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A Practitioner’s Guide to Maritime Boundary Delimitation by Fietta, Stephen; Cleverly, Robin (24th March 2016)

Part B Commentary on Judgments and Awards in Maritime Boundary Delimitation Disputes, 21 Nicaragua v. Colombia (Judgment of the International Court of Justice, 19 November 2012)

From: A Practitioner’s Guide to Maritime Boundary Delimitation

Stephen Fietta, Robin Cleverly

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 25 January 2020

Subject(s):
Coastal states — Delimitation — Straits — Territorial sea — UNCLOS (UN Convention on the Law of the Sea)

(p. 509) 21  Nicaragua v. Colombia (Judgment of the International Court of Justice, 19 November 2012)

Case Note: Sovereignty over maritime features—uti possidetis juris principle—effectivités—Nicaragua’s claim for delimitation of a continental shelf beyond 200M of its coast (but within 200M of Colombia)—Article 76 of UNCLOS—EEZ and continental shelf delimitation—three-stage delimitation methodology—relevant coasts—relevant maritime area—entitlements generated by maritime features—relevant circumstances requiring adjustment of a provisional median line—interests of third States—proportionality test

Citation: Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, ICJ Reports 2012, p. 624

Institution: ICJ

Basis of jurisdiction: American Treaty on Pacific Settlement (Pact of Bogotá), Article XXXI; ICJ Statute, Article 36(2)

The Court: Judges Tomka (President), Sepúlveda-Amor (Vice-President), Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Sebutinde; Judges ad hoc Mensah (appointed by Nicaragua),1 Cot (appointed by Colombia).2

Applicable law: customary international law3

Areas delimited: territorial sea; EEZ; continental shelf (within 200M)(p. 510)

I.  Introduction and Context

This case concerned a dispute between Nicaragua and Colombia before the ICJ over title to territory and maritime boundary delimitation in the Caribbean Sea.

The Caribbean Sea is partially enclosed to the north and east by the islands of the West Indies. It is bounded to the south and west by the South and Central American landmass. The east coast of Nicaragua projects eastwards into the Caribbean Sea, with a number of Nicaraguan islands located off its east mainland coast. Colombia is located to the east of Nicaragua and its north mainland coast projects north-westwards into the Caribbean Sea. The islands of San Andrés, Providencia, and Santa Catalina are situated about 125M to the east of the Nicaraguan coast and approximately 380M from Colombia’s mainland. The geographical context of the dispute is illustrated in Figure B21.1.

The dispute combined land sovereignty and maritime delimitation aspects. The land sovereignty dispute concerned the islands of San Andrés (population over 70,000), Providencia (population 5,000), and Santa Catalina and a number of other maritime features in the Caribbean Sea. These maritime features are Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, Quitasueño, Serranilla, and Bajo Nuevo. Their location is illustrated in Figure B21.1. The maritime delimitation dispute concerned the course of the maritime boundary between Nicaragua and Colombia in the Caribbean Sea.

Nicaragua and Colombia had long attempted to settle their dispute in the Caribbean Sea. In 1928, they signed the Treaty concerning Territorial Questions at Issue between Colombia and Nicaragua (the ‘1928 Treaty’) in order to ‘put an end to the territorial dispute between them’. Pursuant to Article 1 of the 1928 Treaty, Nicaragua recognized Colombia’s sovereignty ‘over the islands of San Andrés, Providencia and Santa Catalina and over the other islands, islets and reefs forming part of the San Andrés Archipelago’. In 1930, the parties signed a protocol stating that the San Andrés Archipelago does not extend west of the 82nd meridian (the ‘1930 Protocol’) (see Figure B21.1).

In 1969, Nicaragua issued a number of oil exploration concessions and reconnaissance permits covering maritime zones to the east of the 82nd meridian. Colombia protested, claiming that the 1928 Treaty had established the 82nd meridian as the western boundary of the San Andrés Archipelago. Nicaragua, however, claimed that the reference to the 82nd meridian was to establish the limit of the San Andrés Archipelago, not a maritime boundary between the two countries. Nicaragua argued that the areas concerned were part of its continental shelf and that the concessions had, therefore, been granted in accordance with international law. Colombia replied by making a formal declaration of sovereignty over the maritime areas located east of the 82nd meridian.(p. 511)

Figure B21.1:  Nicaragua/Colombia: regional setting and parties’ claims.

(p. 512) In July 1979, the Sandinista Government came to power in Nicaragua. A few months later, Nicaragua declared the 1928 Treaty null and invalid. Colombia rejected the Nicaraguan declaration ‘as an unfounded claim that was historically incorrect’, which ‘breached the most elementary principles of public international law’. Subsequent Nicaraguan administrations maintained their position as to the invalidity of the 1928 Treaty and the meaning of that treaty’s reference to the 82nd meridian.

On 6 December 2001, Nicaragua filed an application instituting proceedings against Colombia at the ICJ with regard to ‘a group of related legal issues subsisting’ between the two States ‘concerning title to territory and maritime delimitation’ in the Caribbean Sea. Nicaragua founded the court’s jurisdiction on the compromissory clause in Article XXXI of the 1948 American Treaty of Pacific Settlement (the ‘Pact of Bogotá’) and on both parties’ respective Optional Clause Declarations under Article 36 of the Statute of the Permanent Court of International Justice.

The claim lines advanced by Nicaragua and Colombia in the proceeding are illustrated in Figure B21.1.

The court issued four judgments in the case: the judgment on preliminary objections of 13 December 2007 (the ‘Judgment on Preliminary Objections’);4 the two judgments of 4 May 2011, on Costa Rica’s and Honduras’s applications for permission to intervene under Article 62 of the ICJ Statute; and the judgment on the merits of 19 November 2012 (the ‘Judgment on the Merits’).

