                     163

                                    SEPARATE OPINION OF JUDGE OWADA

                                                   table of contents

                                                                                Paragraphs

                      I. Res Judicata1-32
                          A. The definition and scope of res judicata1‑9
                          B. The background of the Court’s decision in its 2012 Judgment
                             on the reformulated claim of Nicaragua                     10‑16
                          C. What the Court has decided in fact in its 2012 Judgment    17‑31
                               (i) The reasoning contained in Part IV of the Judgment       18‑24
                              (ii) The structure of the 2012 Judgment                       25‑29
                             (iii) The burden of proof                                      30‑31
                          D. Conclusion                                                        32
                     II. The Opposability of UNCLOS by Colombia to Nicaragua                33‑39

                                                     I. Res Judicata

                                     A. The Definition and Scope of Res Judicata
                        1. I concur with the conclusions that the Court has reached in this case
                     as contained in the operative clause (dispositif). However, I wish to
                     append to the Judgment my own separate opinion in order to clarify my
                     own reasoning on the issue of res judicata and supplement a few salient
                     points of law, which in my view have not been adequately addressed in
                     the Judgment.
                        2. The present Judgment correctly points out that “the principle of res
                     judicata . . . is a general principle of law which protects, at the same time,
                     the judicial function of a court or tribunal and the parties to a case which
                     has led to a judgment that is final and without appeal” (Judgment,
                     para. 58). Needless to say, the prerequisite for the application of this prin‑
                     ciple of res judicata is, as defined in the famous dictum of Judge Anzilotti,
                     the existence of three traditional elements, namely the identity of “per-
                     sona, petitum [and] causa petendi” (Interpretation of Judgments Nos. 7
                     and 8 (Factory at Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A,
                     No. 13, dissenting opinion of Judge Anzilotti, p. 23). In the present case,

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                     it is accepted that the existence of these essentially formal criteria has
                     been satisfied, to the extent that the presence of these essential elements
                     has not been questioned by the Parties and is therefore not at issue.
                        3. In my view, the more intrinsically important issue in the present case
                     is whether the decision reached in the 2012 Judgment contains a “final
                     and definitive determination by the Court” to which the effect of res judi-
                     cata should attach. In other words, the issue is with the scope of the res
                     judicata. It is generally accepted in the jurisprudence of national and
                     international courts and tribunals that the effect of res judicata would
                     accrue only to a final judgment of the Court. A final Judgment should
                     refer to “a Court’s final determination of the rights and obligations of the
                     parties in a case” through which “an issue has been definitely settled by
                     judicial decision” (Black’s Law Dictionary, 9th ed., pp. 918, 1425). In the
                     same vein, this Court has held that
                          “[the] principle [of res judicata] signifies that the decisions of the Court
                          are not only binding on the parties, but are final, in the sense that
                          they cannot be reopened by the parties as regards the issues that have
                          been determined ” (Application of the Convention on the Prevention and
                          Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Ser-
                          bia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 90,
                          para. 115 ; emphasis added).
                     The necessary corollary of this is that “[i]f a matter has not in fact been
                     determined, expressly or by necessary implication, then no force of res
                     judicata attaches to it” (ibid., p. 95, para. 126).
                        4. The Court has previously been faced with a situation somewhat
                     similar to the present one when a question arose as to the proper scope of
                     the res judicata of a particular judgment. In the Asylum (Colombia/Peru)
                     case before the Court in 1950, the Colombian Government granted diplo‑
                     matic asylum to a political refugee, Víctor Raúl Haya de la Torre, in its
                     Embassy in Lima over the objections of the Peruvian Government. In its
                     1950 Judgment, the Court decided the general legal questions relating to
                     the legality of this asylum raised by the Parties, while noting that “the
                     question of the possible surrender of the refugee . . . was not raised either
                     in the diplomatic correspondence submitted by the Parties or at any
                     moment in the proceedings before the Court” (Asylum (Colombia/Peru),
                     Judgment, I.C.J. Reports 1950, p. 280). Immediately thereafter, Colombia
                     filed a request for interpretation under Article 60 of the Statute asking
                     whether the Judgment required the surrender of the political refugee by
                     the Government of Colombia. The Court in response to this request for
                     interpretation of the previous Judgment did not provide an answer to this
                     question, stating instead that “[t]he Court can only refer to what it
                     declared in its Judgment in perfectly definite terms : this question was
                     completely left outside the submissions of the Parties. The Judgment in
                     no way decided it, nor could it do so.” (Request for Interpretation of the
                     Judgment of 20 November 1950 in the Asylum Case (Colombia v. Peru),
                     Judgment, I.C.J. Reports 1950, p. 403.) Subsequently, Colombia insti‑

