Volume I Réplique

INTERNATIONAL COURT OF JUSTICE
TERRITORIAL AND MARITIME DISPUTE
(NICARAGUA v. COLOMBIA)
REPLY OF THE
GOVERNMENT OF NICARAGUA
VOLUME I
18 SEPTEMBER 2009

I
TABLE OF CONTENTS
INTRODUCTION .................................................................................................... 1
I. PROCEDURAL HISTORY........................................................................................ 1
II. THE QUESTION OF SOVEREIGNTY ....................................................................... 2
III. MARITIME DELIMITATION ............................................................................... 12
IV. COLOMBIA’S CONTINUED IMPOSITION OF THE 82ND MERIDIAN ....................... 15
V. SUMMARY OF THE REPLY ................................................................................. 19
PART I: THE ISSUE OF SOVEREIGNTY ......................................................... 21
CHAPTER I: THE ISSUE OF SOVEREIGNTY ................................................ 23
I. INTRODUCTION .................................................................................................. 23
II. HISTORY OF THE DISPUTE ON SOVEREIGNTY .................................................... 24
III. CONSEQUENCES OF THE VALIDITY OF THE 1928 TREATY ............................... 27
A. INTERPRETATION OF THE 1928 TREATY .......................................................... 29
B. WHAT MARITIME FEATURES FORM PART OF THE SAN ANDRÉS ARCHIPELAGO
OVER WHICH THE SOVEREIGNTY OF COLOMBIA WAS RECOGNIZED BY NICARAGUA
IN PARAGRAPH 1 OF ARTICLE I OF THE 1928 TREATY? ....................................... 32
1. Uti possidetis iuris .............................................................................................. 32
2. Colonial era ......................................................................................................... 38
3. What was understood by the reference to the “islands of San Andrés”? ............. 44
C. THE SPECIAL QUESTION OF RONCADOR, SERRANA (AND QUITASUEÑO) .......... 50
1. The second paragraph of Article I of the 1928 Treaty: the text ........................... 50
2. The second paragraph of Article I of the Treaty: not an implicit relinquishment
by Nicaragua ........................................................................................................... 53
3. The second paragraph of Article I of the 1928 Treaty: basis of title to the three
features .................................................................................................................... 54
IV. CONCLUSIONS ................................................................................................. 55
PART II : MARITIME DELIMITATION ........................................................... 57
MARITIME DELIMITATION ............................................................................. 59
GENERAL INTRODUCTION ..................................................................................... 59
CHAPTER II: LEGAL AND GEOGRAPHICAL FRAMEWORK .................. 61
I. LEGAL FRAMEWORK ......................................................................................... 61
II
A. NICARAGUA’S CLAIMS TO THE RESOURCES OF THE CONTINENTAL SHELF, A
NATIONAL FISHING ZONE, AND AN EXCLUSIVE ECONOMIC ZONE ........................ 61
B. COLOMBIA’S CLAIMS REPRESENTED IN LEGISLATION ..................................... 63
C. THE APPLICABLE LAW ................................................................................... 63
II. THE GENERAL GEOGRAPHICAL FRAMEWORK AND THE DELIMITATION AREA . 65
A. THE RELEVANT COASTS OF NICARAGUA AND COLOMBIA ................................ 65
B. ISLANDS ........................................................................................................ 67
C. MARITIME DELIMITATION ............................................................................. 69
CHAPTER III : THE DELIMITATION OF THE CONTINENTAL SHELF
AREA ....................................................................................................................... 73
I. INTRODUCTION .................................................................................................. 73
II. APPLICABLE LAW ............................................................................................. 77
III. THE CLAIMS TO CONTINENTAL SHELF AREA .................................................. 78
IV. THE CRITERION OF THE NATURAL PROLONGATION OF THE LAND TERRITORY
OF THE COASTAL STATE TO THE OUTER EDGE OF THE CONTINENTAL MARGIN
(ENTITLEMENT TO CONTINENTAL SHELF AREAS) ................................................. 78
V. THE CONTINENTAL SHELF IN THE WESTERN CARIBBEAN: THE GEOLOGICAL
AND GEOMORPHOLOGICAL EVIDENCE .................................................................. 81
A. NICARAGUA’S NATURAL PROLONGATION ....................................................... 82
B. COLOMBIA’S NATURAL PROLONGATION ......................................................... 83
C. APPLICATION OF THE PRINCIPLES REFLECTED IN ARTICLE 76 ........................ 85
VI. THE ENTITLEMENT TO CONTINENTAL SHELF AND THE ACHIEVEMENT OF A
DELIMITATION IN ACCORDANCE WITH ARTICLE 83 OF THE 1982 LAW OF THE SEA
CONVENTION ........................................................................................................ 88
A. THE APPLICATION OF THE PRINCIPLE OF EQUAL DIVISION ............................ 88
B. THE GEOLOGICAL EVIDENCE OF THE OUTER LIMITS OF THE CONTINENTAL
SHELF AREAS ATTRIBUTABLE TO NICARAGUA ..................................................... 89
C. THE COLOMBIAN CONTINENTAL SHELF ......................................................... 91
D. OVERLAPPING CONTINENTAL MARGINS ......................................................... 92
VII. THE RELATION OF THE NICARAGUAN CLAIM TO THE AREAS OF THE
CONTINENTAL SHELF AND THE OUTER LIMIT OF THE EXCLUSIVE ECONOMIC ZONE
OF THE COLOMBIAN MAINLAND ........................................................................... 93
VIII. THE RELEVANCE OF PROPORTIONALITY AND THE DELIMITATION OF
CONTINENTAL SHELF AREAS ................................................................................ 96
III
A. INTRODUCTION ............................................................................................. 96
B. THE RELEVANCE OF PROPORTIONALITY TO THE DELIMITATION OF THE AREAS
OF CONTINENTAL SLOPE AND CONTINENTAL MARGIN ........................................ 97
IX. THE ENTITLEMENT TO CONTINENTAL SHELF AND THE EFFECT OF ISLANDS IN
THE ACHIEVEMENT OF A DELIMITATION IN ACCORDANCE WITH ARTICLE 83 OF
THE 1982 LAW OF THE SEA CONVENTION ............................................................. 99
CHAPTER IV: PHYSICAL AND LEGAL ASPECTS OF THE MARITIME
FEATURES LOCATED ON THE CONTINENTAL SHELF OF NICARAGUA
................................................................................................................................ 103
I. INTRODUCTION ................................................................................................ 103
II. MARITIME FEATURES CLAIMED BY COLOMBIA .............................................. 103
A. COLOMBIA’S ARCHIPELAGO ARGUMENT ...................................................... 103
B. THE MARITIME FEATURES ........................................................................... 105
III. NICARAGUA’S UNDISPUTED ISLANDS AND MARITIME FEATURES ................. 110
IV. THE SPECIAL CASE OF THE SUBMERGED BANK OF QUITASUEÑO .................. 115
A. SURVEYS OF THE BANK OF QUITASUEÑO ...................................................... 117
B. THE PRACTICE OF THE UNITED STATES IN RESPECT OF THE BANK OF
QUITASUEÑO .................................................................................................. 120
C. CONCLUSIONS ON THE STATUS OF QUITASUEÑO .......................................... 122
V. CONCLUSIONS ................................................................................................ 123
CHAPTER V: ENCLAVING ISLANDS AND CAYS ....................................... 125
I. INTRODUCTION ................................................................................................ 125
II. ISLANDS AND ROCKS ...................................................................................... 125
III. MARITIME AREAS INVOLVED ........................................................................ 127
IV. ENCLAVEMENT IS NECESSARY TO OBTAIN AN EQUITABLE RESULT ............. 128
V. CHANNEL ISLANDS ARBITRATION .................................................................. 132
VI. OTHER PRECEDENTS ..................................................................................... 136
VII. CONCLUSIONS ............................................................................................. 138
CHAPTER VI: COLOMBIA’S DELIMITATION CLAIM ............................. 141
I. INTRODUCTION ................................................................................................ 141
II. THE ISLAND OF SAN ANDRÉS AND OTHER MINOR INSULAR FEATURES DO NOT
BLOCK THE MARITIME PROJECTION OF NICARAGUA’S COAST ........................... 145
IV
III. THE RELEVANT COASTS AND RELEVANT AREA FOR THE DELIMITATION UNDER
COLOMBIA’S SCENARIO ...................................................................................... 156
A. THE RELEVANT COASTS ............................................................................... 156
B. THE RELEVANT AREA .................................................................................. 161
IV. COLOMBIA’S PLACEMENT, CONSTRUCTION AND USE OF HER PROVISIONAL
EQUIDISTANCE LINE ARE ERRONEOUS IN HER OWN SCENARIO ........................... 165
V. THE PROVISIONAL DELIMITATION LINE APPROPRIATE TO THE AREA TO BE
DELIMITED.......................................................................................................... 178
VI. THE RELEVANT CIRCUMSTANCES DO NOT REQUIRE AN ADJUSTMENT OF THE
PROVISIONAL DELIMITATION LINES POSITED BY NICARAGUA ........................... 184
A. GEOGRAPHICAL CIRCUMSTANCES ............................................................... 185
B. STATE PRACTICE CONCERNING MINOR ISLANDS INVOKED BY COLOMBIA ...... 199
C. THE ALIGNMENT OF SAN ANDRÉS AND PROVIDENCIA EXACERBATES THE
INEQUITABLE NATURE OF COLOMBIA’S EQUIDISTANCE LINE ............................ 206
VII. OTHER RELEVANT CIRCUMSTANCES ........................................................... 208
A. EQUITABLE ACCESS TO NATURAL RESOURCES .............................................. 209
B. SECURITY CONSIDERATIONS ........................................................................ 212
VIII. CONCLUDING REMARKS ............................................................................. 215
CHAPTER VII: COLOMBIA’S INVOCATION OF THE 82ND MERIDIAN
AND HER TREATIES WITH THIRD STATES .............................................. 217
I. THE 82° W MERIDIAN GENERALLY ................................................................. 217
II. THE 82° W MERIDIAN AND THE MARITIME DELIMITATION ............................ 219
A. THE MERIDIAN AS LINE OF DELIMITATION ................................................... 221
B. THE MERIDIAN AS PART OF THE EFFECTIVITÉS ............................................ 222
C. THE ROLE OF THE MERIDIAN IN ASSESSING THE EQUITABLE CHARACTER OF THE
LINE ............................................................................................................... 227
III. THE 82ND MERIDIAN AND COLOMBIA’S DELIMITATION TREATIES WITH THIRD
STATES ............................................................................................................... 230
IV. CONCLUSIONS ............................................................................................... 232
DECLARATION .................................................................................................. 235
SUBMISSIONS ..................................................................................................... 239
LIST OF ANNEXES ............................................................................................. 243
LIST OF FIGURES .............................................................................................. 245
REPLY OF THE
GOVERNMENT OF NICARAGUA

1
INTRODUCTION
1. This Reply is filed pursuant to the Order of the Court of 18 December
2008 that directed the Republic of Nicaragua to submit a Reply in the
case concerning the Territorial and Maritime Dispute (Nicaragua v.
Colombia) and fixed 18 September 2009 as the time limit for the filing
of this pleading.
I. Procedural History
2. The Republic of Nicaragua brought this case before the Court against
the Republic of Colombia by means of an Application filed on 6
December 2001 with an indication of the subject of the dispute that
was subsequently expounded in the Memorial filed on 28 April 2003.
In substance, Nicaragua asked the Court to adjudge and declare that
she had sovereignty over certain islands and maritime features lying
off her Caribbean Coast and, furthermore, requested a maritime
delimitation between the Caribbean mainland coasts of Nicaragua and
Colombia.
3. The Republic of Colombia filed Preliminary Objections to the
jurisdiction of the Court on 21 July 2003 which included a request that
the Court adjudge and declare the controversy ended.
4. After hearing the Parties, the Court gave its decision by means of the
Judgment of 13 December 2007 by which it found:
“(3) As regards the jurisdiction of the Court,
(a) Unanimously,
2
Finds that it has jurisdiction, on the basis of
Article XXXI of the Pact of Bogotá, to
adjudicate upon the dispute concerning
sovereignty over the maritime features claimed
by the Parties other than the islands of San
Andrés, Providencia and Santa Catalina;
(b) Unanimously,
Finds that it has jurisdiction, on the basis of
Article XXXI of the Pact of Bogotá, to
adjudicate upon the dispute concerning the
maritime delimitation between the Parties.”1
5. After the Judgment on Preliminary Objections, Colombia filed a
Counter-Memorial on 11 November 2008 pursuant to the Court’s
order of 11 February 2008.
II. The Question of Sovereignty
6. The Application filed by Nicaragua on 6 December 2001 and her
Memorial of 28 April 2003 were in considerable measure based on
Nicaragua’s claim that “the Barcenas-Esguerra Treaty signed in
Managua on 24 March 1928 was not legally valid and, in particular
did not provide a legal basis for Colombian claims to San Andrés and
Providencia”2
.
7. On this question the Judgment of the Court of 2007 determined “that
the 1928 Treaty was valid and in force at the date of the conclusion of
the Pact of Bogotá in 1948”3
and “that the matter of sovereignty over
the islands of San Andrés, Providencia and Santa Catalina has been

1 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007, operative clause, pp. 41-42, para. 142. 2
NM, Vol. I, Submission 4, p. 266.
3 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007, p. 27, para. 81.
3
settled by the 1928 Treaty”.4
On this basis the Court decided that it
lacked jurisdiction on the basis of Articles VI and XXXIV of the Pact
of Bogotá and under the optional clause declarations “in so far as it
concerns sovereignty over the islands of San Andrés, Providencia and
Santa Catalina,” but that it had jurisdiction “in so far as it concerns
sovereignty over the other maritime features in dispute between the
Parties”5
.
8. With respect to the question of sovereignty, Nicaragua’s
understanding is that the effects of the Judgment of 13 December 2007
are limited to the preliminary question of jurisdiction that was before
the Court and is not a Judgment on the merits of the case filed by
Nicaragua on 6 December 2001.
9. Nicaragua also understands that the jurisdiction of the Court is only
available on the basis that the 1928 Treaty is valid. Nicaragua accepts
the decision of the Court and the conditions under which jurisdiction
has been recognized and will accordingly adapt and adjust her
petitions and submissions within the limits set in the 13 December
2007 Judgment.
10. Nicaragua’s acceptance of the conditions under which jurisdiction has
been recognized does not imply that she has changed or renounced her
historical claim that the 1928 Treaty was imposed on Nicaragua and
lacks any legal or moral authority. To the full extent that it is legally
permissible in the present circumstances, Nicaragua will continue to
reserve her position on all these issues.

4 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007, p. 28, para. 88. 5 Ibid, p. 42, para. 142.
4
11. The position of Nicaragua on these questions has been amply
explained in her Memorial and, whatever the jurisdictional limits
under which this case will proceed, the arguments and evidence
already filed by Nicaragua in this case will form part of the legal and
historical record of these proceedings.
12. Per the understanding explained in the preceding paragraphs, the
position of Nicaragua on the question of sovereignty will be based on
the stipulations of the 1928 Treaty. By this treaty Colombia in
substance recognized “the full and entire sovereignty” of Nicaragua
over the Mosquito Coast (the Caribbean or Atlantic Coast of
Nicaragua) and over the Corn Islands. Nicaragua for her part
recognized “the full and entire sovereignty” of Colombia over the San
Andrés Archipelago. The Treaty also stipulated that it “does not apply
to the reefs of Roncador, Quitasueño and Serrana”6
.
13. On the basis of the 1928 Treaty, the position of Nicaragua is that the
recognition of sovereignty over the Mosquito Coast includes all the
appurtenant rights of that Coast to its off-shore maritime features.
These maritime features include all those not proven to be part of the
“San Andrés Archipelago” which is recognized in that Treaty to
appertain to Colombia. Colombia herself has explicitly recognized
this. In her Counter-Memorial she states:
“(T)he Court acknowledged that the whole
Archipelago belongs to Colombia. All that
Colombia needs to show at the merits stage is
that those cays do belong to the Archipelago.”7

6
See full text in NM, Vol. II, pp. 55-59, Annex 19, and below Chap. II.
7
CCM, Vol. I, p. 6, para. 1.9.
5
14. Although the burden of proof lies with Colombia to show what the
“San Andrés Archipelago” comprises, Nicaragua has offered evidence
both in her Memorial8
and in this Reply in Chapter I below, that at the
moment of independence, when title over territory was determined on
the basis of the well-known principle of uti possidetis iuris, the “San
Andrés Archipelago” was comprised only of the Islands of
Providencia (and Santa Catalina), San Andrés and the Corn Islands9
.
In fact these are the only five islands mentioned by name in the 1928
Treaty.
15. Colombia attempts to interpret the stipulation of the 1928 Treaty
which provides that it “does not apply” to three reefs (Serrana,
Roncador and Quitasueño) as meaning that Nicaragua recognizes that
she has no sovereignty over these features. As explained below in
Chapter I, Section III this is not what the Treaty says or means to say.
If that had been the intention of the Treaty, it would have said so in
words as clear as it used in recognizing the sovereignty of Colombia
over the “San Andrés Archipelago”. Furthermore, as also pointed out
below10, the only reason why Serrana, Roncador and Quitasueño were
mentioned in the Treaty is because the United States was also
claiming them. Lastly, it should also be pointed out that if the Treaty
had disposed of the sovereignty over these three maritime features, the
Judgment of the Court of 13 December 2007 would have also
disposed of this Nicaraguan claim in the same way as it did with the

8
NM, Vol. I, Chap. I, pp. 15-57, and 125-126, paras. 1.1-1.122 and 2.141.
9
The Corn Islands are Big and Little Corn Island and are known by their Spanish
name of Islas del Maiz and also, specially by Colombia, as the Mangle Islands.
10 At pp. 50-55, paras. 1.79-1.96.
6
question of sovereignty over the Islands of San Andrés, Providencia
and Santa Catalina.
16. With respect to the other maritime features in dispute, including the
cays of Serranilla and Bajo Nuevo, which are not mentioned by name
in the Treaty, it should be pointed out that these features are entirely
equivalent to the other three which are identified by name. If they
were thought to be part of the “San Andrés Archipelago” they would
naturally have been mentioned. On the other hand, if Serrana,
Roncador and Quitasueño are themselves completely detached from
and located well to the north and the east of the islands of Providencia
and San Andrés, the two cays of Serranilla and Bajo Nuevo are even
further detached and quite distant even from Serrana, Roncador and
Quitasueño. The only connection of all these features is that they are
located off the mainland coast of Nicaragua and on her continental
shelf.
17. The Protocol of Ratification of the 1928 Treaty stipulated that “the
San Andrés and Providencia Archipelago mentioned in the first clause
of the said Treaty does not extend west of the 82nd degree of longitude
west of Greenwhich”. Colombia has attempted to interpret this
meridian as a line of delimitation of maritime areas. In its 13
December 2007 Judgment the Court considered that,
“contrary to Colombia’s claims, the terms of
the Protocol, in their plain and ordinary
meaning, cannot be interpreted as effecting a
delimitation of the maritime boundary between
Colombia and Nicaragua. That language is
more consistent with the contention that the
provision in the Protocol was intended to fix
7
the western limit of the San Andrés
Archipelago at the 82nd meridian.”11
18. In spite of the clear language in the Protocol of Ratification that the
“Archipelago” does not extend westward of the 82nd meridian,
Colombia attempts to read into those words that the maritime areas of
Nicaragua do not extend eastward of that meridian. This is a
nonexistent limit that cannot curtail the rights over maritime areas
generated by the continental coast of Nicaragua. But what is even
worse than this capricious and self-serving addition to the wording of
the Protocol is Colombia’s persistent use of force and the threat of the
use of force and intimidation against Nicaraguan vessels in order to
impose the 82nd meridian as a line of delimitation in clear disregard of
the Judgment of the Court of 13 December 2007. This last situation is
further explained below in Section IV of this chapter.
19. The Colombian Counter-Memorial highlights the main points of her
arguments as follows:
“At the end of the colonial period the
Archipelago was part of the Viceroyalty of
Santa Fe (New Granada).
Since independence Colombia has always
exercised sovereignty over the Archipelago,
including all the islands, islets and cays.”12
And
“The Nicaraguan claim is based primarily on
an implausible interpretation of the uti
possidetis juris, an interpretation already

11 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007, p. 34, para. 115. 12 CCM, Vol. I, Chap. 1, p. 4, para. 1.6.
8
practically denied by the Court in the
Nicaragua v. Honduras case.”13
20. Since, as explained above, the position of Nicaragua has been adjusted
to fit the jurisdictional limits determined by the Court, these assertions
could in principle be ignored as irrelevant to the questions over which
the Court has determined it has jurisdiction. In all events, the position
of Nicaragua on these questions is clearly stated and documented in
her Memorial which is part of the record of this case. But, to be
precise about the factual situation that existed at the time of
independence of both Parties, and which serves as the basis for
application of the principle of uti possidetis iuris, the following brief
summary is offered.
21. Colombia refers to the Royal Order of 1803 as if it were a definitive
and undisputed document demonstrating that at the time of
independence the Caribbean Coast of Nicaragua and its appurtenant
off-shore islands were part of the colonial territorial division of which
Colombia is a successor State. This question is of course no longer at
issue in these proceedings, but for the record it is useful to recall the
following basic points:

13 CCM, Vol. I, pp. 1-3, para. 1.3. Colombia quotes literally (CCM, Vol. I, pp. 84
and 85, para. 3.10), and repeatedly uses in her arguments (CCM, Vol. I, pp. 287-
290, paras. 6.14-6.16), the assertion that the Court made en passant in pp. 45-46,
para. 161 of its Judgment of 8 October 2007 (Maritime Delimitation between
Nicaragua and Honduras in the Caribbean Sea, (Nicaragua v Honduras)). With all
due respect, Nicaragua considers particularly unfortunate the introduction of the
obiter dictum of the Court related to the Royal Order of 20/30 November 1803 in a
Judgment concerning another issue where the Royal Order was not relevant for
deciding that case and at a moment when the Court was precisley deliberating on the
question of the Preliminary Objections raised by Colombia in this case. In any event,
whatever the appearances of prejudgment this reference might have on the present
case, the position of Nicaragua is that this obiter dictum does not have the effect of
res iudicata.
9
1. Europe and its American Colonies were in the midst of the
Napoleonic upheaval and the colonies were taking their first
steps towards independence at the beginning of the XIX
century.
2. The Royal Order of 1803 was only a transfer of the military
defense of the area to the Vice Royalty of New Granada. The
only way to affect a total transfer was by means of a Royal
Decree (Cedula Real) which emanated directly from the
King.14
3. In all events, this Royal Order was repealed by another Royal
Order of equal rank in 1806 confirming the total dependence
of this area to the Captaincy General of Guatemala of which
Nicaragua is a successor State.15
4. The last law of the Kingdom of Spain that provided for the
territorial division of the American Colonies is contained in
the Constitution of Spain that was approved in the Parliament
called “General and Extraordinary Cortes” that convened in
Cadiz, Spain from 1810 to 1812 during the so-called
Peninsular War to expel the Napoleonic armies. The Corte or
Parliament had representatives from the colonies including
from what is present day Nicaragua and Colombia. Article 10
of this Constitution (1812) divided the territories of America
from Mexico to the Strait of Magellan in two parts: America
Septentrional (Northern America) that reached from Mexico to
the southern limit of the Audiencia de Guatemala at the present
day border between Costa Rica and Panama; and America
Meridional (Southern America) that reached from this Costa
Rica/Panama border to the Strait of Magellan. Each
hemispheric half included its coasts and adjacent islands. The
Vice Royalty of New Granada, of which Colombia is a
successor state, was in the southern half and hence could have

14 See NM, Vol. I, pp. 31-35, paras. 1.48-1.58.
15 NM, Vol. I, pp. 39-43, paras. 1.69-1.79.
10
no coasts or adjacent islands in the America Septentrional that
began on the border of present day Costa Rica/Panama.16
22. There are at least two important moments in which third parties
analyzed the validity of the Colombian claims based on the Royal
Order of 1803.
1. The first is a note from Mr. Frederick Chatfield, the British
Charge d’Affaires to Central America, dated 15 April 1847
and addressed to Viscount Palmerston at the Foreign Office.
This lengthy note provides a careful analysis of the claims of
Colombia at the time based on her alleged titles as successor of
the Viceroyalty of Santa Fe (New Granada). His conclusions
are basically those stated above: that the Royal Order of 1803
did not transfer and was not the adequate instrument for
transferring the Caribbean Coast and its adjacent islands to
Colombia.17
2. Since Colombia’s claim on the basis of the Royal Order of
1803 was over the Mosquito Coast which included not only the
present day Nicaraguan Caribbean Coast but also the
Caribbean Coast of Costa Rica, this territorial dispute was
submitted to arbitration by the President of France, Emile
Loubet, who in his Award decided that the Caribbean Coast
appertained to Costa Rica.18
23. Colombia must naturally be aware that further discussion on these
points in the present case is largely academic19 and presumably

16 See the Memorandum Explanatory of the Controversy between Nicaragua and
Colombia, dated 1924, and reedited by the Ministry of Foreign Affairs of Nicaragua
in 1981, pp. 97-102, deposited with the Registry as Doc. 5.
17 See NM, Vol. II, pp. 247-250, Annex 77.
18 See NM, Vol. I, pp. 52-54, paras. 1.106-1.111 and NM, Vol. II, p. 65, Annex 21
and p. 251, Annex 78.
19 Colombia dismissively asserts that she “responds to the positions taken in
Nicaragua’s Memorial of 28 April 2003, to the extent these positions may have
11
highlights them for what she considers might be their impressionistic
effect. In that same vein, the following facts might be recalled:
1. The negotiations and basic provisions of the agreement that
culminated with the 1928 Treaty were proposed by
Colombia. Nicaragua was unwilling to enter into this
Treaty and proposed arbitration. It was the intervention of
the United States that was occupying Nicaragua at the time
that led to the signing and ratification of the 1928 Treaty20.
2. With the 1928 Treaty Colombia “relinquished” her claims
to the extensive Nicaraguan Caribbean Coast in exchange
for receiving a few off-shore islands which, in 1928-1930,
were entirely irrelevant to any claims to maritime spaces
beyond their 3-nautical-mile territorial sea.
24. The common sense question is: If Colombia’s colonial titles based on
uti possidetis iuris were legally sustainable why would Colombia be
willing (and anxious) to enter into a Treaty which would give her
much less than the famous 1803 Royal Order purported to do? Due to
the limits of the jurisdiction in this case, that question will go
unanswered. But, of course, Nicaragua knows the answer. And
Colombia also knows it very well.

survived the Court’s Judgment on Preliminary Objections of 13 December 2007.”
CCM, p. 1, para. 1.1.
20 See, generally, NM, Vol. I, Chap. II.
12
III. Maritime Delimitation
25. Although the Court’s Judgment did not directly affect Nicaragua’s
request for a maritime delimitation, it provoked her to review her
general position and to undertake a more detailed analysis of the
question of delimitation, including additional geological and
hydrographic studies of the area. Nicaragua’s original position on
maritime delimitation as expressed in her Memorial requested the
Court to adjudge and declare that:
“the appropriate form of delimitation, within
the geographical and legal framework
constituted by the mainland coasts of
Nicaragua and Colombia, is a single maritime
boundary in the form of a median line between
these mainland coasts.”21
26. After a review of the situation Nicaragua has decided that her request
to the Court should be for a continental shelf delimitation. As will be
explained in the course of this pleading, the result of this delimitation
will be to completely delimit the maritime areas appertaining to
Nicaragua and to Colombia and, hence, in this respect it will be the
only pertinent or single maritime boundary affecting the Parties.
27. The extent of the natural prolongation of the Nicaraguan continental
shelf in the area of the delimitation is a physical fact that can be
verified scientifically with data that are in the public domain. Even a
superficial review of any map with contours of the floor of the
Caribbean Sea (see e.g. Figure 122) would show to the even
inexperienced eye that the Nicaraguan continental shelf is very

21 NM, Vol. I, Submission (9), pp. 266-267.
22 The Figures presented are for illustration purposes only, except where coordinates
are indicated.
13
extensive, and reaches eastward well beyond 200 nautical miles from
Nicaragua’s more than 450 kilometers long Caribbean coast.
28. Although the continental shelf of Colombia, which projects
northwestward from her Caribbean Coast, is considerably less
extensive than Nicaragua’s, it nevertheless meets and overlaps with
Nicaragua’s continental shelf, such that there is need of delimitation.
29. On the continental shelf of Nicaragua are located a few islands and
several cays the sovereignty over which is in dispute between
Nicaragua and Colombia but which, in whatever way this issue is
determined, do not significantly affect a delimitation involving the
mainland coasts of Nicaragua and Colombia. In her Memorial,
Nicaragua had indicated that if these features are found to appertain to
Nicaragua, then they should simply be considered as located on her
continental shelf for the effects of a delimitation, and if any of these
features were found to be Colombian, they should be enclaved, and in
respect of San Andrés and Providencia be “accorded a territorial sea
entitlement of twelve [nautical] miles”23 and any other features found
to be Colombian should be accorded an enclavement area of three
nautical miles. This request is maintained and reiterated in this Reply.
30. The “San Andrés Archipelago” including all the features claimed by
Colombia and disputed by Nicaragua has a total area of about 17
square miles (44 km²), according to the Encyclopedia Britannica24.
Apart from the minor features over which sovereignty is still an issue,
the fundamental question that is before the Court by virtue of

23 NM, Vol. I, Submission 7, p. 266.
24 http://www.britannica.com/EBchecked/topic/520947/San-Andres-y-Pr. See Chap.
II below.
14
Colombia’s Counter-Memorial is Colombia’s claim, based on her
putative sovereignty over these few square kilometers of islands and
cays located off the extensive mainland coast of Nicaragua and
situated on her continental shelf, to over 100,000 square kilometers of
maritime areas that otherwise would indisputably be universally
recognized to be Nicaraguan.
31. The position of Colombia in her Counter-Memorial is that the
maritime delimitation does not involve the mainland coasts of
Nicaragua and Colombia but consists of an equidistance line drawn
between the islands fringing the mainland coast of Nicaragua and
located west of the 82nd meridian with the “San Andrés Archipelago”,
which she understands to comprise any rock cropping its head out of
the waters off the mainland coast of Nicaragua and located east of the
82nd meridian. On the basis of this exercise of wishful thinking,
Colombia presumes that Nicaragua’s maritime areas are limited to an
area of approximately 50 miles off her mainland coast, whilst
Colombia’s “archipelago” will absorb all the rest which, even in this
restricted delimitation area, would imply that Colombia would receive
approximately 75% of all the maritime areas to be delimited. This
Colombian scenario would confine the maritime delimitation to a
restricted area and would totally ignore Nicaragua’s mainland coast
and continental shelf, on which are located, according to Colombia’s
claim, the innumerable pieces of the “archipelago”.
32. The Colombian Counter-Memorial has been true to form with respect
to her blown up ambitions on questions of maritime delimitation. The
position of Colombia, which she has for decades imposed by force on
Nicaragua, is that the 82nd meridian West was a line of maritime
15
delimitation between the Colombian “San Andrés Archipelago”25 and
the Caribbean Coast of Nicaragua. With the Judgment of 13 December
2007 having determined that this meridian was not a line of maritime
delimitation, Colombia has now considered that her claim to the 82nd
meridian was in reality a concession that benefited Nicaragua and that
based on her interpretation of the law, the line of delimitation should
extend even further west of this meridian, cutting even more deeply
into Nicaragua’s maritime areas.
33. The evident truth is that Colombia is well aware that even if she could
maintain her claim of sovereignty over San Andrés and Providencia, it
would be unthinkable that any Tribunal would determine that an
equitable delimitation between these islands and the mainland coast of
Nicaragua could possibly be based on an equidistance line between
these two areas. That is why she chose to claim the 82nd meridian as a
line of delimitation. And that is why Colombia’s present attempt to
even go beyond this preposterous claim, is beyond any words that
could properly be used in this Reply.
IV. Colombia’s Continued Imposition of the 82nd Meridian
34. The legal analysis of the implications, if any, of the 82nd meridian to
the present case is developed in Chapter VII below. At this point, the
review is limited to a summary description of the way this meridian
has been imposed on Nicaragua as a line of delimitation.

25 Nicaragua’s position is that the so called “San Andrés Archipelago” refers only to
the island of San Andrés and the island of Providencia. When reference is made to
the island of Providencia, this will generally include the very small island of Santa
Catalina which is separated from it by a narrow channel. See below Chap. II, Sec.
B.
16
35. Colombia confidently asserts that she “has consistently exercised
maritime jurisdiction over the waters of the Archipelago up to the 82º
W meridian, the limit established by the 1928/1930 Treaty.”26 What is
undeniably true is that Colombia has consistently used her enormously
superior military forces to impose this meridian as a limit on
Nicaraguan vessels. It is certainly undeniable that Colombia has been
successful in blocking any possibility for Nicaragua to enter these
maritime areas for any purpose including exploration.
36. The Nicaraguan Memorial documents the events that led to
Colombia’s first claim that this meridian was a line of delimitation of
maritime areas by a note of 4 June 1969.27 The Colombian claim was
made in reaction to certain concessions for oil exploration that
Nicaragua had granted in areas east of the 82nd meridian. This claim
was enforced by the Colombian navy. There are two diplomatic notes
dated 7 October 1972 sent by the Minister of Foreign Affairs of
Nicaragua to the Minister of Foreign Affairs of Colombia and the
Secretary of State of the United States, respectively, complaining of
the use of force by Colombia in order to impose her claim over all
maritime areas east of the 82nd meridian.28 The note to the Secretary of
State is particularly telling in expressing “the profound surprise
caused by the news it has received regarding the utilization by the
Colombian Government, through the use of warships recently
obtained from Your Excellency’s Government, is engaging the use of

26 CCM, Vol. I, p. 5, para. 1.6.
27 NM, Vol. I, pp. 153-155, paras. 2.203-2.205, and Vol. II, pp. 101-110, Annexes
28 and 29.
28 NM, Vol. II, pp. 125-132, Annexes 34 and 35.
17
force to resolve a difference that should be resolved according to the
principles recognized by International Law.”29
37. As could be expected, no other attempts by Nicaragua were made
regarding the exploration for oil since the time these concessions were
granted in the 1960s. No responsible oil company was willing to
accept the risk to their vessels and employees of being captured by the
Colombian navy. Since then, the more adventurous or needier
fisherman and other workers of the sea have occasionally ventured
into this area and been accosted or captured by Colombian military
forces. Some of these incidents are listed in the Nicaraguan
Memorial.
30
38. These examples could be brought up to date with another list of
incidents that have occurred whilst this case has been before the
Court, but their only purpose would be to prove what is already
evident: that Colombia effectively has imposed a naval blockade
restricting the navigation of Nicaraguan vessels east of the 82nd
meridian31.
39. The point that must be emphasized is that after the Judgment of 13
December 2007 in which the Court concluded “that the 1928 Treaty
and 1930 Protocol did not effect a general delimitation of the maritime
boundary between Colombia and Nicaragua” and that the Treaty’s
language was “more consistent with the contention that the provision

29 NM, Vol. II, p. 131, Annex 35.
30 NM, Vol. I, pp. 159-162, paras. 2.216-2.222.
31 Complying with the Court’s Practice Directions III regarding the excessive
tendency towards the proliferation and protraction of annexes to written pleadings,
Nicaragua will limit herself to highlighting some of the recent incidents. See NR,
Vol. II, Annexes 7-10.
18
in the Protocol was intended to fix the western limit of the San Andrés
Archipelago at the 82nd meridian”32, Colombia has continued to
impose this meridian as if it were a line of delimitation.
40. This prompted the Nicaraguan Government to send a communication
on 14 February 2008 addressed to the Secretary-General of the United
Nations informing him and all the Member States of the Organization
that in spite of the Judgment of the Court, Colombia had announced
that she would continue and in fact had continued enforcing the 82nd
meridian as a line of delimitation. The letter indicated that “[a]s well
as making public declarations, the Colombian authorities have used
force to prevent Nicaraguan vessels from going about their business to
the east of the 82nd meridian.”33
41. Colombia for her part responded with a letter dated 29 February 2008
addressed to the Secretary-General of the United Nations in which she
unambiguously recognized that Colombia was continuing to impose
the 82nd meridian. In pertinent part it states that “Colombia has made
every effort to ensure that ships flying its flag do not engage in fishing
or other activities west of the 82nd meridian. In turn, it has continued
to take routine measures designed to ensure that any fishing vessel
that engages in activities to the east of that line has been licensed to do
so by the competent Colombian authorities.”34

32 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007, respectively p. 36 para. 120 and p. 34,
para. 115.
33 See NR, Vol. II, Annex 5.
34 See NR, Vol. II, Annex 6.
19
42. It is at the very least ironic that Colombia should presume to evince
the existence of a “practice” by the Parties, that is by Nicaragua,
attesting to the acceptance of this meridian as a line of delimitation.
As is eminently obvious, Nicaragua has always responded by all
means short of the use of force, against this Colombian imposition
since it was first initiated.
43. Colombia’s imposition by force of the 82nd meridian as a maritime
boundary is in breach of her obligations under the rules of customary
International Law. Nicaragua is therefore requesting a declaration to
this effect and claiming compensation for the damages suffered (see
below pages 235 to 239).
V. Summary of the Reply
44. The Reply is divided in two parts: Part I will address the issue of
sovereignty (Chapter I) and Part II (Chapters II through VII) will
address maritime delimitation. Chapter II contains the legal
framework including the criteria and principles involved in the
delimitation. Chapter III addresses the legal and technical
considerations for a continental shelf delimitation. Subsequently,
Chapter IV analyzes the physical and certain legal aspects of the
maritime features located on the continental shelf of Nicaragua.
Chapter V justifies the enclaving of these maritime features as the
only way of producing an equitable delimitation. Chapter VI analyzes
the errors and inequities of the maritime delimitation proposed by
Colombia that would give full effect to all her claimed maritime
features on the Nicaraguan continental shelf, and the inequitable
results of even giving partial effect to any of these features. Finally,
Chapter VII addresses the irrelevance of the 82˚ W meridian to the
20
delimitation of a maritime boundary between Colombia and
Nicaragua.
PART I
THE ISSUE OF SOVEREIGNTY

23
CHAPTER I
THE ISSUE OF SOVEREIGNTY
I. Introduction
1.1. The Judgment of the Court of 13 December 2007 on the Preliminary
Objections raised by Colombia determined that its jurisdiction is only
available for certain aspects of the territorial dispute between the
Parties. Nicaragua has explained above in the Introduction to this
Reply that with the reservations therein made35 she will adapt the
original Application filed in the Court on 6 December 2001 and the
arguments and submissions in her Memorial of 28 April 2003 to the
limits of the jurisdiction determined by the Court in its Judgment.
1.2. Therefore the questions of sovereignty dealt with in this Reply will be
based on the declaration by the Court that the 1928 Treaty36 is valid
and settled the territorial dispute in accordance with its terms at the
time of the conclusion of the Pact of Bogotá.
1.3. The conclusion reached by Nicaragua is that based on the text and
objectives of the Treaty as stated in its Preamble, it “put[s] an end to
the territorial dispute pending between” the Parties. That is, all
questions relating to the territorial dispute can be resolved by
reference to this Treaty.
1.4. The other issues raised in the Nicaraguan Memorial and addressed in
the Colombian Counter-Memorial with respect to questions of uti

35 See above p. 3, paras. 8-10.
36 For the full text of the Treaty and the Protocol of Ratification, see NM, Vol. II, pp.
55-59, Annex 19.
24
possidetis iuris and the validity of the 1928 Treaty are not relevant to
the claims extant within the limits of the jurisdiction afforded by the
Court.
II. History of the Dispute on Sovereignty
1.5. The territorial dispute between Nicaragua and Colombia dates back to
the period of independence of both Parties from Spain in the early
XIX century. A brief history of the dispute may be reviewed in the
Nicaraguan Memorial37.
1.6. The position of Nicaragua in her Memorial was to assert her
traditional claim of sovereignty over the Mosquito Coast and over all
features lying offshore of it including the adjacent islands of San
Andrés and Providencia, based on the uti possidetis iuris at the
moment of independence from Spain38.
1.7. The position of Colombia, disputed by Nicaragua, was that at the time
of independence from Spain, by a Royal Order dating from 30
November 180339 the King had segregated from the territory, that
later was to become Nicaragua, the Mosquito Coast and the “Islands
of San Andrés” and incorporated them into the colonial dependency of
which Colombia was a part and became the successor State at
independence.
1.8. On 24 March 1928 a Treaty was signed by Nicaragua and Colombia
with the stated purpose of putting an end to this dispute. The Treaty
stipulated in Article I that,

37 NM, Vol. I, pp. 2-9, paras. 4-21.
38 NM, Vol. I, Chap. pp. 15-58.
39 CCM, Vol. II-A, p. 121, Annex 22.
25
“The Republic of Colombia recognizes the full
and entire sovereignty of the Republic of
Nicaragua over the Mosquito Coast between
Cape Gracias a Dios and the San Juan River,
and over Mangle Grande and Mangle Chico
Islands in the Atlantic Ocean (Great Corn
Island and Little Corn Island). The Republic of
Nicaragua recognizes the full and entire
sovereignty of the Republic of Colombia 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.
The present Treaty does not apply to the reefs
of Roncador, Quitasueño and Serrana,
sovereignty over which is in dispute between
Colombia and the United States of America”40.
1.9. The Ratification of the 1928 Treaty on 5 May 1930, included the
signature of a special Protocol to the effect that:
“The undersigned, in virtue of the full powers
which have been granted to them and on the
instructions of their respective Governments,
hereby declare that the San Andrés and
Providencia Archipelago mentioned in the first
clause of the said Treaty does not extend west
of the 82nd degree of longitude west of
Greenwich”41.
1.10. The position of Nicaragua as explained in her Memorial was that the
1928 Treaty was not valid42 and that sovereignty had remained with
Nicaragua on the basis of the uti possidetis iuris at the moment of

40 NM, Vol. II, p. 56, Annex 19.
41 NM, Vol. II, p. 59, Annex 19. Ibid at p. 59. 42 NM, Chap. II, Sec. II: The invalidity of the Treaty, pp.108-124, paras. 2.102-
2.138.
26
independence since the Royal Order of 1803 did not have the
necessary legal requirements to effect a complete transfer of the
administration of those areas during the colonial period, but only for
its military protection. Colombia disagreed on both counts.
1.11. In its Judgment of 13 December 2007 on the Preliminary Objections
raised by Colombia, the Court considered:
“that the 1928 Treaty was valid and in force on
the date of the conclusion of the Pact of Bogotá
in 1948, the date by reference to which the
Court must decide on the applicability of the
provisions of Article VI of the Pact of Bogotá
setting out an exception to the Court’s
jurisdiction under Article XXXI thereof.”43
And
“that it is clear on the face of the text of Article
I that the matter of sovereignty over the islands
of San Andrés, Providencia and Santa Catalina
has been settled by the 1928 Treaty within the
meaning of Article VI of the Pact of Bogotá.”44
1.12. And on this basis the Court found unanimously:
“that it has jurisdiction, on the basis of Article
XXXI of the Pact of Bogotá, to adjudicate
upon the dispute concerning sovereignty over
the maritime features claimed by the Parties
other than the islands of San Andrés,
Providencia and Santa Catalina.”45

43 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007, p. 27, para. 81. 44 Ibid, p. 28, para. 88. 45 Ibid, p. 42, para. 142.
27
III. Consequences of the Validity of the 1928 Treaty
1.13. By the 1928 Treaty Colombia recognized “the full and entire
sovereignty of the Republic of Nicaragua over the Mosquito Coast
between Cape Gracias a Dios and the San Juan River”46. The result of
this recognition is that Nicaragua is the undisputed title holder of any
and all rights that she could claim to the Mosquito Coast at the date of
signature of the Treaty in 1928, including those rights devolving on
her as successor State of the colonial power at independence in 1821.
Furthermore, based on this recognition by Colombia, Nicaragua could
also claim any and all rights Colombia had at the moment of signature
of the Treaty including her purported rights of uti possidetis iuris over
the Mosquito Coast based on the Royal Order of 1803. In sum,
Nicaragua has original and derivative rights of sovereignty over the
Mosquito Coast and its appurtenant maritime features.
1.14. Nicaragua for her part recognized “the full and entire sovereignty of
the Republic of Colombia 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.”47 The result is that Colombia
also acquired similar rights over whatever was understood to comprise
the “San Andrés Archipelago” at the time of independence.
1.15. Since both Parties can lay claim to original title over their respective
areas based on the uti possidetis iuris at the moment of Independence,
the consequence of the 1928 Treaty is that both parties can claim an
original or derived title based on the uti possidetis iuris at the time of
the independence of Nicaragua in 1821 or at the time of the

46 NM, Vol. II, p. 56, Annex. 19.
47 Ibid.
28
independence of Colombia in 1810. This means that it is necessary to
define what was understood to be comprehended within the concept of
“Costa de Mosquito” and of “San Andrés Archipelago” at the time of
independence in order to determine what one Party recognized to the
other. The analysis of these questions is developed in Sections B and
C below.
1.16. The practical effect is that it is not necessary for Nicaragua or
Colombia to seek to prove the better original title over the Mosquito
Coast and over the “San Andrés Archipelago” since each Party
acquired through the 1928 Treaty any title the other Party had in 1928,
which included any title based on uti possidetis iuris over these areas
at independence. If Colombia had the better title over the Mosquito
Coast and all it comprehended at the moment of independence, then
this title was transferred to Nicaragua at the moment the 1928 Treaty
was ratified. This eliminates the need for a substantial amount of
argument that was presented in the Nicaraguan Memorial48 and in the
Colombian Counter-Memorial49.
1.17. Therefore, the arguments and evidence in this Part of the Reply
dealing with questions of sovereignty and title over territory will be
addressed to interpretation of the 1928 Treaty in order to determine
what area was being recognized by each Party as pertaining to the
other, and specifically of establishing what was considered to be part
of the Mosquito Coast in 1821 or 1810 and what was understood to
conform the “San Andrés Archipelago” in those dates.