II.  Positions of the Parties and Summary of the Judgments

a.  Procedural issues: challenge to jurisdiction

The parties disagreed as to whether a dispute existed between them or as to the subject matter thereof (Judgment on Preliminary Objections, para. 33). Colombia claimed that the matters in issue had been settled by the 1928 Treaty (Judgment on Preliminary Objections, para. 37). This, according to Colombia, prevented the court from having jurisdiction under Article VI of the Pact of Bogotá, or Article 36 of the PCIJ Statute. Nicaragua, on the other hand, contended that the validity and the meaning of the 1928 Treaty were precisely some of the matters in dispute.

The court recalled that Nicaragua had advanced the lack of validity of the 1928 Treaty for the first time in 1980. On that basis, it concluded that the 1928 Treaty was valid and in force on the date of the conclusion of the Pact of Bogotá in 1948. (p. 513) The court noted that this was the relevant date for the purposes of deciding on the jurisdiction of the court under Article VI of the Pact of Bogotá (Judgment on Preliminary Objections, paras 79–81). Moreover, the court held that, even if the 1928 Treaty had been terminated, the principle of the ‘objectivization of boundaries’ would have prevented this termination from having any effect on Colombia’s sovereignty over San Andrés, Providencia, and Santa Catalina. Specifically, with reference to its 1994 judgment in the Libya/Chad territorial dispute, the court recalled that ‘it is a principle of international law that a territorial régime established by treaty “achieves a permanence which the treaty itself does not necessarily enjoy” and the continued existence of that régime is not dependent upon the continuing life of the treaty under which the régime is agreed’. Judgment on Preliminary Objections, para. 89).5

The court concluded, therefore, that the 1928 Treaty had settled the question of Colombia’s sovereignty over the islands of San Andrés, Providencia, and Santa Catalina. As such, the court partially upheld Colombia’s first preliminary objection (Judgment on Preliminary Objections, para. 90). However, contrary to Colombia’s position, the court found that the 1928 Treaty did not settle matters concerning the sovereignty over the rest of the disputed maritime features (Judgment on Preliminary Objections, para. 90). The court also rejected Colombia’s argument that the Treaty could be interpreted as effecting a maritime delimitation between the parties (Judgment on Preliminary Objections, para. 115). On that basis, the court held that it had jurisdiction to decide on these two issues (Judgment on Preliminary Objections, paras 97 and 120).

b.  Third-party applications for permission to intervene in the proceedings

Costa Rica’s attempted intervention

On 25 February 2010, Costa Rica applied to intervene in the proceeding. The court rejected this application in a judgment issued on 4 May 2011 (‘Costa Rica’s Intervention Judgment’).6

Costa Rica wished to inform the court of the nature of Costa Rica’s legal rights and interests in the southern part of the disputed area. It sought to ensure that the court’s decision regarding the maritime boundary between Nicaragua and Colombia did not affect those rights and interests. Costa Rica contended that the southern limit of Nicaragua’s claims and the southern end-point of the Nicaragua-Colombia boundary might encroach on Costa Rica’s maritime space. (p. 514) It maintained that the court would need to take into account information of the extent of Costa Rica’s interests provided by way of intervention.

Colombia did not object to Costa Rica’s application. Nicaragua, however, claimed that Costa Rica had failed to demonstrate a legal interest in the proceeding. According to Nicaragua, Costa Rica had, instead, presented itself as a party to a maritime boundary dispute with Nicaragua.

The court recalled that the parties had agreed that any boundary between them should stop well short of the area in which Costa Rica’s rights could be affected (Costa Rica’s Intervention Judgment, para. 88). The court also stated that, when drawing a line delimiting the area between Colombia and Nicaragua, it would end the line before it reached an area in which the legal interests of third States might be involved (Costa Rica’s Intervention Judgment, para. 89).

In light of the above, the court concluded that Costa Rica had not demonstrated that it had an interest of a legal nature that could be affected by the decision of the court and accordingly rejected Costa Rica’s application.

Honduras’s attempted intervention

On 10 June 2010, Honduras applied to intervene in the proceeding. The court rejected this application in a judgment rendered on 4 May 2011 (‘Honduras’s Intervention Judgment’).7

Honduras requested permission to intervene as a party ostensibly in order to achieve a final settlement of its dispute with Nicaragua. In the alternative, Honduras sought to intervene as a non-party to inform the court of, and to protect, its interests of a legal nature that could be affected by the decision of the court. Honduras maintained that the 1986 Maritime Delimitation Treaty between Honduras and Colombia (the ‘1986 Treaty’) recognized that the area north of the 15th parallel and east of the 82nd meridian involved Honduras’s legitimate rights and interests of a legal nature. According to Honduras, these interests were not addressed in the court’s 2007 judgment in the Nicaragua/Honduras case. Honduras maintained that the 2007 judgment neither determined the end-point of the boundary between Honduras and Nicaragua nor specified that the end-point would lie on the azimuth of the bisector boundary line drawn by the court. Honduras argued that, in the present proceeding, the court would inevitably have to decide whether the 1986 Treaty was in force and whether it accorded rights to Colombia in the area disputed between Colombia and Nicaragua.

(p. 515) Colombia did not object to Honduras’s Application for Permission to Intervene. Nicaragua opposed Honduras’s intervention, arguing that Honduras’s application challenged the res judicata character of the Nicaragua/Honduras judgment and failed to identify any interest of a legal nature that could be affected by the decision of the court, as required by Article 62 of the ICJ Statute.

The court noted that the Nicaragua/Honduras judgment had established a bisector line with a defined azimuth, which is to continue as a straight line until the point where third States’ rights are affected. It noted also that there was no question of the end-point of the boundary being left open, so Honduras could not dispute that the Nicaragua/Honduras judgment had established a complete and final boundary (Honduras’s Intervention Judgment, paras 63–5).

