                     177

                               SEPARATE OPINION OF JUDGE GREENWOOD

                        Nature of res judicata in international law — What creates a res judicata —
                     Effects — Scope of the 2012 Judgment — Nature of Nicaragua’s claim in relation
                     to submission I (3) — Silence of the 2012 Judgment regarding Nicaragua’s claims
                     to a continental shelf more than 200 nautical miles from the mainland coasts of
                     both Nicaragua and Colombia — Absence of any ruling by the Court on the merits
                     of that claim — Whether Nicaragua’s claim to a continental shelf overlapping with
                     Colombia’s entitlement to a continental shelf extending 200 nautical miles from
                     Colombia’s mainland coast is barred by res judicata.

                        1. The closeness of the vote on Colombia’s third preliminary objection
                     shows that the issues presented by that objection have not been easy for
                     the Court to resolve. For that reason, and because I have the misfortune
                     to disagree with several of my colleagues, I have thought it right to set out
                     in this separate opinion why I agree with the decision to reject Colombia’s
                     res judicata argument.

                                          I. The Doctrine of Res Judicata
                                               in International Law

                        2. Although the doctrine of res judicata has its origins in the general
                     principles of law (see the opinion of Judge Anzilotti in Interpretation of
                     Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927,
                     P.C.I.J., Series A, No. 13, p. 27, and Bin Cheng, General Principles of
                     Law as Applied by International Court and Tribunals, 1953, pp. 336‑372),
                     it is now firmly established in the jurisprudence of the Court (see, in par‑
                     ticular, Request for Interpretation of the Judgment of 11 June 1998 in the
                     Case concerning the Land and Maritime Boundary between Cameroon
                     and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nigeria v.
                     Cameroon), Judgment, I.C.J. Reports 1999 (I), p. 36, para. 12 and 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), pp. 90‑91, paras. 115‑116). Res judicata is also
                     well established in the case law of other international tribunals (see, e.g.,
                     the Final Award of the Arbitral Tribunal in the Trail Smelter case,
                     11 March 1941 (United Nations, Reports of International Arbitral
                     Awards (RIAA), Vol. III, pp. 1950‑1951), where res judicata is described
                     as “an essential and settled rule of international law”).

                     81

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                       3. In its Judgment in the Bosnia case, the Court explained the rationale
                     for the principle of res judicata in the following terms :

                             “Two purposes, one general, the other specific, underlie the princi‑
                          ple of res judicata, internationally as nationally. First, the stability of
                          legal relations requires that litigation come to an end. The Court’s
                          function, according to Article 38 of its Statute, is to ‘decide’, that is,
                          to bring to an end ‘such disputes as are submitted to it’. Secondly, it
                          is in the interest of each party that an issue which has already been
                          adjudicated in favour of that party be not argued again. Article 60 of
                          the Statute articulates this finality of judgments. Depriving a litigant
                          of the benefit of a judgment it has already obtained must in general
                          be seen as a breach of the principles governing the legal settlement of
                          disputes.” (Application of the Convention on the Prevention and Pun-
                          ishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia
                          and Montenegro), Judgment, I.C.J. Reports 2007 (I), pp. 90‑91,
                          para. 116.)

                        4. It is therefore unnecessary to examine the not inconsiderable differ‑
                     ences which exist between different national legal systems regarding the
                     concept of res judicata (as to which, see Albrecht Zuener and Harald Koch,
                     “Effects of Judgments : Res Judicata” in Mauro Cappelletti (ed.), Interna-
                     tional Encyclopaedia of Comparative Law, Vol. XVI, 2014, Chapter 9). It
                     is the principle of res judicata in international law, in particular as devel‑
                     oped in the jurisprudence of the Court, which has to be applied. As the
                     Judgment in the present case makes clear, res judicata applies only where
                     the parties, the object and the legal ground (i.e., the personae, the petitum
                     and the causa petendi) are the same. However, the identity of these three
                     elements is a necessary, but not a sufficient, condition for the application
                     of res judicata. It is also essential that the matter at issue must have been
                     decided in the earlier proceedings. As the Court stated in the Bosnia case:
                     “If a matter has not in fact been determined, expressly or by necessary
                     implication, then no force of res judicata attaches to it ; and a general
                     finding may have to be read in context in order to ascertain whether a
                     particular matter is or is not contained in it.” (I.C.J. Reports 2007 (I),
                     p. 95, para. 126.)

                        5. Once a decision of the Court has rendered a matter res judicata, the
                     consequences are far‑reaching. As between the parties to that decision,
                     the matter is settled and may not be reopened in the Court or in any other
                     international court or tribunal 1. However, the effects are not confined to
                     litigation. As the Court explained in the Bosnia case, the doctrine of res

                       1 Indeed, a judgment of an international court or tribunal creates a res judicata which

                     may not be reopened between the same parties in a national court (see, e.g., the judg‑

