Counter-Memorial of Colombia - Volume I

INTERNATIONAL COURT OF JUSTICE_____________________________________________ALLEGED VIOLATIONS OF SOVEREIGN RIGHTS AND MARITIME SPACES IN THE CARIBBEAN SEA (NICARAGUA v. COLOMBIA)COUNTER-MEMORIALOF THE REPUBLIC OF COLOMBIAVOLUME I17 November2016

iii
Chapter 1
INTRODUCTION AND OVERVIEW 1
A
.
Colombia’s Case and the Scope of the Dispute 2
B
.
Nicaragua’s Claims in the Light of the Judgment on Preliminary Objections 8
C
.
Nicaragua’s Failure To Respect Its Own Obligations and the Rights of the Inhabitants of the San Andrés Archipelago, Including in Particular, the Raizal Community 13
D
.
Colombia’s Counter-claims 14
E
.
Outline of the Counter-Memorial 15
PART I FACTUAL, HUMAN AND LEGAL BACKGROUND OF THE CASE
Chapter 2
THE SPECIAL CIRCUMSTANCES OF THE CARIBBEAN SEA AND COLOMBIA’S REGULATORY RESPONSES 23
A
.
Introduction 23
(1)
THE
SOUTHWESTERN CARIBBEAN AS A SEMI-ENCLOSED SEA 24
(2)
THE
INTER-RELATED NATURE OF THE AREA 26
B
.
The Marine Environment and Colombia’s Protective Measures 28
(1)
DISTINCTIVE
CHARACTERISTICS OF THE MARINE ENVIRONMENT 28
(2)
THE
FRAGILITY OF THE ARCHIPELAGO’S ECOSYSTEM 32
(3)
COLOMBIA
’S PROTECTIVE MEASURES IN THE AREA 33
(a) Colombia’s Responses to the Environmental Concerns 33
(b
) Regional Arrangements and Colombia’s .
Regional Arrangements and Colombia’s Implementation 37
(i)
The Cartagena Convention 37
(ii) The Seaflower Biosphere Reserve 42
(iii) The Seaflower Marine Protected Area 49
C
.
The Dependence of the Inhabitants of the Archipelago and the Raizal People on the Marine Environment and Artisanal Fishing 55
(1)
THE DEPENDENCE ON
THE SOUTHWESTERN CARIBBEAN SEA 55
(2)
THE
LONG-STANDING ARTISANAL FISHING AND TURTLING PRACTICES 59
(a)
Artisanal Fishing Distinguished from S
ubsistence Fishing and Industrial Fishing 60
(b)
The History of
Artisanal Fishing in the Area and its Evolution 62
(c)
Boundaries Did Not
Affect Fishing Activities 74
D. The Threat of Drug Trafficking, Transnational Crime and Other Security Concerns 77
(1)
COLOMBIA
’S NAVY AND AIR FORCE PRESENCE FOR SECURITY, ENVIRONMENTAL MONITORING AND DRUG INTERDICTION 77
(2)
COLOMBIA
’S AGREEMENTS WITH OTHER CARIBBEAN STATES ON RESPONSIBILITIES FOR DRUG INTERDICTION 87
E
.
Conclusion 94
Chapter 3
THE RIGHTS AND DUTIES OF THE PARTIES IN THE SOUTHWESTERN CARIBBEAN SEA 95
A
.
Introduction: Nicaragua’s Misconception of the Applicable Legal Principles 95
B. Freedom of Navigation and Overflight 99
(1)
NICARAGUA
’S MISCONCEPTION OF THE FREEDOMS OF NAVIGATION AND OVERFLIGHT 100
(2)
COLOMBIA
EXERCISED ITS FREEDOMS OF NAVIGATION AND OVERFLIGHT WITH DUE REGARD FOR NICARAGUA’S RIGHTS 104
C
.
The Rights and Duties of the Parties to Preserve and Protect the Marine Environment and to Exercise Due Diligence 108
(1)
THE P
ARTIES’ RIGHTS AND DUTIES TO PRESERVE THE ENVIRONMENT OF THE SOUTHWESTERN CARIBBEAN SEA 109
(a)
The Duty
To Protect and Preserve Requires Preventive and Proactive Action 113
(b)
The Parties’
Duty and Right To Protect and Preserve the Biodiversity of the Southwestern Caribbean Sea 117
v
(2)
THE P
ARTIES’ DUTY TO EXERCISE DUE DILIGENCE WITHIN THE MARITIME SPACES OF THE SOUTHWESTERN CARIBBEAN SEA 123
(a)
The Parties’
Reinforced Duty to Exercise Due Diligence with respect to the Environment of the Southwestern Caribbean Sea 124
(b)
The Parties’
Reinforced Duty of Due Diligence with respect to Predatory Fishing Practices within the Southwestern Caribbean Sea 126
(3)
THE P
ARTIES’ RIGHT AND DUTY TO PROTECT THE RIGHT OF THE RAIZALES AND OTHER INHABITANTS OF THE ARCHIPELAGO TO A
HEAL
THY, SOUND AND SUSTAINABLE ENVIRONMENT 135
D
.
The Customary Artisanal Fishing Rights To Access and Exploit the Traditional Banks 139
(1)
THE FORMA
TION AND RECOGNITION OF A LOCAL CUSTOMARY RIGHT TO ARTISANAL FISHING 140
(2)
THE
TRADITIONAL FISHING RIGHTS SURVIVE THE 2012 MARITIME DELIMITATION. . . . . . . . . . . . . 146
E
.
Conclusion 154
PART II
COLOMBIA HAS ACTED LAWFULLY IN THE CARIBBEAN SEA
Chapter 4
THE ILL-FOUNDED NATURE OF NICARAGUA’S CLAIMS REGARDING ALLEGED VIOLATIONS OF ITS MARITIME RIGHTS 157
A
.
Introduction 157
B. The Lack of Seriousness of Nicaragua’s Claims 158
C
.
The Misleading Version of the Events Presented by Nicaragua 164
(1)
THE COUR
T LACKS JURISDICTION OVER ALLEGED VIOLATIONS THAT OCCURRED AFTER 26 NOVEMBER 2013 165
(2)
THE “INCIDENTS”
ALLEGED BY NICARAGUA 168
(3)
NICARAGUA
’S ILL-FOUNDED ARGUMENTS ON COLOMBIA’S LICENSING OF FISHING VESSELS 186
D
.
Conclusions 187
vi
Chapter 5
COLOMBIA’S CONTIGUOUS ZONE IS NOT A WRONGFUL ACT UNDER INTERNATIONAL LAW 189
A
.
Introduction 189
B
.
Colombia’s Integral Contiguous Zone is Internationally Lawful 194
(1)
COLOMBIA
’S INTEGRAL CONTIGUOUS ZONE WAS PROCLAIMED UNDER ITS CONSTITUTION 194
(2)
COLOMBIA
’S ISLANDS HAVE A RIGHT TO A CONTIGUOUS ZONE UNDER INTERNATIONAL LAW 197
(3)
NOTHING IN
THE 2012 JUDGMENT ADDRESSES THE CONTIGUOUS ZONE OR CAN BE READ TO QUESTION COLOMBIA’S CONTIGUOUS ZONE RIGHTS 198
C
.
The Proper Exercise of Contiguous Zone Powers by a State in its Contiguous Zone is Not Incompatible with, and Does Not Violate Internationally Specified Sovereign EEZ Rights of a Neighbouring State 199
D
.
The Spatial Construction of Colombia’s Integral Contiguous Zone is Dictated by the Natural and Special Configuration of the Archipelago and Does Not Violate International Law 202
(1)
COLOMBIA
’S INTEGRAL CONTIGUOUS ZONE IS ALMOST ENTIRELY A RESULT OF THE NATURALLY OVERLAPPING CONTIGUOUS ZONES OF THE
COMPONENT
ISLANDS OF THE SAN ANDRÉS ARCHIPELAGO 202
(2)
THE
ADDITION OF GEODETIC LINES CONNECTING THE OVERLAPPING CONTIGUOUS ZONES OF THE
ISLANDS
ALLOWS FOR THE ORDERLY ADMINISTRATION OF COLOMBIA’S RIGHTS AND OBLIGATIONS IN ITS INTEGRAL CONTIGUOUS ZONE 206
(3)
THE CONTINGENT
POWERS WHICH COLOMBIA MAY EXERCISE IN THE INTEGRAL CONTIGUOUS ZONE, AS SPECIFIED IN PRESIDENTIAL DECREE NO. 1946, ARE CONSISTENT WITH INTERNATIONAL LAW 209
E
.
