INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org
2012/5 Summary
19 November 2012
Territorial Dispute and Maritime Delimitation (Nicaragua v. Colombia)
Summary of the Judgment of 19 November 2012
Chronology of the procedure (paras. 1-17)
The Court recalls that, on 6 December 2001, the Republic of Nicaragua (hereinafter
“Nicaragua”) filed in the Registry of the Courtan Application instituting proceedings against the
Republic of Colombia (hereinafter “Colombia”) in respect of a dispute “concerning title to territory
and maritime delimitation” in the western Caribbean. The Court further recalls that on
13 December 2007 it rendered a Judgment on preliminary objections to the jurisdiction of the Court
raised by Colombia, in which it concluded that it had jurisdiction, under Article XXXI of the Pact
of Bogotá, to adjudicate upon the dispute concer ning sovereignty over the maritime features
claimed by the Parties, other than the islands of San Andrés, Providencia and Santa Catalina , and
upon the dispute concerning the maritime delimitation between the Parties.
I. GEOGRAPHY (paras. 18-24)
The area where the maritime features in dis pute (Alburquerque Cays, East-Southeast Cays,
Roncador, Serrana, Quitasueño, Serranilla and Ba joNuevo) are located and within which the
delimitation sought is to be carried out lies in the Caribbean Sea (see sketch-map No.1:
Geographical context).
II. OVEREIGNTY (paras. 25-103)
1. Whether the maritime features in dispute are capable of appropriation
Before addressing the question of soverei gnty, the Court must determine whether the
maritime features in dispute are capable of appropriation. It is well established in international law
that islands, however small, are capable of appropriation. By contrast, low-tide elevations (features
which are above water at low tide but submerged at high tide) cannot be appropriated, although a
1
In its 2007 Judgment on preliminary ctions, the Court hethat it had no jurisdiction with regard to
Nicaragua’s claim to sovereignty over the islands of San Andrés, Providencia and Santa Catalina, because the question of
sovereignty over these three islands had been determined by the Treaty concerning Territorial Questions at Issue between
Colombia and Nicaragua, signed at Managua on 24 March 1928, by which Nicaragua recognized Colombian sovereignty
over these islands. - 2 -
coastal State has sovereignty over low-tide elevations which are situated within its territorial sea,
and these low-tide elevations may be taken into account for the purpose of measuring the breadth
of the territorial sea.
The Parties agree that Alburquerque Cays, East-Southeast Cays, Roncador, Serrana,
Serranilla and Bajo Nuevo remain above water at high tide and thus, as islands, they are capable of
appropriation. They disagree, however, as to wh ether any of the features on Quitasueño qualify as
islands. Taking into account the sci entific evidence in the case file, in particular, an Expert Report
on Quitasueño relied on by Colombia, prepared by Dr. Robert Smith, the Court concludes that the
feature referred to in the Smith Report as QS 32 is above water at high tide and is thus capable of
appropriation. With regard to the other maritime features at Quitasueño, the Court considers that
the evidence advanced by Colombia cannot be rega rded as sufficient to estab lish that any of them
constitutes an island, as defined in international law; it finds that they are low-tide elevations.
2. Sovereignty over the maritime features in dispute
In addressing the question of sovereignty over the maritime features in dispute, the Court
first considers the 1928 Treaty. The Court notes that under the terms of the 1928 Treaty, Colombia
has sovereignty over “San Andrés, Providencia and Santa Catalina and over the other islands, islets
and reefs forming part of the San Andrés Archipelago”. Therefore, in order to address the question
of sovereignty over the maritime features in di spute, the Court needs first to ascertain what
constitutes the San Andrés Archipelago. The Court observes that Article I of the 1928 Treaty does
not specify the composition of that Archipelago. As to the 1930Protocol of Exchange of
Ratifications of the 1928Treaty, it only fixes the western limit of the SanAndrés Archipelago at
the 82nd meridian and sheds no light on the scope of the Archipelago to the east of that meridian.
The Court further observes that the historical ma terial adduced by the Parties to support their
respective arguments does not shed light on the co mposition of the SanAndrés Archipelago. In
particular, the historical records do not specifically indicate which features were considered to form
part of that Archipelago. The Court finds that neither the 1928 Treaty nor the historical records is
conclusive as to the composition of that Archipelago.
In order to resolve the dispute before it, the Court must therefore examine arguments and
evidence submitted by the Parties in support of their respective claims to sovereignty, which are not
based on the composition of the Archipelago under the 1928 Treaty.
The Court thus turns to the claims of sove reignty asserted by both Parties on the basis of
uti possidetis juris (a principle according to which, up on independence, new States inherit
territories and boundaries of former colonial provi nces). The Court concludes that, in the present
case, the principle of uti possidetis juris affords inadequate assistan ce in determining sovereignty
over the maritime features in dispute between Nicaragua and Colombia because nothing in the
historical record clearly indicates whether these feat ures were attributed to the colonial provinces
of Nicaragua or of Colombia prior to or upon independence from Spain.
The Court next considers whether sovereignty can be established on the basis of effectivités
(State acts manifesting a display of authority on a given territory). The Court notes that it is
Colombia’s submission that effectivités confirm its prior title to the maritime features in dispute.
The Court considers the different categories of effectivités presented by Colombia, namely: public
administration and legislation, regulation of ec onomic activities, public works, law enforcement
measures, naval visits and search and rescue operati ons and consular representation. On the basis
of the evidence on the case file, the Court finds th at for many decades Colombia continuously and
consistently acted à titre de souverain in respect of the maritime feat ures in dispute. This exercise
of sovereign authority was public and there is no evidence that it met with any protest from
Nicaragua prior to 1969, when the dispute crystallized. Moreover, the evidence of Colombia’s acts
of administration with respect to the islands is in contrast to the absence of any evidence of acts - 3 -
àtitre de souverain on the part of Nicaragua. The Court concludes that the facts provide very
strong support for Colombia’s claim of sovereignty over the maritime features in dispute.
The Court also notes that, while not being evidence of sovereignty, Nicaragua’s conduct with
regard to the maritime features in dispute, the practice of third States and maps afford some support
to Colombia’s claim.
The Court concludes that Colombia, and not Nicaragua, has sovereignty over the islands at
Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla.
III. ADMISSIBILITY OF NICARAGUA ’S CLAIM FOR DELIMITATION OF A CONTINENTAL
SHELF EXTENDING BEYOND 200 NAUTICAL MILES (paras. 104-112)
The Court observes that, from a formal point of view, the claim made in Nicaragua’s final
submission I(3) ⎯ requesting the Court to effect a con tinental shelf boundary dividing by equal
parts the overlapping entitlements to a continental shelf of both Parties (see sketch-map No.2:
Delimitation claimed by Nicaragua) ⎯ is a new claim in relation to the claims presented in the
Application and the Memorial, in which the Court was requested to determine the “single maritime
boundary” between the continental shelf area s and exclusive economic zones appertaining
respectively to Nicaragua and Colombia in the fo rm of a median line between the mainland coasts
of the two States. The Court is not however convin ced by Colombia’s contentions that this revised
claim transforms the subject-matter of the dis pute brought before the Court. The fact that
Nicaragua’s claim to an extended continental shel f is a new claim does not, in itself, render the
claim inadmissible. In the Court’s view, the claim to an extended continental shelf falls within the
dispute between the Parties relating to maritime delimitation and cannot be said to transform the
subject-matter of that dispute. Moreover, it arises directly out of that dispute. The Court concludes
that the claim contained in final submission I (3) by Nicaragua is admissible.
IV. CONSIDERATION OF N ICARAGUA ’S CLAIM FOR DELIMITATION OF A CONTINENTAL
SHELF EXTENDING BEYOND 200 NAUTICAL MILES (paras. 113-131)
The Court turns to the question whether it is in a position to delimit a maritime boundary
between an extended continental shelf of Nicaragua and Colombia’s continental shelf as requested
by Nicaragua in its final submission I (3). The Court notes that Colombia is not a State party to the
United Nations Convention on the Law of the S ea (UNCLOS) and that, therefore, the law
applicable in the case is customary international law. The Court considers that the definition of the
continental shelf set out in Article76, para graph1, of UNCLOS forms part of customary
international law. At this stage, in view of the fact that the Court’s task is limited to the
examination of whether it is in a position to carry out a continental shelf delimitation as requested
by Nicaragua, it does not need to decide whethe r other provisions of Article 76 of UNCLOS form
part of customary international law.
