                    141

                      JOINT DISSENTING OPINION OF VICE‑PRESIDENT YUSUF,
                                  JUDGES CANÇADO TRINDADE,
                                     XUE, GAJA, BHANDARI,
                             ROBINSON AND JUDGE AD HOC BROWER

                       Regret that the Court was evenly split on res judicata — Court should have
                    upheld Colombia’s third preliminary objection and rejected Nicaragua’s requests
                    as inadmissible — Res judicata is reflected in Articles 59 and 60 of the Statute of
                    the Court — Its main elements are identity of parties, identity of cause, and
                    identity of object — Parties agree on these elements but disagree on the finality of
                    the decision taken by the Court in 2012 — There should be no doubt about that
                    decision — It was unanimously adopted by the Court — The dispositif of the
                    2012 Judgment was that the Court “cannot uphold” Nicaragua’s final
                    submission I (3) — This phrase has always been used by the Court for the dismissal
                    of requests by parties — Reasoning in 2012 Judgment supports this —
                    Paragraph 129 of the 2012 Judgment summarizes that reasoning — It emphasizes
                    lack of evidence of an overlapping continental shelf between the Parties — Majority
                    introduces a new procedural requirement into 2012 Judgment — Such requirement
                    is nowhere to be found in the Judgment — Had it actually existed, Nicaragua’s
                    final submission I (3) should have been declared inadmissible in the
                    2012 Judgment — Nicaragua’s requests are also barred by the principle of ne bis
                    in idem and exhaustion of treaty processes.

                                                    I. Introduction

                       1. It is with great regret that we are unable to concur with the decision
                    on the third preliminary objection of Colombia, on which the Court was
                    evenly split and which was reached with the casting vote of the President.
                    Colombia’s objection, which is based on the principle of res judicata,
                    should have been upheld. Consequently, Nicaragua’s Application in the
                    present case should have been dismissed. Not only does the rejection of
                    Colombia’s third preliminary objection constitute a misreading of the
                    Judgment of the Court in Territorial and Maritime Dispute (Nicaragua v.
                    Colombia) (I.C.J. Reports 2012 (II), p. 624), (hereinafter referred to as
                    the “2012 Judgment”), but it also detracts from the values of legal stabil‑
                    ity and finality of judgments that the principle of res judicata operates to
                    protect.

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                    142 	 delimitation of the continental shelf (joint diss. op.)

                      2. The Court rendered the 2012 Judgment less than four years ago.
                    Most of the Members of the present Court were also sitting Members in
                    that case. The division of the Court in this case is thus particularly sur‑
                    prising. The majority not only misconstrues why the Court decided as it
                    did in 2012, but also reads into the Judgment a procedural requirement
                    that did not — and does not — exist. By allowing Nicaragua to proceed
                    in the current case, the Court’s decision may be viewed as undermining
                    the finality of its judgments. It is for these reasons that we cannot join the
                    majority in voting in favour of subparagraph (1) (b) of the operative
                    paragraph.

                        3. In this joint dissenting opinion, we express our views in more detail.
                    First, we outline our understanding of the principle of res judicata and its
                    application to the present case (Sec. II). Secondly, we examine the disposi-
                    tif of the 2012 Judgment, demonstrating that it rejected the request of
                    Nicaragua to delimit allegedly overlapping continental shelf entitlements
                    (Sec. III). Thirdly, we analyse the reasoning of the Court in the 2012 Judg‑
                    ment, highlighting that Nicaragua’s request was rejected because Nicara‑
                    gua had failed to establish the existence of an extended continental shelf
                    that overlapped with Colombia’s 200‑nautical‑mile entitlement, as mea‑
                    sured from the latter’s mainland coast (Sec. IV). Fourthly, we address the
                    incoherent nature of the procedural requirement that the majority claims
                    to have been established by the 2012 Judgment (Sec. V). Fifthly, we out‑
                    line the purposes for the submission of information under Article 76 (8)
                    of the United Nations Convention on the Law of the Sea (hereinafter
                    referred to as “UNCLOS”), and Article 4 of its Annex II, in order to
                    demonstrate that there is no requirement to submit information on an
                    extended continental shelf except for obtaining recommendations from
                    the Commission on the Limits of the Continental Shelf (hereinafter
                    referred to as “CLCS”) (Sec. VI). Sixthly, we note that, even if one were
                    to accept the argument of the majority, the request of Nicaragua in the
                    present case is still precluded on the basis of ne bis in idem and the
                    exhaustion of treaty processes (Sec. VII). Finally, we conclude by high
                     lighting the potential negative effect of repeat litigation, if allowed, on the
                     authority of res judicata and the necessity to bring to an end proceedings
                     relating to inter‑State disputes (Sec. VIII).

                            II. The Principle of Res Judicata in the Jurisprudence
                            of the Court and Its Application to the Present Case

                       4. Res judicata is a principle that is found in distinct forms and under
                    different names in every legal system. The principle has been of para‑
                    mount importance to the operation of legal systems all over the world for

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                    143 	 delimitation of the continental shelf (joint diss. op.)

                    centuries. According to this principle, “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. Serbia and Montenegro),
                    Judgment, I.C.J. Reports 2007 (I), p. 90, para. 115). The principle of res
                    judicata is reflected in Articles 59 and 60 of the Statute of the Court. As
                    the Court has previously noted, “[t]he fundamental character of that prin‑
                    ciple appears from the terms of the Statute of the Court and the Charter
                    of the United Nations. The underlying character and purposes of the
                    principle are reflected in the judicial practice of the Court.” (Ibid.)
                       5. The main elements of res judicata are well‑known, and agreed upon
                    by both Parties to this case ; namely, that a subsequent claim is barred if
                    there is identity of parties, identity of cause and identity of object with a
                    previous claim that has been adjudicated upon (dissenting opinion of
                    Judge Anzilotti, Interpretation of Judgments Nos. 7 and 8 (Factory at
                    Chorzów), Judgment No. 11, 1927, P.C.I.J., Series A, No. 13, p. 23 ;
                    dissenting opinion of Judge Jessup, South West Africa (Ethiopia v.

                    South Africa ; Liberia v. South Africa), Second Phase, Judgment,
                    I.C.J. Reports 1966, p. 333).
                       6. As the Court has stated previously, it is well established that the
                    dispositif of a judgment possesses the force of res judicata (Application 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. 94, para. 123). However, the Court has also
                    noted that res judicata may attach to the reasons of a judgment of the
                    Court if those reasons are “inseparable” from the operative clause of a
                    judgment (Request for Interpretation of the Judgment of 11 June 1998 in
                    the Case concerning the Land and Maritime Boundary between Camer‑
                    oon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nige-
                    ria v. Cameroon), Judgment, I.C.J. Reports 1999 (I), p. 35, para. 10) or if
                    they constitute a “condition essential to the Court’s decision” (Request
                    for Interpretation of the Judgment of 15 June 1962 in the Case concerning
                    the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thai-
                    land), Judgment, I.C.J. Reports 2013, p. 296, para. 34 ; Interpretation of
                    Judgments Nos. 7 and 8 (Factory at Chorzów), Judgment No. 11, 1927,
                    P.C.I.J., Series A, No. 13, p. 20).
                       7. The main point of disagreement between the Parties is what exactly
                    the Court “finally disposed of for good” (Barcelona Traction, Light and
                    Power Company, Limited (New Application: 1962) (Belgium v. Spain),
                    Preliminary Objections, Judgment, I.C.J. Reports 1964, p. 20) in the
                    2012 Judgment. In its written and oral pleadings, Colombia stated that it
                    understood the Court to have rejected Nicaragua’s request to delimit an
                    extended continental shelf entitlement that overlapped with that of
                    Colombia on the basis of failure to establish the existence of such a con‑
                    tinental shelf (Preliminary Objections of Colombia (hereinafter referred
                    to as “POC”), footnote 122). Nicaragua, on the other hand, considers