The Extent and Contingent Powers of Colombia’s Integral Contiguous Zone are Consistent with International Law 211
vii
F
.
In Any Event, Nicaragua Can Point to No Actions in Colombia’s Integral Contiguous Zone That Have Prejudiced Nicaragua’s EEZ Rights 222
G
.
Conclusion 224
Chapter 6
THE REMEDIAL SITUATION 225
PART III
COUNTER-CLAIMS
Chapter 7
COLOMBIA’S COUNTER-CLAIMS 233
A
.
Introduction 233
B
.
Admissibility of the Counter-claims 235
(1)
THE
COUNTER-CLAIMS COME WITHIN THE JURISDICTION OF THE COURT 236
(2)
THE
DIRECT-CONNECTION REQUIREMENT 239
Chapter 8
FIRST AND SECOND COUNTER-CLAIMS: NICARAGUA’S LACK OF DUE DILIGENCE WITH RESPECT TO THE MARINE ENVIRONMENT OF THE SOUTHWESTERN CARIBBEAN SEA AND THE HABITAT OF THE RAIZALES 243
A
.
Introduction 243
B
.
The Direct Connection with the Subject-Matter of Nicaragua’s Claims 244
C
.
The Facts Supporting Colombia’s Counter-claims with Respect to the Protection of the Environment of the Southwestern Caribbean Sea and the Habitat of the Raizales and other Inhabitants of the Archipelago 247
(1)
ACTIVITIES OF PREDA
TORY FISHING IN THE SEAFLOWER BIOSPHERE RESERVE AND SEAFLOWER MARINE PROTECTED AREA 248
(2)
ACTIVITIES OF PREDA
TORY FISHING IN THE SEAFLOWER BIOSPHERE RESERVE AND SEAFLOWER MARINE PROTECTED AREA 251
D
.
Nicaragua’s Violation of its Duty of Due Diligence to Protect and Preserve the Marine Environment of the Southwestern Caribbean Sea 263
viii
(1)
NICARAGUA
’S FAILURE TO PREVENT ILLEGAL, UNREPORTED AND UNAUTHORIZED (IUU) FISHING 264
(2)
NICARAGUA
’S FAILURE TO PREVENT POLLUTION OF THE SOUTHWESTERN CARIBBEAN SEA 274
E
.
Nicaragua’s Violation of its Duty of Due Diligence To Protect the Right of the Inhabitants of the Archipelago To Benefit from a Healthy, Sound and Sustainable Habitat 278
(1)
NICARAGUA
’S FAILURE TO EXERCISE DUE DILIGENCE TO PREVENT HARMFUL FISHING PRACTICES 279
(2)
NICARAGUA
’S FAILURE TO EXERCISE DUE DILIGENCE TO PREVENT THE DEGRADATION OF THE MARINE HABITAT OF THE RAIZALES AND OTHER INHABITANTS OF THE ARCHIPELAGO 281
F
.
Conclusion 285
Chapter 9
THIRD COUNTER-CLAIM: NICARAGUA’S INFRINGEMENTS OF THE ARTISANAL FISHING RIGHT TO ACCESS AND EXPLOIT THE TRADITIONAL BANKS 287
A
.
Introduction 287
B
.
The Direct Connection with the Subject-Matter of Nicaragua’s Claims 290
C
.
The Intimidating Conduct of the Nicaraguan Naval Force 291
D
.
Conclusion 300
Chapter 10
FOURTH COUNTER-CLAIM: NICARAGUA’S STRAIGHT BASELINES DECREE, WHICH IS CONTRARY TO INTERNATIONAL LAW, VIOLATES COLOMBIA’S SOVEREIGN RIGHTS AND MARITIME SPACES 303
A
.
Introduction 303
B
.
The Direct Connection with the Subject-Matter of Nicaragua’s Claims 304
(1)
F
ACTUAL AND LEGAL COMPONENTS OF NICARAGUA’S RELEVANT CLAIM 305
(2)
F
ACTUAL AND LEGAL COMPONENTS OF COLOMBIA’S FOURTH COUNTER-CLAIM 308
(3)
THE
DIRECT CONNECTION 310
ix
C
.
Nicaragua’s Claimed Baselines Violate the Customary International Law Principles Governing the Drawing of Straight Baselines 310
(1)
THE COUR
T’S 2012 JUDGMENT DOES NOT JUSTIFY NICARAGUA’S STRAIGHT BASELINES 311
(2)
THE CUST
OMARY NATURE OF THE PRINCIPLES GOVERNING THE DRAWING OF STRAIGHT BASELINES 317
(3)
NICARAGUA
’S BASELINES ARE IN BREACH OF
CUST
OMARY INTERNATIONAL LAW PRINCIPLES 320
(a) Geographical Circumstances Permittin
g Recourse to
Straight Baselines Are Not Met 322
(b) Nicaragua’
s Claimed Baselines Do Not Meet the
Necessary Requirements 330
(i) Nicaragua’s Straight Baselines Depart from the General Direction of the Coast 330
(ii) The Sea Areas Lying within the Straight Baselines Are Not Closely Linked to the Land Domain 331
D
.
Colombia’s Rights Are Infringed by Nicaragua’s Claimed Baselines in the Caribbean Sea 336
(1)
THE CLOSING BY
NICARAGUA OF THE WATERS WITHIN ITS STRAIGHT BASELINES VIOLATES
COLOMBIA
’S RIGHTS 336
(2)
NICARAGUA
’S CLAIM THAT ITS TERRITORIAL SEA EXTENDS FURTHER EAST THAN WHAT INTERNATIONAL LAW AUTHORIZES INFRINGES COLOMBIA’S RIGHTS 338
(3)
THE INFRING
EMENT OF COLOMBIA’S RIGHT TO A 200-MILE EXCLUSIVE ECONOMIC ZONE 341
E
.