The Court further observes that in the case concerning Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), it stated that “any
claim of continental shelf rights beyond 200miles [by a State party to UNCLOS] must be in
accordance with Article76 of UNCLOS and reviewed by the Commission on the Limits of the
Continental Shelf established thereunder”. Gi ven the object and purpose of UNCLOS, as
stipulated in its Preamble, the fact that Colombia is not a party thereto does not relieve Nicaragua
of its obligations under Article 76. The Court notes that Nicaragua submitted to the Commission
only “Preliminary Information” which, by its own admission, falls short of meeting the
requirements for the Commission to be able to make a recommendation relating to the
establishment of the outer limits of the continental shelf. - 4 -
As the Court was not presented with any furt her information, it finds that, in the present
proceedings, Nicaragua has not established that it h as a continental margin that extends far enough
to overlap with Colombia’s 200-nautical-mile entitle ment to the continental shelf, measured from
Colombia’s mainland coast. The Court is ther efore not in a position to delimit the maritime
boundary as requested by Nicaragua. The Court conc ludes that Nicaragua’s claim contained in its
final submission I (3) cannot be upheld.
V. M ARITIME BOUNDARY (paras. 132-247)
1. The task now before the Court
In light of the decision it has taken regardin g Nicaragua’s proposed maritime delimitation as
set out in its final submission I (3), the Court must consider what maritime delimitation should be
effected. The Court observes that Colombia, for its part, has requested that the delimitation of the
exclusive economic zone and the continental shelf between Nicaragua and Colombia be effected by
a single maritime boundary, constructed as a median line between Nicaraguan fringing islands and
the islands of the San Andrés Archipelago (see sketch-mapNo. 3: Delimitation claimed by
Colombia).
The Court notes that there is an overlap be tween Nicaragua’s entitlement to a continental
shelf and exclusive economic zone extending to 200nautical miles from its mainland coast and
adjacent islands and Colombia’s entitlement to a continental shelf and exclusive economic zone
derived from the islands over which the Court has held that Colombia has sovereignty. Thus,
notwithstanding its decision regarding Nicaragua’s final submission I(3), the Court is still called
upon to effect a delimitation between the overl apping maritime entitlements of Colombia and
Nicaragua within 200 nautical miles of the Nicaraguan coast.
2. Applicable law
As the Court has already noted, the law a pplicable to this delimitation is customary
international law. The Court considers that th e principles of maritime delimitation enshrined in
Articles74 and 83 and the legal régime of islands set out in UNCLOS Article121 reflect
customary international law.
3. Relevant coasts
The Court begins by determining what the relevant coasts of the Parties are, namely, those
coasts the projections of which overlap. After briefly setting out the positions of the Parties
regarding their respective coasts ( see sketch-map No. 4: The relevant coasts and the relevant area
according to Nicaragua, and sketch-map No. 5: The relevant coasts and the relevant area according
to Colombia), the Court proceeds to make its own determination.
For Nicaragua, the Court finds that the relevant coast is its whole coast with the exception of
the short stretch of coast near Punta de Perlas, which faces due south and thus does not project into
the area of overlapping potential entitlements. The Court also considers that Nicaragua’s
entitlement to a 200-nautical-mile continental sh elf and exclusive economic zone has to be
measured from the islands fringing the Nicaraguan coast. The east-facing coasts of the Nicaraguan
islands are parallel to the mainla nd and do not, therefore, add to th e length of the relevant coast,
although they contribute to the baselines from which Nicaragua’s entitlement is measured.
For Colombia, in view of the fact that Nicaragua’s claim to a continental shelf on the basis of
natural prolongation has not been upheld, the Cour t is concerned in the present proceedings only
with those Colombian entitlements which overlap with the continental shelf and exclusive - 5 -
economic zone entitlements within 200 nautical miles of the Nicaraguan coast. Since the mainland
coast of Colombia does not generate any entitleme nt in that area, it follows that it cannot be
regarded as part of the relevant coast for present purposes. The relevant Colombian coast is thus
confined to the coasts of the islands under Colombian sovereignty facing the Nicaraguan mainland.
Since the area of overlapping potential entitlement s extends well to the east of the Colombian
islands, the Court considers that it is the entire coastline of these islands, not merely the west-facing
coasts, which has to be taken into account. Th e most important islands are obviously San Andrés,
Providencia and Santa Catalina. The Court also considers that the coasts of Alburquerque Cays,
East-Southeast Cays, Roncador and Serrana must be considered part of the relevant coast. The
Court has, however, disregarded Quitasueño, Serranilla and Bajo Nuevo for the purposes of
determining Colombia’s relevant coast.
The lengths of the relevant coasts are therefore 531 km (Nicaragua) and 65 km (Colombia), a
ratio of approximately 1:8.2 in favour of Nicaragua (see sketch-map No. 6: The relevant coasts as
identified by the Court).
4. Relevant maritime area
The Court then considers the extent of the relevant maritime area in which the potential
entitlements of the Parties overlap. The Court begi ns by setting out the positions of the Parties
regarding the relevant maritime area (see sketch -maps Nos.4 and 5) before making its own
determination.
The Court recalls that the legal concept of th e “relevant area” has to be taken into account as
part of the methodology of maritime delimitation. Depending on the configuration of the relevant
coasts in the general geographical context, the relevant area may include certain maritime spaces
and exclude others which are not germane to the case in hand. In addition, the relevant area is
pertinent when the Court comes to verify wh ether the line which it has drawn produces a result
which is disproportionate. However, the Court emph asizes that the calculation of the relevant area
does not purport to be precise but is only approxim ate and that the object of delimitation is to
achieve a delimitation that is equitable, not an equal apportionment of maritime areas.
The relevant area comprises that part of the maritime space in which the potential
entitlements of the parties overlap. Accordingly, the relevant area extends from the Nicaraguan
coast to a line in the east 200nautical mil es from the baselines from which the breadth of
Nicaragua’s territorial sea is measured. Since Nicaragua has not yet notified the Secretary-General
of the location of those baselines under Article 16, paragraph 2, of UNCLOS, the eastern limit of
the relevant area can be determined only on an approximate basis.
In both the north and the south, the interests of third States become involved. In the north,
there is a boundary between Nicaragua and Honduras , established by the Court in its Judgment of
8October2007, and a maritime boundary between Colombia and Jamaica established in 1993
through a bilateral Agreement. There is also a Colombia-Jamaica “Joint Regime Area” (an area in
which Colombia and Jamaica have agreed upon shared development, rather than delimitation). In
the south, there is a boundary between Colombia and Panama established pursuant to a bilateral
Agreement which was signed in 1976 and entered into force in1977. There is also a boundary
between Colombia and Costa Rica established in 1977 by means of a bilateral Agreement, which
has not yet been ratified.
The Court notes that, while the agreements between Colombia, on the one hand, and Costa
Rica, Jamaica and Panama, on the other, concern th e legal relations between the parties to each of
those agreements, they are res inter alios acta so far as Nicaragua is concerned. Accordingly, none
of those agreements can affect the rights and obligations of Nicaragua vis-à-vis Costa Rica,
Jamaica or Panama; nor can they impose obligations, or confer rights, upon Costa Rica, Jamaica or - 6 -
Panama vis-à-vis Nicaragua. It follows that, when it effects the delimitation between Colombia
and Nicaragua, the Court is not purporting to define or to affect the rights and obligations which
might exist as between Nicaragua and any of these three States. The position of Honduras is
somewhat different. The boundary between Honduras and Nicaragua was established by the
Court’s 2007 Judgment, although the endpoint of that boundary was not determined. Nicaragua
can have no rights to the north of that line and Honduras can have no rights to the south. It is in the
final phase of delimitation, however, not in the pr eliminary phase of identifying the relevant area,
that the Court is required to take account of the right s of third parties. Nevertheless, if the exercise
of identifying, however approximately, the relevant area is to be a useful one, then some awareness
of the actual and potential claims of third parties is necessary. In the present case, there is a large
measure of agreement between the Parties as to what this task must entail. Both Nicaragua and
Colombia have accepted that the area of their overlapping entitlements does not extend beyond the
boundaries already established between either of them and any third State.