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                     tuted new proceedings in the Haya de la Torre case so as to resolve this
                     issue. In the 1951 Judgment on this new case, the Court affirmed that:
                     “the question of the surrender of the refugee was not decided by the Judg‑
                     ment [of 1950, and]. . . [t]here is consequently no res judicata upon the
                     question of surrender” (Haya de la Torre (Colombia v. Peru), Judgment,
                     I.C.J. Reports 1951, p. 80). According to the analysis by one learned
                     writer, the 1950 Judgment exemplifies a situation in which “the problem
                     was not that of the existence of a final judgment, but of the scope of the
                     binding force of the decision. This judgment did not settle the dispute, for
                     the simple reason that the submissions of the parties were insufficient for
                     this purpose.” (Shabtai Rosenne, The Law and Practice of the Inter
                     national Court: 1920‑2005, 2006, Vol. III, 1603.) It could be argued that
                     a fine distinction exists between this case and the present one, to the extent
                     that the specific point at issue was “left outside” in the 1950 proceedings,
                     but the essential point is that the submissions of the parties were insuffi‑
                     cient in both cases to allow the Court to determine the dispute and the
                     decision did not constitute res judicata.

                         5. The scope of the res judicata was also at issue in the merits phase of
                     the Genocide Convention (Bosnia and Herzegovina v. Serbia and Monte
                     negro) case, though with a markedly different outcome, which is also
                     worthy of note here. In its 1996 Judgment on preliminary objections in that
                      case, the Court rejected all of the preliminary objections on jurisdiction
                      by the Respondent Yugoslavia (Serbia and Montenegro) and found the
                      Application of the Applicant (Bosnia and Herzegovina) admissible,
                      declaring that “the Court may now proceed to consider the merits of the
                      case on that basis” (Application of the Convention on the Prevention and
                      Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugosla-
                      via), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 622,
                      para. 46). At the merits phase, however, the Respondent argued that its
                      own lack of jus standi had not been adjudicated and that this precluded
                      the Court from reaching a decision on the merits. The essence of this
                      claim was that the Respondent was not a continuator of the Socialist
                      Federal Republic of Yugoslavia and was therefore not a party to the
                      Genocide Convention or the Statute of the Court when the proceedings
                      were instituted — the position taken by the Court in its Judgment of 2004
                      in the Legality of Use of Force (Serbia and Montenegro v. Belgium et al.)
                      cases. In the 2007 Judgment on the merits, the issue was whether that
                      question had been disposed of in the 1996 Judgment. Styled as such, this
                      issue related to the scope of the res judicata of the 1996 Judgment (Appli-
                      cation of the Convention on the Prevention and Punishment of the Crime of
                      Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment,
                      I.C.J. Reports 2007 (I), p. 101, para. 140).

                        6. Although the issue of jus standi had not been explicitly raised as an
                     issue by the parties at the time of the 1996 Judgment, the Court in the

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                     2007 Judgment took the position that it had been decided by the Court
                     because such a determination on the standing of the Respondent was a
                     necessary prerequisite to the Court’s decision to reject the preliminary
                     objections of the Respondent on jurisdiction ratione personae, ratione
                     materiae, and ratione temporis (see for details, I.C.J. Reports 2007(I),
                     separate opinion of Judge Owada, p. 296, para. 33).
                        7. I refer to this case here because it presented a unique situation in
                     which the Court apparently took the position that an issue that had not
                     been raised by the parties nor expressly addressed in its previous Judg‑
                     ment had in fact been decided by the Court, despite a seemingly contradic‑
                     tory decision of the Court in the 2004 Legality of Use of Force cases. (It
                     is clear that this precedent did not constitute res judicata for the 2007 case,
                     though it could have had stare decisis implications for the 2007 issue
                     (Preliminary Objections, Judgment, I.C.J. Reports 2004 (III), p. 1337,
                     para. 76).) The issue of the jus standi of the Respondent in the Genocide
                     Convention case was thus determined to fall within the scope of res judi-
                     cata. However, this finding should be regarded as a unique exception
                     based on the specific structure of jurisdictional decisions.

