                                SEPARATE OPINION OF JUDGE YUSUF

       First disagreement with conclusion on jurisdiction ratione temporis — Jurisdiction based on
consent of the parties and subject to limits and conditions thereto — Article XXXI of the Pact of
Bogotá establishes those limits — No detailed interpretation of Article XXXI of the Pact is
undertaken — Such interpretation would lead to conclusion that Court lacks jurisdiction over claims
predicated on facts and events having occurred after lapse of jurisdictional title — Nothing in
2016 Judgment suggests that Court’s jurisdiction extends to events subsequent to termination of the
Pact with respect to Colombia — An analogy with jurisprudence on admissibility of new claims
subsequent to application whilst jurisdictional title still in force is inapposite — Also, alleged
incidents are not of “same nature” — They are neither uniform in character nor always relate to
identical facts or common legal bases — Second disagreement with subparagraph (6) of dispositif
referring to provisions of Presidential Decree 1946 of 9 September 2013 — Inconsistency with
subparagraph (5) of dispositif, which finds Colombia’s “integral contiguous zone”, rather than
Presidential Decree 1946 itself, as not in conformity with customary law — Inconsistency also found
in reasoning of Judgment.

      1. I voted against several subparagraphs of the dispositif because of my disagreement with two
conclusions of the Court in this Judgment. The first one concerns the jurisdiction ratione temporis
of the Court, while the second relates to the conformity with customary international law of the
provisions of the Colombian Presidential Decree 1946 of 9 September 2013. The reasons for my
disagreement are set out below.

                            A. Jurisdiction of the Court ratione temporis

       2. I disagree with the conclusion in subparagraph (1) of the dispositif of the Judgment,
according to which the Court’s jurisdiction on the basis of Article XXXI of the Pact of Bogotá
extends to the “claims based on those events referred to by the Republic of Nicaragua that occurred
after 27 November 2013”, the date on which the Pact of Bogotá ceased to be in force with respect to
the Republic of Colombia.

      3. The jurisdiction of the Court is based on the consent of the parties. Such consent may also
be subject to certain conditions and/or limits which must be observed by the Court. As was stated by
the Court in its Judgment on Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda), “[w]hen that consent is expressed in a
compromissory clause in an international agreement, any conditions to which such consent is subject
must be regarded as constituting the limits thereon” 1.

      4. Article XXXI of the Pact of Bogotá is such a compromissory clause. It reads as follows:

             “In conformity with Article 36, paragraph 2, of the Statute of the International
      Court of Justice, the High Contracting Parties declare that they recognize in relation to
      any other American State, the jurisdiction of the Court as compulsory ipso facto,
      without the necessity of any special agreement so long as the present Treaty is in force,
      in all disputes of a juridical nature that arise among them concerning: (a) The
      interpretation of a treaty; (b) Any question of international law; (c) The existence of any
      fact which, if established, would constitute the breach of an international obligation;

      1  Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the
Congo v. Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 39, para. 88.

                                                         -2-

       (d) The nature or extent of the reparation to be made for the breach of an international
       obligation.” (Emphases added.)

       5. It is no longer disputed between the Parties to the instant case that the lapse of the
jurisdictional title after the filing of the Application does not affect the jurisdiction of the Court to
adjudicate their “dispute” over facts that are said to have occurred before the jurisdictional title came
to an end 2. What is, however, disputed between them and on which divergent arguments have been
presented during the current proceedings is whether the lapse of the jurisdictional title had an effect
on the Court’s jurisdiction to examine claims regarding incidents that have allegedly occurred after
the Pact of Bogotá ceased to be in force between the Parties, i.e. the incidents that are said to have
occurred after 27 November 2013.

       6. The Court has never been confronted with a similar situation. Therefore, neither the findings
in the Court’s Judgment of 2016 3 nor the Court’s jurisprudence with respect to the admissibility of
facts or claims that occurred after the filing of the Application, but while the title of jurisdiction still
existed, can offer a solution to this divergence of views. It was therefore necessary, in my view, to
proceed in the Judgment to a detailed analysis of the interpretation of Article XXXI of the Pact of
Bogotá, which provides the limits and conditions of the Court’s jurisdiction. It is regrettable that such
an analysis is nowhere to be found in the Judgment.