The court stated that the 1986 Treaty could not impose any obligations or confer any rights upon third States. The court observed that the Nicaragua/Honduras judgment had not relied on the 1986 Treaty and it would not do so in the present case (Honduras’s Intervention Judgment, paras 71–3). The court added that the boundary between Nicaragua and Colombia would be determined pursuant to the parties’ coastline and maritime features. Accordingly, the court concluded that Honduras had failed to demonstrate that it had an interest of a legal nature that could be affected by the decision of the court and rejected Honduras’s application (Honduras’s Intervention Judgment, para. 75).

c.  Sovereignty over islands in the disputed area

On 19 November 2012, the court rendered its Judgment on the Merits. The court first identified the area and remaining maritime features in dispute (namely, Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, Quitasueño, Serranilla, and Bajo Nuevo) (Judgment on the Merits, paras 18–24). The location of each disputed feature is illustrated in Figure B21.1.

Before addressing questions of sovereignty, the court had to determine whether the maritime features in dispute were capable of appropriation. Referring to its judgment in Qatar/Bahrain, the court recalled that ‘islands, however small, are capable of appropriation’, while ‘low-tide elevations cannot be appropriated’ (Judgment on the Merits, para. 26). The parties agreed that all of the maritime features except Quitasueño remained above water at high tide and thus constituted islands capable of appropriation (Judgment on the Merits, para. 27).

As regards Quitasueño, Nicaragua argued that it was a shoal that was permanently submerged at high tide. In support of its argument, Nicaragua invoked a survey prepared in 1937 by an official of the Colombian Foreign Ministry. Nicaragua also referred to an exchange of diplomatic notes in 1972 between Colombia and the United States, in which the United States express its opinion that Quitasueño was ‘permanently submerged at high tide’. Nicaragua also referred to various charts of (p. 516)

Figure B21.2:  Photograph of Quitasueño (QS 32) showing solid feature (rock) above high tide.

Note: Photograph from Colombian Rejoinder. Malintoppi, L., Modes of Acquisition of Sovereignty over Islands, London International Boundary Conference (2013).

the Caribbean, none of which showed the presence of any islands at Quitasueño. Colombia relied on two surveys, one prepared by the Colombian Navy in September 2008 and another prepared by an international expert in February 2010 for the purposes of the proceeding (the ‘2010 Survey’). The 2010 Survey identified fifty-four features within Quitasueño (referred to as QS 1 to QS 54), of which it said thirty-four were above water at high tide and twenty formed low-tide elevations. Nicaragua disputed the tide model used in the 2010 Survey, but acknowledged that QS 32 remained above water at high tide. Nevertheless, Nicaragua contended that QS 32 was a piece of ‘coral debris’ and thus not ‘naturally formed’ for the purposes of Article 121 of UNCLOS.

The court held that the contemporary evidence was critical to the question of the status of Quitasueño, and that the 2010 Survey was ‘by far the most important’ of that evidence. It noted that, no matter which tidal model was used, QS 32 had been shown to remain above water at high tide. It dismissed Nicaragua’s argument about the coral composition of the feature, citing photographic evidence showing that QS 32 was composed of solid material, not loose debris.

Accordingly, the court concluded that QS 32 was capable of appropriation. As regards the other maritime features at Quitasueño, the court concluded that the evidence did not establish that any of them constituted an island at international (p. 517) law, although both Nicaragua’s tide model and the photographic evidence showed them to be low-tide elevations (Judgment on the Merits, paras 28–38).

In addressing the question of sovereignty over the disputed features, the court referred first to the 1928 Treaty, which accorded Colombia sovereignty over ‘San Andrés, Providencia and Santa Catalina and over the other islands, islets and reefs forming part of the San Andrés Archipelago’. However, the court considered that neither the 1928 Treaty nor its historical records were conclusive as to the composition of the San Andrés Archipelago (Judgment on the Merits, paras 52, 55).

The court held that the principle of uti possidetis juris afforded ‘inadequate assistance in determining sovereignty over the maritime features in dispute between Nicaragua and Colombia because nothing clearly indicates whether these features were attributed to the colonial provinces of Nicaragua or of Colombia prior to or upon independence’ from Spain (Judgment on the Merits, para. 65). With regard to effectivités, however, the court found that, whereas there was no evidence of activities à titre de souverain on the part of Nicaragua, Colombia had, for many decades, consistently carried out sovereign activities over the maritime features in dispute. Colombia’s activities à titre de souverain included public administration, enactment of legislation, regulation of economic activities, public works, law enforcement measures, naval visits, and search and rescue operations (Judgment on the Merits, paras 82–3). Moreover, Colombia’s exercise of sovereign authority was public and had not been objected to by Nicaragua prior to the crystallization of the dispute in 1969. The court found that all this provided ‘very strong support for Colombia’s claim of sovereignty over the maritime features in dispute’ (Judgment on the Merits, para. 84).

The court further noted that, while not being evidence of sovereignty, Nicaragua’s failure to object to certain aspects of the Loubet Award of 11 September 1900 (by which the President of France had found Colombian sovereignty over Albuquerque and at least some of the other islands in dispute), the practice of third States, and numerous maps (none of which showed the disputed features as Nicaraguan) afforded further support to Colombia’s claim (Judgment on the Merits, paras 85–102).

In light of all this, the court concluded that Colombia had sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana, and Serranilla (Judgment on the Merits, para. 103).

d.  Nicaragua’s claim for delimitation of a continental shelf extending beyond 200M

The court then examined the admissibility of a new claim submitted by Nicaragua in the second round of written submissions in the case. In its application and (p. 518) memorial, Nicaragua had requested the court to determine a ‘single maritime boundary’ between Nicaragua’s and Colombia’s continental shelf areas and EEZ, in the form of a median line between the mainland coasts of the two States. By contrast, in its second round submission, which post-dated the Judgment on Preliminary Objections, Nicaragua requested the court to define ‘a continental shelf boundary dividing by equal parts the overlapping entitlements to a continental shelf of both Parties’. This new claim was based on Nicaragua’s assertion that its continental margin for the purposes of Article 76 of UNCLOS extends beyond 200M from its coast and into areas within 200M of Colombia’s mainland coast. Contrary to Colombia’s position, the court concluded that Nicaragua’s new claim did not transform the subject matter of the dispute and was therefore admissible (Judgment on the Merits, paras 108–12).