                        8. These cases illustrate the complexity involved in determining what
                     falls within the scope of res judicata in a preceding judgment. In the pres‑
                     ent case, the crucial issue for the Court in ruling upon the third prelimi‑
                     nary objection of Colombia is therefore to determine whether or not there
                     was a final and conclusive decision binding upon the Parties in the opera‑
                     tive part of the 2012 Judgment read in the complex context surrounding
                     this issue, to the extent that it relates to the claim of the Republic of
                     Nicaragua concerning an extended continental shelf. In analysing this
                     issue, the Court may take into account, if necessary, the reasoning of the
                     motif as far as it is indispensable in understanding the dispositif. As the
                     Court has declared: “[I]f any question arises as to the scope of res judicata
                     attaching to a judgment, it must be determined in each case having regard
                     to the context in which the judgment was given”. (Application of the Con-
                     vention on the Prevention and Punishment of the Crime of Genocide (Bos-
                     nia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports
                     2007 (I), p. 95, para. 125). It is thus my view that in order to answer this
                     question, one must first delve into the context in which this newly refor‑
                     mulated claim of Nicaragua emerged in 2007, against which the relevant
                     statement in the operative part in question came to be adopted. Only then
                     can one correctly understand the relevant decision of the 2012 Judgment
                     in its operative part (para. 251 (3)) and the reasoning of the Court under‑
                     lying this decision on Nicaragua’s maritime entitlement claim.
                        9. It is thus my conclusion on this methodological issue that only by
                     examining the context in which the operative part of the 2012 Judgment
                     was developed, as well as the reasoning of the Court and the overall
                     structure of the Judgment, can one clarify the precise scope and the mean‑
                     ing of the 2012 Judgment and thus determine whether the claim presented

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                     by Nicaragua in the present case is admissible or whether it is barred by
                     the principle of res judicata.

                            B. The Background of the Court’s Decision in Its 2012 Judgment
                                      on the Reformulated Claim of Nicaragua
                       10. In order to clarify this situation, it seems necessary in my view to
                     recall the genesis of the present problem, which emanated from the evolv‑
                     ing claim of Nicaragua. Nicaragua introduced a reformulated claim on
                     the continental shelf after the Court’s 2007 Judgment on preliminary
                     objections, which now forms the basis of the third preliminary objection
                     of Colombia.
                       11. In its original Application of 6 December 2001 in the case concern‑
                     ing the Territorial and Maritime Dispute (Nicaragua v. Colombia), Nica‑
                     ragua as Applicant stated that :
                                “Accordingly, the Court is asked to adjudge and declare :
                            �����������������������������������������������������������������������������������������������������������������
                                Second, in the light of the determinations concerning title requested
                            above, the Court is asked further to determine the course of the single
                            maritime boundary between the areas of continental shelf and exclu‑
                            sive economic zone appertaining respectively to Nicaragua and
                            Colombia, in accordance with equitable principles and relevant cir‑
                            cumstances recognized by general international law as applicable to
                            such a delimitation of a single maritime boundary.” (Territorial and
                            Maritime Dispute (Nicaragua v. Colombia), Application of the
                            Republic of Nicaragua, p. 8, para. 8.)
                     Nicaragua maintained the same formulation in its Memorial submitted
                     on 28 April 2003 (ibid., Memorial of the Republic of Nicaragua,
                     pp. 265‑267, para. 3.39).
                        12. However, Nicaragua suddenly changed its submissions in its Reply
                     of 18 September 2009 to what came to be known as submission I (3). The
                     final submissions of the Applicant, as presented orally at the conclusion
                     of the oral proceedings held on 1 May 2012, thus expressed Nicaragua’s
                     claim as follows :
                               “I. May it please the Court to adjudge and declare that :
                           �����������������������������������������������������������������������������������������������������������������
                          (3) The appropriate form of delimitation, within the geographical
                                 and legal framework constituted by the mainland coasts of Nic‑
                                 aragua and Colombia, is a continental shelf boundary dividing by
                                 equal parts the overlapping entitlements to a continental shelf of
                                 both Parties.” (Territorial and Maritime Dispute (Nicaragua v.
                                 Colombia), Judgment, I.C.J. Reports 2012 (II), p. 636, para. 17.)

                       13. Colombia as Respondent lodged an objection to this, charging that
                     this newly reformulated claim of Nicaragua “fundamentally changed the

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                     subject‑matter of the dispute which Nicaragua originally asked the Court
                     to decide” and asserted that this claim was inadmissible (CR 2012/12,
                     p. 44, para. 2 (Bundy)). It was contended, notably, that this radical
                     change in the Applicant’s position took its concrete form only in late 2007,
                     more than six years after the original dispute had been submitted, osten‑
                     sibly in connection with the 2007 Judgment of the Court on preliminary
                     objections, and that this change radically transformed the nature of the
                     claim (Territorial and Maritime Dispute (Nicaragua v. Colombia) Pre-
                     liminary Objections, Judgment, I.C.J. Reports 2007 (II)).
                        14. In its 2012 Judgment, however, the Court decided to find admissible
                          “the Republic of Nicaragua’s claim contained in its final submis‑
                          sion I (3) requesting the Court to adjudge and to declare that ‘[t]he
                          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. 719, para. 251 (2)).

