                     187

                               DISSENTING OPINION OF JUDGE DONOGHUE

                       Scope and meaning of dispositive subparagraph (3) of the 2012 Judgment —
                     Res judicata.

                                           I. Introduction and Summary

                       1. In its third preliminary objection in this case, Colombia invoked the
                     doctrine of res judicata, contending that the Judgment in Territorial and
                     Maritime Dispute (Nicaragua v. Colombia) (hereinafter the “Nicaragua v.
                     Colombia I ” or the “2012 Judgment” (I.C.J. Reports 2012 (II), p. 624))
                     renders the claims in Nicaragua’s present Application inadmissible.
                     Today the Court rejects this contention and finds Nicaragua’s First
                     Request to be admissible (subparagraphs (1) (b) and (2) (b) of the dis-
                     positif). I submit this dissenting opinion because I believe that res judicata
                     bars Nicaragua’s First Request in part.

                        2. I consider that the Court determined in 2012 that Nicaragua had
                     not proven that its continental shelf entitlement extended far enough to
                     overlap with the 200‑nautical‑mile continental shelf entitlement “mea‑
                     sured from Colombia’s mainland coast” (hereinafter, “Colombia’s main‑
                     land entitlement”) (Nicaragua v. Colombia I, I.C.J. Reports 2012 (II),
                     p. 669, para. 129). This determination was essential to the Court’s conclu‑
                     sion that it was not in a position to delimit continental shelf, as Nicara‑
                     gua requested (ibid.), and thus that it could not uphold Nicaragua’s
                     submission I (3) in that case (ibid., p. 670, para. 131 ; p. 719, para. 251 (3)).
                     Accordingly, this 2012 determination must be given res judicata effect. In
                     Nicaragua v. Colombia I, Nicaragua made full use of the opportunity to
                     prove its claim that its continental shelf entitlement extended far enough
                     to overlap with Colombia’s mainland entitlement. It failed to do so. This
                     is precisely the sort of situation in which, for reasons of procedural fair‑
                     ness, the doctrine of res judicata applies.

                       3. On the other hand, the Court did not determine in 2012 whether
                     Nicaragua had proven the existence or extent of any overlap between its
                     continental shelf entitlement and the continental shelf entitlement gener‑

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                     ated by Colombia’s islands (hereinafter, “Colombia’s insular entitle‑
                     ment”) in the area more than 200 nautical miles from Nicaragua’s coast.
                     Thus, to the extent that Nicaragua’s First Request is based on a claim of
                     any such overlap, the doctrine of res judicata does not pose an obstacle to
                     admissibility.
                        4. According to today’s Judgment, the Court decided in its 2012 Judg‑
                     ment that Nicaragua’s delimitation claim could not be upheld because
                     Nicaragua had not yet submitted to the Commission on the Limits of the
                     Continental Shelf (“CLCS” or “Commission”) information on the limits
                     of its continental shelf beyond 200 nautical miles. Consistent with this
                     conclusion, the two relevant subparagraphs of today’s dispositif do not
                     draw a distinction between the two areas of overlapping entitlement that
                     I describe above. The unfortunate consequence is that my dissenting votes
                     with respect to these two subparagraphs do not accurately reflect my
                     views. My position in respect of Colombia’s third preliminary objection
                     is, in fact, a partial dissent. I set out below my interpretation of the
                     2012 Judgment, which is at odds with the interpretation in today’s Judg‑
                     ment, and which gives rise to my partial dissent. In so doing, I recall my
                     2012 separate opinion (I.C.J. Reports 2012 (II), p. 751), in which I
                     addressed the very paragraphs of the 2012 Judgment that divide the
                     Court today.
                        5. I also indicate in this opinion the reasons why I am unconvinced by
                     the Court’s interpretation of the 2012 Judgment.

                                    II. The Question before the Court Today

                        6. Colombia’s contention that the doctrine of res judicata renders
                     Nicaragua’s First Request inadmissible requires the Court to specify the
                     meaning and scope of paragraph 251, subparagraph (3), of the 2012 Judg‑
                     ment (hereinafter, “dispositive subparagraph (3)”). If this cannot be
                     determined from the text of the dispositif alone, “[i]n determining the
                     meaning and scope of the operative clause of the original Judgment, the
                     Court, in accordance with its practice, will have regard to the reasoning
                     of that Judgment to the extent that it sheds light on the proper interpreta‑
                     tion of the operative clause” (Request for Interpretation of the Judgment
                     of 15 June 1962 in the Case concerning the Temple of Preah Vihear (Cam‑
                     bodia v. Thailand) (Cambodia v. Thailand), Judgment, I.C.J. Reports
                     2013, p. 306, para. 68). Although the contentions that the parties advance
                     in a case cannot be determinative of the interpretation of a judgment,
                     “[t]he pleadings and the record of the oral proceedings . . . are also rele‑
                     vant to the interpretation of the Judgment, as they show what evidence
                     was, or was not, before the Court and how the issues before it were for‑
                     mulated by each Party” (ibid., para. 69). A precise understanding of the
                     meaning and scope of a judgment requires, in particular, the identifica‑
                     tion of each element of the reasoning that constitutes “a condition essen‑
                     tial to the Court’s decision” (ibid., p. 296, para. 34, citing Interpretation of

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                     189 	delimitation of the continental shelf (diss. op. donoghue)

                     Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927,
                     P.C.I.J., Series A, No. 13, p. 20). Thus, the Court today must identify the
                     elements of the Court’s 2012 reasoning that were essential to its 2012 deci‑
                     sion that it could not uphold Nicaragua’s submission.
                        7. Identification of these essential elements provides a basis to ascer‑
                     tain the points that were “determined, expressly or by necessary implica‑
                     tion” by the Court’s 2012 Judgment (Application of the Convention on the
                     Prevention and Punishment of the Crime of Genocide (Bosnia and Herze-
                     govina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I),
                     p. 95, para. 126), which must be given res judicata effect (see paragraph 60
                     of today’s Judgment).