48 See NM, Chap. I, pp. 15-58, paras. 1.1-1.122.
49 See CCM, Chap. 3, pp. 79-147, paras. 3.1-3.156 and Chap. 4, pp. 149-239, paras.
4.1-4.189.
29
A. INTERPRETATION OF THE 1928 TREATY
1.18. Article I of the 1928 Treaty contains two paragraphs50. The first deals
with the question of sovereignty over the Mosquito Coast and over the
San Andrés Archipelago, and the second stipulates that the Treaty
does not apply to the reefs of Roncador, Serrana and Quitasueño.
1.19. With respect to the meaning of the first paragraph, in its Judgment of
13 December 2007 the Court considered
“that it is clear on the face of the text of the
first paragraph of Article I of the 1928 Treaty
that its terms do not provide the answer to the
question as to which maritime features apart
from the islands of San Andrés, Providencia
and Santa Catalina form part of the San Andrés
Archipelago over which Colombia has
sovereignty. That being so, this matter has not
been settled within the meaning of Article VI
of the Pact of Bogotá and the Court has
jurisdiction under Article XXXI of the act of
Bogotá”51.
1.20. The Court thus considered that the Treaty did not identify what
maritime features were being attributed to Colombia apart from the
three specifically mentioned by name in the Treaty, but the other side
of this question was not spelled out; that is, what features apart from
those explicitly forming part of the San Andrés Archipelago are
appurtenances of the Mosquito Coast and the Corn Islands? From
Nicaragua’s point of view, the only logical answer to this question is
that all features that are not proven to be part of the “San Andrés
Archipelago” of necessity are appurtenances of the Mosquito Coast.

50 See pp. 24-25, below, para. 1.8.
51 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007, pp. 30-31, para. 97.
30
1.21. In Colombia’s view, the San Andrés Archipelago is formed by all the
maritime features that she claims to the east of the 82nd meridian, no
matter their latitude or distance from each other. They are enumerated
in paragraph 2.5 of her Counter-Memorial and described in
paragraphs 2.6 to 2.32, with the support of some maps52. According
to Colombia all these features formed a group throughout the colonial
and postcolonial era53.
1.22. As will be seen below54 the “San Andrés Archipelago” was not a
Caribbean Hydra with numberless heads stretching from Cartagena
(Colombia) to Havana (Cuba) as the Colombian Counter-Memorial
tries to bring to life55. Nor was the Mosquito Coast only a beach head
from which to observe this endless and unique “Archipelago” of two
small islands that according to Colombia generated rights in the
greater part of the extensive western Caribbean superseding those
rights of the mainland coast over any feature that might show its head
above water at low tide.
1.23. Interpretation of the Treaty requires attention to two other points. The
first point concerns to the second paragraph of the Treaty. The Court
has already determined that:
“the meaning of the second paragraph of
Article I of the 1928 Treaty is clear: this treaty
does not apply to the three maritime features in
question. Therefore, the limitations contained
in Article VI of the Pact of Bogotá do not

52 CCM, Vol. I, pp. 17, 19, 21, 23, 25, 27, 29, 31, Figures 2.1-2.8; full size: Vol. III
Maps, pp. 3-15.
53 CCM, Vol. I, pp. 36-60, paras. 2.33-2.77.
54 See below pp. 44-50, paras. 1.64-1.78.
55 CCM, Vol. I, pp. 39-40, para. 2.41.
31
apply to the question of sovereignty over
Roncador, Quitasueño and Serrana”56.
1.24. Colombia claims that the wording of this second paragraph of Article
I implies that Nicaragua was recognizing that these cays were not
Nicaraguan but that they either appertained to Colombia or to the
United States of America57. Nicaragua’s position on the other hand, is
that this is not what the words of the Treaty plainly say; nor is it a
correct interpretation of their intention or meaning as will be
explained below58.
1.25. The second point relates to the 5 May 1930 Act of Ratification of the
1928 Treaty. This affords another important element for determining
what features appertained or did not appertain to the “San Andrés
Archipelago”. The Protocol declared that:
“the San Andrés and Providencia Archipelago
mentioned in the first clause of the said Treaty
does not extend west of the 82nd degree of
longitude west of Greenwich.”59
1.26. It is clear from the wording that this Protocol was not setting any
special limits to Nicaragua and her Mosquito Coast but only to the
“San Andrés Archipelago”. This language made it clear that there
were no Colombian islands or other features west of this 82nd meridian
but it set no limit to any Nicaraguan territory east of that meridian.
1.27. On the general question of interpretation Nicaragua considers that
special attention should be paid to the political, economic and military

56 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007, p. 32, para. 104. 57 CCM, Vol. I, p. 254, paras. 5.27-5.28.
58 See below pp. 50-55, paras. 1.79-1.96.
59 NM, Vol. II, p. 59, Annex 19.
32
situation Nicaragua was subjected to at the time of the negotiation and
signature of the 1928 Treaty. The Court has found that the validity of
the Treaty cannot be considered in these proceedings but that does not
erase the past or eliminate the need to take into consideration the
context in which the Treaty was signed in order to properly interpret
it.
1.28. The Nicaraguan Memorial contains a detailed description of the
process of negotiation of the 1928 Treaty and the conditions under
which Nicaragua functioned during that period.60 Nicaragua considers
that the 13 December 2007 Judgment of the Court does not make
irrelevant these facts for the proper interpretation of the Treaty.
B. WHAT MARITIME FEATURES FORM PART OF THE SAN ANDRÉS
ARCHIPELAGO OVER WHICH THE SOVEREIGNTY OF COLOMBIA WAS
RECOGNIZED BY NICARAGUA IN PARAGRAPH 1 OF ARTICLE I OF THE
1928 TREATY?
1. Uti possidetis iuris
a. International Law principle binding on the Parties
1.29. The doctrine of the uti possidetis juris (uti possidetis ita possideatis)
has been described as conflating “boundary and territorial questions
by assuming as a governing principle that boundaries must be as they
were in law at the declaration of independence; viz 1810 for former
Spanish colonies in South America and 1822 [sic] for those in Central

60 See NM, Vol. I, Chap. II, especially pp. 59-124.
33
America. It is a necessary part of this doctrine that there could have
been no terra nullius in those parts at those times.”61
1.30. This doctrine or principle of international law is also treaty law for the
Parties on the basis of the Treaty of “Perpetual Union, League and
Confederation” signed in Bogota on 15 March 1825 by Colombia and
the United Provinces of Central America. Article VII of the treaty
embodied this doctrine in the following words: “the Republic of
Colombia and the United Provinces of Central America, oblige and
bind themselves to respect their boundaries as they exist at
present…”62.
1.31. This position reflected the international practice and the internal legal
systems of the Parties at independence. Thus, shortly after
independence, on 19 June 1824 the Foreign Minister of the Republic
of Colombia, Pedro Gual, addressed a letter to the Commander-inChief
of the British Naval Forces in the West Indies, Vice-Admiral Sir
Lawrence Halstead. In this, he expressed that “in our primitive
constitution, as well as in the one promulgated in a more solemn
manner on 18 July 1821, it was stipulated that the limits of the
Republic (of Colombia) would be those that Venezuela and New
Granada would have when they were subject to the jurisdiction of the
King of Spain.” 63
1.32. In this communication Minister Gual directly applied the principle of
uti possidetis iuris to Colombia’s claim over the Mosquito Coast and
the islands of San Andrés. Minister Gual indicated to Admiral

61 Oppenheim’s International Law, 9th Ed, Edited by Sir Robert Jennings and Sir
Arthur Watts, Longman, Vol. I, Part 2, p. 669.
62 NM, Vol I, p. 21, para. 1.23.
63 CCM, Vol. II-A, p. 127, Annex 24.
34
Halstead that the limits of New Granada (of which Colombia was a
successor State), “reached the coasts neighboring the island of
Jamaica until, and including, Cape Gracias a Dios, with the islands of
San Andrés, Vieja Providencia and other adjacent ones. The stretch of
coast comprised between Cape Gracias a Dios and the Chagres River
belonged to the Captaincy-General of Guatemala for a while, but all
this territory was definitely ascribed to the New Granada, on 30
November 1803.”64
1.33. The first Constitution of Central America (of which Nicaragua is a
successor State) dates from 22 November 1824 and provides that “The
territory of the Republic is that which formerly comprised the Ancient
Kingdom of Guatemala.”65
1.34. Therefore, any determination as to sovereignty over the territory
located off the coast of Nicaragua, or as to the extent of any part of
that territory including territorial components of the “islands of San
Andrés” or of the “Archipelago of San Andrés”, has to be effectuated
on the basis of the colonial titles to which the Parties succeeded at
independence.
1.35. This was the practice followed when Colombia and Costa Rica
submitted to the arbitration of President Loubet of France in 1900, the
question of sovereignty over that part of the Mosquito Coast that is the
present day Caribbean Coast of Costa Rica. The legal questions
decided by the Arbitrator where based on the colonial titles of both

64 CCM, Vol. II-A, p. 127, Annex 24. Some years after this note, the British
Representative to Central America gave his own opinion of the lack of merits of this
1803 document. See this reference above Intro. p. 10, para. 22 and in NM, Vol. II, p.
247, Annex 77.
65 NM, Vol. I, p. 19, para. 1.16.
35
Parties and in particular on the Royal Order of 1803 which was the
basis of Colombia’s claim to sovereignty over that coast.66
1.36. Any claims of acquisition by any other title than that based on uti
possidetis iuris would be a direct violation of this doctrine and of the
1825 Treaty.
b. Uti possidetis iuris and small maritime features
1.37. It is also true, as pointed out in the Oppenheim edition cited above,
that this doctrine “owing to the uncertainty of many of the Spanish
colonial administrative boundaries at that time, especially in remote
and often unexplored areas, has not always led to a ready and certain
answer.”67 But this uncertainty is not relevant in the present
circumstances. Uncertainty might occur in determining sovereignty
over maritime features not easily attributable because they were
located near two adjacent States or they were located between States
facing each other at a relatively close distance in which it was difficult
to determine the respective sovereignty of either one based strictly on
colonial documentation. In such situations, the effective possession of
one or the other as demonstrated by means of effectivités has been a
means of resolving these disputes.
1.38. In the present circumstances, apart from the presumption implicit in
the doctrine of uti possidetis iuris against the existence of terra nullius
in the Americas, the maritime features in dispute were known and had
been surveyed by the Spanish authorities during the colonial period.
Without going into unnecessary lengths of investigation and
burdening the issue with numerous records, it is enough to cite the

66 See NM, Vol. I, pp. 52-54, paras. 1.106-1.110.
67 Op cit., p. 670.
36
document annexed by Colombia in her Counter-Memorial which
contains the sailing directions (derrotero) of the Spanish Navy in
182068. This document describes most of the cays at issue in this case:
the cays of Albuquerque, East-Southeast, Roncador, Serrana,
Serranilla and Bajo Nuevo. There is no dispute that the maritime
features described were known during colonial times and had been
surveyed by the colonial sovereign shortly before the independence of
Central America in 1821.
1.39. The question then is whether these maritime features during the
colonial times and at independence would have been considered
appurtenances of the mainland coast or separate territorial entities. In
the present case, we are not dealing with an important island like
Hispaniola or Jamaica that naturally has its own separate territorial
existence. Here we are dealing with respect to minor features like San
Andrés, Providencia and the Corn Islands, with a small area and a
population during colonial times and at independence that would not
have exceeded a few hundred inhabitants.69 It would seem illogical
that the Spanish colonial Empire would have treated these small
features independently of the mainland coasts to which they were
naturally attached. In fact this was the case, as explained below.
1.40. During the colonial period the islands and other maritime features off
the mainland coasts were considered as appertaining to these coasts.
Thus the limits of the Audiencia de Guatemala (to which Nicaragua is
a successor State) were fixed by Royal Decree (Cédula Real) of 28

68 CCM, Vol. II-A, p. 615, Annex 172, see also below pp. 43-44, paras. 1.60-1.62.
69 The recognizance made by Lieutenant del Río in 1793 indicated that the
population with the then recent influx of English amounted to “including all the
islands to 556 individuals”. See NM, Vol. II, p. 6, Annex 3.
37
June 1568 and confirmed in 1680 by Statute VI, Title XV, Book II of
the Compilation of the Indies which stipulated:
“And let said Province of Guatemala as well as
those of Nicaragua, Chiapas, Higueras, Cabo
de Honduras, Vera-Paz and Soconusco, with
the islands adjacent to the coast, bounded on
the east by the Audiencia of Tierra Firme…”70
1.41. The Royal Order of 1803 on which Colombia so heavily relies does
not purport to separate the islands by themselves from the jurisdiction
of the Captaincy General of Guatemala or from the Mosquito Coast. 71
The Constitution of Spain of 1812, which is the last law of the Spanish
Empire that provided for territorial division in America, stipulated that
the area corresponding to the Captaincy General of Guatemala
included “all the adjacent islands on the Pacific and the Atlantic”
(todas las islas adyacentes sobre el Pacifico y el Atlantico)
72.
1.42. In the note sent by the Colombian Minister Gual in 1824 to the British
Admiral, quoted above in paragraph 1.32, he refers to “the islands of
San Andrés, Vieja Providencia and other adjacent ones”; that is, he
precisely identifies them as adjacent to the present day Nicaraguan
coast which was also claimed by Colombia at that time.
1.43. The understanding that the Spanish sovereign recognized the
territorial attachment of the islands to the mainland coast is confirmed
in the Treaty of 25 July 1850 in which Spain recognized the
independence of Nicaragua and her sovereignty over the “territories

70 See NM, Vol. I, pp. 26-27, para. 1.38.
71 See NM, Vol. II, p. 25, Annex 6.
72 See NM, Vol. I, pp. 43-45, paras. 1.80-1.83.
38
situated between the Atlantic Ocean and the Pacific, with its adjacent
islands…”73.
1.44. Thus it is incontrovertible that all the islands off the Caribbean coast
of Nicaragua at independence appertained to this coast. If the Treaty
of 1928 had not divided between Nicaragua and Colombia title over
this territory (that is, attributed the coast to Nicaragua and certain
islands to Colombia) it would simply be a question of determining the
sovereign of the coast in order to determine the sovereign over the
whole territory including all the islands.
2. Colonial era
1.45. Colombia asserts that all the claimed maritime features “traditionally
have been considered as a unit”74 and that “since the time of the
Viceroyalty of Santa Fe (New Granada) … were considered as parts
of a whole, closely interrelated with the islands of San Andrés,
Providencia and Santa Catalina”75. But, where is that tradition? What
documents support this tradition?
1.46. The Royal Order of 30 November 1803 on which Colombia based her
colonial titles (uti possidetis iuris) over the territories in dispute,
stipulated that the King had
“resolved that the Islands of San Andrés and
the part of the Mosquito Coast from the Cape
Gracias a Dios, included, towards the Chagres
River be segregated from the General
Captaincy of Guatemala (colonial predecessor
of Nicaragua and other Central American
States) and dependent upon the Viceroyalty of

73 NM, Vol. II, p. 43, Annex 13.
74 CCM, Vol. I, pp. 38-39, para. 2.39.
75 Ibid, p. 39, para. 2.40.
39
Santa Fe (colonial predecessor of Colombia
and other States)” 76.
1.47. One preliminary observation is that the Royal Order does not mention
any other features that supposedly comprise the plural expression of
“islands” the Order uses when referring to San Andrés. It does not
mention the only other comparable islands in the area namely
Providencia or the Corn Islands.
1.48. Another observation would be that the Order does not refer to the
“San Andrés Archipelago” but only to the “Islands of San Andrés”.
This is the name used in all the colonial documents submitted by
Colombia77.
1.49. A final conclusion that might be deduced from this Royal Order is that
all of the two territories which are being segregated are segregated
indivisibly, as a whole; that is, the Mosquito Coast and the islands of
San Andrés are segregated, respectively, as a unit with all their
respective appurtenances. In fact, this is what was understood to be
the case by the Colombian Minister Gual in the note quoted in
paragraph 1.32 above. Nothing more can be read from this Royal
Order or from any other colonial documents that would support any
conclusion to the effect that all the maritime features off the Mosquito
Coast were independent from this Coast and formed a separate “unit”
with the island of San Andrés. It would take an enormous leap of
faith to believe that the unmentioned minor cays were an accessory to
the small island of San Andrés instead of to the extensive Mosquito
Coast, or that the Mosquito Coast was only an accessory to the small
island of San Andrés.

76 CCM, Vol. II-A, p.121, Annex 22.
77 See Ibid, pp. 109-124, Annexes 19-23.
40
1.50. Juan de Solórzano y Pereira, citing ample authority, expressed a
common opinion, when referring to islands: “dominium quidem
occupantibus quaeri, superioritatem vero et iurisdictionem huiusmodi
locorum ad eum pertiere, qui in illo mari imperium habet; mari autem
imperare videri qui in continente próxima imperat, ut argumento legis
Venditor (fundi) (…Digesto 1,1.5) aperte scribit Glossa (In VI
1.2.16)”- “The property is given to the inhabitants, but the authority
and jurisdiction over those places belongs to whomever has the
dominion over the mainland, as is clearly written in the Glosa using
the Venditor Law argument”78.
1.51. The idea that the sovereignty over the mainland attracts or allows a
presumption of sovereignty of the continental sovereign over adjacent
islands is widely accepted, together with that of their contiguity or
greater proximity. It is a basic principle of logic that what is
accessory follows the principal.
1.52. When it came to identifying the maritime features that composed the
“San Andrés Archipelago”, the first governor of the Islands, Tomás
O’Neille, reported that the islands were “five in number, to wit: San
Andrés, Providencia, Santa Catalina, San Luis of Mangle Grande, (or)
Alto or Corn Island, and Mangle Chico, surrounded by several islets
and cays of the same type”79.

78 “La propiedad se asigna a los ocupantes, pero la autoridad y la jurisdicción de
tales lugares pertenecen a aquél que tiene dominio en ese mar. Y tiene, al parecer,
dominio sobre el mar quien lo tiene sobre la tierra firme que está en sus
proximidades, como claramente escribe la Glosa usando el argumento de la ley
Venditor” [J. de Solórzano Pereira, De Indiarum iure, Liber II: De adquisitione
Indiarum (Chaps. 1-15). Ed. And translation into Spanish by J.M. García Añoveros
et al., Madrid, 1999 (II.6, n. 19-22, pp. 186-188)]. 79 NM,Vol. I, pp. 125-126, para. 2.141.
41
1.53. Colombia presumes that O’Neille’s description according to which
these islands are “surrounded” by other features “cannot be taken
literally, as meaning immediate proximity, but as a reference to the
general area where all these features are located”80.
1.54. The least one can say about the interpretation that Colombia makes of
O’Neille’s description is that it is extravagant enough. Looking at a
map of the area (Figure 1-1) and considering the distances between
the different maritime features and their exiguous dimensions, a
certain kind of fantasy is necessary in order to imagine that Roncador,
Serrana and, still more, Serranilla or Bajo Nuevo, “surround” the
islands aforementioned by O’Neille. They do only in the sense that
Haiti, Jamaica, Cuba and Grand Cayman can be said to “surround”
San Andrés.
1.55. For any objective observer, it is obvious that when O’Neille mentions
the “several islets and cays” surrounding San Andrés, Providencia,
Santa Catalina and the Corn Islands, he is referring to those in their
close environment particularly since all of these islands have costal
reefs.
1.56. Colombia refers, without citing any source, to the exploration of Juan
(sic) Francisco de Fidalgo81 who, at the beginning of the XIX century
executed the Crown order to survey “the cays and banks located
between Cartagena and Havana”. Colombia states: “All the islands
and cays that were covered by the reconnaissance are part of the San
Andrés Archipelago”82. How does Colombia draw that conclusion?

80 CCM, Vol. I, p. 38, para. 2.37.
81 Nicaragua believes Colombia refers to Joaquín Francisco de Fidalgo. In the
Résumé Chronologique des Titres Territoriaux de la République de Colombie, Paris,
1899, p. 97, there is a mention of a report by this captain dated 20 February 1805.
82 CCM, Vol. I, pp. 39-40, para. 2.41.
42
Fidalgo’s mission was to explore islands and cays located “between
Cartagena and Havana”, not to identify the islands pertaining to the
“San Andrés Archipelago”.
1.57. Colombia then refers to the exploration of the Frigate Captain Manuel
del Castillo y Armenta83. In the performance of his mission, Del
Castillo sighted Bajo Nuevo, which incidentally he describes as a
“shoal”, then located Serranilla, Serrana (after having looked for it for
four days due to, he says, its wrongly described location), Roncador,
Santa Catalina and San Andrés. Colombia contends that “Del
Castillo’s reconnaissance was carried out over islands and cays that
are part of the San Andrés Archipelago. It did not cover any other
islands or cays in the vicinity, including the islets and cays close to the
Jamaican and Nicaraguan coasts”84.
1.58. If we confine ourselves to the logic employed by Colombia, neither
Quitasueño (which, understandably, was not sighted by Del Castillo
because it is a submerged bank), nor Albuquerque, nor the cays of the
East-Southeast, nor the Corn Islands, would form part of the “San
Andrés Archipelago”, since Del Castillo does not mention them in the
report of his Caribbean tour. Providencia would not be part of the
Archipelago either.
1.59. But the real point is that Del Castillo was just obeying the orders of
the Crown to locate and describe its insular possessions from its two
main stations in the Caribbean Sea: Havana and Cartagena. Neither
Del Castillo nor Fidalgo before him talked about or referred to any
Archipelago and much less to a “San Andrés Archipelago”.

83 CCM, Vol. I, pp. 40-42, paras. 2.42-2.44 and Vol. II-A, pp.123-124, Annex 23. 84 Ibid, p. 42, para. 2.44.
43
1.60. Colombia reproduces, finally85, the Derrotero de las islas antillanas,
de las costas de tierra firme, y de las del seno mexicano, published by
the Hydrographic Office of the Spanish Navy in 1820, which,
naturally, includes all the maritime features we have been mentioning
(with the exception of Quitasueño86) and Serranilla and Bajo Nuevo
which are described as “shoals”. Since the document is a derrotero
(Sailing Directions) of the “islas antillanas” it is only natural that it
should refer to these features. What else could be expected? But at no
time does the derrotero describe these features as a group, or as part
of a single archipelago as Colombia claims.
1.61. What is interesting to note about the derrotero is its title which is not
translated in the text of the Colombian Counter-Memorial or in Annex
172 “Sailing Directions of the Antillean islands, of the mainland
coasts and of the Mexican coasts (concavity)”. The section of the
derrotero annexed by Colombia is the “Description of the Mainland”.
It is under this latter title in which the derrotero deals with the
features selected by Colombia and states: “we will now say something
about the islands and shoal bordering vis-à-vis that coast that are
beyond sounding depth.”87 Naturally, the coast that is being bordered
is the Mosquito Coast off which these features are located. Quite
naturally also, these features are described in relation to the mainland
coast and not to any artificial and unknown archipelago of which,
according to Colombia’s claims, they would form a part.

85 CCM, Vol. I, pp. 42-46, para. 2.45 and Vol. II-A, p. 615-617, Annex 172.
86 A Derrotero or sailing directions would have been careful to indicate the location
of the dangerous submerged bank of Quitasueño- the fact that it is not mentioned
only highlights that it was not visible and therefore not included.
87 CCM, Vol. II-A, pp. 615-617, Annex 172.
44
1.62. The date of this Derrotero –1820– would be interesting for the
question of the uti possidetis if this were an issue before the Court.
This document implies that 10 years after the independence of
Colombia, from the Kingdom of Spain –in spite of the supposedly all
powerful 1803 Royal Order– Spain still considered the Mosquito
Coast and adjacent maritime features as part of her domains, that is, as
part of a Nicaragua which had not yet gained independence in 1820.
1.63. In conclusion, during the colonial era the islands identified as forming
part of the “San Andrés Archipelago” are the aforementioned five
identified by governor O’Neille. This does not support the assertions
of Colombia, but quite the opposite, it refutes them.
3. What was understood by the reference to the “islands of San
Andrés”?
1.64. In this section the issue is not whether Nicaragua or Colombia had the
better title over the territories in dispute at independence, since it must
be accepted in the framework of this proceeding that each had a
perfect title as from the 1928 Treaty. The question is what was
understood to comprise the territories over which sovereignty was
recognized by the Parties respectively in that treaty. Concretely, what
maritime features where understood to be appurtenant to the
Caribbean coast of Nicaragua and what features were understood to
comprise the “San Andrés Archipelago” at the time of independence
which is the moment of determination of title.
1.65. It has been demonstrated that during the colonial period the islands
appertained to the sovereign of the coast. In the case of San Andrés
there is no question that the title claimed by Colombia over the islands
was based on and included the title over the Mosquito Coast.
45
Nonetheless, this does not negate the fact that if reference was made
to the “islands of San Andrés” this reference had some specific
meaning that could identify these islands as a specific and distinct part
of the general territory even if not as a distinct legal or administrative
entity. Thus, the group of islands identified in the Royal Order of 1803
as the “islands of San Andrés” referred to a geographical entity with at
least an approximate limit in number and location. It is a legal and
historical absurdity to claim that this group of small islands with few
inhabitants could have been meant to identify all the maritime features
located between Cartagena in Colombia to Havana in Cuba, as the
Colombian Counter-Memorial attempts to portray.88 In this wishful
Colombian scenario the Mosquito Coast would be transformed simply
into a coast line with no off shore features.89 This result flies in the
face of common sense as well as colonial practice.
1.66. During the colonial period the references to the group of inhabited
islands identified as the “islands of San Andrés” encompass five
specific islands: San Andrés, Providencia, Santa Catalina, and Big and
Little Corn islands.
1.67. Thus, for example, the reconnaisance made of the coast and the
islands on 25 August 1773 by ship lieutenant of the Royal Navy José
del Río. In his letter to the Secretary of War he states: “I have the
satisfaction to enclose the four maps of the islands of San Andrés,
Providencia, Santa Catalina, Mangles (the two Corn Islands) and
geographic chart of the Mosquito Coast up to Trujillo, rectified of
many errors and views of the highest interesting lands.”90 There is no

88 See CCM, Vol. I, pp. 39-40, para. 2.41.
89 CCM also attempts to make the Nicaraguan mainland coast disappear and play no
role in the delimitation. See below Chap. VI.
90 NM, Vol. II, p. 8. Annex 3.
46
suggestion of additional islands forming part of this group.
Futhermore, it is clear that these islands were surveyed as part of the
mainland coast.
1.68. At the beginning of the XIX century, the Spanish governor of the
islands Tomas O’Neille, enumerated the islands under his
governorship in exactly the same way. 91
1.69. A glance at any map of the area (see Figure 1-1) will indicate that this
group, which –it should not be forgotten– includes the Corn Islands
which are under undisputed Nicaraguan sovereignty, is located more
or less in a compact area between latitudes 12º N and 13º 30′ N. There
was never any indication that it reached beyond this area. No
reference was ever made to any other islands and cays as being
considered part of this island group, as distinguished from being part
of the rest of the Mosquito Coast.
1.70. The suggestion might be made that no reference was made to these
other features because they were very small maritime features. But
this would completely ignore the geography of the area. The island
known as Cayo Miskito is located at approximately latitude 14º 20′ N.
It is a similar distance from San Andrés as are the cays of Serrana and
Roncador, and is certainly much closer to the shoal of Quitasueño.
Furthermore, it is much closer than San Andrés to the distant cays of
Serranilla and Bajo Nuevo. In any case, it is by far the largest island
North of the 14º North parallel where the cays of Serrana, Serranilla,
Bajo Nuevo and the submerged reef of Quitasueño are located.
1.71. And, Cayo Miskito is an island that is of similar size to San Andrés
itself, and it is surrounded by a very extensive chain of islands that

91 See above p. 40, para. 1.52.
47
dwarf any sporadic rocks surrounding San Andrés. Why is it not
mentioned in any of the records as part of the “islands of San
Andrés”? The answer is evident: because the group of San Andrés had
a geographical circumscription that did not extend beyond the other
four islands, located nearby, that were repeatedly mentioned as being
part of this group.
1.72. Nicaragua in her Memorial has claimed sovereignty over the
following cays: the Cayos de Albuquerque; the Cayos del Este
Sudeste; the Cay of Roncador; North Cay, Southwest Cay and any
other cays on the bank of Serrana; East Cay, Beacon Cay and any
other cays on the bank of Serranilla; and Low Cay and any other cays
on the bank of Bajo Nuevo. The contention of Colombia is that all
these features are part of her “San Andrés Archipelago”. A look at this
claim (Figure 1-2) means that the Mosquito Coast of Nicaragua has
disappeared from the map. According to Colombia, the small and
insignificant island group of San Andrés has superseded the
sovereignty of this coast over the maritime features located off its
shores.
1.73. These cays are located in three separate areas that are quite distant
from each other and do not form a uniform whole.
1.74. The first group is the only one with a certain proximity and possible
connection with the group of “islands of San Andrés”. This group is
comprised of Cayos de Albuquerque and Cayos del Este Sudeste. This
first group lies between 19 and 15 nautical miles from the island of
San Andrés.
1.75. This does not signify that these two cays are of necessity part of the
“islands of San Andrés” that now appertain to Colombia and are
48
referred to as the “San Andrés Archipelago”. The two islands of Big
and Little Corn were also a substantial part of this original island
group and there is equal reason to consider that these cays or any one
of them are part of the Corn Island group that appertains to Nicaragua.
For example, the cays of Albuquerque are also relatively near to the
Corn Islands.92
1.76. The second group is Roncador and Serrana. These cays are completely
detached from the area and are located 110 and 130 nautical miles
respectively from San Andrés. This distance and their lack of any real
connection to the island group of San Andrés is the reason, for
example, why the United States was able to lay claim to them in the
XIX century, and it was only 20 years after they had been occupied
and the claim of sovereignty over them by the United States published
in a list by the Department of the Treasury on 12 October 1871 that
Colombia protested. It might be pointed out that Nicaragua for her
part filed no protest on these measures. The fact is that Nicaragua was
not in a capacity to take effective actions with relation to matters of
her Mosquito Coast since this area was still in dispute and de facto
controlled by Great Britain.93 In this regard, it is appropriate to point
to the delayed response to the occupation by the Colombian Chargé
d’Affaires in Washington. He addressed a letter to the Secretary of
State on 18 January 1893, stating that the Government of Colombia
was ignorant of the situation but that its silence “could in no case
prejudice its rights since prescription does not concede a title of

92 Another question is that according to the figures in the CCM the Cays of
Albuquerque are also located partially to the west of the 82nd meridian. See for
example CCM, Vol. I, p. 345, fig. 8.1.
93 NM, Vol. I, p. 49, para. 1.96.
49
dominion under international law and the acts or the rights of a nation
are exercisable at any time.” 94
1.77. The third group is that of Bajo Nuevo and Serranilla. These are
respectively 260 and 220 nautical miles distant from San Andrés and
were not effectively claimed by Colombia before the XX century.
These two cays were also considered by Honduras to be part of her
territory since they were located in an area off what she claimed to be
her coast until the Judgment of 8 October 2007 decided this issue.
Before the Judgment of the Court, Colombia and Honduras had signed
a Treaty on 2 August 1986 whereby they divided between themselves
the Cay of Serranilla. It is important to note that the claim by
Honduras was also based on the fact that these cays were off what she
considered to be her coasts and used this title to negotiate the 1986
Treaty with Colombia.
1.78. In conclusion,
i. The only maritime features that could have any
historical and geographic connection with the island
group of San Andrés are the only relatively near cays
of Albuquerque and East South East. The Corn Islands
were also part of this island group of San Andrés and
have an equal right to claim sovereignty over these two
cays.
ii. The cays of Serrana and Roncador and the shoal of
Quitasueño have no geographical or colonial
connection with the island group of San Andrés. They
were never effectively occupied by Colombia in the
XIX century precisely because of the distance and lack
of economic, social or political connection with the
islands of the group.

94 CCM, Vol. II-A, p. 147, Annex 27.
50
iii. A fortiori the even more distantly located cays of Bajo
Nuevo and Serranilla have no connection with San
Andrés.
C. THE SPECIAL QUESTION OF RONCADOR, SERRANA (AND
QUITASUEÑO)
1. The second paragraph of Article I of the 1928 Treaty: the text
1.79. The second paragraph of Article I of the 1928 Treaty states that: “The
present Treaty does not apply to Roncador, Quitasueño and Serrana,
sovereignty over which is in dispute between Colombia and the
United States of America”95.
1.80. The Court, in the Judgment of 13 December 2007, after summing up
the conflicting positions of the Parties concerning the interpretation of
this provision96, observed that it had jurisdiction over the question of
sovereignty of these maritime features, since the 1928 Treaty,
according to the clear meaning of the second paragraph of Article I,
“does not apply”97 to them.
1.81. Colombia tries to obtain an advantage98 in the wording of the original
Spanish text: “No se consideran incluidos en este tratado…”, which
according to Colombia is not adequately reflected in the translated
version used by the Court in its 2007 Judgment. The text used by the
Court is taken from the translation into English and French made by
the Secretariat of the League of Nations that renders the Spanish

95 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007 p. 11, para. 18. 96 Ibid, pp. 31-32, paras. 99-103. 97 Ibid, p. 32, para. 104. 98 CCM, Vol. I, pp. 249-252, paras. 5.15-5.22.
51
phrase of the Treaty into English as “The present Treaty does not
apply…” and into French as “Le présent traité ne s’applique pas...”
1.82. In Colombia’s opinion, the right translation should have been: “The
Roncador, Quitasueño and Serrana cays are not considered to be
included…)”99. According to Colombia this was the way it was
understood by her and the United States, and the intention of these
words was:
“not that the Treaty did not apply – but that the
cays were not considered to be included in the
Treaty by reason of the dispute between the
two States [i.e. Colombia and United States].
The phrase ‘are not considered to be’ is in
effect a deeming clause: its subject is the three
cays. It implies that, but for the dispute, the
three cays would have been considered as
included in the Treaty; in other words, that they
were included in the phrase ‘all the other
islands, islets and cays that form part of the
said Archipelago de San Andrés’”100.
1.83. Nicaragua considers, in any case, that the conclusion drawn by
Colombia from the literal meaning of the second paragraph of Article
I of the 1928 Treaty is unwarranted, whether one stands by the
Spanish text, or adopts the English or French translations proposed by
Colombia. If Roncador, Quitasueño and Serrana “no se consideran
incluidos” (“are not considered to be included”) in the Treaty it is
because they are excluded, they are ruled out, they are beyond its
limits or, as translated by the experts of the Secretariat of the League
of Nations, the Treaty “does not apply” to them.

99 CCM, Vol. I, p. 251, para. 5.20. Emphasis added.
100 Ibid, pp. 251-252, para. 5.21.
52
1.84. There is absolutely no way to infer from the text that, but for the
dispute referred to in the second paragraph of Article I, Roncador,
Quitasueño and Serrana would have been considered as part of the
“San Andrés Archipelago”, as Colombia claims101.
1.85. On the contrary, if any inference is to be drawn from the text it is to
point out that if the understanding had been that these features were
part of the “San Andrés Archipelago”, then the text of the Treaty
(following the preferred version of Colombia) would have said: “The
Roncador, Quitasueño and Serrana cays are not considered to be
included…” in the San Andrés Archipelago and not as the Treaty
states, that they would not be considered to be included in the Treaty.
1.86. As explained in Nicaragua’s Memorial, the only reason for singling
out these three cays was because the United States was interested in
them. Colombia for her part had no special interest in them and even
proposed at one point in the negotiation of 1928 that the treaty should
specifically indicate that,
“Colombia acknowledges Nicaragua’s absolute
domain over the Mosquitia, the Mangles
Islands and the cays of Roncador, Quitasueño
and Serranilla (sic)”102.
1.87. Therefore, the only correct conclusion is that if the United States had
not forced the inclusion103 of this provision, Roncador, Quitasueño
and Serrana would be in the same position as the other maritime
features which are not mentioned eo nomine, in respect to which the
question is whether they are covered by the reference of the first

101 CCM, Vol. I, pp. 2.51-2.52 para. 5.21; p. 254, paras. 5.27-5.28. 102 NM, Vol. I, p. 131, para. 2.155. 103 See, generally, NM, Vol. I, Chap. II.
53
paragraph of Article I to the “San Andrés Archipelago” or they are
appurtenances of the Mosquito Coast.
1.88. Nicaragua contends that based on the text of the Treaty, the cays of
Roncador and Serrana (Quitasueño is a submerged bank) do not form
part of the San Andrés Archipelago104.
2. The second paragraph of Article I of the Treaty: not an implicit
relinquishment by Nicaragua
1.89. Colombia claims that the wording of the second paragraph of Article I
of the 1928 Treaty implies that Nicaragua was recognizing that these
cays were not Nicaraguan but that they either appertained to Colombia
or the United States105. This is not correct.
1.90. In the first place, paragraph 1 of Article I of the Treaty uses the very
clear wording “recognizes the full and entire sovereignty of” when the
intention is to recognize the sovereignty of the other party. There is no
such indication in paragraph 2 of any recognition of sovereignty over
these cays by Nicaragua either on behalf of Colombia or of the United
States.
1.91. In the second place, the text does not state that Nicaragua is
renouncing her claims to title over these three features. Any
relinquishment of title would have to be explicit, as explicitly worded
as the recognition accorded to the other Party in the first paragraph of
Article I.