                       15. As a participating judge in this Judgment, I voted against this find‑
                     ing of the Court. As I stated in my dissenting opinion, my position was that
                          “[t]he essence of the situation in the present case is that the Applicant
                          attempted to replace [rather than reformulate] the original formula‑
                          tion of the claim submitted to the Court in its Application by a newly
                          formulated, ostensibly different, claim relating to the existing dispute”
                          (ibid., dissenting opinion of Judge Owada, p. 722, para. 6).

                        16. The significant element of the Judgment of the Court on this point is
                     that the Court decided that “[t]he new submission thus still concerns the
                     delimitation of the continental shelf, although on different legal grounds”
                     (ibid., p. 665, para. 111). The logical conclusion stemming from this deci‑
                     sion of the Court is therefore that, by accepting the position that Nicara‑
                     gua’s submission was admissible, the Court must be regarded as having
                     taken the position that all of the issues contained in the newly reformulated
                     claim would have to be squarely addressed on their merits in the Judgment.

                           C. What the Court Has Decided in Fact in Its 2012 Judgment
                        17. The Court can thus be seen to have accepted the newly reformu‑
                     lated claim of the Applicant as procedurally admissible in the 2012 Judg‑
                     ment, with its legal implication that the substance of the newly
                     reformulated claim of Nicaragua should fall within the purview of its
                     Judgment on the merits. The Court, however, could not, and did not in
                     fact, examine the substance of Nicaragua’s claim for an extended conti‑
                     nental shelf on its merits. Indeed, the final text of the 2012 Judgment
                     clearly reveals that the Court ultimately concluded that “it was not in a

                     72

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                     position” at that stage of the proceedings to examine the substance of the
                     merits of the claim (I.C.J. Reports 2012 (II), p. 669, para. 129). I wish to
                     raise and examine several reasons why it could not and did not in fact
                     come to a final decision on the merits on this issue.

                     (i) The reasoning contained in Part IV of the Judgment
                        18. The position of the Court is apparent first of all in the reasoning con‑
                     tained in Part IV of the Judgment. The Court, having concluded in Part III
                     that Nicaragua’s claim for the delimitation of a continental shelf beyond
                     200 nautical miles was admissible, proceeded on this basis to its “[c]onsider‑
                     ation” of this claim (ibid., p. 665). It is significant to note, however, that in
                     embarking upon its “consideration” of this claim on the merits, the Court
                     immediately proceeded to declare that it was turning “to the question
                     whether it is in a position to determine” the continental shelf boundary pro‑
                     posed by Nicaragua (ibid., p. 665, para. 113 ; emphasis added).
                        19. These introductory remarks would seem to signal that the Court
                     was not necessarily prepared to enter into a thorough examination of the
                     issues required in order to reach a final determination on the substantive
                     merits. It is true that the Judgment introduced and laid out the arguments
                     advanced by the Parties. However, it is clear that it did not engage in an
                     independent analysis of these arguments. The Judgment recounted cer‑
                     tain areas of agreement between the Parties as well as the principal argu‑
                     ments of Nicaragua related to the substance of the claim for an extended
                     continental shelf (ibid., pp. 666‑667, paras. 119‑121) and the arguments of
                     Colombia in rebuttal (ibid., pp. 667‑668, paras. 122‑124). Specifically, the
                     Judgment recalled the claims asserted by the Parties with respect to:
                     (a) the existence, as a matter of fact, of the extended continental shelf as
                     a natural prolongation of the Nicaraguan mainland into the Caribbean
                     Sea; (b) the applicability of the procedures of Article 76 of the Law of the
                     Sea Convention ; and (c) the methodology to be applied for the delimita‑
                     tion of the overlapping area of the continental shelf, with one based on
                     the natural prolongation criterion and the other based on the distance
                     criterion. However, the Court did not engage in an examination and ana
                     lysis of these claims in order to reach its own conclusion on these concrete
                     issues arising out of the argument of the Parties.

                        20. It is interesting to note that the Court’s treatment of the claim of
                     Nicaragua in the 2012 Judgment was not confined to a simple recitation
                     of the arguments advanced by the Parties. Thus, the Judgment, based on
                     the submission of Nicaragua in support of its claim for the delimitation
                     of a continental shelf extending beyond 200 nautical miles, confined itself
                     to confirming that there had not been any “case in which a court or a
                     tribunal was requested to determine the outer limits of the continental
                     shelf beyond 200 nautical miles”, noting in particular that Nicaragua had
                     itself failed to establish that any such precedents existed (ibid., p. 668,
                     para. 125).