                                     III. The Context for the 2012 Judgment

                       A. The Procedural Steps related to Establishment of the Outer Limits
                                            of the Continental Shelf
                        8. Because today’s Judgment attaches singular importance to one step
                     in the procedure for establishing the outer limits of the continental shelf
                     that is contained in the United Nations Convention on the Law of the
                     Sea (“UNCLOS”), I summarize here the three steps that apply to
                     UNCLOS States parties, which are set out in Article 76, paragraph 8, of
                     UNCLOS. First, a coastal State that intends to establish the outer limits
                     of its continental shelf beyond 200 nautical miles of its coast is required
                     to submit information regarding such limits to the CLCS. This document
                     is usually called a “submission” (the term that I use today), although the
                     2012 Judgment sometimes refers to it as a “full submission”. Secondly,
                     the Commission makes recommendations regarding the outer limits to
                     the coastal State. Thirdly, on the basis of the Commission’s recommenda‑
                     tions, the coastal State establishes the outer limits of its continental shelf.
                     Such limits are final and binding.

                         9. Article 4 of Annex II to UNCLOS requires any submission to be
                     made within ten years of entry into force of the Convention for a State
                     party. In 2008, however, the UNCLOS States parties decided that this
                     ten‑year deadline could be met by a State’s transmission to the
                     Secretary‑General of Preliminary Information indicative of the outer lim‑
                      its of the continental shelf beyond 200 nautical miles (UN doc. SPLOS/183,
                      2008 ; see also UN doc. SPLOS/72, 2001). Consistent with the 2012 Judg‑
                      ment, I refer to such a document as “Preliminary Information”.

                             B Nicaragua’s Submission I (3) and Colombia’s Response
                        10. In Nicaragua v. Colombia I, Nicaragua’s submission I (3) (hereinaf‑
                     ter, “submission I (3)”) requested the Court to adjudge and declare that:

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                     190 	delimitation of the continental shelf (diss. op. donoghue)

                     “(3) The appropriate form of delimitation, within the geographical and
                     legal framework constituted by the mainland coasts of Nicaragua and
                     Colombia, is a continental shelf boundary dividing by equal parts the
                     overlapping entitlements to a continental shelf of both Parties.”
                     (I.C.J. Reports 2012 (II), p. 636, para. 17.) Nicaragua did not ask the
                     Court to effect a delimitation in respect of any overlap of Nicaragua’s
                     entitlement with Colombia’s insular entitlement in the area beyond
                     200 nautical miles of Nicaragua’s coast. Instead, it asked the Court to
                     enclave the Colombian islands of San Andrés and Providencia and Santa
                     Catalina by giving them maritime entitlements of 12 nautical miles
                     (submission I (4) ; see sketch‑map No. 2 in ibid., p. 663 and the separate
                      opinion of Judge Donoghue, ibid., p. 755, para. 13).

                        11. Nicaragua recognized in Nicaragua v. Colombia I that “[d]elimita‑
                     tion can only take place after one has decided what is the area that needs
                     to be delimited” (CR 2012/9, p. 23, para. 10 (Lowe)) and thus that the
                     first step in those proceedings was for the Court to determine the area of
                     overlapping entitlement to continental shelf. The next step would be the
                     delimitation of any area of overlap identified by the Court.

                        12. When maritime entitlements claimed by the parties correspond to
                     their respective 200‑nautical‑mile zones, the Court can normally identify
                     the area of overlapping entitlement through an exercise that is largely
                     mechanical, on the basis of coastal geography. This is not the situation,
                     however, when a delimitation claim is predicated on the applicant’s
                     asserted entitlement to continental shelf beyond 200 nautical miles from
                     its coast, as was the case in Nicaragua v. Colombia I. In those circum‑
                     stances, a court or tribunal is required, as a first step, to resolve the ques‑
                     tion of fact as to whether an overlap exists. Only if an overlap is found
                     will the court or tribunal be in a position to proceed to the second step of
                     delimitation.

                        13. Accordingly, as the 2012 Judgment notes, Nicaragua considered in
                     that case that the existence of continental shelf “is essentially a question
                     of fact” (p. 666, para. 119). Nicaragua did not question that a party bears
                     the burden of proving the facts that it asserts (Application of the Interim
                     Accord of 13 September 1995 (the former Yugoslav Republic of Macedo-
                     nia v. Greece), Judgment, I.C.J. Reports 2011 (II), p. 668, para. 72 ; Mar-
                     itime Delimitation in the Black Sea (Romania v. Ukraine), Judgment,
                     I.C.J. Reports 2009, p. 86, para. 68). It marshalled its evidence in an
                     attempt to do so. Its Reply included a chapter entitled “The Continental
                     Shelf in the Western Caribbean : The Geological and Geomorphological
                     Evidence”, as well as a series of technical annexes taken from the Pre‑
                     liminary Information that it had transmitted to the Secretary‑General
                     and other scientific data and evidence regarding the geology and geomor‑
                     phology of the area in question. During two sessions of the oral proceed‑
                     ings, a geologist on Nicaragua’s team presented evidence in support of

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                     191 	delimitation of the continental shelf (diss. op. donoghue)

                     Nicaragua’s assertion that its continental shelf entitlement overlapped
                     with Colombia’s mainland entitlement.