                     82

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                     179 	delimitation of the continental shelf (sep. op. greenwood)

                     judicata is a corollary of the rules in Articles 59 of the Statute, that judg‑
                     ments of the Court are binding on the parties, and Article 60, that they
                     are final and without appeal. One consequence is that the effects of
                     res judicata are substantive, rather than procedural. Since the decision on
                     the point in issue is binding on the parties, neither party is entitled to call
                     it into question as a matter of law. That is true of self‑help measures, just
                     as much as of litigation. Thus, if a court or tribunal, in a case between
                     two States, determines that one of those States has no entitlement to a
                     continental shelf in a particular area, international law does not permit
                     that State thereafter to assert such an entitlement in that area vis‑à‑vis the
                     other State party. As the French‑Venezuelan Mixed Claims Commission
                     put it, “a right, question, or fact distinctly put in issue and directly deter-
                     mined by a court of competent jurisdiction, as a ground of recovery, can‑
                     not be disputed” (Company General of the Orinoco Case, 31 July 1905
                     (United Nations, Reports of International Arbitral Awards (RIAA),
                     Vol. X, p. 276) ; original emphasis). That principle applies as much to a
                     ruling on the burden of proof as to a ruling on law. If the legal entitle‑
                     ment claimed by a party is dependent upon the existence of facts the bur‑
                     den of proving which rests on that party, then a finding that that party
                     has not discharged its burden of proof amounts to a determination of
                     whether or not it has that entitlement. The question of entitlement (or the
                     lack thereof) will thenceforth be res judicata between those parties.

                        6. That is precisely the effect, according to Colombia, of the Court’s
                     2012 Judgment. Colombia maintains that the Court there decided that
                     Nicaragua had failed to discharge its burden of proving that it had an
                     entitlement to a continental shelf more than 200 nautical miles from the
                     Nicaraguan mainland (Preliminary Objections of Colombia, para. 5.31).
                     If that is correct, then the question of such entitlement is settled, between
                     Nicaragua and Colombia, in perpetuity. Not only can Nicaragua not
                     contest this issue with Colombia in these, or any subsequent, proceedings
                     in the Court or any other competent tribunal, it cannot rely upon an
                     assertion of an entitlement to a shelf beyond 200 nautical miles as the
                     basis for alleging the illegality of Colombian conduct in the area in ques‑
                     tion or taking measures in response thereto. Such a judgment would not
                     prevent Nicaragua from taking forward its submission to the Commis‑

                     ment of the High Court in England in Dallal v. Bank Mellat (1986), QB 441 ; ILR (1985),
                     Vol. 75, p. 151, which decided that a decision of the Iran‑United States Claims Tribunal
                     created a res judicata which precluded a claimant from pursuing in the English courts a
                     claim which had been rejected by the Tribunal). It will, of course, be very rare that the
                     parties in national proceedings will be the same as those in international proceedings, espe‑
                     cially where the international proceedings take place between States.

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                     sion on the Limits of the Continental Shelf (“CLCS”), since the CLCS
                     process is about establishing the outer limits of the continental margin
                     vis‑à‑vis all parties to UNCLOS. However, no outer limits to a continen‑
                     tal shelf beyond 200 nautical miles from the Nicaraguan mainland which
                     Nicaragua might establish — whether or not on the basis of any recom‑
                     mendations from the CLCS — could be opposable to Colombia. Since a
                     judgment creates res judicata only as between the parties to the case in
                     which that judgment is given, the 2012 Judgment could not prevent Nica‑
                     ragua from asserting an entitlement to a continental shelf beyond 200 nau‑
                     tical miles against other neighbouring States. As between Nicaragua and
                     Colombia, however, Nicaragua would have no scope for any such asser‑
                     tion.

                                       II. The Scope of the 2012 Judgment

                        7. Strictly speaking, it is only the dispositif of a judgment which can
                     have the force of res judicata. The relevant paragraph of the dispositif in
                     the 2012 Judgment is paragraph 3, in which the Court unanimously found
                     that “it cannot uphold the Republic of Nicaragua’s claim contained in its
                     final submission I (3)” (I.C.J. Reports 2012 (II), p. 719, para. 251 (3)). In
                     the present proceedings, both Parties have spent much of their time debat‑
                     ing the precise meaning of the phrase “cannot uphold”. Nicaragua main‑
                     tains that it was of the utmost significance that the Court chose to use
                     that term, rather than saying that it “rejects” submission I (3). For Nica‑
                     ragua, that choice indicates that the Court was not making a decision on
                     the merits in relation to the submission. Colombia, on the other hand,
                     contends that “cannot uphold” is synonymous with “rejects”. In support
                     of that argument it invokes three judgments in which, it maintains, the
                     Court used “cannot uphold” to mean “rejects” (Application for Revision
                     and Interpretation of the Judgment of 24 February 1982 in the Case con-
                     cerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Tuni-
                     sia v. Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1985, p. 192 ;
                     Oil Platforms (Islamic Republic of Iran v. United States of America),
                     Judgment, I.C.J. Reports 2003, p. 161 ; Frontier Dispute (Burkina Faso/
                     Niger), Judgment, I.C.J. Reports 2013, p. 44).
                        8. The Court — rightly, in my opinion — has concluded that neither
                     analysis of the 2012 dispositif is persuasive (see paragraph 74 of the Judg‑
                     ment). Nicaragua places far too much emphasis on a choice of words
                     which cannot be said, in and of itself, to compel the conclusion that the
                     Court did not make a determination on the merits. Colombia, on the
                     other hand, is too quick to draw from the three judgments to which it
                     refers the conclusion that the Court uses “cannot uphold” and “rejects”
                     interchangeably. The most recent of those judgments, that in Burkina Faso/
                     Niger, does not assist Colombia’s argument. The reason why the Court

                     84

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                     181 	delimitation of the continental shelf (sep. op. greenwood)

                     found that it could not uphold the relevant submissions of Burkina Faso
                     was not that Burkina Faso had failed to establish a factual predicate for
                     its claims but that there was no dispute between Burkina Faso and Niger
                     on the section of the boundary to which those submissions related and
                     thus the primary condition for the Court to exercise its judicial function
                     was absent (I.C.J. Reports 2013, p. 71, para. 52). In the Tunisia v. Libya
                     case, the Court used the phrase in the particular context of the interpreta‑
                     tion of a previous judgment (I.C.J. Reports 1985, pp. 219‑220, para. 50).
                     Oil Platforms affords more support to Colombia’s argument but still falls
                     short of demonstrating that “cannot uphold” is necessarily to be equated
                     with a rejection on the merits.