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                        21. It is obvious that for a claim such as the one at issue in this case,
                     namely a claim concerning an entitlement to a continental shelf extending
                     beyond 200 nautical miles, a number of complex facts and intricate legal
                     standards must be examined and addressed in order to conclusively
                     resolve the rights and duties at issue. A typical examination in this respect
                     should entail, inter alia: (a) a detailed inspection of the geological and
                     geomorphological features of the disputed area to establish the existence
                     of overlapping entitlements of Nicaragua and Colombia; (b) the verifica‑
                     tion of the existence and delineation of the continental margin as claimed
                     by Nicaragua; (c) the acceptability of a median line as the criterion for
                     delimitation between Nicaragua (based on the natural prolongation prin‑
                     ciple) and Colombia (based on the distance principle) such as the one
                     proposed by Nicaragua for the delimitation of the overlapping entitle‑
                     ments; (d) the applicability or non-    applicability of Article 76 of the
                     United Nations Convention on the Law of the Sea as a whole, covering
                     the provisions contained in its paragraphs (4) to (9) ; and finally (e) the
                     requirement vel non of the review by the Commission on the Limits of the
                     Continental Shelf (CLCS) of such a claim preceding the delimitation by
                     the Court.
                        22. However, in the 2012 Judgment, following a discussion of the argu‑
                     ments advanced by the Parties, and without further analysis of these
                     points, the Court curtly concluded that it was “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” (I.C.J. Reports 2012 (II), p. 669, para. 129). This pronouncement was
                     made in the absence of any substantive analysis of the factual and legal
                     issues that would have been necessary for resolving the claim of an enti‑
                     tlement. There exists only a brief reference to a factual element that
                     “Nicaragua, in the present proceedings, has not established that it has a
                     continental margin that extends [beyond two hundred nautical miles]”,
                     without any indication of the legal implication of this statement in the
                     context of the burden of proof (ibid.).
                        23. Seen in this way, the Court’s reference to Nicaragua’s obligation
                     under Article 76 of UNCLOS should not, in my view, be seen as merely
                     a procedural requirement. The reasoning of the Court instead makes
                     clear that the condition of the submission of information to CLCS
                     imposed by Article 76 is instead a substantive element that is fundamen‑
                     tally necessary in order for the Court to decide on the issues raised by the
                     Parties. A delimitation cannot be effected in the absence of the existence
                     of overlapping entitlements, which in this case requires the establishment
                     by Nicaragua of its entitlement to a continental shelf extending beyond
                     200 nautical miles. This can and must be achieved by the submission of
                     detailed information to the CLCS, which is not — as some might sug‑
                     gest — a mere procedural requirement.

                       24. In this situation, it is in my view impossible to draw from Part IV of
                     the 2012 Judgment a far‑reaching conclusion that the Court made a final

                     74

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                     and binding decision on the merits that can be said to constitute res judi-
                     cata. On the contrary, the Judgment proceeded to expressly declare that
                             “In view of the above, the Court need not address any other argu‑
                          ments developed by the Parties, including the argument as to whether
                          a delimitation of overlapping entitlements which involves an extended
                          continental shelf of one party can affect a 200‑nautical‑mile entitle‑
                          ment to the continental shelf of another party.” (I.C.J. Reports
                          2012 (II), pp. 669‑670, para. 130.)

                     It was on the basis of this reasoning that the Court stated in the operative
                     part of the 2012 Judgment that “it cannot uphold the Republic of Nica‑
                     ragua’s claim contained in its final submission I (3)” reformulating the
                     same conclusion as was made at the end of Part IV of the Judgment (ibid.,
                     p. 719, para. 251 (3)).

                     (ii) The structure of the 2012 Judgment
                        25. Second, the position of the Court is apparent in the distinction that
                     the Judgment makes between the Court’s treatment of (a) Nicaragua’s
                     request for the delimitation of its continental shelf extending beyond two
                     hundred nautical miles of its coast (Part IV), and (b) the delimitation of
                     the maritime boundary between the overlapping entitlements emanating
                     from Nicaragua’s mainland and Colombia’s islands (Part V) in the
                     2012 Judgment.
                        26. The structure of the 2012 Judgment — and particularly the separa‑
                     tion and juxtaposition of the analysis and decisions contained in Parts IV
                     and V — demonstrates that the Court did not make a final and definitive
                     determination of the merits as far as Nicaragua’s submission I (3) is con‑
                     cerned. As discussed above, in Part IV of the Judgment, the Court delib‑
                     erately limited its examination of the issue to an analysis of the legal
                     argumentation advanced by the Parties. In doing so, the Court not only
                     avoided a substantive examination on its own of the claim on the merits,
                     but also formally separated this part of its analysis from the more exten‑
                     sive examination of the claim relating to the delimitation of the relevant
                     maritime area lying between the two opposing States contained in Part V
                     of the Judgment.
                        27. This demonstrates a stark contrast in the treatment of the Court
                     between the two distinctive categories of claims concerning the continen‑
                     tal shelf covered in Parts IV and V of the Judgment. Part V, aptly entitled
                     “Maritime Boundary”, contains a comprehensive discussion of the delim‑
                     itation of entitlements on the merits. It would seem that rather than
                     addressing submission I (3) on its merits, which involved a delimitation of
                     a maritime boundary in the form of a median line between the mainland
                     coasts of the two Parties, the Court instead concerned itself only with the
                     delimitation of a boundary between the overlapping entitlements of Nica‑
                     ragua based on its mainland coast and of Colombia based on its islands