       7. Such an interpretation, in my view, would readily lead to the conclusion that the Court does
not have jurisdiction over claims predicated on facts and events that occurred after the lapse of the
jurisdictional title between the Parties. By specifying that the Parties to the Pact of Bogotá recognize
the jurisdiction of the Court over disputes concerning “any fact which, if established, would
constitute the breach of an international obligation” only “so long as the present Treaty is in force”,
the text of Article XXXI makes it abundantly clear that the Court’s jurisdiction ratione temporis is
limited to facts underlying a dispute which occurred before the Pact ceased to apply. The consent
expressed in Article XXXI does not and cannot extend to events or facts underlying disputes that
occurred after the treaty had lapsed. In this regard, Article XXXI of the Pact sets out a clear temporal
limitation to the Court’s jurisdiction in so far as consent is conditioned on the continuation in force
of the Pact between the concerned States.

      8. This textual interpretation of Article XXXI finds support in the Court’s analysis of this
provision in the Border and Transborder Armed Actions case, where it was stated that,

       “[i]n that text, the parties ‘declare that they recognize’ the Court’s jurisdiction ‘as
       compulsory ipso facto’ in the cases there enumerated.

               ................................................................

            The commitment in Article XXXI applies ratione materiae to the disputes
       enumerated in that text; it relates ratione personae to the American States parties to the

       2 Cf. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),

Preliminary Objections, Judgment, I.C.J. Reports 2008, p. 438, para. 80 (“[T]he removal, after an application has been
filed, of an element on which the Court’s jurisdiction is dependent does not and cannot have any retroactive effect”).
       3 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia),

Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 3 (the Judgment of 2016)

                                                          -3-

       Pact; it remains valid ratione temporis for as long as that instrument itself remains in
       force between those States.” 4

       9. Moreover, the words “so long as the present Treaty is in force” in Article XXXI must be
read together with the first sentence of Article LVI of the Pact, which states that

       “[t]he present Treaty shall remain in force indefinitely, but may be denounced upon one
       year’s notice, at the end of which period it shall cease to be in force with respect to the
       State denouncing it, but shall continue in force for the remaining signatories”.

The Pact of Bogotá ceased to be in force for Colombia on 27 November 2013, that is one year after
Colombia gave its notice of denunciation. Thus, under the terms of Article XXXI, there is no basis
for the Court to entertain any claims relating to events or situations that occurred after that date and
that might have given rise to a dispute between the Parties or to conclude that it has jurisdiction over
such claims, in view of the termination of the Pact of Bogotá between the two States.

       10. The “dispute” found by the Court to exist in its 2016 Judgment was limited to the facts “at
the date on which the Application was filed”, i.e. before the lapse of the jurisdictional title. The Court
was careful to limit itself to a finding of jurisdiction over the dispute concerning “the incidents at sea
alleged to have taken place before the critical date” 5. At no point in the 2016 Judgment did the Court
define the “dispute” by reference to incidents at sea that took place after the filing of the Application.
This is despite the fact that the Court already had before it Nicaragua’s Memorial, which contained
no less than 20 incidents allegedly having occurred in the period between the Application and the
Memorial.

       11. Accordingly, the Court concluded that,

       “[b]ased on the evidence examined above, the Court finds that, at the date on which the
       Application was filed, there existed a dispute concerning the alleged violations by
       Colombia of Nicaragua’s rights in the maritime zones which, according to Nicaragua,
       the Court declared in its 2012 Judgment appertain to Nicaragua” 6.

Thus, contrary to what is mentioned in paragraph 45 of the Judgment, there is nothing in the
2016 Judgment to suggest that the Court’s jurisdiction extends to facts subsequent to the Application
and subsequent to the termination of the Pact of Bogotá with respect to Colombia.

        12. It is also untenable to draw an analogy between the Court’s jurisprudence on the
admissibility of new “claims” or “facts” that occurred after the filing of an application, but while the
title of jurisdiction continued to exist, and the present case, which concerns the Court’s jurisdiction
vis-à-vis new facts or events after the lapse of the jurisdictional title. The criteria enunciated in the
Court’s case law with respect to the admissibility of new claims, while the jurisdictional title

       4 Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment,

I.C.J. Reports 1988, p. 84, paras. 32 and 34 (emphases added).
       5 I.C.J. Reports 2016, p. 32, para. 71 and p. 33, paras. 74 and 78 (emphasis added).