                       9. A more fruitful line of inquiry — which is pursued in the present
                     Judgment — is to examine why the Court decided that it could not uphold
                     submission I (3). In that submission, Nicaragua asked the Court to
                     adjudge and declare that :
                             “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.” (Final
                          submissions of Nicaragua, I.C.J. Reports 2012 (II), p. 636, para. 17 ;
                          emphasis added.)
                     The claim thus stated pitched Nicaragua’s claim to an outer, or extended,
                     continental shelf beyond 200 nautical miles from the Nicaraguan main‑
                     land coast against Colombia’s entitlement to a continental shelf extending
                     200 nautical miles from the mainland coast of Colombia (see sketch‑map
                     No. 2, ibid., p. 663).
                        10. In this context, it is important to understand the unusual geo‑
                     graphical framework within which Nicaragua’s claim was advanced. The
                     mainland coasts of Nicaragua (in the west) and Colombia (in the east)
                     face one another and are “significantly more than 400 nautical miles
                     apart” (ibid., p. 670, para. 132). Nicaragua’s claim to an outer continental
                     shelf extended eastwards from the line 200 nautical miles from the Nica‑
                     raguan mainland coast (at which the delimitation effected by the
                     2012 Judgment stopped ; see ibid., p. 683, para. 159 and p. 714, sketch‑map
                     No. 11) until it overlapped with the Colombian continental shelf and
                     exclusive economic zone extending 200 nautical miles westwards from the
                     Colombian mainland coast. It was this area of overlapping claims, within
                     200 nautical miles of the Colombian mainland coast, which submis‑
                     sion I (3) invited the Court to divide between the Parties by effecting a
                     delimitation based upon a division into equal parts (as is clear from
                     sketch‑map No. 2, ibid., p. 663). However, that was not the only area in
                     which the Nicaraguan claim to an outer continental shelf competed with
                     Colombian claims. In the area between the line 200 nautical miles from
                     the Nicaraguan mainland coast and the line 200 nautical miles from the
                     Colombian mainland coast, Nicaragua’s claim to an outer continental

                     85

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                     182 	delimitation of the continental shelf (sep. op. greenwood)

                     shelf competed with Colombia’s claims that the Colombian islands which
                     lie to the west of the line 200 nautical miles from the Nicaraguan main‑
                     land coast are entitled to a continental shelf and exclusive economic zone
                     extending 200 nautical miles from their east‑facing coasts. Nicaragua’s
                     submission I (3) did not directly address that overlap.

                        11. The Court’s conclusion regarding Nicaragua’s submission I (3) is
                     set out in paragraph 129 of the 2012 Judgment. It is the reasoning in this
                     paragraph which indicates the scope of paragraph 3 of the dispositif. In
                     paragraph 129, the Court states :
                          “since Nicaragua, in the present proceedings, has not established that
                          it has a continental 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 posi‑
                          tion to delimit the continental shelf boundary between Nicaragua and
                          Colombia, as requested by Nicaragua . . .” (I.C.J. Reports 2012 (II),
                          p. 669, para. 129 ; emphasis added).
                     In the present case, Colombia maintains that, in the 2012 Judgment, the
                     Court determined that “Nicaragua had not established any continental
                     shelf entitlement beyond 200 nautical miles from its baselines” and con‑
                     tends that “the Court concluded that there were no overlapping entitle‑
                     ments between the Parties situated more than 200 nautical miles from
                     Nicaragua’s baselines that could be delimited” (Preliminary Objections of
                     Colombia, para. 5.31). On that basis, Colombia argues that the whole of
                     Nicaragua’s claim in the present proceedings is barred by the res judicata
                     created by the 2012 Judgment.

                        12. That cannot be correct. Paragraph 129 of the 2012 Judgment is
                     expressly limited to Nicaragua’s claim to an outer continental shelf over‑
                     lapping with “Colombia’s 200‑nautical‑mile entitlement to the continen‑
                     tal shelf, measured from Colombia’s mainland coast” [emphasis added]. It
                     says nothing whatsoever about Nicaragua’s claim in the area lying more
                     than 200 nautical miles from the Colombian mainland coast but within
                     200 nautical miles of the Colombian islands. Whatever effect para‑
                     graph 129 and, therefore, paragraph 3 of the dispositif may have in rela‑
                     tion to the area within 200 nautical miles of the Colombian mainland
                     coast (a matter considered below), the complete silence regarding the area
                     more than 200 nautical miles from either mainland coast cannot be inter‑
                     preted as a decision regarding Nicaragua’s claims in that area. In the lan‑
                     guage of the Bosnia Judgment (quoted in paragraph 4, above), there is no
                     determination to which the force of res judicata could attach in relation to
                     those claims.

