission to Intervene,
                    Judgment, I.C.J. Reports 1984, p. 27 ; Maritime Delimitation and Territo‑
                    rial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits,
                    Judgment, I.C.J. Reports 2001, p. 116, para. 250 ; Land and Maritime
                    Boundary between Cameroon and Nigeria (Cameroon v. Nigeria : Equato‑
                    rial Guinea intervening), Judgment, I.C.J. Reports 2002, p. 421, para. 238,
                    p. 424, para. 245 and p. 448, para. 307 ; Maritime Delimitation in the
                    Black Sea (Romania v. Ukraine), I.C.J. Reports 2009, p. 131, para. 219.)
                    What was decided by the Court with respect to the maritime delimitation
                    between Honduras and Nicaragua in the Caribbean Sea is definitive.
                    Honduras could not be a “third State” in the legal relations in that con-
                    text for the reason that it was itself a party to the proceedings. So long as
                    there are no third‑State claims, the boundary is to run indisputably on the
                    course defined by the Court.
                       65. The Court observes that the boundary might have conceivably
                    deviated from the straight‑line established by the 2007 Judgment only if
                    Honduras had presented further maritime features to be taken into
                    account for the boundary delimitation. Neither in the case concerning the
                    Territorial and Maritime Dispute between Nicaragua and Honduras in the
                    Caribbean Sea (Nicaragua v. Honduras) nor in the present proceedings
                    did Honduras make such a suggestion or produce any evidence to that
                    effect. Of course, even if it had done so in the present proceedings, the
                    matter still would not have fallen under Article 62 of the Statute with
                    respect to intervention, but under Article 61 thereof concerning revision.
                    In other words, Honduras does not suggest that there still exists any unre-
                    solved dispute or evidence that would prove that the bisector line is
                    not the complete and final maritime boundary between Honduras and
                    Nicaragua.

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                                 territorial and maritime dispute (judgment)                   443

                                2. The Application of the Principle of Res Judicata
                       66. Honduras’s claims are primarily based on the ground that the rea-
                    soning stated in paragraphs 306‑319 of the 2007 Judgment does not have
                    the force of res judicata. Honduras contends that, therefore, the principle
                    of res judicata does not prevent it from raising issues relating to the reason
                    ing of that Judgment.
                       67. It is a well-established and generally recognized principle of law that
                    a judgment rendered by a judicial body has binding force between the parties
                    to the dispute (Effect of Awards of Compensation Made by the United Nations
                    Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954, p. 53).
                       The Court notes that in ascertaining the scope of res judicata of the
                    2007 Judgment, it must consider Honduras’s request in the specific con-
                    text of the case.
                       68. The rights of Honduras over the area north of the bisector line
                    have not been contested either by Nicaragua or by Colombia. With
                    regard to that area, there thus cannot be an interest of a legal nature of
                    Honduras which may be affected by the decision of the Court in the main
                    proceedings.
                       In order to assess whether Honduras has an interest of a legal nature in
                    the area south of the bisector line, the essential issue for the Court to
                    ascertain is to what extent the 2007 Judgment has determined the course
                    of the single maritime boundary between the areas of territorial sea, con-
                    tinental shelf and exclusive economic zone appertaining respectively to
                    Nicaragua and Honduras.
                       69. The Court is of the view that the course of the bisector line as deter-
                    mined in point (3) of the operative clause of its 2007 Judgment (para-
                    graph 321) is clear. In point (3) of its operative clause, which indisputably
                    has the force of res judicata, the Court held that “[f]rom point F, [the bound-
                    ary line] shall continue along the line having the azimuth of 70° 14´ 41.25˝
                    until it reaches the area where the rights of third States may be affected”.
                       70. The Court observes that the reasoning contained in para-
                    graphs 306‑319 of the 2007 Judgment, which was an essential step leading
                    to the dispositif of that Judgment, is also unequivocal on this point. The
                    Court made a clear determination in these paragraphs that the bisector
                    line would extend beyond the 82nd meridian until it reached the area
                    where the rights of a third State may be affected. Before the rights of such
                    third State were ascertained, the endpoint of the bisector line would be
                    left open. Without such reasoning, it may be difficult to understand why
                    the Court did not fix an endpoint in its decision. With this reasoning, the
                    decision made by the Court in its 2007 Judgment leaves no room for any
                    alternative interpretation.

