ICJ preliminary objections Costa Rica v Nicaragua, Nicaragua v US

Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009

135.  It was only in its Rejoinder that Nicaragua submitted that the claim was not admissible on the ground that this particular claim was not included nor was it implicit in the Application. Nicaragua also asserts that this claim did not arise directly out of the subject-matter of the Application.

136. Costa Rica in the first round of the oral hearings, as well as discussing the merits of the claim, addressed its admissibility in some detail. It submitted, first, that Nicaragua, by pleading to the merits in the Counter-Memorial, implicitly accepted the admissibility of the fisheries claim; second, that Nicaragua was to be taken as having consented to the jurisdiction of the Court and is debarred from raising the issue; third, that Costa Rica had reserved the right to supplement and modify its Application; fourth, that the claim was implicitly included as being “a step to aggravate and extend the dispute”, a matter included in the Application; and, fifth, the claim fell within“other applicable rules of international law” also referred to in the Application. 

137. The Court recalls at the outset that admissibility is distinct from jurisdiction. In the  current instance the Court is dealing with the question of admissibility. It is further recalled that it is for the Court to determine in the light of the circumstances of each case whether an application is admissible (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 240). Under Article 40, paragraph 1, of the Statute of the Court, the “subject of the dispute” must be indicated in the Application; as established in the Court’s jurisprudence, an additional claim must have been implicit in the Application (Temple of Preah Vihear (Cambodia v. Thailand), Merits, Judgment, I.C.J. Reports 1962, p. 36) or must arise “directly out of the question which is the subject-matter of that Application” (Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203, para. 72). With regard to Nicaragua’s argument that Costa Rica’s claim relating to subsistence fishing is inadmissible on the grounds that Costa Rica failed to include, even implicitly, the claim in its Application, the Court notes that the alleged interferences by Nicaragua with the claimed right of subsistence fishing post-date the filing of the Application.As to Nicaragua’s second argument that the claim does not arise directly out of the subject-matter of the Application, the Court considers that in the circumstances of this case, given the relationship between the riparians and the river and the terms of the Application, there is a sufficiently close connection between the claim relating to subsistence fishing and the Application, in which Costa Rica, in addition to the 1858 Treaty, invoked “other applicable rules and principles of international law”.

139. Accordingly, Nicaragua’s objection to admissibility cannot be upheld.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment of 26 November 1984, ICJ Reports 1984, pp. 429-442:84. 

The Court now turns to the question of the admissibility of the Application of Nicaragua. The United States of America contended in its Counter-Memorial that Nicaragua's Application is inadmissible on five separate grounds, each of which, it is said, is sufficient to establish such inadmissibility, whether considered as a legal bar to adjudication or as "a matter requiring the exercise of prudential discretion in the interest of the integrity of thejudicial function".

86. The first ground of inadmissibility relied on by the United States is that Nicaragua has failed to bring before the Court parties whose presence and participation is necessary for the rights of those parties to be protected and for the adjudication of the issues raised in the Application. The United States first asserts that adjudication of Nicaragua's claim would necessarily implicate the rights and obligations of other States, in particular those of Honduras

89. Secondly, the United States regards the Application as inadmissible because each of Nicaragua's allegations constitutes no more than a reformulation and restatement of a single fundamental claim, that the United States is engaged in an unlawful use of armed force, or breach of the peace, or acts of aggression against Nicaragua, a matter which is committed by the Charter and by practice to the competence of other organs, in particular the United Nations Security Council.

91. It will be convenient to deal with this alleged ground of inadmissibility together with the third ground advanced by the United States namely that the Court should hold the Application of Nicaragua to be inadmissible in view of the subject-matter of the Application and the position of the Court within the United Nations system, including the impact of proceedings before the Court on the ongoing exercise of the "inherent right of individual or collective self-defence" under Article 5 1 of the Charter. This is, it is argued, a reason why the Court may not properly exercise "subject-matterjurisdiction" over Nicaragua's claims.

99. The fourth ground of inadmissibility put forward by the United States is that the Application should be held inadmissible in consideration of the inability of the judicial function to deal with situations involving ongoing conflict.It is for reasons of this nature that ongoing armed conflict must be entrusted to resolution by political processes.