The Court recalls that the relevant area cannot extend beyond the area in which the
entitlements of both Parties overlap. Accordingly, if either Party has no entitlement in a particular
area, whether because of an agreement it has conc luded with a third State or because that area lies
beyond a judicially determined boundary between that Party and a third State, that area cannot be
treated as part of the relevant area for present purposes. Since Colombia has no potential
entitlements to the south and east of the bounda ries which it has agreed with Costa Rica and
Panama, the relevant area cannot extend beyond those boundaries. In addition, although the
Colombia-Jamaica “Joint Regime Area” is an ar ea in which Colombia and Jamaica have agreed
upon shared development, rather than delimitation, the Court considers that it has to be treated as
falling outside the relevant area. The Court notes that more than half of the “Joint Regime Area”
(as well as the island of Bajo Nuevo and the wate rs within a 12-nautical-mile radius thereof) is
located more than 200nautical miles from Nicara gua and thus could not constitute part of the
relevant area in any event. It also recalls th at neither Colombia, nor (at least in most of its
pleadings) Nicaragua, contended that it should be included in the relevant area. Although the
island of Serranilla and the waters within a 12-nautical-mile radius of the island are excluded from
the “Joint Regime Area”, the Court considers that they also fall outside the relevant area for the
purposes of the present case, in view of potential Jamaican entitlements and the fact that neither
Party contended otherwise.
The Court therefore concludes that the boundary of the relevant area in the north follows the
maritime boundary between Nicaragua and Hondur as, laid down in the Court’s Judgment of
8 October 2007, until it reaches latitude 16 degrees north. It then continues due east until it reaches
the boundary of the Colombia-Jamaica “Joint Regi me Area”. From that point, it follows the
boundary of that Area, skirting a line 12 nautical miles from Serranilla, until it intersects with the
line 200nautical miles from Nicaragua. In the sout h, the boundary of the relevant area begins in
the east at the point where the line 200 nautical miles from Nicaragua intersects with the boundary
line agreed between Colombia and Panama. It th en follows the Colombia-Panama line to the west
until it reaches the line agreed between Colombia an d Costa Rica. It follows that line westwards
and then northwards, until it intersects with a hypothetical equidistance line between the Costa
Rican and Nicaraguan coasts. (See sketch-map No. 7: The relevant maritime area as identified by
the Court.)
The relevant area thus drawn has a size of approximately 209,280 sq km.
5. Entitlements generated by maritime features
The Parties agree that San Andrés, Providencia and Santa Catalina are entitled to a territorial
sea, exclusive economic zone and continental shelf. In principle, that entitlement is capable of
extending up to 200 nautical miles in each direc tion. The Parties differ regarding the entitlements - 7 -
which may be generated by Alburquerque Ca ys, East-Southeast Cays, Roncador, Serrana,
Serranilla and Bajo Nuevo.
The Court begins by recalling that Serranilla and Bajo Nuevo fall outside the relevant area as
defined in the preceding section of the Judgment and that it is accordingly not called upon in the
present proceedings to determine the scope of th eir maritime entitlements. With regard to
Alburquerque Cays, East-Southeast Cays, Ron cador and Serrana, the Court observes that
international law today sets the breadth of the terr itorial sea which the coastal State has the right to
establish at 12nautical miles. These features ar e therefore each entitled to a territorial sea of
12nauticalmiles, irrespective of whether they fall within the exception stated in Article121,
paragraph 3, of UNCLOS. The Court does not deem it necessary to determine the precise status of
the smaller islands, since any entitlement to mariti me spaces which they might generate within the
relevant area (outside the territorial sea) would entirely overlap with the entitlement to a continental
shelf and exclusive economic zone generated by the islands of Sa n Andrés, Providencia and Santa
Catalina.
The Court finds that Colombia is entitled to a territorial sea of 12nautical miles around
QS 32 at Quitasueño. Moreover, in measuring that territorial sea, Colombia is entitled to use those
low-tide elevations within 12 nautical miles of QS 32 for the purpose of measuring the breadth of
its territorial sea. The Court observes that it has not been suggested by either Party that QS 32 is
anything other than a rock which is incapable of sustaining human habitation or economic life of its
own under Article121, paragraph3, of UNCLOS, so this featur e generates no entitlement to a
continental shelf or exclusive economic zone.
6. Method of delimitation
To effect the delimitation, the Court follows the three-stage methodology employed in its
case law. In the first stage, the Court establish es a provisional delimitation line between territories
(including the island territories) of the Parties.The line is constructed us ing the most appropriate
base points on the coasts of the Par ties. In the second stage, the Court considers whether there are
any relevant circumstances which may call for an adjustment or shifting of the provisional
equidistance/median line so as to achieve an equitable result. In the third and final stage, the Court
conducts a disproportionality test in which it assesses whether the effect of the line, as adjusted or
shifted, is that the Parties’ respective shares ofthe relevant area are markedly disproportionate to
their respective relevant coasts.
7. Determination of base points and construction of the provisional median line
For the Nicaraguan coast, the Court uses base points located on Edinburgh Reef, Muerto
Cay, Miskitos Cays, Ned Thomas Cay, Roca Tyra, Little Corn Island and Great Corn Island.
So far as the Colombian coast is concerned, the Court considers that Quitasueño should not
contribute to the construction of the provisional me dian line. The part of Quitasueño which is
undoubtedly above water at high tide is a minuscule feature, barely 1sqm in dimension. When
placing base points on very small maritime features would distort the relevant geography, it is
appropriate to disregard them in the construction of a provisional median line. In the Court’s view,
neither should a base point be placed on Serrana or on Low Cay. The base points on the
Colombian side will, therefore, be located on Sa nta Catalina, Providencia and San Andrés islands
and on Alburquerque Cays.
The provisional median line constructed from these two sets of base points is, therefore,
controlled in the north by the Nicaraguan base points on Edinburgh Reef, Muerto Cay and Miskitos
Cays and Colombian base points on Santa Catalina and Providencia, in the centre by base points on - 8 -
the Nicaraguan islands of Ned Thomas Cay a nd Roca Tyra and the Colombian islands of
Providencia and San Andrés, and in the south by Nicaraguan base points on Little Corn Island and
Great Corn Island and Colombian base points on San Andrés and Albur querque Cays. (See
sketch-map No. 8: Construction of the provisional median line.)
8. Relevant circumstances
The Court notes that the Parties invoked several different circumstances which they found
relevant to the achievement of an equitable solution, which the Court now considers in turn.
A. Disparity in the lengths of the relevant coasts
The Court begins by observing that a substan tial difference in the lengths of the parties’
respective coastlines may be a factor to be taken into consideration in order to adjust or shift the
provisional delimitation line. In the present case, the disparity between the relevant Colombian
coast and that of Nicaragua is approximately 1:8. 2. This is undoubtedly a substantial disparity and
the Court considers that it requires an adjustment or shifting of the provisional line, especially
given the overlapping maritime areas to the east of the Colombian islands.
B. Overall geographical context
The Court does not believe that any weight should be given to Nicaragua’s contention that
the Colombian islands are located on “Nicaragua’s continental shelf”. It has repeatedly made clear
that geological and geomorphological considera tions are not relevant to the delimitation of
overlapping entitlements within 200 nautical miles of the coasts of States.
The Court agrees, however, that the achievement of an equitable solution requires that, so far
as possible, the line of delimitation should allow the coasts of the Parties to produce their effects in
terms of maritime entitlements in a reasonable and mutually balanced way. The effect of the
provisional median line is to cut Nicaragua off from some three quarters of the area into which its
coast projects. The Court therefore concludes that the cut-off effect is a relevant consideration
which requires adjustment or shifting of the pr ovisional median line in order to produce an
equitable result.
C. Conduct of the Parties
The Court does not consider that the conduct of the Parties in the present case is so
exceptional as to amount to a relevant circumstance which itself requires it to adjust or shift the
provisional median line.
D. Security and law enforcement considerations
The Court states that it will bear in mind any legitimate security concerns in determining
what adjustment to make to the provisional median line or in what way that line should be shifted.