Conclusion 342
Chapter 11
SUMMARY 343
SUBMISSIONS 351
TABLE OF CONTENTS VOLUME II 355

1
Chapter 1
INTRODUCTION AND OVERVIEW
1 1 Colombia is filing the present Counter-Memorial in
conformity with the Court’s Order dated 17 March 2016 fixing
17 November 2016 as the time-limit for that purpose In this
pleading, Colombia will respond to the claims advanced by
Nicaragua in its Application and Memorial over which the Court
has jurisdiction, and will show that those claims are factually
and legally devoid of merit
1 2 Nicaragua’s pleadings dwell on what Nicaragua asserts
are the violations of its maritime rights and spaces by Colombia
Not only do these allegations misrepresent the facts and legal
consequences of the events on which Nicaragua’s claims are
based, they ignore the fact that Nicaragua also has obligations
under customary international law with respect to the relevant
maritime area These include the obligation to protect and
preserve the marine environment, including exercising due
diligence over the activities of its own nationals and flag as well
as licensed vessels, and the obligation to respect the habitat and
traditional fishing rights of the local population of the
Archipelago of San Andrés, Providencia and Santa Catalina 1
1 The Archipelago of San Andrés, Providencia and Santa Catalina is
also referred to as “the San Andrés Archipelago” or “the Archipelago” in this
pleading It includes the three named islands as well as the islands of
Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, Quitasueño,
Serranilla and Bajo Nuevo, together with their surrounding islets, rocks and
reefs
2
1 3 In other words, Nicaragua’s pleadings only purport to tell half of the story The scope of the dispute concerns not simply the lawfulness of Colombia’s conduct in the Southwestern Caribbean,where Colombia too has rights, but also that of Nicaragua As Colombia will show, Nicaragua has flagrantly disregarded itsobligationsunder international law,which has resulted in significant harm to Colombia and prejudice to its nationals, including in particular the Raizal inhabitants of the Archipelago, and to the environment Consequently, inaccordance with Article80of the Rules of Court, Colombia is presenting counter-claims against Nicaraguafor these breaches As will be more fully explained in Part III of this Counter-Memorial, Colombia’s counter-claimscome within the jurisdiction of the Court andare directly connected with the subject-matter of Nicaragua’s claims A.Colombia’s Caseand the Scope of the Dispute1 4 In its Applicationdated 26 November 2013, Nicaragua advancedtwo claims against Colombia The first was based on the allegation that Colombia had breached its obligation not to violate Nicaragua’s sovereign rights and maritime zones as declared by the Court’s Judgment of 19 November 2012 The second was based on the contention that Colombia’s Navyhad breached Colombia’s obligation under the Charterof the United
3
Nations and customary international law not to threaten or use
force 2
1 5 Nicaragua’s claims must be assessed in the light of the
rights and obligations of both Parties in the Southwestern
Caribbean Sea, the special characteristics of that part of the sea
including the political unity of the Archipelago of San Andrés,
Providencia and Santa Catalina, the freedom of navigation and
overflight that Colombia and all other States are entitled to
exercise, and the duty that each Party has to protect and preserve
the marine environment and respect the habitat of the local
population
1 6 As will be described in Chapter 2, the Southwestern
Caribbean is a semi-enclosed sea, bordered by a number of
countries Of particular significance is the fact that large parts of
this sea are ecologically sensitive due to their relatively shallow
waters, fragile coral reef eco-systems, water currents and the
presence of species that are subject to a risk of depletion and
extinction if left open to abusive fishing practices This is what
has led to the establishment of specially protected environmental
areas in the sea and the adoption of one major treaty, the
Convention for the Protection and Development of the Marine
2 Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v Colombia), Application of the Republic of
Nicaragua instituting proceedings against the Republic of Colombia, 26 Nov
2013 (Application), para 2
4
Environment in the Wider Caribbean Region(Cartagena Convention),which dealswith these issues 31 7 The inhabitants ofthe Archipelago, includingthe Raizalcommunity,are heavily dependent on thelong-standing, traditional fishing rights they have enjoyed over maritime areas in and around the Archipelago that constitute an integral and vital part of their culture and habitat Theserights are being violatedby Nicaragua’s predatory fishing practices,and its inability and/or unwillingness to protect and preserve the marine environment,which is essential to the livelihood of the local population, and its intimidation of the local fishermen 1 8 At the same time, this part of the Caribbean is vulnerable to the commission of transnational crimes, for example, whenused by criminal groupsasa major drugand armstrafficking route Historically, Colombia has played a central role in combatting this scourge as a result of both its geographic location and the fact that it is the only country in the region which has invested inthe naval and aerialresources capable ofmonitoring,tracking and interceptingsuspicious activity Moreover, Colombia has international obligations to counter such transnational crimes 1 9 These factors help to explainColombia’s presence in the area andwhy Colombia’s right to exercise freedom of 3Annex 17: Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (Cartagena Convention), adopted at Cartagenade Indias, Colombia on 24 March 1983
5
navigation and overflight is so crucial for it and the international
community Nicaragua acknowledges that Colombia has the
right of overflight over Nicaragua’s exclusive economic zone
(EEZ) and that this in itself does not imply a repudiation of
Nicaragua’s rights in those waters 4 But Nicaragua fails to
recognize that Colombia has exercised these rights in a positive
manner having due regard for the rights and duties of other
States, Nicaragua included Contrary to Nicaragua’s assertions,
that conduct has in no way prevented Nicaragua from exercising
its sovereign rights within its maritime spaces adjudicated by the
Court
1 10 The same cannot be said of Nicaragua As will be
demonstrated, Nicaragua has systematically failed to exercise
due diligence in regulating and controlling the predatory fishing
practices of its own nationals and flag as well as licensed
vessels It has also not lived up to its obligation to preserve and
protect the marine environment and conserve the living
resources of the area, or to respect the traditional fishing rights
of the inhabitants of the Archipelago, thus compelling Colombia
to lodge a number of counter-claims
1 11 In these circumstances, the notion that Nicaragua is the
aggrieved Party in this case, and that the scope of the dispute is
limited to Colombia’s conduct, is unsustainable Not only is
4 Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v Colombia), Memorial of the Republic of
Nicaragua, 3 Oct 2014 (Memorial of Nicaragua), para 3 34 The same
obviously applies to Colombia’s freedom of navigation
6
there no factual or legal basis for its claims, it is Nicaraguathat has violateditsobligationsowed to Colombia within the Southwestern CaribbeanSea 1 12 If anything, the contrast in the conduct of the Parties in the relevant area could notbe more striking. •Colombia has not prevented Nicaragua from exercising sovereign rights over its exclusive economic zone Norhave Nicaraguan nationals been prevented from fishing in these areas Yet, despite the promises of Nicaragua’s leaders to respect the historic rights of the Raizales, Nicaragua’sNaval Forcehas actively interfered and intimidated the inhabitants of the Archipelagofromhaving access to their traditional fishing grounds •Colombian licensed vessels have respected Nicaragua’s maritime spaces and its fishermen have even modified their fishing practices to avoid conflict and confrontation with Nicaragua’s Naval Force On the other hand, Nicaraguan licensed vessels have entered Colombia’s territorial sea, fished there with predatory practices, polluted the waters, left behind large amounts of waste, and caused damage to the marine environment in Colombia’s jurisdictional waters
7
• Colombia has taken numerous concrete steps to
protect and preserve the marine environment of the
Southwestern Caribbean and to exercise due
diligence over abusive fishing practices
Nicaragua, in contrast, has flouted its international
obligations in this respect, and has shown no
willingness or ability to control the destructive
activities of its own fishermen or licensed fishing
vessels in highly sensitive ecological areas If
anything, Nicaragua has encouraged such abusive
practices by taking the position that it has
unfettered sovereign rights over the EEZ with no
concurrent obligations
• Colombia has even gone so far as to provide
humanitarian and technical assistance to
Nicaraguan fishermen who have run into trouble in
the waters of the Southwestern Caribbean
Nicaragua has done exactly the opposite Its naval
personnel have harassed Colombian fishermen
from the Archipelago, confiscated their equipment
and catch and thereby jeopardized their well-being
• Colombia has also been diligent in monitoring
transnational crime in the area, which is an
essential security interest not only of Colombia, but
also of other States Nicaragua has shown no
8