102. The fifth and final contention of the United States under this head is that the Application should be held inadmissible because Nicaragua has failed to exhaust the established processes for the resolution of the conflicts occurring in Central America. In the contention of the United States, the Contadora process, to which Nicaragua is Party, is recognized both by the political organs of the United Nations and by the Organization of American States, as the appopriate method for the resolution of the issues of Central America.

Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment of 13 December 2007

43. The Court recalls that in its first preliminary objection, Colombia claims that pursuant to Articles VI and XXXIV of the Pact of Bogotá, the Court is without jurisdiction under Article XXXI of the Pact to hear the controversy submitted to it by Nicaragua and should declare the controversy ended (for the text of Articles VI, XXXI and XXXIV of the Pact of Bogotá, see paragraphs 55 and 56 below). In this regard, Colombia, referring to Article VI of the Pact, argues that the matters raised by Nicaragua were settled by a treaty in force on the date on which the Pact was concluded, namely the 1928 Treaty and the 1930 Protocol. Colombia adds that this question can and must be considered at the preliminary objections stage.

45. The Court initially notes that the Parties disagree on whether the questions raised by the first preliminary objection may be examined at this stage of the proceedings.The determination by the Court of its jurisdiction may touch upon certain aspects of the merits of the case (Certain German Interests in Polish Upper Silesia, Jurisdiction, Judgment No. 6, 1925, P.C.I.J., Series A, No. 6, p. 15). Moreover, the Court has already found that the question of whether the 1928 Treaty and the 1930 Protocol settled the matters in dispute does not constitute the subject-matter of the dispute on the merits. It is rather a preliminary question to be decided in order to ascertain whether the Court has jurisdiction (see paragraph 40 above).

120. Consequently, after examining the arguments presented by the Parties and the material submitted to it, the Court concludes that the 1928 Treaty and 1930 Protocol did not effect a general delimitation of the maritime boundary between Colombia and Nicaragua. It is therefore not necessary for the Court to consider the arguments advanced by the Parties regarding the effect on this question of changes in the law of the sea since 1930. Since the dispute concerning maritime delimitation has not been settled by the 1928 Treaty and 1930 Protocol within the meaning of Article VI of the Pact of Bogotá, the Court has jurisdiction under Article XXXI of the Pact. Therefore, the Court cannot uphold Colombia’s first preliminary objection in so far as it concerns the Court’s jurisdiction as regards the question of the maritime delimitation between the Parties.

5. SECOND PRELIMINARY OBJECTION
121. In addition to Article XXXI of the Pact of Bogotá, Nicaragua  invoked as a basis of the Court’s jurisdiction the declarations made by the Parties under Article 36 of the Statute of the Permanent Court of International Justice, which are deemed, for the period for which they still have to run, to be acceptances of the compulsory jurisdiction of the present Court pursuant to Article 36, paragraph 5, of its Statute (see paragraph 1 above). In its second preliminary objection, Colombia asserts that the Court has no jurisdiction on this basis.

127. Colombia argues that, in any event, the Court would have no jurisdiction on this basis since Colombia’s optional clause declaration had been withdrawn by the date of the filing of Nicaragua’s Application. Colombia further contends that even if its declaration were found to be in force at the time when Nicaragua filed its Application, the alleged dispute would fall outside the scope of the declaration as a result of a reservation which excluded disputes arising out of facts prior to 6 January 1932. According to Colombia, the facts which have given rise to the dispute between Nicaragua and Colombia, namely the conclusion of the 1928 Treaty and 1930 Protocol, predate 6 January 1932.

140. The Court thus upholds the second preliminary objection relating to jurisdiction under the optional clause declarations raised by Colombia in so far as it concerns the Court’s jurisdiction as regards the question of sovereignty over the islands of San Andrés, Providencia and Santa Catalina, and finds that it is not necessary to examine the objection in so far as it concerns sovereignty over the other maritime features in dispute between the Parties and the maritime delimitation between the Parties (see paragraph 132).

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment of 18 November 2008, paras. 52-130

Preliminary Objections (Nigeria v. Cameroon), Judgment of 25 March 1999