104 Colombia herself is ambiguous on this question and has even referred to them as
being part of the Archipelago of Providencia. See CCM, Vol. I, pp. 49-50, para.
2.55.
105 CCM, Vol. I, pp. 420-421, para.10.7.
54
1.92. Therefore, the 1928 Treaty provides no basis for sustaining that
Nicaragua relinquished her claims to Roncador, Serrana and
Quitasueño.
3. The second paragraph of Article I of the 1928 Treaty: basis of title
to the three features
1.93. As indicated above, the wording of the 1928 Treaty does not imply
any relinquishment of Nicaragua’s claim of sovereignty, or any
recognition of sovereignty of the United States or of Colombia, over
those features.
1.94. Further, the words cannot be read to mean that the explicit recognition
by Colombia of “the full and entire sovereignty of the Republic of
Nicaragua over the Mosquito Coast”106 (including of necessity all
rights emanating from uti possidetis iuris) excluded any rights to
claim these three features as part of that coast based on the uti
possidetis iuris at the time of independence or that, conversely, the
Treaty excluded the right of Colombia to claim these three features as
part of the “San Andrés Archipelago” on the same basis. Neither
Nicaragua nor Colombia made any reservation to the recognition of
the “full and entire sovereignty”107 of the other Party. The fact that the
three features were not considered to be included in the Treaty or that
it does not apply to them, does not mean that either the Mosquito
Coast or the “San Andrés Archipelago” was being in any way reduced
in size or diminished in appurtenances.
1.95. In other words, the effect of the treaty was not to convert these three
cays into terra nullius where the sovereignty would be open to
question by other means different from that of the original title based

106 NM, Vol. II, p. 56, Annex 19. 107 Ibid.
55
on the uti possidetis iuris at the time of independence. In fact,
Colombia’s claim vis-à-vis the United States was based precisely on
the uti possidetis iuris of the “San Andrés Archipelago”. Likewise,
Nicaragua’s claim is based on the uti possidetis iuris of the Mosquito
Coast, and the fact that the three features do not constitute part of the
San Andrés Archipelago legally, historically or geographically108.
1.96. Thus, the question is reduced to whether Colombia can prove that
these cays were part of the “San Andrés Archipelago” at the time of
Independence. If this is not sufficiently proven, then the only logical
conclusion is that these cays –like any other maritime features off the
Mosquito Coast– appertained to that coast, and belonged to the State
with sovereignty over that coast.
IV. Conclusions
1.97. In the 1928 Treaty, Colombia recognized the sovereignty of Nicaragua
over her Caribbean Coast (Mosquito Coast) with all appurtenant rights
over the maritime features located off this Coast with the exception of
those features that can be established to have been considered part of
the “San Andrés Archipelago”. In accordance with the evidence, the
archipelago consisted of the islands of San Andrés, Providencia (and
Santa Catalina) and the smaller maritime features in their immediate
vicinity. The archipelago does not include: Cayos de Albuquerque,
Cayos del Este Sudeste, the Cay of Roncador, North Cay, Southwest
Cay and any other cays on the bank of Serrana, East Cay, Beacon Cay
and any other cays on the bank of Serranilla, and Low Cay and any
other cays on the Bank of Bajo Nuevo.

108 See above pp. 32-49, paras. 1.29-1.77.

PART II
MARITIME DELIMITATION

59
MARITIME DELIMITATION
General Introduction
1. The second part of the case involves the maritime delimitation
between Nicaragua and Colombia. As will be explained in Chapter III
below, the only delimitation that is necessitated by the geographic
circumstances attendant to this case is a delimitation of the
overlapping continental shelves of the two States. There is no need for
a delimitation of exclusive economic zones claimed respectively by
Nicaragua and Colombia because the mainland coasts of the two
States are separated by a distance of more than 400 nautical miles.
2. It is Nicaragua’s position that the three islands identified in the 1928
Treaty as part of the “Archipelago of San Andrés”, that is, San
Andrés, Santa Catalina and Providencia, should each be enclaved,
within a 12-nautical-mile radius, and any other minor feature proven
by Colombia to be part of this Archipelago should, in accordance with
its physical characteristics and location, be enclaved within a 3-
nautical-mile radius.
3. The jurisprudence of the Court and arbitral tribunals, reviewed in
Chapters V and VI, unequivocally shows that geographical features of
this nature (even if they are not rocks but real islands as San Andrés)
are enclaved and do not generate rights to an exclusive economic zone
or a continental shelf, especially when they are located on the opposite
party’s side of the delimitation line. As will be shown in Chapter IV,
the “San Andrés Archipelago” lies squarely on the physical and legal
continental shelf of Nicaragua, and thus falls on Nicaragua’s side of
60
the delimitation line separating Nicaragua’s and Colombia’s
continental shelves.
4. Enclaving the three islands identified as comprising the “San Andrés
Archipelago”, and any minor features that the Court might determine
to be under Colombian sovereignty, would not affect the delimitation
of the continental shelf. The result is the same if any of the disputed
geographic features are found, by the Court, to be Nicaraguan. The
only difference is that features found to be Nicaraguan would not need
to be enclaved, since they are already situated on Nicaragua’s
continental shelf and within Nicaragua’s 200-nautical-mile exclusive
economic zone.
5. In Chapter VI, Nicaragua shows that there is no merit to the claims of
Colombia to a delimitation –including a 200-nautical-mile exclusive
economic zone and a continental shelf– giving full and unprecedented
effect to the three islands that the 1928 Treaty accorded her by name
as comprising the “San Andrés Archipelago”, or any effect to the
other minor features she claims are under her sovereignty.
61
CHAPTER II
LEGAL AND GEOGRAPHICAL FRAMEWORK
I. Legal Framework
A. NICARAGUA’S CLAIMS TO THE RESOURCES OF THE CONTINENTAL
SHELF, A NATIONAL FISHING ZONE, AND AN EXCLUSIVE ECONOMIC
ZONE
2.1. Nicaragua ratified the 1982 Law of the Sea Convention on 3 May
2000. However, the consequences of this ratification involved the
consolidation of long-standing claims to the natural resources of
adjacent maritime areas. The relevant legislation prior to ratification
of the Convention is as follows:
• General Law on the Exploitation of Natural Resources, 12
March 1958109.
• Limits Established for National Fishing Zone, 8 April 1965110.
• Law on the Continental Shelf and Adjacent Sea, 20 November
1979111.
2.2. The position of Nicaragua was confirmed by the Law on Maritime
Areas adopted on 22 March 2002. This is the current legislation, and
the text is as follows (in material part):

109 NM, Vol. II, pp. 191-193, Annex 63. 110 Ibid, pp. 201-202, Annex 65. 111 Ibid, pp. 203-205, Annex 66.
62
‘LAW ON MARITIME AREAS OF
NICARAGUA
“Art. 1. – The maritime areas of Nicaragua include
all the zones currently allowed by International
Law.
Art. 2 – The maritime areas of Nicaragua
correspond to those referred to in International
Law as:
1. The Territorial Sea;
2. The Interior Waters;
3. The Contiguous Zone;
4. The Exclusive Economic Zone;
5. The Continental Shelf.
Art.3 – The breadth of the Territorial Sea is 12
marine miles, measured from the straight base line
or low tide established along the length of the
coasts.
……………
Art.7. – The Exclusive Economic Zone of the
Republic of Nicaragua extends 200 marine miles
from the base line from which the territorial sea is
measured.
Art. 8. – The Continental Shelf of Nicaragua
covers the bed and subsoil of the submarine areas
that extend beyond its territorial sea as an
extension and natural projection of its territory
under the sea to the minimum distance of 200
marine miles and a maximum of 350 marine miles,
as recognised by International Law.
Art.9. – In processes of maritime delimitation, the
interests of the Nation shall be upheld, in
63
agreement with the provisions of International
Law.” 112
B. COLOMBIA’S CLAIMS REPRESENTED IN LEGISLATION
2.3. The relevant legislation of Colombia takes the form of the Law No. 10
adopted in 1978113. This provides for an exclusive economic zone to
an outer limit of 200 nautical miles, together with a provision on the
shelf as follows:
“Article 10. The sovereignty of the Nation extends to
its continental shelf for the purpose of exploring and
exploiting the natural resources.”114
C. THE APPLICABLE LAW
2.4. For Nicaragua, the applicable law is determined by her ratification of
the 1982 Law of the Sea Convention on 3 May 2000. The position of
Colombia is expressed in the Counter-Memorial as follows:
“3. As a preliminary matter, it is appropriate to
address briefly the question of the applicable
law. Nicaragua is a party to the 1982
Convention which it ratified on 3 May 2000.
Colombia signed the Convention in 1982, but
has not ratified it and is therefore not a party to
it. On the other hand, Colombia is a party to
the 1958 Geneva Continental Shelf Convention
and Nicaragua is not. Moreover, in 1978
Colombia established a twelve-mile territorial
sea, a two-hundred mile exclusive economic
zone and sovereign rights over its continental
shelf measured from its baselines.

112 NM, Vol. II, pp. 207-209, Annex 67. 113 CCM, Vol. II-A, pp. 495-497, Annex 142. 114 Ibid, p. 496, Annex 142.
64
4. In these circumstances, the applicable law in
the present case with respect to maritime
delimitation is customary international law as
mainly developed by the jurisprudence of the
Court and by international arbitral tribunals.
While the provisions of the 1982 Convention
are not applicable as a source of conventional
law per se, the relevant provisions of the
Convention dealing with a coastal State’s
baselines and its entitlement to maritime areas,
as well as the provisions of Articles 74 and 83
dealing with the delimitation of the exclusive
economic zone and continental shelf
respectively, reflect well-established principles
of customary international law.”
115 (Emphasis
added)
2.5. These passages are of obvious legal significance and show that
Colombia accepts that the ‘relevant provisions of the Convention’
reflect ‘well-established principles of customary international law’.
The terms of paragraph 4 quoted above clearly encompass the
provisions of Article 76 when reference is made to the ‘relevant
provisions of the Convention dealing with a coastal State’s baselines
and its entitlement to maritime areas ...’ It is obvious that Article 76
reflects ‘well-established principles of customary international law’.
2.6. In any case, the Colombian pleading refers explicitly to Article 83
concerning delimitation of the continental shelf between States with
opposite or adjacent coasts, and this reference must assume the
relevance of the definition of the continental shelf in Article 76, not
least because entitlement is logically anterior to delimitation.

115 CCM, Vol. I, pp. 305-306, paras. 3-4.
65
II. The General Geographical Framework and the Delimitation
Area
A. THE RELEVANT COASTS OF NICARAGUA AND COLOMBIA
2.7. In the Memorial, Nicaragua defined the relevant coasts for the
delimitation as:
(a) The mainland coast of Nicaragua from the terminus of the
land boundary with Honduras (in the north) to the terminus of
the land boundary with Costa Rica (in the south).
(b) The mainland coast of Colombia opposite the coast of
Nicaragua, and fronting on the same maritime areas116.
2.8. Colombia in the Counter-Memorial rejects that the mainland coasts of
Nicaragua and Colombia are the relevant coasts for the maritime
delimitation between Nicaragua and Colombia. In the first place, the
Counter-Memorial submits that:
“the geographic situation does not give rise on
the legal plane to an issue of delimitation as
between the mainland coasts of the Parties.”117
2.9. To reach this conclusion the Counter-Memorial first of all observes
that the mainland coasts are more than 400 nautical miles apart.118
According to Colombia, this implies that:

116 NM, Vol. I, p. 191, para. 3.15. 117 CCM, Vol. I, p. 314, para. 7.12. 118 Ibid, p. 313, para. 7.12.
66
“because of the distances involved, neither
mainland coast generates maritime rights to an
exclusive economic zone or continental shelf
which meet or overlap with the entitlements
generated by the other mainland coast,
whether under the 1982 Law of the Sea
Convention to which Nicaragua is a party, or
under the 1958 Geneva Continental Shelf
Convention to which Colombia is a party, or
under customary international law, or indeed
under the domestic legislation of the
Parties”119.
2.10. Colombia is correct in observing that the mainland coasts of
Nicaragua and Colombia are more than 400 nautical miles apart. At
the same time, Colombia ignores that the continental shelf of
Nicaragua extends beyond 200 nautical miles. This results in an
overlap of the continental shelves of the mainland coasts of Nicaragua
and Colombia. The Counter-Memorial confirms that Colombia is well
aware of the implications of these overlapping continental shelf
entitlements. How else to explain the argument in the CounterMemorial
that the Court should not consider the delimitation of the
continental shelf beyond 200 nautical miles?120 If there is no
entitlement beyond 200 nautical miles to start with, as the CounterMemorial
suggests in paragraph 7.12, which is quoted above, why
bother arguing that the Court should not consider its delimitation? As
a matter of fact, and as demonstrated below in Chapter III, there exists
a continental shelf entitlement of Nicaragua extending beyond 200
nautical miles from her mainland coast and the argument of Colombia
that it cannot be delimited is not sustainable.

119 CCM, Vol. I, pp. 313-314, para. 7.12 (footnote omitted). 120 Ibid, pp. 312-321, paras. 7.8-7.20.
67
B. ISLANDS
2.11. There are a number of islands and cays located off the mainland coast
of Nicaragua. Many of these islands and cays are fringing to the coast
in the sense that they are within the range of the territorial sea claims
of Nicaragua such as the extensive chain of cays to the north called
Cayos Miskitos which centers around the main island of the group,
Miskito Cay, which has an area of some 21 square kilometers. Further
to the south is the island group of which the most significant are the
two Corn Islands (Islas del Maiz) which are located 26 nautical miles
from the mainland coast and have an area, respectively, of 9.6 square
kilometers and 3 square kilometers.
2.12. Further off are located the islands of San Andrés and Providencia (and
its appendix Santa Catalina121) at a distance from the mainland coast
of Nicaragua of about 105 and 125 nautical miles and an area of some
25 square kilometers and some 17 square kilometers, respectively.
These islands are located at a distance of approximately 380 nautical
miles from the mainland of Colombia. As explained above122, the 13
December 2007 Judgment determined that the Court had no
jurisdiction to consider the dispute over the sovereignty over these
features. Hence, Nicaragua is proceeding in this case within the limits
of the jurisdiction granted by the Court; that is, for the purposes of this
case these islands will be considered under the sovereignty of
Colombia.

121 Santa Catalina is separated from Providencia by a narrow channel of 140 metres.
It has an area of slightly over 1 km2
, as indicated in the Intro. to this Reply. When
reference is made in the text to Providencia, it will usually be understood to be also
a reference to Santa Catalina.
122 See above pp. 2-3, para. 7.
68
2.13. Apart from the islands mentioned above, the continental shelf of
Nicaragua is relatively shallow and is strewn with numerous banks.
As described in the Nicaraguan Memorial in paragraphs 3.115 to
3.126, some of these features are close to the surface and in some of
them a small cay protrudes above the waters. A description of the
banks where cays have emerged is found in the passages of the
Memorial just mentioned, and is further elaborated in Chapter IV of
this Reply.
2.14. In Colombia’s view, all banks and cays located east of the 82nd
meridian of longitude west are part of an immense “San Andrés
Archipelago” that would block most of the maritime areas generated
by the mainland of Nicaragua.
2.15. In view of the importance the Counter-Memorial attaches to this
artificially magnified “San Andrés Archipelago”, in its blown up
incarnation, it is necessary to address this matter in some detail in the
Reply. Chapter IV looks at the geography of the islands and the cays
and Chapters V and VI at the consequences which flow from it for the
delimitation of maritime zones between Nicaragua and Colombia. The
main findings of that exercise can be summarized as follows. There is
no single archipelago that encompasses all the disputed islands and
cays. In particular, the following individual features are not part of
the “Archipelago of San Andrés”: Cayos de Albuquerque, Cayos del
Este Sudeste, the Cay of Roncador, North Cay, Southwest Cay and
any other cays on the bank of Serrana, East Cay, Beacon Cay and any
other cays on the bank of Serranilla, and Low Cay and any other cays
on the Bank of Bajo Nuevo. Each of these features has to be
considered separately in the assessment of the maritime delimitation.
69
That assessment indicates that all of these features lie in the middle of
Nicaragua’s continental shelf and exclusive economic zone, and that
they are minute in comparison to the mainland coasts. One of the
features concerned, Quitasueño, is permanently submerged and has to
be disregarded completely in the delimitation since it is simply part of
Nicaragua’s continental shelf. The other features, due to their size and
other characteristics, are rocks in the sense of Article 121(3) of the
1982 Law of the Sea Convention.
C. MARITIME DELIMITATION
2.16. In the Counter-Memorial, Colombia not only takes issue with
Nicaragua’s approach to maritime delimitation in light of the relevant
geographical framework, but also seeks to completely refashion the
relevant coastal geography. In that regard, the following aspects can
be noted.
2.17. First, in the Counter-Memorial the Colombian mainland coast has
gone missing. As Nicaragua submitted in the Memorial, the coast of
Colombia facing the delimitation area is located between the point at
which Colombia’s land boundary with Panama reaches the Caribbean
Sea and the northern extremity of the Peninsula of Guajira.123 This
relevant mainland coast of Colombia measures around 740 kilometers.
The present case in all likelihood is the first instance of a Party which
not only seeks to shorten its relevant coast, but to ignore it completely.

123 NM, Vol. I, after p. 278, Figure I.
70
2.18. Colombia submits that her “San Andrés Archipelago” constitutes the
only relevant coast for the purposes of maritime delimitation with
Nicaragua124.
2.19. Second, Colombia also ignores Nicaragua’s mainland coast, which is
by far the dominant geographical feature of the Western Caribbean
that is the focus of this proceeding. Instead of juxtaposing the two
mainland coasts, which she chooses to ignore altogether, she sets up
an artificial comparison between islands and insignificant cays and
rocks situated on either side of the 82nd meridian. Colombia
myopically focuses her approach to the delimitation on the islands,
cays and rocks lying to the east of that meridian –all of which she
claims as part of an inflated “San Andrés Archipelago”– and those
lying to the west of the meridian nearer to and accepted by Colombia
as appurtenant to Nicaragua’s coast. The only two Colombian features
in this “archipelago” of some significance are the islands of San
Andrés and Providencia, which have a combined coast facing the
Nicaraguan mainland coast of approximately 21 kilometers. In other
words, their combined coastal length is less than 1/20 of Nicaragua’s
450 kilometers coastline. It is no wonder that Colombia chooses to
ignore the latter.
2.20. Third, Colombia refuses to face the simple truth that the continental
shelf of Nicaragua extends beyond 200 nautical miles. On the one
hand, Colombia ignores the readily available facts which demonstrate
beyond doubt that the outer edge of the continental margin of
Nicaragua extends beyond 200 nautical miles, and that Nicaragua as a

124 CCM, Vol. I, pp. 341-343, paras. 8.6-8.9.
71
consequence is entitled to this extended continental shelf. That this
oversight is quite deliberate is evidenced by Colombia’s attempt to
deny that the entitlement to the continental shelf beyond 200 nautical
miles is inherent in its being a natural prolongation of the land
territory of the coastal State125, in contradiction of Article 76 of the
1982 Law of the Sea Convention. These matters are further discussed
in Chapter III below.
2.21. The principal conclusion from the coastal geography is that the
maritime delimitation between Nicaragua and Colombia requires the
delimitation of their overlapping continental shelves lying between
their opposite mainland coasts. The islands of Colombia’s
“archipelago” do not constitute the opposite coast facing Nicaragua’s
mainland coast, but are located on Nicaragua’s side of the line
separating the two Parties’ continental shelves, and should be
enclaved in order to obtain an equitable delimitation. This is
consistent with the jurisprudence of the Court and various
distinguished arbitral tribunals.

125 CCM, Vol. I, p. 402, paras. 9.57-9.58.

73
CHAPTER III
THE DELIMITATION OF THE CONTINENTAL SHELF
AREA
I. Introduction
3.1. The Nicaraguan position on the delimitation area is shown in Figure
3-1. The geographical framework of the continental shelf area
consists of coasts which are clearly opposite rather than adjacent. The
predominant relationship is one of oppositeness. Thus, in accordance
with the principles of customary or general international law, the
delimitation area consists of the area between the mainland coasts of
Nicaragua and Colombia. The delimitation area stretches in the north
from Cape Gracias a Dios on the Nicaraguan coast, through the cays
of Serranilla and Bajo Nuevo to Punta Gallinas on the Colombian
coast, and in the south from Punta Castilla at the southern end of the
Nicaraguan coast to the western edge of the Colombian coast in the
Golfo de Uraba.
3.2. The position of Nicaragua is that the natural prolongation of the
mainland territory of both Parties meets and overlaps and hence that
there is a need for a delimitation of these maritime areas as will be
explained below.
3.3. In the view of Nicaragua, this assessment is unaffected by the
presence of various small islands positioned in the western sector of
the delimitation area126. Nor is the assessment affected by the

126 See below Chaps. V and VI.
74
presence of claims by third States: see Nicaraguan Memorial, Volume
I, Figure II. For present purposes the coastal relationship of the
Parties must be assessed independently of third state claims. It is to be
recalled that the incidence, to the south of Malta, of claims by Italy, in
the Libya/Malta case, did not inhibit the Court from determining
which of the coasts of Libya were opposite Malta and therefore
constituted relevant coasts for the purposes of delimitation: see the
Judgment in the Libya/Malta case:
“Within the bounds set by the Court having
regard to the existence of claims of third
States, explained above, no question arises of
any limit, set by those claims, to the relevant
coasts of Malta to be taken into consideration.
On the Libyan side, Ras Ajdir, the terminus of
the frontier with Tunisia, must clearly be the
starting point; the meridian 15º 10′ E which has
been found by the Court to define the limits of
the area in which the Judgment can operate
crosses the coast of Libya not far from Ras
Zarruq, which is regarded by Libya as the limit
of the extent of its relevant coast. If the coasts
of Malta and the coast of Libya from Ras Ajdir
to Ras Zarruq are compared, it is evident that
there is a considerable disparity between the
lengths, to a degree which, in the view of the
Court, constitutes a relevant circumstance
which should be reflected in the drawing of the
delimitation line. The coast of Libya from Ras
Ajdir to Ras Zarruq, measured following its
general direction, is 192 miles long, and the
coast of Malta from Ras il-Wardija to Delimara
Point, following straight baselines but
excluding the islet of Filfla, is 24 miles long.
In the view of the Court, this difference is so
great as to justify the adjustment of the median
line so as to attribute a larger shelf area to
Libya: the degree of such adjustment does not
75
depend upon a mathematical operation and
remains to be examined.”127 (emphasis added).
3.4. The coasts of Nicaragua and Colombia are essentially opposite: see
Nicaraguan Memorial, Volume I, Figure I and Reply, Volume II,
Figure 3-1. However, it is not necessary, for legal purposes, that
coasts should be precisely parallel or ‘directly’ opposite. The position
was explained by the Chamber in the Gulf of Maine case in terms of a
relationship of ‘frontal opposition’. In the words of the Chamber:
“But in putting forward its proposals for the
delimitation, Canada has failed to take account
of the fact that, as one moves away from the
international boundary terminus, and
approaches the outer openings of the Gulf, the
geographical situation changes radically from
that described in the previous paragraph. The
quasi-right-angle lateral adjacency relationship
between part of the Nova Scotia coasts, and
especially between their extension across the
opening of the Bay of Fundy and Grand Manan
Island, and the Maine coasts, gives way to a
frontal opposition relationship between the
remaining coasts of Nova Scotia and those of
Massachusetts which now face them. It is this
new relationship that is the most characteristic
feature of the objective situation in the context
of which the delimitation is being effected.
Moreover, when the geographical
characteristics of the delimitation area were
described it was shown that the relationship
between the lines that can be drawn, between
the elbow of Cape Cod and Cape Ann (on the
United States side), and between Cape Sable
and Brier Island (on the Canadian side), is one
of marked quasi-parallelism. In this situation,

127 Continental Shelf (Lybian Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
1985, pp. 49-50, para. 68.
76
even a delimitation line on the basis of the
equidistance method would have to be drawn
taking into account the change in the
geographical situation, which Canada did not
do when it was necessary. In any event what
had to be avoided was to draw, the whole way
to the opening of the Gulf, a diagonal line
dominated solely by the relationship between
Maine and Nova Scotia, even where the
relationship between Massachusetts and Nova
Scotia should have predominated”128.
(emphasis added)
3.5. Both in the passage quoted and in later passages the Chamber used the
description of the ‘quasi-parallelism’ of the two coasts129.
3.6. The relationship of the coasts of the Parties is of particular
significance, as the Chamber explained in the Gulf of Maine case:
“The Chamber has already considered this
aspect in Section VI, paragraphs 188-189, in
commenting on the delimitation line proposed
by Canada. It then expressed its disagreement
precisely in relation to the fact that the Party in
question had proposed a delimitation that failed
to take account of the fact that a change in the
geographical perspective of the Gulf is to be
noted at a certain point. Given the importance
of this aspect, the Chamber considers that it
will here be apposite, by way of reminder, to
repeat its observation that it is only in the
northeastern sector of the Gulf that the
prevailing relationship of the coasts of the
United States and Canada is part of lateral
adjacency as between part of the coast of
Maine and part of the Nova Scotian coast. In
the sector closest to the closing line, the

128 Delimitation of the Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports
1984, p. 325, para. 189. 129 See ibid, pp. 333-334, para. 216; and p. 331, para. 206.
77
prevailing relationship is, on the contrary, one
of oppositeness as between the facing stretches
of the Nova Scotian and Massachusetts coasts.
Accordingly, in the first sector, geography
itself demands that, whatever the practical
method selected, the boundary should be a
lateral delimitation line. In the second, it is
once again geography which prescribes that
the delimitation line should rather be a median
line (whether strict or corrected remains to be
determined) for delimitation as between
opposite coasts, and it is moreover geography
yet again which requires that this line, given
the almost perfect parallelism of the two facing
coasts involved, should also follow a direction
practically parallel to theirs”
130. (emphasis
added)
3.7. The delimitation area in the present case consists of the figure shown
in Figure 3-1. It can be seen that the frontal opposition between
Nicaragua and Colombia consists of coasts which are not parallel, but
which are nonetheless opposite rather than adjacent. In the
Tunisia/Libya case the Court, in relation to the second sector of the
boundary, emphasized the predominant relationship of the coasts131.
In the present case the predominant relationship is one of
oppositeness.
II. Applicable Law
3.8. This subject has been examined above in Chapter II. For present
purposes it is assumed that the provisions of the 1982 Law of the Sea

130 Delimitation of the Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports
1984, p. 331, para. 206. 131 See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J.
Reports 1982, p. 88, para. 126.
78
Convention constitute the best available evidence of generally
accepted principles of customary international law.
III. The Claims to Continental Shelf Area
3.9. Nicaragua ratified the 1982 Law of the Sea Convention on 3 May
2000. The current legislation on the continental shelf of Nicaragua is
as follows (Law No
420 on Maritime Areas, 22 March 2002):
“Art.8. – The Continental Shelf of Nicaragua
covers the bed and subsoil of the submarine
areas that extend beyond its territorial sea as an
extension and natural projection of its territory
under the sea to the minimum distance of 200
marine miles and a maximum of 350 marine
miles, as recognised by International Law.”132
3.10. Colombia has not ratified the 1982 Law of the Sea Convention. The
current legislation is Law No 10 on Marine Spaces, 4 August 1978,
which provides in material part as follows:
“Article 10. The sovereignty of the Nation
extends to its continental shelf for the purpose
of exploring and exploiting the natural
resources.”133
IV. The Criterion of the Natural Prolongation of the Land
Territory of the Coastal State to the Outer Edge of the
Continental Margin (Entitlement to Continental Shelf Areas)
3.11. The delimitation for present purposes is a line dividing the areas
where the coastal projections of Nicaragua and Colombia converge

132 NM, Vol. II, pp. 207-209, Annex 67. 133 CCM, Vol. II-A, pp. 495-497, Annex 142.
79
and overlap in order to achieve an equitable result. The response of
Colombia is to assert that Nicaragua claims a boundary “where it has
no legal entitlement”134. The basis for this assertion, which is that the
Nicaraguan claim line lies more than 200 nautical miles from the
mainland coasts of the parties, has no legal foundation.
3.12. The achievement of an equitable solution is subordinate to the legal
basis of entitlement, which is the principle of entitlement of the
coastal state to the entire continental margin as defined in the
provisions of Article 76 of the 1982 Law of the Sea Convention.
3.13. These provisions are generally recognized as declaratory of general
international law. This would seem to be the position of Colombia as
elaborated in the Counter-Memorial:
“While the provisions of the 1982 Convention
are not applicable as a source of conventional
law per se, the relevant provisions of the
Convention dealing with a coastal State’s
baselines and its entitlement to maritime areas,
as well as the provisions of Articles 74 and 83
dealing with the delimitation of the exclusive
economic zone and continental shelf
respectively, reflect well-established principles
of customary international law.”135
3.14. Article 76 of the Convention establishes the basis of entitlement to the
continental margin and entitlement is logically anterior to the process
of delimitation. It must follow that, when Colombia asserts that
Nicaragua has no entitlement beyond 200 nautical miles from the

134 CCM, Vol. I, pp. 312-318, paras. 7.8-7.16. 135 CCM, Vol. I, p. 306, para. 4.
80
mainland coasts, this assertion has no foundation in law in respect of
the continental margin.
3.15. This analysis will be developed on the basis of the evidence of the
location of the outer limit of the continental margin of Nicaragua. At
this stage it is necessary to point out that the pleading of Colombia has
no adequate appreciation either of the geomorphology of the seabed in
the delimitation area or of the law relating to entitlement to shelf
areas.
3.16. The legal anomalies in the Colombian Counter-Memorial appear both
in the text of the pleading and in the graphics provided. The flawed
approach to the applicable law is apparent in paragraph 7.12, which
reads as follows:
“The ‘geographical and legal framework
constituted by the mainland coasts of
Nicaragua and Colombia’, referred to in
Nicaragua’s Submissions, lends no support to
Nicaragua’s methodology. Geographically,
this is because the two mainland coasts lie
more than 400 nautical miles apart in the area
covered by Nicaragua’s claim. Legally,
because of the distances involved, neither
mainland coast generates maritime rights to an
exclusive economic zone or continental shelf
which meet or overlap with the entitlements
generated by the other mainland coast,
whether under the 1982 Law of the Sea
Convention to which Nicaragua is a party, or
under the 1958 Geneva Continental Shelf
Convention to which Colombia is a party, or
under customary international law, or indeed
under the domestic legislation of the Parties.
Thus, the geographical situation does not give
rise on the legal plane to an issue of
81
delimitation as between the mainland coasts of
the Parties.”136 (emphasis added)
3.17. The question of the applicable law has been examined in Chapter II
above. It was then indicated that in paragraphs 3 and 4 of the
Counter-Memorial Colombia accepts ‘the well-established principles
of customary international law.’ Moreover, in the context of these
principles Colombia also accepts ‘the relevant principles of the
Convention’ of 1982, including the provisions of Article 76.
3.18. Even if, for the sake of argument, the Colombian shelf claim is limited
to a zone of 200 nautical miles, this fact can have no limiting effect on
the application of the principles embodied in the 1982 Law of the Sea
Convention reflecting customary international law to the natural
prolongation of the land territory of Nicaragua. The reasoning of the
Colombian pleading seeks to excise the continental margin from the
universe of maritime delimitation.
3.19. In addition, the graphics contained in the Colombian CounterMemorial
confirm the policy of ignoring the entitlement of Nicaragua
to continental shelf areas in accordance with the 1982 Law of the Sea
Convention137.
V. The Continental Shelf in the Western Caribbean: the
Geological and Geomorphological Evidence
3.20. The principles of maritime delimitation must operate within the
framework based upon geological and other evidence determining the
outer limit of the respective continental margins of Nicaragua and

136 CCM, Vol. I, pp. 313-314 para. 7.12. 137 See CCM, Vol. III Maps, pp. 81 and 83.
82
Colombia. The geomorphology of the western Caribbean is shown on
a bathymetric map in Figures 3-2 and 3-3. Shallow water areas are
shown in green, deeper water in blue, grading to abyssal depths in
purple.
A. NICARAGUA’S NATURAL PROLONGATION
3.21. The dominant feature in the southwest Caribbean is the Nicaraguan
Rise. This is a large area of relatively shallow water stretching over
500 nautical miles from the Nicaraguan-Honduran landmass in the
southwest to Jamaica in the northeast. The Rise is separated from the
oceanic abyssal plain of the Colombian Basin to the south by a linear
feature: the Hess Escarpment. This Escarpment and hence the
southern limit of the Nicaraguan Rise is aligned approximately with
the southern border of Nicaragua with Costa Rica. The northern edge
of the Nicaraguan Rise is formed by the Cayman Trough, a deep
ocean trench lying to the north of Honduras, between Guatemala and
the north coast of Jamaica.
3.22. The Nicaraguan Rise is divided into two halves: to the north the
Nicaraguan Rise proper, and to the south, separated by the Pedro Bank
Fracture Zone – the Lower Nicaraguan Rise138. The Nicaraguan Rise
proper is about 150 nautical miles wide and extends from Cabo
Gracias a Dios to Jamaica. Water depths are generally less than 1000
meters and large areas have water depths no more than 50 meters.
The Lower Nicaraguan Rise is about 120 nautical miles wide and has
water depths generally between 2000 and 2500 meters. Figure 3-4

138 Sometimes also referred to as the Northern Nicaraguan Rise and the Southern
Nicaraguan Rise.
83
shows a regional bathymetric profile from the Nicaraguan Rise to the
Colombian mainland.
3.23. The Hess Escarpment marks a sharp transition between the Lower
Nicaraguan Rise and the abyssal Colombian Plain. It is a 600 nautical
miles long underwater cliff corresponding to a major geological fault
or fracture zone. In the southwest, an area of thickened crust
corresponding to the Mono Rise and the Zipa Seamount provide an
extension of the Lower Nicaraguan Rise across the line of the Hess
Escarpment into the abyssal plain to the south.
B. COLOMBIA’S NATURAL PROLONGATION
3.24. The Colombian Basin lies between the Hess Escarpment and the
continental slope of Colombia and South America. It slopes gently
downwards to the north with a maximum depth in the north of about
4200 meters. The oceanic crust of the Colombian Basin is being
subducted beneath the South American Plate along the north coast of
Colombia forming a deep ocean trench. The normally sharp junction
between continental and oceanic crust is modified by the South
Caribbean Deformed Belt in the east and is overlain by the Magdalena
Fan in the west. This latter feature is a thick wedge of sediments
derived from the continent forming a deep-sea fan.
3.25. Any discussion of the geology of the Nicaragua-Colombia part of the
southwest Caribbean requires an understanding of the disposition of
the tectonic plates of the area. The Caribbean Plate comprises
virtually all the Caribbean Sea. It is approximately rectangular in
shape and separates the North American Plate (including the Gulf of
Mexico) from the South American Plate (and smaller plates that form
84
northern Colombia and Panama). It is bounded on the west by the
deep ocean trench west of Central America, to the north by the
Cayman Trough running just north of Honduras through Jamaica,
Hispaniola and Puerto Rico, to the east by the Lesser Antilles arc, and
to the south by the Caribbean and Panama foldbelts (Figure 3-5).
3.26. The southern margin of the Caribbean Plate is formed by subduction
zones as it is overridden by the South American Plate. The northern,
leading, edge of South America (the Colombian margin) has been
buckled into the South Caribbean Deformed Belt. Like all tectonic
plates, deformation within the plate is relatively limited. Several
major strike-slip faults cross the plate, for example forming the Hess
Escarpment.
3.27. The Caribbean Plate is formed separately from its neighboring areas.
Its composition and internal structure are distinct from the
immediately adjacent area. Thus there is no geological continuity
between Colombia and the Caribbean Plate.
3.28. In summary:
a) For Nicaragua, there is clear topographical and
geological continuity between the Nicaraguan land
mass and the Nicaraguan Rise which is a shallow area
of continental crust extending from Nicaragua to
Jamaica. Its southern limit is sharply defined by the
Hess escarpment, separating the lower Nicaraguan Rise
from the deep Colombian Basin. This therefore
85
represents the natural prolongation of the Nicaraguan
landmass.
b) For Colombia, there is a sharp geological discontinuity
between the Colombian landmass situated on the South
American Plate and the oceanic crust of the Caribbean
Plate. This continent-ocean boundary is overlain in
party by the thick sediments of the Magdalena Rise.
The natural prolongation of the Colombian landmass,
in contrast, is therefore limited to a narrow zone on the
southern margin of the Colombian Basin.
C. APPLICATION OF THE PRINCIPLES REFLECTED IN ARTICLE 76
3.29. Paragraphs 3.21 to 3.28 above have presented the geological evidence
for the natural prolongation of the land territories of Nicaragua and
Colombia. Once this natural prolongation is proven, the appropriate
provisions of Article 76, in particular paragraphs 4 to 7, can be applied
to delineate the outer edge of the continental margins which comprise
the submerged prolongation of the land mass of the coastal State, and
consist of the seabed and subsoil of the shelf, the slope and the rise,
but not the deep ocean floor.
3.30. It is useful to set out the provisions of Article 76 of the 1982 Law of
the Sea Convention in full:
“Definition of the continental shelf
1. The continental shelf of a coastal State
comprises the sea-bed and subsoil of the
submarine areas that extend beyond its
86
territorial sea throughout the natural
prolongation of its land territory to the outer
edge of the continental margin, or to a distance
of 200 nautical miles from the baselines from
which the breadth of the territorial sea is
measured where the outer edge of the
continental margin does not extend up to that
distance.
2. The continental shelf of a coastal State shall
not extend beyond the limits provided for in
paragraphs 4 to 6.
3. The continental margin comprises the
submerged prolongation of the land mass of the
coastal State, and consists of the sea-bed and
subsoil of the shelf, the slope and the rise. It
does not include the deep ocean floor with its
oceanic ridges or the subsoil thereof.
4. (a) For the purposes of this
Convention, the coastal State shall establish the
outer edge of the continental margin wherever
the margin extends beyond 200 nautical miles
from the baselines from which the breadth of
the territorial sea is measured, by either:
(i) a line delineated in accordance with
paragraph 7 by reference to the outermost fixed
points at each of which the thickness of
sedimentary rocks is at least 1 per cent of the
shortest distance from such point to the foot of
the continental slope; or
(ii) a line delineated in accordance with
paragraph 7 by reference to fixed points not
more than 60 nautical miles from the foot of
the continental slope.
(b) In the absence of evidence to the
contrary, the foot of the continental slope shall
be determined as the point of maximum change
in the gradient at its base.
87
5. The fixed points comprising the line of the
outer limits of the continental shelf on the seabed,
drawn in accordance with paragraph
4(a)(i) and (ii), either shall not exceed 350
nautical miles from the baselines from which
the breadth of the territorial sea is measured or
shall not exceed 100 nautical miles from the
2,500 metre isobath, which is a line connecting
the depth of 2,500 metres.
6. Notwithstanding the provisions of paragraph
5, on submarine ridges, the outer limit of the
continental shelf shall not exceed 350 nautical
miles from the baselines from which the
breadth of the territorial sea is measured. This
paragraph does not apply to submarine
elevations that are natural components of the
continental margin, such as its plateaux, rises,
caps, banks and spurs.
7. The coastal State shall delineate the outer
limits of its continental shelf, where that shelf
extends beyond 200 nautical miles from the
baselines from which the breadth of the
territorial sea is measured, by straight lines not
exceeding 60 nautical miles in length,
connecting fixed points, defined by coordinates
of latitude and longitude.”
3.31. These provisions define the principal features of the continental shelf
and in doing so employ the concept of the natural prolongation of the
land territory to include the continental margin. It thus becomes clear
that the legal concept of the continental shelf extends to the outer
limits of the continental margin, as defined in paragraphs 3 and 4.
3.32. The provisions of paragraph 3 give prominence to the distinction
between the continental margin and the deep ocean floor. It is
88
stipulated that the continental margin ‘does not include the ocean
floor.’
3.33. The provisions of paragraph 4 involve criteria of a legal character in
order to ‘establish the outer edge of the continental margin’ for the
purposes of the Convention. The nature of this exercise is emphasised
by the language used in paragraphs 5 and 6. Paragraph 5 refers to ‘the
line of the outer limits of the continental shelf’ and paragraph 6 refers
‘the outer limit of the continental shelf’.
VI. The Entitlement to Continental Shelf and the Achievement of
a Delimitation in Accordance with Article 83 of the 1982 Law of
the Sea Convention
A. THE APPLICATION OF THE PRINCIPLE OF EQUAL DIVISION
3.34. In accordance with the provisions of Article 76 of the 1982 Law of the
Sea Convention, Nicaragua has an entitlement extending to the outer
limits of the continental margin. In the case of an overlap with the
continental margin of Colombia, then the principle of equal division
of the areas of overlap should be the basis of the maritime
delimitation.
3.35. The delimitation for present purposes is a line dividing the areas
where the coastal projections of Nicaragua and Colombia converge
and overlap in order to achieve an equitable result. In this context the
evidence of convergence and overlap determines the way in which the
principle of equal division of the areas of overlap becomes operative.
89
3.36. The principle of equal division must operate within the framework of
the geological and other evidence determining the outer limit of the
respective continental margins of Nicaragua and Colombia. This
evidence will now be presented.
B. THE GEOLOGICAL EVIDENCE OF THE OUTER LIMITS OF THE
CONTINENTAL SHELF AREAS ATTRIBUTABLE TO NICARAGUA
3.37. Public domain datasets have been used to define the edge of the
continental margin for both Nicaragua and Colombia. These data are
freely and widely available and provide an initial estimate of the outer
limits of the continental shelf. The software CARIS LOTS was used
for the detailed calculations. The principal datasets used were:
1) 2-Minute Gridded Global Relief Data (ETOPO2v2) June,
2006 obtainable from the World Data Center for
Geophysics & Marine Geology, Boulder, Colorado,
(NGDC).
This has been used for the regional illustrative maps and
for bathymetric profiles where more detailed GEODAS
profiles (see 3 below) are not available.
2) Total Sediment Thickness of the World’s Oceans &
Marginal Seas also obtainable from NGDC
(http://www.ngdc.noaa.gov/mgg/sedthick/sedthick.html)
This has been used for the sediment thickness calculations
off the Colombian margin.
3) Marine Geophysical Trackline Data (GEODAS database)
Also obtainable from NGDC
(http://www.ngdc.noaa.gov/mgg/geodas/trackline.html)
These detailed bathymetric profiles have been used as the
primary source of bathymetric data for foot-of-slope
calculations.
90
3.38. Preliminary information indicative of the outer limits of Nicaragua’s
continental shelf beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured, and a description
of the status of preparation and intended date of making a full
submission to the Commission on the Limits of the Continental Shelf
will be submitted to the United Nations Secretary General within the
next months. The technical information for this submission is annexed
to this Reply139.
3.39. For Nicaragua, the outer limit of the continental margin is defined by
the provisions of paragraph 4(a)ii of Article 76 which defines it as a
line not more than 60 nautical miles from the foot of the continental
slope. The foot of the continental slope runs along the Hess
Escarpment in the eastern section, and around the outer edge of the
Mono Rise farther west. Figure 3-6 shows the detail of one of the foot
of the slope picks. Further details are included in Annex 18.
3.40. The extent of the Nicaraguan continental shelf is marked by the blue
dashed line on Figure 3-7. The outer limit is based on a line measured
60 nautical miles from the foot of the slope. All points are either
within 100 nautical miles from the 2,500 meters isobath or 350
nautical miles from the territorial sea baseline and so satisfy the
constraints in paragraph 5 of Article 76. The coordinates for the outer
limit of the Nicaraguan continental shelf are contained in Annex 16.