E. Equitable access to natural resources
The Court considers that the present case do es not present issues of access to natural
resources so exceptional as to warrant it treating them as a relevant consideration. - 9 -
F. Delimitations already effected in the area
The Court accepts that Panama’s agreemen t with Colombia amounts to recognition by
Panama of Colombian claims to the area to the north and west of the boundary line laid down in
that agreement. Similarly the unratified treaty between Colombia and Costa Rica entails at least
potential recognition by Costa Rica of Colombian claims to the area to the north and east of the
boundary line which it lays down, while the Colo mbia-Jamaica agreement entails recognition by
Jamaica of Colombian claims to the area to the south-west of the boundary of the
Colombia-Jamaica “Joint Regime Area”. The C ourt cannot, however, agree with Colombia that
this recognition amounts to a relevant circumstance which the Court must take into account in
effecting a maritime delimitation between Colombia and Nicaragua. It is a fundamental principle
of international law that a treaty between two Stat es cannot, by itself, affect the rights of a third
State. In accordance with that principle, the treaties which Colombia has concluded with Jamaica
and Panama and the treaty which it has signed with Costa Rica cannot confer upon Colombia rights
against Nicaragua and, in particular, cannot entitle it, vis-à-vis Nicaragua, to a greater share of the
area in which its maritime entitlements overlap w ith those of Nicaragua than it would otherwise
receive.
The Court further observes that, as Article59 of the Statute of the Court makes clear, it is
axiomatic that a judgment of the Court is not binding on any State other than the parties to the case.
Moreover, the Court has always taken care not to draw a boundary line which extends into areas
where the rights of third States may be affected . The Judgment by which the Court delimits the
boundary addresses only Nicaragua’s rights as against Colombia and vice versa and is, therefore,
without prejudice to any claim of a third State or any claim which either party may have against a
third State.
9. Course of the maritime boundary
Having thus identified relevant circumstan ces which mean that a maritime boundary
following the course of the provisional median line would not produce an equitable result, the
Court proceeds by way of shifting the provisional medi an line. In this context, the Court draws a
distinction between that part of the relevant ar ea which lies between the Nicaraguan mainland and
the western coasts of Alburquerque Cays, San A ndrés, Providencia and Santa Catalina, where the
relationship is one of opposite coasts, and the part which lies to the east of those islands, where the
relationship is more complex. In the first, we stern, part of the relevant area, the relevant
circumstances call for the provisional median line to be shifted eastwards. The disparity in coastal
lengths is so marked as to justify a significant shift. The line cannot, however, be shifted so far that
it cuts across the 12-nautical-mile territorial sea around any of the Colombian islands.
The Court notes that there are various techni ques which allow for relevant circumstances to
be taken into consideration in order to reach an equitable solution. In the present case, the Court
proceeds by giving a weighting of one to each of the Colombian base points and a weighting of
three to each of the Nicaraguan base points. The Court notes that, while all of the Colombian base
points contribute to the construction of this line, only the Nicaraguan base points on Miskitos Cays,
Ned Thomas Cay and Little Corn Island control the we ighted line. As a result of the fact that the
line is constructed using a 3:1ratio between Nica raguan and Colombian base points, the effect of
the other Nicaraguan base points is superseded by those base points. The line ends at the last point
that can be constructed using three base points. Th e weighted line, constructed on this basis, has a
curved shape with a large number of turning point s (see sketch-map No.9: Construction of the
weighted line). Mindful that such a configurati on of the line may create difficulties in its practical
application, the Court proceeds to a further adju stment by reducing the number of turning points
and connecting them by geodetic lines. This pr oduces a simplified weighted line (see sketch-map
No. 10: The simplified weighted line). The line thus constructed forms the boundary between the
maritime entitlements of the two States between points 1 and 5. - 10 -
The Court considers, however, that to extend that line into the parts of the relevant area north
of point 1 or south of point 5 would not lead to an equitable result. While the simplified weighted
line represents a shifting of the provisional median line which goes some way towards reflecting
the disparity in coastal lengths, it would, if extended beyond points1 and5, still leave Colombia
with a significantly larger share of the rele vant area than that accorded to Nicaragua,
notwithstanding the fact that Nicaragua’s relevant coast is more than eight times the length of
Colombia’s relevant coast. It would thus give in sufficient weight to the first relevant circumstance
which the Court has identified. Moreover, by cutting off Nicaragua from the areas east of the
principal Colombian islands into which the Nicar aguan coast projects, such a boundary would fail
to take into account the second relevant circumstance, namely, the overall geographical context.
The Court must take proper account both of the disparity in coastal length and the need to
avoid cutting either State off from the maritime spaces into which its coasts project. In the view of
the Court an equitable result which gives proper weight to those relevant considerations is achieved
by continuing the boundary line out to the line 200nautical miles from the Nicaraguan baselines
along lines of latitude.
With this in mind, the Court plots the bounda ry line as follows (see sketch-map No.11:
Course of the maritime boundary).
First, from the extreme northern point of the simplified weighted line (point1), which is
located on the parallel passing through the northernm ost point on the 12-nautical-mile envelope of
arcs around Roncador, the line of delimitation will follow the parallel of latitude until it reaches the
200–nautical–mile limit from the baselines from whic h the territorial sea of Nicaragua is measured
(endpointA). As the Court has explained, sin ce Nicaragua has yet to notify the baselines from
which its territorial sea is measured, the precise lo cation of endpointA cannot be determined and
the location depicted on sketch-map No. 11 is therefore approximate.
Secondly, from the extreme southern point of the adjusted line (point5), the line of
delimitation will run in a south-east direction until it intersects with the 12–nautical–mile envelope
of arcs around South Cay of Alburquerque Cays (point6). It then continues along that
12-nautical-mile envelope of arcs around South Cay of Alburquerque Cays until it reaches the point
(point 7) where that envelope of arcs intersects with the parallel passing through the southernmost
point on the 12-nautical-mile envelope of ar cs around East-Southeast Cays. The boundary line
then follows that parallel until it reaches the southernmost point of the 12-nautical-mile envelope of
arcs around East-Southeast Cays (point 8) and conti nues along that envelope of arcs until its most
eastward point (point 9). From that point the b oundary line follows the pa rallel of latitude until it
reaches the 200–nautical–mile limit from the baselin es from which the territorial sea of Nicaragua
is measured (endpoint B, the approximate location of which is shown on sketch-map No. 11).
That leaves Quitasueño and Serrana, both of which the Court has held fall on the Nicaraguan
side of the boundary line described above. In the Court’s view, to take the adjusted line described
in the preceding paragraphs further north, so as to encompass these islands and the surrounding
waters, would allow small, isolated features, whic h are located at a considerable distance from the
larger Colombian islands, to have a disproportionate effect upon the boundary. The Court therefore
considers that the use of enclaves achieves the most equitable solution in this part of the relevant
area.
Quitasueño and Serrana are each entitled to a te rritorial sea which, for the reasons already
given by the Court, cannot be less than 12nauti cal miles in breadth. Since Quitasueño is a rock
incapable of sustaining human habitation or an eco nomic life of its own and thus falls within the
rule stated in Article121, paragraph3, of UNC LOS, it is not entitled to a continental shelf or
exclusive economic zone. Accordingly, the bounda ry between the continental shelf and exclusive
economic zone of Nicaragua and the Colombia n territorial sea around Quitasueño will follow a - 11 -
12-nautical-mile envelope of arcs measured from QS32 and from the low-tide elevations located
within 12 nautical miles from QS 32.
In the case of Serrana, the Court recalls that it has already concluded that it is unnecessary to
decide whether or not it falls within the rule stat ed in Article121, paragraph3, of UNCLOS. Its
small size, remoteness and other characteristics m ean that, in any event, the achievement of an
equitable result requires that the boundary line foll ow the outer limit of the territorial sea around
the island. The boundary will therefore follow a 12-nautical-mile envelope of arcs measured from
Serrana Cay and other cays in its vicinity.
10. The disproportionality test
In carrying out the disproportionality test, the Court notes that it is not applying a principle
of strict proportionality. Maritime delimitation is not designed to achieve even an approximate
correlation between the ratio of the lengths of the Parties’ relevant coasts and the ratio of their
respective shares of the relevant area. The Court’s task is to check for a significant
disproportionality so gross as to “taint” the result and render it inequitable. In the present case, the
boundary line has the effect of dividing the rele vant area between the Parties in a ratio of
approximately 1:3.44 in Nicaragua ’s favour, while the ratio of re levant coasts is approximately
1:8.2. The question, therefore, is whether, in the circumstances of the present case, this
disproportion is so great as to render the result inequitable. The Court concludes that, taking
account of all the circumstances of the presen t case, the result achieved by the maritime
delimitation does not entail such a disproportionality as to create an inequitable result.