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                     off the coast of Nicaragua. It has to be stressed that these two parallel
                     claims of Nicaragua, classified as claims (a) and (b) above (para. 25),
                     entail totally distinct geological and geomorphological features and
                     required the Court to apply entirely different rules of customary interna‑
                     tional law.

                        28. In Part V, the Court did scrutinize the evidence presented by the
                     Parties and drew the maritime boundary in accordance with the well‑
                     established jurisprudence of the Court relating to the delimitation of the
                     continental shelf between States with overlapping entitlements, namely
                     the three‑step approach articulated in the case concerning the Maritime
                     Delimitation in the Black Sea (Romania v. Ukraine) (Judgment,
                     I.C.J. Reports 2009, p. 89, para. 78). It is clear that the conclusion that
                     the Court stated in operative paragraph 251 (4) of the 2012 Judgment is a
                     final and binding decision of the Court, thus constituting res judicata. It
                     seems equally clear that the statement of the Court in operative para‑
                     graph 251 (3), read together with the reasoning contained in Part IV, is
                     not a conclusive determination of the subject‑matter requested by Nicara‑
                     gua in its submission I (3) and cannot be regarded as constituting res
                     judicata (Territorial and Maritime Dispute (Nicaragua v. Colombia),
                     Judgment, I.C.J. Reports 2012 (II), p. 719, para. 251 (3)).

                       29. In light of all of these considerations, one is bound to come to the
                     conclusion that the Court deliberately divided these issues between
                     Parts IV and V because it did not wish to engage in a substantive exami‑
                     nation of the merits on Nicaragua’s submission I (3) at that time.

                     (iii) The burden of proof
                        30. Finally, it might be suggested by some that the Court did decide on
                     submission I (3) on the merits in the 2012 Judgment and that, in doing so,
                     it rejected the claim on the ground that the Applicant failed to meet its
                     burden of proof. It cannot be denied that in the strictly adversarial frame‑
                     work of litigation traditionally accepted by the Court — whether this is a
                     commendable approach for the proceedings of the International Court of
                     Justice is a different matter — the burden of proof, and thus the burden
                     of risk, falls heavily on the shoulders of the Applicant (onus probandi
                     incumbit actori) (Pulp Mills on the River Uruguay (Argentina v. Uru-
                     guay), Judgment, I.C.J. Reports 2010 (I), p. 71, para. 162). It can be
                     accepted on this basis that the principle exists that it is the responsibility
                     of the Applicant to substantiate its claim, such that the burden of proof
                     plays an extremely important role, with the result that the failure of the
                     Applicant to establish a single, crucial point can prove fatal under certain

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                     circumstances to its cause of action. The question is whether, when exam‑
                     ined in this complex context that I have tried to depict, the present case
                     falls within the framework of this reasoning.
                        31. It is submitted that it is wrong to regard the issue of the burden of
                     proof as such an essential element in the present case, when, as a matter
                     of fact, the Court in the 2012 Judgment went no further than to observe
                     that “Nicaragua, in the present proceedings, has not established that it
                     has a continental margin that extends far enough to overlap with Colom‑
                     bia’s 200‑nautical‑mile entitlement to the continental shelf” (Territorial
                     and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports
                     2012 (II), p. 669, para. 129). To conclude, on the basis of such a curt
                     statement of facts, that Nicaragua had failed in law to meet its heavy
                     burden of proof is to my mind tantamount to “reading too much” into
                     this dictum of the Judgment — particularly when this remark could legit‑
                     imately be interpreted as support for the Court’s view that it was, at that
                     time, “not in a position” to proceed further to the merits of the claim in
                     the absence of complete submissions to the CLCS. It would seem clear
                     from this context that much more than the insufficiency or absence of
                     evidence was at issue in the 2012 Judgment of the Court. It is for this
                     reason that I take the view that the third preliminary objection of Colom‑
                     bia must be rejected.