                     86

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                     183 	delimitation of the continental shelf (sep. op. greenwood)

                        13. In the present proceedings, Nicaragua is clearly seeking a delimita‑
                     tion between its claims and those of Colombia in that area. In its Applica‑
                     tion, Nicaragua requests the Court to adjudge and declare “the precise
                     course of the maritime boundary between Nicaragua and Colombia in the
                     areas of the continental shelf which appertain to each of them beyond the
                     boundaries determined by the Court in its Judgment of 19 November 2012”
                     (Application, p. 8, para. 12). Since Colombia lodged its preliminary objec‑
                     tions in the present case before Nicaragua had filed its Memorial (see para‑
                     graph 5 of the Judgment), the arguments on which Nicaragua bases this
                     claim have yet to be developed. Nevertheless, it is plain from the terms of
                     the passage quoted from the Application that this time Nicaragua is directly
                     seeking a delimitation in all areas in which its claim to an outer continental
                     shelf overlaps with Colombia’s 200‑nautical‑mile entitlements, irrespective
                     of whether those entitlements are measured from the Colombian mainland
                     coast (in the east) or the coasts of Colombia’s islands (in the west).
                        14. Accordingly, it seems to me plain that Colombia’s third prelimi‑
                     nary objection, based on the res judicata effect of the 2012 Judgment,
                     should be rejected with regard to Nicaragua’s claims in relation to the
                     area lying more than 200 nautical miles from the Colombian mainland
                     coast. On any analysis, the 2012 Judgment did not decide upon those
                     claims.

                        15. That leaves the question whether the 2012 Judgment contained a
                     decision regarding Nicaragua’s claim to an outer continental shelf over‑
                     lapping with “Colombia’s 200‑nautical‑mile entitlement to the continen‑
                     tal shelf, measured from Colombia’s mainland coast” which has the force
                     of res judicata and thus bars Nicaragua’s claim in respect of this area.
                     Colombia argues that the Court rejected Nicaragua’s submission I (3) on
                     the ground that Nicaragua had failed to discharge its burden of proving
                     that it had a continental margin which extended to within 200 nautical
                     miles of the Colombian mainland coast (Preliminary Objections of
                     Colombia, para. 5.30). If that was indeed the case, then, for the reasons
                     already discussed, the 2012 Judgment would amount to a finding that
                     Nicaragua did not possess an entitlement to a continental shelf within
                     200 nautical miles of the Colombian mainland coast (see paragraph 6,
                     above). That finding would have the force of res judicata.

                       16. Colombia’s argument derives some support from the French text of
                     paragraph 129 of the 2012 Judgment, the relevant part of which states that :
                          “le Nicaragua n’ayant pas, dans la présente instance, apporté la
                          preuve que sa marge continentale s’étend suffisamment loin pour
                          chevaucher le plateau continental dont la Colombie peut se prévaloir
                          sur 200 milles marins à partir de sa côte continentale, la Cour n’est
                          pas en mesure de délimiter les portions du plateau continental relevant
                          de chacune des Parties, comme le lui demande le Nicaragua . . .”
                          (I.C.J. Reports 2012 (II), p. 669, para. 129).

                     87

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                     184 	delimitation of the continental shelf (sep. op. greenwood)

                     The statement in the English text that “Nicaragua has not . . . estab‑
                     lished” is thus rendered more starkly as “le Nicaragua n’ayant pas . . .
                     apporté la preuve”. Taken by itself, such a statement is capable of sup‑
                     porting Colombia’s interpretation of the 2012 Judgment.
                          17. When the Court’s statement is read in context, however, Colom‑
                     bia’s case becomes less persuasive. A finding — especially on a central
                     element of the case before the Court — that a party has failed to dis‑
                     charge its burden of proof must rest upon an analysis by the Court of the
                     evidence adduced and a demonstration of why that evidence is insuffi‑
                     cient. Although the Parties said much in their arguments in the 2012
                     proceedings about the evidence advanced by Nicaragua in support of its
                      submission I (3), the Judgment discloses no analysis by the Court of the
                      quality or persuasiveness of that evidence. If the Court was taking a
                      decision that Nicaragua had not proved that it had a continental

                      margin beyond 200 nautical miles — a decision which would have had the
                       most important consequences for both Nicaragua and Colombia and
                       their peoples — it is hardly to be believed that it would have done so
                       without making any analysis of the evidence put before it or without
                       revealing at least the results of that analysis in its Judgment. The Court
                       was certainly aware of the arguments on that evidence — it summarizes
                       them in paragraphs 119 to 124 of the Judgment — but in the reasoning of
                       the Court, there is not a word about the persuasiveness of the data and
                       other evidence relied upon by Nicaragua. The 2012 Judgment gives
                       no indication of why the proof offered by Nicaragua was insufficient.
                          18. Nor does the 2012 Judgment give any indication of what it was that
                       Nicaragua had to prove. Since Colombia was not a party to the 1982 United
                       Nations Convention on the Law of the Sea (“UNCLOS”), the Court neces‑
                       sarily held that the applicable law was customary international law
                       (I.C.J. Reports 2012 (II), p. 666, para. 118). It concluded that the definition
                       of the continental shelf contained in paragraph 1 of Article 76 of UNCLOS
                       forms part of customary international law. That provision states :
                             “The continental shelf of a coastal State comprises the sea-bed and
                          subsoil of the submarine areas that extend beyond its territorial sea
                          throughout the natural prolongation of its land territory to the outer
                          edge of the continental margin, or to a distance of 200 nautical miles
                          from the baselines from which the breadth of the territorial sea is
                          measured where the outer edge of the continental margin does not
                          extend up to that distance.”
                     The Court thus accepted that customary international law, like UNCLOS,
                     recognizes two distinct grounds for entitlement to a continental shelf, one
                     based upon distance and the other upon the possession of a continental
                     margin which constitutes a natural prolongation of the coastal State’s
                     land territory. To assert a claim to an area based upon the first ground, a
                     State need only establish that the area claimed lies within 200 nautical
                     miles of its baselines. Claims based upon the second ground are, however,
                     rather more complicated. A State asserting such a claim in respect of a