                        14. Nicaragua took the position that, if the natural prolongation of the
                     coastal State’s landmass extends beyond 200 nautical miles from its coast,
                     that State has an entitlement to extended continental shelf “ipso facto and
                     ab initio” (CR 2012/15, p. 17, para. 4 (Lowe)). Nicaragua pointed to Arti‑
                     cle 77, paragraph 3, of UNCLOS, which states that a coastal State’s con‑
                     tinental shelf entitlement does not depend on occupation or express
                     proclamation. It emphasized that the Commission “has no role in estab‑
                     lishing an entitlement to a continental shelf : it merely determines the pre‑
                     cise location of the outer limits of a pre‑existing entitlement” (ibid., p. 19,
                     para. 15 (Lowe)).
                        15. Colombia’s primary response (see paragraph 19 below) was that
                     Nicaragua’s claim was inadmissible as a new claim. However, if the claim
                     were found to be admissible, quod non, Colombia contended that the
                     claim failed on the merits, both for legal and evidentiary reasons. As to
                     the asserted legal defects, Colombia made two points. First, Colombia
                     disagreed with Nicaragua’s claim that entitlement of continental shelf
                     exists “ipso facto and ab initio”, stating that :

                             “Article 76, coupled with the Commission’s Rules of Procedure,
                          makes it mandatory for a coastal State to make an extended conti‑
                          nental shelf submission to the Commission, for the Commission to
                          make recommendations on that submission, and for the coastal State
                          then to establish the outer limits of its shelf ‘on the basis of’ the Com‑
                          mission’s recommendations. Rule 45 stipulates that the coastal State
                          ‘shall’ submit particulars of its claims to the Commission. Nicaragua
                          cannot be deemed to have established any rights to an extended con‑
                          tinental shelf unless and until these steps are followed . . .” (Nicaragua
                          v. Colombia I, Rejoinder of the Republic of Colombia, p. 141,
                          para. 4.42.)
                     Thus, Colombia’s position was that a coastal State that is a party to
                     UNCLOS has no entitlement to extended continental shelf until the three
                     steps set out in Article 76, paragraph 8, of UNCLOS are completed and
                     the coastal State has established the outer limits based on Commission
                     recommendations.
                        16. Colombia’s second legal argument was that a State’s entitlement to
                     continental shelf based on the distance criterion always takes precedence
                     over an extended continental shelf entitlement. Nicaragua disagreed on
                     this legal point.
                        17. Turning to the evidence, Colombia had this to say: “Factually, the
                     so‑called ‘evidence’ that Nicaragua has adduced in its Reply is woefully
                     deficient, and would not even begin to satisfy the Commission on the Lim‑
                     its of the Continental Shelf.” (CR 2012/12, p. 53, para. 46 (Bundy).) To
                     support this criticism of Nicaragua’s evidence, Colombia emphasized Nica‑

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                     192 	delimitation of the continental shelf (diss. op. donoghue)

                     ragua’s admissions as to the insufficiency of its evidence. To this end,
                     Colombia called the Court’s attention to the fact that Nicaragua had
                     attached to its Reply technical annexes from the Preliminary Information
                     that it had transmitted to the Secretary‑General, but had not filed the Pre‑
                     liminary Information itself with the Court. Colombia informed the Court
                     that Nicaragua’s Preliminary Information itself (which is available on the
                     Commission website) acknowledged that “some of the data and the profiles
                     [contained therein] do not satisfy the exacting standards required by the
                     CLCS for a full submission, as detailed in the Commission’s Guidelines”
                     (CR 2012/12, p. 56, para. 59 (Bundy) ; see also ibid., p. 61, para. 81 (Bundy)).
                     Colombia pointed to other admissions that appeared in the evidence that
                     Nicaragua had submitted in the proceedings in Nicaragua v. Colombia I:
                     “Nicaragua’s technical annex to its Reply states that its foot‑of‑slope points
                     ‘should be treated as indicative only’. And it adds ‘there are issues with the
                     data quality in a few areas’.” (Ibid., p. 58, para. 65 (Bundy).)

                       18. As can be seen, therefore, the arguments of the Parties in Nicara-
                     gua v. Colombia I centred not on the methodology of delimitation, but on
                     the question whether there was a basis in law and in fact for the Court to
                     proceed to the step of delimitation.

                                    IV. What Did the Court Decide in 2012 ?

                        19. In the 2012 Judgment, the Court took two decisions regarding
                     Nicaragua’s submission I (3). That submission was not a part of Nicara‑
                     gua’s Application ; it appeared for the first time in Nicaragua’s Reply.
                     The Court first rejected Colombia’s contention that the claim contained
                     in submission I (3) was inadmissible because it was new (Nicaragua v.
                     Colombia I, p. 719, para. 251 (2)). The reasoning in support of this deci‑
                     sion appears in Section III of the 2012 Judgment, entitled “Admissibility
                     of Nicaragua’s Claim for Delimitation of a Continental Shelf Extending
                     beyond 200 Nautical Miles”. Section III concludes that the claim con‑
                     tained in submission I (3) is admissible (ibid., p. 665, para. 112). The
                     2012 Judgment identifies no question of admissibility other than Colom‑
                     bia’s objection to Nicaragua’s new claim.