139 See NR, Vol. II, Annex 18.
91
C. THE COLOMBIAN CONTINENTAL SHELF
3.41. The analysis of the Colombian continental margin here has been done
in a similar way to that for Nicaragua using the easily available public
domain information, in particular the global bathymetry and sediment
thickness datasets compiled by the NGDC referenced above140.
3.42. For Colombia both the provisions of paragraph 4 of Article 76 are
used, that is, the outer edge of the continental margin is either a line
where the thickness of sedimentary rocks is at least one per cent of the
distance from the foot of the slope (Article 76.4a(i)) or a line 60
nautical miles from the foot of the continental slope (Article 76.4a(ii)).
3.43. The Colombian foot of the slope has been buried in this area by thick
sediments of the Magdalena Rise. As discussed in paragraphs 3.27 to
3.31 and illustrated in Figures 3-2, 3-3 and 3-4, the continent-ocean
boundary is formed by the subduction zone that runs along the
northern edge of the Caribbean Deformed Belt. As the zone where the
lower part of the slope merges into the top of the rise has been
obscured, the foot of slope along this margin has been picked along
the 1º gradient line that separates the continental slope with typical
gradient line that separates the continental slope with typical gradients
of 1.5º, and the continental rise with gradients of 0.5º or less141 Figure
3-8 provides a representative example of the foot-of-slope and
sediment thickness calculations.

140 See above para. 3.37. 141 This follows the definition in the Manual on Technical Aspects of the United
Convention on the Law of the Sea published by the International Hydrographic
Bureau, IHO Special Publication 51, 4th Edition March 2006,
(http://www.iho.shom.fr/publicat/free/files/S-51_Ed4-EN.pdf)
92
3.44. The extent of the Colombian continental shelf is marked by the red
dashed line on Figure 3-9; this shows the outer limit measured either
60 nautical miles from the foot of the slope or using the 1% sediment
thickness criterion. All points are within 350 nautical miles from the
baselines from which the breadth of the territorial sea is measured and
thus satisfy the constraints in Article 76.5142. The coordinates for the
outer limit of the Colombian continental shelf are contained in Annex
17.
D. OVERLAPPING CONTINENTAL MARGINS
3.45. The outer limits for Nicaragua and Colombia are combined in Figure
3-10. Geologically and physically these margins are distinct, but the
provisions of Article 76 whereby the juridical outer limit is measured
60 nautical miles from the foot of slope or using the sediment
thickness criterion has as a result that these continental margins
overlap.
3.46. On this basis, and bearing in mind the requirement in Article 83 of the
Convention that the delimitation process should ‘achieve an equitable
solution’, the appropriate method is as follows. The area of
delimitation is the area on Figure 3-10 described as the ‘area of
overlapping continental margins’. The continental margins are based
on geological and geomorphological factors where the two States’
territorial sea baselines are largely irrelevant. Here a line of equal
division of the area of overlapping margins has been drawn that is
equidistant from the nearest point on the respective continental
margins. This has resulted in a line that equitably divides the area of

142Ibid.
93
overlapping margins (Figure 3-11). The coordinates for this line of
delimitation are as follows:
1. 13º 33′ 18″N 76º 30′ 53″W
2. 13º 31′ 12″N 76º 33′ 47″W;
3. 13º 08′ 33″N 77º 00′ 33″W;
4. 12º 49′ 52″N 77º 13′ 14″W;
5. 12º 30′ 36″N 77º 19′ 49″W;
6. 12º 11′ 00″N 77º 25′ 14″W;
7. 11º 43′ 38″N 77º 30′ 33″W;
8. 11º 38′ 40″N 77º 32′ 19″W;
9. 11º 34′ 05″N 77º 35′ 55″W
(All coordinates are referred to WGS84).
VII. The Relation of the Nicaraguan Claim to the Areas of the
Continental Shelf and the Outer Limit of the Exclusive Economic
Zone of the Colombian Mainland
3.47. As the relevant graphic shows, both the continental margins fall
within the outer limit of Colombia’s exclusive economic zone. Thus,
not only the continental margin of Colombia but also her exclusive
economic zone overlaps with the continental margin of Nicaragua,
such that the final section of the continental shelf of Nicaragua is
subjacent to the exclusive economic zone of Colombia. This no doubt
exceptional situation must now be brought into account. Colombia
has an entitlement based upon the principle of distance to an exclusive
economic zone of 200 nautical miles. Nicaragua has an entitlement to
the full extent of the continental margin. These areas of entitlement
intersect and there is no criterion which would indicate a legal
94
priority. It is for this reason that two distinct lines of delimitation are
appropriate.
3.48. At this stage it must be pointed out that there is no reason of law or
equity why Nicaragua should renounce her rights to the areas of
continental margin of her natural prolongation which are subjacent to
parts of the 200-nautical-mile exclusive economic zone proclaimed by
Colombia in 1978. Any unilateral concession of this type would lack
legal foundations.
3.49. A more legally cogent approach would involve the determination of a
single boundary line of equal division within the areas of overlap of
the respective continental margins.
3.50. Such an approach would reflect both the geological and
geomorphological architecture and the consequent legal entitlements.
By way of clarification it is necessary to emphasise that, if there were
no geological interaction or overlapping with the continental margin
of Nicaragua, then Colombia would have a claim to the margin of her
natural prolongation and then further to the limit of 200 nautical miles
from the baselines.
3.51. At this point it is necessary to reckon with the application of the
distance principle in the provisions of Article 76 of the Law of the Sea
Convention. Article 76, paragraph 1, provides:
“The continental shelf of a coastal State
comprises the sea-bed and subsoil of the
submarine areas that extend beyond its
territorial sea throughout the natural
95
prolongation of its land territory to the outer
edge of the continental margin, or to a distance
of 200 nautical miles from the baselines from
which the breadth of the territorial sea is
measured where the outer edge of the
continental margin does not extend up to that
distance.”
3.52. The question then must be, does this legal extent of the continental
shelf appertaining to the Colombian coast exclude the claim of
Nicaragua to her continental margin falling within the distance of 200
nautical miles from the coast?
3.53. The possible responses must be reviewed. The first candidate
response might be that Article 76, paragraph 1, produces an outcome
based on the principle of distance. This entitlement would depend
upon the status of Colombia as a coastal State, and would create a
shelf which is not conditioned as to extent by the principle of natural
prolongation to the outer edge of the continental margin. In the result
the situation would remain one characterized by the intersection of
areas of entitlement with distinct legal foundations.
3.54. The difficulty which then emerges is the determination of criteria
which would establish a legal priority. In this context, and this is the
second consideration, there is no assumption that the provisions of
Article 76 were intended to cover the type of situation presented to the
Court. No reference to this type of situation can be found in the
University of Virginia Commentary, Volume II, edited by Nandan and
Rosenne, pages 825 to 992. The literature in general is silent on the
problem.
96
3.55. And there are further considerations. There are no a priori reasons for
giving priority to claims based exclusively upon the distance principle.
The rationale of ‘the natural prolongation of [the] land territory’ of the
coastal State is not evidently less significant than the distance
principle. Moreover, the coastal state does not obtain rights over an
exclusive economic zone without a specific claim. These rights do not
exist by operation of law. In strong contrast the rights of the coastal
state over the continental shelf do not depend on occupation or any
express proclamation: 1982 Law of the Sea Convention, Article 77.
3.56. In conclusion Nicaragua submits that the provisions of Article 76
should be applied but not on the basis that Colombia is allowed to
override the entitlement of Nicaragua to her continental shelf by
reason of the ‘200-nautical-mile zone’ aspect of Article 76, paragraph
1. In other words, in the context of continental shelf claims,
Nicaragua and Colombia should both have the benefit of their natural
prolongations of their respective land territories. To allow Colombia
to rely on Article 76 for the purpose of curtailing the natural
prolongation of Nicaragua would be to rule out an equitable solution
of the kind envisaged in the provisions of Article 83.
VIII. The Relevance of Proportionality and the Delimitation of
Continental Shelf Areas
A. INTRODUCTION
3.57. The ‘Factor of Proportionality’ has been addressed in the Memorial,
pages 226 to 236, but only ‘on a preliminary basis’. There it is
emphasised that the principal feature of proportionality is that it
97
relates to space but not to location. In other words, proportionality as
such cannot produce a delimitation.
B. THE RELEVANCE OF PROPORTIONALITY TO THE DELIMITATION OF
THE AREAS OF CONTINENTAL SLOPE AND CONTINENTAL MARGIN
3.58. The role of proportionality is not as a method of delimitation but a
fairly flexible vehicle for assisting in the task of ensuring that the
outcome of delimitation is the achievement of an equitable solution:
see Articles 74 and 83 of the 1982 Law of the Sea Convention. Its
primary role has been to place limits upon the distorting effects of
geographical anomalies resulting from coastal configurations or the
presence of small islands.
3.59. There is no evidence, either in judicial practice or in the doctrine, that
the factor of proportionality can affect entitlement as such, and much
less entitlement based upon the concepts of natural prolongation and
the continental margin.
3.60. In any event, proportionality is not a source of title to the continental
shelf. In this respect the following passages from the Award in the
Anglo-French Continental Shelf case are emphatic and helpful:
“101. In short, it is disproportion rather than
any general principle of proportionality which
is the relevant criterion or factor. The
equitable delimitation of the continental shelf
is not, as this Court has already emphasized in
paragraph 78, a question of apportioning –
sharing out– the continental shelf amongst the
States abutting upon it. Nor is it a question of
simply assigning to them areas of the shelf in
proportion to the length of their coastlines; for
98
to do this would be to substitute for the
delimitation of boundaries a distributive
apportionment of shares. Furthermore, the
fundamental principle that the continental shelf
appertains to a coastal State as being the
natural prolongation of its territory places
definite limits on recourse to the factor of
proportionality. As was emphasised in the
North Sea Continental Shelf cases (I.C.J.
Reports 1969, paragraph 91), there can never
be a question of completely refashioning
nature, such as by rendering the situation of a
State with an extensive coastline similar to that
of a State with a restricted coastline; it is rather
a question of remedying the disproportionality
and inequitable effects produced by particular
geographical configurations or features in
situations where otherwise the appurtenance of
roughly comparable attributions of continental
shelf to each State would be indicated by the
geographical facts. Proportionality, therefore
is to be used as a criterion or factor relevant in
evaluating the equities of certain geographical
situations, not as a general principle providing
an independent source of rights of continental
shelf.”143 (emphasis added)
3.61. In this general context, it would be particularly bizarre if a factor
related to coasts and coastal lengths (as Colombia recognizes in the
Counter-Memorial) were to be used ab extra to impose a limit upon
continental shelf entitlement as represented in the concepts of the
continental margin and of the outer limits of the shelf as defined in
Article 76 of the 1982 Law of the Sea Convention.

143 Case concerning the Delimitation of Continental Shelf between the United
Kingdom of Great Britain and Northern Ireland and the French Republic, Decision
of 20 June 1977, RIAA, Vol. XVIII, UN, p. 58, para. 101.
99
IX. The Entitlement to Continental Shelf and the Effect of Islands
in the Achievement of a Delimitation in Accordance with Article
83 of the 1982 Law of the Sea Convention
3.62. For present purposes, the focus is exclusively upon the particular
element constituted by the presence of small islands and cays in the
area of the delimitation of the continental shelf.
3.63. As shown in (Figures 1-2, 3-2 and 3-7) the various island features
form part of the natural prolongation of Nicaragua. Moreover, these
features are located on the main part of the continental platform, and
therefore precede the area of the continental slope. The framework of
the delimitation is thus the existence in principle of ‘overlapping’
shelf areas of Nicaragua, and the areas of shelf appurtenant to certain
islands, including San Andrés and Providencia.
3.64. As indicated in the Submissions appended to the Memorial, and also
in the conclusions of Chapter V and the Submissions of this Reply, the
equitable solution, in case of such a finding by the Court, can be
obtained by a process of enclaving (see Chapters 5 and 6 and Figures
5-1, 5-2, 6-9 and 6-10 below), which is simply a mode of drawing an
appropriate boundary.
X. Conclusions
3.65. The entitlements to continental shelf areas in accordance with Article
76 of the 1982 Law of the Sea Convention depend upon the geological
and geomorphological evidence. The principle of equal division must
operate within the framework based upon this evidence determining
100
the outer limit of the respective continental margins of Nicaragua and
Colombia.
3.66. Geologically and physically these margins are distinct, but the
provisions of Article 76 whereby the juridical outer limit is measured
60 nautical miles from the foot of slope or using the sediment
thickness criterion has as a result that these continental shelves
overlap. On this basis, and bearing in mind the requirement in Article
83 of the 1982 Law of the Sea Convention that the delimitation
process should “achieve an equitable solution”, the appropriate
method is as follows: The area of delimitation in the eastern sector is
the area on the Figure 3-11 described as the “area of overlapping
continental margins”.
3.67. As the evidence shows, both continental margins fall within the outer
limit of the exclusive economic zone based upon Colombia’s
mainland coast. Nicaragua has an entitlement to the full extent of the
continental margin. These areas of entitlement intersect and there is
no criterion which would indicate a legal priority.
3.68. In this context the legally appropriate solution involves the
determination of a single boundary line of equal division within the
areas of overlap of the respective continental margins.
3.69. The coordinates for the line that equitably divides the area of
overlapping margins of delimitation are as follows:
10. 13º 33′ 18″N 76º 30′ 53″W
11. 13º 31′ 12″N 76º 33′ 47″W;
101
12. 13º 08′ 33″N 77º 00′ 33″W;
13. 12º 49′ 52″N 77º 13′ 14″W;
14. 12º 30′ 36″N 77º 19′ 49″W;
15. 12º 11′ 00″N 77º 25′ 14″W;
16. 11º 43′ 38″N 77º 30′ 33″W;
17. 11º 38′ 40″N 77º 32′ 19″W;
18. 11º 34′ 05″N 77º 35′ 55″W
(All coordinates are referred to WGS84).

103
CHAPTER IV
PHYSICAL AND LEGAL ASPECTS OF THE MARITIME
FEATURES LOCATED ON THE CONTINENTAL SHELF OF
NICARAGUA
I. Introduction
4.1. The position of Nicaragua is in principle that all maritime features
located off her mainland coast and on her continental shelf appertain
to Nicaragua. Since the Judgment of the Court of 13 December 2007
has determined that the 1928 Treaty recognized the sovereignty of
Colombia over San Andrés and Providencia (and its appendix, Santa
Catalina), the claims to sovereignty presently made in this Reply are
limited to all the other features that are sited off the mainland coast of
Nicaragua.
4.2. The analysis of this chapter is not addressed to the question of
sovereignty but to the physical and legal aspects of these features in
order to better evaluate their possible relevance in the delimitation of
the maritime areas that are dealt with in this Reply.
II. Maritime Features claimed by Colombia
A. COLOMBIA’S ARCHIPELAGO ARGUMENT
4.3. The Counter-Memorial devotes an entire chapter (Chapter 2) of more
than 60 pages to a description of the “San Andrés Archipelago”.
Despite its length, Chapter 2 fails to answer the question why the fact
that in Colombia’s view there is one archipelago which forms “a
geographical and economic unit historically known as the San Andrés
104
Archipelago”,144 has any consequences for the maritime delimitation
between Nicaragua and Colombia.
4.4. In Chapter 8, Section B of the Counter-Memorial, dealing with the
relevant area within which the maritime delimitation between
Nicaragua and Colombia is to be carried out, Colombia again puts
much emphasis on her “San Andrés Archipelago”. For instance,
paragraph 8.6 asserts that the relevant coast of Colombia is the coast
of the “San Andrés Archipelago”. In what is no doubt an attempt to
suggest the extent of the “archipelago”, paragraph 8.7 then gives an
overview of more than one page of the different features Colombia
considers to be a part of the “archipelago”. And again, this is followed
by paragraph 8.8, which stresses that “the San Andrés Archipelago
generates maritime entitlements on a 360º basis throughout this part of
the Caribbean Sea.”
4.5. Colombia, which purports to accept the applicability of the provisions
of the 1982 Law of the Sea Convention in respect of baselines, should
be fully aware that it is not the “San Andrés Archipelago”, which
generates maritime entitlements, but the individual features scattered
over the Caribbean Sea which do so. And this is only the case to the
extent they do not fall under Article 121(3) of the 1982 Law of the Sea
Convention.

144 CCM, Vol. I, p. 74, para. 2.98.
105
B. THE MARITIME FEATURES
4.6. Before turning to a review of what these minor islands, cays and
banks really consist of, it is necessary to make clear that the analysis
that follows in no way signifies that Nicaragua accepts the self-serving
charts and surveys Colombia has produced. The intention of this
analysis is to demonstrate that even the information presented in these
Colombian documents does not support the consequences she attempts
to draw from them.
4.7. Figure 2.1 of the Counter-Memorial depicts the features Colombia
claims to be part of her “archipelago” of San Andrés with a shaded
12-nautical-mile area around them. Possibly this was done because the
features otherwise are so tiny as to not be visible to the naked eye.
However, to establish the extent of the coasts of these features, that
12-nautical-mile limit is wholly irrelevant. Colombia does not cite any
example from the case law to support its relevance, and it is of course
well known that it is the actual coast that provides the starting point
for the Court and arbitral tribunals to identify the relevant coasts of the
parties not the circles drawn around the actual coasts. This was most
recently confirmed in the Judgment of the Court in the case
concerning Maritime Delimitation in the Black Sea (Romania v.
Ukraine), which observes:
“The 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”145.

145 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3
February 2009, p. 26, para. 77.
106
4.8. In accordance with the jurisprudence, Figure 4-1 depicts the coasts of
Nicaragua and Colombia without artificially inflating them by a 12-
nautical-mile straight or circular limit. This provides a vastly different
picture of the significance, or rather lack thereof, of Colombia’s
“archipelago” than the figures Colombia has included in the CounterMemorial.
Without the 12-nautical-mile zones added to them in the
Colombian figures, the islands and cays are hardly visible except for
their names, and are dwarfed in comparison with the mainland coast
of Nicaragua.
4.9. Other figures included in the Counter-Memorial also illustrate that
Colombia seeks to stretch the significance of her “archipelago”.
Figures 2.3 to 2.10,146 depicting individual features, which make up
the “archipelago”, and the various figures depicting the entire
“archipelago” (see e.g. figure 2.1147) show a blue dotted line around
the features and an area of a lighter shade of blue than the surrounding
area. The legend attached to the figures does not indicate what this
line and shading represent. A comparison with the relevant nautical
charts of Colombia indicates that these aspects of the figures do not
have any relevance for establishing either baselines or the relevant
coasts of the features concerned. Figures 4-2 to 4-4 in this Reply
compare the Counter-Memorial’s graphical illustrations and the
Colombian charts for the features of Quitasueño, Serranilla and Bajo
Nuevo. Apart from the Counter-Memorial’s graphic illustrations and
the charts, Figures 4-2 to 4-4 also contain a figure identifying those
features on the Colombian nautical charts, which qualify as part of the

146 CCM, Vol. III Maps, pp. 5-19. 147 Ibid, p. 1.
107
baseline in accordance with the relevant provisions of the 1982 Law
of the Sea Convention.
4.10. Another aspect of figure 2.10 in the Counter-Memorial, which depicts
the bank of Bajo Nuevo, is plainly misleading. The figure depicts two
reef areas, East Reef and West Reef, in green. On nautical charts this
coloring is used to indicate areas which are above water at low-tide.
However, the relevant Colombian nautical chart, Chart 046, shows
that, rather than a drying reef as depicted on figure 2.10 of the
Counter-Memorial, in fact there is only a line or zone of breakers and
no solid land at all. There is only one insignificant sand cay, on which
a light is located. The 12-nautical-mile limit drawn from this single
point is shown on Chart 046, which confirms that the Colombian
authorities acknowledge that East Reef and West Reef do not generate
a territorial sea. Figure 4-4 compares Bajo Nuevo as depicted on
figure 2.10 of the Counter-Memorial to Chart 046. The third inset in
figure identifies the single point, which qualifies as part of the
baseline in accordance with the relevant provisions of the 1982 Law
of the Sea Convention.
4.11. The text of the Counter-Memorial attempts a similar blowup of the
relevant coasts of the features included in Colombia’s “archipelago”.
At no point in the Counter-Memorial are the lengths of the relevant
coasts of the individual features identified. On the other hand, the
Counter-Memorial abounds with references to the length and width of
the banks on which these features are located. One example is
sufficient to illustrate the predicament in which the authors of the
Counter-Memorial no doubt saw themselves placed. Paragraph 2.31 of
the Counter-Memorial describes Bajo Nuevo:
108
“Bajo Nuevo is located 69 nm east of
Serranilla and 138 nm NNE of Serrana on a
bank of the same name, of an approximate
length of 33 km and width of 11 km. There are
three cays the largest of which, Low Cay, is at
the northern end of West Reef, about 1.55
metres above sea level, with a lighthouse
operated by the Colombian Navy. The bank is
visited by fishing vessels – subject to the
national fishing regulations – from the islands
of San Andrés and Providencia in March and
April”.148
4.12. The description contains a reference to width and length of the bank of
Bajo Nuevo, but this is wholly irrelevant to identifying the relevant
coasts of the features on Bajo Nuevo. The only coastal information on
the cays on Bajo Nuevo is that they are three in number. That meager
information is not even correct. The relevant Colombian nautical
chart, Chart 046, only shows one feature on Bajo Nuevo, which is
above water at high tide (Cayo Bajo Nuevo), not three. A comparison
of the depiction of Cayo Bajo Nuevo and Cayo Serranilla on Chart
046 shows that the former is even smaller than the latter. On Chart
046, Cayo Bajo Nuevo is totally obscured by the cartographical
symbol for the light at that location. Considering the figures the
Counter-Memorial provides for Cayo Serranilla, Cayo Bajo Nuevo
measures less than 100 meters across. To describe Bajo Nuevo as
having “an approximate length of 33 km and width of 11 km” 149 is
misleading to say the least.

148 CCM, Vol. I, p. 33 and 36, para. 2.31. Footnote omitted. 149 See CCM, Vol. I, p. 33, para. 2.30.
109
4.13. A further example of Colombia’s attempts to make more out of the
small cays than they actually are is provided by paragraph 2.30 of the
Counter-Memorial, which describes the Serranilla cays. Again, the
information on the length of the bank on which these cays are located
is put up front. After this it is observed that “[t]here is a chain of coral
reefs and several cays”150. There is a serious risk that this cavalier
description of the area could be misconstrued as implying the presence
of a significant coastal front. The relevant Colombian nautical charts
of Serranilla show that the opposite is true. Colombian charts 046 and
208 indicate the existence of three cays on Serranilla: Cayo Serranilla,
Middle Cay and East Cay. Far from forming a chain, as is suggested
by the Counter-Memorial, these cays are far apart. The distance from
Cayo Serranilla to Middle Cay is 5.5 nautical miles (10 km) and the
distance from the latter to East Cay is 1.6 nautical miles (3 km).
Paragraph 2.30 provides figures for the length (650 meters) and width
(300 meters) of the largest of the cays, Serranilla Cay. Colombian
nautical chart 208 points out that the length of the coast of Serranilla
facing the coast of Nicaragua is only around 400 meters. Colombian
Chart 046 also provides another interesting insight into the views of
the Colombian authorities dealing with nautical charts. Chart 046
shows the outer limit of the territorial sea as a 12-nautical-mile arc
centered on Cayo Serranilla (see Figure 4-3). The other two cays
depicted on Chart 046 on Serranilla have been ignored. Apparently,
the Colombian authorities did not consider that these other features
qualified as part of the normal baselines under Article 5 of the 1982
Law of the Sea Convention to establish the extent of the territorial sea.
This is in stark contrast with the Counter-Memorial, which goes as far
as listing these features on Serranilla not only as territorial sea

150 CCM, Vol. I, p. 33, para. 2.30.
110
basepoints, but also as part of the relevant coast of Colombia for the
delimitation of the continental shelf and the exclusive economic
zone151.
4.14. A similar assessment can be made for the length of the other features
Colombia submits to be part of her relevant coast. That calculation
shows that Colombia’s “single island chain”152 stretching for hundreds
of kilometers across the Caribbean is reduced to three small islands:
San Andrés which has a length of 13 kilometers, Providencia, which
has a length of 8 kilometers and its appendix, Santa Catalina which
has a length of 0.5 kilometer. The west facing coasts of the other
features in their totality does not add up to more than 0.9 kilometer,
though this is hard to measure as the features are very small. In
comparison, the distance between these individual features is
enormous. For instance, the islands of San Andrés and Providencia are
47 nautical miles (83 km) apart and the distance between Providencia
Island and the first cay to the north of Providencia, Cayo Serrana
(Southwest Cay), is about 80 nautical miles (126 km).
III. Nicaragua’s Undisputed Islands and Maritime Features
4.15. Where Colombia’s Counter-Memorial is excessively and
unrealistically generous in dealing with the features it considers to be
under her sovereignty –going as far as giving full weight in the
maritime delimitation to the submerged bank of Quitasueño–153 it
completely fails to appreciate the character and significance of the
islands along Nicaragua’s mainland coast. Nicaragua’s Memorial

151 CCM, Vol. I, p. 342, para. 8.7. 152 CPO, Vol. I, p. 84, para. 2.26. 153 CCM, Vol. I, p. 391, para. 9.27 and p. 395, para. 9.37.
111
described these islands in paragraphs 3.9 and 3.10. The CounterMemorial
makes it necessary to look at this matter in more detail. The
present section of the Reply will deal with the islands in the immediate
vicinity of the coast of Nicaragua, including the Corn (Maiz) Islands.
4.16. Nicaragua does not seek to artificially boost the significance of the
islands along her mainland coast, as Colombia is doing for her
“archipelago” of San Andrés and Providencia. At the same time,
Nicaragua does want to provide the Court with an accurate description
of the relevant geography. The truth of the matter is that there are
numerous islands along the mainland coast of Nicaragua, but only
three of them have a significant size: Great and Little Corn Island and
Cayo Miskito. Most of the other numerous islands along the coast of
Nicaragua are similar in size to the cays and rocks, that Colombia
considers to be part of her “archipelago” of San Andrés and
Providencia. However, what distinguishes these small islands and
rocks along the coast of Nicaragua from the latter features is that they
are not scattered far and wide, but, as will be demonstrated further
below, they form an integral part of the mainland coast of Nicaragua.
1. Corn Islands
4.17. Big and Little Corn Island, which together constitute the Corn (Maiz)
Islands are respectively 12 and 6 square kilometers in size and have a
significant population. According to the 2005 census, the islands had a
combined population of over 6,600. A 2009 estimate puts this figure
around 7,400. During the 1960s and 1970s, fishing became the
economic mainstay of the islands, but more recently tourism on the
islands has grown considerably, with their many surrounding coral
reefs making them a popular destination for scuba diving and
112
snorkeling. The Corn Islands are approximately 26 nautical miles
from the Nicaraguan mainland, but due to numerous small islands,
reefs and rocks fringing Nicaragua’s mainland, the territorial seas of
the mainland and the Corn Islands merge.
4.18. Big and Little Corn Islands are islands in the sense of Article 121 of
the 1982 Law of the Sea Convention and are entitled to a continental
shelf and exclusive economic zone. Although they are a little smaller
than the island of San Andrés, they clearly fall in the same category.
Unlike the cays scattered along the banks which make up Colombia’s
“archipelago”, Big and Little Corn Island are not rocks in the sense of
Article 121, paragraph 3154. Colombia in the Counter-Memorial, in
indicating the location of various 200-nautical-mile limits, takes the
opposite view. Figure 7.1 of the Counter-Memorial, which depicts a
200-nautical-mile limit for Nicaragua, ignores Big and Little Corn
Island, as well as Cayo Miskito155. The outer limit of Nicaragua taking
into account the baselines of Nicaragua established in accordance with
the relevant provisions of the 1982 Law of the Sea Convention is
depicted in Figure 4-5.
4.19. The significance of Big and Little Corn Island entails the question of
what effect the maritime entitlement they potentially generate could
have for the delimitation between Nicaragua and Colombia. As will be
discussed in Chapter V, the applicable law indicates that relatively
minor islands like Big and Little Corn Island and San Andrés and
Providencia in a continental shelf delimitation involving the mainland

154 The status of these cays under the international law applicable to the entitlement
of islands to maritime zones is discussed in section V and VI of the Reply. 155 For further information on Cayo Miskito see further below pp. 113 and 115,
paras. 4.20 and 4.24.
113
coasts of Nicaragua and Colombia should not receive any weight. The
same conclusion would apply to any delimitation of the exclusive
economic zone involving the mainland coast of Nicaragua.
2. Cayo Miskito Island
4.20. The third significant island off the mainland coast of Nicaragua is
Cayo Miskito. Cayo Miskito is part of the Miskito Cays and is by far
the largest island of that group. It measures approximately 21 square
kilometers. The Miskito Cays were declared a protected area in 1991.
The Miskito Cays Biological Reserve is one of 78 protected areas in
Nicaragua. Miskito Cay is not detached from the mainland coast of
Nicaragua since there is a continuous chain of islands stretching from
the Nicaraguan mainland coast up to and beyond Miskito Cay. A
similar chain of small islands fringing Nicaragua’s mainland coast is
found in the area between the Rio Grande and Punta de Perlas, known
as Cayos Perlas and Cayos Man of War. These various groups
constitute a part of the mainland coastline of Nicaragua. In assessing
the delimitation between Nicaragua and Colombia they have to be
treated as an integral part of the mainland coast of Nicaragua.
4.21. The distinction between islands fringing a mainland coast and isolated
offshore islands is well known in the jurisprudence of the Court and
arbitral tribunals. In the recent Judgment in the case concerning
Maritime Delimitation in the Black Sea (Romania v. Ukraine), the
Court observed that:
“in one maritime delimitation arbitration, an
international tribunal placed base points lying
on the low water line of certain fringe islands
considered to constitute part of the very
coastline of one of the parties (Award of the
114
Arbitral Tribunal in the Second Stage of the
Proceedings between Eritrea and Yemen
(Maritime Delimitation), 17 December 1999,
RIAA, Vol. XXII (2001), pp. 367-368, paras.
139-146). However, Serpents’ Island, lying
alone and some 20 nautical miles away from
the mainland, is not one of a cluster of fringe
islands constituting “the coast” of Ukraine.”156
4.22. The Award of the Arbitral Tribunal in the Second Stage of the
Proceedings between Eritrea and Yemen (Maritime Delimitation), to
which the Court referred in the Judgment in the case concerning
Maritime Delimitation in the Black Sea, observes in respect of the
Dahlak islands of Eritrea:
“This tightly knit group of islands and islets, or
“carpet” of islands and islets as Eritrea
preferred to call it, of which the larger islands
have a considerable population, is a typical
example of a group of islands that forms an
integral part of the general coastal
configuration. It seems in practice always to
have been treated as such. It follows that the
waters inside the island system will be internal
or national waters and that the baseline of the
territorial sea will be found somewhere at the
external fringe of the island system”157 .
4.23. The Tribunal’s treatment of the Dahlak islands can be distinguished
from its findings on Jabal al-Tayr and the Zubayr Group of Yemen:

156 Maritime Delimitation in the Black Sea (Romania v. Ukraine), I.C.J., Judgment
of 3 February 2009, p. 45, para. 149. 157 Award of the Arbitral Tribunal in the Second Stage of the Proceedings between
Eritrea and Yemen (Maritime Delimitation), 17 December 1999, ILR, Vol. 119,
(2002), p. 459, para. 139.
115
“Yemen employed both the small single island
of al-Tayr and the group of islands called alZubayr
as controlling base points, so that the
Yemen-claimed median line boundary is
“median” only in the area of sea west of these
islands. These islands do not constitute a part
of Yemen’s mainland coast. Moreover, their
barren and inhospitable nature and their
position well out to sea, which have already
been described in the Award on Sovereignty,
mean that they should not be taken into
consideration in computing the boundary line
between Yemen and Eritrea.”158
4.24. The preceding analysis indicates that the Counter-Memorial does not
characterize the islands and cays off Nicaragua’s mainland coast
properly. The features over which Colombia claims sovereignty are
located over 300 nautical miles from her mainland but this is not the
case with the features under uncontested sovereignty of Nicaragua. All
these islands and cays are fringing the mainland coast of Nicaragua.
The jurisprudence indicates that such islands are an integral part of the
mainland coast. The Corn Islands and Cayo Miskito are in all other
respects comparable to the islands of San Andrés and Providencia. In
fact, the sum of the land areas of these three islands is roughly equal
to the sum of the land area of San Andrés and Providencia/Santa
Catalina.
IV. The Special Case of the Submerged Bank of Quitasueño
4.25. The most egregious claim by Colombia with respect to the physical
aspects and legal consequences of the features she claims off the

158 Award of the Arbitral Tribunal in the Second Stage of the Proceedings between
Eritrea and Yemen (Maritime Delimitation), 17 December 1999, ILR, Vol. 119,
(2002), p. 461, para. 147.
116
mainland coast of Nicaragua is that regarding the bank of Quitasueño
(see Figure 4-6). With the exception of a survey made by the
Colombian navy last year, in 2008, all the information available for
nearly two hundred years indicates that this feature is a bank with no
rocks or cays emerging at high tide. The emphasis Colombia makes in
converting this bank into a cay and then claiming sovereignty over it
is because its location nearer to the Nicaraguan mainland coast makes
it most attractive. For this reason, this section will devote a more
complete analysis to this feature in order to evince the spuriousness of
Colombia’s claims.
4.26. The Counter-Memorial goes to great length to show that there are
islands that have entitlement to a continental shelf and exclusive
economic zone on the submerged bank of Quitasueño159. An analysis
of the material which has been presented by Colombia points in an
altogether different direction. The surveys carried out by the United
Kingdom in the first half of the nineteenth century and by Colombia in
1937 both showed that there were no islands on the bank of
Quitasueño. This same conclusion follows from the nautical charts of
Colombia covering the area of Quitasueño. This conclusion also
follows from the practice of the United States in her dealings with
Colombia and others over the bank of Quitasueño. Nonetheless, the
Counter-Memorial, by manipulating the available information, tries to
create the impression that there always has been a “Cay of
Quitasueño” over which Colombia has exercised sovereignty.160 The
Reply will deal with these three issues in the following sections and
draw the pertinent conclusions from that analysis. In brief, the main

159 CCM, Vol. I, pp. 348-349, paras. 8.21-8.23. 160 Ibid, pp. 91-147, paras. 3.24-3.156.
117
conclusion is that Quitasueño is a submerged bank located on the
continental shelf and within the exclusive economic zone of
Nicaragua and should be treated as part of these areas.
A. SURVEYS OF THE BANK OF QUITASUEÑO
4.27. A first detailed survey of the bank of Quitasueño was carried out in
the 1830s by Captain Richard Owen of the Royal Navy. Before that
time this part of the western Caribbean had already been surveyed by
Spain. The Counter-Memorial of Colombia produces two documents
relating to those survey activities of Spain.161 Neither document
provides any information on the bank of Quitasueño. The 1820 Sailing
Directions of the Spanish Navy indicate that they were only able to
provide detailed information on Bajo Nuevo:
“Of all the other shoals and islands drawn on
the chart, we are only able to provide detailed
information on Bajo Nuevo, given that,
although those of Serranilla, Serrana and
Roncador were recognized and located, we
have no additional data other than their
situation; and although their positions have
been rectified on the chart, we include the data
on them for further information for sailors.”162
4.28. The detailed survey of the bank of Quitasueño carried out in the 1830s
by Captain Richard Owen of the Royal Navy did not find any cays on
the bank.163 The survey does observe that one part of the reef
“appeared to be accumulating different substances so as to render it
probable that a cay will be formed there at no very remote period”.

161 CCM, Vol. II-A, pp. 123-124 and pp. 615-617, Annex 23 and 172. 162 Ibid, p. 616, Annex 172. 163 NR, Vol. II, Annex 12.
118
The 1861 edition of the West India Pilot (Vol. I) published by the
British Admiralty contains the same information on Quitasueño164.
4.29. A further detailed survey of the bank of Quitasueño was carried out by
the Colombian authorities in 1937. A report of that survey is contained
in Annex 120 of the Counter-Memorial. The English translation of the
report included in Annex 120 does not reproduce the information on
the bank of Quitasueño in its entirety. The original Spanish text of the
report is, however, very explicit, as it observes:
“QUITASUEÑO.- No existe el cayo de
Quitasueño. Es apenas un bajo muy peligroso
para la navegación […]
Or translated in English:
QUITASUEÑO.- The cay of Quitasueño does
not exist. It hardly is a shoal, which is very
dangerous to navigation.”
4.30. The Colombian report further notes:
“In the northern extremity of the reef of this
extensive shoal, above the rock, is the artificial
base of armored concrete [of the light erected
by the United States], which is the only thing
which emerges from the waters in the entire
bank of Quitasueño”.165
4.31. Finally, the report observes that:
“There is no guano or eggs in Quitasueño
because there is no firm land…”.166

164 NR, Vol. II, Annex 13. 165 This is also indicated by two photographs of the light on p. 6 of report (see NR,
Vol. II, Annex 14). The caption of these photographs reads: “the concrete base is the
only part of the bank which emerges from the waters”.
166 NR, Vol. II, Annex 14.
119
4.32. The General Maritime Directorate of the Colombian Navy has
published four large scale charts of the bank of Quitasueño:
COL 215 Cayo Quitasueño (N) 1:25,000
COL 416 Banco Quitasueño 1:100,000
COL 630 Banco Quitasueño (S) 1:50,000
COL 631 Banco Quitasueño (N) 1:50,000
4.33. These charts are in conformity with the findings of the XIX century
British and 1937 Colombian surveys of the bank of Quitasueño. They
do not indicate the presence of any island on the bank of Quitasueño.
4.34. Notwithstanding this conclusive evidence to the contrary, the
Counter-Memorial maintains that there always has been a cay on the
bank of Quitasueño.167 The Counter-Memorial refers to “[e]ight
unnamed cays” and “islands” on Quitasueño.168 As is apparent from
the Counter-Memorial, these “islands” where only “discovered” in
July 2008, when the Colombian authorities carried out a study of
Quitasueño.169 The technical report of that study is contained in
Annex 171 of the Counter-Memorial. Although this belated discovery
of “islands” on the bank of Quitasueño cannot change the conclusions
on the status of Quitasueño as it appears from information and the
practice of the Parties spanning almost two centuries170, it is of interest
to note that the technical report contained in Annex 171 of the
Counter-Memorial tends to confirm that information and practice

167 See e.g. CCM, Vol. I, p. 178, para. 4.58. 168 See CCM, Vol. I, respectively p. 15, para. 2.5 and p. 348, para. 8.21. 169 CCM, Vol. II-A, p. 603, Annex 171. 170 See below Sec. B, pp. 120-122.
120
rather than the Counter-Memorial’s suggestions that there are
“islands” on the bank of Quitasueño.
4.35. In fact, the technical report prepared by the Colombian Navy in
September 2008 confirms that there are not even small cays on
Quitasueño. If anything, this shows the enormity of Colombia’s
attempt to unjustifiably accord this feature weight in the maritime
delimitation with Nicaragua.
B. THE PRACTICE OF THE UNITED STATES IN RESPECT OF THE BANK OF
QUITASUEÑO
4.36. The Counter-Memorial extensively discusses the 1972 Treaty between
the United States and Colombia concerning the status of Quitasueño,
Roncador, and Serrana and subsequent agreements in the execution of
this Treaty.171 The first observation with respect to this Treaty is that
all the negotiations were careful to avoid any recognition by the
United States of sovereignty of Colombia over these features.172
4.37. On a number of occasions, the Counter-Memorial suggests that the
1972 Treaty and these subsequent agreements were concerned with
the “cays of Roncador, Quitasueño and Serrana”.173 A review of the
1972 Treaty and subsequent agreements in respect of fisheries in the
area of the banks of Roncador, Quitasueño and Serrana shows that the
position of the United States to the contrary indicates that she
recognized that there were cays on the banks of Roncador and
Serrana, but not on the bank of Quitasueño.