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                    144 	 delimitation of the continental shelf (joint diss. op.)

                    that the Court’s decision “not to ‘uphold’ Nicaragua’s claim did not, in
                    fact, entail a determination of Nicaragua’s request to delimit the conti‑
                    nental shelf beyond 200 M [nautical miles] on the merits” and hence is not
                    a decision to which res judicata attaches (Written Statement of Nicaragua
                    (hereinafter referred to as “WSN”), para. 4.19).
                       8. In order to determine if the requests of Nicaragua in the present
                    case are barred by the principle of res judicata, we turn first to the disposi-
                    tif of the 2012 Judgment, to which res judicata attaches, and second to the
                    reasoning of the Court which laid the foundation for that dispositif.

                                      III. The Dispositif of the 2012 Territorial
                                            and Maritime Dispute Judgment

                       9. The Court stated in the dispositif of the 2012 Judgment: “[The
                    Court]. . . [f]inds 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)). Nicaragua had requested the Court to adjudge and 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” (ibid.,
                    p. 636, para. 17).
                       10. Both Parties in the present case have discussed in their pleadings
                    what exactly the Court meant by the phrase “cannot uphold”. Colombia
                    understands “cannot uphold” to be a rejection of Nicaragua’s request to
                    delimit allegedly overlapping continental shelf entitlements (POC, foot‑
                    note 122). Nicaragua, on the other hand, claims that by using the phrase
                    “cannot uphold”, “[t]he Court did not ‘reject’ Nicaragua’s submission ;
                    nor did it use other wording indicative of a substantive determination of
                    Nicaragua’s claims” (WSN, para. 4.20). Rather, in the view of Nicaragua,
                    the Court in its 2012 Judgment “a décidé . . . de ne pas décider” 1.

                       11. The case law of the Court clearly demonstrates that when the
                    phrase “cannot uphold” is used in the dispositif, it is employed to reject a
                    claim or request made by a party. It is not used to refrain from making a
                    decision pending the fulfilment of a procedural requirement, nor is it used
                    to abstain from making a decision until the claimant State adduces suffi‑
                    cient evidence. Three examples raised and discussed by the Parties suffice
                    to demonstrate this point.
                       12. In the Oil Platforms case (Islamic Republic of Iran v. United States
                    of America), Iran claimed that the United States’ attacks on two oil plat‑
                    forms constituted a breach of the United States’ obligation to accord free‑
                    dom of commerce between the territories of the two States under Article X

                       1 CR 2015/29, p. 25, para. 23 (Pellet). English translation of the Registry: “the Court

                    decided not to take any decision . . .”.

                    48

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                    145 	 delimitation of the continental shelf (joint diss. op.)

                    of the 1955 Treaty of Amity, Economic Relations and Consular Rights
                    (Oil Platforms (Islamic Republic of Iran v. United States of America),
                    Judgment, I.C.J. Reports 2003, pp. 172‑173, para. 20). The Court found
                    that there was no commerce in crude oil between the Iranian platforms in
                    question and the United States at the time of the attacks, due to either the
                    non‑operational nature of the oil platforms or the effect of a trade
                    embargo on Iranian imports to the United States (ibid., p. 207, para. 98).
                    As a result, the Court found that the attacks “cannot be said to have
                    infringed the rights of Iran under Article X, paragraph 1, of the
                    1955 Treaty” (ibid.). This led the Court to state in the dispositif of the
                    Judgment that it “cannot . . . uphold the submission of the Islamic
                    Republic of Iran that those actions [the United States’ attacks] constitute
                    a breach of the obligations of the United States of America under Arti‑
                    cle X of [the 1955] Treaty” (ibid., p. 218, para. 125 (1)). The Court thus
                    used “cannot uphold” as a synonym for “reject”.

                       13. Similarly, in the Frontier Dispute case (Burkina Faso/Niger),
                    Burkina Faso requested the Court to adjudge and declare that certain
                    co‑ordinates constituted the boundary along two sections of its border
                    with Niger in points 1 and 3 of its final submissions (Judgment,
                    I.C.J. Reports 2013, p. 66, para. 35). These sections of the boundary were
                    not the subject of the dispute before the Court. Burkina Faso, however,
                    wanted the Court to include them in the dispositif of the Judgment to
                    “endow this line with the force of res judicata” (ibid., p. 66, para. 37).
                    Noting that the function of the Court is to “decide in accordance with
                    international law such disputes as are submitted to it” (ibid., p. 70,
                    para. 48 ; emphasis added), the Court held that Burkina Faso’s request
                    was “not compatible with its judicial function” (ibid., p. 72, para. 58) and
                    thus did not proceed to delimit the boundary along these two sections. In
                    the dispositif, the Court stated that “it cannot uphold the requests made
                    in points 1 and 3 of the final submissions of Burkina Faso” (ibid., p. 92,
                    para. 114 (1)). Again, the phrase “cannot uphold” was used to signify a
                    clear rejection of the Burkinabe requests by the Court ; it was not a refusal
                    to make a decision, as counsel for Nicaragua suggested during the hear‑
                    ings in the present case 2.
                       14. A final example is the 1985 Tunisia v. Libya Continental Shelf
                    Interpretation Judgment (Application for Revision and Interpretation of
                    the Judgment of 24 February 1982 in the Case concerning the Continental
                    Shelf (Tunisia/Libyan Arab Jamahiriya) (Tunisia v. Libyan Arab Jama-
                    hiriya), Judgment, I.C.J. Reports 1985, p. 192). In that case, the Court
                    used the phrase “cannot uphold” twice in the dispositif of the Judgment.
                    First, Tunisia claimed that the criteria for the delimitation of the first sec‑
                    tion of continental shelf enunciated by the Court in the case concerning
                    the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment,
                    I.C.J. Reports 1982, p. 18 (hereinafter referred to as the “1982 Judg‑
                         2   CR 2015/27, p. 38, para. 24 (Pellet).

                    49

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                    146 	 delimitation of the continental shelf (joint diss. op.)

                    ment”) could not be simultaneously applied, and therefore requested the
                    Court to clarify which of these criteria took precedence (I.C.J. Reports
                    1985, pp. 219‑220, para. 50). The Court rejected the claim that the
                    1982 Judgment was incoherent, noting that it “laid down a single precise
                    criterion for the drawing of the [delimitation] line” and that Tunisia’s
                    request for interpretation was therefore “founded upon a misreading
                    of the purport of the relevant passage of the operative clause of
                    the 1982 Judgment” (ibid., p. 220, para. 50). In the dispositif, the Court
                    stated that “the submission of the Republic of Tunisia of 14 June 1985
                    relating to the first sector of the delimitation cannot be upheld” (ibid.,
                    p. 230, para. 69 (B) (3)). This statement was clearly based on the rejection
                    of Tunisia’s understanding of the 1982 Judgment, and thus a rejection
                    of its request for interpretation under Article 60 of the Statute of the
                    Court.