The court then considered whether it was in a position to determine the continental shelf boundary newly requested by Nicaragua. It noted that, since Colombia is not a State party to UNCLOS, the law applicable was customary international law (Judgment on the Merits, para. 114). The court also observed that the definition of the continental shelf set out in Article 76(1) of UNCLOS forms part of customary international law (Judgment on the Merits, para. 118).

The court noted that the jurisprudence referred to by Nicaragua in support of its new delimitation claim ‘involve[d] no case in which a court or a tribunal was requested to determine the outer limits of a continental shelf beyond 200M’ (Judgment on the Merits, para. 125). After distinguishing the Bangladesh/Myanmar case as arising out of the ‘unique situation’ in the Bay of Bengal, the court cited its statement in the Nicaragua/Honduras case 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’ (the ‘CLCS’) (Judgment on the Merits, para. 126).8 The court explained that ‘the fact that Colombia is not a party [to UNCLOS] does not relieve Nicaragua of its obligations under Article 76 of that Convention’ (Judgment on the Merits, para. 126).

Colombia argued that Nicaragua had not established any entitlement to an outer continental shelf and observed that Nicaragua had to date provided the CLCS with only ‘preliminary information’, as opposed to a full submission (Judgment on the Merits, para. 127). The court concluded that Nicaragua had not established that it had ‘a continental margin that extends far enough to overlap with Colombia’s 200-nautical-mile entitlement to the continental shelf, measured from Colombia’s mainland coast’ (Judgment on the Merits, para. 129). The court accordingly (p. 519) concluded that Nicaragua’s new claim contained in its final written submission could not be upheld (Judgment on the Merits, para. 131).

e.  Delimitation of the maritime boundary within 200M

The court noted that Nicaragua’s maritime entitlements extending to 200M from its mainland coast and adjacent islands overlapped with the entitlements generated by the islands over which the court had held that Colombia has sovereignty. The court concluded, therefore, that it was called upon to effect a delimitation between these overlapping entitlements (Judgment on the Merits, paras 132–6).

Citing its judgment in the Qatar/Bahrain case, the court held that the principles of maritime delimitation enshrined in Articles 74 and 83 of UNCLOS and the legal regime of islands set out in Article 121 of UNCLOS reflect customary international law, and were, therefore, applicable (Judgment on the Merits, paras 137–9).

Relevant coasts

Quoting its judgment in the Black Sea case, the court recalled that ‘[t]he title of a State to the continental shelf and to the exclusive economic zone is based on the principle that the land dominates the sea through the projection of the coasts or the coastal fronts’.9 Accordingly, the court began the delimitation by determining the relevant coasts of the parties. The court defined them as ‘those coasts the projections of which overlap’ (Judgment on the Merits, para. 141).

The court determined that the Nicaraguan relevant coast was its entire east mainland coast, except for a short stretch near Punta de Perlas that faces due south (Judgment on the Merits, para. 145).10 Colombia’s relevant coast was confined to its islands in the Caribbean Sea, as its mainland did not generate any entitlements overlapping with Nicaragua’s 200M entitlements (Judgment on the Merits, paras 151–2). Given the extensive area of overlapping entitlements to both the east and west of the Colombian islands, the court considered that the entire coastline of these islands was to be taken into account. The lengths of the relevant coasts were 531km for Nicaragua and 65km for Colombia, a ratio of 1:8.2 in favour of Nicaragua (Judgment on the Merits, para. 153). The relevant coasts as identified by the court are illustrated in Figure B21.2.(p. 520)

Figure B21.3:  Nicaragua/Colombia: court’s judgment.

(p. 521)

Relevant maritime area

The court then considered the relevant maritime area. It defined it as ‘that part of the maritime space in which the potential entitlements of the parties overlap’. In the present case, the court decided that the relevant area extended from the Nicaraguan coast to a line in the east 200M from Nicaragua’s territorial sea baselines (Judgment on the Merits, para. 159).

The court reserved that during the final stage of delimitation it would be necessary to maintain an awareness of the rights of third States—Jamaica, Honduras, Panama, and Costa Rica—to the north and south of the relevant maritime area, and related boundaries established through bilateral agreements or adjudication. The parties agreed, and the court confirmed, that the relevant area of overlapping entitlements did not extend beyond such established boundaries (Judgment on the Merits, paras 162–3).

The court also excluded the Colombia-Jamaica ‘Joint Regime Area’ from the relevant area. Bajo Nuevo fell outside Nicaragua’s 200M maritime limit. Although Serranilla did not, it was excluded owing to potential Jamaican entitlements in the area. The court noted that neither party had contended otherwise (Judgment on the Merits, para. 163).

The relevant maritime area is illustrated in Figure B21.2. It consisted of approximately 209,280 square kilometres of maritime space (Judgment on the Merits, para. 166).

Entitlements generated by the maritime features

The parties agreed that San Andrés, Providencia, and Santa Catalina were entitled to a territorial sea, EEZ, and continental shelf capable of extending 200M in each direction (Judgment on the Merits, para. 168). The parties differed, however, as to the entitlements generated by the other maritime features: Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, Serranilla, Bajo Nuevo, and Quitasueño. Colombia maintained that all except Quitasueño were capable of sustaining human habitation or economic life for the purposes of Article 121 of UNCLOS, but Nicaragua disputed this.

The court decided that it was not called upon to determine the entitlements that Serranilla and Bajo Nuevo generated because they fell outside the relevant area (Judgment on the Merits, para. 175).