                     88

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                     185 	delimitation of the continental shelf (sep. op. greenwood)

                     particular area must demonstrate that it possesses a continental margin
                     which constitutes a natural prolongation of its land territory and that the
                     area in question falls within the outer limits of that continental margin.
                     That is what Nicaragua was seeking to prove in 2012.
                        19. To ascertain whether or not Nicaragua had succeeded, however,
                     would have required the Court to decide what are the criteria, under the
                     applicable law, for determining the outer limits of the continental margin.
                     The definition of the continental shelf in paragraph 1 of Article 76 gives
                     no indication as to what those criteria might be. Paragraphs 3 to 6 of
                     Article 76 lay down the criteria applicable to cases governed by UNCLOS.
                     Since, however, the applicable law in the 2012 case was not UNCLOS but
                     customary international law, those paragraphs would have been relevant
                     to the case only if they reflected customary international law. Yet the
                     Court considered that it had no need to decide whether or not the provi‑
                     sions of those paragraphs form part of customary international law. In
                     paragraph 118 of the 2012 Judgment, the Court, after finding that the
                     definition of the continental shelf in Article 76, paragraph 1, was part of
                     customary international law, went on to say that :
                             “At this stage, in view of the fact that the Court’s task is limited to
                          the examination of whether it is in a position to carry out a continen‑
                          tal shelf delimitation as requested by Nicaragua, it does not need to
                          decide whether other provisions of Article 76 of UNCLOS form part
                          of customary international law.” (I.C.J. Reports 2012 (II), p. 666,
                          para. 118.)
                     Nor did the Court consider whether customary international law con‑
                     tained any other criteria, distinct from those in paragraphs 3 to 6 of Arti‑
                     cle 76, for determining whether or not the continental margin of a State
                     extends more than 200 nautical miles from its baselines. Yet if the Court
                     was proceeding on the basis that it did not need to decide what criteria a
                     State seeking to establish an entitlement to an outer continental shelf has
                     to prove as a matter of customary international law, it could not have
                     decided whether or not Nicaragua had satisfied those criteria.
                        20. Since the Court did not assess what Nicaragua had proved and did
                     not decide what Nicaragua had to prove, I have come to the conclusion
                     that the 2012 Judgment cannot be read as a finding on the evidence that
                     definitively decided whether Nicaragua was entitled to a continental shelf
                     which overlapped with Colombia’s 200‑nautical‑mile entitlement mea‑
                     sured from the Colombian mainland coast. I have therefore voted to
                     reject Colombia’s res judicata argument in its entirety.

                        21. Nevertheless, I see a distinction in the reasoning, though not in the
                     result, between Colombia’s argument regarding the Nicaraguan claims in
                     the present case concerning the area lying more than 200 nautical miles
                     from the Colombian mainland but within 200 nautical miles of the
                     Colombian islands and those relating to the area within 200 nautical
                     miles of the Colombian mainland coast. The conclusion that there is no

                     89

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                     186 	delimitation of the continental shelf (sep. op. greenwood)

                     res judicata in relation to the area within 200 nautical miles of the Colom‑
                     bian mainland is based (as I have tried to demonstrate in paragraphs 17
                     to 19 of this opinion) on the way in which the Court determined what
                     were the issues it had to decide and on the absence of any analysis of the
                     Nicaraguan evidence. Those considerations are also pertinent to the issue
                     of whether the 2012 Judgment created a res judicata which bars Nicara‑
                     gua’s claims relating to the area more than 200 nautical miles from the
                     Colombian mainland but within 200 nautical miles of the Colombian
                     islands. Yet with regard to that area, the fact that paragraph 129 is wholly
                     silent about it provides an additional and distinct reason for rejecting the
                     res judicata argument. Although I do not do so, it is possible to consider
                     that reason conclusive and thus to reject the third preliminary objection
                     only in respect of Nicaragua’s claims in this area while upholding it in
                     relation to the claims concerning the area within 200 nautical miles of the
                     Colombian mainland. Indeed, one of my colleagues has come to just that
                     conclusion. In these circumstances, it would have been much better if the
                     Court had given separate rulings in respect of the application of res judi-
                     cata in relation to Nicaragua’s claims in these two areas. I regret that it
                     has not done so.

                                                         (Signed) Christopher Greenwood.