                       15. The second use of the words “cannot uphold” in the 1985 Tuni-
                    sia v. Libya Judgment was to reject Tunisia’s request for interpretation of
                    the 1982 Judgment in relation to the second sector of delimitation. In the
                    1982 Judgment, the Court stated that the point between the first and sec‑
                    ond sectors of delimitation was the “point of intersection with the parallel
                    passing through the most westerly point of the Tunisian coastline between
                    Ras Kaboudia and Ras Adjir, that is to say, the most westerly point on
                    the shoreline (low‑water mark) of the Gulf of Gabes” (Continental Shelf
                    (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 94,
                    para. 133 (C) (2)). The Court gave no indication of the co‑ordinates of
                    this point in the dispositif, leaving it instead to the Parties’ experts to
                    determine its precise location. However, in the body of the 1982 Judg‑
                    ment, the Court did give indicative co‑ordinates of this point (ibid., p. 87,
                    para. 124). Tunisia requested the Court to state explicitly that the most
                    westerly point of the Gulf of Gabes did indeed have the co‑ordinates that
                    were indicated as its approximate location in the 1982 Judgment. How‑
                    ever, in the 1985 Judgment the Court rejected this request, noting that it
                    expressly decided that it was for the experts of the Parties to determine
                    the precise location of this point (I.C.J. Reports 1985, pp. 226‑227,
                    paras. 62‑63). Thus, in the dispositif, the Court stated that “the submis‑
                    sion of the Republic of Tunisia, ‘that the most westerly point of the Gulf
                    of Gabes lies on latitude 34º 05ʹ 20ʺ N (Carthage)’, cannot be upheld”
                    (ibid., p. 230, para. 69 (D) (3)). The Court was not abstaining from mak‑
                    ing a decision ; clearly, it was a rejection of Tunisia’s request for the Court
                    to state that the westernmost point of the Gulf lay on the indicative
                    co‑ordinates given by the Court.

                      16. The consistent use of the phrase “cannot uphold” demonstrates
                    that the Court rejected Nicaragua’s request to delimit purportedly over‑
                    lapping extended continental shelf entitlements in the 2012 Judgment.
                    The majority states in the present Judgment that, as it was not persuaded

                    50

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                    147 	 delimitation of the continental shelf (joint diss. op.)

                    by Nicaragua and Colombia’s interpretations of the phrase “cannot
                    uphold”, it will not “linger over the meaning of the phrase ‘cannot
                    uphold’” (Judgment, para. 74). Yet, the majority gives no clear explana‑
                    tion as to why it rejects the Parties’ interpretations ; moreover, it does not
                    examine the meaning and scope of the phrase. Since, according to the
                    Court’s jurisprudence, res judicata attaches to the dispositif, it is beyond
                    comprehension why the majority chooses not to “linger” over the mean‑
                    ing of “cannot uphold”. This is both a mistake and a missed opportunity,
                    for if the majority had “linger[ed]” on this phrase, the true import of the
                    Court’s decision in the 2012 Judgment would have become apparent.
                    Indeed, as demonstrated above, this phrase has consistently been used by
                    the Court to indicate the dismissal of a request by a party.

                         17. In its Application in the present case, Nicaragua’s First Request to
                    the Court is to adjudge and declare “[t]he precise course of the maritime
                    boundary between Nicaragua and Colombia in the areas of the continen‑
                    tal shelf which appertain to each of them beyond the boundaries deter‑
                    mined by the Court in its Judgment of 19 November 2012” (Application
                    of Nicaragua, hereinafter “AN”, p. 8, para. 12). Paragraph 11 of Nicara‑
                    gua’s Application states that Nicaragua’s claimed extended continental
                    shelf “includes an area beyond Nicaragua’s 200‑nautical‑mile maritime
                    zone and in part overlaps with the area that lies within 200 nautical miles
                    of Colombia’s coast” (ibid., p. 6, para. 11 (c)), and that this entitlement
                    to an extended continental shelf exists under both customary interna‑
                    tional law and the provisions of UNCLOS (ibid., para. 11 (a)).
                         18. The final submission I (3) of Nicaragua in the Territorial and
                    Maritime Dispute case and the First Request in Nicaragua’s Application
                     in the present case have both the same object (the delimitation of an
                     extended continental shelf entitlement that overlaps with Colombia’s
                     200‑nautical‑mile entitlement, measured from the latter’s mainland coast),
                     the same legal ground (that such an entitlement exists as a matter of
                     customary international law and under UNCLOS), and involve the same
                      Parties. Nicaragua is therefore attempting to bring the same claim against
                      the same Party on the same legal grounds. As explained above, the Court
                      rejected Nicaragua’s final submission I (3) in the 2012 Judgment. Nicara‑
                      gua’s First Request in the present Application is thus an exemplary case
                      of a claim precluded by res judicata.

                           IV. The Reasoning of the Court in the 2012 Territorial
                                      and Maritime Dispute Judgment

                      19. Having refrained from examining the meaning of the key phrase
                    “cannot uphold” in the operative clause, the majority bases its position
                    on the reasoning that led the Court to state that it “cannot uphold” Nica‑
                    ragua’s final submission I (3), which is contained in paragraphs 113 to 129

                    51

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                     148 	 delimitation of the continental shelf (joint diss. op.)

                     of the 2012 Judgment. An analysis of this reasoning, the majority con‑
                     tends, demonstrates that
                          “Nicaragua’s claim could not be upheld . . . because the latter had yet
                          to discharge its obligation, under paragraph 8 of Article 76 of
                          UNCLOS, to deposit with the CLCS the information on the limits of
                          its continental shelf beyond 200 nautical miles required by that pro‑
                          vision and by Article 4 of Annex II of UNCLOS.” (Judgment,
                          para. 84.)

                     This is a misreading of the 2012 Judgment.
                        20. An examination of the reasoning of the 2012 Judgment demon‑
                     strates that the Court rejected Nicaragua’s request because it failed to
                     prove the existence of an extended continental shelf which overlapped
                     with Colombia’s 200‑nautical‑mile entitlement, measured from the lat‑
                     ter’s mainland coast. Nowhere in the reasoning of the 2012 Judgment did
                     the Court state that there was a procedural requirement incumbent on
                     Nicaragua to submit information to the CLCS before the Court could
                     proceed with delimitation, nor did the Court suggest that Nicaragua
                     would be able to return to the Court once it had made its submission to
                     the CLCS. In previous cases, whenever the Court intended to admit the
                     possibility of future proceedings, it expressly provided for such possibility
                     for parties to return to the Court following delivery of a judgment (see for
                     example, Certain Activities Carried Out by Nicaragua in the Border Area
                     (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica
                     along the San Juan River (Nicaragua v. Costa Rica), Judgment,
                     I.C.J. Reports 2015 (II), p. 741, para. 229 (5) (b) ; and Armed Activities
                     on the Territory of the Congo (Democratic Republic of the Congo v.
                     Uganda), Judgment, I.C.J. Reports 2005, p. 281, para. 345 (6)). This was
                     clearly not the case in the 2012 Judgment.
                        21. Section IV of the 2012 Judgment addresses Nicaragua’s final sub‑
                     mission I (3), described above. Paragraphs 113 to 118 of the Judgment
                     state that the applicable law regarding delimitation of the continental
                     shelf must be customary international law, as reflected in Article 76 (1) of
                     UNCLOS, as Colombia is not a party to UNCLOS.