VI. N ICARAGUA ’S REQUEST FOR A DECLARATION (paras. 248-250)
In addition to its claims regarding a maritim e boundary, in its final submissions, Nicaragua
requested that the Court 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”.
The Court observes that Nicaragua’s request for this declaration is made in the context of
proceedings regarding a maritime boundary which ha d not been settled prior to the decision of the
Court. The consequence of the Court’s Judgment is that the maritime boundary between Nicaragua
and Colombia throughout the relevant area has now b een delimited as between the Parties. In this
regard, the Court observes that the Judgment attribut es to Colombia part of the maritime spaces in
respect of which Nicaragua seeks a declaration re garding access to natural resources. In this
context, the Court considers that Nicaragua’s claim is unfounded.
VII. OPERATIVE CLAUSE (para. 251)
T HE COURT ,
U(na)nimously,
Finds that the Republic of Colombia has sovere ignty over the islands at Alburquerque, Bajo
Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla;
(2) By fourteen votes to one,
Finds admissible the Republic of Nicaragua’s cl aim contained in its final submissionI(3)
requesting the Court to adjudge and declare that “[t] he appropriate form of delimitation, within the
geographical and legal framework constituted by the mainland coasts of Nicaragua and Colombia, - 12 -
is a continental shelf boundary dividing by equal parts the overlapping entitlements to a continental
shelf of both Parties”;
IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Abraham, Keith,
Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenw ood, Xue, Donoghue, Sebutinde;
Judges ad hoc Mensah, Cot;
AGAINST : JudgeOwada;
U(na)nimously,
Finds that it cannot uphold the Republic of Nicaragua’s claim contained in its final
submission I (3);
U(na)nimously,
Decides that the line of the single maritime boundary delimiting the continental shelf and the
exclusive economic zones of the Republic of Nicaragua and the Republic of Colombia shall follow
geodetic lines connecting the points with co-ordinates:
Latitude north Longitude west
1. 13° 46' 35.7" 81° 29' 34.7"
2. 13° 31' 08.0" 81° 45' 59.4"
3. 13° 03' 15.8" 81° 46' 22.7"
4. 12° 50' 12.8" 81° 59' 22.6"
5. 12° 07' 28.8" 82° 07' 27.7"
6. 12° 00' 04.5" 81° 57' 57.8"
From point1, the maritime boundary line sh all continue due east along the parallel of
latitude (co-ordinates 13° 46' 35.7" N) until it reaches the 200-nautical-mile limit from the
baselines from which the breadth of the territorial sea of Nicaragua is measured. From point6
(with co-ordinates 12° 00' 04.5" N and 81° 57' 57.8" W), located on a 12-nautical-mile envelope of
arcs around Alburquerque, the maritime boundary line shall continue along that envelope of arcs
until it reaches point 7 (with co-ordinates 12° 11' 53. 5" N and 81° 38' 16.6" W) which is located on
the parallel passing through the southernmost point on the 12-nautical-mile envelope of arcs around
East-Southeast Cays. The boundary line then follows that parallel until it reaches the southernmost
point of the 12-nautical-mile envelope of ar cs around East-Southeast Cays at point8 (with
co-ordinates 12°11'53.5"N and 81° 28'29.5"W) and continues along that envelope of arcs until
its most eastward point (point 9 with co-ordinates 12° 24' 09.3" N and 81° 14' 43.9" W). From that
point the boundary line follows the parallel of latitude (co-ordinates 12°24'09.3"N) until it
reaches the 200–nautical–mile limit from the baselin es from which the territorial sea of Nicaragua
is measured;
U(na)nimously,
Decides that the single maritime boundary around Quitasueño and Serrana shall follow,
respectively, a 12-nautical-mile envelope of arcs measured from QS32 and from low-tide
elevations located within 12nauticalmiles from QS32, and a 12-nautical-mile envelope of arcs
measured from Serrana Cay and the other cays in its vicinity; - 13 -
U(na)nimously,
Rejects the Republic of Nicaragua’s claim containe d in its final submissions requesting the
Court to declare that the Republic of Colombiis not acting in accordance with its obligations
under international law by preventing the Republof Nicaragua from having access to natural
resources to the east of the 82nd meridian.
JOdge WADA appends a dissenting opinion to the Judgment of the Court; JudBRAHAM
appends a separate opinion to the Judgment of the Court; Judges K EITH and X UE append
declarations to the Judgment of the Court; JudgeONOGHUE appends a separate opinion to the
Judgment of the Court; Judges ad hoc MENSAH and C OT append declarations to the Judgment of
the Court.
___________ Annex 1 to Summary 2012/5
Dissenting opinion of Judge Owada
In his dissenting opinion, Judge Owada states that, although he has voted in favour of all the
conclusions of the Court relating to the merits of the dispute as contained in subparagraphs (1) and
subparagraphs(3) through(6) of the operativepara graph, he has been unable to vote in favour of
subparagraph(2) relating to the issue of admissibility of the claim by Nicaragua contained in its
final submission I (3). In his view, the conclusion of the Court on this point is not in line with the
criterion for judging admissibility of a claim as deve loped by the Court and not right as a matter of
principle.
Judge Owada notes that both the Applicant and the Respondent cite the jurisprudence of
this Court— particularly the cases concer ning Certain Phosphate Lands in Nauru and
Ahmadou Sadio Diallo — to determine whether or not the allegedly newly formulated claim of the
Applicant can be considered admissible. In Judge Owada’s view, howev er, it is doubtful whether
either of these two cases is strictly pertinent to the present case. JudgeOwada points out that in
each of these cases, the alleged new claim was, in its essential character, a new additionalclaim
which had not expressly been included in the original Application. Judge Owada submits that this
is not the situation in the present case, where the Applicant attempted to replace the original
formulation of the claim submitted to the Court in its Application by a newly formulated,
ostensibly different, claim relating to the existing dispute.
Judge Owada states that the So ciété Commerciale de Belgique case is more akin to the
situation in the present case. In that case, the C ourt accepted a claim that was reformulated by the
Belgian Government in its final submissions. J udgeOwada remarks, however, that the Court in
that case emphasized that its decision to accept Belg ium’s reformulated claim was based in large
part on the lack of an objection by Greece to the reformulated claim. Judge Owada notes that, by
comparison, in the present case the Respondent ra ised a strong objection to the Applicant’s novel
formulation of its claim.
Judge Owada observes that, at the oral hearings , the Applicant explained that it adjusted its
submissions (and its line of argument) following the Court’s Judgment of 13December2007, in
which the Court upheld Colombia’s first prelimin ary objection concerning the Court’s jurisdiction
as regards the question of sovereignty over th e islands of SanAndr és, Providencia, and
Santa Catalina. Judge Owada remarks, however, that, whatever may be the background behind the
Applicant’s change of position, the 2007J udgment of the Court did not produce such a
fundamental change in the legal situation as to require the Applicant to give up its original position
and to drastically change its principal claim as well as its legal basis.
Judge Owada notes that the present Judgment rej ects the contention of Colombia that this
revised claim transforms the subject-matter of th e dispute. He observes that, in so doing, the
Judgment relies largely upon the argument of the Applicant. JudgeOwada respectfully differs
from this perception of the Court about the nature and the subject-matter of the dispute as
submitted to the Court by the Applicant. In Ju dgeOwada’s view, this s udden change of position
on the part of the Applicant cannot be described as anything but a radical transformation of the
subject-matter of the dispute itself.
Although the Applicant argues that the subject of the dispute has not been modified,
Judge Owada states that he is unable to agree with this position, given that the legal character of a
continental shelf based on the distance criterion and that of a continental shelf based on the natural - 2 -
prolongation criterion are quite distinct. As a re sult, in Judge Owada’s opinion, what is proposed
by the Applicant by way of its newly reformulated submissionI(3) is not something that can be
characterized as relating only to the means by which it is suggested to resolve the dispute, as the
Applicant claimed.