                     90

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142

            DECLARATION OF VICE-PRESIDENT XUE

   1. While I am in full agreement with the Advisory Opinion of the
Court, I wish to highlight some aspects with regard to the application of
the non-circumvention principle in this advisory opinion case.
   2. It is a plain fact that the dispute between Mauritius and the United
Kingdom concerning the issue of the Chagos Archipelago has been going
on for decades. The two States hold divergent views on the nature of the
subject-matter of the issue. Whether this bilateral dispute constitutes a
compelling reason for the Court to exercise its discretional power to
decline to give a reply to the questions put to it by the General Assembly
is one of the core issues that was intensely debated in the proceedings.
   3. In numerous cases, contentious and advisory, the Court has reaf-
ﬁrmed the fundamental importance of the principle of consent for judicial
settlement. It considers that there is a compelling reason to decline to give
an advisory opinion, if “to give a reply would have the eﬀect of circum-
venting the principle that a State is not obligated to allow its disputes to
be submitted to judicial settlement without its consent” (Western Sahara,
Advisory Opinion, I.C.J. Reports 1975, p. 25, para. 33; Applicability of
Article VI, Section 22, of the Convention on the Privileges and Immunities
of the United Nations, Advisory Opinion, I.C.J. Reports 1989, p. 191,
para. 37; Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 158,
para. 47). This non-circumvention principle equally applies to the present
proceedings.

   4. It is not uncommon that the questions submitted to the Court in
advisory proceedings involve a bilateral dispute. As the Court pointed
out in the Namibia Advisory Opinion, “[d]iﬀerences of views among
States on legal issues have existed in practically every advisory proceed-
ing” (Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 24,
para. 34). According to the consistent jurisprudence of the Court, the fact
of a pending bilateral dispute, by itself, is not considered a compelling
reason for the Court to decline to give an advisory opinion. What is deci-
sive is the object and nature of the request. That is to say, the Court must
examine whether the questions put to the Court by the General Assembly
concern issues located in a broader frame of reference than the settlement
of a dispute (Western Sahara, Advisory Opinion, I.C.J. Reports 1975,
p. 26, para. 38; Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I),
p. 159, para. 50); whether the object of the request is for the Gen-

51

143              separation of the chagos (decl. xue)

eral Assembly to “obtain enlightenment as to the course of action it
should take”, or to assist the peaceful settlement of the dispute (Interpre-
tation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950, p. 71), and whether the legal con-
troversy arose during the proceedings of the General Assembly and in
relation to matters with which it was dealing, or arose independently in
bilateral relations (Western Sahara, Advisory Opinion, I.C.J. Reports
1975, p. 25, para. 34).
   5. In the present proceedings, the Court determines that the questions
submitted by the General Assembly relate to the decolonization of
Mauritius, a subject-matter which is of particular concern to the
United Nations. The object of the Request, in its opinion, is not to resolve
a territorial dispute between Mauritius and the United Kingdom, but to
assist the General Assembly in the discharge of its functions relating to
the decolonization of Mauritius. The Court considers that the fact that
the Court may have to pronounce on legal issues disputed between
Mauritius and the United Kingdom does not mean that, by replying to
the Request, it is dealing with a bilateral dispute. It therefore does not
consider that to give the requested opinion would have the eﬀect of
circumventing the principle of consent.
   6. I concur with the above conclusion on the basis of the following
considerations. First of all, it is important to note that the scope of Ques-
tion (a) put to the Court by the General Assembly is speciﬁcally deﬁned.
The Court is requested to determine the legal status of the decolonization
process of Mauritius at a particular point of time, namely, at the time
when Mauritius was granted independence in 1968, whether this process
was lawfully completed. Apparently, the issue of the Chagos Archipelago
has to be examined on the basis of the facts and the law as existed at that
time and against the historical background of the decolonization of
Mauritius.
   7. The evidence submitted to the Court demonstrates that the detach-
ment of the Chagos Archipelago by the United Kingdom was not simply
the result of a normal administrative restructuring of a colony by the
administering Power, but part of a defensive strategy particularly designed
in view of the prospective independence of the colonial territories in the
western Indian Ocean. In other words, the very root cause of the separa-
tion of the Chagos Archipelago lies in the decolonization of Mauritius.

   8. Historical records further inform the Court that the United
Kingdom’s approach to securing the “consent” of Mauritius’ Council of
Ministers for the detachment of the Chagos Archipelago from Mauritius
was apparently intended to serve two purposes, which are, in essence, con-
tradictory to each other: ﬁrst, to demonstrate to the outside world that the
detachment of the Chagos Archipelago was done on the basis of self-
determination of Mauritius and, second, to exclude the issue of the detach-
ment of the Chagos Archipelago from Mauritius’ general election in 1967,
through which the Mauritian people were to voice their preference with

52

144               separation of the chagos (decl. xue)

regard to the Territory’s independence. Whether such “consent” of
Mauritius’ Council of Ministers, which was still under the authority of
the administering Power, can be regarded as representing the free and
genuine will of the people of Mauritius is a crucial issue that the Court
has to determine in accordance with the principle of self-determination
under international law, as it has a direct bearing on Question (a).
   9. Moreover, both the United Kingdom itself and the United Nations
treated the detachment of the Chagos Archipelago as a matter of decolo-
nization rather than a territorial issue. Recently declassiﬁed archives of
the Foreign Oﬃce of the United Kingdom reveal that at the time when
the detachment plan was being contemplated, the United Kingdom oﬃ-
cials were aware, and even acknowledged, that by detaching the Cha-
gos Archipelago and other islands to set up the British Indian Ocean
Territory (hereinafter as the “BIOT”), the United Kingdom was actually
creating a new colony. Considering the United Kingdom’s mandate as an
administering Power under the Charter of the United Nations, they
doubted that the planned action could escape criticism in the
United Nations (see Written Statement of the Republic of Mauritius,
Vol. III, Ann. 70, “UK Foreign Oﬃce, Minute from Secretary of State for
the Colonies to the Prime Minister, FO 371/184529 (5 November 1965)”).