                        20. Section IV of the 2012 Judgment is entitled “Consideration of
                     Nicaragua’s Claim for Delimitation of a Continental Shelf Extending
                     beyond 200 Nautical Miles”. It contains the reasoning on which the
                     Court bases its second decision on Nicaragua’s submission, i.e., that the
                     Court could not “uphold the Republic of Nicaragua’s claim contained in
                     its final submission I (3)” (ibid., p. 719, para. 251 (3)). The structure of the
                     Judgment and the absence of any indication that the Court was address‑
                     ing an unspecified aspect of admissibility in Part IV therefore make clear
                     that the Court’s decision that it could not uphold Nicaragua’s submis‑
                     sion I (3) was a decision on the merits.

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                     193 	delimitation of the continental shelf (diss. op. donoghue)

                        21. In the present case, each Party attached significance to the Court’s
                     use of the phrase “cannot uphold” to express its decision on the merits of
                     submission I (3).
                        22. According to Nicaragua, in 2012 the Court neither ruled positively
                     on Nicaragua’s claim, nor rejected it. Instead, it “confine[d] itself, nega‑
                     tively, to ‘not upholding’ a submission — that is to say not ruling on it”
                     (CR 2015/27, p. 39, para. 25 (Pellet)). However, Nicaragua did not iden‑
                     tify any prior judgment in which the Court used the phrase “cannot
                     uphold” to indicate that it would not rule on the merits of a claim that fell
                     within its jurisdiction and was admissible.

                        23. Colombia’s assertion was that the decision that the Court could
                     not uphold Nicaragua’s claim meant that the Court had rejected the
                     delimitation requested in submission I (3). Colombia pointed to a series
                     of judgments in which the Court used the phrases “cannot uphold” or
                     “cannot be upheld” when it rejected a claim (see CR 2015/28, pp. 18‑21,
                     paras. 3‑12 (Reisman)).
                        24. The judgments identified by Colombia undercut Nicaragua’s sug‑
                     gestion that the Court used the phrase “cannot uphold” in dispositive
                     subparagraph (3) in order to signal that it was not ruling on a claim.
                     However, Colombia’s contention that the Court rejected Nicaragua’s
                     delimitation claim in its entirety overlooks the fact that the Court in dis‑
                     positive subparagraph (3) ruled on a claim with the two distinct steps
                     described above (para. 12). The Court never proceeded to delimitation, so
                     it cannot be understood to have “rejected” Nicaragua’s proposed delimi‑
                     tation. Instead, the phrase “cannot uphold” indicates that Nicaragua’s
                     submission I (3) failed at the first of the two steps inherent in Nicaragua’s
                     claim ; the Court was therefore not in a position to proceed to the second
                     step of delimitation.

                       25. The question that divides the Court today is why the Court deter‑
                     mined that it was not in a position to delimit as requested by Nicaragua,
                     and thus decided that it could not uphold submission I (3). As the answer
                     to this question cannot be found in the text of the dispositif, I turn now to
                     my understanding of the reasoning that was essential to the Court’s
                     2012 decision.

                       26. In the first paragraph of Section IV, the Court framed the question
                     to be addressed as “whether it is in a position to determine ‘a continental
                     shelf boundary dividing by equal parts the overlapping entitlements to a
                     continental shelf of both Parties’ as requested by Nicaragua in its final
                     submission I (3)” (Nicaragua v. Colombia I, p. 665, para. 113).

                       27. A court or tribunal is only “in a position” to effect a delimitation if
                     the entitlements of the parties overlap (see Delimitation of the Maritime
                     Boundary between Bangladesh and Myanmar in the Bay of Bengal (Ban-
                     gladesh/Myanmar), Judgment of 14 March 2012, ITLOS Reports 2012

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                     194 	delimitation of the continental shelf (diss. op. donoghue)

                     (hereinafter, “Bangladesh/Myanmar”), p. 105, para. 397). Thus, after indi‑
                     cating that customary international law governs the case (Nicaragua v.
                     Colombia I, p. 666, para. 118), the 2012 Judgment turns to the Parties’
                     positions in respect of the first step of Nicaragua’s claim — the conten‑
                     tion that Nicaragua’s continental shelf entitlement overlaps with Colom‑
                     bia’s mainland entitlement.

                       28. The Court’s summary of Nicaragua’s position begins with its fac‑
                     tual claim — that the natural prolongation of its landmass, which it
                     described as the “Nicaraguan Rise”, overlaps with Colombia’s mainland
                     entitlement (ibid., p. 666, para. 119). The Judgment notes that Nicaragua
                     had transmitted Preliminary Information to the Secretary‑General within
                     the applicable ten‑year period (ibid., p. 667, para. 120).