171 CCM, Vol. I, pp. 174-188, paras. 4.51-4.77. 172 See NM, Vol. I, pp. 132-136, paras. 2.157-2.166. 173 See e.g. CCM, Vol. I, p. 181, para. 4.62.
121
4.38. First, the 1972 Treaty deals separately with Quitasueño on the one
hand, and Roncador and Serrana, on the other.174 Article 2 refers to
“fishing in the waters of Quitasueño”, whereas Article 3 concerning
Roncador and Serrana refers to “fishing in the waters adjacent to these
cays”. This same distinction between Quitasueño, on the one hand,
and Roncador and Serrana on the other, is made in the 1983
Agreement on regulation of fishing rights of nationals and vessels of
the United States under the 1972 Treaty.175 Paragraph 5 of these notes
observes:
“The Parties agree that the adjacent waters to
Quita Sueño described in Article 2 [of the 1972
Treaty] cover the area enclosed by coordinates
13 degrees 55 minutes north by 14 degrees 43
minutes north and 80 degrees 55 minutes west
by 81 degrees 28 minutes west and the waters
adjacent described in Article 3 are the areas
within 12 nautical miles of Roncador and
Serrana measured from the baselines from
which the breadth of the territorial sea is
measured.”176
4.39. All subsequent documents related to the 1983 Agreement, which are
included in Annexes 11 to 14 and 15 to 16 of the Counter-Memorial,
use this area of application, which indicates that on Roncador and

174 For the text of the 1972 Treaty, see CCM, Vol. II-A, pp. 9-23, Annex 3. 175 Agreement between Colombia and the United States of America on certain
fishing rights in implementation of the Treaty between Colombia and the United
States of America of 8 September 1972, concerning the status of Quitasueño,
Roncador and Serrana: Diplomatic Note Nº 711 from the Embassy of the United
States of America to the Colombian Foreign Ministry, 24 October 1983; and
Diplomatic Note Nº DM 01763 from the Colombian Foreign Ministry to the
Embassy of the United States of America, 6 December 1983 (reproduced in CCM,
Vol. II-A, pp. 45-49, Annex 8).
176 CCM, Vol. II-A, pp. 45-49, Annex 8.
122
Serrana there is a low-water line from which to measure this area, but
that this is not the case for the submerged bank of Quitasueño.
4.40. Two final examples of the Colombia’s apparent embarrassment
concerning the facts about Quitasueño emerge from the cartography of
Quitasueño. First, although the Counter-Memorial makes numerous
references to Colombia’s own nautical charts, the only nautical chart
that is actually included in the Counter-Memorial, is Chart 1601,
reproduced in figure 9.3. This Chart is at such a small scale that it
does not allow any assessment of the situation of Quitasueño. As was
demonstrated earlier (paragraphs 4.32 to 4.35), the four large scale
Colombian charts of the area of Quitasueño reveal that there are no
features on Quitasueño above water at high tide. This latter fact also
renders incorrect, if not utterly misleading, the information contained
in the legend of figure 2.8 of the Counter-Memorial depicting the area
of Quitasueño. The caption of figure 2.8 reads “Coastal information
sources: Colombian nautical charts: 215, 630 and 631, supplemented
with information collected by the Colombian Navy in 2008”177.
4.41. As these Colombian charts indicate that there is no area above water at
high tide, the information collected by the Colombian Navy in 2008 is
the only “coastal” information source of this figure.
C. CONCLUSIONS ON THE STATUS OF QUITASUEÑO
4.42. Quitasueño is a submerged bank. This is confirmed by surveys from
the United Kingdom in the 1830s and Colombia herself in 1937. This
is also confirmed by Colombia’s nautical charts. The “discovery” of

177 CCM. Vol. III Maps, p. 15.
123
“islands” on the bank of Quitasueño in 2008 cannot change this
situation. The date of preparation of the report of the 2008 study of
Colombia is telling. It was drawn up in September 2008: only a couple
of months before Colombia had to file her Counter-Memorial.
Apparently, the drafters of the Counter-Memorial realized that the
materials which were already at their disposal did not advance
Colombia’s case at all. The belated preparation of the 2008 report
does not change the situation. Up to the preparation of the 2008 report,
all surveys and nautical charts indicated that there were no islands on
the bank of Quitasueño. The applicable law on baselines as discussed
in Chapter II Section I indicates that as a consequence there are no
features on Quitasueño, that are entitled to a territorial sea, let alone a
continental shelf or exclusive economic zone.
4.43. Nicaragua has consistently claimed that the bank of Quitasueño is part
of her continental shelf and exclusive economic zone178. Colombia
cannot at this late stage of the proceedings seek to convert what has
always been recognized to be a submerged bank into an “island”.
Consequently, the area of Quitasueño has to be treated as any other
part of the continental shelf.
V. Conclusions
4.44. For the delimitation of the maritime boundaries between Nicaragua
and Colombia, Colombia’s islands and cays do not have a role to play
in view of the broader geographical framework involving mainland
coasts as described in Chapter V of the Reply. These islands and cays
do not constitute a single coastal front and all the individual features

178 NM, Vol. I, p. 146, para. 2.187 and CCM, Vol. I, pp. 30-32, paras. 2.25-2.29.
124
have to be assessed separately in the light of the applicable law. The
jurisprudence indicates that such features do not block the seaward
projection of a much larger mainland coast. In the present case, this
implies that the seaward projection of Nicaragua’s mainland coast
extends up to the outer limit of Nicaragua’s maritime zones.
4.45. Apart from San Andrés and Providencia, the other features included in
Colombia’s “archipelago” do not have even a potential continental
shelf or exclusive economic zone entitlement. They are rocks in the
sense of paragraph 3 of Article 121 of the 1982 Law of the Sea
Convention, which, as is recognized by the Counter-Memorial,
constitutes customary international law. The interpretation of Article
121(3) of the 1982 Law of the Sea Convention Colombia herself has
provided inescapably leads to this conclusion.
4.46. The Counter-Memorial does not characterize the islands and cays off
Nicaragua’s mainland coast properly. These islands and cays are
islands fringing the mainland coast of Nicaragua. The jurisprudence
indicates that such islands are an integral part of the mainland coast.
4.47. The Counter-Memorial repeatedly misrepresents the facts to create the
impression that the “archipelago” is much more significant than it
actually is. A comparison with other information and Colombian
nautical charts exposes these attempts and confirms the true nature of
these features. The Counter-Memorial’s misrepresentation of the facts
is particularly egregious in the case of the bank of Quitasueño.
Colombia’s various attempts to suggest that there are islands on the
bank are not borne out by the evidence. Quitasueño is only a
submerged bank.
125
CHAPTER V
ENCLAVING ISLANDS AND CAYS
I. Introduction
5.1. Nicaragua’s request has been limited in this Reply to a continental
shelf delimitation since this is the only area where the entitlements of
the Parties emanating from their mainland coasts meet and overlap
and has need of a delimitation. Chapter VI below will deal with the
Colombian proposition that the delimitation should only involve the
maritime features of both Parties and not their mainland coasts and
that full effect should be given in the delimitation to all the features
over which Colombia claims sovereignty, without any attention given
either to Nicaragua’s mainland coast or her own.
5.2. The present chapter will deal with the treatment of the maritime
features over which Colombia claims sovereignty and have the
potential for generating shelf rights in the delimitation of the maritime
boundary between the two Parties. If, as will be demonstrated in this
chapter, the islands of San Andrés and Providencia/Santa Catalina
with potential entitlements beyond a territorial sea should be limited
within a 12 nautical-mile radius, then a fortiori the even more minor
features should be enclaved within an even more restricted area.
II. Islands and Rocks
5.3. Chapter IV demonstrated that of all the features claimed by Colombia,
the only ones that meet the criteria to potentially generate entitlements
to other areas beyond a territorial sea are the three islands identified
126
by name in the 1928 Treaty; that is, the islands of San Andrés,
Providencia and its small appendix, Santa Catalina. These are the only
features of those over which Colombia claims sovereignty that could
in principle fill the generally accepted criteria to potentially generate
rights to a continental shelf of their own or an exclusive economic
zone. The rest of the cays at issue are “rocks” under Article 121(3) of
the 1982 Law of the Sea Convention with no human habitation or
economic life of their own.
5.4. The islands of San Andrés and Providencia are not only sited on the
natural prolongation of the mainland territory of Nicaragua that
reaches beyond 300 nautical miles in this area, but are also well within
her 200-nautical-mile exclusive economic zone based on the distance
principle.
5.5. It is clear from the Judgments of the Court and the awards of
arbitration tribunals that islands such as these have never (not
sometimes, but emphatically never) been given full effect in a
delimitation involving an extensive mainland coast.
5.6. Substantial island states, like Malta, have been attributed curtailed
maritime areas, and densely populated largely autonomous islands like
the Channel Islands have been enclaved. Smaller islands have been
either ignored (e.g. Fifla) or attributed very limited effects. Usually
this reduced effect given to these smaller islands and features (like
Seal Island in the Gulf of Maine case) has been with the intention of
correcting an inadequate result and not based on any intrinsic need to
attribute maritime areas of their own to these features.
127
III. Maritime Areas Involved
5.7. This is a case in which, due to the extensive physical shelf of one of
the parties (Nicaragua), the boundary to be delimited would lie
beyond the maximum exclusive economic zone entitlement of 200
nautical miles. This circumstance does not affect the legal logic that
has been used in previous cases in which similar circumstances have
occurred within a smaller delimitation area.
5.8. Nicaragua’s request is for a delimitation of the continental shelves of
both Parties since this is the only area generated by the mainland
territory of the Parties where their entitlements meet and overlap.
Because the delimitation area lies more than 200 nautical miles from
Nicaragua’s baselines along its mainland coast, there is no need, in
Nicaragua’s view, for delimitation of a boundary separating the
Parties’ respective exclusive economic zones. The only way that an
exclusive economic zone delimitation would be required in this case is
if the Court considered that the small islands off Nicaragua’s coast,
San Andrés and Providencia (including Santa Catalina), should be
entitled to maritime areas beyond the 12 nautical-mile radius that legal
logic and equity would accord them. If they are limited to an area
equivalent to their maximum territorial sea allowed by customary
international law as reflected in the 1982 Law of the Sea Convention,
then there is no need of any other delimitation between the maritime
areas of the Parties. Figure 5-1 shows the result of allocating 12-
nautical-mile territorial sea enclaves to the main islands of San Andrés
and Providencia/Santa Catalina.
128
5.9. It could be argued that the question of an enclave itself involves a
discussion of a delimitation of the exclusive economic zone and other
areas between these islands and the mainland coast of Nicaragua. The
reality is that if these islands are enclaved, any discussion on
delimitation of continental shelf areas or exclusive economic zones of
these islands would be academic. The precedent and, more than
precedent, the legal logic used by the Court of Arbitration in the
Channel Islands case ˗which has never been questioned˗ resulted in
the enclavement of these very important islands. There is no reason
whatsoever for this case to be different.
IV. Enclavement Is Necessary to Obtain an Equitable Result
5.10. According to Colombia, “Nicaragua’s attempt to enclave Colombia’s
islands has no legal support”179. This emphatic assertion must be
discussed in context:
- the whole area to be delimitated must be taken into consideration
and not only the area between the islands of San Andrés and
Providencia and Nicaragua’s undisputed islands located nearer the
mainland coast180;
- contrary to Colombia’s assertions181, the primary features to be
taken into account are the respective mainland coasts of the
Parties182;
- in any case, the so called “San Andrés Archipelago” is certainly
not as extensive as Colombia claims,183 and it does not constitute a

179 CCM, Vol. I, Sec. D. (see pp. 326-336, paras. 7.35-7.57). 180 See above, Sec. III, pp. 127-128, paras. 5.7-5.9. 181 See CCM, Vol. I, p. 327, para. 7.37. 182 See above, Chap. II. Sec. I. pp. 65-66, paras. 2.7-2.10. 183 See above, pp. 32-55, paras. 1.29-1.97. See also CCM, Vol. I, p. 343, para. 8.8.
129
“defensive wall”184 built between herself and Nicaragua’s rights
over maritime areas adjacent to her mainland coast.
5.11. Colombia puts forward two main arguments in order to rebut
Nicaragua’s position that all Colombian islands situated on
Nicaragua’s continental shelf should be enclaved. First, she asserts
that “the Colombian islands still possess coasts and thus constitute,
both individually and collectively, coastal fronts.”185 Second, and
“[m]ore importantly, however, under international law a State’s
entitlement to maritime areas – whether continental shelf or exclusive
economic zone – is based on the projection of its coast out to a
distance of 200 nautical miles from the State’s baselines.”186
5.12. In respect to the first argument, there can, indeed be no doubt that
islands possess coasts and can constitute coastal fronts but their effect
is, in principle, individual, not collective. In any case, this is not the
present issue: that islands generate entitlements to maritime areas is
one thing, but the extension of the maritime area they are entitled to in
a delimitation is quite another. The fact that islands “constitute …
coastal fronts” and generate maritime areas, does not mean that in a
delimitation the coastal fronts of these islands should supersede those
of the much larger coastal front of the mainland involved in such a
delimitation or be attributed an inequitable portion of those areas.
5.13. The second assertion is also not correct with respect to the limits it
indicates for continental shelf entitlement. The continental shelf
entitlement is not limited by law or by nature to 200 nautical miles but

184 See also, Chap. VI, pp. 145-156, paras. 6.9-6.24. 185 CCM, Vol. I, p. 329, para. 7.39. 186 Ibid.
130
up to the limits reflected in Article 76 of 1982 Law of the Sea
Convention.
5.14. Without going into this question in detail, since this will be dealt
extensively in Chapter VI below, the elementary fact must be recalled
that certain maritime features, in particular “rocks which cannot
sustain human habitation or economic life of their own … have no
exclusive economic zone or continental shelf”, by virtue of Article
121(3) of 1982 Law of the Sea Convention. In the present case, it
must be noted that the Counter-Memorial completely ignores this
provision. This is remarkable on two counts. First, the CounterMemorial
recognizes that “the relevant provisions of the Convention
dealing with a coastal State’s baselines and its entitlement to maritime
areas […] reflect well established principles of customary
international law”.187 The Counter-Memorial does not make an
exception for Article 121(3) of the 1982 Law of the Sea Convention.
5.15. Second, the fact that the Counter-Memorial ignores paragraph 3 of
Article 121 of the 1982 Law of the Sea Convention becomes even
more perplexing in view of Colombia’s observation that “[t]here is no
minimum size for an island provided it meets the criteria stated on
Article 121(1) of being ‘naturally formed’ and ‘above water at high
tide’”188. Colombia is, of course, well aware that size does matter in
establishing whether or not a feature qualifies as a “rock” under
Article 121(3) of the 1982 Law of the Sea Convention. On 8
December 1982, at the closing session of the Third United Nations
Conference on the Law of the Sea, the delegation of Colombia made

187 CCM, Vol. I, p. 306, para. 4. 188 Ibid, p. 349, para. 8.22.
131
the following statement on Article 121 of the 1982 Law of the Sea
Convention:
“Article 121 defines what constitutes an island
and the difference between islands and rocks.
Islands have a right to a territorial sea, a
continental shelf and an exclusive economic
zone. Rocks are entitled only to a territorial
sea since they cannot sustain human habitation
or economic life of their own. This is logical.
It is a “package” which results from the view
that these maritime spaces have been granted
to the benefit of the inhabitants, with an
economic concept. Any other interpretation
would distort the concept.”189
5.16. However, it is exactly such a distortion of the applicable law
Colombia is now seeking to her own advantage. As will be
demonstrated further in the present chapter, the Counter-Memorial is
not only trying to get a recognition that certain features, which under
Colombia’s statement at the closing session of the Third Conference
are rocks, should have an exclusive economic zone and continental
shelf but is also seeking to give these features full weight in the
delimitation of these zones between Nicaragua and Colombia. The
Counter-Memorial does not even stop at that, but also seeks to accord
this treatment to the submerged bank of Quitasueño190.
5.17. As shown in Chapter IV above, there can be no doubt that the cays
located on Roncador and Bajo Nuevo as well as the other small
features claimed by Colombia in the area are at most rocks in the
sense of Article 121(3) of the 1982 Law of the Sea Convention. It

189 Third United Nations Conference on the Law of the Sea; Official Records, Vol.
XVII, p. 83, para. 251.
190 CCM, Vol. I, p. 342, para. 8.7; pp. 348-349, paras. 8.21-8.23.
132
follows that with the only exceptions of the islands of San Andrés,
Providencia and its contiguous appendix, Santa Catalina, all other
maritime features in the area claimed by Colombia – even supposing
the Colombian claims to sovereignty over these features are founded –
“have no exclusive economic zone or continental shelf”191. Figure 5-2
shows the results of awarding 3-nautical-mile enclaves to the minor
cays and rocks, in addition to the 12-nautical-mile enclaves allocated
to the main islands of San Andrés and Providencia.
V. Channel Islands Arbitration
5.18. The treatment of the Channel Islands in the Anglo-French arbitration
provides the classic example that international courts and tribunals
hold that offshore islands do not block the frontal projection of a
longer opposite mainland coast. The Counter-Memorial is quite aware
of this and while not daring to question the reasoning behind that
decision, attempts to differentiate the situation of the Channel Islands
with that of the three islands under consideration.
5.19. In certain respects the situations are not exactly comparable. The
Channel Islands are an autonomous political entity which is not an
integral part of the United Kingdom; they have a substantial
population; a long historical record as an international actor; and an
economic activity that possibly even surpasses that of either of the
Parties to this case and certainly that of Nicaragua. If these were the
only points of comparison, then it would be very difficult to sustain
that the “San Andrés Archipelago” should receive even the enclave of
12 nautical miles that was accorded to the Channel Islands. In fact, in

191 Art. 121(3) of the UNCLOS.
133
the Channel Islands arbitration, France was requesting that the islands
be enclaved within 6 nautical miles, and the Court of Arbitration took
into consideration some of the relevant aspects of the Channel Islands
listed above in arriving at its decision.
5.20. However the reasoning of the distinguished arbitral tribunal was not
based on these special characteristics of the Channel Islands but rather
on their location in the area of delimitation. The Colombian CounterMemorial
accepts that geographical reality matters and affirms:
“It was because the Channel Islands were
situated ‘on the wrong side’ of the midchannel
median line just off the French
mainland coast that they were enclaved”192.
5.21. What Colombia tries to brush aside is that the situation of the three
islands in the present case is entirely similar. As stated in the
Nicaraguan Memorial, this Archipelago “is not only ‘on the wrong
side’ of the median line but wholly detached from Colombia.”193 The
islands of this Archipelago are located slightly under 400 nautical
miles from the Colombian mainland and around 100 nautical miles
from the Nicaraguan mainland. Chapter III above has demonstrated
that the continental shelf of Colombia, allowance made for all the
possibilities envisioned in Article 76 of the 1982 Law of the Sea
Convention, only extends up to maximum distance of 200 nautical
miles from her mainland coast whilst the Nicaraguan continental shelf
reaches well beyond 350 nautical miles from her mainland coast. This

192 CCM. Vol. I, p. 332, para. 7.46. 193 NM, Vol. I, pp. 242-243, para. 3.105.
134
is simply a statement of a fact, a physical fact that is perfectly
demonstrable and is in the public domain.
5.22. Applying to the present situation this well-established precedent that
islands located “on the wrong side” of the median line will be
enclaved, the result would be that the “San Andrés Archipelago” is
located not just ‘on the wrong side’ of the line dividing the continental
shelf of the two Parties, but far inside the wrong side of that line.
Furthermore, these islands are not only located on the wrong side of
the dividing line, but on an entirely separate geological formation ˗the
continental shelf of Nicaragua˗ which is a separate and distinct
formation from that of the Colombian continental shelf.
5.23. Colombia also attempts to distinguish the situation of the Channel
Islands with that of the three islands by stating that “[t]he present case
is entirely different. The mainland coasts of the Parties are more than
400 nautical miles apart...”194 Yes, it is undeniable that the distances
involved are different. But this does not negate the physical reality
that the natural prolongation of the mainland territory of Nicaragua
reaches well beyond 200 nautical miles, and meets the much less
massive prolongation of Colombia. The mainland coasts of the United
Kingdom and France are closer to each other, to be sure, but it was not
due to their relative closeness that a delimitation became necessary but
because these shelves met and overlapped within the distances and in
the way recognized at the time by customary international law. This is
no different from the present case.

194 CCM, Vol. I, p. 332, para. 7.47.
135
5.24. If the question of distance were to have any significance it would be to
emphasize the need to enclave the islands of the “San Andrés
Archipelago”. It is a simple mathematical reality that the longer the
distance from the coast of an island or other such feature, the greater
the impact it will have on a delimitation if it is given any effect
beyond an enclave. If Colombia’s views were to be accepted, France
would have been excluded from a significant part of the English
Channel (Figure 5-3). Had the Court of Arbitration taken into account
the proposition of Colombia’s Counter-Memorial that islands block
the frontal coastal projection of mainland coast, it could never have
effected the delimitation it actually did. In the present case, and due
precisely to the greater distance, the effect would be to totally exclude
Nicaragua from close to 90% of her continental shelf areas. In fact, the
blockage would be so complete as to only leave to Nicaragua what
would amount to a beach front.
5.25. The security questions raised by the proximity of the Channel Islands
to the French coast were also an issue. This situation also has
similarities with that of the “San Andrés Archipelago”. The fact that
these three islands lie much closer to the Nicaraguan mainland than to
that of the Colombian mainland militates in favour of their being
enclaved since any activities or regulations around them could affect
the traffic to and from Nicaraguan ports. The effects of this proximity
to the Nicaraguan ports, that is, the Nicaraguan mainland, have been
pointed out and taken into consideration in international
organizations195.

195 See e.g. Report to the Maritime Safety Committee, of the Sub-Committee on
Safety of Navigation, 51st session, Agenda item 19, IMO Docs. NAV 51/19 of 4 July
136
VI. Other Precedents
5.26. The precedents invoked by Colombia of cases in which islands have
received a more generous treatment than an enclave196 do not help
her:
1. In Jan Mayen, the main coast of Norway was irrelevant (contrary
to what is the case here for the coasts of both countries) and the
Court accepted the position of the Parties197 to provisionally draw
the median line between Greenland and Jan Mayen taking into
consideration the whole coast of the latter; however, the Court
considered that “[t]he disparity between the lengths of coasts thus
constitutes a special circumstance” and, “in view of the great
disparity of the lengths of the coasts, that the application of the
median line leads to manifestly inequitable results. It follows that,
in the light of the disparity of coastal lengths, the median line
should be adjusted or shifted in such a way as to effect a
delimitation closer to the coast of Jan Mayen”198. To a much
greater degree, the same holds in the present case if one compares
the length of the coasts of Nicaragua on the one hand and of the
islands claimed by Colombia on the other hand. Two other
considerations are relevant. The distance involved between
Greenland and Jan Mayen implied that the dispute in reality
centered around an area beyond 150 nautical miles from the

2005, para. 3.31: “The Sub-Committee noted that the proposed TSS (Traffic
Separation Schemes) for the port of San Andrés Island was close to Nicaragua and
as such Colombia should have consulted Nicaragua when submitting this proposal
as it could affect the traffic to and from Nicaraguan ports.” (NR, Vol. II, Annex 15). 196 See CCM, Vol. I, p. 329, para. 7.40. 197 See Maritime Delimitation in the Area between Greenland and Jan Mayen,
Judgment, I.C.J. Reports 1993, p. 47 and 79, paras. 18-20. 198 Ibid, pp. 68-69, paras. 68-69.
137
mainland coast of Greenland out of a total maximum claim to a
200-nautical-mile exclusive economic zone. In the present case,
the claims of Colombia (which will be analyzed below in Chapter
VI) would only leave for Nicaragua an area of less than 70
nautical miles from her mainland coast out of a claim that reaches
beyond a distance of 300 nautical miles. Furthermore, the Jan
Mayen case substantially hinged around a very special
circumstance: that the fundamental resource in the area was the
capelin fisheries which the Court attempted to distribute in the
most equitable fashion. In the present case, there are no resources
of this nature pointing to anything like the need for this type of
solution. Finally, in spite of these special considerations Jan
Mayen was awarded only partial effects.
2. In Cameroon v. Nigeria, the issue of the very large Bioko Island
was different; as the Court noted, “Bioko Island is subject to the
sovereignty of Equatorial Guinea, a State which is not a party to
the proceedings. Consequently the effect of Bioko Island on the
seaward projection of the Cameroonian coastal front is an issue
between Cameroon and Equatorial Guinea and not between
Cameroon and Nigeria, and is not relevant to the issue of
delimitation before the Court”199. That situation has nothing in
common with the present case where no third State’s island is
concerned and the “San Andrés Archipelago” clearly faces part –
but only part– of the coast of Nicaragua’s mainland relevant for
the delimitation requested of the Court.

199 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Equatorial Guinea intervening), I.C.J. Reports 2002, p. 446, para. 299.
138
VII. Conclusions
5.27. From the above explanations, the following points are clear:
- Chapter III above leaves no doubt that physically and legally
the continental shelves of Nicaragua and Colombia meet and
overlap in an area roughly more than 300 nautical miles from
the Nicaraguan mainland coast and around 100 nautical miles
from the Colombian mainland coast.
- The islands and other maritime features claimed by Colombia
are located under 150 nautical miles from the Nicaraguan
mainland coast and over 300 nautical miles from the
Colombian coast.
- The islands and other maritime features claimed by Colombia
are located on the continental shelf of Nicaragua and
approximately 200 nautical miles distant from the area where
the continental shelf of Colombia terminates.
- If any of these features are found to be Colombian they are
under any definition located on the wrong side of the
delimitation line and wholly detached geographically from
Colombia.
- The only way of obtaining an equitable delimitation in these
circumstances is to enclave these three small islands, San
Andrés, Providencia and its appendix, Santa Catalina, within a
12-nautical-mile radius. Any other even more minor features
139
that might be attributed to Colombia as part of the island group
of San Andrés should, a fortiori, be enclaved within a more
restricted area.

141
CHAPTER VI
COLOMBIA’S DELIMITATION CLAIM
I. Introduction
6.1. Chapter III demonstrated that, in light of the applicable law and the
geography of the delimitation area, the present case concerns a
continental shelf delimitation involving the opposite mainland coasts
of Nicaragua and Colombia. Chapter IV described the physical and
legal aspects of the maritime features located on the continental shelf
of Nicaragua, and Chapter V explained that in accordance with the
applicable law these small islands and other minor features should be
enclaved and not be given any weight in determining the continental
shelf boundaries between the mainland coasts.
6.2. Part III of the Colombian Counter-Memorial takes a totally different
approach which completely ignores the area where the Parties’
continental shelf entitlements overlap, and where a delimitation of the
continental shelf boundary is therefore required, and instead requests a
delimitation in an entirely separate location, which is located within
the area encompassed by Nicaragua’s 200-nautical-mile exclusive
economic zone entitlement. Even within this area appurtenant to
Nicaragua’s mainland coast, Colombia attempts to further limit the
maritime delimitation to the narrow band of maritime space located
between her claimed insular possessions and the Nicaraguan islands
fringing the mainland coast. In this manner, Colombia seeks to base a
maritime delimitation, within Nicaragua’s 200-nautical-mile exclusive
economic zone entitlement, entirely on minor geographic features –
small islands, cays and rocks– without taking into account the
142
mainland coast of either Party, excluding entirely from the
delimitation process the dominant geographic feature in that area:
Nicaragua’s 450 kilometer mainland coast.
6.3. The purpose of this Chapter is not to offer an alternative position to
the delimitation claimed by Colombia in her Counter-Memorial since
Nicaragua’s request is limited to a continental shelf delimitation as is
explained in Chapter III above. The purpose of this Chapter is to
demonstrate that the approach of the Counter-Memorial to maritime
delimitation, even on its own terms, is fundamentally flawed. This
analysis will also demonstrate that even a delimitation of the maritime
areas restricted to the 200-nautical-mile exclusive economic zone of
Nicaragua and that would not encompass the total area of continental
shelf described in Chapter III, would also result in a delimitation that
would enclave the islands claimed by Colombia.
6.4. In this respect, three issues are of critical importance. First, as
indicated above, Colombia completely ignores the only area where a
maritime delimitation is truly required: the area where Nicaragua’s
and Colombia’s continental shelves overlap. Colombia is wrong to
blithely dismiss the need for a delimitation in this area based on its
distance of more than 200 nautical miles from Nicaragua’s mainland
coast, because Nicaragua’s entitlement is not based on the distance
principle but on the natural prolongation of her land territory and the
principles of customary international law reflected in Article 76 of the
1982 Law of the Sea Convention relating to continental shelf
entitlements beyond 200 nautical miles. The Counter-Memorial
completely ignores the law as well as the geographical facts in this
regard.
143
6.5. Second, the Counter-Memorial submits, contrary to both law and
common sense, that only the area between the islands fringing the
mainland coast of Nicaragua and the islands of San Andrés and
Providencia and other minor features claimed by Colombia is in need
of a maritime delimitation. By confining the delimitation area in this
manner, Colombia seeks to erase Nicaragua’s 450 kilometre-long
mainland coast from the map. Deprived of its very existence,
Nicaragua’s mainland coast is thereby prevented from generating
maritime entitlements not only to a continental shelf extending to the
outer limit of the continental margin, as provided in Article 76 but
also to a 200-nautical-mile exclusive economic zone, as provided in
Article 57 of the 1982 Law of the Sea Convention. Compounding her
peculiar contention that the principal mainland coast should be
ignored, Colombia insists that the islands of San Andrés and
Providencia and the small cays on a number of isolated banks, and the
submerged bank of Quitasueño, form an archipelago that completely
blocks the seaward projection of Nicaragua’s maritime entitlement
which, according to Colombia, is only generated by a few fringing
islands and not the mainland coast.200 Unsurprisingly, Colombia fails
to present any credible argument why her small insular features,
which in her view form an archipelago, should block Nicaragua from
the maritime zones to the east of them.201
6.6. From the figures which Colombia has included in the CounterMemorial,
it is evident that Colombia’s “archipelago” consists mainly

200 CCM, Vol. I, Chap. 2, pp.13-74. 201 Ibid, pp. 395-416, paras. 9.38-9.92.
144
of water and not coasts.202 Colombia fails to explain how these open
expanses of sea between isolated dots on the map, which Colombia
claims as her “archipelago”, can completely cut-off Nicaragua’s
maritime projection from her 450 kilometers mainland coast out to the
200-nautical-mile limit of her exclusive economic zone, and out to the
limit of her continental shelf at the outer edge of the continental
margin, which extends beyond 200 nautical miles from her mainland
coast.
6.7. The third fundamental flaw of the Counter-Memorial’s approach is its
submission that, even within this limited setting, the starting and
ending point of this delimitation has to be a provisional equidistance
line between the small insular features of Nicaragua and Colombia. As
will be demonstrated below, this is based on a mistaken reading of the
jurisprudence of the Court and arbitral tribunals on the establishment
of a provisional delimitation line. In the first place, Colombia errs by
ignoring Nicaragua’s mainland coast in the construction of her
provisional equidistance line. By opposing San Andrés and
Providencia only against Nicaragua’s similarly small, fringing islands
– instead of her long mainland coast – Colombia enables herself to
argue for a seemingly equal treatment of her and Nicaragua’s
geographical features. Colombia then compounds the error by giving
full weight in the construction of the provisional equidistance line not
only to San Andrés and Providencia, but also to the even more minor
features that she uses to develop the direction of the line. As will be
demonstrated below in Section V, the Court’s jurisprudence indicates
that when appropriate to establish a provisional delimitation line,
small islands and uninhabited cays and rocks do not receive the same

202 See e.g. CCM, Vol. III Maps, pp. 25-39, 45-57, Figures 2.13-2.20, 2.23-2.29.
145
treatment as mainland coasts, and are generally ignored or at most
given very little weight in the construction of the provisional line. As
demonstrated in Chapter V, and as further discussed in Section VI of
this chapter, enclaving all of Colombia’s islands lying on Nicaragua’s
continental margin is the most equitable solution in the present case.
6.8. It should also be noted that much of the maritime area falling on the
Colombian side of her putative equidistance line actually lies west of
the 82° meridian that, at least until now, Colombia herself has always
(wrongly) claimed constitutes her maritime boundary with Nicaragua
and, even as of this writing, Colombia still maintains as the boundary
by force and the threat of force.203 In other words, with her newly
fashioned “median line”, Colombia seeks to acquire more maritime
space than she has ever claimed before, including in her earlier
pleadings before this Court. As will be discussed in Chapter VII,
there is no legal or equitable basis for Colombia’s new position.
II. The Island of San Andrés and other Minor Insular Features do
not Block the Maritime Projection of Nicaragua’s Coast
6.9. The small and far apart features that Colombia wants to turn into an
extensive archipelago do not form a single unit blocking Nicaragua’s
entitlement to an exclusive economic zone up to 200 nautical miles
from her mainland coast or a continental shelf extending beyond 200
nautical miles. This is clearly visible from the figures Colombia has
herself included in the Counter-Memorial. Figure 9.2 from the
Counter-Memorial shows that there simply is no coastal front to speak

203 See NR, Vol. II, Annexes: 7, 8, 9 and 11. See above Intro. pp. 7, 16 and 18-19,
paras. 18, 35 and 41-42.
146
of opposite the Nicaraguan mainland coast in the area of Colombia’s
claimed maritime features. Figure 6-1 of this Reply shows the frontal
projection of Nicaragua up to the outer limits of her exclusive
economic zone and indicates the actual coastal front of the maritime
features concerned. Figure 6-1 does not include any feature on the
bank of Quitasueño since, as demonstrated above in Chapter IV, there
is no coastline on any part of that submerged bank. Figure 6-1 shows
that the frontal projection of the maritime zones of Nicaragua
extending from her coast is, except for some minute sectors, not
interrupted by the coastal front Colombia presents in her CounterMemorial
before this projection reaches the outer limits of
Nicaragua’s exclusive economic zone.
6.10. The Counter-Memorial denies that the delimitation area includes any
area to the east of San Andrés and Providencia204. Colombia denies
that Nicaragua’s exclusive economic zone extends up to the 200
nautical miles recognized by International Law. Instead, Colombia
maintains that only the area between Nicaragua’s coastal islands and
the features of her “archipelago” are relevant. The effect of this
argument is to allow the so-called “archipelago” to serve as an
impenetrable wall blocking the seaward projection of Nicaragua’s
mainland coastline to some 100 nautical miles offshore, and denying
Nicaragua any entitlements east of the Colombian “wall”. However,
the jurisprudence Colombia invokes is in evident contradiction with
this conclusion. Paragraph 7.25 of the Counter-Memorial is worth
quoting in full:

204 CCM, Vol. I, pp. 339-379, paras. 8.1-8.94.
147
“With respect to the area within which the
delimitation is to be carried out by the Court –
sometimes referred to as the “relevant area” or,
in Nicaragua’s case, the “delimitation area” – it
is axiomatic that that area is defined by
reference to the relevant coasts of the Parties.
For a coast of a party to be a “relevant coast”,
however, it must be capable of generating
maritime rights that overlap with the rights
generated by the coast of the other party. As
the Court observed in the Tunisia-Libya case –
a case which Nicaragua curiously asserts “is
the most similar in geographical terms” to the
present case:
ʻNonetheless, for the purpose of shelf
delimitation between the Parties, it is not the
whole of the coast of each Party which can be
taken into account; the submarine extension of
any part of the coast of one Party which,
because of its geographic situation, cannot
overlap with the extension of the coast of the
other, is to be excluded from further
consideration by the Courtʼ”205.
6.11. As the italicized part of paragraph 7.25 of the Counter-Memorial, as
well as the quotation from the Judgment in the Tunisia/Libya case
show, the delimitation area is defined by reference to the area of
overlapping maritime entitlements. In the present case, this area is
defined by the overlapping continental shelf entitlements of Nicaragua
and Colombia generated by the natural prolongation of their
respective mainland coasts, as is clearly explained and documented in
Chapter III above.
6.12. In Colombia’s scenario presently dealt with, which ignores the two
mainland coasts and the overlapping entitlements that they generate,
the only area to be delimited is a narrow band of sea lying between her

205 CCM, Vol. I, pp. 322-323, para. 7.25. Footnotes omitted; emphasis provided.
148
claimed island possessions and those of Nicaragua. However, the
only thing Colombia achieves with this contrived shrinkage of the
delimitation area is to highlight the inequity of the maritime
delimitation she is requesting the Court to effect. It should be
undisputed that, by virtue of the 1982 Law of the Sea Convention,
Nicaragua enjoys an entitlement to an exclusive economic zone
extending to the 200-nautical-mile limit measured from the relevant
basepoints along her mainland coast (including her fringing islands).
Yet Colombia disputes this by requesting that the Court ignore all but
the first 100 nautical miles from the coast of Nicaragua (that is, only
the half of Nicaragua’s 200-nautical-mile exclusive economic zone
entitlement lying west of Colombia’s impenetrable “wall”), which half
Colombia would then divide “evenly” between the Parties. Colombia
seeks to convince the Court to automatically attribute the remaining
100 nautical miles of sea to Colombia, on the sole ground that they lie
beyond the “wall” of small islands claimed by Colombia. That
solution would be grossly inequitable even in a situation where the
relevant coasts of the parties were similar in length. In the present
case, no such similarity exists. Instead, the Court is faced with the
most glaring disproportion ever between the coasts of the Parties
before it. Nicaragua’s mainland coast facing the delimitation area
measures 450 kilometers while the combined coastal length of the
features which Colombia claims as her own facing Nicaragua’s coast
amounts to some 22 kilometers. This results in a ratio of more than
20:1 in Nicaragua’s favour between her coasts and Colombia’s. Yet,
Colombia’s methodology would distribute the 200 nautical miles of
sea adjacent to Nicaragua’s mainland coast (all of which is more than
200 nautical miles from Colombia’s mainland coast) in a proportion of
3:1 in Colombia’s favor. An equitable solution it is not. Far from it.
149
6.13. There are many examples in the jurisprudence of the Court and
arbitral tribunals which illustrate that small insular features, such as
San Andrés and Providencia, do not block the maritime projection of a
larger coastal front. For instance, in the Libya/Malta case the Court, in
contemplating what constituted an equitable solution between the
parties before it, took into account the coast of the Italian island of
Sicily and the fact that the continental shelf entitlements of Sicily and
Libya overlapped to the south of Malta206. This finding of the Court
implies that the entitlement of Sicily, which lies to the north of Malta,
is not blocked by the coast of Malta, but extends beyond Malta. If the
proposition of Colombia’s Counter-Memorial were valid, the Court
could never have made this finding as there would only have been
overlapping entitlements of Sicily and Malta to the north of Malta and
no overlapping continental shelf entitlement of Sicily and Libya.
6.14. The treatment of the Channel Islands in the Anglo-French arbitration
provides another example where the jurisprudence holds that islands
do not block the frontal projection of a longer opposite mainland
coast. The Counter-Memorial suggests that the treatment of the
Channel Islands in the Anglo-French arbitration does not have any
relevance for enclaving San Andrés and Providencia.207 This question
has been considered in Chapter V above and, thus, for present
purposes the following observations suffice. In the Anglo-French
arbitration, the Court of Arbitration established two continental shelf
boundaries. In this regard the Court of Arbitration observed:

206 Continental Shelf (Lybian Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
1985 pp. 51-53, paras. 71-73. 207 CCM, Vol. I, pp. 330-333, paras. 7.42-7.48.
150
“In the actual circumstances of the Channel
Islands region, where the extent of the
continental shelf is comparatively modest and
the scope for adjusting the equities
correspondingly small, the Court considers that
the situation demands a twofold solution. First,
in order to maintain the appropriate balance
between the two States in relation to the
continental shelf as riparian States of the
Channel with approximately equal coastlines,
the Court decides that the primary boundary
between them shall be a median line, linking
Point D of the agreed eastern segment to Point
E of the western agreed segment. In the light of
the Court’s previous decisions regarding the
course of the boundary in the English Channel,
this means that throughout the whole length of
the Channel comprised within the arbitration
area the primary boundary of the continental
shelf will be a mid-Channel median line. In
delimiting its course in the Channel Islands
region, that is between Points D and E, the
Channel Islands themselves are to be
disregarded, since their continental shelf must
be the subject of a second and separate
delimitation.”208
6.15. If the Court of Arbitration had taken into account the proposition of
Colombia’s Counter-Memorial that islands block the frontal coastal
projection of mainland coast, it could not have effected the
delimitation it actually did. If Colombia’s interpretation of the law
were valid, France would have been excluded from a significant part
of the English Channel. The Court of Arbitration held to the contrary,
and established a median line between France and the southern coast
of England in an area to the north of (and beyond) the Channel

208 Case concerning the Delimitation of Continental Shelf between the United
Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision
of 20 June 1977. RIAA, Vol. XVIII, UN, pp. 94-95, para. 201.
151
Islands. This is illustrated by Figure 6-2, which indicates the location
of the mid-Channel median line established by the Court of
Arbitration. Figure 6-2 also shows the effects of Colombia’s position
on coastal projections. Under that view, the frontal projection of the
French mainland is blocked by the Channel Islands and their 12-
nautical-mile zone. France’s coastal projection would not reach up to
the middle of the English Channel. As the location of the continental
shelf boundary in that area shows, the Court of Arbitration considered,
contrary to Colombia’s claims, that the seaward projection of the
French mainland coast extends beyond the Channel Islands and their
12-nautical-mile zone up to the middle of the Channel.
6.16. For the present proceedings, it is of interest that the Court of
Arbitration in the Anglo-French arbitration also looked at the
situation of the French islands of Saint Pierre and Miquelon, which are
near the coast of Canada’s Newfoundland. In paragraph 200 of its
Award of 30 June 1977 the Court of Arbitration observed:
“The case of St. Pierre et Miquelon, although it
clearly presents some analogies with the
present case, also differs from it in important
respects. First, that case is not one of islands
situated in a channel between the coasts of
opposite States, so that no question arises there
of a delimitation between States, whose
coastlines are in an approximately equal
relation to the continental shelf to be delimited.
Secondly, there being nothing to the east of St.
Pierre et Miquelon except the open waters of
the Atlantic Ocean, there is more scope for
152
redressing inequities than in the narrow waters
of the English Channel.”
209
6.17. The Court of Arbitration’s observation in respect of the “open waters
of the Atlantic Ocean” is of course directly relevant in this setting,
where the mainland coast of Colombia (like that of France in the
arbitration with Canada) plays no role, and where beyond Colombia’s
small islands (like St. Pierre and Miquelon) there would be nothing
but the open waters of the Caribbean Sea up to the outer limit of
Nicaragua’s maritime zones.
6.18. The view of the Court of Arbitration in the Anglo-French arbitration
on the seaward projection of Canada’s coast beyond the islands of
Saint Pierre and Miquelon (instead of being blocked by their
impenetrable “wall”) is consistent with that of the Court of
Arbitration, which handed down its award in the Delimitation of
Maritime Areas between Canada and France on 10 June 1992.
6.19. The Court of Arbitration in that case took as a starting point that:
“The delimitation process begins, as a rule, by
identifying what the International Court of
Justice has called ‘the geographical context of
the dispute before the Court, that is to say the
general area in whichʼ the ‘delimitation which
is the subject of the proceedings, has to be
effectedʼ” [Plateau continental (Tunisie/Libye),
C.I.J. Recueil 1982, p. 34, par. 17]”.210