       6 Ibid., p. 33, para. 74 (emphasis added).

                                                 -4-

continues to be in force, cannot apply to the determination of the Court’s jurisdiction ratione
temporis. According to such case law, the admissibility of new claims presupposes the continued
existence of a valid jurisdictional title, which is not the case here. Therefore, none of the cases
mentioned in paragraph 44 of the Judgment are apposite to the present circumstances, as the
jurisdictional title invoked by the respective applicant continued to be in force throughout the
proceedings. Moreover, it should be recalled that in all those cases, the problem was one of
admissibility, not of jurisdiction ratione temporis.

       13. It is equally important to note that the incidents that have allegedly occurred before and
after 27 November 2013 are neither uniform in character nor do they always relate to identical facts
or common legal bases. They cannot therefore be characterized to be of “the same nature”; nor can
it be said that they concern the same legal questions. To give a simple example, no incident
concerning marine scientific research occurred before 27 November 2013. The two incidents on
marine scientific research regarding the Dr. Jorge Carranza Fraser allegedly occurred on 6 and
8 October 2018. In addition, the three incidents concerning the USA-flagged oceanographic vessel
Pathfinder are said to have occurred on 7 and 25 January 2014 and 20 February 2014, respectively.

       14. Are such alleged incidents regarding marine scientific research of the same nature as
incidents regarding fishing or overflight that occurred before 27 November 2013? The answer is
negative. Apart from the difference in character of these incidents, the legal bases of the claims
relating to them are dissimilar. While the coastal State has sovereign rights in the exclusive economic
zone (hereinafter the “EEZ”) with respect to fisheries, it has jurisdiction with regard to marine
scientific research. Thus, the legal régime governing the rights and obligations of the two States with
respect to the two sets of alleged incidents in the EEZ is quite different. Consequently, the dispute
between the Parties over the alleged incidents before and after 27 November 2013 does not always
have the same subject-matter nor does it concern the same facts or situations or the same legal
questions, but has a varied number of aspects both legally and factually.

                               B. Subparagraph (6) of the dispositif

       15. I also have to express my disagreement with subparagraph (6) of the dispositif, which states
that

       “Colombia must, by means of its own choosing, bring into conformity with customary
       international law the provisions of Presidential Decree 1946 of 9 September 2013, as
       amended by Decree No. 1119 of 17 June 2014, in so far as they relate to maritime areas
       declared by the Court in its 2012 Judgment to appertain to the Republic of Nicaragua”.

       16. By ordering Colombia to bring the provisions of the Presidential Decree into conformity
with customary international law, the Court is clearly barking up the wrong tree. It is not solely by
enacting the provisions of the Presidential Decree as such, but through their implementation in
establishing the “integral contiguous zone” and enforcing its powers therein that Colombia has
breached the rights of Nicaragua in the latter’s EEZ. After all, the Judgment itself does not say
anywhere that Colombia has breached its obligations under customary international law by merely
enacting the Presidential Decree or that it is the Decree, in and of itself, which is not in conformity
with international law. It finds that it is the “integral contiguous zone” established by Colombia that
is not in conformity with customary international law (see, for example, paragraphs 187 and 194 of
the Judgment). This finding is afterwards reflected in subparagraph (5) of the dispositif.

                                                  -5-

       17. However, instead of stating in subparagraph (6) of the dispositif that Colombia should
bring the limits of its “integral contiguous zone” and the powers it exercises therein into conformity
with customary international law, the Judgment pivots, under this subparagraph, to the necessity of
bringing the provisions of the Presidential Decree into conformity with customary international law.
To the extent that subparagraph (5) of the dispositif makes a finding concerning the incompatibility
with customary law of a particular zone, rather than the legislative or administrative means
underlying its implementation, the obligation to remedy that situation cannot be limited to the
provisions of a particular decree or piece of legislation. Rather, it should concern the “integral
contiguous zone” itself, its limits, and the police powers exercised in it by Colombia over
environmental and other matters, to the detriment of the sovereign rights and jurisdiction of
Nicaragua in its EEZ.