                       29. The Judgment also lays out the ways in which Nicaragua sought to
                     reassure the Court of the quality of its evidence, noting that, according to
                     Nicaragua, the work needed to complete a submission to the Commission
                     was “well advanced” and that it intended to acquire additional survey
                     data in order to complete the information to be submitted to the Com‑
                     mission (ibid., p. 667, para. 120). In addition, the 2012 Judgment recalls
                     Nicaragua’s assertion that it had “established the outer limit of its conti‑
                     nental shelf beyond 200 nautical miles on the basis of available public
                     domain datasets” (ibid.).
                       30. When the Judgment turns to Colombia’s position, the Court’s
                     summary captures that Party’s view that the inadequacy of Nicaragua’s
                     evidence stood in the way of delimitation :
                             “Colombia contends that Nicaragua’s purported rights to the
                          extended continental shelf out to the outer edge of the continental
                          margin beyond 200 nautical miles have never been recognized or even
                          submitted to the Commission. According to Colombia, the informa‑
                          tion provided to the Court, which is based on the ‘Preliminary Infor‑
                          mation’ submitted by Nicaragua to the Commission, is ‘woefully
                          deficient’. Colombia emphasizes that the ‘Preliminary Information’
                          does not fulfil the requirements for the Commission to make recom‑
                          mendations, and therefore Nicaragua has not established any entitle‑
                          ment to an extended continental shelf. That being the case, Colombia
                          asserts that Nicaragua cannot merely assume that it possesses such
                          rights in this case or ask the Court to proceed to a delimitation ‘based
                          on rudimentary and incomplete technical information’.” (Ibid., p. 667,
                          para. 122.)
                     As can be seen in the Court’s summary of Colombia’s views, the deficien‑
                     cies in Nicaragua’s evidence were revealed, first, by the fact that the limits
                     of its continental shelf had not been “recognized or even submitted” to
                     the Commission and, secondly, because the Preliminary Information
                     from which Nicaragua drew its evidence did not even meet the require‑
                     ments for a submission to the Commission. According to Colombia, the

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                     195 	delimitation of the continental shelf (diss. op. donoghue)

                     consequence of Nicaragua’s “rudimentary and incomplete” evidence was
                     that the Court could not proceed to delimitation.
                        31. Having summarized the Parties’ positions, the 2012 Judgment then
                     addresses the “jurisprudence” to which Nicaragua had referred (Nicara-
                     gua v. Colombia I, p. 668, para. 125). It begins with observations regard‑
                     ing the Judgment of ITLOS in Bangladesh/Myanmar, in which the
                     Tribunal rejected the contention that it should not delimit areas of
                     extended continental shelf. The Court first identifies circumstances that
                     distinguished that case from the situation in Nicaragua v. Colombia I
                     (e.g., ITLOS did not need to determine the outer limits of the continental
                     shelf ; the Bay of Bengal presents a unique situation ; both States were
                     parties to UNCLOS and had made submissions to the Commission). This
                     enumeration of differences between the two cases might have suggested
                     that the Court saw reasons not to proceed to delimitation in Nicaragua v.
                     Colombia I, even though ITLOS had done so in Bangladesh/Myanmar.
                     However, the discussion of Bangladesh/Myanmar closes with the observa‑
                     tion that ITLOS had drawn a clear distinction between delimitation of
                     continental shelf and delineation of its outer limits, a point that today’s
                     Judgment also embraces (para. 112). Taken as a whole, therefore, the
                     Court’s comments on Bangladesh/Myanmar suggest some openness to the
                     delimitation of areas of extended continental shelf.
                        32. When the Court’s review of jurisprudence moves from Bangladesh/
                     Myanmar to its own 2007 Judgment in the case concerning Territorial and
                     Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
                     (Nicaragua v. Honduras), however, the Court’s reasoning points in pre‑
                     cisely the opposite direction. Quoting from that 2007 Judgment, the
                     Court states that “any claim of continental shelf rights beyond 200 miles
                     [by a State party to UNCLOS] must be in accordance with Article 76 of
                     UNCLOS and reviewed by the Commission” (Nicaragua v. Colombia I,
                     p. 669, para. 126, citing I.C.J. Reports 2007 (II), p. 759, para. 319). The
                     clear implication (about which my 2012 separate opinion expresses mis‑
                     givings) is that the Court would hesitate to entertain an application seek‑
                     ing delimitation of areas of extended continental shelf in the absence of
                     review by the Commission. (Today’s Judgment, however, reaches the
                     opposite conclusion in rejecting Colombia’s fifth preliminary objection.)
                     The Court then observes that the fact that Colombia is not a party to
                     UNCLOS does not relieve Nicaragua of its obligations under Article 76
                     of UNCLOS (Nicaragua v. Colombia I, p. 669, para. 126.)

                        33. Following its observations on jurisprudence, the Court addresses
                     the evidence that Nicaragua had provided to the Court. It notes that
                     Nicaragua’s Preliminary Information “by [Nicaragua’s] own admission,
                     falls short of meeting the requirements for information” specified in para‑
                     graph 8 of Article 76 of UNCLOS and that Nicaragua had provided the
                     Court with annexes to the Preliminary Information and had indicated
                     that the entire Preliminary Information was available on the Commis‑
                     sion’s website (ibid., p. 669, para. 127). There was no reason for the Court

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                     196 	delimitation of the continental shelf (diss. op. donoghue)

                     to probe the details of Nicaragua’s evidence or Colombia’s criticism
                     thereof because the evidence that Nicaragua had presented to the Court
                     was facially deficient. In the absence of Commission recommendations,
                     the Court could not rely on the assessment of an expert body, as it has
                     done in other cases (Application of the Convention on the Prevention and
                     Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment,
                     I.C.J. Reports 2015 (I), p. 76, paras. 190‑191). Nicaragua had admitted
                     that the evidence that it had introduced in Nicaragua v. Colombia I fell
                     short of what the Commission requires, and the Court attaches particular
                     evidentiary importance to admissions adverse to a party (see, e.g., Mili-
                     tary and Paramilitary Activities in and against Nicaragua (Nicaragua v.
                     United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 43,
                     para. 69 ; Armed Activities on the Territory of the Congo (Democratic
                     Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 201,
                     para. 61). Thus, Nicaragua’s reliance in the proceedings in the 2012 Judg‑
                     ment on evidence from its Preliminary Information, and not from a sub‑
                     mission, was among the reasons why the Court concluded that Nicaragua
                     had failed to prove the facts that it asserted in the first step of its claim.