Judge Owada notes that there is no express defin ition in the Application to indicate what, in
the view of the Applicant, constitutes the disput e being submitted by the Applicant in the present
case. In his view, the crucial part of the Application is paragraph 8, in which the Applicant asks the
Court “to determine the course of the single mar itime boundary between the areas of continental
shelf and exclusive economic zone appertaining respectively to Nicaragua and Colombia, in
accordance with equitable principles and rele vant circumstances recognized by general
international law as applicable to such a delimitation of a single maritime boundary”.
Judge Owada states that this language could not be clearer; its purport is to identify a very specific
objective that the Applicant seeks to attain by th e Judgment: delimitation of the course of a single
maritime boundary constituting both the contin ental shelf boundary and the economic zone
boundary. Judge Owada adds that this language cannot be read as merely indicating one possible
means to be employed by the Court for achievi ng the general objective of demarcating maritime
areas lying between the two Parties.
Judge Owada then turns to what in his view is an even more important point — namely, the
consideration of judicial policy of this Court. JudgeOwada points out that in the Certain
Phosphate Lands in Nauru case, the Court came to the conclusion that the claim made by Nauru
was inadmissible because it constituted, both in fo rm and in substance, a new claim. The Court in
that case also emphasized that the subject of the dispute would have been transformed if it
entertained that claim. In Judge Owada’s view, the same consideration should apply in the present
case: if the Court were to accept this radical cha nge in the Applicant’s submission, then the whole
issue of maritime delimitation would acquire a totally different character, not only in form but also
in substance. Specifically, according to Judge Owa da, the Court would have to consider a number
of legal issues that were not envisaged by the Par ties or by the Court when the original submission
of the Applicant was made in its Application and its Memorial.
Judge Owada states that one im portant point for the Court to consider is that this radical
change in the Applicant’s position took its concre te form only in late 2007, more than six years
after the dispute was originally submitted. In his view, the rationale of the prohibition of the
transformation of the dispute into a new dispute is solidly founded on the consideration of fair
administration of justice to be applied to both Parties and the consideration of legal stability and
predictability.
Separate opinion of Judge Abraham
In his separate opinion, Judge Abraham states th at, although he has voted in favour of all of
the points in the operative clause of the Court’s Judgment, he nevertheless disagrees with two
aspects of the reasoning followed by the Court in its Judgment.
As regards sovereignty over the maritime featur es in dispute, Judge Abraham is of the view
that, before turning to consider uti possidetis juris and the post-colonial effectivités , the Court
should have interpreted the 1928 Treaty in order to determine whether the latter made it possible to
settle the issue of sovereignty over the maritime f eatures in dispute, or over certain of them. In
Judge Abraham’s opinion, the Court, without provid ing any valid justification, has refrained from
interpreting the Treaty, confining itself to finding that the composition of the San Andrés
Archipelago, which the Treaty awarded to Colombia , was not clearly defined. In so doing, the
Court has not fulfilled its duty. - 3 -
With regard to the maritime delimitation, JudgeAbraham considers that the so-called
equidistance method was unsuitable in this instan ce on account of the geographical facts of this
case. Thus, it was not possible in this case to draw a provisional median line which takes into
account all of the “relevant [Colombian] coasts”, as defined by the Court’s Judgment, namely a
provisional line which is drawn from the most rele vant points of the western— but also eastern,
northern and southern — coasts of the Colombian islands. Moreover, in Judge Abraham’s opinion,
the Court, by adding two horizontal lines and four frontier points to the provisional line, is wrong
to assert that it is carrying out a mere “adjustment” or “shifting” of the provisional median line in
the light of the particular relevant circumstances. In conclusion, JudgeAbraham is of the view
that, although the Court has claimed to apply its “standard method” for maritime delimitation in
this case, it has in fact departed greatly from it, which was inevitable because of its unsuitability in
this case.
Declaration of Judge Keith
Judge Keith in his declaration states that he agrees with the conclusions the Court reaches.
He also agrees in general, with one exception, w ith the reasons the Court gives. That exception
concerns the law to be applied to the delimitation of the maritime boundary and the application of
the law to the facts.
Judge Keith briefly reviews the development of the law and practice of delimitation since the
International Law Commission took up the matter in the 1950s. By reference particularly to what
the Court said in 1969 in the North Sea Continental Shelf cases and the development through the
1970s of the relevant articles of the 1982 Convention on the Law of the Sea he emphasizes the aim,
stated in those articles, of achieving an equitable result. That is to be achieved by whatever method
or combination of methods is appropriate.
Judge Keith, addressing the most unusual ge ographic situation presented by this case,
indicates the combination of methods that he cons iders should have been used in this case to
achieve an equitable result. They would achieve th at result, he considers, more directly than the
heavily modified version of the usual delimitati on method used by the Court. He recognizes that
the application of the methods he proposes woul d result in essentially the same line as that
established by the Court.
Declaration of Judge Xue
In her declaration, Judge Xue expresses her reservations on two key aspects of the Judgment,
the three-stage methodology adopted by the Court and the treatment of the interest of third States.
On the first issue, while acknowledging the C ourt’s effort in developing a certain approach
to provide for legal certainty and predictability for the process of delimitation in the recent
Black Sea case, Judge Xue emphasizes that the guiding principle for maritime delimitation as laid
down in Articles 74 and 83 of the Convention on th e Law of the Sea has not been changed by this
development. In her opinion, the methodology cannot be predetermined, because the aim to
achieve an equitable solution requires that the selection of method(s) for the delimitation be
considered in the light of the geographic features and the relevant circumstances in each case.
Judge Xue takes issue on the three-stage met hod employed by the Court for the reason that
the relevant circumstances of the present case ar e considerably different from those in the
Black Sea case and it is inappropriate and infeasible to delimit the entire relevant area on the basis
of a provisional median line located to the west of the Colombian islands. In her view, any - 4 -
subsequent “adjustment or shifting”, however subs tantial, of the provisional median line in the
western part would not be able to overcome the gr oss disproportion in the lengths of the coasts and
the ratio of the relevant area between the Parti es as determined by the Court, hence unable to
achieve an equitable result.
Considering the disparity in the lengths of the relevant coasts and the overall geographical
context, the Court adjusted the median line by using a 3:1 ratio between Nicaraguan and
Colombian base points, as a result of which, some base points on the Nicaraguan side are
“superseded”. Judge Xue questions whether this is a shifting of the provisional median line or
rather a reconstruction of a new line by 3:1 ratio between the base points of the Parties. In her
opinion, the Court could have achieved the same re sult by directly selecting a couple of outermost
base points by equal number from each side of th e Parties as the controlling points and drawing up
the line by 3:1 ratio. She notes that the rationa le of the 3:1 ratio method is based on the
delimitation principle ⎯ to achieve an equitable solution. Th is method stands in its own right; it
does not have to be mixed up with the provisional median line. Judge Xue further observes that the
Court has apparently drawn the boundary in th e northern and southern sections by different
methods ⎯ enclaving and latitude line. She finds it ha rd to justify them as “adjustment of” or
“shifting from” the provisional median line, if th e latter does not mean total departure. She
questions the Court’s approach to proceed with the three-stage method simply for the sake of
standardization of methodology.
Notwithstanding her reservation, Judge Xue ag rees with the Court’s concurrent use of
different methods in this case, as long as an equitable solution can be so achieved. In her view, the
Judgment reaffirms the established jurisprudence in the maritime delimitation that the goal to arrive
at an equitable result excludes any recourse to a method chosen beforehand.
Her second reservation relates to the interest of third States in the south. In her view, the
boundary should stop at Point 8 with an arrow pointing eastward.
Judge Xue explains that from Point 8 to fu rther east, the boundary line will enter into the
area where potentially the maritime entitlements of three or even four States may overlap, as
coastal projections of Nicaragua and Colombia, as well as those of Costa Rica and Panama, all
extend to that area. Judge Xue considers that re gardless of being mainland coasts or islands, they
all enjoy full and the same maritime entitlements u nder general international law. The fact that
Colombian entitlements do not go beyond the treat y boundaries with third States does not mean
third States do not have interest against Nicaragua in the relevant area above the treaty boundaries.
In the view of Judge Xue, by restricting the coast al projections of Colombian islands against those
of the Nicaraguan coast, the Court also unduly restricts the coastal projections of Colombian
islands against those of the other two third St ates, which has gone beyond the jurisdiction of the
Court in this case. She is concerned that the principle res inter alios acta and Article59 of the
Statute may not help in the present situation. Sh e believes that the Court could have avoided that
effect by resting the boundary at Point 8 with an arrow pointing eastward for the time being, a
technique that the Court normally employs in th e maritime delimitation for the protection of the
interest of third States.