209 Emphasis provided. Case concerning the Delimitation of Continental Shelf
between the United Kingdom of Great Britain and Northern Ireland, and the French
Republic, Decision of 20 June 1977. RIAA, Vol. XVIII, UN, p. 94, para. 200. 210 Case concerning Delimitation of Maritime Areas between Canada and the
French Republic (St. Pierre and Miquelon) (1992), ILR, Vol. 95, p. 660, para. 25.
153
6.20. In identifying the relevant area for the delimitation it was to effect,211
the Court of Arbitration then observed:
“But the coastlines that France wants to
exclude form the concavity of the Gulf
approaches and all of them face the area where
the delimitation is required, generating
projections that meet and overlap, either
laterally or in opposition.”212
6.21. This finding contradicts Colombia’s position on the implications of
the applicable law for the present proceedings. Colombia submits that
there is only a situation of oppositeness between the relevant coast of
Nicaragua and Colombia’s “archipelago”. However, paragraph 30 of
the Award of the Court of Arbitration in the Delimitation of maritime
areas between Canada and France confirms that in a case such as
between France and Canada, which in this regard is geographically
similar, within the settings of this chapter, to the case between
Nicaragua and Colombia, the area of delimitation is not only formed
by the maritime area between the two coasts, but that it also extends
beyond the small islands concerned.
6.22. The delimitation line adopted in the Delimitation of Maritime Areas
between Canada and France illustrates the practical effects of the
Court of Arbitration’s finding in respect of the relevant area for the
delimitation. In effecting the delimitation in the area seaward of Saint
Pierre and Miquelon, the Court of Arbitration observed:

211 Case concerning Delimitation of Maritime Areas between Canada and the
French Republic (St. Pierre and Miquelon) (1992), ILR, Vol. 95, pp. 660-662, paras.
26-35.
212 Ibid, p. 661, para. 29, (emphasis provided).
154
“70. In the second sector, towards the south
and the southeast the geographical situation is
completely different. The French islands have a
coastal opening towards the south which is
unobstructed by any opposite or laterally
aligned Canadian coast. Having such a coastal
opening, France is fully entitled to a frontal
seaward projection towards the south until it
reaches the outer limit of 200 nautical miles, as
far as any other segment of the adjacent
southern coast of Newfoundland. There is no
foundation for claiming that St Pierre and
Miquelon frontal projection in this area should
end at the 12 mile limit of the territorial sea.
On the other hand, such a seaward projection
must not be allowed to encroach upon or cut
off a parallel frontal projection of the adjacent
segments of the Newfoundland southern coast.
71. In order to achieve this result the projection
towards the south must be measured by the
breadth of the coastal opening of the French
islands toward the south. Thus, a balanced
application of the principles and criteria
invoked by the Parties leads to the solution of a
second maritime area for St Pierre and
Miquelon, in the southern sector extending to a
distance of 188 nautical miles from a 12
nautical miles limit measured fro the baselines
already described, with its axis extending due
south along the meridian half way between the
two meridians described below, its eastern and
western limits being formed by lines parallel to
that axis and its width being determined by the
distance between the meridians passing
through the easternmost point of the island of
St Pierre and the westernmost point of
Miquelon respectively and measured at the
mean latitude of those two points, or
approximately 10.5 nautical miles. From the
northeastern point of the limit thus described,
as far as point 1 referred to in the 1972
Agreement, the delimitation shall be a twelve
155
nautical miles limit measured from the nearest
points on the baseline of the French islands”213.
6.23. Figure 6-3 depicts the delimitation effected by the Court of
Arbitration. In accordance with the observations contained in
paragraphs 70 and 71 of the Court’s Award, the French maritime
zones extend southward to the 200-nautical-mile limit through a
corridor which has the same breadth as the southward coastal
projection of the islands. The delimitation effected by the Court of
Arbitration belies the suggestion contained in the CounterMemorial214
that the 12-nautical-mile territorial sea of Colombia’s
“archipelago” blocks the frontal projection of Nicaragua. As was
observed previously, that same approach was applied in the AngloFrench
arbitration in respect of the French continental shelf in the
region to the north of the Channel Islands. To the east of Saint Pierre
and Miquelon, the Canadian continental shelf and exclusive economic
zone “wrap around” the territorial sea of the islands and to the west
around the territorial sea and some additional maritime area. Figure 6-
4 shows the French continental shelf surrounded by that of Canada.
6.24. In sum, there is no support in the jurisprudence of the Court and
arbitral tribunals for Colombia’s proposition that her small islands and
cays serve as a kind of defensive wall blocking the seaward projection
of Nicaragua’s mainland coast, and limiting the delimitation area to
the area between Nicaragua’s coast and the islands of San Andrés and
Providencia. To the contrary, the jurisprudence shows that
Nicaragua’s maritime entitlements are not cut off by Colombia’s

213 Case concerning Delimitation of Maritime Areas between Canada and the
French Republic (St. Pierre and Miquelon) (1992), ILR, Vol. 95. pp. 671-672, paras.
70-71.
214 CCM, Vol. I, p. 393, Figure 9.2.
156
minor insular features, but extend beyond them to the full extent of
Nicaragua’s 200-nautical-mile exclusive economic zone and even
longer continental shelf.
III. The Relevant Coasts and Relevant Area for the Delimitation
under Colombia’s Scenario
A. THE RELEVANT COASTS
6.25. It is, of course, axiomatic that the land dominates the sea, and does so
through the projection seaward of the coast215. “[T]he land is the legal
source of the power which a State may exercise over territorial
extensions to seaward”216. Accordingly, it is essential to determine the
“relevant coasts” before turning to the task of analyzing the
delimitation proposed by Colombia. As the Court recently put it in the
Black Sea case:
“It is therefore important to determine the
coasts of [the parties] which generate the rights
of these countries to the continental shelf and
the exclusive economic zone, namely, those
coasts the projections of which overlap,
because the task of delimitation consists in
resolving the overlapping claims by drawing a
line of separation of the maritime areas
concerned.”217

215 Case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment, I.C.J. Judgment of 3 February 2009, p. 26, para. 77. 216 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark;
Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 51,
para. 96.
217 Case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment of 3 February 2009, p. 26, para. 77.
157
6.26. In theory at least, Colombia acknowledges that the relevant coasts are
“those coasts the projections of which overlap”.218 At paragraph 8.4 of
the Counter-Memorial, for example, Colombia states: “The relevant
coasts of the parties to a delimitation dispute are those coasts whose
projections seaward generate entitlements to maritime areas that meet
and overlap”219 Exactly the same point is repeated in the next
paragraph where Colombia again states: “[T]he relevant coasts are
those coasts which do give rise to overlapping legal entitlements.”220
Notwithstanding her nominal agreement, however, Colombia
promptly forsakes these principles when it comes time to apply them
in the circumstances of this case.
6.27. As explained above, Colombia completely ignores the fact that the
Parties’ mainland coasts generate overlapping continental shelf
entitlements. That they do so renders both of them “relevant coasts.”
Yet Colombia treats neither of them as relevant to the delimitation in
this case. In fact, as Nicaragua has shown, the only area in this case
that requires a delimitation is where the Parties’ continental shelf
entitlements overlap, so the only relevant coasts are the two mainland
coasts.
6.28. Colombia entirely avoids this area of overlapping entitlements as well
as the coasts that are relevant to them, choosing to focus instead only
on the narrow band of sea to the west of her putative “archipelago.”
By so limiting the area of focus, Colombia argues in the first instance
that her relevant coast consists of the coasts of all of her claimed

218 Case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment of 3 February 2009, p. 26, para. 77. 219 CCM, Vol. I, p. 340, para. 8.4. 220 Ibid, p. 341, para. 8.5.
158
insular features, including each and every one of the minor cays and
rocks, which should be aggregated together for purposes of defining
her relevant coast.221 At the same time, she applies a different standard
for Nicaragua. She entirely ignores the single most dominant
geographic feature in this scenario, Nicaragua’s mainland coast, and
adopts the extraordinary view that Nicaragua’s relevant coast consists
only of the Corn Islands and miscellaneous rocks and cays, including
the Miskito Cays.222
6.29. Colombia’s purpose in including each and every one of her claimed
incidental maritime features in the calculation of her own relevant
coast is obvious. She seeks to inflate the otherwise miniscule extent of
her own relevant coast, and thereby minimize the disparity between
the lengths of the Parties’ relevant coasts. As discussed in Chapter IV
of this Reply, however, the truth is that none of the Cays of Bajo
Nuevo, Serranilla, Serrana, Roncador, the East-Southeast or
Albuquerque is capable of supporting human habitation or having an
economic life of its own. Under Article 121(3) of the 1982 Law of the
Sea Convention, they must therefore be qualified as rocks that can
generate no continental shelf or exclusive economic zone entitlement.
For its part, Quitasueño, being entirely submerged at high tide, does
not even merit the label of a rock. That being the case, none of the
features mentioned has a potential coastal projection beyond a
territorial sea that can overlap with Nicaragua’s coastal projection, and
so cannot, even under Colombia’s own definition and setting,
constitute part of Colombia’s relevant coast for a delimitation between
the Parties.

221 See CCM, Vol. I, pp. 341-343, and pp. 344-350, paras. 8.7 and 8.12-8.8.28. 222 Ibid, Vol. I, p. 351, paras. 8.30-8.32.
159
6.30. It is only the islands of San Andrés and Providencia/Santa Catalina
that can be said to constitute islands capable of generating an
exclusive economic zone entitlement under Article 121 of the 1982
Law of the Sea Convention. Accordingly, only these features can
constitute Colombia’s relevant coast for these purposes. Measured as
coastal façades in the north-south direction (the direction in which
they face Nicaragua which is also their longest extent) the length of
San Andrés is 13 kilometers and the length of Providencia is 8
kilometers. They total 21 kilometers.
6.31. On the other side of the equation, Colombia nowhere even bothers to
rationalize her complete exclusion of Nicaragua’s entire mainland
coast from her depiction of Nicaragua’s relevant coast. Without
explanation, Colombia says merely that it is only to the west of San
Andrés and Providencia/Santa Catalina that her maritime entitlements
“meet and overlap with the entitlements generated by Nicaragua’s
offshore islands”.223 This claim is not correct even if the relevant
coasts were limited to those generated by these “offshore islands” of
Nicaragua since these would have just as much rights as “Colombia’s
islands” to a full 200 exclusive economic zone. But more importantly,
this does not explain why Colombia considers it appropriate to
disregard the existence of the Nicaraguan mainland. It is in fact
entirely inappropriate to do so. When Nicaragua’s mainland coast is
taken into account, as must be the case, it is readily apparent that there
is, in fact, substantial overlap between the Parties’ 200-nautical-mile
zones both to the west and east of Colombia’s islands.

223 CCM, Vol. I, p. 343 para. 8.9, (emphasis added).
160
6.32. The reason Colombia tries to diminish the length of Nicaragua’s
relevant coast by substituting it with that of minor features is precisely
the same reason she seeks to exaggerate her own: to minimize the
glaring disparity in the lengths of the Parties’ relevant coasts. Yet,
under any serious view, even in the setting proposed by Colombia, the
Nicaraguan mainland coast is the dominant geographic reality in the
region. Accordingly, there is no possible justification for excluding it
from the “relevant coasts” for the purposes of this case.
6.33. Nicaragua agrees with Colombia’s statement of principle: the relevant
coasts “are those coasts whose projections seaward generate
entitlements to maritime areas that meet and overlap.”224 For the
reasons discussed, however, she disagrees with the manner in which
Colombia has identified those coasts. Within the area encompassed by
Nicaragua’s 200-nautical-mile exclusive economic zone entitlement,
the only coasts that even potentially generate overlapping entitlements
are:
• For Nicaragua: the entire coastal front of the Caribbean
mainland, measuring a total of 450 kilometers225; and
• For Colombia: the coastal fronts of the individual islands of
San Andrés and Providencia, measuring a total of 21
kilometers.
6.34. The ratio of Nicaragua’s mainland coastal front and the coastal fronts
of the islands of San Andrés and Providencia is more than 20:1 in
Nicaragua’s favor.

224 CCM, Vol. I, p. 340, para. 8.4. 225 The coastal fronts of the Corn Islands and Cayo Miskito (Mayor) (the largest
single feature of the Miskito Cays measuring over 21 km2
) since by themselves they
are entirely similar to San Andrés and Providencia could also be ˗but are not˗
included in this figure because their comparative size pales in relation to
Nicaragua’s mainland coast.
161
B. THE RELEVANT AREA
6.35. In addition to the relevant coasts, it is necessary also to define the
relevant area in which the delimitation is effected226.
6.36. As stated, Nicaragua and Colombia agree ˗in theory at least˗ that the
relevant coasts are “those coasts the projections of which overlap”227.
Conversely, the “relevant area” must be that area where the Parties’
coastal projections meet and overlap. Here too, there is no
disagreement as to basic principles228.
6.37. To determine the area of overlapping projections with accuracy, it is
thus necessary to define and draw (a) each Party’s coastal projection,
and (b) the area(s) where these coastal projections overlap. Colombia
nowhere bothers to undertake the requisite analysis, however. Instead,
the Counter-Memorial proceeds straight to its predetermined
conclusion:
“It is only to the west of the San Andrés
Archipelago that the maritime entitlements of
the Archipelago meet and overlap with the
entitlements generated by Nicaragua’s offshore
islands and cays.”229
6.38. On this ostensible basis, Colombia claims that,
“broadly speaking the relevant area comprises
the area lying between the Colombian San

226 Case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment of 3 February 2009, p. 36, paras. 110-111. 227 Ibid, p. 26, para. 77. 228 See CCM, Vol. I, pp. 340-341, paras. 8.4 and 8.5. 229 CCM, Vol. I, p. 343, para. 8.9.
162
Andrés Archipelago on the east, and the
Nicaraguan islands and cays on the west”230.
6.39. The reason Colombia attempts to limit the relevant area to the narrow
band of sea lying between her claimed insular possessions and
Nicaragua’s off-shore islands and cays is as obvious as it is
unsupportable. By limiting the extent of the relevant area to the
maritime space lying west of her insular possessions, Colombia hopes
to mask the inequity of the median line she proffers as the boundary
between the two States. But Colombia’s conclusory assertion that “it
is only to the west” of San Andrés and Providencia/Santa Catalina that
the Parties’ potential maritime entitlements meet and overlap is
plainly false. In fact, within the area encompassed by Nicaragua’s
200-nautical-mile exclusive economic zone entitlement, there are
areas of overlap both to the west of “Nicaragua’s offshore islands and
cays” and, more significantly, to the east of San Andrés and
Providencia/Santa Catalina. Fidelity to Colombia’s own definition
requires that all of these areas of overlap be included as part of the
“relevant area” in this setting.
6.40. As noted, to properly identify the area of overlapping projections, it is
necessary to do the work Colombia eschews; that is, to define and
draw (a) the Parties’ coastal projections, and (b) the areas where those
projections overlap. It is to those tasks that Nicaragua now turns.
6.41. The Parties’ “coastal projections” are most usefully determined by
reference to their areas of potential legal entitlement. In the Jan
Mayen case, for example, the Court determined what it called the

230 CCM, Vol. I, p. 344, para. 8.11.
163
“area relevant to the delimitation dispute” by reference to the “area of
overlapping potential entitlements”231.
6.42. Here once more, the Parties appear to be in substantial agreement
about the applicable principles, even if in practice Colombia refrains
from applying them. At paragraph 8.4 of the Counter-Memorial, for
instance, Colombia expressly acknowledges that the relevant area
corresponds to the area of overlapping potential entitlements. She
states:
“It is only where the legal entitlements
generated by one State’s coasts meet and
overlap with the legal entitlements of a
neighbouring State that such area of overlap
falls to be delimited.”232
6.43. In fact, the same point is made repeatedly throughout the CounterMemorial.
Citing Tunisia-Libya at paragraph 8.4, for instance,
Colombia similarly observes that the relevant coasts “are those coasts
whose projections seaward generate entitlements that meet and
overlap.”233
6.44. Accordingly, there is no meaningful dispute between the Parties on
this point of principle. The task then is to define the extent of each
Party’s area of potential entitlement and identify where they overlap.

231 Case concerning Maritime Delimitation in the Area Between Greenland and Jan
Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993, pp. 47-48, paras. 18-
21.
232 CCM,Vol. I, p. 329, para. 7.39 (emphasis added). 233 Ibid, p. 340, para. 8.4, (emphasis added). See also ibid, Vol. I, p. 341, para. 8.5:
“[T]he ‘relevant coast’ are those coasts which do give rise to overlapping legal
entitlements”; and CCM, Vol. I, p. 322, para. 7.25: “For a coast of a party to be a
‘relevant coast’, however, it must be capable of generating maritime rights that
overlap with the rights generated by the coasts of the other party.”
164
6.45. Even if this case were to involve only an exclusive economic zone
delimitation, as sought by Colombia, and not the continental shelf
delimitation Nicaragua is requesting, the scope of Nicaragua’s 200-
nautical-mile zone is easily defined. It constitutes the area embraced
within 200 nautical miles of the baselines used for measuring the
breadth of Nicaragua’s territorial sea. This area is depicted in Figure
6-5.
6.46. The same exercise can be applied to determine the extent of any
theoretical or potential 200-nautical-mile zone of the islands of San
Andrés and Providencia as islands under Article 121(1) of the 1982
Law of the Sea Convention within the International limits recognized
by Colombia. This area is depicted in Figure 6-6.
6.47. The area of overlapping potential entitlements, which results from
superimposing Figures 6-5 and 6-6 on top of one another, is shown in
Figure 6-7. This would be, by Colombia’s own definition, the relevant
area for any delimitation of maritime entitlements generated by
Nicaragua’s mainland coast on the one hand, and Colombia’s islands
and disputed cays appurtenant to that coast, on the other. The contrast
between this properly-drawn relevant area and that presented by
Colombia is stark. By attempting to limit the Court’s vision to the
band of sea lying between approximately 25 nautical miles (the
location of the Miskito Cays and the Corn Islands) and 110 nautical
miles (the location of San Andrés) from Nicaragua’s mainland coast,
Colombia hopes she can persuade the Court to ignore more than 50%
of the true area of overlapping entitlements. As Figure 6-7 shows, the
truth is that there are substantial areas of overlapping potential
exclusive economic zone entitlements to the east of San Andrés and
165
Providencia. The portions of the relevant area Colombia none too
subtly seeks to ignore are depicted on Figure 6-8.
6.48. Colombia’s forced geographical myopia is inconsistent with logic,
with the law and, as noted, with Colombia’s own argument. Fidelity to
the law and to the geographical realities requires that the entire area of
overlap be taken into account for any delimitation between
Nicaragua’s mainland coast and Colombia’s islands and cays lying
offshore.
IV. Colombia’s Placement, Construction and Use of Her
Provisional Equidistance Line are Erroneous in her own Scenario
6.49. A major point of disagreement between the Parties involves
Colombia’s placement, construction and use of a provisional
equidistance line in her purported delimitation of the area
encompassed by Nicaragua’s 200-nautical-mile exclusive economic
zone entitlement. The position of Nicaragua, as explained in Chapter
III above, is that in a delimitation of the continental shelf, such as has
been requested by Nicaragua, where the distance principle is not
involved but only the natural prolongation of the land territory, the
question of a provisional equidistance line has no role to play. The
analysis of this question in this section is addressed to the partial
delimitation scenario posited by Colombia involving an exclusive
economic zone delimitation in which the distance principle is an
element to be considered.
6.50. The first serious flaw in Colombia’s approach concerns the placement
of the line. As previously discussed, Colombia’s delimitation
methodology ignores both mainland coasts ˗her own and Nicaragua’s˗
166
even though the latter is by far the predominant geographic feature
with regard to the area the Colombia seeks to have delimited.
Colombia arbitrarily decided to place a median line between her
claimed insular possessions and those of Nicaragua, as if neither her
own nor Nicaragua’s extensive mainland coasts existed. As can be
noted from a review of Section B of Chapter 9 of the CounterMemorial,
which is concerned with the applicable principles and rules
of international law, Colombia pays some attention to the procedure
that the jurisprudence has applied to effect a delimitation that will
result in an equitable solution.234 However, the Counter-Memorial
passes in silence on the reasoning the Court and arbitral tribunals have
applied to select the equidistance line as the provisional starting point
for maritime delimitations. Instead, the Counter-Memorial limits itself
to noting that the jurisprudence in general has concluded that the
equidistance line forms an appropriate starting point for the
delimitation of maritime zones between States with opposite coasts.235
6.51. Colombia’s second serious flaw concerns the construction and use of
her arbitrarily-placed median line. In constructing this line Colombia
has chosen to give no weight to Nicaragua’s 450 kilometre-long
mainland coast, and to give full weight to her small islands and cays.
Colombia is wrong on both counts. It is indefensible for Colombia to
ignore Nicaragua’s mainland coast in the construction of the
provisional delimitation line. And it is equally indefensible to give
weight to small islands and uninhabited cays in the construction of the
line. The Court’s jurisprudence is entirely to the contrary as shown
below.

234 CCM, Vol. I, Sec. B, pp. 382-386, paras. 9.6-9.13. 235 Ibid, pp. 382-386, paras. 9.9-9.13.
167
6.52. Finally. Colombia’s use of her ill-placed and ill-constructed ‘median
line’ as the final line of delimitation is also in conflict with the Court’s
jurisprudence, because it is grossly inequitable and fails to take
account of the most significant geographic factors, namely: (i)
Nicaragua’s 450 kilometer mainland coast; (ii) Nicaragua’s
entitlements, based on the seaward projection of her coast, to the
maritime areas to the east of Colombia’s insular possessions; and (iii)
the small and insignificant nature of those insular possessions, as well
as their location adjacent to Nicaragua, on the Nicaraguan continental
shelf, and more than 300 nautical miles from the Colombian mainland.
6.53. As regards the applicable law and the role of the equidistance method
in the delimitation process, the first paragraph of Section B of Chapter
9 of the Counter-Memorial immediately sets the tone in this respect.
That paragraph observes that:
“While the law of maritime delimitation has
undergone a certain evolution over recent
years, one principle that has remained a
constant is that, in situations involving
delimitation between opposite coasts, an
equidistance or median line boundary will
normally produce an equal division of the
parties’ overlapping entitlements and an
equitable result”236.
This is, of course, a wholly inappropriate use of the term “principle”
in the context of a discussion of the applicable principles and rules of
international law. To be fair, Colombia admits that between opposite
coasts an equidistance or median line will normally produce an equal

236 CCM, Vol. I, pp. 382-383, para. 9.6 (emphasis provided)
168
division of the parties’ overlapping entitlements. Of course, that is not
the case in the present situation. Rather than confirming the
appropriateness of the equidistance method, Colombia’s submission
that the equidistance line normally produces an equal division
indicates that the delimitation involving Nicaragua and the islands of
San Andrés and Providencia is not a standard case of opposite coasts.
6.54. In the Counter-Memorial’s rendering of the maritime delimitation,
only a fraction of Nicaragua 200-nautical-mile zone is taken into
consideration. However, it is evident that this 200-nautical-mile zone
extends to the east of the islands of San Andrés and Providencia up to
the outer limit of Nicaragua’s 200-nautical-mile zone. Colombia’s
supposedly “equal” division of the area of overlapping entitlements
only attributes approximately 25% of that area to Nicaragua and the
remaining 75% to those islands. Clearly, the equidistance method
applied by Colombia does not have the merits it normally has in
situations involving opposite coasts.
6.55. Before analyzing the jurisprudence on this question, it is useful to look
at it from the perspective of normal legal common sense. It is logical
that, in the case of a delimitation of an area lying mainly between two
similar coasts, a provisional equidistance line could serve as a starting
point for the delimitation. In the present case, however, less than 50%
of the area of delimitation lies between the two “coasts” arbitrarily
selected by Colombia in this scenario. In these circumstances, any
provisional equidistance line would completely ignore the other 50%
of the area to the benefit of Colombia. The use of a provisional
equidistance line is not a principle of maritime delimitation but simply
a method used in the appropriate circumstances. The real principle of
169
maritime delimitation is that any method used to effectuate such a
delimitation should lead to an equitable solution.
6.56. Contrary to what is suggested by the Counter-Memorial’s superficial
rendering of the applicable law, the jurisprudence of the Court and
arbitral tribunals does show an acute awareness that the equidistance
line is not a panacea either at the stage of identifying a provisional
starting point or at the second stage of the delimitation process in
which the equitableness of that provisional starting point has to be
assessed against the relevant circumstances of the case at hand. Thus,
the selection of a provisional delimitation line does not imply that it
must be a provisional equidistance line.
6.57. In normal circumstances, the first stage of the delimitation process
˗the selection of a provisional delimitation line˗ perhaps is even more
critical to the outcome of a delimitation than the second stage in which
the provisional line is checked against the relevant circumstances to
establish if that provisional line needs to be adjusted to arrive at the
final boundary. The provisional line provides, so to speak, a yardstick
against which to measure the relevant circumstances. As observed by
the Court in the case concerning Maritime Delimitation in the Black
Sea (Romania v. Ukraine) it found it first had to establish “a
provisional delimitation line, using methods that are geometrically
objective and also appropriate for the geography of the area in which
the delimitation is to take place”.237 In that case, the Court established
an equidistance line, which however, did not take into account certain
points along the coasts of the two parties, including Serpents’ Island

237 Case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment of 3 February 2009, p. 37, para. 116.
170
of Ukraine.238 The Court could take that approach because it took into
account the relevant mainland coasts of both parties. In those
circumstances, the coastal projections of the mainland coasts met and
overlapped in the area between them and the provisional equidistance
line provided an appropriate starting point that could produce, as is
also observed by the Counter-Memorial, “an equal division of the
parties’ overlapping entitlements and an equitable result”239.
6.58. However, in the present case an equidistance line does not achieve
that result. Because the opposite mainland coasts of Nicaragua and
Colombia are more than 400 nautical miles apart, the line of
delimitation of the exclusive economic zone does not lie between
them and no purpose would be served by using an equidistance line as
a starting point for any such delimitation. Nor does it make sense to
arbitrarily place an equidistance line halfway between minor features,
such as the islands claimed by each of the Parties adjacent to
Nicaragua’s coast. This points to the obvious conclusion that it has to
be questioned whether there could be an equidistance line in the
present case that might serve as a starting point that is “appropriate for
the geography of the area in which the delimitation is to take place”.
6.59. The Counter-Memorial suggests that in the case of opposite coasts,
the jurisprudence has generally concluded that equidistance is an
appropriate starting point240. That may be true when the areas to be
delimited are located between these opposite coasts. If the areas to be

238 Case concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment of 3 February 2009, pp. 37 and 39-47, paras. 117 and 123-154. For a
further discussion of the approach of the Court in this case in respect of the
provisional delimitation see infra Sec. V. 239 CCM, Vol. I, p. 383, para. 9.6. 240 Ibid, pp. 382-383, para. 9.6.
171
delimited are not located between these opposite coasts, the concept of
equidistance itself loses all meaning.
6.60. The Jan Mayen case involved a delimitation between two coasts that
were more than 200 nautical miles apart. Since the maximum area of
entitlement claimed by each of the Parties was to an exclusive
economic zone of 200 nautical miles, the area of overlapping claims
lay entirely between their opposite coasts. There were no claim to
areas as between the Parties that was not located between these coasts.
The Court with all logic considered:
“64. Prima facie, a median line delimitation
between opposite coasts results in general in an
equitable solution, particularly if the coasts in
question are nearly parallel. When, as in the
present case, delimitation is required between
opposite coasts which are insufficiently far
apart for both to enjoy the full 200-mile
extension of continental shelf and other rights
over maritime spaces recognized by
international law, the median line will be
equidistant also from the two 200-mile limits,
and may prima facie be regarded as effecting
an equitable division of the overlapping
area.”241
6.61. In the Colombian scenario presently under consideration, the opposite
coasts are “insufficiently far apart” for Nicaragua “to enjoy the full
200-mile extension of continental shelf and other rights over maritime
spaces recognized by international law”. The “median line” drawn
between these coasts will not “be equidistant from the two 200-mile
limits” but rather this “median line” would be located approximately

241 Case concerning Maritime Delimitation in the Area Between Greenland and Jan
Mayen (Denmark v. Norway), Judgment, I.C.J. Reports 1993, p. 66, para. 64.
172
150 miles from the 200-nautical-mile limit of Nicaragua’s exclusive
economic zone. Therefore, the “median line” cannot “be regarded as
effecting an equitable division of the overlapping area.”
6.62. In discussing the appropriateness of the equidistance line as a
provisional starting point for the delimitation between Nicaragua and
the islands of San Andrés and Providencia, the Counter-Memorial
makes mention of the Libya/Malta case. However, the CounterMemorial
only refers to a part of the 1985 Judgment of the Court in
that case. Before indicating that the median line between opposite
coasts “by way of a provisional step in a process to be continued by
other operations, is the most judicious manner of proceeding with a
view to the eventual achievement of an equitable result” ˗ the passage
quoted by the Counter-Memorial˗ the Court referred to paragraphs 57
and 58 of the Judgment in the North Sea Continental Shelf cases.
What these paragraphs indicate is that there are differences between a
case of truly opposite coastal states, and one which calls for “ignoring
the presence of islets, rocks and minor coastal; projections, the
disproportionally distorting effect of which can be eliminated…”
6.63. The Counter-Memorial also ignores that the Judgment of the Court in
the Libya/Malta case confirms that the establishment of a provisional
equidistance line in any case is not a mechanical process. Paragraph
43 of the Judgment observes:
“43. The Court is unable to accept that, even as
a preliminary and provisional step towards the
drawing of a delimitation line, the equidistance
method is one which must be used, or that the
Court is "required, as a first step, to examine
the effects of a delimitation by application of
173
the equidistance method" (I.C.J. Reports 1982,
p. 79, para. 110). Such a rule would come near
to an espousal of the idea of "absolute
proximity", which was rejected by the Court in
1969 (see I.C.J. Reports 1969, p. 30, para. 41),
and which has since, moreover, failed of
acceptance at the Third United Nations
Conference on the Law of the Sea. That a
coastal State may be entitled to continental
shelf rights by reason of distance from the
coast, and irrespective of the physical
characteristics of the intervening sea-bed and
subsoil, does not entai1 that equidistance is the
only appropriate method of delimitation, even
between opposite or quasi-opposite coasts, nor
even the only permissible point of departure.
The application of equitable principles in the
particular relevant circumstances may still
require the adoption of another method, or
combination of methods, of delimitation, even
from the outset.”242
6.64. The Counter-Memorial next refers to the Judgment on the merits in
the Qatar v. Bahrain case243. In that case the Court effected a
delimitation between the continental shelf and exclusive economic
zone entitlements of the parties in what the Court designated as the
northern sector244. The Counter-Memorial is correct in observing that
the Court in that delimitation took the equidistance line as a starting
point245. What the Counter-Memorial fails to mention is the
characterization of the relevant coasts of the parties in the northern
sector. Again, it is worth quoting from the Judgment as it serves to

242 Continental Shelf (Lybian Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
1985, p. 48, para. 64. 243 CCM, Vol. I, pp. 383-384, paras. 9.9-9.11. 244 Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Merits, Judgment, I.C.J. Reports 2001, p. 115, para. 250. 245 See CCM, Vol. I, p. 383, para. 9.9.
174
underline the importance the Court has always attached to the context
of the specific case:
“246. The Court recalls that in the Libyan Arab
Jamahiriya/Malta case, referred to above, it
stated:
‘the equitableness of an equidistance line
depends on whether the precaution is taken of
eliminating the disproportionate effect of
certain ‘islets, rocks and minor coastal
projections’, to use the language of the Court in
its 1969 Judgment [(case concerning North Sea
Continental Shelf)] (I.C.J. Reports 1985, p. 48,
para. 64)’.
247. The Court further recalls that in the
northern sector the coasts of the Parties are
comparable to adjacent coasts abutting on the
same maritime areas extending seawards into
the Gulf. The northern coasts of the territories
belonging to the Parties are not markedly
different in character or extent; both are flat
and have a very gentle slope. The only
noticeable element is Fasht al Jarim as a remote
projection of Bahrain's coastline in the Gulf
area, which, if given full effect, would “distort
the boundary and have disproportionate
effects” (Continental Shelf case
(France/United Kingdom), United Nations,
Reports of International Arbitral Awards, Vol.
XVIII, p. 114, para. 244).
248. In the view of the Court, such a distortion,
due to a maritime feature located well out to
sea and of which at most a minute part is above
water at high tide, would not lead to an
equitable solution which would be in accord
175
with all other relevant factors referred to
above”246.
6.65. The context in which the Court effected the delimitation in the
northern sector in the Qatar/Bahrain case is plainly different from a
delimitation between Nicaragua and Colombia in the area
encompassed by Nicaragua’s 200-nautical-mile exclusive economic
zone. The Court in the former case observed that the pertinent coasts
of the territories of the parties were not markedly different in character
or extent. The opposite is true for the mainland coast of Nicaragua and
the islands of San Andrés and Providencia. More analogous to the
present case, the Judgment of the Court in the Qatar v Bahrain
(paragraphs 246 to 248) case also confirms that an equidistance line
between comparable coasts of the parties should not be influenced by
minor remote features, and accordingly no effect was given to the
feature of Fasht al Jarim247.
6.66. In its discussion of the Qatar v. Bahrain case, the Counter-Memorial
seems to suggest that the similarity between the rules contained in
Article 15 of the 1982 Law of the Sea Convention and the rules for the
delimitation of the continental shelf and the exclusive economic zone
is relevant in considering the delimitation of the latter zone. The
Counter-Memorial submits that:
“It is clear from the wording of Article 15 of
the 1982 Convention that there is a
presumption in favour of an equidistance or
median line boundary for territorial sea
delimitation.

246 Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Merits, Judgment, I.C.J. Reports 2001, pp. 114-115, paras. 246-248. 247 Ibid, p. 115, paras. 249.
176
[…]
Given the close relationship between the
“equidistance/special circumstances” rule and
the “equitable principles/relevant
circumstances”, the same priority accorded to
the equidistance line for territorial sea
delimitation applies to the delimitation of
maritime areas lying beyond the territorial
sea”248.
The Counter-Memorial then quotes from the Cameroon v. Nigeria
case to argue the similarity between the two rules. That similarity, of
course, does not prove a presumption in favor of the equidistance
method. To the contrary, it only highlights the fact that mention of
equidistance was carefully avoided when dealing with the delimitation
of the more extensive maritime areas.
6.67. The absence of a presumption in favor of an equidistance line was
expressed as follows by the Court of Arbitration in the Anglo-French
arbitration:
“Consequently, even under Article 6 [of the
Convention on the Continental Shelf] the
question whether the use of the equidistance
principle or some other method is appropriate
for achieving an equitable delimitation is very
much a matter of appreciation in the light of
the geographical and other circumstances. In
other words, even under Article 6 it is the
geographical and other circumstances of any
given case which indicate and justify the use of
the equidistance method as the means of
achieving an equitable solution rather than the

248 CCM, Vol. I, p. 385, para. 9.12.
177
inherent quality of the method as a legal norm
of delimitation249”.
Article 6 of the Convention on the Continental Shelf, like Article 15
of the 1982 Law of the Sea Convention, also refers to the equidistance
method and special circumstances, and unlike Article 15 of the 1982
Law of the Sea Convention is concerned with the delimitation of the
continental shelf between neighboring States.
6.68. The preceding analysis indicates that the fundamental problem with
the Counter-Memorial’s approach is that it is premised on the
presumption that the equidistance line always has to form the starting
point of the delimitation process. The most recent Judgment of the
Court on maritime delimitation in the case concerning Maritime
Delimitation in the Black Sea (Romania v. Ukraine) points out that the
first step in the delimitation is not the establishment of a provisional
equidistance line, but the establishment of a “provisional delimitation
line, using methods that are geometrically objective and also
appropriate for the geography of the area in which the delimitation is
to take place”250.
6.69. In light of the jurisprudence of the Court and international tribunals,
Nicaragua finds that the conclusion of the Counter-Memorial that the
basic rule of maritime delimitation law as a first step requires the
plotting of an equidistance line251 is not correct. Nor is it correct to
place an equidistance line between minor geographical features in a

249 Case concerning the Delimitation of Continental Shelf between the United
Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision
of 20 June 1977. RIAA, Vol. XVIII, UN, pp. 45-46, para. 70. 250 Ibid, p. 37, para. 116. Emphasis provided. 251 CCM, Vol. I, pp. 385-386, para. 9.13.
178
manner that ignores the mainland coasts of both parties, or to
construct the line without taking an extensive and adjacent coastline
into account while giving full weight to minor and insignificant islets
and rocks. As the Court has repeatedly observed, the provisional
delimitation line has to be geometrically objective and appropriate for
the geography of the delimitation area. Only after an assessment of
that geography in the light of the applicable law will it be possible to
determine what constitutes an appropriate provisional delimitation
line. This question is addressed below.
V. The Provisional Delimitation Line Appropriate to the Area to
be Delimited
6.70. According to the Court’s Judgment in the case concerning Maritime
Delimitation in the Black Sea (Romania v. Ukraine) the provisional
delimitation line has to meet two criteria:
1. It has to be appropriate for the area in which the
delimitation takes place; and
2. It has to be geometrically objective.
Thus, it is first of all necessary to inquire into the characteristics of the
delimitation area. This inquiry will naturally center around the limited
area of the Colombian scenario with which this chapter is dealing.
6.71. The relevant area for the delimitation sought by Colombia within
Nicaragua’s 200-nautical-mile exclusive economic zone entitlement
lies between Nicaragua’s mainland coast and the outer limit of
Nicaragua’s 200-nautical-mile zone. There is no opposite coast of
another coastal State which blocks the frontal seaward projection of
179
Nicaragua’s coast. Within this area there are a number of small
maritime features. Any provisional delimitation line would have to be
appropriate for this delimitation area.
6.72. Nicaragua believes that an equidistance line would not be an
appropriate starting point for such a delimitation in the light of the
characteristics of the delimitation area. An equidistance line as a
starting point could have merit where the main area to be delimited is
located between two opposite and similar coasts (see paragraph 6.55
above). In the present case, and under the scenario put forward by
Colombia, the exercise is indefensible, since there is no Colombian
coast opposite Nicaragua’s, and even if San Andrés and Providencia
could be said to collectively constitute a “coast” – which Nicaragua
disputes – the area located between them and the Nicaraguan
mainland represents no more than 50 % of the area to be delimited,
and the two “coasts” are entirely dissimilar. In sum, it makes no sense
to place a provisional delimitation line midway, or equidistant,
between San Andrés and Providencia on the one hand, and
Nicaragua’s mainland coast or her coastal islands on the other.
6.73. In light of the conclusion that the equidistance line proffered by
Colombia does not provide an appropriate starting point for any
delimitation between Nicaragua and Colombia, it is necessary to
consider if there is another method which can be used as a starting
point of a delimitation. Nicaragua recognizes that this method will
need to meet the two criteria of the Court. The line not only has to be
appropriate for the area in which the delimitation takes places, but it
also has to be geometrically objective.
180
6.74. The jurisprudence of the Court and international tribunals indicates
the way forward in the search for a provisional delimitation line. As
was demonstrated above in Section IV, that jurisprudence consistently
indicates that in cases in which the equidistance line is considered to
provide an appropriate starting point, a first step is to identify the
appropriate basepoints for establishing the equidistance line. In that
exercise, the Court and tribunals have routinely excluded islands,
islets and rocks as basepoints. A number of examples illustrate this
point. Indeed, it is the norm252. In the Anglo-French arbitration, the
Court of Arbitration discounted the Channel Islands in establishing the
median line between the opposite coasts of the United Kingdom and
France, and in the case concerning Maritime delimitation in the Black
Sea (Romania v. Ukraine), the Court disregarded Sulina Dyke and
Serpents’ Island in constructing the provisional equidistance line,
stating,
“To count Serpents’ Island [located 20 miles of
Ukraine’s Black Sea coast] as a relevant part of
the coast would amount to grafting an
extraneous element onto Ukraine’s coastline;
the consequence would be a judicial
refashioning of geography, which neither the
law nor practice of maritime delimitation
authorizes”253.
6.75. Similarly, in the case concerning Maritime Delimitation and
Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain),
the Court decided to disregard the “very small island” of Qit’at
Jaradah in drawing the median line, stating:

252 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, pp. 36-37, para. 57. 253 Maritime Delimitation in the Black Sea (Romania v. Ukraine), I.C.J., Judgment
of 3 February 2009, p. 45, para. 149.
181
“if its low-water line were to be used for
determining a basepoint in the construction of
the equidistance line, and this line taken as the
delimitation line, a disproportionate effect
would be given to an insignificant maritime
feature”254.
6.76. Citing Libya/Malta for the proposition that “the equitableness of an
equidistance line depends on whether the precaution is taken of
eliminating the disproportionate effect of certain ‘islets, rocks and
minor coastal projections’”255, the Court similarly decided to give no
effect to the island of Fasht al Jarim, “a remote projection of Bahrain’s
coastline in the Gulf area, which, if given full effect, would ‘distort
the boundary and have disproportionate effects”256.
6.77. In the Libya/Malta Case itself, the Court disregarded the presence of
the islet of Filfla, five kilometers south of the main island of Malta,
for purposes of drawing the provisional equidistance line on the
continental shelf separating Libya and Malta257.
6.78. Another case worthy of the Court’s attention is Nicaragua v.
Honduras. In that case, the maritime boundary adopted by the Court
consisted primarily of a bisector line drawn between the straight line
coastal fronts of the two States’ mainland coasts. In determining the
angle of the bisector line, no account was taken of the offshore islands

254 Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Merits, Judgment, I.C.J. Reports 2001, pp. 104 and 109, para. 219. 255 Continental Shelf (Lybian Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
1985, pp. 49-50, para. 67. 256 Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Merits, Judgment, I.C.J. Reports 2001, pp. 114 -115, para. 247. 257 Continental Shelf (Lybian Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
1985, p. 48, para. 64.
182
and islets in question; the angle was determined solely by reference to
the mainland coastal fronts of Nicaragua and Honduras.
6.79. The approach of disregarding minor insular features and specific
basepoints can also be applied in the present case. Nicaragua
considers that it is appropriate to disregard all basepoints on islands
and cays claimed by Colombia in establishing the provisional
delimitation line (as well as all corresponding basepoints that
Colombia similarly located on Nicaragua’s insular features). This
conclusion is reached on the basis of the physical characteristics of
these features and in the context of the delimitation area as compared
to similar features which have been given no effect in establishing a
provisional delimitation line in other cases, such as the Channel
Islands in the Anglo-French arbitration and Abu Musa in the
Dubai/Sharjah arbitration258. The Tunisia/Libya case is also
instructive in this respect. In that case, the Court effected a
delimitation by first selecting a line which was unrelated to the
equidistance line. That line completely ignored the Tunisian island of
Jerba259. With an area of about 515 square kilometers (approximately
20 times larger than San Andrés), Jerba is a much more significant
island that either San Andrés or Providencia. Jerba is also closely
linked to the mainland coast of Tunisia and not an isolated feature.
6.80. Colombia’s delimitation claim places no basepoints on either of the
two opposite mainland coasts. Even if basepoints were placed on