Citing its judgment on the merits in Qatar/Bahrain, the court found that Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, and Quitasueño were each entitled to a territorial sea of 12M, irrespective of their size or whether they fell within the exception stated in Article 121(3) of UNCLOS (Judgment on the Merits, paras 176, 182).

(p. 522) The court observed that, in accordance with long-established principles of customary international law, a coastal State possesses sovereignty over the seabed and water column of its territorial sea. By contrast, States do not possess sovereignty over the continental shelf and EEZ areas. The court noted that the territorial sea of a State may be restricted where it overlaps with the territorial sea of another State or the presence of a historic agreed boundary. However, it noted also that ‘[t]he Court has never restricted the right of a State to establish a territorial sea of 12M around an island on the basis of an overlap with the continental shelf and exclusive economic zone entitlements of another State’. On that basis, the court rejected Nicaragua’s submission that an equitable solution required drawing a 3M enclave around Alburquerque Cays, East-Southeast Cays, Roncador, and Serrana. The court also noted that it was not necessary to determine the status of these islands, as the entitlements they generated would entirely overlap with the continental shelf and EEZ entitlements of San Andrés, Providencia, and Santa Catalina (Judgment on the Merits, paras 177–80).

With regard to Quitasueño, as both parties agreed that QS 32 was a rock incapable of sustaining human habitation or economic life of its own, the court concluded that it generated no entitlement to a continental shelf or EEZ. However, by virtue of Article 13 of UNCLOS (which reflected customary international law), Colombia was entitled to use low-tide elevations within 12M of QS 32 to increase the breadth of its territorial sea (Judgment on the Merits, paras 182–3).

Method of delimitation

Nicaragua argued that the geographical context of the delimitation was such that it would not be appropriate for the court to follow an equidistance-based approach. Nicaragua argued that the process of constructing a provisional equidistance line between its mainland coast and the west-facing coasts of the Colombian islands would be ‘wholly artificial’ given that, inter alia, the coast of the islands was less than one-twentieth the length of the mainland coast and a provisional equidistance line would completely disregard the substantial part of the relevant area situated to the east of the Colombian islands. Citing the treatment of the Channel Islands in the UK/France Continental Shelf case as a precedent, Nicaragua submitted that the appropriate methodology to adopt was to enclave the Colombian islands in an area otherwise forming Nicaraguan EEZ and continental shelf. This was resisted by Colombia, which advocated an equidistance-based delimitation.

The court recalled that the methodology that it normally employs when called upon to undertake EEZ and continental shelf delimitations involves proceeding in three stages: first, construct a provisional equidistance or median line using ‘methods that are geometrically objective and appropriate for the geography of the area’ and the ‘most appropriate base points on the coasts of the Parties’; second, consider whether there are any relevant circumstances which may call for an (p. 523) adjustment of the provisional equidistance/median line (or the employment of other techniques, such as construction of an enclave around isolated islands) so as to achieve an equitable result; and, third, conduct a ‘disproportionality test’ to assess whether the parties’ respective shares of the relevant area are markedly disproportionate to their respective relevant coasts (Judgment on the Merits, paras 190–3).

The court observed that, unlike in the Nicaragua/Honduras case, this was not a situation in which the construction of a provisional median line was ‘not feasible’. The Nicaraguan coast and Colombian islands were in a relationship of oppositeness and the construction of a provisional median line would be straightforward. The factors raised by Nicaragua, such as the unusual circumstance that a large part of the relevant area was located to the east of the Colombian islands and hence behind the Colombian baseline, did not justify disregarding the entire methodology. Rather, they would be taken into account in the second stage of the delimitation process. As for the UK/France Continental Shelf case, that award had been ‘rendered in 1977 and thus some time before the Court established the methodology which it now employs in cases of maritime delimitation’. Furthermore, it had been concerned with a ‘quite different geographical context’ in which the Court of Arbitration had employed enclavement in conjunction with the construction of a provisional equidistance/median line (Judgment on the Merits, paras 195–8).

Determination of base points and construction of provisional median line

Citing its judgment in the Black Sea case, the court proceeded to select the base points that it considered appropriate to construct its provisional median line. The base points selected by the court and the resultant provisional median line are illustrated in Figure B21.3. The court considered that Quitasueño and Serrana should not contribute to the drawing of the provisional median line. According to the court, placing base points on these ‘very small maritime features’ would have an effect ‘which would be out of all proportion to [their] size and importance’ and would distort ‘the relevant geography’ (Judgment on the Merits, para. 202).

Relevant circumstances for the adjustment of the provisional median line

The court then turned to address a number of circumstances that had been raised by the parties for the purposes of achieving an equitable solution in the delimitation. For Nicaragua, these factors necessitated a ‘complete break with the provisional median line’ and the substitution of enclaves around the Colombian islands. By contrast, Colombia argued that the provisional median line afforded an equitable solution and therefore required no adjustment.

The court dismissed, as irrelevant or negligible circumstances in the delimitation, the previous conduct of the parties, access to natural resources, security and law enforcement, and delimitations effected under bilateral agreements with third States (Judgment on the Merits, paras 217–28).(p. 524)

Figure B21.4:  Nicaragua/Colombia: construction of the equiratio line.

(p. 525) However, the court considered that two relevant circumstances were present that required adjustment of the provisional median line in order to achieve an equitable solution: first, the substantial disparity in the lengths of the parties’ relevant coasts; and, second, the overall geographical context of the dispute involving a series of small and dispersed Colombian islands facing the continuous coastline of Nicaragua (Judgment on the Merits, paras 208–16, 229).

The disparity between the parties’ relevant coastal lengths was approximately 1:8.2 in favour of Nicaragua. Relying on its judgments in Libya/Malta and Jan Mayen,11 the court held that this ‘substantial disparity’ required an adjustment of the provisional median line, especially given the overlapping maritime areas to the east of the Colombian islands (Judgment on the Merits, para. 211).