interest in doing the same Its only response is to complain of Colombia’s presence in the area –apresence which is perfectly lawful B.Nicaragua’s Claims in the Light ofthe Judgment on the Preliminary Objections1 13 In its Judgment onthe Preliminary Objections, the Courtdismissed Nicaragua’s claim concerning the alleged threat or use of force by Colombia for lack of jurisdiction. As the Court observed, prior to Nicaragua’s Application, “nothing in the evidence suggests that Nicaragua had indicated that Colombia had violated its obligations under Article 2, paragraph 4, of the Charter of the United Nations or under customary international law regarding the threat or use of force” 5To the contrary, Nicaragua’s own President was on record as confirming that “there has not been any kind of confrontation between the Colombian and Nicaraguan Navy”, and Nicaragua’s senior military officers had similarly noted that there had not been any conflicts in the relevant waters 61 14 Consequently, in the operative part of its17 March 2016 Judgment, the Court unanimously upheld Colombia’s second preliminary objection “in so far as it concerns the existence of a dispute regarding alleged violations by Colombia of its 5Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment,17 March 2016(Judgment on the Preliminary Objections), para 76 6Ibid
9
obligation not to use force or threaten to use force” 7 The facts –
or so-called “incidents” –8 that Nicaragua relies on in its
Application and Memorial to support its claim of the threat or
use of force thus fall away due to the lack of jurisdiction over
that claim
1 15 As for the remaining “incidents” that form the factual
predicate for Nicaragua’s claim, it should be recalled that they
are based on a description that Nicaragua’s Naval Force only
sent to the Nicaraguan Ministry of Foreign Affairs on 26 August
2014, nine months after Nicaragua’s Application and,
conveniently, a few weeks prior to the filing of its Memorial.9
Crucially, the majority of the alleged facts adduced by
Nicaragua to support its claim that Colombia has violated its
sovereign rights and maritime spaces occurred, even on
Nicaragua’s version of them, after 27 November 2013, when
Colombia ceased to be bound by the American Treaty on Pacific
Settlement (the “Pact of Bogotá”) Consequently, the Court
lacks jurisdiction ratione temporis to consider any claims that
are based on events that are alleged to have transpired after
Colombia ceased to be bound by the provisions of the Pact This
dispenses with the need to consider many of the “incidents”
Nicaragua relies on for its claim
7 Judgment on the Preliminary Objections, para 111(1)(c) dispositif
8 Nicaragua refers in its pleadings to a number of events that it
characterizes as “incidents” As will be seen, however, none of these events
amounted to an “incident” in the true sense of the word, and Nicaragua itself
did not treat them as such at the time
9 Memorial of Nicaragua, Annex 23-A
10
1 16 Only 13of Nicaragua’s so-called “incidents”are said to have occurred beforethe critical date when the Pact of Bogotáceased to be in force for Colombia 10Yet, many of them are based on erroneous information, and they simply do not bear out Nicaragua’s far-reaching claim that Colombia violated Nicaragua’s sovereign rights and maritime spaces 1 17 Equallystriking is the fact that there is no evidence that Nicaragua’s military considered Colombia’s presence in the area or any of the alleged“incidents” to be serious enough to be worthy of mention at the time of their occurrence, either to Nicaragua’s own political leaders or to Colombia The first time Nicaragua protested to Colombia over any alleged “incidents” was by a diplomatic note sent on 13 September 2014, well after Nicaragua had opportunistically instituted these proceedings before the Court,on the last day it could do so before the Pact of Bogotá ceased to be in force for Colombia 1 18 In its 17 March 2016 Judgment, the Court did not consider that this delay meant that, as of the date of the Application, there was no dispute between the Parties for jurisdictional purposes 11However, the lack of any reaction by Nicaragua’s military officials, who had in the meantime 10In its Judgment on the Preliminary Objections, the Court found that the “critical date” for the determination whether there existed a dispute between the parties was the date of Nicaragua’s Application (26 November 2013) For all practical purposes, this is the same critical date for considering the Court’s jurisdiction ratione temporis over the “incidents” adduced by Nicaragua, whichis the following day, when the Pact ceased to be in force for Colombia 11Judgment on the Preliminary Objections, para 73
11
confirmed that the situation at sea was calm, or by its senior
political leaders, who had said that the Colombian Navy had
been respectful and that there had been no confrontations, shows
that the so-called “incidents” on which Nicaragua now places so
much weight could not, even on Nicaragua’s version of them,
have been considered important at the time they occurred, or as
giving rise to a genuine claim that Colombia had violated
Nicaragua’s sovereign rights and maritime spaces
1 19 Colombia will address each of these 13 “incidents” in
Chapter 4 For present purposes, Colombia notes that none of
them supports Nicaragua’s theory that Colombia violated
Nicaragua’s sovereign rights and maritime spaces Contrary to
the impression Nicaragua seeks to convey, they were the result
of Colombia’s lawful exercise of its rights and duties under
international law, and did not result in any inability of Nicaragua
to exercise sovereign rights in its maritime spaces
1 20 Nicaragua’s claim that Colombia has violated its
sovereign rights and maritime spaces also rests on Colombia’s
enactment of Presidential Decree No 1946 of 9 September
2013, establishing an Integral Contiguous Zone (ICZ) around
Colombia’s islands In advancing this contention, Nicaragua
accuses Colombia of repudiating the Court’s 2012 Judgment 12
12 Memorial of Nicaragua, para 3 27
12
1 21 It is worth recalling that the Court’s Judgment of 19 November 201213established a single maritime boundary delimiting the exclusive economic zone and the continental shelf without addressing any matters relating to the contiguous zone As will be shown in Chapter 5,themere pronouncement by Colombia of an Integral Contiguous Zonearound its islands,which the Decree expressly stated would be done in conformity with international lawand with due regard to the rights of third States,14is not an internationallywrongful act and has in no way compromised Nicaragua’s sovereign rights and maritime spaces 1 22 The integral nature of the zone results from geography due to the fact that theislandsin the Archipelagoare lessthan 24 nautical miles fromeach other Moreover, the scope of jurisdiction providedfor in the contiguous zone is fundamentally different from the sovereign rights a coastal State isentitled to exercise in its exclusive economic zone; the two are not mutually incompatiblebut ratherare coexistent 1 23 As Colombia will demonstrate, neither the extent of the zone, nor the type of contingent powersthat its legislation provides for within the zone, is inconsistent with customary international law Nicaragua cannot point to a single act that Colombia has undertaken in its Integral Contiguous Zone that has had the slightest adverse effect on Nicaragua’s ability to 13Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment, I.C.J. Reports 2012,p 624(the 2012 Judgment) 14Annex7: Presidential Decree No 1946 of 9 September 2013, as modified and amended by Presidential Decree No 1119 of 17 June 2014 (composite version), Article 7
13
exercise the enumerated sovereign rights in the exclusive
economic zone or continental shelf In contrast, if Nicaragua has
its way, it is Colombia that will be precluded from fully
enjoying its rights under international law
C. Nicaragua’s Failure To Respect Its Own Obligations
and the Rights of the Inhabitants of the San Andrés
Archipelago, Including in Particular, the Raizal
Community
1 24 While Nicaragua’s Memorial harps on the rights it
claims Colombia has violated, it is silent regarding the fact that,
under customary international law, Nicaragua also has
obligations with respect to the exercise of its sovereign rights in
its maritime spaces with which it has failed to comply vis-à-vis
Colombia Nicaragua also has obligations to respect the fishing
rights and natural habitat of the inhabitants of the Archipelago
1 25 Under customary international law, Nicaragua has the
obligation to protect and preserve the marine environment This,
it has failed to do in the areas where it asserts its rights have
been affected, including in areas covered by the Seaflower
Biosphere Reserve and the Seaflower Marine Protected Area
Colombia has documented several episodes in which
Nicaraguan authorities have failed to prevent and remedy
predatory fishing practices by Nicaraguan flagged vessels,
which employ destructive methods within the ecologically most
sensitive parts of the Caribbean Sea to Colombia’s prejudice
without any control or due diligence on Nicaragua’s part These
14
not only cause serious harm to the environment, they violate the traditional fishing groundsand habitatof theinhabitants of the Archipelago 151 26 Nicaragua also has significant obligations of a customary and regional nature that are reflected in other instruments to which it and Colombia areparties These include, for example,the Cartagena Convention Colombia will revert to the sources of the legal obligations that Nicaragua has failed to respect in connection with its counter-claims D.Colombia’s Counter-claims1 27 It is precisely because Nicaragua is acting in violation ofits obligations towards Colombia and its people that Colombia is submitting a number of counter-claims with this Counter-Memorial Thesewill be addressed in Part III, where Colombia will show that:•Nicaragua has violated, and is violating,itsobligations to preserve and protect the marine environment, including its obligationto exercise due diligence,in the Southwestern CaribbeanSeaunder customary international law, which hasafundamentally adverse impact on the marine environment in the areaand on the rights of the inhabitants of the Archipelago 15See Chapters 8 and 9 infra