                        22. Paragraphs 119 to 121 of the 2012 Judgment outline the submis‑
                     sions of Nicaragua, which are threefold : first, that its claim to an extended
                     continental shelf is “essentially a question of fact” ; secondly, that
                     Nicaragua has submitted “Preliminary Information” within the ten‑year
                      deadline established by Article 4 of Annex II of UNCLOS, and is “well
                      advanced” in its process of compiling a submission of information to the
                      CLCS under Article 76 (8) ; and, thirdly, that a continental shelf entitle‑
                      ment based on the distance criterion of 200 nautical miles does not take
                     precedence over an entitlement established by natural prolongation.

                     52

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                     149 	 delimitation of the continental shelf (joint diss. op.)

                        23. Paragraphs 122 to 124 recall the submissions of Colombia regard‑
                     ing Nicaragua’s request to delimit its alleged overlapping continental
                     shelf entitlements with Colombia. Colombia’s submissions on this point
                     were also threefold : first, that Nicaragua did not prove that a natural
                     prolongation exists so as to overlap with Colombia’s 200‑nautical‑mile
                     entitlement ; secondly, that, in any case, a continental shelf entitlement
                     based on natural prolongation cannot encroach upon a continental shelf
                     entitlement based on the distance criterion of 200 nautical miles ; and,
                     thirdly, that the CLCS would not make recommendations regarding the
                     limits of the continental shelf without the consent of Colombia, and in
                     any case those limits did not prejudice questions of delimitation and
                     would not be opposable to Colombia.

                        24. The analysis of the Court takes place in paragraphs 125 to 129.
                     Paragraph 125 rejects Nicaragua’s reliance on the ITLOS Judgment in
                     the Bay of Bengal delimitation case (Dispute concerning Delimitation of
                     the Maritime Boundary between Bangladesh and Myanmar in the Bay of
                     Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012) as author‑
                     ity for the proposition that an international court or tribunal may delimit
                     overlapping extended continental shelf entitlements in the absence of rec‑
                     ommendations by the CLCS. The following paragraph recalls the Judg‑
                     ment of the Court in Territorial and Maritime Dispute between Nicaragua
                     and Honduras in the Caribbean Sea (Nicaragua v. Honduras)
                     (I.C.J. Reports 2007 (II), p. 659), in which it stated that “any claim of
                     continental shelf rights beyond 200 miles [by a State party to UNCLOS]
                     must be in accordance with Article 76 of UNCLOS and reviewed by the
                     Commission on the Limits of the Continental Shelf established there
                     under” (ibid., p. 759, para. 319). The Court added that the fact that
                     Colombia was not party to UNCLOS did not in any way relieve Nicara‑
                     gua of its obligations under Article 76.

                       25. Paragraphs 127 to 129 of the 2012 Judgment contain the crux of
                     the Court’s reasoning and are thus worth quoting in full :
                             “127. The Court observes that Nicaragua submitted to the Com‑
                          mission only ‘Preliminary Information’ which, by its own admission,
                          falls short of meeting the requirements for information on the limits
                          of the continental shelf beyond 200 nautical miles which ‘shall be sub‑
                          mitted by the coastal State to the Commission’ in accordance with
                          paragraph 8 of Article 76 of UNCLOS. Nicaragua provided the
                          Court with the annexes to this ‘Preliminary Information’ and in the
                          course of the hearings it stated that the ‘Preliminary Information’ in
                          its entirety was available on the Commission’s website and provided
                          the necessary reference.

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                     150 	 delimitation of the continental shelf (joint diss. op.)

                             128. The Court recalls that in the second round of oral argument,
                          Nicaragua stated that it was ‘not asking [the Court] for a definitive
                          ruling on the precise location of the outer limit of Nicaragua’s conti‑
                          nental shelf’. Rather, it was ‘asking [the Court] to say that Nicara‑
                          gua’s continental shelf entitlement is divided from Colombia’s
                          continental shelf entitlement by a delimitation line which has a defined
                          course’. Nicaragua suggested that ‘the Court could make that delim‑
                          itation by defining the boundary in words such as ‘the boundary is
                          the median line between the outer edge of Nicaragua’s continen‑
                          tal shelf fixed in accordance with UNCLOS Article 76 and the outer
                          limit of Colombia’s 200‑mile zone’ ’. This formula, Nicaragua sug‑
                          gested, ‘does not require the Court to determine precisely where the
                          outer edge of Nicaragua’s shelf lies’. The outer limits could be then
                          established by Nicaragua at a later stage, on the basis of the recom‑
                          mendations of the Commission.
                             129. However, 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 con‑
                          tinental shelf, measured from Colombia’s mainland coast, the Court
                          is not in a position to delimit the continental shelf boundary between
                          Nicaragua and Colombia, as requested by Nicaragua, even using
                          the general formulation proposed by it.” (I.C.J. Reports 2012 (II),
                          p. 669 ; cross‑references omitted.)
                        26. The language used by the Court in paragraph 129 makes clear that
                     the Court rejected Nicaragua’s claim because it had “not established that
                     it has a continental margin that extends far enough to overlap with
                     Colombia’s 200‑nautical‑mile entitlement” (emphasis added) (in the
                     French text: “le Nicaragua n’ayant pas . . . apporté la preuve que sa
                     marge . . .”). The Court did not say that it was unable to delimit the con‑
                     tinental shelf boundary because Nicaragua had failed to submit informa‑
                     tion to the CLCS as required by Article 76 (8) of UNCLOS, nor did it
                     imply this at any point in the previous paragraphs. The Court could not
                     have been clearer in its conclusion : Nicaragua failed to adduce evidence
                     to prove that it had a continental shelf that extended far enough to over‑
                     lap with Colombia’s 200‑nautical‑mile entitlement to the continental shelf
                     measured from Colombia’s mainland coast ; thus, the Court was not in a
                     position to delimit the continental shelf boundary between the two States
                     as requested by Nicaragua.

                       27. Support for this is also found in the Court’s rejection of Nicara‑
                     gua’s proposed “general formulation” for delimitation in paragraph 128
                     of the 2012 Judgment. In proposing this formulation, Nicaragua, as
                     shown above in paragraph 25, suggested that
                          “the Court could make that delimitation by defining the boundary in
                          words such as ‘the boundary is the median line between the outer edge
                          of Nicaragua’s continental shelf fixed in accordance with UNCLOS

                     54

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                     151 	 delimitation of the continental shelf (joint diss. op.)

                          Article 76 and the outer limit of Colombia’s 200‑mile zone’”
                          (I.C.J. Reports 2012 (II), p. 669, para. 128).
                     Yet, the Court found that “even using the general formulation proposed”
                     by Nicaragua (ibid., p. 669, para. 129 ; emphasis added), it was not in a
                     position to effect a delimitation between the Parties. If, as the majority
                     contends, the Court’s rejection of Nicaragua’s request was based on the
                     failure of Nicaragua to deposit information with the CLCS in accordance
                     with Article 76 (8) of UNCLOS (Judgment, para. 85), it would have been
                     superfluous for the Court to examine — and reject — separately the “gen‑
                     eral formulation” proposed by Nicaragua. The only reason that the Court
                     had to recall and reject the “general formulation” as distinct from Nica‑
                     ragua’s final submission I (3) was that the former claim relied solely on
                     the existence of an extended continental shelf that overlapped with
                     Colombia’s 200‑nautical‑mile entitlement, and not on the delineation of
                     its outer limits. However, Nicaragua did not prove to the Court the
                     existence of this extended continental shelf, let alone did it delineate its
                      outer limits.