Regarding the overall geographical context, the court noted that the effect of the provisional line was to cut off Nicaragua from three-quarters of the maritime area into which its coast projects. The court noted that this cut-off effect, caused ‘by a few small islands which are many nautical miles apart’, required adjustment of the provisional median line to ensure an equitable result (Judgment on the Merits, para. 215). At the same time, the court noted that the adjusted line should not cut off Colombia from the EEZ and continental shelf entitlements generated by its islands in the area to their east. The court considered that any enclavement, as requested by Nicaragua, would have just that effect. The court also observed that enclavement would have ‘unfortunate consequences for the orderly management of maritime resources, policing and the public order of the oceans in general’ (Judgment on the Merits, paras 216, 230).

In adjusting the provisional median line, the court distinguished between the part of the relevant area involving opposite coasts, between Nicaragua and the main Colombian islands, and the ‘more complex’ part to the east of those islands (Judgment on the Merits, para. 232). In the first area, the court considered that the disparity in coastal lengths was ‘so marked as to justify a significant shift’ in the provisional median line, although not such as to cut across the 12M territorial sea of the Colombian islands. The court concluded that an adjustment using a 3:1 weighting ratio between the Nicaraguan and Colombian base points would achieve an equitable result. This was implemented by constructing a line each point on which is three times as far from the Nicaraguan base points as it is from the Colombian base points (see Figure B21.3).

With regard to the ‘more complex’ area, the court noted that to extend the delimitation line north of point 1 or south of point 5 would still leave Colombia with a disproportionately large share of the relevant area (Judgment on the Merits, (p. 526) para. 236). As a result, the court decided to continue the boundary line out to Nicaragua’s 200M limit using ‘lines of latitude’ (i.e. parallels), as shown in Figure B21.2.12

Finally, the court addressed the entitlements of Quitasueño and Serrana, which fell on the Nicaraguan side of the proposed boundary line. In light of their size and remote situation, and the disproportionate effect they would otherwise have on the boundary, the court considered that the use of enclaves was the most equitable solution. The court found it unnecessary to determine whether Serrana fell within Article 121(3) of UNCLOS. Owing to its small size, remoteness, and other characteristics, the court concluded that an equitable result required that the boundary followed the 12M limit around Serrana Cay and other cays in its vicinity (Judgment on the Merits, para. 238).

Disproportionality test

The court emphasized that the disproportionality test is not designed to create a strictly proportional result, but to ensure that there is not ‘a significant disproportionality so gross as to “taint” the result and render it inequitable’. This assessment can only be made in light of the circumstances of the particular case, not by reference to ‘any mathematical formula’ (Judgment on the Merits, para. 242).

The adjusted line had the effect of dividing the relevant area at a ratio of approximately 1:3.44 in Nicaragua’s favour, while the ratio of relevant coasts was 1:8.2 in Nicaragua’s favour (Judgment on the Merits, para. 243). Noting the desirability of ensuring that neither of the parties suffered any ‘cut-off’ effect, that the main Colombian islands should not be divided into separate areas, and that the delimitation ‘must take into account the need of contributing to the public order of the oceans’, the court concluded that the result achieved did not entail such disproportion as to create an inequitable result. Accordingly, the maritime boundary arrived at via the second step of the delimitation process required no further adjustment in the third step (Judgment on the Merits, paras 244, 247).

The maritime boundary delimited by the court is illustrated in Figures B21.2 and B21.3.(p. 527)

III.  Technical Considerations

The feature called Quitasueño was the subject of much debate. Nicaragua maintained that it was totally submerged, relying, inter alia, on published Colombian charts and historical reports. Colombia submitted two surveys of Quitasueño (and the other cays) and identified over fifty features that were exposed at some stage of the tide. Nicaragua criticised the global tidal model used for the survey calculations and maintained that the one rock above high water, QS 32, was only coral rubble. The court determined that QS 32 was an island in the sense of Article 121(1) of UNCLOS and accorded it (along with all the low-tide elevations that fell within 12M of Quitasueño) a full 12M territorial sea. This confirmed the entitlement of ‘rocks’, however small, to a full 12M territorial sea. Despite this, Quitasueño was omitted in the drawing of the provisional equidistance line at the first stage of delimitation rather than being treated as a special circumstance in the second stage.

As the relevant area extended east of the Colombian islands, the court decided that the entirety of the islands’ coastlines (as opposed to just that portion that faced Nicaragua) should be used in calculating the lengths of the parties’ relevant coasts. The resultant coastal length ratio was 1:8.2 in Nicaragua’s favour. The division of the relevant area in a ratio of 1:3.4 was not seen as disproportionate and thus led to no adjustment.

The court adopted a novel method for the adjustment of the median line by using the equiratio technique.13 This is calculated in a similar way to equidistance, but defines a line where every point is, for example, three times as far from state A as it is from state B. The effect in this case was to produce a line that gave half-weight to the islands. The nature of the equiratio method is that it produces a line that can be highly curved. The court simplified this weighted line by drawing straight lines across the curvature, which had the effect of reducing the weight given to the islands still further (see Figure B21.2). The choice of parallels of latitude for the ‘corridor’ extending eastwards from San Andrés and Providencia echoes the longer corridor delimited in the St Pierre and Miquelon (France v. Canada) case. The choice of parallels is a practical solution, but does not reflect the geometry of the coastlines in the area, which run slightly east of north. These lines of latitude are an artefact of the cartographic process. The final delimitation is a mixture of different line types: geodesics from points 1 to 6 to the west of the Colombian islands; 12M arcs around the enclaves; and loxodromes along the parallels of latitude. In (p. 528) addition, the eastern boundary of the relevant area between points A and B is defined by 200M arcs from Nicaragua’s baselines.

The court did not define precisely the end-points A and B, which lie on the Nicaragua 200M limit, as at the time Nicaragua had not deposited coordinates of its territorial sea base points with the United Nations. It later did so in October 2013.