15
• By tolerating predatory fishing practices, including
by its flagged and licensed vessels in Colombia’s
territorial sea, Nicaragua has similarly violated the
rights of Colombia and the Raizal community as an
indigenous group, including their right to the
territories and natural resources of the areas that
form part of their natural habitat, and their human
rights
• Nicaragua has also failed to respect the traditional
fishing rights of the Raizal community and
Colombia in the same maritime areas; and
• Nicaragua’s straight baselines enacted after the
2012 Judgment, by which Nicaragua purports to
measure its maritime spaces that it asserts have
been violated by Colombia, are contrary to
international law and are not opposable to
Colombia If these are not corrected, Colombia’s
sovereign rights and maritime spaces will continue
to be injured
E. Outline of the Counter-Memorial
1 28 This Counter-Memorial is divided into three Parts
16
Part I deals with the factual, human, and legal background of the case •Chapter 2discusses the special circumstances that characterize the Southwestern CaribbeanSea as part of the overall context within which the conduct of the Parties falls to be assessed This context provides an important backdrop for considering Nicaragua’s claims as well asColombia’s counter-claims, the latter of which arise out of the same factual matrix •Chapter 3then turns to the rights and obligations of the Parties in the Southwestern Caribbeanwith respect to freedom of navigation and overflight, the protection and preservation of the marine environment, the customary rights of the inhabitants of the Archipelago to their traditional fishing grounds includingthe relationship of those rights to the environment, and the need to suppress transnational crime through, for example, the monitoring ofdrug trafficking and the transport of other illegal materials in the region As Colombia will show, its presence in and around the Archipelago has been in accordance with its rights, and in compliance with its dutiesand obligations under international law, having due regard for the rights of third States, including Nicaragua
17
Part II shows that, contrary to Nicaragua’s allegations,
Colombia has acted lawfully in the Caribbean Sea
• Chapter 4 addresses the factual and legal
deficiencies of Nicaragua’s claim that Colombia
has violated Nicaragua’s maritime rights and
spaces by allegedly harassing its vessels and
preventing Nicaragua from exercising its sovereign
rights within its maritime spaces Not only do the
facts adduced by Nicaragua in the present case fail
to substantiate its claims; Nicaragua’s own conduct
is incompatible with them
• Chapter 5 responds to Nicaragua’s claim that, in
enacting a decree establishing the ICZ, Colombia
has also violated Nicaragua’s sovereign rights and
maritime spaces Colombia will show why the
establishment of such a zone, which is critical for
Colombia and the region, is lawful and that neither
the contours of the ICZ nor the functions reserved
for Colombia within it are contrary to customary
international law or to the rights of other States
• Chapter 6 deals with the remedies Nicaragua seeks
as particularized in Chapter IV of the Nicaraguan
Memorial As will be explained, there are no
18
grounds for these remedies given that Colombia has not breached obligations owed to Nicaragua Part IIItakes upColombia’s counter-claims •In Chapter 7,Colombia will provide a brief overview of its counter-claims, andshow that the counter-claims fall within the jurisdiction of the Court Colombia will also set out the requirements for the admissibility of its counter-claims, and will demonstratethat these requirements have all been met in connection with each counter-claim Colombiawill (i) demonstrate that the counter-claimsareadmissible in that they aredirectly connected with the subject-matter of Nicaragua’s claims, (ii) set out the facts relevant to the counter-claims, and (iii) show how Nicaragua has breached its legal obligations •Chapter 8presents Colombia’s first two counter-claims, which are inter-related but distinct The first is based on Nicaragua’s violation of its duty to preserve and protect the marine environment of the Southwestern CaribbeanSeato the detriment of Colombia and the international community at large; the second is basedonNicaragua’sconcurrent violation ofthe rights of the inhabitantsof theArchipelago, including the Raizalpeople
19
These rights are dependent on the protection and
preservation of the marine environment forming
part of the habitat, and are thus closely connected
with the first counter-claim
• Chapter 9 then sets out Colombia’s third counterclaim,
which is based on Nicaragua’s failure to
respect the traditional fishing rights of the
inhabitants of the Archipelago and of Colombia
Legally and factually, these are separate rights
from those that the inhabitants enjoy with respect
to the environmental integrity of their habitat
• Chapter 10 addresses the factual and legal basis of
Colombia’s fourth counter-claim, which concerns
the illegal nature of the straight baselines that
Nicaragua enacted subsequent to the Court’s 2012
Judgment While Nicaragua asserts that Colombia
has violated its maritime spaces, the extent of those
spaces cannot be derived from straight baselines
that have been drawn in a manner that is in breach
of customary international law
The Counter-Memorial ends with a brief summary of
Colombia’s case (Chapter 11), followed by Colombia’s
Submissions and a list of appendixes, annexes and figures
20
29 Volume II contains appendixes, figures, and evidentiary materials in the form of documentary and other annexes
21
PART I
FACTUAL, HUMAN AND LEGAL
BACKGROUND OF THE CASE
22
23
Chapter 2
THE SPECIAL CIRCUMSTANCES OF THE
CARIBBEAN SEA AND COLOMBIA’S
REGULATORY RESPONSES
A. Introduction
2 1 In this chapter, Colombia will set out the special
circumstances that characterize the Southwestern Caribbean Sea
within which Nicaragua’s claims and Colombia’s counterclaims
fall to be assessed It is important for the Court to have
an understanding of these circumstances in order to appreciate
the importance that the area has for Colombia These factors
explain the reasons for Colombia’s presence in the relevant
waters and the actions it has taken to meet its legal duties, as
well as Nicaragua’s failure to fulfil its obligations under
international law
2 2 This section first addresses the consequences of the fact
that the Southwestern Caribbean is a semi-enclosed sea under
international law It then explains the inter-related nature of the
area The next three sections discuss various aspects of the
special circumstances of the area Section B focuses on the
distinctive characteristics and inter-related nature of the marine
environment; Section C describes the inhabitants of the
Archipelago and their traditional fishing practices; and Section
D addresses the significance of the physical and human
geography of the Archipelago, including concerns relating to
drug trafficking, transnational crime, and other security matters
24
(1)THE SOUTHWESTERN CARIBBEAN AS A SEMI-ENCLOSED SEA 2 3 Figure 2.1depicts the coastal geography of the Southwestern Caribbean Starting in the north and moving in a clockwise direction, the sea is bordered by Jamaica, Haiti, the Dominican Republic,Colombia, Panama, Costa Rica and Nicaragua Golfo deVenezuelaLago deMaracaiboLagodeNicaraguaCaribbeanSeaPACIFICOCEANIsla deCozumelSwan IslandsUtila I.Roatan I.Guanaja I.GrandCaymanLittleCaymanCaymanBracSan Andrés I.ArubaLosMonjesCuraçaoLittle Corn I.Great Corn I.Santa Catalina I.NetherlandAntillesQuitasueñoCaySerrana CayProvidencia I.Roncador CayEast Southeast CaysAlburquerque CaysGorda I.Cajones Is.Bajo Nuevo CaySerranilla CayMiskitosCaysELSALVADORCOSTA RICAPANAMABELIZEHONDURASMEXICOJAMAICAHAITICUBACOLOMBIANICARAGUA GUATEMALA DOMINICANREPUBLICVENEZUELACayman Islands(UK)20°N15°N10°N20°N15°N75°W 70°W 80°W 85°W 75°W 70°W 80°W 85°W THE SOUTHWESTERN CARIBBEAN:A SEMI-ENCLOSED SEA0150200100500100200300Nautical MilesKilometersCoastal information sources:NGA nautical charts: 24460, 24470, 24480, 24490, 26050, 26060, 26070, 28050, 28110, 28120, 28130, 28140, 28150, 28162, 28167, 28190.Colombian nautical charts: 044, 045, 046, 201, 203, 204, 208, 211, 213, 215, 218, 416, 630, 631, 634, with supplemental information collected by theColombian Navy in 2008.Mercator ProjectionDatum: WGS-84(Scale accurate at 15°N)Prepared by: International Mapping400Figure 2.1
25
2 4 There are no areas within the southwest part of the
Caribbean which Colombia and Nicaragua front that are more
than 200 nautical miles from the nearest land territory
Consequently, the Southwestern Caribbean falls within the
classical definition of a semi-enclosed sea Per force, then, the
whole of the waters of the Southwestern Caribbean belong to the
exclusive economic zone of the riparian States and there are no
areas of the high seas within the confines of this semi-enclosed
sea
2 5 The islands within this sea which make up the San Andrés
Archipelago are: San Andrés, Providencia, Santa Catalina, the
Alburquerque Cays, the East-Southeast Cays, Quitasueño,
Roncador, Serrana, Serranilla and Bajo Nuevo Sovereignty over