                        28. Indeed, as summarized in paragraph 69 of the present Judgment,
                     Nicaragua itself conceded that the Court rejected its final submission I (3)
                     on the basis that it had failed to establish the existence of an extended
                     continental shelf that overlapped with Colombia’s 200‑nautical‑mile
                     entitlement. In oral proceedings in the present case, Nicaragua stated that

                          “si l’on veut à toute force admettre que la Cour a décidé quelque chose
                          [in the 2012 Judgment], ce ne peut être que ceci : le Nicaragua n’a pas
                          prouvé l’existence d’un chevauchement entre les zones maritimes lui
                          revenant au‑delà de la limite de 200 milles marins et celles sur lesquelles
                          la Colombie a juridiction” 3.
                       29. The majority relies on three features of the Court’s reasoning in the
                     2012 Judgment in support of its conclusion that
                          “Nicaragua’s claim could not be upheld . . . because the latter had yet
                          to discharge its obligation, under paragraph 8 of Article 76 of
                          UNCLOS, to deposit with the CLCS the information on the limits of
                          its continental shelf beyond 200 nautical miles required by that pro‑
                          vision and by Article 4 of Annex II of UNCLOS”. (Judgment,
                          para. 84).

                     These features are set out in paragraph 82 of the Judgment. None of
                     them, however, provides support for the majority’s view.
                         3 CR 2015/29, p. 26, para. 23 (Pellet). English translation of the Registry: “Basically,

                     if we want to insist that the Court decided something, it can only be this : Nicaragua had
                     failed to prove the existence of an overlap between the maritime areas appertaining to it
                     beyond the 200‑nautical‑mile limit and those over which Colombia has jurisdiction.”

                     55

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                     152 	 delimitation of the continental shelf (joint diss. op.)

                        30. First, the majority notes that the 2012 Judgment contains no ana
                     lysis of the geological and geomorphological evidence presented by Nica‑
                     ragua to support its claim to an extended continental shelf. This fact,
                     however, does not mean that the Court did not take that evidence into
                     account in reaching the conclusion that Nicaragua failed to establish the
                     existence of a continental margin that extends so far as to overlap with
                     Colombia’s 200‑nautical‑mile entitlement from its mainland coast. The
                     Court may make a global analysis of the evidence and is not required to,
                     and frequently does not, mention every piece of evidence it considered in
                     reaching a particular conclusion.

                        31. Moreover, the fact that the Court referred to Colombia’s submis‑
                     sion that the information provided by Nicaragua was “woefully defi‑
                     cient”, “rudimentary and incomplete” (I.C.J. Reports 2012 (II), p. 667,
                     para. 122) shows that the Court turned its mind to the probative value of
                     the geographical and geomorphological data submitted by Nicaragua.
                     The fact that the evidence presented to the Court was not referred to in a
                     detailed manner in the Judgment does not necessarily lead to the conclu‑
                     sion that the Court did not proceed to evaluate this evidence.
                        32. Secondly, the majority argues that the Court could not have
                     rejected Nicaragua’s claim on the merits since it did not consider it neces‑
                     sary to determine the applicable legal standards to establish the existence
                     of an extended continental shelf. However, the Court, in paragraph 118
                     of the 2012 Judgment, expressly declared Article 76 (1) of UNCLOS,
                     which defines the legal concept of a continental shelf, to be reflective of
                     customary international law and thus applicable between the Parties.

                       33. It was the failure of Nicaragua to prove that it had an extended
                     continental shelf overlapping with Colombia’s 200‑nautical‑mile entitle‑
                     ment within the meaning of Article 76 (1) of UNCLOS that led the Court
                     to dismiss Nicaragua’s final submission I (3). Moreover, the contradiction
                     inherent in paragraph 82 of the Judgment should be highlighted. On the
                     one hand, it is claimed that the Court did not consider it necessary to
                     determine the legal standards applicable for Nicaragua to establish the
                     existence of an extended continental shelf vis‑à‑vis Colombia, whilst, on
                     the other hand, it is maintained that the Court — in the very same section
                     of reasoning — established the procedural requirements incumbent on
                     Nicaragua to claim an extended continental shelf.

                        34. The third feature of the Court’s reasoning in the 2012 Judgment on
                     which the majority relies is the alleged emphasis on the obligation incum‑
                     bent on Nicaragua, as a party to UNCLOS, to submit information under
                     Article 76 (8) on the limits of the continental shelf to the CLCS. The
                     majority is wrong to assert that the Court “emphasize[d]” Nicaragua’s
                     failure to submit information to the CLCS as the basis for its conclusion
                     not to uphold its claim. To put it simply, nowhere in the 2012 Judgment

                     56

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                     153 	 delimitation of the continental shelf (joint diss. op.)

                     did the Court state that it could not uphold Nicaragua’s submission
                     because of failure to submit information to the CLCS. The majority’s
                     reading of the non‑fulfilment of that procedural requirement into
                     the Court’s conclusion in paragraph 129 is thus an addition to that
                     paragraph.

                        35. In paragraph 83 of the present Judgment the majority further con‑
                     tends that its interpretation of the Court’s conclusion in paragraph 129 of
                     the 2012 Judgment is confirmed by the inclusion of the words “in the
                     present proceedings” in the text of that paragraph, which “seem[s] to con‑
                     template the possibility of future proceedings”. As stated above (see para‑
                     graph 20), when the Court contemplates the possibility of parties returning
                     to the Court following the delivery of a judgment, it does so expressly.
                     The reference to “the present proceedings” in the Territorial and Mari-
                     time Dispute case did not leave the door open for Nicaragua to return to
                     the Court with the same claim. Otherwise, all the previous judgments in
                     which the Court referred to the “present proceedings” would be subject to
                     repeat litigation. The phrase “present proceedings” is nothing more than
                     a standard way of referring to the case at hand.
                        36. It must therefore be concluded that the failure of Nicaragua to
                     prove the existence of an extended continental shelf that overlaps with
                     Colombia’s 200‑nautical‑mile entitlement constituted the very basis of the
                     decision adopted by the Court in 2012 concerning delimitation. This is a
                     major element of the Court’s reasoning which laid the foundation for the
                     operative clause to which res judicata attaches.
                        37. The Second Request in Nicaragua’s Application in the present case
                     asks the Court to adjudge and declare
                          “[t]he principles and rules of international law that determine the
                          rights and duties of the two States in relation to the area of overlap‑
                          ping continental shelf claims and the use of its resources, pending the
                          delimitation of the maritime boundary between them beyond 200 nau‑
                          tical miles from Nicaragua’s coast” (AN, para. 12).