       18. It is for these reasons that I voted in favour of the finding in subparagraph (5) of the
dispositif, but against subparagraph (6) thereof. In my view, the latter clause is not consistent with
the conclusions of the Court reflected in subparagraph (5) of the dispositif, which finds that it is the
“‘integral contiguous zone’ established by the Republic of Colombia by Presidential Decree 1946 of
9 September 2013, as amended by Decree No. 1119 of 17 June 2014” — and not the Presidential
Decree 1946 itself — which is not in conformity with customary international law.

        19. This inconsistency is to be found also in the reasoning of the Judgment itself. In
paragraph 196 of the Judgment, which is meant to summarize the infringements by Colombia through
its “integral contiguous zone” of Nicaragua’s rights in the latter’s EEZ, it is stated that

      “[t]he Court has also found (see paragraphs 187 and 194 above) that the ‘integral
      contiguous zone’ established by Colombia’s Presidential Decree 1946 is not in
      conformity with customary international law, both because its breadth exceeds
      24 nautical miles from the baselines from which Colombia’s territorial sea is measured
      and because the powers that Colombia asserts within the ‘integral contiguous zone’
      exceed those that are permitted under customary international law. In the maritime areas
      where the ‘integral contiguous zone’ overlaps with Nicaragua’s exclusive economic
      zone, the ‘integral contiguous zone’ infringes upon Nicaragua’s sovereign rights and
      jurisdiction in the exclusive economic zone. Colombia’s responsibility is thereby
      engaged. Colombia has the obligation, by means of its own choosing, to bring the
      provisions of Presidential Decree 1946 into conformity with customary international
      law in so far as they relate to maritime areas declared by the Court in its 2012 Judgment
      to appertain to Nicaragua.”

        20. Based on this paragraph, it is not clear whether it is the zone itself, the enforcement of its
limits and the powers exercised by Colombia therein, or solely the legislative means underlying it,
i.e. the Presidential Decree as such, that is found to be incompatible with customary international
law. Paragraph 175 also states that it is “[t]he geographical extent of the ‘integral contiguous
zone’” — rather than Article 5 of Presidential Decree 1946 — which “is not in conformity with
customary international law”. By contrast, paragraphs 176 to 180 specifically examine the
compatibility of Article 5, paragraph 3, of Presidential Decree 1946 with customary law. All these
inconsistencies lead to confusion, which is regrettably reflected in the above subparagraphs of the
dispositif.

                                                -6-

      21. If the findings of the Judgment relate to the incompatibility of the “integral contiguous
zone” itself with customary international law, as appears to be indicated in several paragraphs of the
Judgment and in subparagraph (5) of the dispositif, then the obligation to bring the situation into
conformity with customary international law should logically relate to the “integral contiguous
zone”, and the powers exercised therein by Colombia, rather than the provisions of the
Presidential Decree as such, as currently formulated in subparagraph (6) of the dispositif.

                                                      (Signed)     Abdulqawi A. YUSUF.

                                           ___________


          COUR INTERNATIONALE DE JUSTICE

             RECUEIL DES ARRÊTS,
      AVIS CONSULTATIFS ET ORDONNANCES

     APPLICATION DE LA CONVENTION
  INTERNATIONALE POUR LA RÉPRESSION
    DU FINANCEMENT DU TERRORISME
 ET DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
       (UKRAINE c. FÉDÉRATION DE RUSSIE)

        ORDONNANCE DU 20 JANVIER 2021

                 2021
          INTERNATIONAL COURT OF JUSTICE

           REPORTS OF JUDGMENTS,
        ADVISORY OPINIONS AND ORDERS

  APPLICATION OF THE INTERNATIONAL
   CONVENTION FOR THE SUPPRESSION
   OF THE FINANCING OF TERRORISM
AND OF THE INTERNATIONAL CONVENTION
  ON THE ELIMINATION OF ALL FORMS
      OF RACIAL DISCRIMINATION
       (UKRAINE v. RUSSIAN FEDERATION)

           ORDER OF 20 JANUARY 2021

                          Mode officiel de citation :
       Application de la convention internationale pour la répression
      du financement du terrorisme et de la convention internationale
       sur l’élimination de toutes les formes de discrimination raciale
     (Ukraine c. Fédération de Russie), ordonnance du 20 janvier 2021,
                           C.I.J. Recueil 2021, p. 3