                        34. After addressing Nicaragua’s evidence, the 2012 Judgment recalls
                     that, at the hearing, Nicaragua had suggested that, rather than specifying
                     the precise location of the outer limits of Nicaragua’s continental shelf, the
                     Court had the option of proposing a formula for delimitation, which could
                     then be applied after Nicaragua has established the outer limits of its con‑
                     tinental shelf based on Commission recommendations (Nicaragua v.
                     Colombia I, p. 669, para. 128). Following its summary of Nicaragua’s alter‑
                     native proposal, the Court concludes its reasoning on the merits with
                     respect to Nicaragua’s submission I (3) as follows :
                              “[S]ince Nicaragua, in the present proceedings, has not established
                           [in French: ‘n’ayant pas . . . apporté la preuve’] that it has a continen‑
                           tal margin that extends far enough to overlap with Colombia’s
                           200‑nautical‑mile entitlement to the continental shelf, measured from
                           Colombia’s mainland coast, the Court is not in a position to delimit
                           the continental shelf boundary between Nicaragua and Colombia, as
                           requested by Nicaragua, even using the general formulation proposed
                           by it.” (Ibid., p. 669, para. 129.)
                        35. Thus, having begun its consideration of Nicaragua’s submis‑
                     sion I (3) with the question whether it was “in a position” to determine a
                     continental shelf boundary as requested by Nicaragua (ibid., p. 665,
                     para. 113), the Court answered that question in the above‑quoted para‑
                     graph. As that paragraph indicates, in the proceedings in Nicaragua v.
                     Colombia I, Nicaragua had not proven the facts on which its claim was
                     predicated — that its continental shelf entitlement extended far enough to
                     overlap with Colombia’s mainland entitlement. This conclusion as to the
                     first step of Nicaragua’s claim led the Court to determine that it was “not
                     in a position” to proceed to the second step — delimitation of the conti‑

                     100

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                     197 	delimitation of the continental shelf (diss. op. donoghue)

                     nental shelf boundary requested by Nicaragua — either through identifi‑
                     cation of a specific median line or through articulation of a formula. This
                     reasoning was essential to the Court’s decision that Nicaragua’s submis‑
                     sion I (3) could not be upheld.

                          36. In my 2012 separate opinion, I observed that the evidence pre‑
                     sented by Nicaragua did not provide a sufficient factual basis for the
                     Court to proceed to delimitation, and I expressed regret that the Court
                     did not set out in its reasoning the specific inadequacies of Nicaragua’s
                     evidence (I.C.J. Reports 2012 (II), p. 756, para. 17). In today’s Judgment
                     (para. 82), the Court points to the fact that the 2012 Judgment did not
                     analyse the evidence to support its conclusion that the Court made no
                     determination about that evidence in 2012. As noted above, however, the
                     deficiencies in Nicaragua’s evidence were obvious from the Parties’ posi‑
                     tions, without examination of the underlying geological and geomorpho‑
                     logical facts. In addition, today’s Judgment ignores the fact that, while
                     the Court in some cases presents its own analysis of the evidence or legal
                     positions presented by the parties, the Court’s style of drafting (some‑
                     times described as “laconic”) often follows another pattern, in which
                     party positions on a particular issue are summarized, followed only by a
                     brief statement of the Court’s conclusion on that issue (e.g., that the
                     evidence fails to establish an asserted fact). I have expressed my own
                      concerns about this drafting style in the past, noting in particular

                      the obscurity of reasoning that can result from it (Application of the
                      Convention on the Prevention and Punishment of the Crime of Genocide
                       (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), declaration of
                       Judge Donoghue, p. 392, para. 9). However, there is nothing exceptional
                       about the Court’s use of this style in Nicaragua v. Colombia I to indicate
                       the Court’s conclusion that Nicaragua failed to establish the facts that it
                       asserted.
                          37. (I also note that, during the proceedings in the present case, both
                       Colombia (CR 2015/26, p. 31, para. 6 (Herdegen) ; CR 2015/28, pp. 43‑44,
                       paras. 17‑23 (Bundy)) and Nicaragua (CR 2015/27, p. 41, para. 29 ; p. 44,
                       para. 37 (Pellet) ; CR 2015/29, p. 25, para. 23 ; p. 26, para. 25 ; pp. 26‑27,
                       para. 27 (Pellet)) expressed the view that the Court had decided in 2012
                       that it could not uphold Nicaragua’s submission for want of evidence. Of
                       course, the Parties disagreed about whether this lack of evidence meant
                       that Nicaragua’s First Request in the present case was barred by the doc‑
                       trine of res judicata.)
                          38. There is also nothing unusual in the fact that the Court in 2012
                       declined to address certain of the legal issues presented by the Parties,
                       including the relationship between one State’s extended continental shelf
                       entitlement and another State’s 200‑nautical‑mile zone and the question
                       whether the various paragraphs of Article 76 of UNCLOS are part of cus‑
                       tomary international law (Nicaragua v. Colombia I, pp. 666‑668, paras. 118,
                       121 and 123 ; pp. 669‑670, para. 130). These legal questions had implica‑
                       tions well beyond Nicaragua v. Colombia I. The Court would have had to