A final notable point is that the judgment allocates areas to Colombia that lie west of the 82nd meridian, which was the limit of its original historical claims in the area (although its strict equidistance line as submitted to the court lay well to the west of that meridian).

IV.  Significance of the Decision and its Contribution to International Law

This case is significant both for its endorsement of the three-stage methodology normally applied by courts and tribunals in modern maritime delimitation disputes and for the peculiarities of the application of that methodology to the unusual geographical context with which the court was faced. The case was also notable for its treatment of Nicaragua’s request for continental shelf delimitation beyond 200M of its coast. The proceeding was both substantively and procedurally complex, with the result that almost eleven years passed between the filing of Nicaragua’s initial application and the rendering of the court’s final judgment.

The court adopted a resolute promotion of the three-stage methodology (equidistance/relevant circumstances/disproportionality test) in circumstances where the appropriateness of that methodology was, perhaps, not readily apparent. In doing so, the court confirmed the primacy of that methodology in modern international law.14 The court also confirmed the inherent flexibility and adaptability of that methodology. In particular, it pointed out that the various geographical irregularities highlighted by Nicaragua (in particular, the fact that the relevant area extended to the east of the Colombian islands and, thus, on the ‘wrong side’ of the median line) could be addressed as ‘relevant circumstances’ at the second stage of the delimitation process. These aspects of the judgment demonstrate the exceptional nature of the geographical circumstances that led to the court’s rejection of the three-stage methodology in the Nicaragua/Honduras case.

(p. 529) The judgment was, however, notable in confirming the modern trend (since the Black Sea case, in particular) of rejecting an objective approach at the first stage of the delimitation process. Notwithstanding its observation that this first stage should involve ‘methods that are geometrically objective’, the court adopted an inherently subjective approach by selecting what were the ‘appropriate’ base points to use in constructing the provisional median line. In doing so, the court decided to exclude the small Colombian islands at Quitasueño and Serrana as base points because of the perceived disproportionate effect that they would have on the provisional median line. Such factors could instead have been addressed as ‘relevant circumstances’ in the second stage of delimitation, i.e. by way of adjustment of a provisional median line constructed by geometrically objective methods.

The judgment confirms the dominant role played by geography in the identification of ‘relevant circumstances’ at the second stage of the delimitation process. As has become commonplace in modern EEZ and continental shelf delimitation adjudications, the court rejected a series of arguments advanced by the parties about relevant circumstances of a non-geographical nature. The court found that the historic conduct of the parties and the question of equitable access to natural resources in the relevant area were not ‘so exceptional’ on the facts and evidence as to amount to a relevant circumstance requiring adjustment of the median line. The court also denied any relevance to the numerous bilateral delimitation agreements into which Colombia had entered with third States in the Caribbean Sea region, explaining that such treaties could not be allowed to confer rights on Colombia to the prejudice of Nicaragua.

Notably, however, the court did observe that the delimitation ‘must take into account the need of contributing to the public order of the oceans’. To this extent, non-geographical factors were relevant to the delimitation. This was particularly so in the court’s rejection of Nicaragua’s attempt to enclave the small Colombian islands, a number of which have significant human populations. As a result, the enclavement approach was adopted only in connection with the tiny and remote features of Quitasueño and Serrana, which have no population.

The two geographical relevant circumstances relied upon by the court for its adjustment of the provisional median line are worthy of attention. The first involved a novel application of the so-called ‘cut-off’ principle and arose out of the location of the small Colombian islands in relation to the easterly projection of Nicaragua’s opposite mainland coast. The court noted that the islands cut Nicaragua off from ‘some three-quarters of the area into which its coast projects’. This was the first occasion on which the court has been called to adjust a provisional median line in such circumstances. The second relevant circumstance involved a substantial disparity in coastal lengths similar to the disparity in the Libya/Malta and Jan Mayen cases. However, it is notable that the court calculated the relevant Colombian coastal length by reference to the entire coastlines of the Colombian (p. 530) islands in light of the fact that the area of overlapping entitlements extended both east and west of those islands.

This was the latest in a long line of cases in which the third stage in the delimitation process (namely, the so-called disproportionality test) led to no adjustment to the boundary arrived at following the first two stages. The court observed that ‘considerable caution’ had been displayed in previous cases and concluded that a division of the relevant areas of approximately 1:3.44 in Nicaragua’s favour in circumstances where the ratio of relevant coasts was approximately 1:8.2 did not entail ‘such disproportionality as to create an inequitable result’.

The court’s approach to evidence played an important role, particularly in connection with its assessment of the legal status of Quitasueño. The court undertook a relatively detailed and forensic analysis of the evidence advanced by the parties, according particular weight to contemporary scientific evidence advanced by Colombia demonstrating that the feature remained above water at high tide. The court also dismissed some of the parties’ arguments for lack of evidence, particularly in connection with access to natural resources. This is indicative of the modern tendency of the court to engage in a more rigorous analysis of scientific and other evidence than was traditionally the case.

Finally, the court’s decision not to entertain Nicaragua’s request to delimit areas of continental shelf located beyond 200M of its coast warrants attention. This decision stood in contrast with the willingness of ITLOS to undertake such a delimitation exercise in the Bangladesh/Mayanmar case. The court reached its decision on the basis that Nicaragua had not established that it had a continental margin extending far enough to overlap with Colombia’s 200M continental shelf entitlement. In particular, it noted that Nicaragua had not yet completed a full submission to the Commission on the Limits of the Continental Shelf (‘CLCS’), unlike each of Bangladesh and Myanmar at the time of their ITLOS case. Furthermore, the court distinguished the Bay of Bengal as presenting a ‘unique situation’, as had been acknowledged during the negotiation of UNCLOS, as result of which it had not been difficult for ITLOS to conclude in that case that areas beyond 200M constituted continental shelf requiring delimitation.