In regard to the cut-off effect, Judge Xue notes that the coastal relationship between the three
adjacent coastal States and Colombia in the south of the Caribbean Sea is a complicated one. She
considers the extent to which the Nicaraguan ma inland coast can project eastward against the
coastal projections of Costa Rica and possibly those of Panama depends on the maritime
delimitation between Nicaragua and its adjacent nei ghbour(s). Once that is decided, it would be
more proper to determine how far the boundary between the Parties in the present case will run
eastward from Point 8. - 5 -
Lastly, Judge Xue holds that the consideration of the public order and stable legal relations
should apply to the southern area as well. The boundary line in the south as drawn by the Court
would virtually produce the effect of invalidating the existing bilateral agre ements and drastically
changing the maritime relations in the area. In her opinion, the better approach is to just point out
the direction of the boundary between the Parties in this area, allowing enough space for the States
concerned to first draw up their respective boundaries and then readjust their maritime relations.
She regrets that the Court does not take that course.
Separate opinion of Judge Donoghue
In a separate opinion, Judge Donoghue notes that she agrees with the Court’s decision not to
uphold Nicaragua’s claim to continental shelf in th e area more than 200 nautical miles of its coast,
because Nicaragua did not adduce su fficient evidence to support the claim. She has misgivings
about the reasoning that the Court gives for rejec ting the claim, which suggests that the Court will
not delimit continental shelf beyond 200nautical miles of the coast of any State party to the
1982United Nations Convention on the Law of th e Sea (“UNCLOS”) before the outer limits of
such continental shelf have been established by that State in accordance with Article76 of
UNCLOS. She takes the view that delimitation of maritime boundaries and delineation of the outer
limits of continental shelf are distinct exercises. The methodology proposed by Nicaragua blurs
this distinction, because it uses the delineation of th e outer limits of the continental shelf as a step
in delimitation of the boundary. Nonetheless, in other circumstances, it may be appropriate to
delimit an area of continental shelf beyond 200nau tical miles of a State’s coast before the outer
limits of the continental shelf have been established. It is better to leave open the door to such an
outcome, so that the Court and the Commission on the Limits of the Continental Shelf, a body
established by UNCLOS, may proceed in parallel to contribute to the public order of the oceans
and the peaceful resolution of maritime boundary disputes.
JudgeDonoghue also recalls that she dissen ted from the Court’s 2011Judgments denying
applications for intervention by Costa Rica and Honduras. She continues to believe that both States
met the criteria for intervention and offers an illustra tion of a concrete interest of a legal nature on
the part of Honduras.
Declaration of Judge ad hoc Mensah
Judge ad hoc Mensah states in a declaration that although he agrees with the decision not to
uphold Nicaragua’s claim to a continental shelf in the area beyond 200 nautical miles of its coast,
he has some concerns regarding the Court’s reasoning for the decision.
In particular, Judge Mensah has problems w ith the reference in the Judgment to the 2007
decision in the Nicaragua v. Honduras case, where the Court stated that “any claim to continental
shelf rights beyond 200 miles must be in accord ance with Article 76 of UNCLOS and reviewed by
the Commission on the Limits of the Continenta l Shelf established thereunder”. Judge Mensah
notes the Court’s suggestion that the statement in the 2007 Judgment was intended to apply only to
claims by States parties to the 1982 United Nati ons Convention on the Law of the Sea (UNCLOS),
but asserts that the Court’s reliance on that statement, as well as the Court’s arguments based on
Nicaragua’s obligations under UNCLOS, in a case agreed to be governed by customary
international law, may nonetheless have troubling im plications for States that are not parties to
UNCLOS when they seek delimitation of their entitlements to continental shelf vis-à-vis
non-parties to the treaty. Judge Mensah’s concer n is that the Judgment might be interpreted to
suggest that a court or tribunal must, in every case, automatically rule that it cannot decide a
dispute that concerns the delimitation of continen tal shelf beyond 200 nautical miles of a State’s - 6 -
coast if that State has not established the outer limits of its continental shelf pursuant to Article 76.
In his view, the possibility should be left ope n that, depending on the circumstances of the
particular case, it may be possible and appropriate to decide on such a dispute.
With respect to the present case, Judge Mensah explains that he w ould have preferred the
Judgment to make it clear that the evidence submitted by Nicaragua did not provide a sufficient
basis for the Court to accede to Nicaragua’s delim itation request in the area beyond 200nautical
miles of its coast not because Nicaragua had not yet established outer limits on the basis of a
recommendation from the Commission on the Lim its of the Continental Shelf pursuant to
Article76, paragraph 8, of UNCLOS, but rather because the evidence presented to the Court by
Nicaragua was inadequate.
Judge Mensah also considers that the Judgment does not give sufficient weight to the rights
and interests of third States, the effect and signi ficance of bilateral agreements concluded in the
area and their implications for the “public order of the oceans”. It is not clear, in his view, that
reliance on Article59 of the Court’s Statute alone will provide adequate protection to those third
States or achieve the objective of stability and practicability in the Western Caribbean Sea.
Declaration of Judge ad hoc Cot
Judge ad hoc Cot agrees on the whole with the Judgmen t of the Court. However, he has
serious reservations about certain points.
Judge Cot regrets the strictly bilateral approach adopted by the Court in its treatment of the
dispute. The western Caribbean is a complex a nd sensitive maritime area. States have established
a series of treaties which go beyond mere questions of delimitation and deal with the protection of
the marine environment, the sharing of fish stocks, the exploitation of resources, scientific research
and the fight against drug trafficking. It is this multilateral management of the maritime area that is
today called into question by the Judgment. Mo re specifically, JudgeCot considers that the
delimitation as established by the Judgment affects the rights of third States. Article59 of the
Statute of the Court does not suffice to protect those rights.
Moreover, Judge Cot considers that the delim itation line drawn between the mainland coast
of Nicaragua and the San Andrés Archipelago app ears overly complicated. The Court would have
done well to adhere to its past ju risprudence (Libya/Malta, Jan Mayen) , and drawn a basically
simplified provisional median line, and then displaced that line eastwards in order to take account
of the considerable disparity of coastal lengths. The result would not have been very different from
the one reached by the Court. However, it would ha ve been clearer, more readily justifiable, and
easier for the many parties involved to comply with in the Caribbean Sea.
Lastly, Judge Cot considers that the procedure provided for by Article 76, paragraph 8, of the
1982Convention does not fall within the scope of customary international law and is thus not
relevant to the present case, since Colombia is not a party to the Convention. The Court should
have confined itself to examining the evidence produced by Nicaragua to find that it was not
sufficient and to reject Nicaragua’s requ est to delimit its continental shelf beyond
200nauticalmiles. On this point, JudgeCo t fully agrees with the views expressed by
Judge ad hoc Mensah.
___________ Annex 2 to Summary 2012/5
⎯ Sketch-map No. 1: Geographical context;
⎯ Sketch-map No. 2: Delimitation claimed by Nicaragua;
⎯ Sketch-map No. 3: Delimitation claimed by Colombia;
⎯ Sketch-map No. 4: The relevant coasts and the relevant area according to Nicaragua;
⎯ Sketch-map No. 5: The relevant coasts and the relevant area according to Colombia;
⎯ Sketch-map No. 6: The relevant coasts as identified by the Court;
⎯ Sketch-map No. 7: The relevant maritime area as identified by the Court;
⎯ Sketch-map No. 8: Construction of the provisional median line;
⎯ Sketch-map No. 9: Construction of the weighted line;
⎯ Sketch-map No. 10: The simplified weighted line;
⎯ Sketch-map No. 11: Course of the maritime boundary. -16-
Juddated 8 Octobn0t7in force)a9ty77of 1980
DOMINICANIC
VENEZUELA
HAITI
COLOMBIA
A
CABI
JAMAICA A M CARIBBEAN SEA
M O
J L
Bajo Nuevo C
COLOMBIA
Colombia / Jamaica
JOIREGIMEA
Roncador
Serrana
Serranilla
S U
A G East-Southeast Cays
U A Quitasueño San Andrés
D A A A PANAMA
N CI ProSanta Catalina I MA
H N Cays RA NAP
COCOSTA RICA
Alburquerque OC
WGS 84
Cays
Miskitos Island
Little Corn Island
Sketch-map No. 1: Great Corn
Geographical context
Mercator Projection (12° 30' N) RICA
COSTA
This sketch-map has been prepared for illustrative purposes.