                     101

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                     198 	delimitation of the continental shelf (diss. op. donoghue)

                     confront each of them in order to proceed to delimitation, but the facial
                     inadequacy of Nicaragua’s evidence meant that it was free to decline to
                     address them. Once again, the Court’s approach is entirely in line with its
                     traditions of judicial drafting, pursuant to which it takes a flexible approach
                     to the sequence in which it addresses questions presented by an application,
                     which can obviate the need to decide questions of law not essential to settle‑
                     ment of the particular dispute before it.
                        39. Because the Court in its reasoning (Nicaragua v. Colombia I,
                     p. 669, para. 129, quoted above in para. 34) referred only to Nicaragua’s
                     claim of an overlap with Colombia’s mainland entitlement, I see no basis
                     to conclude that the Court made a determination about the existence or
                     extent of any overlap between Nicaragua’s continental shelf entitlement
                     in the area more than 200 nautical miles from its coast and Colombia’s
                     insular entitlement. This conclusion is consistent with Nicaragua’s sub‑
                     missions in Nicaragua v. Colombia I.

                       V. The Implications of the Decision that the Court Could not
                             Uphold Nicaragua’s Submission I (3) (Res Judicata)

                        40. Today’s Judgment recites the well‑known requirements for the
                     application of res judicata — same parties, object and legal ground. The
                     Court also quite correctly observes that, in order to decide whether the
                     doctrine of res judicata bars an application in a second case, the Court
                     must determine whether and to what extent a claim was definitively set‑
                     tled in the first case, or, as the Court has stated elsewhere, whether “a
                     matter has . . . been determined, expressly or by necessary implication”
                     (see paragraph 7 above).
                        41. I do not take issue with the Court’s summary of the law. My differ‑
                     ences with the Court stem from my disagreement with the interpretation
                     of dispositive subparagraph (3) of the 2012 Judgment advanced by the
                     Court today.
                        42. In its 2012 Judgment, the Court “determined, expressly or by nec‑
                     essary implication”, that Nicaragua had not established that its continen‑
                     tal shelf extended far enough to overlap with Colombia’s mainland
                     entitlement and thus that the Court was not in a position to delimit.
                     Under these circumstances, the doctrine of res judicata denies Nicaragua
                     the opportunity to prove the same facts for a second time in a second case
                     against the same respondent, in the hope that it will meet its burden of
                     proof in the second case. Nicaragua took full advantage of the opportu‑
                     nity to prove the overlap of its entitlement with Colombia’s mainland
                     entitlement in Nicaragua v. Colombia I. In such a situation, it is unfair,
                     and inconsistent with the sound administration of justice, to give a State
                     a second chance to prove the same facts in a second case. Thus, the
                     res judicata effect of the 2012 Judgment prevents Nicaragua from request‑

                     102

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                     199 	delimitation of the continental shelf (diss. op. donoghue)

                     ing a court anew to ascertain that its continental shelf entitlement over‑
                     laps with Colombia’s mainland entitlement.

                        43. As the 2012 Judgment did not address the question whether there
                     was an overlap between Nicaragua’s entitlement and Colombia’s insular
                     entitlement in the area located more than 200 nautical miles from Nicara‑
                     gua’s coast, however, the Court did not make any determination on that
                     issue. For that reason, there is no basis to apply the doctrine of res judi-
                     cata in respect of any such overlap.
                        44. For these reasons, I consider that Nicaragua’s First Request in the
                     present case is inadmissible as to any overlap between Nicaragua’s entitle‑
                     ment and Colombia’s mainland entitlement (res judicata effect), but
                     admissible as to any overlap between Nicaragua’s entitlement and Colom‑
                     bia’s insular entitlement in the area beyond 200 nautical miles of Nicara‑
                     gua’s coast (no res judicata effect).

                        45. Concerning the application of the doctrine of res judicata to the
                     2012 Judgment, I offer two final comments. First, the Court’s determina‑
                     tion that a party has failed to prove a particular fact that it alleged does
                     not automatically prove the opposite fact. The Chamber of the Court
                     recognized this in the case concerning the Frontier Dispute (Burkina Faso/
                     Republic of Mali), wherein it observed that “the rejection of any particu‑
                     lar argument on the ground that the factual allegations on which it is
                     based have not been proved is not sufficient to warrant upholding the
                     contrary argument” (Judgment, I.C.J. Reports 1986, p. 588, para. 65). In
                     2012, the Court did not make a determination, expressly or impliedly, as
                     to the underlying geological and geomorphological facts in the area at
                     issue. It neither decided that Nicaragua’s entitlement did not overlap with
                     Colombia’s mainland entitlement, nor that Nicaragua had no entitlement
                     beyond 200 nautical miles of its coast. It determined only that the evi‑
                     dence submitted by Nicaragua did not meet that Party’s burden to prove
                     that its continental shelf entitlement overlapped with Colombia’s main‑
                     land entitlement. The doctrine of res judicata denies Nicaragua a second
                     chance to meet its burden of proof in court, but it does not preclude
                     Nicaragua from pursuing the delineation of the outer limits of its conti‑
                     nental shelf within the framework of UNCLOS. Moreover, it remains
                     open to the Parties, whether through negotiation or another agreed means
                     of peaceful dispute settlement, to agree on the delimitation of any area of
                     overlapping entitlement located more than 200 nautical miles from Nica‑
                     ragua’s coast.

                      46. Secondly, the Court’s decision in 2012 that Nicaragua failed to
                     meet its burden of proof in that case has no effect on third States.