                       38. Nicaragua’s Second Request is a reformulation of the “general for‑
                     mulation” proposed by it in the second round of oral pleadings in the
                     Territorial and Maritime Dispute case. To recall :
                          “in the second round of oral argument, Nicaragua stated that it was
                          ‘not asking [the Court] for a definitive ruling on the precise location
                          of the outer limit of Nicaragua’s continental shelf ’. Rather, it was
                          ‘asking [the Court] to say that Nicaragua’s continental shelf entitle‑
                          ment is divided from Colombia’s continental shelf entitlement by a
                          delimitation line which has a defined course’. Nicaragua suggested
                          that ‘the Court could make that delimitation by defining the boundary
                          in words such as ‘the boundary is the median line between the outer

                     57

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                     154 	 delimitation of the continental shelf (joint diss. op.)

                          edge of Nicaragua’s continental shelf fixed in accordance with
                          UNCLOS Article 76 and the outer limit of Colombia’s 200‑mile
                          zone’ ’. This formula, Nicaragua suggested, ‘does not require the Court
                          to determine precisely where the outer edge of Nicaragua’s shelf lies’.
                          The outer limits could be then established by Nicaragua at a later
                          stage, on the basis of the recommendations of the Commission.”
                          (I.C.J. Reports 2012 (II), p. 669, para. 128 ; emphasis added.)
                     In both cases, Nicaragua requests the Court, pending recommendations
                     by the CLCS, to determine the existence of overlapping continental shelf
                     entitlements without delimiting the precise course of the boundary. In the
                     2012 Judgment, the Court rejected Nicaragua’s proposed “general formu‑
                     lation” on the basis that it had not established the existence of an extended
                     continental shelf that overlapped with Colombia’s 200‑nautical‑mile
                     entitlement (ibid., para. 129).

                       39. As with Nicaragua’s First Request in the present case, the Second
                     Request is barred by res judicata. In the 2012 Judgment, the Court decided
                     that Nicaragua had not adduced sufficient evidence to allow it to adopt
                     the “general formulation” for delimitation proposed in the second round
                     of oral pleadings. It now tries to bring back the same claim, on the same
                     grounds, against the same Party.

                             V. The Incoherence of the Procedural Requirement
                                        Introduced by the Majority

                        40. The previous sections have shown that Nicaragua’s First and Sec‑
                     ond Requests in the present case are barred by the principle of res judi-
                     cata and therefore should be rejected as inadmissible. In order to avoid
                     this conclusion, the majority has read a procedural requirement into
                     the 2012 Judgment according to which a coastal State is obliged to
                     submit information to the CLCS under Article 76 (8) of UNCLOS as a
                      prerequisite for the delimitation of extended continental shelf entitle‑
                      ments between Nicaragua and Colombia. The majority therefore frames
                      submission of information to the CLCS under Article 76 (8) as a condition
                      of admissibility.

                       41. The fact that Nicaragua submitted such information to the CLCS
                     on 24 June 2013 means that the majority “accordingly considers that the
                     condition imposed by it in its 2012 Judgment in order for it to be able to
                     examine the claim of Nicaragua contained in the final submission I (3)
                     has been fulfilled in the present case” (Judgment, para. 87).
                       42. The Court has stated that an objection to admissibility “consists in
                     the contention that there exists a legal reason, even when there is jurisdic‑

                     58

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                     155 	 delimitation of the continental shelf (joint diss. op.)

                     tion, why the Court should decline to hear the case, or more usually, a
                     specific claim therein” (Application of the Convention on the Prevention
                     and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary
                     Objections, Judgment, I.C.J. Reports 2008, p. 456, para. 120).
                        43. In the present Judgment, the majority states that
                          “Nicaragua was under an obligation, pursuant to paragraph 8 of Arti‑
                          cle 76 of UNCLOS, to submit information on the limits of the conti‑
                          nental shelf it claims beyond 200 nautical miles to the CLCS. The
                          Court held, in its 2012 Judgment, that Nicaragua had to submit such
                          information as a prerequisite for the delimitation of the continental
                          shelf beyond 200 nautical miles by the Court.” (Judgment, para. 105 ;
                          emphasis added.)
                       44. However, in the 2012 Judgment, the question of admissibility of
                     Nicaragua’s final submission I (3) was expressly raised by Colombia,
                     which argued that the request to delimit an extended continental shelf
                     was neither implicit in the Application of Nicaragua nor was it an issue
                     that arose directly out of the subject‑matter of the dispute (I.C.J. Reports
                     2012 (II), p. 664, para. 107). Colombia hence argued that the new claim
                     was inadmissible.

                       45. The Court rejected Colombia’s objection to admissibility, stating
                     that
                          “[i]n the Court’s view, the claim to an extended continental shelf falls
                          within the dispute between the Parties relating to maritime delimita‑
                          tion and cannot be said to transform the subject‑matter of that dis‑
                          pute. Moreover, it arises directly out of that dispute. What has
                          changed is the legal basis being advanced for the claim (natural pro‑
                          longation rather than distance as the basis for a continental shelf
                          claim) and the solution being sought (a continental shelf delimitation
                          as opposed to a single maritime boundary), rather than the subject‑
                          matter of the dispute. The new submission thus still concerns the
                          delimitation of the continental shelf, although on different legal
                          grounds . . .

                             112. The Court concludes that the claim contained in final submis-
                          sion I (3) by Nicaragua is admissible.” (Ibid., p. 665, paras. 111‑112 ;
                          emphasis added.)
                        46. When Nicaragua presented its final submissions in the previous
                     case, on 1 May 2012, and when the Court delivered its Judgment in that
                     case, on 19 November 2012, Nicaragua had not made a submission to the
                     CLCS pursuant to Article 76 (8) of UNCLOS. The procedural require‑
                     ment that the majority identifies as a “prerequisite” (Judgment, para. 105)
                     was hence unfulfilled. Yet, the Court found Nicaragua’s final submis‑
                     sion I (3) to be admissible. Colombia did not argue that Nicaragua’s
                     claim was inadmissible because it had failed to fulfil a procedural require‑

                     59

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                     156 	 delimitation of the continental shelf (joint diss. op.)

                     ment. However, the Court has the power to raise issues of admissibility
                     proprio motu and, if necessary, dismiss claims that it considers to be inad‑
                     missible. It did not do this.

                        47. The Court had the opportunity to state in the 2012 Judgment that
                     it considered submission of information to the CLCS under Article 76 (8)
                     of UNCLOS to be a prerequisite for delimitation, and thus to declare
                     Nicaragua’s final submission I (3) inadmissible. The majority attempts to
                     avoid confronting this fact by arguing that the Court adjudged Nicara‑
                     gua’s final submission I (3) to be admissible but did not continue to
                     address the submission on the merits (Judgment, para. 72).
                        48. However, the majority does not explain what possible purpose
                     would be served by declaring a claim to be admissible but not continuing
                     to address it on the merits. Moreover, it does not explain how the Court,
                     once it has declared a claim to be admissible, can refuse to address the
                     claim on the merits. Indeed, this approach is at odds with the Court’s
                     jurisprudence, in which it has emphasized that “[t]he Court must not
                     exceed the jurisdiction conferred upon it by the Parties, but it must also
                     exercise that jurisdiction to its full extent” (Continental Shelf (Libyan Arab
                     Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 23, para. 19).
                        49. This line of reasoning leaves the Court in a strange position. If one
                     accepts the view of the majority in the current case, the Court should not,
                     in the 2012 proceedings, have accepted Nicaragua’s final submission I (3)
                     as admissible and should not have proceeded to address the claim on the
                     merits. On the other hand, if one accepts — as the Court did in 2012 —
                     that Nicaragua’s final submission I (3) was admissible, then logic dictates
                     that a submission to the CLCS under Article 76 (8) of UNCLOS cannot
                     be a prerequisite to adjudicate upon a request for delimitation of the
                     extended continental shelf. The incoherence of the majority’s position is
                     thus plain for all to see.