these islands rests with Colombia, and the inhabitants who live
on them, including the Raizales, are Colombian nationals The
entire sea is a fragile ecological unit, with the most sensitive
areas comprising the Seaflower Biosphere Reserve and the
Seaflower Marine Protected Area lying within the area bounded
by the Colombian islands
2 6 The fact that the Southwestern Caribbean is a semienclosed
sea has legal, as well as environmental, social and
security implications 16 The area is especially vulnerable to
16 For example, Article 123 of UNCLOS, which is binding on
Nicaragua as a party to the Convention, provides inter alia for States
bordering an enclosed or semi-enclosed sea to coordinate the management,
conservation, exploration and exploitation of the living resources and the
implementation of their rights and duties with respect to the protection and
preservation of the marine environment
26
predatory and destructive fishing practices, which harm the underlying coral reefs, and are incompatible with the fundamental obligationunder customary international lawto protect and preserve the marine environment 2 7 Colombia has taken the lead in regulating, monitoring and sanctioning such practicesin fulfilment of its legal dutiesunder customary international law As discussed later in this chapter,legal instruments, includingthe Cartagena Convention, and other arrangements to protect and preserve the marine environment and its ecosystems, such as the establishment of the Seaflower Biosphere Reserve and Seaflower Marine Protected Area, are critical parts of the normative structure that is designed to conserve the living resources of the area 2 8 Nicaragua has shown no interest in doing the same To the contrary, as will be shown in Chapter 8, Nicaragua has flagrantly breached its obligations to preserve and protect the marine environment and to exercise due diligence over its nationals and licensedvessels operating in these waters (2)THE INTER-RELATED NATURE OF THE AREA 2 9 The San Andrés Archipelago, includingits islands, cays and banks, is a natural, politicaland social unity With regard to its environment, its inhabitants and more generally its “functioning”, the Archipelago is not just an addition of independent features Rather, it is an area in which eachelement
27
is connected to the others in such a manner as to form an interdependent unit encompassing an ecosystem that can be soundly administered only when taken as a whole. 2 10 One aspect of this interconnectivity is that the local inhabitants of the Archipelago, including the Raizal people, are heavily dependent on traditional fishing and sea-based tourism for their livelihood Yet the living resources of the area are situated in an extremely sensitive ecosystem that is interconnected by a series of coral reefs and other submarine features. These resources in turn face a real risk of depletion and even extinction by over-fishing, destructive fishing practices, and pollution from vessels and human activity Those practices have an adverse knock-on effect on other parts of the ecosystem, and endanger the traditional fishing rights of the local population and their very existence, as well as the environment of an internationally recognized biosphere 2 11 At the same time, the area in and around the Archipelago is used as a major maritime route for the commission of transnational crimes Colombia is the only State with the ability to monitor and control this illegal activity from its bases on the Island of San Andrés and its outposts on other of the islands It is also the only State to have a genuine interest in protecting the natural habitat of the population of the islands 2 12 The combination of these factors explains the importance to Colombia of its right to exercise freedom of navigation and
28
overflight in the area It is only by maintaining this presence that Colombia can monitor activities which threaten an area that is critical to its own people, Caribbean coastal States, and the wider international community It also explains the need for measures taken by the Colombian Government in the aftermath of the Court’s 2012 Judgment, such as Presidential Decree 1946 of 9 September 2013, reinstating the essential unity of the San Andrés Archipelago and establishing an Integral Contiguous Zone composed of the sum of the overlapping contiguous zones of its island components B. The Marine Environment and Colombia’s Protective Measures (1) DISTINCTIVE CHARACTERISTICS OF THE MARINE ENVIRONMENT 2 13 The waters of the San Andrés Archipelago are recognized to be of “a regional and global [ecological] significance”, which is “one of the world’s top ten regions exceptionally rich in marine species and facing extreme threat”.17 2 14 The Archipelago’s complex reef system is the most extensive in the Soutwestern Caribbean Sea and a major site of coral and fish diversity It has been identified as a biodiversity hotspot and “is part of the Caribbean Terrestrial Biodiversity 17 UNESCO Man and the Biosphere Program - MAB/ CORALINA, Evaluation Report Seaflower Biosphere Reserve Implementation: The First Five Years 2000-2005, by M Howard, June 2006, p 8 Available at: http://www unesco org/csi/smis/siv/Caribbean/San_actEnvEd_Seaflower2000-2005%20 pdf (Last visited: 10 Nov 2016)
29
Hotspot and also the Western Caribbean Coral Reef Hotspot” 18
Its ecosystems include barrier and fringing reefs, lagoons,
seagrass beds, and coastal mangroves of San Andrés,
Providencia, and Santa Catalina; the reefs and shallow
sandbanks surrounding the group of cays comprising the East-
Southeast Cays; the reef terrace of Alburquerque; the large coral
structure at Quitasueño, which is almost 60 km long and 20 km
wide, with a 40 km reef wall and 496 km2 of live coral
coverage; the complex reef system 37 km by 30 km, with 75
km2 of live coral coverage of Serrana; and the 30 km2 of live
coral coverage of Roncador
2 15 This complex forms the base of the Archipelago’s
ecosystems There is a continuous flow of biomass between
coral reefs and the different coastal and marine habitats,
including beaches, seagrass beds and mangroves 19
2 16 Seagrass beds perform a number of important roles In
particular, they serve as habitats for a wide range of organisms
They provide food for species such as parrot fish, surgeonfish,
18 UNESCO Man and the Biosphere Program - MAB/ CORALINA,
Evaluation Report Seaflower Biosphere Reserve Implementation: The First
Five Years 2000-2005, by M Howard, June 2006, p 8 Available at:
http://www unesco org/csi/smis/siv/Caribbean/San_actEnvEd_Seaflower200
0-2005%20 pdf (Last visited: 10 Nov 2016)
19 J B R Agard, A Cropper, Caribbean Sea Ecosystem Assessment
(CARSEA), A contribution to the Millennium Ecosystem Assessment,
prepared by the Caribbean Sea Ecosystem Assessment Team, Caribbean
Marine Studies, Special Edition, 2007, pp 12-21 Available at:
http://www icmyl unam mx/pdf/GRAMED/Assessments_Delivery-Item-
1/GRAMED_revised/pdf_support%20information/GRAMED_before%20201
2_pdf/Caribbean%20Sea%20Ecosystem%20Assessment_COMPL1 pdf
(Last visited: 10 Nov 2016)
30
Queen Conch,20 sea urchin and green turtles They are important in the marine food chain, as they act as a nursery for many commercial species of fish, crustaceans and molluscs, while reef-based carnivores venture off into nearby seagrass beds in search of food 21 2 17 Mangroves fulfil important socioeconomic and environmental functions, including the provision of a variety of wood and non-wood forest products, coastal protection against the effects of wind, waves, and water currents, conservation of biological diversity (reptiles, amphibians and birds), protection of coral reefs and seagrass beds They also provide habitat, spawning grounds and nutrients for a variety of fish and shellfish, including many commercial species Mangroves can also provide income as eco-tourist attractions 22 2 18 Healthy reefs provide an abundant variety of foods, including fish, crustaceans, molluscs, sea cucumbers, and sea-weeds Fisheries are one of the most direct forms of human dependence on reefs, providing vital food, income, and employment Reef fisheries are largely small-scale and artisanal, resulting in a low barrier to entry, making them particularly attractive as a source of livelihood for the inhabitants of the Archipelago, including the Raizal people 20 Queen Conch’s scientific name is Lobatus gigas or Strombus gigas. In Spanish it is known as “Caracol Pala”. 21 J B R Agard, A Cropper, op. cit , p 13 22 Ibid , p 15
31
2 19 Coral reefs also play a valuable role in buffering coastal communities from the physical impacts of wave action and storms, thereby reducing coastal erosion and lessening wave-induced flooding Coral reefs typically mitigate 75 to 95 percent of wave energy 2 20 In addition, coral reefs are important for tourism, an activity which is particularly significant for the economy of the Archipelago Reef tourism attracts divers Beyond the transport and guiding of tourists on diving sites, expenses of divers and snorkelers also support a range of businesses such as dive shops, hotels, restaurants, and transportation Reef tourists also include beach visitors, in areas where sand is supplied by nearby reefs Additionally, the overall natural environment associated with coral reefs, including birds that are found in the mangroves, attracts eco-tourism, an increasingly popular and economically important activity It should be mentioned, however, that while tourism is an important activity for the region, Colombian regulations dictate that certain islands of the Archipelago are not accessible to tourists in order to protect the environment 2 21 These features of the Archipelago are connected by a complex ecosystem While much remains unstudied to date, experts note that:
32
“The deep water between sites… is important for flows, connectivity, spawning aggregations, larval dispersal, maintaining marine food webs, etc.”23 (2) THE FRAGILITY OF THE ARCHIPELAGO’S ECOSYSTEM 2 22 The fragility of the Caribbean ecosystem is well documented Threats include marine-based pollution and damage due to pressures from shipping and boating (such as the dumping of garbage, oil spills, discharge of ballast, and physical damage caused by groundings and anchors), overfishing or other predatory practices, the introduction of alien fish species24, beach erosion, and rising sea temperatures due to climate change 2 23 Overfishing threatens over 60 percent of Caribbean coral reefs Fishing above sustainable levels affects coral reefs by altering the ecological balance of the reef The removal of herbivorous fish, which consume algae, facilitates algal overgrowth of corals Currently, declines in coral cover and increases in algal cover have been observed across the region; about one-third of Caribbean reefs are at high threat from overfishing and about 30 percent at medium threat Moreover, it is estimated that 15 percent of Caribbean reefs are threatened by 23 Listing of Protected Areas under the Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Specially Protected Areas and Wildlife, Seaflower Marine Protected Area, site description Available at: http://www spaw-palisting org/area_public/show/id/31/template/C3_2 (Last visited: 10 Nov 2016) 24 Lionfish (Pterois) is recognized as an alien species and may cause serious deleterious consequences on local species It can reduce by 79% the recruitment of native fish
33
the discharge of wastewater from cruise ships, tankers and yachts, leaks or spills from oil infrastructure, and damage from ship groundings and anchors 25 2 24 While the coastal States of the Caribbean Sea are aware of this situation (which led to conclusion of the Cartagena Convention, amongst other responses), it is of particular concern to Colombia and the inhabitants of the Archipelago This is because the Archipelago not only contains one of the most extensive reef areas in the Western Atlantic, but is also a particularly complex one susceptible to the threats mentioned above For instance, out of all the species of fish identified in the Seaflower Marine Protected Area, 53 are on the Red List of Threatened Species maintained by the International Union for Conservation of Nature (IUCN) 26 (3) COLOMBIA’S PROTECTIVE MEASURES IN THE AREA (a) Colombia’s Responses to the Environmental Concerns 2 25 In response to these threats to the equilibrium of the Archipelago, Colombia has adopted a number of protective measures In particular, Colombia has been taking steps to protect and preserve the area around and between the islands comprising the Archipelago most vulnerable to these risks 27 25 L. Burke, J. Maidens, Reefs at Risk in the Caribbean, World Resources Institute, 2004, p 12 Available at: http://pdf wri org/reefs_caribbean_full pdf (Last visited: 10 Nov 2016) 26 Ibid., p 13 27 See, for instance, Colombian Institute for Agrarian Reform, Resolution No 206 of 1968; National Institute of Renewable Natural
34
The practices which Colombia has been trying to discourage and control include over-fishing, the use of explosives and scuba gear which damage the coral reef environment and results in serious waste, and the indiscriminate use of nets that capture the living resources without regard to the particular species or their risk of depletion Colombia has also had to deal with abandoned fishing vessels and pollution from ships, and even undertake search and rescue missions, including for Nicaraguan flagged vessels that have engaged in prejudicial activities 28 Colombia’s efforts to control this situation date back more than six decades 29 2 26 As early as 1972, when Colombia and the United States signed a treaty resolving their differences over the islands of Quitasueño, Roncador and Serrana – the waters of which formed part of this ecosystem – U S fishing in these waters was agreed to be subject to reasonable conservation measures applied by the Resources and Environment, Agreement No 028 of 1970; National Institute of Renewable Natural Resources and Environment, Executive Resolution No 23 of 1971; Law No 47 of 1993; Law No 99 of 1993; Ministry of Environment, Resolution No 1021 of 1995; Ministry of Environment, Resolution No 013 of 1996; Ministry of Environment, Resolution No 1426 of 1996; Corporation for the Sustainable Development of the San Andrés, Providencia and Santa Catalina Archipelago – CORALINA, Resolution No 163 of 1999; Departmental Decree No 325 of 2003; Law No Ley 915 de 2004; Ministry of Environment, Resolution No 876 of 2004; Ministry of Environment, Resolution No 107 of 2005 (Annex 4); CORALINA, Agreement No 021 of 2005 (Annex 5); CORALINA, Agreement No 025 of 2005 (Annex 6); Ministry of Environment, Resolution No 0149 of 2006; Ministry of Environment, Resolution No 019 of 2007 See also para 3 43 infra 28 Details of these kinds of activities are discussed in Chapters 4 and 8 29 See, for example, Colombian Institute for Agrarian Reform, Resolution No 206 of 16 December 1968 (Annex 2)
35
Government of Colombia 30 This was critical since U S flagged
fishing vessels were the most numerous foreign fishing vessels
in the region at the time In 1983, Colombia and the United
States engaged in a further Exchange of Notes providing for
Colombia’s right to monitor the arrival and departure of U S
vessels in the waters of the islands and to receive a statement on
the quantity and species of any catch 31
2 27 Further agreements were reached between Colombia and
the United States in 1987 and 1989 The 1987 arrangements
included a temporary ban on conch fishing in the waters of
Quitasueño to prevent the depletion of stocks. The 1989
agreement continued this ban, and adopted a three-month closed
season for Queen Conch fishing around Roncador and Serrana,
and a prohibition on the capture of Caribbean Spiny Lobster32 of
less than a specified size 33
2 28 Colombia adopted further fishing regulations to preserve
the marine environment in 1990 These extended the ban on
conch fishing off Quitasueño, placed size limitations on the
capture of Spiny Lobsters and imposed restrictions on certain
kinds of dive equipment and nets, and on fishing carried out by
30 Territorial and Maritime Dispute (Nicaragua v Colombia),
Counter-Memorial of Colombia (Vol. II), Annex 3, pp 18-20
31 Ibid , Annex 8
32 Caribbean Spiny Lobster’s scientific name is Panulirus argus. In
Spanish it is known as “Langosta Espinosa del Caribe”.
33 Territorial and Maritime Dispute (Nicaragua v Colombia),
Counter-Memorial of Colombia (Vol. II), Annexes 11 and 13
36
factory ships 34None of these regulations were protested; all of them were put into place forthe purpose of protecting and preserving the marine environment 2 29 In 1994, and again in 1996, Colombia and the United States entered into further arrangements which gave Colombia the right to board U S flagged vessels to verify compliance with Colombia’sregulations and to enact further conservation measures The two countries also agreed to cooperate in developing an action plan for evaluating the fishing resources of the area and the threats they faced 352 30 Further north, Colombia entered into a series ofagreements with Jamaicaregulating artisanal fishing by Jamaican nationals and vessels in the waters around the cays of Bajo Nuevo and Serranilla The first such agreement was signed on 30 July 1981 36It was supplemented by a further agreement concluded on 30 August 1984,37and an agreement of 12 November 1993 establishing, inter alia, a Joint Regime Area around theseislands 382 31 In the 1981 and 1984 agreements, Colombia conditioned Jamaican fishing on a series of environmental regulations These included limits on the number and size of vessels that were 34Territorial and MaritimeDispute (Nicaragua v. Colombia), Counter-Memorial of Colombia (Vol.II),Annex 151 35Ibid., Annexes 16, 68 and 150 36Ibid ,Annex 7 37Ibid ,Annex 9 38Ibid.,Annex 14
37
allowed to operate in the waters of the Cays, limits on the type
of species that could be caught and the maximum annual catch,
regulations as to the type of fishing gear that could be employed
and reporting obligations Vessels flying the Jamaican flag were
also subject to all relevant laws and regulations of Colombia
pertaining to conservation of the living resources, the
preservation of the environment, pollution, sanitation,
navigation and other such areas
2 32 All of these actions attested to Colombia’s concern to
preserve and protect the marine environment and conserve the
living resources of the area, and its determination to take
concrete actions to this end In the meantime, Colombia was one
of the main States that pushed for the negotiation and conclusion
of the Convention for the Protection and Development of the
Marine Environment of the Wider Caribbean Region, otherwise
known as the “Cartagena Convention”, of which it acts as
depository The next section turns to this convention and the
establishment of the Seaflower Biosphere Reserve under the
auspices of UNESCO and the Seaflower Marine Protected Area
(b) Regional Arrangements and Colombia’s Implementation
(i) The Cartagena Convention
2 33 The Cartagena Convention was signed in Cartagena,
Colombia on 25 March 1983 It entered into force on 11 October
1986 At the time it was concluded, the Convention was the only
legally binding environmental treaty in the Caribbean Colombia
38