                     103

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                     200 	delimitation of the continental shelf (diss. op. donoghue)

                                         VI. The Court’s Interpretation
                                         of Dispositive Subparagraph (3)

                        47. According to today’s Judgment, the Court decided in 2012 that it
                     could not uphold Nicaragua’s claim because Nicaragua “had yet to dis‑
                     charge its obligation, under paragraph 8 of Article 76 of UNCLOS, to
                     deposit with the CLCS the information on the limits of its continental
                     shelf beyond 200 nautical miles required by that provision and by Arti‑
                     cle 4 of Annex II of UNCLOS” (para. 84). I offer some observations on
                     this conclusion, with which I disagree.

                        48. To support its conclusion that the Court in 2012 held that it would
                     not delimit continental shelf in the absence of a submission to the CLCS,
                     today’s Judgment apparently relies on the statement in the 2012 Judg‑
                     ment that “the fact that Colombia is not a party [to UNCLOS] does not
                     relieve Nicaragua of its obligations under Article 76 of that Convention”
                     (Nicaragua v. Colombia I, p. 669, para. 126). This remark, which does not
                     even mention the requirement of a submission, cannot explain today’s
                     interpretation. To be sure, given that Nicaragua apparently intends to
                     establish the outer limits of its continental shelf beyond 200 nautical miles
                     of its coast, it has obligations under UNCLOS. However, in 2012, Nica‑
                     ragua had met those obligations, due to its transmission of Preliminary
                     Information to the Secretary‑General within the applicable ten‑year
                     period. Nicaragua’s failure to make a submission was not a failure to
                     “discharge its obligation” (Judgment, para. 84) ; it was one of several
                     indicators of the facial inadequacy of Nicaragua’s evidence.

                        49. Moreover, the obligation to make a submission to the Commission
                     applies only to the process of delineating the outer limits of the continental
                     shelf. UNCLOS imposes no obligation on a State party to make a submis‑
                     sion to the Commission prior to seeking judicial or arbitral delimitation of
                     continental shelf beyond 200 nautical miles of its coast. On the contrary, it
                     draws a distinction between delimitation of a maritime boundary, on the
                     one hand, and delineation of the outer limits of the continental shelf, on
                     the other hand (Art. 76, para. 10, of UNCLOS ; see also Bangladesh/
                     Myanmar, pp. 107‑108, paras. 406‑410). The Court embraces that very dis‑
                     tinction today (para. 112) when it concludes that the absence of Commis‑
                     sion recommendations does not render inadmissible an application seeking
                     delimitation of continental shelf in areas located more than 200 nautical
                     miles from the applicant’s coast.
                        50. Even assuming, arguendo, that there is a basis for the Court to con‑
                     dition its consideration of an application for delimitation on the comple‑
                     tion of a particular phase in the UNCLOS process for the establishment
                     of the outer limits of the continental shelf, the interpretation of the
                     2012 Judgment that is contained in today’s Judgment fails. As noted
                     above, the 2012 Judgment (pp. 668‑669, para. 126) expressly links delimi‑

                     104

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                     201 	delimitation of the continental shelf (diss. op. donoghue)

                     tation of extended continental shelf not to a unilateral submission by the
                     coastal State to the Commission, but rather to such a submission having
                     been “reviewed” by the Commission, reprising a point that the Court had
                     made in 2007. In my 2012 opinion (I.C.J. Reports 2012 (II), p. 756,
                     para. 18 ; p. 758, para. 25), I expressed the concern that this quotation
                     suggested a generally‑applicable bar on delimitation applications in the
                     absence of Commission recommendations or the establishment of the
                     outer limits on the basis of those recommendations. (For this reason, I
                     am pleased that the Court today rejects Colombia’s fifth preliminary
                     objection, although I regret that the reasoning in Part VI of today’s Judg‑
                     ment does not mention the apparent inconsistency between today’s con‑
                     clusion and statements that the Court made in 2007 and 2012.)

                        51. Had the Court decided in 2012 to impose a precondition on delim‑
                     itation cases (submission to the Commission, according to today’s Judg‑
                     ment), this precondition could not have been found in the law governing
                     the dispute between the Parties, which was customary international law,
                     not UNCLOS (to which Colombia is not a State party). It would have
                     been a consequence of a judicial policy entirely of the Court’s own mak‑
                     ing. If Nicaragua’s failure to meet this precondition has been the reason
                     for the Court’s decision that it could not uphold submission I (3), one
                     would have expected the 2012 Judgment not merely to quote without
                     comment an earlier Judgment (in a case between two UNCLOS States
                     parties) that expressly referred to a different precondition (“review . . . by
                     the Commission”), but instead to set out its new approach (submission to
                     the Commission as a precondition to delimitation) and the reasons for it.
                     the 2012 Judgment, however, does nothing of the sort.

                        52. A final shortcoming in the interpretation of the 2012 Judgment
                     that the Court sets out today is that the question whether any one of the
                     procedural steps in the Commission process is a precondition to delimita‑
                     tion would be a matter of admissibility, not a question of the merits. This
                     is clear from the Court’s analysis today of Colombia’s fifth preliminary
                     objection, which the Court treats as a question of admissibility. Had the
                     Court imposed a precondition at a different stage of the Commission pro‑
                     ceeding (that of submission), the label of admissibility would also have
                     applied. For the reasons set forth above (para. 20), however, the Court’s
                     2012 decision that it could not uphold Nicaragua’s claim was a decision
                     on the merits, not a decision as to admissibility.

                                                                (Signed) Joan E. Donoghue.

                     105

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