   10. The United Kingdom’s move to separate the Chagos Archipelago
from Mauritius, indeed, did not pass unnoticed. From its inception, the
plan to dismember the colonial territories in the western Indian Ocean
gave rise to serious concern to the United Nations Special Committee on
Decolonization. Resolution 2066 (XX) adopted by the General Assembly
on 16 December 1965, 38 days after the United Kingdom established the
BIOT, which consisted of, among others, the Chagos Archipelago, was a
direct response to the action taken by the United Kingdom. The Gen-
eral Assembly reiterated in a number of resolutions its concern that
      “any attempt aimed at the partial or total disruption of the national
      unity and the territorial integrity of colonial Territories and the estab-
      lishment of military bases and installations in these Territories is
      incompatible with the purposes and principles of the Charter of the
      United Nations and of General Assembly resolution 1514 (XV)”.

Despite the repeated calling from the General Assembly, the construction
of the military base on Diego Garcia unfortunately went ahead as
planned. Although Mauritius was eventually taken oﬀ the list of
non-self-governing territories after its independence, the deep concern
expressed by the General Assembly was left unaddressed. It is in this
frame of reference that the Court is requested to consider the questions
put to it by the General Assembly.
   11. Another aspect on which divergent views are expressed is the pur-
ported initiation of the dispute between Mauritius and the United King-
dom. In characterizing the issue between Mauritius and itself as a bilateral

53

145              separation of the chagos (decl. xue)

dispute concerning the sovereignty over the Chagos Archipelago, the
United Kingdom claims that the dispute between the two States did not
arise until 1980. This claim apparently takes the issue of the Cha-
gos Archipelago out of its historical context.
   12. It is true that Mauritius raised the issue in the United Nations in
1980, but that does not necessarily mean that the two States started a
dispute concerning the sovereignty over the Chagos Archipelago from
that time. On 9 October 1980, the Mauritian Prime Minister, at the
thirty-ﬁfth session of the General Assembly, recalled the parliamentary
statement of the British Prime Minister, by which the United Kingdom
conﬁrmed its undertaking to revert the Chagos Archipelago to Mauritius
when it is not needed for defence purposes. He called on the United King-
dom to disband the BIOT and return the archipelago to Mauritius as “its
natural heritage”. This intervention indicates that the genuine issue
between the two States is not about territorial sovereignty, but essentially
bears on the applicability of the terms of the detachment of the
Chagos Archipelago and its consequential eﬀect on the decolonization
process of Mauritius.

   13. Historical documents show that at the time when the United King-
dom was contemplating the separation of the Chagos Archipelago from
Mauritius, there was no dispute between the administering Power and the
colony of Mauritius over the fact that the Chagos Archipelago had always
constituted part of the territory of Mauritius. Both the United Kingdom’s
administrative acts concerning the relationship of the Chagos Archipel-
ago with Mauritius and the way in which it handled the detachment nego-
tiations with Mauritius, give clear indication that the United Kingdom
recognized that the Chagos Archipelago formed part of Mauritius.
   14. More telling on this point are the conditions on which Mauritius
and the United Kingdom ultimately agreed for the detachment of the
Chagos Archipelago. The United Kingdom undertook, among other
things (see Advisory Opinion, paragraph 108), to return the Chagos
Archipelago to Mauritius once it is no longer needed for defence pur-
poses. This undertaking means that there was no formal transfer of ter-
ritorial title in the detachment. Although in the subsequent years, oﬃcials
from either side often referred to the transfer of sovereignty over the Cha-
gos Archipelago, the United Kingdom never oﬃcially indicated that it
had revoked its undertaking to return the Chagos Archipelago to
Mauritius when the agreed condition is met. Even during the present pro-
ceedings, the United Kingdom once again conﬁrmed that undertaking.
   15. As is recorded, between 1967 and 1973, the entire population of the
Chagos Archipelago was either prevented from returning, or forcibly
removed and prevented from returning, to the Chagos Archipelago by the
United Kingdom. The deplorable situation of the displaced Chagossians
has been a lingering issue for the United Kingdom. The struggle of the
Chagossians to retain their right to return to their homeland not only
gave rise to a number of legal actions in the British national courts, but

54

146              separation of the chagos (decl. xue)

also led the Mauritian Government to raise the issue in the United Nations.
It is under these circumstances that the bilateral dispute between Mauri-
tius and the United Kingdom came to the fore; evidently the dispute was
derived from the decolonization process of Mauritius.