                        50. Not only is the position of the majority at odds with the Court’s
                     previous decisions, but it also is inconsistent with the provisions of Arti‑
                     cle 76 of UNCLOS itself. Article 76 (8) may be divided into three limbs,
                     each with the imperative shall in the English version of the Convention :
                     information shall be submitted by the coastal State ; the Commission shall
                     make recommendations ; and the limits established upon the basis of
                     CLCS recommendations shall be final and binding. It is unclear why the
                     majority considers that the first limb of this Article constitutes a prereq‑
                     uisite to delimitation whereas the other two limbs do not ; clearly, there is
                     no textual support for such a reading.
                        51. The majority, in relation to Colombia’s fifth preliminary objection,
                     draws a tenuous distinction between the different limbs of Article 76 (8),
                     stating that
                          “since the delimitation of the continental shelf beyond 200 nauti‑
                          cal miles can be undertaken independently of a recommendation from

                     60

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                     157 	 delimitation of the continental shelf (joint diss. op.)

                          the CLCS, the latter is not a prerequisite that needs to be satisfied by
                          a State party to UNCLOS before it can ask the Court to settle a
                          dispute with another State over such a delimitation” (Judgment,
                          para. 114).
                     If delimitation can be effected without recommendations from the CLCS,
                     it can certainly be effected also without submission of information to the
                     CLCS. It is illogical to say that the mere submission of information to the
                     CLCS pursuant to Article 76 (8) constitutes a precondition for delimita‑
                     tion, whereas the recommendations of the CLCS, which are based on
                     such submission, and provided for under Article 76 (8) do not constitute
                     a prerequisite for that purpose.

                       VI. The Purposes of Submission of Information under Article 76
                                 of UNCLOS and Article 4 of Its Annex II

                        52. The only paragraph on which the majority could base its reading
                     of the 2012 Judgment as containing a procedural requirement for the sub‑
                     mission of information to the CLCS is paragraph 127. However, to do so
                     would be a misunderstanding of the operation of Article 76 of UNCLOS.
                     Paragraph 127 of the 2012 Judgment states that the “Preliminary Infor‑
                     mation” that Nicaragua submitted to the CLCS did not meet, by its own
                     admission, the requirements for submission of information under Arti‑
                     cle 76 (8).

                        53. This finding is unsurprising and unexceptional : the submission of
                     “Preliminary Information” is not designed to fulfil the requirements to
                     submit information under Article 76 (8). Rather, the term “Preliminary
                     Information” was first used in the decision of States parties to UNCLOS
                     of 20 June 2008 (SPLOS/183), in which it was recognized that coastal
                     States intending to claim a continental shelf could file “indicative” infor‑
                     mation as a means of fulfilling their obligation under Article 4 of Annex II
                     to UNCLOS to submit “particulars” of prospective continental shelf
                     claims to the CLCS within ten years of the entry into force of the Con‑
                     vention for that State 4. This was a means of allowing States, in particular
                     developing ones, which may lack the necessary technical capabilities, the
                     possibility of complying with the “sunset clause” for claiming an extended
                     continental shelf under UNCLOS, whilst providing them with the extra

                        4 UNCLOS, Meeting of States Parties, Decision regarding the workload of the Commis-

                     sion on the Limits of the Continental Shelf and the ability of States, particularly developing
                     States, to fulfil the requirements of Article 4 of Annex II to the United Nations Conven-
                     tion on the Law of the Sea, as well as the decision contained in SPLOS/72, paragraph (a).
                     (SPLOS/183, para. 1 (a).)

                     61

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                     158 	 delimitation of the continental shelf (joint diss. op.)

                     time required to complete the requisite geological and geomorphological
                     surveys to prove the existence of an extended continental shelf.

                        54. According to that decision of the Meeting of States Parties :
                             “Pending the receipt of the submission in accordance with the
                           requirements of Article 76 of the Convention and with the Rules of
                           Procedure and the Scientific and Technical Guidelines of the Com‑
                           mission, preliminary information submitted in accordance with sub‑
                           paragraph (a) above shall not be considered by the Commission.”
                           (SPLOS/183, para. 1 (b).)
                     Thus, the purpose of the submission of the “Preliminary Information”,
                     being solely directed to “stop the clock” for States parties, is totally dif‑
                     ferent and clearly distinguishable from the purpose of the submission of
                     information required under Article 76 (8) of UNCLOS, which is aimed at
                     obtaining recommendations from the CLCS.

                        55. The procedural requirement upon which the majority places great
                     emphasis — the obligation to submit information to the CLCS according
                     to Article 76 (8) of UNCLOS — is also conditional on the fulfilment of
                     the “test of appurtenance”, as set out in the Guidelines of the CLCS 5.
                     According to this test, a coastal State must first prove that it has a conti‑
                     nental shelf entitlement that extends beyond 200 nautical miles before it is
                     permitted — indeed, obliged — to delineate the outer limits of the shelf 6.
                     This test is based on Article 76 (4) (a) of UNCLOS, which provides that
                     “the coastal State shall establish the outer edge of the continental margin
                     wherever the margin extends beyond 200 nautical miles . . .” 7. The obliga‑
                     tion to delineate the outer limits of the continental shelf, and thus submit

                        5 See further, Scientific and Technical Guidelines of the Commission on the Limits

                     of the Continental Shelf, 13 May 1999 (CLCS/11), point 2.2. The pertinence of the test
                     was recognized by ITLOS in Dispute concerning Delimitation of the Maritime Boundary
                     between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment
                     of 14 March 2012, para. 436.
                        6 The CLCS Guidelines define the test of appurtenance as follows :

                              “If either the line delineated at a distance of 60 nautical miles from the foot of the
                           continental slope, or the line delineated at a distance where the thickness of sedimen‑
                           tary rocks is at least 1 per cent of the shortest distance from such point to the foot of
                           the slope, or both, extend beyond 200 nautical miles from the baselines from which
                           the breadth of the territorial sea is measured, then a coastal State is entitled to delin‑
                           eate the outer limits of the continental shelf as prescribed by the provisions contained
                           in Article 76, paragraphs 4 to 10.” (CLCS Guidelines, point 2.2.8.)

                        7 The French version of the text provides that “l’Etat côtier définit le rebord externe de

                     la marge continentale, lorsque c elle-ci s’étend a u-delà de 200 milles marins . . . ” ; emphasis
                     added.

                     62

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                     159 	 delimitation of the continental shelf (joint diss. op.)

                     information to the CLCS pursuant to Article 76 (8), is contingent on
                     proof that an extended continental shelf appertains to the coastal State.
                     In the words of the CLCS, if “a State does not demonstrate to the Com‑
                     mission that the natural prolongation [extends beyond 200 nautical
                     miles]. . . [it does] not have an obligation to submit information on the
                     limits of the continental shelf to the Commission” 8.