The symbols showing maritime features indicate only their location,
and not their physical characteristics or geographiNICARAGUAegal status.
HONDURAS -55-
WGS 84
COLOMBIA
Delimitation
Sketch-map No. 2: for illustrative purposes only.
claimed by Nicaragua
Mercator Projection (12° 30' N)
This sketch-map has been prepared
12-nautical-mile enclaves around Colombian islandslaimed by Nicaragua
A
CA B
A M
M O
A O
J C
Bajo Nuevo
PANAMA
COLOMBIA
JOINTAREA
REGIME
Colombia / Jamaica
CARIBBEAN SEA
PANAMA
Roncador
Serrana
Serranilla
East-Southeast Cays
A Quitasueño
S U
R G A
U AR PrSanta Catalina AI MA
D A R A NA
O CI San Andrés Cays TS P
H N COLOMBIA OC
Alburquerque COSTA RICA
Cays
Miskitos
Island Island
Little Corn
Great Corn
RICA
COSTA
HONDURAS NICARAGUA -68-
Outline of a bank
JOINT
SerranilREGIME
AREA
DURAA Colombia / Jamaica
HONARAU
NI
HONDURAS
Edinburgh
Reef
Muerto
Cay
Miskitos Quitasueño
Cays Serrana
Ned Thomas
Cay
Roncador
Providencia/
NICARAGUA Roca
Tyra Santa Catalina
San Andrés
Little Corn East-Southeast Cays
Island
Great Corn
Alburquerque
Island Cays
CARIBBEAN
SEA
COLOMBIA
PANAMA
COLOMBIA
COSTA RICA
IC Sketch-map No. 3:
TARMA
OS NA Delimitation
C P
claimed by Colombia
COSTA RICA This sketch-map has been prepared
for illustrative purposes only.
Mercator Projection (12° 30' N)
WGS 84
PANAMANicaragua’s relevant coastst
WGS 84 COLOMBIA
Sketch-map No. 4:evant area shown in the boxed areas,ale.
for illustrative purposes only.
The enlargements of the islands,
The relevant coaThis sketch-map has been preparedn (12° 30’ N)
A I
I B
A OM
AM L
J O
Bajo Nuevo C
PANAMA
COLOMBIA
JOINTAREA
REGIMEColombia / Jamaica
CARIBBEAN SEA
PANAMA
Roncador
Serrana
Serranilla
East-Southeast Cays
S AU Quitasueæo
A G
RU A Providencia/ AC AM
D RA Santa Catalina IR AN
N I Cays AT AP
O N San AndrØs COLOMBIA SO
H COSTA RICAC
Alburquerque
Cays
Miskitos
Island Island
Little CorGreat Corn
RICA
COSTA
HONDURAS NICARAGUA -74-
Nicaragua's relevant coastst
WGS 84 COLOMBIA
Sketch-map No. 5:vant area shown in the boxed areas,le.
for illustrative purposes only.
The enlargements of the islands,
The relevant coasts andetch-map has been preparedn (12° 30' N)
A
C B
A M
M O
A L
J CO
Bajo Nuevo
PANAMA
COLOMBIA
JOREGIMEA
Colombia / Jamaica
CARIBBEAN SEA PANAMA
Roncador
Serrana
Serranilla
East-Southeast Cays
A Quitasueño
SA U
R GA A A
U R ProSanta Catalina I MA
DN C RA A
O I San Andrés Cays TS P
H N COCOSTA RICAC
Alburquerque
Cays
Miskitos
Island Island
Little Corn
Great Corn
RICA
COSTA
HONDURAS
NICARAGUA -81-
Nicaragua's relevant coast
Colombia's relevant coast
Outline of a bank
SerranillaINT
REGIME
AREA
AS
ONDURUA Colombia / Jamaica
HICAAG
N
HONDURAS
Edinburgh
Reef
Muerto
Cay
Miskitos Quitasueño Serrana
Cays
Ned Thomas
Cay
Roncador
Roca Providencia/
NICARAGUA Tyra Santa Catalina
San Andrés
Little Corn
Island East-Southeast Cays
Punta
de Perlas
Great Corn Alburquerque
Island Cays
COLOMBIA
PANAMA
COLOMBIA Sketch-map No. 6:
COSTA RICA
The relevant coasts
A
RI as identified by the Court
T MA
OS AA
C P This sketch-map has been prepared
for illustrative purposes only.
The enlargements of the islands, shown in the
COSTA RICA boxed areas, are not to the same scale.
Mercator Projection (12° 30' N)
WGS 84
PANAMA -89-
WGS 84 COLOMBIA
Sketch-map No. 7:
for illustrative purposes only.
This sketch-map has been prepared30' N)
as identified by the Court
The relevant maritime area
A IA
I B
A M
M LO
JA O
C
Bajo Nuevo
COLOMBIA
JOINTAREA
REGIME
Colombia / Jamaica
CARIBBEAN SEA PANAMA
Roncador
Serrana
Serranilla
East-Southeast Cays
A Quitasueño
S U
R G A
U R ProSanta Catalina ACI MA
D A San Andrés R NA
N I Cays ATS P
OH N COLOMBIA O
Alburquerque COSTA RICA C
Cays
Miskitos
Island
Island
Little CorGreat Corn
RICA
COSTA
HONDURAS NICARAGUA - 109 -
Outline of a bank
JOINT
SerranilREGIME
AREA
URAS Colombia / Jamaica
HONDRAUA
NIA
HONDURAS
Edinburgh
Reef
Muerto
Cay
Miskitos Quitasueño
Cays Serrana
Ned Thomas
Cay
Roncador
Roca Providencia/
NICARAGUA Tyra Santa Catalina
San Andrés
Little Corn East-Southeast Cays
Island
Great Corn
Alburquerque
Island Cays
CARIBBEAN
SEA
COLOMBIA
PANAMA
COLOMBIA
COSTA RICA
IC Sketch-map No. 8:
ARMA
OS NA Construction of the
C P
provisional median line
COSTA RICA This sketch-map has been prepared
for illustrative purposes only.
Mercator Projection (12° 30' N)
WGS 84
PANAMA - 124 -
Outline of a bank
JOINT
SerranilREGIME
AREA
DURAA Colombia / Jamaica
HONARAU
NI
HONDURAS
Edinburgh
Reef
Muerto
Cay
Miskitos Quitasueño
Cays Serrana
Ned Thomas
Cay
Roncador
Providencia/
NICARAGUA Roca
Tyra Santa Catalina
Little Corn San Andrés
East-Southeast Cays
Island
Great Corn Alburquerque
Island Cays
CARIBBEAN
SEA
COLOMBIA
PANAMA
COLOMBIA
COSTA RICA
IC Sketch-map No. 9:
TARMA
OS NA Construction of
C P
the weighted line
COSTA RICA This sketch-map has been prepared
for illustrative purposes only.
Mercator Projection (12° 30' N)
WGS 84
PANAMA - 125 -
Sketch-map No. 10:
0
The simplified
1
weighted line
This sketch-map has been prepared
for illustrative purposes only.
Mercator Projection (12° 30' N)2
WGS 84
Providencia/
Santa Catalina
3
4
San Andrés
East-Southeast
Cays
Alburquerque
Cays
5
Outline of a bank - 127 -
A I
I B
Outline of a beasntkablished (not in force)77of 1980
A L
J O
C
COLOMBIA
Bajo Nuevo CARIBBEAN SEA WGS 84
Course of the
A
JOIREGIME Sketch-map No. 11:e for illustrative purposes only.
Colombia / Jamaica B This sketch-map has been prepared30' N)
Roncador
Serrana
Serranilla
9
East-Southeast Cays
Quitasueño 8
A Providencia/
S U Santa Catalina 7
A G 1 A A
RU AR CI MA
D A Cays RA NAP
O I 2 3 San Andrés TS
H N OC
6 Alburquerque COCOSTA RICA
4
5
Cays
Miskitos
Island
Little Corn Island
Great Corn
COSTA RICA
NICARAGUA
HONDURAS
Summary of the Judgment of 19 November 2012