258 The geography of the islands and cays under consideration in the present case is
described in Chapter IV of the Reply. For a discussion of the treatment of the
Channel Islands in the Anglo French arbitration and Abu Musa in the Dubai/Sharjah
arbitration see pp. 149-156, paras. 6.14- 6.24 above.
259 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1982, p. 85, para. 120.
183
Nicaragua’s coast, there would be no equivalent Colombian
basepoints from which to establish a provisional equidistance line,
since Colombia’s insular possessions adjacent to Nicaragua must be
disregarded for purposes of constructing the provisional equidistance
line.
6.81. In the light of the conclusion that there are no appropriate Colombian
basepoints from which to establish a provisional line, the question
arises how to establish such a line. In this case, the answer is also
readily available in the jurisprudence. In a case in which a feature is
not taken into account as a basepoint in establishing the provisional
equidistance line, the jurisprudence has dealt with it in one of two
ways, depending on whether the feature is located in the maritime
zone of the party which has sovereignty over it or in the maritime
zone of the other party. In the latter case, the jurisprudence has
commonly accorded a maximum 12-nautical-mile zone to such
features and enclaved them within the maritime zones of the other
party. This was for instance the case for the Channel Islands in the
Anglo-French arbitration. Chapter V dealt with this case with respect
to the situation involving the delimitation of the continental shelf. In
the present scenario, whether dealing with a continental shelf
delimitation as requested by Nicaragua or an economic exclusive zone
delimitation within Nicaragua’s 200-nautical-mile limits as sought by
Colombia, the same logic applies.
6.82. This results in a set of provisional delimitation lines which coincide
with the 12-nautical-mile limit drawn from the baselines of San
Andrés and Providencia/Santa Catalina, and at the 3-nautical-mile
limit drawn from the cays claimed by Colombia. In accordance with
184
the applicable rules of international law as contained in Article 5 of
the 1982 Law of the Sea Convention, the normal baseline is the lowwater
line along the coast as marked on large scale charts officially
recognized by the coastal State. As was demonstrated in Chapter IV,
this implies that there is no provisional delimitation line in the area of
the bank of Quitasueño, which is totally submerged at high-tide.
6.83. Nicaragua believes that the set of provisional delimitation lines it
proposes meets the requirements the Court indicated for such a line in
the case concerning Maritime Delimitation in the Black Sea (Romania
v. Ukraine). Nicaragua’s provisional delimitation lines are appropriate
for the geography of the area in which the delimitation is to take place.
The provisional lines are also geometrically objective. They allow the
Court to take due account of the seaward projection of the mainland
coast of Nicaragua and, in accordance with the relevant international
jurisprudence, do not give undue weight to minor features. Figure 6-9
shows the resulting delimitation.
VI. The Relevant Circumstances do not Require an Adjustment of
the Provisional Delimitation Lines Posited by Nicaragua
6.84. It remains to be considered whether there are relevant circumstances
requiring an adjustment of this set of provisional lines. Nicaragua
considers that there are no circumstances indicating that there is a
need to adjust the provisional delimitation lines to achieve an
equitable delimitation.
185
A. GEOGRAPHICAL CIRCUMSTANCES
6.85. The provisional delimitation lines result in maritime limits around the
islands of San Andrés and Providencia/Santa Catalina at a distance of
12 nautical miles from the baselines established in accordance with
international law. In the Memorial, Nicaragua explained that the very
limited size and other characteristics of the insular features other than
San Andrés and Providencia imply that they should be enclaved at
most in a territorial sea of three nautical miles260. In light of the
relevant jurisprudence and State practice this would constitute an
equitable solution in view of the characteristics of these cays261.
Figure 6-10 shows the result of applying a 12-nautical-mile enclave to
the main islands of San Andrés and Providencia/Santa Catalina, and a
3-nautical-mile enclave to the minor cays.
6.86. The general recognition of a 12-nautical-mile territorial sea was
inspired by the need to protect the vital security interests of coastal
States. It is not tenable to argue that the security interests of Colombia
in these small, barren, uninhabited cays, with no economic life of their
own and far from her coasts (but near the Nicaraguan coast) require a
12-nautical-mile territorial sea. At the same time, Nicaragua
recognizes that in two recent cases ˗ the Territorial and Maritime
Dispute between Nicaragua and Honduras in the Caribbean Sea
(Nicaragua v. Honduras) and the case concerning Maritime
Delimitation in the Black Sea (Romania v. Ukraine) ˗ the Court
accorded small islets a 12-nautical-mile territorial sea in a delimitation

260 NM, Vol. I, pp. 254-260, paras. 3.127-3.136. 261 See also the discussion at above Chap. V, and p. 208, para. 6.130 below, which
indicates that according all of the features a 12-nautical-mile area results in
attributing Colombia more than sufficient maritime areas in comparison to the
coastal length ratios of Nicaragua and Colombia.
186
of the exclusive economic zone and the continental shelf262. However,
all of those features were close to the mainland coast of the sovereign
that possessed them, and the maritime attribution was the result of a
composite reasoning that aspired to an equitable result. If the same
result were woodenly applied to the cays under consideration in the
present case, they would be attributed a maritime zone which is totally
disproportionate to their actual significance. In that respect, Nicaragua
recalls the example she provided in paragraph 3.129 of the Memorial.
Giving 12-nautical-mile zone to an isolated cay –in reality nothing
more than a rock barely protruding form the sea– would give it the
same area of territorial sea as a straight mainland coast of more than
37 nautical miles.
6.87. Nicaragua considers that the disproportionate result of attributing a
12-nautical-mile territorial sea to the cays is a relevant circumstance to
be taken into account in assessing the equitableness of the provisional
delimitation line. According a 12-nautical-mile territorial sea to all the
disputed cays in this case would give them a total maritime area of
9,200 square kilometers, whereas they lack any significance.
6.88. The only features which arguably could receive more than a 12-
nautical-mile territorial sea are the islands of San Andrés and
Providencia. This would be the case if they were located in mid-ocean
far from other States and not off a large mainland coast of another
State. To better assess the weight that San Andrés and Providencia
should be accorded, the following paragraphs offer a comparative
analysis of these islands to others which have been given limited

262 See Maritime Delimitation in the Black Sea (Romania v. Ukraine), I.C.J.,
Judgment of 3 February 2009, p. 57, para. 188.
187
effect in the delimitation of the continental shelf and exclusive
economic zone between neighboring States.
6.89. Before embarking on that comparative analysis it is, however,
appropriate to make an assessment of the space there actually might
be for adjusting the provisional delimitation lines. In this regard, it is
interesting to note the solution the Court of Arbitration found for a
seaward projection of Saint Pierre and Miquelon in the Delimitation of
Maritime Areas between Canada and France. The Award, in effecting
a delimitation, enclaved the islands to the west and to the east, but
accorded them maritime zones southward to the 200-nautical-mile
limit through a corridor of the same breadth as the southward coastal
projection of the islands.
6.90. Figure 6-11 shows the potential result of adapting the approach of the
Court of Arbitration in the Delimitation of Maritime Areas between
Canada and France to San Andrés and Providencia. Under this
approach, San Andrés and Providencia would be enclaved to the west,
north and south, but would enjoy maritime zones projecting eastward
beyond the 200-nautical-mile exclusive economic zone of Nicaragua.
This solution attributes approximately an additional 4,000 square
kilometers of maritime area to Colombia, if compared to the enclave
solution advocated by Nicaragua and discussed further below.
6.91. The jurisprudence in a significant number of cases has had to assess
the impact of islands on the delimitation of maritime boundaries
between States. The first instance in this respect was the AngloFrench
arbitration. As is observed in paragraphs 5.18 to 5.25 above,
the Court of Arbitration in that case found that it was appropriate to
188
draw a median line between the mainland coasts of France and the
United Kingdom. The Channel Islands were ignored in the
establishment of that median line and were only accorded a 12-
nautical-mile enclave in a second step of the delimitation.
6.92. The Counter-Memorial denies that the Channel Islands is analoguos
with the present case263. The Counter-Memorial gives three arguments
to reject the analogy between the two cases. First, Colombia submits
that the Channel Islands are very close to the French mainland and
that this was one of the main reasons to treat them as a special
circumstance, and that San Andrés and Providencia are a considerable
distance from the Nicaraguan mainland. Second, the CounterMemorial
submits that the Channel Islands are surrounded on three
sides by French territory, whereas San Andrés and Providencia are
facing the Nicaraguan mainland coast. Third, the Counter-Memorial
submits the delimitation concerned two mainland coasts and that the
Channel Islands were “on the wrong side” of the mid-Channel median
line264.

6.93. The Counter-Memorial is parsimonious in referring to the reasoning
of the Court of Arbitration for enclaving the Channel Islands. A look
at that reasoning goes a long way to undermining the CounterMemorial’s
argument. The Court of Arbitration summarized its
findings on the delimitation in the English Channel as follows in
paragraph 199 of its 1977 decision:

263 CCM, Vol. I, pp. 330-331, paras. 7.42-7.43. 264 Ibid, pp. 331-333, paras. 7.44-7.48.
189
“The Court considers that the primary element
in the present problem is the fact that the
Channel Islands region forms part of the
English Channel, throughout the whole length
of which the Parties face each other as opposite
States having almost equal coastlines. The
problem of the Channel Islands apart, the
continental shelf boundary in the Channel
indicated by both customary law and Article 6,
as the Court has previously stated, is a median
line running from end to end of the Channel.
The existence of the Channel Islands close to
the French coast, if permitted to divert the
course of that mid-Channel median line, effects
a radical distortion of the boundary creative of
inequity. The case is quite different from that
of small islands on the right side of or close to
the median line, and it is also quite different
from the case where numerous islands stretch
out one after another long distances from the
mainland. The precedents of semi-enclaves,
arising out of such cases, which are invoked by
the United Kingdom, do not, therefore, seem to
the Court to be in point. The Channel Islands
are not only “on the wrong side” of the midChannel
median line but wholly detached
geographically from the United Kingdom”265.
6.94. As paragraph 199 indicates, the Court of Arbitration did not decide to
enclave the Channel Islands for the mere reason that they were close
to the French mainland, but upon the Court of Arbitration’s
assessment of the totality of the delimitation area that they were “on
the wrong side of the mid-Channel median line” and “wholly detached
geographically from the United Kingdom”. The case is clearly
analogous to the present one, which is proved merely by substituting
“mid-Caribbean” for “mid-Channel”, and “Colombia” for the “United

265 Case concerning the Delimitation of Continental Shelf between the United
Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision
of 20 June 1977. RIAA, Vol. XVIII, UN, p. 94, para. 199.
190
Kingdom”. This indicates that the fact that the Channel Islands are
close to the French mainland coast is not in itself relevant for an
assessment of their treatment.
6.95. The Court of Arbitration’s assessment that the Channel Islands were
“wholly detached geographically from the United Kingdom” does not
help Colombia. This is a conclusion with obvious implications for the
islands of San Andrés and Providencia. The distance between the
Channel Islands and the mainland coast of the United Kingdom is
approximately 90 kilometers, whereas the distance between the
islands of San Andrés and Providencia and the mainland coast of
Colombia is approximately 750 kilometers. The conclusion that the
Channel Islands are geographically detached from the mainland coast
of the United Kingdom thus applies a fortiori to the islands of San
Andrés and Providencia.
6.96. What the Counter-Memorial is implicitly suggesting is that San
Andrés and Providencia should get a better treatment although they
are in a worse situation than islands which are buttressed by a
mainland coast behind them.
6.97. It should also be noted that the Court of Arbitration discussed the
relationship between the Channel Islands and the mainland coast of
the United Kingdom in the context of an argument that the continental
shelf of the Channel Islands should be linked to the continental shelf
of the British mainland. The Court of Arbitration rejected this
proposal on the basis that the Channel Islands were detached from the
mainland of the United Kingdom. Again this is a conclusion which
also applies to San Andrés and Providencia. There is no basis in law
191
or fact to justify that there should be uninterrupted maritime zones
between the islands of San Andrés and Providencia and the
Colombian mainland.
6.98. Colombia seems to suggest that the impact of the Channel Islands on
the delimitation between France and the United Kingdom would have
been much bigger than the impact of San Andrés and Providencia in
the present case. The opposite is actually true. An equidistance line
between France and the United Kingdom giving full weight to the
Channel Islands would have only affected a small part of the midChannel
median line, which divided the area of overlapping claims
equally, and would have given the United Kingdom a limited area of
continental shelf over and above the continental shelf it was awarded
(see Figure 5-3). By contrast, the line of delimitation proposed by
Colombia is not only heavily affected by the treatment she wishes to
give to San Andrés and Providencia, but entirely dependent on those
islands. Indeed, there would be no “median line” at all without taking
them into account. The result of Colombia’s doing so is to give them
three times as much maritime space as Nicaragua, notwithstanding
Nicaragua’s 450 kilometer-long mainland coast (see Figure 6-8).
6.99. To sum up the discussion of the case involving the Channel Islands,
the Counter-Memorial’s argument largely ignores the reasoning of the
Court of Arbitration. A comparison of the geographical context of that
case with the present one indicates that a 12-nautical-mile enclave for
San Andrés and Providencia is wholly consistent with the reasoning of
the Court of Arbitration.
192
6.100. The Counter-Memorial dismisses the relevance of the Dubai/Sharjah
arbitration because the geographic situation in which that delimitation
was effected supposedly was entirely dissimilar from the situation in
the present case266. Colombia bases this conclusion on a number of
grounds. First, according to the Counter-Memorial, the delimitation
was primarily one between States with adjacent coasts sharing a land
boundary. This is a gross oversimplification of the reasoning of the
Court of Arbitration. The analysis contained in the Award indicates
that the Court of Arbitration was mindful of the existing jurisprudence
and the requirement to assess the weight of particular features in the
context of the overall geographical framework of a delimitation267. In
its analysis the Court of Arbitration explicitly agreed with the
reasoning of the Court of Arbitration in the Anglo-French arbitration:
“The Court of Arbitration in the Arbitration
between the United Kingdom of Great Britain
and Northern Ireland and the French Republic
on the Delimitation of the Continental Shelf,
1977, found that there was:
… a single rule, a combined equidistancespecial
circumstances rule … (Award, para.
68.)
and that the equidistance principle of
delimitation (on which, in a modified form, the
Government of Sharjah has placed reliance in
its claim for “half-effect” to the accorded to the
island of Abu Musa) must be subject to the
overriding aim of achieving an equitable
apportionment of shelf areas between adjacent
or opposite States. (Award, para. 97.) As has
been noted earlier, the principles of
delimitation expounded in Article 6 of the 1958
Convention on the Continental Shelf were seen

266 CCM, Vol. I, pp. 334-335, para. 7.52. 267 Dubai-Sharjah Border Arbitration of 19 October 1981, ILR Vol. 91, Grotius
Publication Limited, 1993, pp. 669-677.
193
by the Court of Arbitration as applicable within
the overall context of reaching an equitable
solution to the delimitation of any shelf
area”268.
6.101. The Counter-Memorial also argues that the semi-enclave around the
island of Abu Musa “only caused a minor deflection to the adjacent
coasts equidistance line”269. That depiction of the outcome of the case
suggests that Abu Musa in any case would have had a limited impact
on the equidistance line. The reality is quite different. As can be
appreciated from Figure 6-12, an equidistance line giving full weight
to Abu Musa veers in a completely different direction than the first
part of the equidistance line between the mainland coasts before the
latter line reaches the 12-nautical-mile enclave around Abu Musa.
6.102. The Counter-Memorial further indicates that in the Dubai/Sharjah
arbitration there was “a single small island situated in the middle of a
confined maritime area which would inequitably distort the course of
an equidistance line”270. The Counter-Memorial contrasts this with
Colombia’s possessing “a lengthy archipelago comprising many
islands and cays, the nearest island of which is over 100 miles from
Nicaragua, and Nicaragua also possesses offshore islands which figure
in the delimitation. As such, the situation is very different from that
presented in the Dubai-Sharjah arbitration”271. This comparison by
the Counter-Memorial of the Dubai/Sharjah arbitration to the present
case generates a number of comments.

268 Dubai-Sharjah Border Arbitration of 19 October 1981, ILR Vol. 91, Grotius
Publication Limited, 1993, p. 676. 269 CCM, Vol. I, p. 335, para. 7.53. 270 Ibid, p. 335, para. 7.54. 271 Ibid, pp. 335-336, para. 7.54.
194
6.103. First, in discussing Abu Musa in paragraph 7.54, the CounterMemorial
refers to it as a small island. The island of Abu Musa is
inhabited and measures about 12 square kilometers. The island of San
Andrés measures about 25 square kilometers and the island of
Providencia measures about 17 square kilometers. Not much of a
difference.
6.104. Secondly, the Counter-Memorial refers to Abu Musa as a single island
and sets it apart from Colombia’s “lengthy archipelago”272. Again, an
interesting comparison. The distance of Abu Musa to the nearest point
on the coast of the mainland of Sharjah is about 60 kilometers and the
distance to the nearest island is less than 40 kilometers. These are
considerable distances, but certainly much less than the distance of 83
kilometers between the islands of San Andrés and Providencia or the
distance of 305.6 kilometers between San Andrés and Serranilla, and
the distance of over 700 kilometers to the Colombian mainland. These
figures confirm the conclusion of Nicaragua that on the basis of the
jurisprudence San Andrés and Providencia have to be treated as
separate single islands for the purposes of maritime delimitation.
Finally, the Counter-Memorial observes that Abu Musa is “situated in
the middle of a confined maritime area which would inequitably
distort the course of an equidistance line”273. This description again
fits the case of the islands of San Andrés and Providencia. The only
difference is the fact that the total delimitation area is less confined in
the present case. Like Abu Musa, the single island of San Andrés and
the single island of Providencia are located approximately in the
middle of the delimitation area. Like Abu Musa, they inequitably

272 CCM, Vol. I, p. 335-336, para. 7.54. 273 Ibid, p. 335, para. 7.54.
195
distort the delimitation line.274 In the case of Abu Musa that effect was
avoided by according the island of Abu Musa a 12-nautical-mile
enclave. That same solution should be applied to the islands of San
Andrés and Providencia.
6.105. Prior cases have not only enclaved islands, which were found to
constitute special or relevant circumstances, but have also given them
limited effect in other ways. Two examples - the treatment of the
Kerkennah Islands in the Tunisia/Libya case, and that of Malta in the
Libya/Malta case - suffice to show that much more significant islands
than San Andrés and Providencia have been accorded limited effect.
The Kerkennah Islands and Malta had longer coasts behind them. The
presence of a longer coast explicitly was taken into consideration and
limited the extent to which the islands were discounted. In the case of
San Andrés and Providencia, there is no mainland coast backing the
islands.
6.106. In the Tunisia/Libya case, the Court in establishing the second
segment of the continental shelf boundary had to consider the weight
to be accorded to the Kerkennah Islands. The starting point for
establishing this segment of the boundary was provided by the general
direction of the mainland coast of Tunisia275. In that respect, the
Judgment provides a further example of a provisional starting line for
the delimitation which disregarded the presence of islands. It should

274 The award in the Dubai/Sharjah arbitration among others observes that giving
full weight to certain islands would “produce a distortion of an equidistance line or
an exaggerated result which would be inequitable” Dubai-Sharjah Border
Arbitration of 19 October 1981, ILR Vol. 91, Grotius Publication Limited, 1993, p.
676.
275 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1982, p. 88, para. 127.
196
also be noted that the Kerkennah Islands are much larger (180 km2
)
than either the island of San Andrés (25 km2
) or the island of
Providencia (17 km2
).
6.107. Having established a provisional starting line, the Court noted that:
“the bearing of this line is approximately 42º to
the meridian. To the east of this line, however,
lie the Kerkennah Islands, surrounded by islets
and low-tide elevations, and constituting by
their size and position a circumstance relevant
for the delimitation, and to which the Court
must therefore attribute some effect. The area
of the islands is some 180 square kilometres;
they lie some 11 miles east of the town of Sfax,
separated from the mainland by an area in
which the water reaches a depth of more than
four metres only in certain channels and
trenches. Shoals and low-tide elevations also
extend on the seaward side of the islands
themselves, which are surrounded by a belt of
them varying from 9 to 27 kilometres in width.
In these geographical circumstances, the Court
has to take into account not only the islands,
but also the low-tide elevations which, while
they do not, as do islands, have any continental
shelf of their own, do enjoy some recognition
in international law for certain purposes, as is
shown by the 1958 Geneva Conventions as
well as the draft convention on the Law of the
Sea. It is not easy to define what would be the
inclination of a line drawn from the most
westerly point of the Gulf of Gabes to seaward
of the Kerkennah Islands so as to take account
of the low-tide elevations to seaward of them;
but a line drawn from that point along the
seaward coast of the actual islands would
clearly run at a bearing of approximately 62º to
the meridian. However, the Court considers
that to cause the delimitation line to veer even
as far as to 62º to run parallel to the island
197
coastline, would, in the circumstances of the
case, amount to giving excessive weight to the
Kerkennahs.
129. The Court would recall however that a
number of examples are to be found in State
practice of delimitations in which only partial
effect has been given to islands situated close
to the coast; the method adopted has varied in
response to the varying geographical and other
circumstances of the particular case. One
possible technique for this purpose, in the
context of a geometrical method of
delimitation, is that of the “half-effect” or
“half-angle”276.
6.108. The reasoning of the Court leading to a decision on the weight to be
accorded to the Kerkennah Islands indicates that their size and close
relationship to the mainland coast necessitated adjusting the
provisional line to arrive at the final delimitation line. The reasons for
giving some effect to the Kerkennah Islands are not present here, since
San Andrés and Providencia are almost 6 and more than 7 times
smaller than the Kerkennah Islands, respectively, and they are both
completely detached from the Colombian mainland.
6.109. In the Libya/Malta case, the Court as a first step in the delimitation
process traced an equidistance line between Libya and Malta,
disregarding as basepoints the straight baselines of Malta and the
small islet of Filfla.277 The Court then turned to the question whether
that equidistance line should be adjusted in the light of the relevant
circumstances of the case. The Court observed there was a large

276 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports
1982, pp. 88-89, paras. 128-129. 277 Continental Shelf (Lybian Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
1985, p. 48, para. 64.
198
difference in the lengths of the relevant coasts – the relevant coast of
Malta measured 24 miles (44 kilometers) and that of Libya 192 miles
(356 kilometers)278. The Court then used a median line between Libya
and Sicily (Italy) giving no effect to Malta to establish the maximum
extent of the shift of the Court’s provisional delimitation line. The
distance between these two lines was 24′ of latitude. Next the Court
arrived at a boundary line by shifting its provisional line not by the
full 24′ of latitude to the north, but, in according some weight to
Malta, it shifted the line by 18′ of latitude279. That is, it accorded
Malta one quarter of this area.
6.110. A comparison of the situation of that of Malta to San Andrés and
Providencia is interesting. San Andrés and Providencia are much
smaller than Malta. Malta measures some 246 square kilometers
making it almost 9.5 times bigger than San Andrés and almost 14.5
times bigger than Providencia. The relevant coast of Malta identified
by the Court is almost three times longer than the coast of San Andrés
facing the mainland of Nicaragua and five and a half times that of
Providencia. On the other hand, the relevant coast of Libya identified
by the Court is almost 100 kilometers shorter than the relevant coast
of Nicaragua. The Court in the Libya/Malta case put a limit on the
extent of a provisional median line by referring to the longer coast of
Sicily behind the coast of Malta. In the case of San Andrés and
Providencia, there is no such longer coast. Furthermore, the
southeastern tip of Malta lies approximately 340 kilometers from the
nearest point on the coast of Libya. The distance between the
mainland coast of Nicaragua and San and Andrés and Providencia is

278 Continental Shelf (Lybian Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
1985, p. 50, para. 68. 279 Ibid, pp. 51-53, paras. 71-73.
199
much less. Furthermore, as a consequence of the distance between
Malta and Libya and the presence of Italy to the north of Malta, the
Court did not have to consider whether a boundary might be located to
the north of Malta. The situation in the present case is different.
Nicaragua’s 200-nautical-mile zone extends well to the east of the
islands of San Andrés and Providencia and there is no mainland coast
behind the islands blocking the projection of Nicaragua.
B. STATE PRACTICE CONCERNING MINOR ISLANDS INVOKED BY
COLOMBIA
6.111. The Counter-Memorial invokes a number of examples from State
practice in the form of bilateral delimitation agreements to support
Colombia’s proposed delimitation methodology. In that respect, the
Counter-Memorial refers both to Colombia’s own practice with her
neighboring States and the practice of third States280. As indicated
below in paragraphs 7.27 to 7.29, the jurisprudence does not show any
support for using Colombia’s own self-serving practice as a precedent.
With one exception, the present section will therefore only address the
bilateral practice of third States invoked by the Counter-Memorial.
That exception concerns the role of the islands of Los Monjes in the
delimitation between Colombia and Venezuela.
1. Colombia/Venezuela
6.112. The Memorial observed that Colombia has taken the position that no
weight should be given to small islets in connection with the
delimitation of the maritime boundary with Venezuela in the Gulf of
Venezuela and outside the Gulf in the Caribbean Sea281. The Counter-

280 CCM, Vol. I, pp. 352-364, paras. 8.33-8.56. 281 NM, Vol. I, p. 259, para. 3.135.
200
Memorial replies to this by noting that no definitive boundary has
been agreed upon between Colombia and Venezuela, and that the Los
Monjes islands “are located about 19 miles off the Colombian coast,
i.e. less than twice the breadth of the territorial sea”282.
6.113. Both of Colombia’s arguments are unconvincing. First, the fact that
there is no boundary agreement between Venezuela and Colombia
does not negate the fact that it is Colombia’s position that Los Monjes
should get no weight in a delimitation – a position, one supposes,
which is based on a careful assessment of the jurisprudence of the
Court and arbitral tribunals.
6.114. Secondly, the distance of Los Monjes to the Colombian coast is not
the decisive factor since their distance to the Gulf and the coast of
Venezuela would balance this out. Specific circumstances always
have to be assessed in context. A comparison of Los Monjes and
Colombia’s “San Andrés Archipelago” shows that the latter have a
much more pronounced impact on the putative boundary than Los
Monjes. Among other considerations, the Los Monjes islands lie
outside a predominantly Venezuelan gulf, while, the islands of San
Andrés lie inside a predominantly Nicaraguan part of the Caribbean
Sea. Thus, if Colombia finds that the Los Monjes islands should be
disregarded completely in her delimitation with Venezuela, the same
applies a fortiori for her “archipelago” in the delimitation with
Nicaragua.

282 CCM, Vol. I, p. 336, para. 7.56.
201
2. Italy and Tunisia
6.115. The Counter-Memorial in paragraph 7.51 rejects the relevance of the
delimitation between Italy and Tunisia, to which the Memorial had
made reference283. The Counter-Memorial submits that the geographic
context of that delimitation is different from the present case because
the Italian islands in question either straddled the equidistance line
between the mainland coasts or lay “on the wrong side” of it284. This
is again the same fallacious reasoning Colombia applies elsewhere in
the Counter-Memorial. The fact that there are two mainland coasts
instead of only one mainland coast is not decisive of the treatment
small islands should get in a maritime delimitation.
6.116. The treatment of small islands has to be assessed in the overall context
of a delimitation. That context is remarkably similar in the
delimitation involving Tunisia and Italy and the delimitation between
Nicaragua and Colombia. The delimitation area between Italy and
Tunisia involving the enclaved islands lies between the mainland
coast of Tunisia and the major Italian island of Sicily. In the middle of
that delimitation area a number of small Italian islands are located. In
the case of any delimitation within Nicaragua’s 200-nautical-mile
exclusive economic zone entitlement, the delimitation area would lie
between the mainland coast of Nicaragua and the outer limit of
Nicaragua’s 200-nautical-mile zone. The islands of San Andrés and
Providencia are located in the middle of that area. To put the two
cases in proper perspective, it is also useful to compare the geography
of the islands. The largest of the Italian islands involved in the
delimitation with Tunisia, Pantelleria, has a coast facing Tunisia of

283 NM, Vol. I, p. 245, para. 3.109. 284 CCM, Vol. I, p. 334, para. 7.51.
202
about 30 kilometers, or about two times the length of the coast of San
Andrés facing the mainland coast of Nicaragua, and about three times
the coast of Providencia. With a size of about 83 square kilometers,
Pantelleria is more than three times bigger that San Andrés and almost
five times bigger than Providencia. The second largest Italian island,
Lampedusa, has a facing coast of 24 kilometers, or about one and a
half times the coast of San Andrés and about three times the coast of
Providencia, and has an area of 20 square kilometers (somewhat
smaller than San Andrés but bigger than Providencia). To make this
comparison complete, the coast of Tunisia between Cape Bon and the
land boundary with Libya facing the islands measures approximately
430 kilometers or slightly less than the 450 kilometers of Nicaragua’s
coast facing the delimitation area. In light of the above, Nicaragua
remains of the view that the delimitation between Tunisia and Italy
points to the appropriateness of an enclave solution for the islands of
San Andrés and Providencia.
3. Other States
6.117. Other State practice discussed in paragraphs 9.47 to 9.55 of the
Counter-Memorial are not helpful to the Colombian case, as the
comparisons are based on the erroneous assumption that the mainland
coast of Nicaragua does not constitute part of the coast relevant for the
delimitation with Colombia285.
6.118. The maritime delimitation agreement between India and the Maldives
discussed in paragraph 9.47 of the Counter-Memorial is considered in
two sections by Colombia. A first part of the delimitation line is
situated between small islands on both sides and thus has no relation

285 See CCM, Vol. I, p. 401, para. 9.55.
203
to the situation involving a mainland coast and small islands. The
second part of the delimitation does concern the mainland coast of
India. However, that coast faces a tightly knit group of islands, most
of which are only kilometers apart. The Maldives as an archipelago do
not bear any resemblance to the minor islands and cays of Colombia
adjacent to Nicaragua which are far apart and which do not in any
event constitute a single archipelago (See Figure 6-13).
6.119. The example cited by the Counter-Memorial at paragraph 9.48 again
bears no resemblance to a delimitation between Nicaragua and
Colombia. The delimitation between Australia and New Caledonia
(France) is mostly effected between a number of small islands (See
Figure 6-14). The mainland coasts of both parties are a considerable
distance behind these islands. Although the geography of this case is
thus different from that involving the delimitation between Nicaragua
and Colombia, it does show that the mainland coasts of both States
have been treated broadly equally.
6.120. Another example given by Colombia is concerned with India and
Thailand286 (See Figure 6-15). The geography of that delimitation
again bears little resemblance with the present case. The delimitation
line is located between the Nicobar Islands of India and certain islands
of Thailand. Behind these Thai islands is the mainland coast of
Thailand.
6.121. The Counter-Memorial ends its review of State practice with three
delimitations involving the Venezuelan island of Aves with the United

286 CCM, Vol. I, p. 400, para. 9.49.
204
States, the Netherlands and France, respectively287. These agreements
reflect the larger problem with drawing legal conclusions from State
practice in delimitation: the delimitation agreements are normally not
reasoned out. There are economic, political, military and many other
reasons that lead to an interstate boundary agreement that are not
spelled out in the agreements.
6.122. Colombia assumes that the treatment given to Aves in some
delimitations supports her case. Unfortunately, the analysis provided
by the Counter-Memorial is far from complete and further
information, which is readily available, indicates that the case of Aves
does not provide any support in law for the delimitation the CounterMemorial
is proposing between Nicaragua and Colombia.
6.123. First of all, the Counter-Memorial refers to the 1978 delimitation
treaty between the United States and Venezuela. Two well-informed
commentators have observed in respect of this treaty:
“Another issue related to the treatment to be
given to Aves Island, a small island in the
eastern Caribbean sometimes used as a garrison
by Venezuelan military authorities and more
notable as sea turtle breeding grounds. The
limits of the fisheries jurisdiction provisionally
established by the United States gave full effect
to Aves despite its small size, and the United
States determined to maintain that position
when the Netherlands and Venezuela reached
their boundary settlement, which did not treat
Aves as a special circumstance. That
settlement, of course, did not and could not
prejudice U.S. rights and interests with respect
to this delimitation. However, as a political

287 CCM, Vol. I, pp. 400-401, paras. 9.50-9.53.
205
matter, there was little to gain and potentially
much to lose in asserting a broader U.S.
boundary interest, particularly in light of the
marginal resource interest in this area.”288
6.124. Secondly, the Counter-Memorial refers to the 1978 treaty between the
Netherlands and Venezuela. The Counter-Memorial first of all
mistakenly asserts that large areas of exclusive economic zone and
continental shelf were accorded to Aves in the delimitation with
Aruba, Bonaire, Curacao and Saint Eustachius. As a matter of fact, the
delimitation with Aves only involves the small island of Saba. Still,
according Aves full weight against Saba would have been too
generous an approach in the legal determination of a maritime
boundary. An assessment of the relevance of this delimitation in any
case is virtually impossible because it not only concerned the islands
of Aves and Saba, but also the Venezuelan mainland coast and
adjacent islands, and the Netherlands islands of Aruba, Curacao and
Bonaire. It is not known how these various aspects of the 1978 treaty
between the Netherlands and Venezuela, which also provides for a
specific navigational regime, tie in with each other. But there is no
question that all these elements entered into the negotiation.
6.125. Finally, the Counter-Memorial refers to the 1983 Treaty between
France and Venezuela289. It is not known what inspired the conclusion
of that Treaty. What is certain is that there can be no doubt that giving
full weight to the small cay of Aves vis-à-vis the large islands of

288 M.B. Feldman and D. Colson “The Maritime Boundaries of the United States” 75
(1981) American Journal of International Law pp. 729-763 at p.747 (footnote
omitted).
289 CCM, Vol. I, p. 401, para. 9.53.
206
Guadeloupe and Dominica would not have been the outcome of a
delimitation effected by a third party.
6.126. The Counter-Memorial also ignores that several Caribbean States
have indicated that the use of Aves in the delimitation between
Venezuela and France, the Netherlands and the United States cannot
prejudice their rights. Antigua and Barbuda, Saint Kitts and Nevis and
Saint Vincent and the Grenadines have indicated that they consider
that Aves should not receive any weight in the delimitation between
these States and Venezuela in diplomatic notes that were distributed to
the States Parties to the 1982 Law of the Sea Convention. The
Secretary-General reported on the contents of these notes in his annual
report on oceans and law of the sea of the year 1997290. The view
expressed by Antigua and Barbuda, Saint Kitts and Nevis and Saint
Vincent and the Grenadines implies that Aves would be enclaved
within a 12-nautical-mile territorial sea within the maritime zones of
the other coastal States of the Eastern Caribbean.
C. THE ALIGNMENT OF SAN ANDRÉS AND PROVIDENCIA EXACERBATES
THE INEQUITABLE NATURE OF COLOMBIA’S EQUIDISTANCE LINE
6.127. The geographical relationship between the islands of San Andrés and
Providencia exacerbates the impact these minor features have on any
form of median line. San Andrés and Providencia are some 83
kilometers apart. As was discussed in Chapter V, this substantial
distance makes it appropriate for these small islands to be treated
separately and for each to be enclaved. Colombia’s approach, by
contrast, is to use them as separate basepoints in the construction of a
median line; this gives them the same effect as if they were two points

290 See A/52/487, paras. 74-75 reproduced in NR, Vol. II, Annexes 1-4.
207
along an uninterrupted mainland coast. This results from the northsouth
alignment of the islands which runs parallel to and facing the
mainland coast of Nicaragua. In other words, in Colombia’s
methodology, the small islands of San Andrés and Providencia, which
have a coast facing Nicaragua of about 13 and 8 kilometers,
respectively, are given the same impact on the line of delimitation as a
section of the continuous mainland coast measuring more than 100
kilometers. This again illustrates that equidistance, as employed by
Colombia, is not an appropriate method for this delimitation. It leads
to treating two minor isolated islands in a similar fashion as a
hypothetical mainland coast which is more than 12 times the length of
Providencia and almost 7 times the length of San Andrés. And even
that hypothetical mainland coast would be much shorter than the 450
kilometers of Nicaragua’s actual Caribbean Coast.
6.128. The alignment of the islands of San Andrés and Providencia in
relation to each other is similar to the relation of Serpents’ Island to
the Ukrainian mainland coast in the case concerning Maritime
Delimitation in the Black Sea (Romania v. Ukraine). In its Judgment
the Court observed that:
“To count Serpents’ Island as a relevant part of
the coast would amount to grafting an
extraneous element onto Ukraine’s coastline;
the consequence would be a judicial
refashioning of geography, which neither the
law nor practice of maritime delimitation
authorizes”291.

291 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3
February 2009, p. 45, para 149.
208
6.129. In the case of San Andrés and Providencia there is not even a
mainland coast onto which the islands could be grafted. If
equidistance were to be used in this instance as a method of
delimitation, San Andrés and Providencia would, like Baron
Münchhausen, who pulled himself out of a swamp by his own hair,
escape being treated on their individual merits because they are
allowed to pull each other out of their status as insignificant islands.
6.130. As shown, the relevant coast of Nicaragua “her mainland coast facing
the Caribbean Sea” measures 450 kilometers, as compared to the
facing coasts of San Andrés and Providencia, which measure 13 and 8
kilometers, respectively. The ratio between the Nicaragua’s relevant
coast and that of San Andrés is 35:1. The ratio between Nicaragua’s
relevant coast and that of Providencia is more than 55:1. When the
two Colombian coasts are combined, the ratio is still more than 21:1
in Nicaragua’s favour. In view of these huge disparities in coastal
lengths, there obviously can be no equitable base for adjusting the
provisional delimitation line proposed by Nicaragua seaward beyond
the 12-nautical-mile limits of San Andrés and Providencia.
VII. Other Relevant Circumstances
6.131. The equitableness of the provisional delimitation lines proposed by
Nicaragua is confirmed by other considerations as well. In particular,
the proposed delimitation would accord both Parties equitable access
to natural resources in the area. In addition, it would protect both
Parties’ legitimate security concerns.
209
A. EQUITABLE ACCESS TO NATURAL RESOURCES
6.132. As set forth in the Memorial, the jurisprudence of the Court
recognizes that in certain situations equitable access to natural
resources will be taken into account as a relevant circumstance.
Colombia not only agrees, but argues that the putative equity of her
proposed median line is confirmed by this criterion. Colombia argues
first that there is no “particular stock of fish” near San Andrés and
Providencia that needs to be “taken into account to ensure that the
parties have equal access to such resource”,292 and second that
“since mid-nineteenth century the population
of San Andrés and Providencia have relied for
their subsistence on the fisheries, turtle
hunting, guano exploitation and other food
resources in Roncador, Quitasueño, Serrana,
Serranilla and Bajo Nuevo”293.
Colombia is wrong about the first point and the second does not
support her proposed median line.

6.133. With respect to Colombia’s argument that there are no valuable fish
stocks in the area, the truth is to the contrary. Since 1965, Nicaragua
has claimed a fishing zone both west and east of San Andrés and
Providencia, extending 200 nautical miles from her mainland coast.
Her fishermen from that coast and from the Corn Islands, have
regularly sought to fish in these waters, but have been physically
blocked by Colombia from doing so east of the 82nd meridian, at great
cost to their livelihoods. Colombia’s proposed median line, like her

292 CCM, Vol. I, p. 409, para. 9.75. 293 Ibid, p. 410, para. 9.78.
210
preferred 82nd meridian, not only would not accord the Parties’
equitable access to these fisheries, it would deprive Nicaragua of any
access to these areas whatsoever.
6.134. Colombia’s assertion that the equity of her median line is confirmed
by the alleged fact that the populations of San Andrés and Providencia
have long relied on the waters around the other incidental maritime
features in the region is flawed in at least two respects. First,
Colombia offers no evidence whatsoever to support this claim. No
references of any kind are given. In fact the evidence provided by
Colombia points to the contrary conclusion that these cays were, if
ever, very infrequently visited during the XIX century.294 Second,
even if it were true, the median line boundary Colombia advances
would not be necessary to protect these alleged interests. Colombia’s
median line lies substantially to the west of all of the features
Colombia mentions: Roncador (by 125 nautical miles), Serrana (by 95
nautical miles), Serranilla (by 125 nautical miles) and Bajo Nuevo (by
150 nautical miles). Assuming Colombia is correct that the resources
she seeks to protect are “in” the features mentioned, such vast
expanses of maritime space are not necessary to safeguard her
interests.
6.135. In fact, the 3-nautical-mile enclaves Nicaragua proposes would fully
protect these interests (assuming, of course, they could be proven with
actual evidence). Colombia would not only have sovereignty over the
features in question (and thus the resources “in” them) but she would
also have sole access to the resources within a substantial maritime

294 See CCM, Vol. II-A, pp. 136-149, Annex 27. Note of Colombian Chargé
d’Affaires in Washington protesting the activities of the United States over these
cays 20 years after the fact.
211
space around each. Granting Roncador Cay a 3-nautical-mile enclave,
for instance, would result in an award to Colombia of over 388 square
kilometers of maritime space in its immediate vicinity.
6.136. With respect to the natural resources located in the area in dispute it is
necessary to recall the special constraints Nicaragua confronts in
furnishing the Court with information on this question.
6.137. The first steps taken by Nicaragua in the exploration of the area
presently in dispute which is located east of the 82nd meridian
consisted in the grant of oil exploration concessions in the 1960s.
These concessions were contested by Colombia295 and since that
period she has with her military forces effectively stopped Nicaragua
from pursuing any further activities east of that meridian, including
the exploration of the area.
6.138. Since Nicaragua’s claim is for a delimitation of the continental shelf,
the relevant resources of the area to be taken into account in a
delimitation would be generally those of the sea-bed and subsoil of the
submarine areas in dispute. Due to Colombia’s position and her use
of force to impose the 82nd meridian as a boundary, Nicaragua has
been unable to explore the area and thus of being able to provide the
Court with a full study of the natural resources located on the
continental shelf.
6.139. The constraints imposed by Colombia have in fact impeded all
activities including the exploration and exploitation not only of the
resources of the shelf itself but also those of the superjacent waters.