                        56. The Court rightly recognized that Nicaragua is bound by Article 76
                     of UNCLOS when claiming an extended continental shelf. But this does
                     not mean that it is a prerequisite to submit information to the CLCS
                     under Article 76 (8) in order to delimit overlapping continental shelf
                     entitlements. Article 76 establishes a process whereby a coastal State

                     delineates the outer limit of its continental shelf, according to the criteria
                     laid down in paragraphs 4‑7. It shows then to the other States parties how
                     its delineation fits these rules through the submission of information to the
                     Commission describing the scientific and technical basis of its delineation.
                     It should be noted that information submitted to the CLCS pursuant to
                     Article 76 (8) of UNCLOS will not necessarily be regarded as sufficient to
                     establish the existence of an extended continental shelf.

                        57. The function of the CLCS is to examine the submission of the
                     claimant State and to make recommendations to it on whether the
                     description of its delineation meets the criteria laid down in Article 76. In
                     this sense, the CLCS is a “legitimator”, but coastal States are not only
                     free to delineate their claimed extended continental shelf ; they are actu‑
                     ally expected to carry out their delineation before submitting the informa‑
                     tion regarding their claim to the CLCS for validation or legitimation, in
                     other words, before sharing their claim with other States. In this context,
                     it should be noted that States have concluded delimitation agreements
                     between themselves without making a submission to the CLCS, or with‑
                     out receiving recommendations from it (see for example, Treaty between
                     the Kingdom of Norway and the Russian Federation concerning Mari‑
                     time Delimitation and Co-operation in the Barents Sea and the Arctic
                     Ocean, 15 September 2010).

                        58. The overarching purpose for which a State has to make a submis‑
                     sion to the CLCS is to obtain recommendations to validate its own delin‑
                     eation. It is therefore surprising that the majority should maintain that
                     the submission of information, under Article 76 (8) of UNCLOS, was
                     considered a prerequisite by the Court in its 2012 Judgment for acceding
                     to Nicaragua’s delimitation request, while concluding in the present Judg‑
                     ment that recommendations from the CLCS are “not a prerequisite that

                          8   CLCS Guidelines, point 2.2.4.

                     63

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                     160 	 delimitation of the continental shelf (joint diss. op.)

                     needs to be satisfied by a State party to UNCLOS before it can ask the
                     Court to settle a dispute with another State over . . . delimitation” (Judg‑
                     ment, para. 114).

                                      VII. Ne Bis in Idem and the Exhaustion
                                               of Treaty Processes

                        59. Even if one were to accept the majority’s interpretation of the
                     2012 Judgment, Nicaragua should not now be able to come before the
                     Court for a second time to attempt to remedy the procedural flaw which
                     supposedly precluded the Court from delimiting its allegedly overlapping
                     extended continental shelf entitlement in 2012. Allowing such an action
                     could be injurious to both the respondent State, which should be pro‑
                     tected from repeat litigation, and the efficient operation of the judicial
                     system for the settlement of international disputes.
                        60. The principle of ne bis in idem operates, like res judicata, to protect
                     from the effects of repeat litigation. According to this principle, a repeat
                     claim is inadmissible whether or not the issue is covered by the principle
                     of res judicata. One cannot knock at the Court’s door a second time with
                     regard to a claim already examined by the Court on its merits. The fact
                     that Nicaragua would now be able to present evidence that was not avail‑
                     able to it during the judicial proceedings that led to the 2012 Judgment
                     does not make the new claim less repetitive of the previous claim.

                        61. Moreover, in so far as the new Application represents a repetition
                     of the previous claim, the issue of preclusion based on the exhaustion of
                     treaty processes (in French, “épuisement des recours prévus dans le
                     traité”) may also be raised. In a similar vein to res judicata and
                     ne bis in idem, this principle also operates to safeguard against the detri‑
                     mental effects of repeat litigation. According to this principle, the renewed
                     presentation of a claim previously examined by the Court may be consid‑
                     ered inadmissible if that claim relies on the same treaty process as the
                     basis of jurisdiction of the Court. This finds support in the Court’s Judg‑
                     ment on preliminary objections in the Barcelona Traction case, in which
                     the Court said :
                            “It has been argued that the first set of proceedings ‘exhausted’ the
                          Treaty processes in regard to the particular matters of complaint, the
                          subject of those proceedings, and that the jurisdiction of the Court
                          having once been invoked, and the Court having been duly seised in
                          respect of them, the Treaty cannot be invoked a second time in order
                          to seise the Court of the same complaints. As against this, it can be
                          said that the Treaty processes are not in the final sense exhausted in
                          respect of any one complaint until the case has been either prosecuted

                     64

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                     161 	 delimitation of the continental shelf (joint diss. op.)

                          to judgment, or discontinued in circumstances involving its final
                          renunciation — neither of which constitutes the position here [that is,
                          in the Barcelona Traction case].” (I.C.J. Reports 1964, p. 26.)

                     Leaving aside the issue of discontinuance, which is not relevant to the
                     present case, the Court referred to the fact that a case “has been . . . pros‑
                     ecuted to judgment”.
                         62. In the present proceedings, Nicaragua not only brings the same
                     claim as it did in the 2012 case, but it also does so on the same basis of
                     jurisdiction ; namely, Article XXXI of the Pact of Bogotá. As noted
                     above, the claim was — to borrow the terminology of the Court in
                     Barcelona Traction — “prosecuted to judgment”. Nicaragua’s Applica‑
                      tion in the present proceedings should thus be considered inadmissible on
                      the basis that it has exhausted the treaty processes under the Pact of
                      Bogotá.

                           VIII. Conclusion : the Authority of Res Judicata and the
                                    Protection of the Judicial Function

                        63. In this joint dissenting opinion, we have outlined why we
                     have voted against subparagraph (1) (b) of the operative paragraph in
                     the present Judgment and why we are of the view that the Court should
                     have upheld Colombia’s third preliminary objection related to res judi-
                     cata.
                        64. In the Application of the Genocide Convention case, the Court out‑
                     lined the purposes of the principle of res judicata as follows :

                             “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 . . . 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 set‑
                          tlement of disputes.” (Application 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,
                          para. 116.)

                        65. These purposes — finality of litigation and protection of the
                     respondent from repeat litigation — protect both the operation of the
                     legal system and those within it. A scenario in which the purposes of

                     65

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                     162 	 delimitation of the continental shelf (joint diss. op.)

                     res judicata are no longer served undermines the judicial function as well
                     as the sound administration of justice.

                       66. By casting the rejection of Nicaragua’s request for delimitation in
                     the Territorial and Maritime Dispute case as a decision to which res judi-
                     cata does not attach, the Court may be seen by some as being open to
                     repeat litigation, which cannot be the case.

                        67. Nicaragua and Colombia have been embroiled in a long‑running
                     dispute for many years regarding their respective maritime entitlements.
                     As the principal judicial organ of the United Nations, the Court is well
                     placed to settle such disputes. But if it is to continue to be regarded as
                     such, it cannot afford to be seen to allow States to bring the same disputes
                     over and over again. Such a scenario would undercut the certainty, stabil‑
                     ity, and finality that judgments of this Court should provide.

                                                    (Signed) Abdulqawi A. Yusuf.
                                            (Signed) Antônio Augusto Cançado Trindade.
                                                         (Signed) Xue Hanqin.
                                                        (Signed) Giorgio Gaja.
                                                     (Signed) Dalveer Bhandari.
                                                    (Signed) Patrick L. Robinson.
                                                     (Signed) Charles N. Brower.

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