                               3. Honduras’s Request in relation to the 1986 Treaty
                      71. With regard to the 1986 Treaty, the Court observes that Honduras
                    and Colombia have different positions. Honduras asserts that given the

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                                 territorial and maritime dispute (judgment)                   444

                    “conflicting bilateral obligations”, stemming from the 1986 Treaty with
                    Colombia and the 2007 Judgment vis‑à‑vis Nicaragua respectively, Hon-
                    duras has an interest of a legal nature in determining if and how the
                    2007 Judgment has affected the status and application of the 1986 Treaty.
                    Colombia, on the other hand, asks the Court to leave the 1986 Treaty
                    aside, because the task of the Court at the merits phase is to delimit the
                    maritime boundary between Colombia and Nicaragua, not to determine
                    the status of the treaty relations between Colombia and Honduras. Thus,
                    in the view of Colombia, the status and substance of the 1986 Treaty are
                    not issues at stake in the main proceedings.

                       72. In the perceived rectangle now under consideration (see sketch‑map,
                    p. 441), there are three States involved : Honduras, Colombia and Nicara-
                    gua. These States may conclude maritime delimitation treaties on a bilat-
                    eral basis. Such bilateral treaties, under the principle res inter alios acta,
                    neither confer any rights upon a third State, nor impose any duties on it.
                    Whatever concessions one State party has made to the other shall remain
                    bilateral and bilateral only, and will not affect the entitlements of the
                    third State. In conformity with the principle of res inter alios acta, the
                    Court in the 2007 Judgment did not rely on the 1986 Treaty.

                       73. Between Colombia and Nicaragua, the maritime boundary will be
                    determined pursuant to the coastline and maritime features of the two
                    Parties. In so doing, the Court will place no reliance on the 1986 Treaty
                    in determining the maritime boundary between Nicaragua and Colombia.
                       74. Finally, the Court does not consider any need to address the remain-
                    ing issue of the “tripoint” that Honduras claims to be on the boundary line
                    in the 1986 Treaty. Having clarified the above matters pertaining to the
                    2007 Judgment and the 1986 Treaty, the Court does not see any link between
                    the issue of the “tripoint” raised by Honduras and the current proceedings.
                       75. In light of the above considerations, the Court concludes that Hon-
                    duras has failed to satisfy the Court that it has an interest of a legal nature
                    that may be affected by the decision of the Court in the main proceedings.
                    Consequently, there is no need for the Court to consider any further
                    questions that have been put before it in the present proceedings.

                                                            *
                                                        *       *

                      76. For these reasons,
                      The Court,
                      By thirteen votes to two,
                      Finds that the Application for permission to intervene in the proceed-
                    ings, either as a party or as a non‑party, filed by the Republic of Honduras
                    under Article 62 of the Statute of the Court cannot be granted.

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                                territorial and maritime dispute (judgment)               445

                      in favour : President Owada ; Vice-President Tomka ; Judges Koroma, Al‑
                        Khasawneh, Simma, Keith, Sepúlveda‑Amor, Bennouna, Cançado Trin-
                        dade, Yusuf, Xue ; Judges ad hoc Cot, Gaja ;
                      against : Judges Abraham, Donoghue.

                       Done in French and in English, the French text being authoritative, at
                    the Peace Palace, The Hague, this fourth day of May, two thousand and
                    eleven, in four copies, one of which will be placed in the archives of the
                    Court and the others transmitted to the Government of the Republic of
                    Nicaragua, the Government of the Republic of Colombia, and the
                    Government of the Republic of Honduras, respectively.

                                                               (Signed) Hisashi Owada,
                                                                           President.
                                                             (Signed) Philippe Couvreur,
                                                                            Registrar.

                      Judge Al-Khasawneh appends a declaration to the Judgment of the
                    Court ; Judge Abraham appends a dissenting opinion to the Judgment of
                    the Court ; Judge Keith appends a declaration to the Judgment of the
                    Court ; Judges Cançado Trindade and Yusuf append a joint declaration
                    to the Judgment of the Court ; Judge Donoghue appends a dissenting
                    opinion to the Judgment of the Court.

                                                                         (Initialled) H.O.
                                                                         (Initialled) Ph.C.

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