                                                    D. Conclusion
                       32. In conclusion, when presented with a question about the binding
                     force of a previous Judgment, the Court must
                          “distinguish between, first, the issues which have been decided with
                          the force of res judicata, or which are necessarily entailed in the deci‑
                          sion of those issues ; secondly any peripheral or subsidiary matters,
                          or obiter dicta ; and finally matters which have not been ruled upon
                          at all” (Application of the Convention on the Prevention and Punish-
                          ment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
                          Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 95, para. 126).
                        Although the 2012 Judgment of the Court may have created some con‑
                     fusion in the language it used in the dispositif, the context in which Nica‑
                     ragua originally requested the delimitation of a continental shelf extending
                     beyond 200 nautical miles, as well as the manner in which this claim was
                     treated by the Court in the 2012 Judgment, leads me to the conclusion
                     that the Court did not reach a final and definitive determination that
                     would bind the Parties as res judicata. In light of this contextual back‑
                     ground, it is my view that it is wrong to conclude in an automatic and
                     facile manner that the Court disposed of Nicaraguan submission I (3) in
                     the 2012 Judgment simply because of the statement in the dispositif that
                     “[the Court] cannot uphold the Republic of Nicaragua’s claim contained
                     in its final submission I (3)”, whether for the reason that Nicaragua failed

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                     174 	 delimitation of the continental shelf (sep. op. owada)

                     to provide sufficient evidence to substantiate its claim or for any other
                     reason (Territorial and Maritime Dispute (Nicaragua v. Colombia), Judg-
                     ment, I.C.J. Reports 2012 (II), p. 719, para. 251 (3)). The Court did not
                     reject the claim on the merits.

                                         II. The Opposability of UNCLOS
                                             by Colombia to Nicaragua

                        33. In addition to these points, I wish to touch upon an issue relating
                     to the approach of the Court to the role of CLCS, which is especially
                     relevant to the fifth preliminary objection of Colombia. Since I agree with
                     the reasoning expressed by the Court in the present Judgment, this point
                     may be somewhat otiose, but it is important to review this point as a mat‑
                     ter of principle with respect to the applicable law in the present case.
                     In its fifth preliminary objection, Colombia argues that Nicaragua’s
                     request for a delimitation on the basis of its entitlement to an extended
                     continental shelf is inadmissible because Nicaragua has failed to secure
                     the recommendations of the CLCS required by Article 76 of UNCLOS.
                     The question is whether the obligations contained in Article 76 are oppos‑
                     able to Nicaragua on the part of Colombia, which is not a party to
                     UNCLOS.

                        34. It is well established that, pursuant to Article 26 of the Vienna Con‑
                     vention on the Law of Treaties, “[e]very treaty in force is binding upon the
                     parties to it and must be performed by them in good faith”. A necessary
                     corollary to this pronouncement, contained in Article 34 of the Vienna
                     Convention, is the rule that “[a] treaty does not create either obligations or
                     rights for a third State without its consent”, or the principle of res inter
                     alios acta. Even before the adoption of the Vienna Convention, this rule
                     found expression in the jurisprudence of the Court. The Permanent Court
                     of International Justice held that “[a] treaty only creates law as between
                     the States which are parties to it ; in case of doubt, no rights can be deduced
                     from it in favour of third States” (Certain German Interests in Polish Upper
                     Silesia, Merits, Judgment No. 7, 1926, P.C.I.J., Series A, No. 7, p. 29). In
                     the case concerning the North Sea Continental Shelf (Federal Republic of
                     Germany/Denmark ; Federal Republic of Germany/Netherlands), the Court
                     was faced with the question as to whether Article 6 of the Geneva Conven‑
                     tion on the Continental Shelf — and specifically the rules on delimitation
                     of the continental shelf between the adjacent States — was opposable to
                     the Federal Republic of Germany, which was not a party to the Conven‑
                     tion. The Court observed that, because Germany had signed but not rati‑
                     fied the Geneva Convention, Article 6 “is not, as such, applicable to the
                     delimitations involved in the present proceedings” and that the Conven‑
                     tion “is not opposable to the Federal Republic [of Germany]” (North Sea
                     Continental Shelf (Federal Republic of Germany/Denmark ; Federal Repub-
                     lic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 27, para. 34