   16. Lastly, to apply fully the non-circumvention principle in this case,
in my view, it is necessary to give some further consideration to the claim
raised by the United Kingdom that the issue of the Chagos Archipelago
had not been put on the agenda of the General Assembly for nearly ﬁve
decades and, meanwhile, Mauritius had resorted to bilateral channels and
third-party mechanisms for settlement with the United Kingdom.
Although acts referred to therein do not fall within the relevant period
which the requested questions concern, this claim reﬂects the special fea-
ture of the present case.
   17. Indeed, the situation of the Chagos Archipelago is very unique in
itself; after 50 years of independence, Mauritius is still confronted with a
question left over from its decolonization process. As an independent sov-
ereign State, Mauritius, nevertheless, has the right to raise the issue with
the United Kingdom through the means it sees ﬁt. This freedom of choice
of means is inherently embraced in the principle of sovereignty and the
right to self-determination. Equally important, as required by its mandate
under the Charter of the United Nations, the General Assembly main-
tains a “particular concern” for decolonization. So long as decolonization
remains incomplete, this mandate has no temporal limitation under the
Charter.
   18. The United Kingdom’s claim on the existence of a bilateral dispute
actually challenges Mauritius’ position on its decolonization process.
Logically, to claim the existence of a territorial dispute with regard to the
Chagos Archipelago independently in their bilateral relations, the
United Kingdom must set its claim on one premise, that is, Mauritius’
decolonization process was over in 1968 with the Chagos Archipelago
ceded to the United Kingdom. Without this premise, there would not
even be a starting-point to talk about a territorial dispute. Apparently,
the dispute that the United Kingdom has in mind relates to decoloniza-
tion rather than territorial sovereignty.
   19. Decolonization is a process. The right to self-determination is one
of the fundamental principles of international law that was well estab-
lished during the decolonization movement after the Second World War.
The paramount importance of the principle of self-determination is
reﬂected in its erga omnes character in the sense that it not only confers a
right on the peoples of all non-self-governing territories to self-determina-
tion, but also imposes an obligation on all States to see to it that this right
is fully respected. As an exercise of its substantive right, Mauritius’
endeavours to resolve the issue of the Chagos Archipelago with the
United Kingdom through bilateral and third-party procedures do not by
themselves change the nature of the issue as a matter of decolonization,
nor do they deprive the General Assembly of its mandate on decoloniza-

55

147              separation of the chagos (decl. xue)

tion under the Charter of the United Nations. As past experiences show,
the issue of decolonization may be considered at both bilateral and multi-
lateral levels; they are not mutually exclusive under international law.

   20. Given the historical background of the separation of the Chagos
Archipelago, it is diﬃcult to accept that the issue of the detachment of
the Chagos Archipelago, with the lapse of time, has evolved into a
bilateral territorial dispute beyond the frame of decolonization.
   21. In light of the foregoing, I am convinced that the Court has prop-
erly applied the non-circumvention principle in the present proceedings
and, by rendering this Advisory Opinion to the General Assembly, has
duly discharged its judicial functions entrusted to it by the Charter of the
United Nations.

                                              (Signed) Xue Hanqin.

56


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER
COMPANY, LIMITED

(NOUVELLE REQUÊTE: 1962)
(BELGIQUE c. ESPAGNE)

ORDONNANCE DU 23 NOVEMBRE 1966

1966

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
THE BARCELONA TRACTION, LIGHT

AND POWER COMPANY, LIMITED
(NEW APPLICATION: 1962)
(BELGIUM v. SPAIN)

ORDER OF 23 NOVEMBER 1966
Mode officiel de citation:

Barcelona Traction, Light and Power Company, Limited,
ordonnance du 23 novembre 1966, C.I.J. Recueil 1966, p. 507.

Official citation:

Barcelona Traction, Light and Power Company, Limited,
Order of 23 November 1966, I.C.J. Reports 1966, p. 507.

Sales number 304

507

COUR INTERNATIONALE DE JUSTICE

ANNÉE 1966
1966
23 novembre 23 novembre 1966
Rôle général
n° 50

AFFAIRE DE LA BARCELONA
TRACTION, LIGHT AND POWER
COMPANY, LIMITED

(NOUVELLE REQUÊTE: 1962)
(BELGIQUE c. ESPAGNE)

ORDONNANCE

Le Président de la Cour internationale de Justice,

Vu l’article 48 du Statut de la Cour et l’article 37 du Règlement de la
Cour,

Vu l'ordonnance du 12 janvier 1966 fixant la date d’expiration des délais
pour le dépôt de la réplique du Gouvernement belge et de la duplique du
Gouvernement espagnol;

Considérant que, par lettre du 7 octobre 1966 reçue et enregistrée au
Greffe le 13 octobre 1966, l'agent du Gouvernement belge a, pour les
raisons par lui indiquées, demandé une prorogation de six mois du
délai pour le dépôt de la réplique, dont la date d’expiration avait été
fixée au 30 novembre 1966;

Considérant que le 13 octobre 1966 copie certifiée conforme de ladite
lettre a été communiquée à l’agent du Gouvernement espagnol, qui a
été invité à faire connaître les vues de son gouvernement à cet égard;

Considérant que, par lettre du 25 octobre 1966, l’agent du Gouverne-
ment espagnol a fait connaître que son gouvernement ne soulève pas

4
508 BARCELONA TRACTION (ORDONNANCE 23 XI 66)

d’objection quant au principe d’un report de la date fixée pour le dépôt
de la réplique et ne peut que laisser à l’appréciation de la Cour la question
de l’étendue de la prorogation à accorder,

Reporte au 24 avril 1967 la date d’expiration du délai fixé pour le
dépôt de la réplique du Gouvernement belge et au 2 octobre 1967 la date
d’expiration du délai fixé pour le dépôt de la duplique du Gouvernement
espagnol.

Fait en français et en anglais, le texte français faisant foi, au palais dela
Paix, à La Haye, le vingt-trois novembre mil neuf cent soixante-six, en
trois exemplaires, dont l’un restera déposé aux archives de la Cour et
dont les autres seront transmis respectivement au Gouvernement belge
et au Gouvernement espagnol.

Le Président,
(Signé) Percy C. SPENDER.

Le Greffier,
(Signé) S. AQUARONE.