                               Official citation :
      Application of the International Convention for the Suppression
     of the Financing of Terrorism and of the International Convention
          on the Elimination of All Forms of Racial Discrimination
        (Ukraine v. Russian Federation), Order of 20 January 2021,
                          I.C.J. Reports 2021, p. 3

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                                20 JANVIER 2021

                                 ORDONNANCE

     APPLICATION DE LA CONVENTION
  INTERNATIONALE POUR LA RÉPRESSION
    DU FINANCEMENT DU TERRORISME
 ET DE LA CONVENTION INTERNATIONALE
SUR L’ÉLIMINATION DE TOUTES LES FORMES
       DE DISCRIMINATION RACIALE
   (UKRAINE c. FÉDÉRATION DE RUSSIE)

  APPLICATION OF THE INTERNATIONAL
   CONVENTION FOR THE SUPPRESSION
   OF THE FINANCING OF TERRORISM
AND OF THE INTERNATIONAL CONVENTION
  ON THE ELIMINATION OF ALL FORMS
      OF RACIAL DISCRIMINATION

   (UKRAINE v. RUSSIAN FEDERATION)

                               20 JANUARY 2021

                                     ORDER

                                                                     3

             INTERNATIONAL COURT OF JUSTICE

                              YEAR 2021                                      2021
                                                                          20 January
                            20 January 2021                               General List
                                                                           No. 166

  APPLICATION OF THE INTERNATIONAL
   CONVENTION FOR THE SUPPRESSION
    OF THE FINANCING OF TERRORISM
AND OF THE INTERNATIONAL CONVENTION
   ON THE ELIMINATION OF ALL FORMS
       OF RACIAL DISCRIMINATION
              (UKRAINE v. RUSSIAN FEDERATION)

                               ORDER

Present: President Yusuf; Vice‑President Xue; Judges Tomka, Abraham,
          Bennouna, Cançado Trindade, Donoghue, Gaja, Sebutinde,
          Bhandari, Robinson, Crawford, Salam, Iwasawa; Judges
          ad hoc Pocar, Skotnikov; Registrar Gautier.

  The International Court of Justice,
   Composed as above,
   After deliberation,
   Having regard to Article 48 of the Statute of the Court and to Arti-
cle 44, paragraph 3, of the Rules of Court,
   Having regard to the Order dated 8 November 2019, whereby the
Court fixed 8 December 2020 as the time‑limit for the filing of the
Counter‑Memorial of the Russian Federation, and to the Order dated
 13 July 2020, whereby the Court, at the request of the Respondent,
extended that time‑limit until 8 April 2021;

                                                                     4

           application of the icsft and cerd (ord. 20 I 21)                4

    Whereas, by a letter dated 22 December 2020, the Agent of the Russian
Federation, H.E. Mr. Dmitry Lobach, requested the Court to further
extend by six months the time‑limit for the filing of the Counter‑Memorial,
i.e. until 8 October 2021, explaining that the restrictions due to the
COVID‑19 pandemic had continued to create difficulties and related delays
in the preparation of that pleading; and whereas, upon receipt of this letter,
the Registrar transmitted a copy thereof to the Agent of Ukraine, in accor-
dance with Article 44, paragraph 3, of the Rules of Court;
    Whereas, by a letter dated 6 January 2021, the Agent of Ukraine,
Mr. Yevhenii Yenin, stated that his Government opposed the request of
the Russian Federation for a further extension of the time‑limit for the
filing of the Counter‑Memorial, indicating, inter alia, that the Respon-
dent had not adequately explained why it required an additional exten-
sion; whereas, according to the Agent, granting this further extension
would give the Russian Federation a period of ten months longer than
the time afforded to Ukraine to submit its Memorial; and whereas he
added that, in the event of the Court acceding to the request of the Rus-
sian Federation, any further extension should be as short as possible so as
not to prejudice the interests of Ukraine;
    Taking into account the views of the Parties,
    Extends to 8 July 2021 the time‑limit for the filing of the Counter‑
Memorial of the Russian Federation; and
    Reserves the subsequent procedure for further decision.

  Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twentieth day of January, two thou-
sand and twenty‑one, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
Ukraine and the Government of the Russian Federation, respectively.

                                    (Signed) Abdulqawi Ahmed Yusuf,
                                                    President.
                                         (Signed) Philippe Gautier,
                                                      Registrar.

                                                                           5