This aspect of the judgment may have significant implications for future unilateral attempts by States to have international courts or tribunals delimit continental shelf areas beyond 200M, since it would appear to require the vast majority of States to complete the CLCS process before seeking any third-party delimitation of such areas. The approach taken by the court in this respect contrasted with that taken in the Bangladesh/Myanmar case, where ITLOS noted that the function of the CLCS in recommending the outer limits of the continental shelf and the function of tribunals in delimiting continental shelf boundaries are without prejudice to each other.(p. 531)

V.  Postscript to the 2012 Judgment

On 27 November 2012, just eight days after the court’s judgment, Colombia denounced the Pact of Bogotá.

On 16 September 2013, Nicaragua instituted new proceedings against Colombia with regard to ‘the delimitation of the boundaries between, on the one hand, the continental shelf of Nicaragua beyond the 200-nautical-mile limit from the baselines from which the breadth of the territorial sea of Nicaragua is measured, and on the other hand, the continental shelf of Colombia’.15

Nicaragua requested the court to determine ‘[t]he precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to each of them beyond the boundaries determined by the Court in [the Judgment on the Merits]’. Nicaragua also requested the court to indicate ‘[t]he principles and rules of international law that determine the rights and duties of the two States in relation to the area of overlapping continental shelf claims and the use of its resources, pending the delimitation of the maritime boundary between them beyond 200M from Nicaragua’s coast’.

On 14 August 2014, Colombia filed preliminary objections, claiming that the court was without jurisdiction. Colombia argued that Nicaragua’s application was filed ten months after Colombia’s denouncement of the Pact of Bogotá and that the court’s 2012 judgment did not provide the court with a ‘continuing jurisdiction’ to determine the dispute. Colombia also posited that the claims raised by Nicaragua were barred by the principle of res judicata, that the application was an improper attempt to appeal or revise the 2012 judgment, and that the application could not be considered by the court because the CLCS had not yet made a recommendation concerning the limits of any extended continental shelf. A hearing on Colombia’s preliminary objections took place in October 2015.

On 26 November 2013, Nicaragua filed a further application instituting yet another proceeding against Colombia, relating to alleged violations of ‘Nicaragua’s sovereign rights and maritime zones’ declared by the court’s Judgment on the Merits and ‘the threat of the use of force by Colombia in order to implement these violations’.16 Nicaragua requests the court to adjudge and declare that Colombia is (p. 532) in breach of, inter alia, its obligation not to use or threaten to use force under Article 2(4) of the UN Charter and its obligation not to violate Nicaragua’s maritime zones as delimited in the Judgment on the Merits.

On 19 December 2014, Colombia filed preliminary objections to jurisdiction, referring again to Colombia’s denunciation of the Pact of Bogotá. Colombia argued also, inter alia, that there was no dispute over the matters raised in the application on the date it was filed, that the court has no ‘inherent jurisdiction’ upon which Nicaragua can rely, and that the court has no post-adjudicative enforcement jurisdiction. A hearing on Colombia’s preliminary objections took place in September 2015.17

Footnotes:

1  Replacing Gaja, who was elected as a Member of the Court. Gaja had previously replaced Bedjaoui, who resigned on 2 May 2006.

2  Replacing Fortier, who resigned on 7 September 2010.

3  Nicaragua ratified the UN Convention on the Law of the Sea on 3 May 2000; Colombia is not a State party to UNCLOS.

4  Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, ICJ Reports 2007, p. 832.

5  Citing Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, p. 37, paras 72–3.

6  Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, Judgment, ICJ Reports 2011, p. 348.

7  Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to Intervene, Judgment, ICJ Reports 2011, p. 420.

8  Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports 2007, p. 659, para. 319.

9  Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, ICJ Reports 2009, p. 89, para. 77.

10  The relevant coast also included the east-facing coasts of islands fringing Nicaragua’s mainland coast. The west-facing coasts were not included as they are parallel to the mainland coast (Judgment on the Merits, para. 145).

11  The court noted that the parties’ coastal length ratio was similar to those which it considered required adjustment of the provisional line in the Libya/Malta and Jan Mayen cases.

12  First, from the extreme northern point of the weighted line, the court drew a parallel of latitude east until it reached the 200M limit from the baselines from which the territorial sea of Nicaragua is measured. Second, from the southern point of the adjusted line, the boundary runs south-east until it intersects the 12M envelope of arcs around South Cay of Alburquerque Cays (point 6), and follows that arc until it intersects with the parallel passing through the southernmost point of the 12M envelope of arcs around East-Southeast Cays (point 7). The boundary line follows that parallel until it reaches the southernmost point of the 12M envelope of arcs around East-Southeast Cays (point 8), and continues along that envelope of arcs until its most eastward point (point 9). The boundary then follows the parallel of latitude until it reaches the 200M limit from Nicaragua’s baselines (Judgment on the Merits, para. 237).

13  The equiratio method was devised by Admiral Langeraar of the Dutch Hydrographic Service in 1985 as a method to produce an infinitely variable adjustment to equidistance. This is the first time it has been used by any court or tribunal.

14  Indeed, the decision to apply the three-stage methodology, and thus to start the delimitation process by constructing a provisional median line, was not without controversy among the members of the court. For example, Judge Abraham remarked that ‘it is obvious that the construction of a provisional median line as a starting point for the delimitation is not only highly inappropriate in this case, but that it is even virtually impossible’: Separate Opinion of Judge Abraham, para. 24.

15  Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia), Application of the Republic of Nicaragua Instituting Proceedings, available at <http://www.icj-cij.org/docket/files/154/17532.pdf>.

16  Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia). See ICJ Press Release of 27 November 2013, available at <http://www.icj-cij.org/docket/files/155/17806.pdf>. Application Instituting Proceedings, available at <http://www.icj-cij.org/docket/files/155/17978.pdf>.

17  The court’s decision on jurisdiction in both new cases is awaited at the time of writing.