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                     175 	 delimitation of the continental shelf (sep. op. owada)

                     and p. 46, para. 83). In other words, a convention ratified by one State is
                     not opposable to a third State.
                         35. In the present context, the Court is faced with a situation in which
                     Colombia, a non‑party to the Convention, seeks to invoke the provisions of
                     Article 76 of UNCLOS on Nicaragua, which is a State party. Colombia
                     appears to be claiming, without being a party to the Convention, that Nica‑
                     ragua, a State party, is under the obligation to carry out the provisions of
                     UNCLOS without being subject to its many obligations. Although Nica‑
                     ragua is not a party to the Vienna Convention of the Law of Treaties, and
                     though this Court has not previously affirmed the status of Article 34 of
                     the Vienna Convention as reflecting a customary rule of international
                     law, its previous jurisprudence supports the view that Colombia cannot
                     invoke Article 76 as an argument opposable to Nicaragua.
                         36. Of course, there are other means by which a rule codified by an
                     international agreement can be opposable to a State which has not rati‑
                     fied that agreement. That is to say that such a rule may be applied to and
                     bind a third State when the rule at issue is a rule of customary interna‑
                     tional law. Thus the important question for the purpose of this case is
                     whether the provisions of UNCLOS relied on by Colombia in its fifth
                     preliminary objection, i.e., Article 76 in its entirety, could be opposable to
                     Nicaragua.
                         37. Legally, it would be a totally different situation for the Court to
                     prescribe as it did in its 2012 Judgment that Nicaragua as a party to the
                     Convention has to carry out its obligation under these provisions of Arti‑
                     cle 76, in order for Nicaragua to establish that it indeed has an extended
                     continental shelf which goes beyond 200 miles of its mainland coast and
                     which may create overlapping entitlements to the continental shelf with
                     Colombia, and ask Nicaragua to comply with its obligation before the
                     Court can proceed further. In the 2012 Judgment, the Court identified
                     this issue and stated that “since Colombia is not a party to UNCLOS,
                     only customary international law may apply in respect to the maritime
                     delimitation requested by Nicaragua”, but did not go further than stating
                     that “the definition of the continental shelf set out in Article 76, para‑
                     graph 1, of UNCLOS forms part of customary international law”. It
                     categorically stated that “it does not need to decide whether other provi‑
                      sions of Article 76 of UNCLOS form part of customary international
                      law” (Territorial and Maritime Dispute (Nicaragua v. Colombia),
                      Judgment, I.C.J. Reports 2012 (II), p. 666, paras. 114, 118).

                        38. On the basis of this logic, the present Judgment of the Court, which
                     in my view represents an accurate assessment of the 2012 Judgment, pro‑
                     ceeds to state that the Court in the 2012 Judgment did not reject Nicara‑
                     gua’s claim to an extended continental shelf on the merits, but instead
                     found that it was “not in a position” to definitively decide this claim
                     because of Nicaragua’s failure to submit adequate information to the
                     CLCS pursuant to Article 76, paragraph 8, of UNCLOS. In doing so, the
                     Court in 2012 did not affirm that this provision stood as a customary rule

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                     176 	 delimitation of the continental shelf (sep. op. owada)

                     of international law, even though it had decided earlier in the 2012 Judg‑
                     ment that the applicable law was customary international law. While the
                     Court referred to its dictum in the case concerning the Territorial and
                     Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea
                     (Nicaragua v. Honduras), it involved a dispute between two States parties
                     to UNCLOS and thus entailed the application of the treaty law. It is a
                     different proposition for the Court to state that Nicaragua is bound by
                     Article 76 of UNCLOS, as a party to the Convention, irrespective of
                     whether Colombia is also a party. The Court, emphasizing that the Con‑
                     vention “is intended to establish ‘a legal order for the seas and oceans’”,
                     did this and concluded that “[g]iven the object and purpose of UNCLOS,
                     as stipulated in its Preamble, the fact that Colombia is not a party thereto
                     does not relieve Nicaragua of its obligations under Article 76 of that Con‑
                     vention” (I.C.J. Reports 2012 (II), p. 669, para. 126).

                        39. This can be accepted a correct statement of the law, as far as Nica‑
                     ragua is concerned in its relationship with the Court. But when it comes
                     to the question as to whether Colombia, as a State not a party to the
                     Convention, can oppose Nicaragua in terms of the latter’s non-compliance
                     with the provisions of Article 76, this becomes an entirely different issue
                     of applicable law. In any event, the important point is that, at the present
                     stage of the proceedings, the Court is answering this question neither in
                     an affirmative way nor in a negative way. While I concur with the reason‑
                     ing of the Court in rejecting the fifth preliminary objection of Colombia,
                     it appears to me there is yet another reason to reject this objection : the
                     relevant provisions of Article 76 of UNCLOS are not opposable by
                     Colombia to Nicaragua, unless Colombia can establish that the rules con‑
                     tained in Article 76 are rules of customary international law.

                                                                   (Signed) Hisashi Owada.

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