295 NM, Vol. I, pp. 153-154, para. 2.204
212
Any fishing activities by Nicaraguan vessels have been forcibly
stopped by Colombia and, thus, Nicaragua is also not in a position to
give a complete account of these other resources.
B. SECURITY CONSIDERATIONS
6.140. Colombia also argues that the median line she proffers is equitable
because “the preponderance of security interests in the area is
Colombian”296. As support for this remarkable assertion, Colombia
claims that she has “been the sole Party to police the waters around
the Archipelago, to interdict illegal fishing as well as contraband in
the area and to carry out surveying operations”297.
6.141. In the first instance, Nicaragua observes that, once again, Colombia
has introduced no evidence to support her assertions. No references of
any kind are offered. Colombia’s contentions can be rejected for this
reason alone. Moreover, Nicaragua notes that “surveying operations”
have nothing to do security interests in any meaningful sense and thus
are irrelevant to the question at hand.
6.142. Even more fundamentally, Colombia seems to have forgotten that the
waters beyond the territorial sea in the exclusive economic zone are
not a zone of sovereignty. She has no right to exercise general
“police” powers or to interdict contraband unrelated to the specific
economic rights she might enjoy in the area. In addition it can be
noted that the regime of the exclusive economic zone leaves freedom
of navigation and other rights of communication between the islands

296 CCM, Vol. I, pp. 411-412, para. 9.81. 297 Ibid, p. 411, para. 9.80.
213
and the Colombian mainland unaffected. Enclaving the islands thus in
no way affects the security interests of Colombia in that respect.
6.143. With respect to her assertion that she has been the “sole Party” to
interdict illegal fishing in the area, two observations are in order.
First, as set forth in Nicaragua’s Application, much of the “illegal”
fishing Colombia has interdicted has been Nicaraguan, thereby
seriously imperiling the livelihood of Nicaragua’s coastal
population298. Second, if it is indeed true that Colombia has been the
only Party to interdict illegal fishing in the area, it is only because she
has resorted to the use of force to impermissibly exclude all
Nicaraguan vessels from much of the 200-nautical-mile fishing zone
and exclusive economic zone that Nicaragua has long claimed.
Colombia’s efforts to extract benefit from her own aggressive conduct
in this fashion cannot be sustained.
6.144. The question of security considerations is in any case more pertinent
from the point of view of the security interests of Nicaragua since
these islands and cays are located on her continental shelf and near her
mainland coast, whilst they are situated more than 300 nautical miles
from the mainland coast of Colombia. The implications of this
closeness of San Andrés and Providencia to the Nicaraguan mainland
was pointed out by the Sub-Committee of the IMO when considering
a proposal by Colombia for imposing navigation restrictions in the
area of San Andrés and Providencia. The Sub-Committee indicated

298 Application, pp. 5-6, para. 5. See also NM, Vol. II, pp. 151-179, Annexes 44-58.
214
that it was not appropriate to consider any of these proposals without
consulting with Nicaragua.299
6.145. For all these reasons, Colombia’s argument that security
considerations confirm the equity of her median line must be rejected.
6.146. In fact, the enclaving solution proposed by Nicaragua protects
Colombia’s security interests and appropriately ensures that Nicaragua
“contrôle les territoires maritimes situés en face de ses côtes et dans
leur voisinage”300. Enclaving San Andrés and Providencia within a
12-nautical-mile territorial sea would still allow Colombia to, in her
words, exercise adequate “protection of the 70,000 inhabitants living
in the Archipelago”; and, assuming they are awarded to Colombia,
granting her other, uninhabited insular possessions a 3-nautical-mile
enclave would still enable her to prevent them from being used for the
illicit trafficking of drugs as claimed in the Counter-Memorial. By the
same token, recognizing the full scope of Nicaragua’s exclusive
economic zone entitlement would better enable her to adequately
perform the far larger task of protecting her 5.1 million people living
on the Central American mainland than artificially truncating her
exclusive economic zone, as proposed by Colombia, just 50 nautical
miles from her coast.

299 See NR, Vol. II, Annex 15. Report of NAV 51 (Doc. NAV/51/19) and see p. 135,
para. 5.25 above.
300 Case concerning the Delimitation of the Maritime Boundary between Guinea and
Guinea Bissau, Decision of 14 February 1985, RIAA, UN, Vol. XIX, p. 194, para.
124. (English Translation: “control the maritime territories situated opposite its
coasts and in their vicinity) ILM, Vol. XXV, N. 2, March 1986.
215
VIII. Concluding Remarks
6.147. For all the reasons discussed in the preceding sections, Colombia’s
delimitation methodology and claims are indefensible, and should be
rejected by the Court. Colombia cannot arbitrarily constrain the area
of delimitation to the narrow strip between San Andrés /Providencia in
the east, and Nicaragua’s coastal islands in the west. Rather, the area
of any exclusive economic zone to be delimited would have to extend
to the limits of Nicaragua’s exclusive economic zone entitlement
under the 1982 Law of the Sea Convention, which would extend in a
seaward direction for 200 nautical miles from the baselines from
which the breadth of her territorial sea is measured. None of
Colombia’s insular possessions within this area is of sufficient
geographic stature to merit base points or full weight in the
construction of a provisional equidistance line, rendering the
placement and drawing of such a line inappropriate.
6.148. The so-called median line Colombia offers as an alternative in Chapter
9 of her Counter-Memorial is no alternative at all. It is inconsistent
with the prevailing geographic circumstances and the jurisprudence
established by this Court and arbitral tribunals. First, as is indicated
by the jurisprudence, under Colombia’s scenario, which ignores both
the Colombian and Nicaraguan mainland coasts, the equidistance line
does not provide an appropriate provisional delimitation line.
Secondly, Colombia’s equidistance line is drawn inappropriately using
minor coastal features as basepoints. The features in question do not
merit being considered in the construction of the provisional
delimitation line, much less being used as the very basis of the
delimitation itself. Thirdly, Colombia’s median line or any other
216
variation of the equidistance line produces results that are grossly
inequitable to Nicaragua, the relevant coast of which is more than 21
times longer than the relevant coast of Colombia’s islands.
6.149. Finally, even within the limited scenario dealt with in this chapter
which would involve only an exclusive economic zone delimitation
between the mainland coast of Nicaragua and the islands claimed by
Colombia, the conclusion is that these islands should be enclaved and
not be used as a wall to enclose the extensive coast of Nicaragua.
Thus, the result would be the same whether the situation dealt with is
the delimitation of the continental shelves of both Parties (Chapters III
and V, above) or whether it is limited to a delimitation of the
exclusive economic zone in the area arbitrarily selected by Colombia.
217
CHAPTER VII
COLOMBIA’S INVOCATION OF THE 82ND MERIDIAN AND
HER TREATIES WITH THIRD STATES
I. The 82° W Meridian Generally
7.1. The Protocol of Exchange of Ratifications of the 1928 Treaty on 5
May 1930 stated that:
“The undersigned, in virtue of the full powers
which have been granted to them and on the
instructions of their respective Governments,
hereby declare that the San Andrés and
Providencia Archipelago mentioned in the first
article of the said Treaty does not extend west
of the 82nd degree of longitude west of
Greenwich”301.
7.2. In her Counter-Memorial, Colombia does not expressly reiterate her
previous claim according to which there is “no doubt as to the
meaning of the 82° W meridian within the 1930 Protocol of Exchange
of Ratifications: a border, a dividing line of the waters in dispute, a
delimitation, a demarcation of the dividing line (límite, línea divisoria
de las aguas en disputa, delimitación, demarcación de la linea
divisoria)– in other words: a maritime boundary”302. However, while
declaring herself “mindful” of the Court’s position303, Colombia
promptly disregards it304:

301 NM, Vol. II, pp. 55-59, Annex 19. 302 CPO, p. 92, para. 2.41. 303 CCM, Vol. I, p. 364, para. 8.58. 304 After the 2007 Judgment of the Court Colombia continues to impose the 82nd
meridian. See above Intro. pp. 15-19, paras. 34-43.
218
- on the one hand, she affirms that:
“… the legal significance of the 82° W
meridian, as far as the territorial element of the
dispute is concerned, lies in the fact that it
plays a role with regard to the scope and
composition of the rest of the San Andrés
Archipelago: specifically it fixes the limit of
the Archipelago”305.
- and, on the other hand, she:
“considers that the 82°W meridian constitutes
an important factor to be taken into account in
assessing where an equitable delimitation
lies”306. This twisted formula is repeated
several times in the Counter-Memorial307.
7.3. It is necessary to reiterate that the 82nd meridian does not constitute a
border or dividing line or limit of the waters between Colombia and
Nicaragua. In the first place, the limit imposed by the Protocol is not a
border but only a line fixing a maximum limit westward of the
Archipelago as the Court clearly stated in paragraphs 115 and 120 of
the Judgment of 13 December 2007:
“The Court considers that, contrary to
Colombia’s claims, the terms of the Protocol,
in their plain and ordinary meaning, cannot be
interpreted as effecting a delimitation of the
maritime boundary between Colombia and
Nicaragua. That language is more consistent

305 CCM, Vol. I, p. 7, para. 1.12. 306 Ibid, p. 365, para. 8.58. 307 Cf. CCM, Vol. I, p. 370, para. 8.76: “The 82° W meridian limit is therefore an
element of essential importance for establishing a maritime delimitation between the
San Andrés Archipelago and Nicaragua…”; see also, Vol. I, p. 377, para. 8.93; p.
379, para. 8.94 (5); pp. 423-424, para. 10.16.
219
with the contention that the provision in the
Protocol was intended to fix the western limit
of the San Andrés Archipelago at the 82nd
meridian.”
“… 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. … 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.”308
7.4. Secondly, a border must impose a limit on both parties and it is clear
from the text of the Protocol that the limit is not imposed on
Nicaragua but only on the “Archipelago”. The limit imposed on the
Archipelago simply means that there are no parts of this
“Archipelago” located west of the 82nd meridian; but it does not set
any limit to Nicaraguan territories east of that meridian.
II. The 82° W Meridian and the Maritime Delimitation
7.5. Probably conscious of the incompatibility of her position with that of
the Court in its 2007 Judgment309, Colombia tries hard to by-pass the
latter by reintroducing a major role for the 82nd meridian without
formally describing it as the border. Contrary to her insistent position
during the Preliminary Objections phase, she now accepts that “the
Court held that the 1928 Treaty and the 1930 Protocol did not in

308 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007, pp. 34-36, paras. 115-120. 309 See above, pp. 218-219, para. 7.3.
220
themselves effect a general delimitation of the maritime boundary.
But”, she immediately adds, “as will be seen, this does not entail that
the 82° W meridian has no role to play in the delimitation”310. And
indeed she confers to the meridian a very preeminent role in the
delimitation311.
7.6. In a rather sibylline formula, Colombia asserts that:
“[i]n case the 82° W meridian is considered as
a limit between the archipelagos, it inevitably
constitutes a ‘limit’ that must be taken into
account in a delimitation of the maritime
spaces that those archipelagos generate.”312
But this neglects the fact that, as shown above313, the limit in question
is only a limit to the islands belonging to the “San Andrés
Archipelago” and not to those which belong to Nicaragua. It is
therefore not the 82nd meridian which must be “taken into account”,
but the individual islands that potentially generate those “maritime
spaces”.
7.7. In reality, Colombia goes much further than just “taking [the 82° W
meridian] into account” in the way she uses it to define the “San
Andrés Archipelago”. Under the guise of “taking it into account” (and
in a rather disorderly manner), she:
- uses it as a limit between the respective maritime areas
appertaining to each Party;

310 CCM, Vol. I, p. 8, para. 1.14. 311 See above, pp. 217-218, para. 7.2 and fn. 307. 312 CCM, Vol. I, pp. 369-370, para. 8.73. 313 See above p. 219, para. 7.4.
221
- considers that it constitutes a “special circumstance” which
should be taken into consideration for drawing the maritime
border; and
- considers that it “has an important role to play in determining
where an equitable delimitation lies ...”314.
7.8. In other words, Colombia attempts the tour de force of using the 82nd
meridian at each possible stage of the process of establishing the
maritime border between the Parties, when its only real purpose was
circumscribing the extent of the Archipelago.
A. THE MERIDIAN AS LINE OF DELIMITATION
7.9. Colombia alleges that “the 1928/1930 Treaty…expressly recognized
Colombian sovereignty over the Archipelago, which includes all
maritime features and areas to the east of the meridian 82º W”315; and
she then states further that the 82º W meridian “divided” the maritime
areas between the Parties316. This statement is doubly incorrect. In the
first place, the 1930 Protocol does not recognize Colombian
sovereignty over all maritime “features” east of the 82nd meridian. The
protocol only and very clearly sets a limit westward to all the
“features” of the Archipelago and does not even hint at a limit for
Nicaraguan rights east of that meridian. Secondly, the word “areas”
implies that, in spite of the Court’s dismissal of her claim in this
respect, Colombia persists in her fundamental mistake in considering
that the meridian is a “division line”, which allocates maritime areas,
while in reality it only concerns the islands themselves.

314 CCM, Vol. I, p. 377, para. 8.93. 315 Ibid, p. 9, para. 1.17 (emphasis added by Nicaragua). 316 Ibid, p. 373, (v); see also e.g.: p. 278, para. 5.71 (3).
222
7.10. In the same vein, it must be noted that, contrary to Colombia’s
assertion, there is absolutely no difficulty in seeing “how Nicaragua’s
recognition of Colombia’s ‘full and entire’ sovereignty over an
Archipelago that lies east of the 82° W meridian is compatible with
Nicaragua’s current attempt to argue that it possesses sovereign rights
(continental shelf and exclusive economic zone) that not only extend
east of the 82° W meridian, but also swallow up and surround all of
Colombia’s islands comprising the Archipelago”317. Once one accepts
(as must be the case) that the meridian simply establishes the western
maximum extension of the Archipelago, it follows not only that there
are Nicaraguan maritime areas east of the 82nd meridian but also
territories, islands and cays that are not part of the Archipelago. With
respect to delimitation it also follows and can –and must– be admitted
that all around the island of this Archipelago the usual rules of
delimitation apply. The respective rights of the Parties must be
established accordingly and the 82nd meridian has no more role to play
in that regard.
B. THE MERIDIAN AS PART OF THE EFFECTIVITÉS
7.11. While hardly consistent with her continued claim that the meridian has
realized a sharing of the respective maritime areas of the Parties,
Colombia in a brief but most obscure passage of her CounterMemorial,
lists “The Conduct of the Parties and the 82º W Meridian”
among the “relevant circumstances” to be taken into consideration for
the establishment of the delimitation line318. The general explanation
to this would be that, “[e]ven if the 82º W meridian is not a line of
maritime delimitation per se, the circumstances in which it was

317 CCM, Vol. I, p. 366, para. 8.62. 318 Ibid, pp. 404-405, paras. 9.60-9.64.
223
agreed, and the Parties’ mutual respect of it in practice over a
considerable period of time, represent key factors to be considered in
relation to a equidistance based boundary arrived at independently on
the basis of contemporary international law.”319
7.12. Moreover, invoking Tunisia-Libya320, Colombia points to “a total lack
of any Nicaraguan presence or claim east of the 82º W meridian for
some 40 years after the 1928/1930 Treaty was concluded”,321 which
would contrast with her own conduct in the same zone during the
same period322. These robust assertions call for three remarks.
7.13. First, it is important to distinguish the facts in the Tunisia-Libya case
from those of the present case. The line adopted by Tunisia and Libya
“was drawn by each of the two States separately, Tunisia being the
first to do so, for purposes of delimiting the eastward and westward
boundaries of petroleum concessions.”323 By contrast, in the present
case, the 82º meridian was not adopted as a line related to activities in
the continental shelf in the 1928/1930s, but as a limit to the
archipelago that was the object of the 1928 Treaty. Therefore, it
cannot be considered as a relevant circumstance in delimiting a
maritime boundary; unlike the situation in Tunisa/Libya there is no
evidence of the Parties’ mutual and “de facto respect for a line drawn
from the land frontier”324. Clearly these differences between the two

319 CCM, Vol. I, p. 404, para. 9.60. 320 See CCM, Vol. I, p. 374, para. 8.87. 321 CCM, Vol, I, p. 375, para. 8.88. 322 Ibid, pp. 371-373, paras. 8.78-8.84. 323 Continental Shelf (Tunisia/Libya Arab Jamahiriya), Judgment, I.C.J. Reports
1982, p. 84, para 118. 324 Ibid. p. 84, para. 119.
224
cases preclude Colombia from relying on a case which, by no means,
can be considered a precedent.
7.14. Second, as the Court recalled in its Judgment of 8 October 2007 in the
case concerning Territorial and Maritime Dispute Between Nicaragua
and Honduras in the Caribbean Sea:
“Evidence of a tacit legal agreement must be
compelling. The establishment of a permanent
maritime boundary is a matter of grave
importance and agreement is not easily to be
presumed. A de facto line might in certain
circumstances correspond to the existence of an
agreed legal boundary or might be more in the
nature of a provisional line or of a line for a
specific, limited purpose, such as sharing a
scarce resource. Even if there had been a
provisional line found convenient for a period
of time, this is to be distinguished from an
international boundary.”325
7.15. Third, in the present circumstances, it is obvious that no such line has
ever been recognized in practice or even contemplated. And it is
clearly not true that “Nicaragua for nearly 40 years, and Colombia
until the present time, fully respected the 82º W meridian in practice
as the limit of the exercise of their respective jurisdictions.”326:
- it was not until 1969 that Colombia began to claim sovereignty
over the waters situated east of the 82nd meridian327. Her first

325 Territorial and Maritime Dispute (Nicaragua v. Honduras), Judgment of 8
October 2007, p. 69, para. 253; see also: Maritime Delimitation in the Black Sea
(Romania v. Ukraine), Judgment of 3 February 2009, p. 59, para. 198. 326 CCM, Vol. I, p. 371, para. 8.77. 327 See NM, Vol. I, p. 153, para. 2.203.
225
claim in this respect was made on 4 June of that year328 and it
immediately met a firm opposition by Nicaragua329;
- all subsequent attempts by Colombia to establish her claimed
rights through faits accomplis, were, similarly firmly opposed
by Nicaragua330;
- Colombia’s most authoritative voices repeatedly recognized that
the respective maritime areas between the Parties were not
delimited.331
7.16. Although Colombia attempts to portray a consistent exercise of
sovereignty in the areas east of the 82nd meridian since the 1930s,
there is no evidence that Colombia ever claimed or exercised
exclusive sovereignty east of that meridian before 1969 as indicated
above. What exists since that date is evidence that the Colombian
military forces have imposed unlawful restrictions on Nicaragua’s
exercise of her own sovereignty east of the 82nd meridian.
7.17. Effectivités or State practice can have a role to play in territorial
delimitation. Thus, the Chamber, in Burkina Faso/Mali, considered
that effectivités must be taken into consideration when they do “not
co-exist with any legal title”332. However, these rules have not been
generally accepted in cases of maritime delimitation; in practice,
effectivités have not had a significant influence on maritime
delimitation. The Chamber, in Burkina Faso/Mali emphasized that
“the process by which a court determines the line of a land boundary

328 NM, Vol. II, pp. 101-105, Annex 28; see NM, Vol. I, p. 154, para. 2.204. 329 See the Nicaraguan Note verbale of 22 September 1969 (NM, Vol. II, p. 154,
Annex 29); see NM, Vol. I, pp. 154-155, para. 2.204 and pp. 157-158, para. 2.212.
330 See NM, Vol. I, pp. 157-163, paras. 2.212-2.223. 331 See ibid, pp. 155-157, paras. 2.206-2.210. 332 Frontier Dispute Judgment, I.C.J. Reports 1986, p. 587, para. 65.
226
between two States can be clearly distinguished from the process by
which it identifies the principles and rules applicable to the
delimitation of the continental shelf”333.
7.18. Exercise of sovereign activities in maritime areas cannot be taken into
account for delimitation purposes. In fact, both the Geneva
Convention on the Continental Shelf and the 1982 Law of the Sea
Convention provide that “[t]he rights of the coastal State over the
continental shelf do not depend on occupation, effective or
notional”334. The Court has endorsed the content of those conventions
and affirmed in several cases that “[t]he delimitation of sea areas has
always an international aspect; it cannot be dependent merely upon the
will of the coastal State as expressed in its municipal law”335.
7.19. In this context, Nicaragua’s supposed lack of exercise of sovereignty
east of the 82nd meridian must not be held against her. The Colombian
claim that the 82nd meridian was a line of delimitation was not only a
verbal claim but an imposition by force. The first incident highlights
this situation; it concerned State practice in relation to oil.
7.20. In 1966, Nicaragua granted several exploration concessions in her
continental shelf that covered areas east of the 82nd meridian. This
occasioned the first protest by Colombia by note dated 4 June 1969,

333 Frontier Dispute Judgment, I.C.J. Reports 1986, p. 578, para. 47. 334 Article 2 (3) of the Geneva Convention on the Continental Shelf (UNTS, Vol.
499, p. 315); and Art. 77 (3) of the UNCLOS (UNTS, Vol. 1834, p. 36). 335 Fisheries case, Judgment of 18th December 1951: I.C.J. Reports 1951, p. 132;
Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, I.C.J. Reports 1974, p.
22, para. 49; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland),
Merits, I.C.J. Reports 1974, p. 191, para. 41. See also Continental Shelf
(Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, pp. 66-67, para.
87.
227
and her first assertion that this meridian was a maritime boundary to
which Nicaragua firmly replied contradicting this assertion336. Since
then Colombia has imposed that limit by use of force or the threat of
force as can be seen in the multiple incidents of captures and
harassment of Nicaraguan vessels navigating or attempting to navigate
east of the 82nd meridian337.
C. THE ROLE OF THE MERIDIAN IN ASSESSING THE EQUITABLE
CHARACTER OF THE LINE
7.21. For good measure, Colombia stresses, in several parts of her CounterMemorial,
that the 82nd meridian would be of particular importance in
assessing the equitable character of the delimitation line338. It is
indeed extremely difficult to follow this reasoning from a legal
perspective since Colombia confuses
- the distinct, and now well defined stages of the
procedure to be followed for the delimitation of
maritime areas, as so clearly described by the Court in
its Judgment of 3 February 2009 in the case concerning
Maritime Delimitation in the Black Sea339; and
- general considerations of equity and good faith, and
even more obscure considerations equating the
meridian with the equidistance line.

336 See generally NM, Vol. I, pp. 153-154, para. 2.204 and Vol. II, pp. 101-110,
Annexes 28 and 29.
337 See NM, Vol. I, pp. 159-162, paras. 2.215-2.222 and above Intro. pp. 15-19,
paras. 34-43.
338 See above, fn. 306 and 307. 339 See e.g. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment
of 3 February 2009, pp. 37 and 39, paras. 115-122.
228
7.22. Thus, in paragraph 8.91 of her Counter-Memorial, Colombia asserts
that:
“It was Nicaragua who, in 1930, demanded and
obtained the establishment of a limit along the
82° W meridian. It would be contrary to a
delimitation carried out in accordance with
equitable principles for Nicaragua now to be
permitted to acquire rights that it had never
claimed to the east, or on ‘the wrong side’, of
the 82° W meridian limit that Nicaragua itself
demanded.”340
7.23. Here the argument seems to relate to the behaviour of Nicaragua. It
has nothing to do with the law of maritime delimitation and simply
implies that Nicaragua would be estopped (in the very general
meaning of the word) from claiming areas beyond the delimitation
line since she, herself, would have requested such a delimitation. This
begs the question. As shown above, it cannot be seriously sustained
that the 82nd meridian constitutes such a line, much less that Nicaragua
ever sought this line as a line of delimitation.
7.24. Even more disconcerting is the assertion made by Colombia in
Chapter 9 of her Counter-Memorial:
“While the two lines [the equidistance line and
the 82° W meridian] do not coincide – a fact
that is not surprising – they do lie in the same
general area between the San Andrés
Archipelago and the Nicaraguan islands. Both

340 CCM, Vol. I, p. 376, para. 8.91.
229
lines follow the same general north-south
orientation.”341
And
“The result reflects a certain balance in the
situation that is broadly consistent with the past
conduct of the Parties relating to their maritime
presence and activities in the area of concern.
While the 82º W meridian may not represent a
delimited boundary in and of itself, an
equidistance based delimitation does not depart
disproportionately from the line and thus gives
it due effect as a relevant circumstance to be
taken into account in arriving at an equitable
result.”342
7.25. Thus, it would appear that the meridian – which, as clearly established
by the Court, does not constitute “a general delimitation of the
maritime boundary between Colombia and Nicaragua”343 and only
concerns the extension of the “San Andrés Archipelago” – would
confirm the equitable character of the provisional equidistance
boundary drawn between all the islands in the region.
7.26. This is pure fantasy. As explained above, the 82nd meridian has
absolutely no role to play in the delimitation of the respective
maritime areas over which the Parties have sovereignty or sovereign
rights, and does not reflect any voluntary practice by Nicaragua. Quite
the contrary, Colombia has imposed this limit by force and with a
straight face now offers it as a parameter for judging the equity of the
result of a delimitation.

341 CCM, Vol. I, p. 404 , para. 9.61. 342 Ibid, p. 405, para. 9.64. 343 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary
Objections, Judgment of 13 December 2007, p. 36, para. 120.
230
III. The 82nd Meridian and Colombia’s Delimitation Treaties with
Third States
7.27. The Counter-Memorial submits that it “is striking that there is a
considerable body of State practice in the form of bilateral
delimitation agreements along the limits of the area to be delimited in
the present case involving all of the other riparian States in the
immediate region”344. What is really striking is the feigned surprise of
Colombia about this considerable body of State practice since
Colombia herself was involved in the conclusion of these bilateral
treaties, which form part of her policy to hem in Nicaragua’s maritime
zones by the 82º W meridian.
7.28. Also striking is how Colombia completely ignores the jurisprudence
of the Court and arbitral tribunals, which have consistently held that
such practice is not relevant for the delimitation of maritime
boundaries with another State that is not a party to these bilateral
treaties. The latest case in which a similar argument on the relevance
of regional practice was made will not have escaped the attention of
Colombia. It was made by Honduras in the case concerning
Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras). In this regard, in its
Judgment of 8 October 2007 the Court did not attach any significance
to that argument of Honduras. The only point the Court considered in
relation to this bilateral practice of third States was whether the

344 CCM, Vol. I, p. 363, para. 8.56.
231
interest of third States would be affected by the delimitation line the
Court adopted.345 The Court concluded that:
“The Court has thus considered certain
interests of third States which result from some
bilateral treaties between countries in the
region and which may be of possible relevance
to the limits to the maritime boundary drawn
between Nicaragua and Honduras. The Court
adds that its consideration of these interests is
without prejudice to any other legitimate third
party interests which may also exist in the area.
319. The Court may accordingly, without
specifying a precise endpoint, delimit the
maritime boundary and state that it extends
beyond the 82nd meridian without affecting
third-State rights.”346
7.29. The reference to the 82nd meridian in these paragraphs is concerned
with the same line which Colombia has tried to impose unilaterally on
Nicaragua as a maritime boundary. Colombia and Honduras had used
this meridian in their 1986 delimitation treaty. The Judgment of the
Court not only rejected that this bilateral treaty had any relevance for
the delimitation between Nicaragua and Honduras, but the Court also
found that this bilateral boundary extended eastward beyond the
meridian of 82˚ W.

345 Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, pp. 87-90,
paras. 312-319.
346 Ibid, p. 90, para. 319.
232
IV. Conclusions
7.30. If any pertinence for these proceedings is to be drawn from the
position of the Parties with respect to the 82nd meridian, it would be
the following:
i. Nicaragua has never accepted this meridian as a border line or
a limit to her rights over maritime areas or features lying to the
east of it.
ii. Colombia has attempted to impose this meridian as a border or
limit to Nicaragua’s sovereignty by use of force or threat of
force since 1969.
iii. In its Judgment of 13 December 2007 the Court considered
that this meridian did not constitute a line of delimitation.
iv. Nevertheless, since the Court’s Judgment Colombia has
continued physically enforcing the 82nd meridian as her
maritime border with Nicaragua.
v. The conclusion from the above facts should be that it would
discredit the sacrosanct principle of good faith to attribute to
Colombia one centimetre of maritime area west of the 82nd
meridian which has constituted her extreme claim and which
she has upheld by force since 1969. Although the principle of
estoppel is not directly applicable to this situation since
Nicaragua has never recognized or accepted the 82nd meridian
as a line of delimitation, the more important and overriding
principle of good faith is applicable. In this respect, it is
undeniable that Colombia has drawn benefit from interpreting
the 82nd meridian as a line of delimitation by exploiting the
resources in the area and prohibiting and stopping Nicaragua
233
from doing so and, hence, should be prevented from obtaining
advantage from this illicit conduct.
vi. Finally, the mainstay of any maritime delimitation is that the
result should be equitable. An equitable result can only be the
outcome of an exercise of good faith. If any limit were decided
that granted to Colombia areas beyond her most extreme
claims, which have been imposed on Nicaragua by force for
half a century, the result would certainly be disconcerting for
all Nicaraguans who expect an equitable solution.

235
DECLARATION
1. Nicaragua’s Application contained a reservation of her rights
expressed as follows:
“Whilst the principal purpose of this
Application is to obtain declarations
concerning title and the determination of
maritime boundaries, the Government of
Nicaragua reserves the right to claim
compensation for elements of unjust
enrichment consequent upon Colombian
possession of the Islands of San Andrés and
Providencia as well as the keys and maritime
spaces up to the 82 meridian, in the absence of
lawful title. The Government of Nicaragua also
reserves the right to claim compensation for
interference with fishing vessels of Nicaraguan
nationality or vessels licensed by
Nicaragua.”347
2. In her Memorial of 28 April 2003, Nicaragua described the methods
used by Colombia to block her from the use of the maritime areas east
of the 82nd meridian. A list of incidents was given and documented of
the many occasions in which Colombian naval patrols had harassed or
captured Nicaraguan vessels that ventured east of the 82nd meridian
and some vessels that navigated near but not across this meridian.348
This list of incidents was brought up to date when Nicaragua filed her
Written Statement to the Preliminary Objections on 26 January 2004.
In this Written Statement Nicaragua pointed out that since the filing of

347 Nicaraguan Application, p. 8, para. 9 348 NM, Vol. I, pp. 159-162, paras. 2.215-2.222.
236
the case the threats by Colombia made at the highest level had
increased. 349
3. Section IV of the Introduction to this Reply explains that in spite of
the Judgment of 13 December 2007 in which the Court considered that
the 82nd meridian is not a line of delimitation of the Parties’ respective
maritime spaces, Colombia continues to enforce it as a maritime
boundary against Nicaraguan vessels.
4. The Colombian authorities have publicly confirmed that they are
enforcing this meridian as a boundary, and that they will continue to
do so. The clearest expression of this is contained in the letter sent by
Colombia to the Secretary General of the United Nations on 29
February 2008 in which is stated that Colombia will “continue to take
routine measures designed to ensure that any fishing vessel that
engages in activities to the east of that line (the 82nd meridian) has
been licensed to do so by the competent Colombian authorities.”350
5. At the present stage of the proceedings it is neither necessary nor
appropriate moment in which to enter into a detailed account of the
damage caused to Nicaragua by these Colombian “routine measures”
that are in fact a blockade against Nicaragua’s access to the natural
resources located east of the 82nd meridian. What is undisputed is that
Colombia since the late 1960s has prevented Nicaragua from granting
concessions of exploration of petroleum in areas east of the 82nd
meridian and has captured and harassed all Nicaraguan vessels that

349 NWS, pp. 6-9, paras. 12-17. 350 NR, Vol. II, Annex 6.
237
attempted to go about their lawful business to the east of this
meridian.
6. The maritime areas that are being illicitly used by Colombia for her
unjust enrichment and to the detriment of Nicaragua extend over
100,000 square kilometers of maritime spaces.
7. These Colombian activities, especially with their continuing character
after the Judgment of the Court of 13 December 2007, are in manifest
violation of Nicaragua’s rights to access and use her natural resources
located east of the 82nd meridian and an unjust enrichment of
Colombia by her unilateral and unlawful possession of the areas
located east of that meridian.
8. After due consideration of the implications of these violations having
flagrantly continued after the Judgment of the Court, Nicaragua has
decided that it is necessary for the maintenance and respect of the rule
of law to request a declaration from the Court that:
- Colombia is not acting in accordance with her obligations
under international law by preventing and otherwise hindering
Nicaragua from accessing and disposing of her natural
resources to the east of the 82nd meridian;
- Colombia immediately cease all these activities which
constitute violations of Nicaragua’s rights;
- Colombia is under an obligation to make reparation for the
damage and injuries caused to Nicaragua by the breaches of
the obligations referred to above; and,
238
- The amount of this reparation shall be determined in a
subsequent phase of these proceedings.
239
SUBMISSIONS
Having regard to the legal considerations and evidence set forth in this
Reply:
I. May it please the Court to adjudge and declare that:
(1) The Republic of Nicaragua has sovereignty over all maritime
features off her Caribbean coast not proven to be part of the
“San Andrés Archipelago” and in particular the following
cays: the Cayos de Albuquerque; the Cayos del Este Sudeste;
the Cay of Roncador; North Cay, Southwest Cay and any other
cays on the bank of Serrana; East Cay, Beacon Cay and any
other cays on the bank of Serranilla; and Low Cay and any
other cays on the bank of Bajo Nuevo.
(2) If the Court were to find that there are features on the bank of
Quitasueño that qualify as islands under international law, the
Court is requested to find that sovereignty over such features
rests with Nicaragua.
(3) The appropriate form of delimitation, within the geographical
and legal framework constituted by the mainland coasts of
Nicaragua and Colombia, is a continental shelf boundary with
the following coordinates:
1. 13º 33′ 18″N 76º 30′ 53″W
2. 13º 31′ 12″N 76º 33′ 47″W;
3. 13º 08′ 33″N 77º 00′ 33″W;
4. 12º 49′ 52″N 77º 13′ 14″W;
5. 12º 30′ 36″N 77º 19′ 49″W;
240
6. 12º 11′ 00″N 77º 25′ 14″W;
7. 11º 43′ 38″N 77º 30′ 33″W;
8. 11º 38′ 40″N 77º 32′ 19″W;
9. 11º 34′ 05″N 77º 35′ 55″W
(All coordinates are referred to WGS84).
(4) The islands of San Andrés and Providencia (Santa Catalina) be
enclaved and accorded a maritime entitlement of twelve
nautical miles, this being the appropriate equitable solution
justified by the geographical and legal framework.
(5) The equitable solution for any cay, that might be found to be
Colombian, is to delimit a maritime boundary by drawing a 3-
nautical-mile enclave around them.
II. Further, the Court is requested to adjudge and declare that:
- Colombia is not acting in accordance with her obligations
under international law by stopping and otherwise hindering
Nicaragua from accessing and disposing of her natural
resources to the east of the 82nd meridian;
- Colombia immediately cease all these activities which
constitute violations of Nicaragua’s rights;
- Colombia is under an obligation to make reparation for the
damage and injuries caused to Nicaragua by the breaches of
the obligations referred to above; and,
241
- The amount of this reparation shall be determined in a
subsequent phase of these proceedings.
The Hague, 18 September 2009.
Carlos J. ARGÜELLO GÓMEZ
Agent of the Republic of Nicaragua

243
LIST OF ANNEXES
(VOLUME II, PART I)
DIPLOMATIC NOTES ........................................................................................... 1
ANNEX 1
Note N E.D. 3/20 from the Prime Minister of Antigua and Barbuda to the
United Nations Secretary-General, 19 June 1997 ............................................. 3
ANNEX 2
Note from the Permanent Mission of St. Kitts and Nevis to the United Nations
to the United Nations Secretary-General, 16 July 1997 .................................... 5
ANNEX 3
Note from the Minister of Foreign Affairs, Tourism and Information of Saint
Vincent and The Grenadines to the United Nations Secretary-General, 7
August 1997 ....................................................................................................... 7
ANNEX 4
Diplomatic Note N. MRE/DM/152/02/08. From the Minister for Foreign
Affairs of Nicaragua to the Minister for Foreign Affairs of Colombia, 12
February 2008 ................................................................................................... 9
ANNEX 5
Letter (A/62/697) from the President of Nicaragua to the United Nations
Secretary-General, 14 February 2008 ............................................................ 11
ANNEX 6
Letter (A/62/733) from the Colombian Minister for Foreign Affairs replying
the note sent to the United Nations Secretary General by the President of
Nicaragua, 25 February 2008 ......................................................................... 15
ANNEX 7
Diplomatic Note N. MRE/DM-DGAJST/ghw/476/05/08. From the Minister for
Foreign Affairs of Nicaragua to the Minister for Foreign Affairs of Colombia,
20 May 2008 .................................................................................................... 19
ANNEX 8
Diplomatic Note N. MRE/DSF/CAM N. 33703. From the Colombian ViceMinister
for Foreign Affairs to the Nicaraguan Minister for Foreign Affairs of,
9 July 2008 ...................................................................................................... 21
244
ANNEX 9
Diplomatic Note N. DSF.CCF.66624. From the Colombian Ministry of
Foreign Affairs of to the Nicaraguan Embassy to Bogotá, Colombia. 14
January 2009 ................................................................................................... 23
ANNEX 10
Diplomatic Note from the Nicaraguan Embassy to Bogotá, Colombia to the
Colombian Ministry of Foreign Affairs. 12 February 2009 ............................ 25
PRESS COMMUNIQUÉ ....................................................................................... 27
ANNEX 11
Press Communiqué from the Ministry of Foreign Affairs of Colombia, 28
January 2008 ................................................................................................... 29
SURVEYS AND REPORTS .................................................................................. 31
ANNEX 12
Bahamas, Yucatán E.C.: Honduras gulf; Mosquito Coast, islands & banks
adjacent; Jamaica; St. Domingo; Currents Positions by Capt. Richard Owen
R.N. H.M. Ships Blossom & Thunder 1830-7 .................................................. 33
ANNEX 13
West India Pilot, Vol. I. Compiled by Captain E. Barnett, R. N. London, 1861
......................................................................................................................... 37
ANNEX 14
Report by an official of the Colombian Ministry of Foreign Affairs regarding
the cays of Roncador, Quitasueño and Serrana in the Archipelago of San
Andrés, 31 August 1937 .................................................................................. 41
ANNEX 15
Report to the Maritime Safety Committee. 4 July 2005 (Doc. NAV/51/19) ..... 45
TECHNICAL DATA .............................................................................................. 47
ANNEX 16
Coordinates defining the outer limits of Nicaragua’s continental shelf .......... 49
ANNEX 17
Coordinates defining the outer limits of Colombia’s continental shelf ........... 51
ANNEX 18
Technical information related to Nicaragua’s continental shelf ..................... 53
245
LIST OF FIGURES
(VOLUME II, PART II)
FIGURE TITLE PAGE
FIGURE 1 Regional bathymetry of the South West
Caribbean
1
FIGURE 1-1 O’Neille’s description of the Islands 2
FIGURE 1-2 Islands and cays off the mainland coast of
Nicaragua
3
FIGURE 3-1 The delimitation area according to Nicaragua 4
FIGURE 3-2 Regional geomorphology of the South West
Caribbean
5
FIGURE 3-3 Regional geomorphology of the South West
Caribbean – perspective view
6
FIGURE 3-4 Bathymetric profile across the Nicaraguan Rise
and Colombian basin
7
FIGURE 3-5 Geological structure of the Caribbean 8
FIGURE 3-6 Example of one of the Nicaraguan foot of slope
picks (FOS 3)
9
FIGURE 3-7 Construction details of the outer limit of the
Nicaraguan continental shelf
10
FIGURE 3-8 Example foot of slope and sediment thickness
calculations for the Colombian continental
margin
11
FIGURE 3-9 Outer limit of Colombian continental shelf 12
FIGURE 3-10 Area of overlapping continental margins 13
FIGURE 3-11 Delimitation of the continental shelf 14
246
FIGURE 4-1 The insignificance of the “San Andrés
Archipelago”
15
FIGURE 4-2 Absence of a low-water line on Quitasueño
according to Colombian official charts
16
FIGURE 4-3 Low-water line and 12-nautical-mile territorial
sea on Serranilla according to Colombian
official chart
17
FIGURE 4-4 Low-water line and 12-nautical-mile territorial
sea on Bajo Nuevo according to Colombian
official chart
18
FIGURE 4-5 Nicaragua’s potential exclusive economic zone
entitlement
19
FIGURE 5-1 12-nautical-mile enclaves for Colombian
Islands
20
FIGURE 5-2 12 and 3-nautical-mile enclaves for Colombian
Islands
21
FIGURE 5-3 The Channel Islands case: Consequences of
full-effect for the Channel Islands
22
FIGURE 6-1 The insignificance of the “San Andrés
Archipelago”
23
FIGURE 6-2 Anglo French Arbitration: The Channel Islands
do not block the projection of the French
mainland coasts
24
FIGURE 6-3 Canada-France (St Pierre and Miquelon)
Maritime boundary established by the Award
25
FIGURE 6-4 St Pierre and Miquelon: their presence does not
block the seaward extension of the maritime
projection of Canada’s coasts
26
FIGURE 6-5 Nicaragua’s potential exclusive economic zone
entitlement
27
247
FIGURE 6-6 Colombia’s potential exclusive economic zone
entitlement
28
FIGURE 6-7 Area of overlapping potential exclusive
economic zone entitlements
29
FIGURE 6-8 The area of overlapping entitlements v.
Colombia’s claimed relevant area
30
FIGURE 6-9 Delimitation of the exclusive economic zone:
12-nautical-mile enclaves
31
FIGURE 6-10 Delimitation of the exclusive economic zone:
12 and 3-nautical-mile enclaves
32
FIGURE 6-11 Potential result of applying the St Pierre and
Miquelon methodology to the Colombian
islands
33
FIGURE 6-12 The Dubai-Sharjah Award 34
FIGURE 6-13 The India-Maldives Agreement 35
FIGURE 6-14 The Australia-France (New Caledonia)
Agreement
36
FIGURE 6-15 The India-Thailand Agreement 37