signed the Convention at the time it was adopted and ratified it in 1988. Nicaragua, in contrast, took over 22 years to ratify the Convention, only doing so in August 2005 2 34 The text of the Cartagena Convention may be found in Annex 17 As its Preamble records, the Convention was entered into in the lightof the Contracting Parties’ recognition of the economic and social value of the marine environment, their responsibility to protect this environment and its ecosystems, and the special hydrographic and ecological characteristics of the region and its vulnerability to pollution and environmental deterioration 2 35 The obligations encapsulated in the Convention are based on, amongstothers, the customary international law principle to preserve and protect the environment Under Article 4 of the Convention, the Contracting Parties shall, individually or jointly, take“…all appropriate measures in conformity with international law and in accordance with this Convention and those of its protocols in force to which they are parties to prevent, reduce and control pollution of the Convention area and to ensure sound environmental management, using for this purpose the best practicable means at their disposal and in accordance with their capabilities” 3939Article 3, paragraph 3 of the Convention stipulates that: “Nothing in thisConvention shall prejudice the present or future claims or the legal views of any ContractingParty concerning the nature and extent of maritime jurisdiction”
39
Paragraph 3 of Article 4 provides that the Contracting Parties
“shall co-operate in the formulation and adoption of protocols or
other agreements to facilitate the effective implementation of
this Convention”
2 36 Article 10, which is entitled “Specially Protected Areas”,
provides that the “Contracting Parties shall, individually or
jointly, take all appropriate measures to protect and preserve
rare and fragile ecosystems, as well as the habitat of depleted,
threatened or endangered species” To this end, the article
provides that “the Contracting Parties shall endeavour to
establish protected areas”, which shall not affect the rights of
other Contracting Parties and third States In view of the fragile
nature of the ecosystem around Colombia’s islands, Colombia
has established a Marine Protected Area in part of the sea that is
most susceptible to ecological degradation (discussed below)
2 37 Under Article 17 of the Cartagena Convention, the
Contracting Parties may adopt additional protocols to the
Convention pursuant to paragraph 3 of Article 4 Three
protocols to the Convention have been concluded: the 1983 Oil
Spill Protocol, the 1990 Specially Protected Areas and the 1999
Wildlife Protocol, and the Land-based Sources of Marine
Pollution Protocol
2 38 For the purposes of this case, it is the second of these
Protocols – the Protocol Concerning Specially Protected Areas
and Wildlife to the Convention for the Protection and
40
Development of the Marine Environment of the Wider Caribbean Region, known as the SPAW Protocol –that is important 40The Protocol was adopted in 1990 and came into force in 2000 Colombia acceded to SPAW in January 1998 Nicaragua has not signed or ratified the SPAW Protocol, although many other countries both within and outside of the region have done so 412 39 The Preamble to the SPAW Protocol acknowledges the special hydrographic, biotic and ecological characteristics of the Wider Caribbean Region It also refers to the grave threat posed by ill-conceived development options to the integrity of the marine and coastal environment, and the overwhelmingecological, economic, aesthetic, scientific, cultural, nutritional and recreational value of rare or fragile ecosystems It also notes that protection and maintenance of the environment of the Wider Caribbean Region are essential to sustainable developmentwithin the region 2 40 Article 4 of the SPAW Protocol obligates parties, “when necessary, [to] establish protected areas … with a view to sustaining the natural resources of the Wider Caribbean Region, and encouraging ecologically sound and appropriate use,40Annex 18:Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region(SPAW Protocol),adopted in Kingston, Jamaica,on 18 January 1990 41The following States have signed and ratified the SPAW Protocol: Bahamas, Barbados, Belize, Colombia, Cuba, Dominican Republic, France, Grenada, Guyana, Netherlands, Panama, Saint Lucia, St Vincent and the Grenadines, Trinidad and Tobago, United States of America and Venezuela
41
understanding and enjoyment of these areas, in accordance with
the objectives and characteristics of each of them”
2 41 Under Article 5 of the Protocol, parties have the
obligation, in conformity with their national laws and
regulations and with international law, progressively to take
such measures as are necessary and practicable to achieve the
objectives for which a protected area has been established A
host of measures that should be adopted as appropriate are then
listed
2 42 Article 7, paragraph 3, sets out the procedures for the
establishment of the list of protected areas States may nominate
such areas If they do so, they must provide the necessary
supporting documentation to the Scientific and Technical
Advisory Committee, which evaluates the nomination and
advises the United Nations Environment Programme (UNEP),
which is the “Organization” designated in Article 15 of the
Cartagena Convention to carry out this function, as to whether
the nomination fulfils the guidelines and criteria established
pursuant to Article 21 of the Protocol If these guidelines and
criteria are met, the Organization will advise the Meeting of
Contracting Parties who will include the nomination in the List
of Protected Areas
2 43 As will be seen, for Colombia, the designation and
regulation of a Marine Protected Area was critical not only to
protect and preserve the ecosystem that exists within the waters
42
of the Archipelago, but also to take into account the traditional rights and interests of the indigenous Raizal peoplethat liveson the islands and dependson the sustainability of the living resources within the waters that have always formedpart of their natural and traditional habitat (ii)The Seaflower Biosphere Reserve2 44 In the 1970s, UNESCO launched its Man and the Biosphere (MAB) Programme designed to enable States to nominate biosphere reserves with the objective of achieving a sustainable balance between goals of conserving biodiversity, promoting economic development, and maintaining associated cultural values Biosphere Reserves are areas of terrestrial and coastal/marine ecosystems which are internationally recognized within the framework of UNESCO’s MAB Programme.42As the Seville Strategy devoted to the project stated in its review of the Programme in 1995: “Each biosphere reserve is intended to fulfil three complementary functions: a conservation function, to preserve genetic resources, species, ecosystems and landscapes; a development function, to foster sustainable economic and human development,and a logistic support function, to support demonstration projects, environmental education and training, and research and monitoring related 42Biosphere Reserves: The Seville Strategy & Framework of the World Network, endorsed at the 13thsession of the International Co-ordinating Council of the Man and the Biosphere (MAB) Programme, Seville, 12-16 June 1995 Available at:http://unesdoc unesco org/images/0010/001038/103849Eb pdf (Last visited: 10 Nov 2016)
43
to local, national and global issues of conservation
and sustainable development” 43
A further goal is to promote biosphere reserves “as means of
implementing the goals of the Convention on Biological
Diversity” 44
2 45 The procedure for designating a biosphere reserve under
the MAB Programme is set out in Article 5 of the Statutory
Framework of the World Network of Biosphere Reserves.45
States forward nominations with supporting documentation to
the secretariat, taking into account the criteria for a reserve as
defined in Article 4 of the Statutory Framework. After the
secretariat verifies the content of the submission, the nomination
is considered by the Advisory Committee for Biosphere
Reserves for recommendation to the International Co-ordinating
Council (ICC) of the MAB Programme
2 46 The Advisory Committee is the primary scientific and
technical committee advising the ICC and the Director-General
of UNESCO on matters pertaining to the World Network of
Biosphere Reserves The ICC is the MAB’s main governing
body It consists of 34 Member States elected by UNESCO’s
43 Biosphere Reserves: The Seville Strategy & Framework of the
World Network, op. cit., p 4
44 Ibid., Goal I, Objective I 1, recommended at the international level,
No 1
45 Statutory Framework of the World Network of Biosphere Reserves,
Art 5 Available at:
http://unesdoc unesco org/images/0010/001038/103849Eb pdf (Last visited:
10 Nov 2016)
44
biennial General Conference Under Article 5(1)(d) of the Statutory Framework, the ICC takes a decision on nominations for designation 2 47 Recognizing the need to protect and preserve the ecosystem of the sea bed and waters of the Archipelago, and to foster understanding of the principles of sustainable development amongst the local population, Colombia nominated the Seaflower Biosphere Reserve under UNESCO’s MAB Programme on 25 September 2000 The reserve covered areas of Colombia’s EEZ, over which ithad control at the time, in line with its international obligations to protect the marine environment Colombia’s nomination was duly considered by the ICC, which approved the submission and officially designated the Seaflower Biosphere Reserve for inclusion in the World Network of Biosphere Reserves in 2000.462 48 The Seaflower Biosphere Reserve was established in line with customary international law which calls for all States to preserve and protect the environment The manner in which the Seaflower Biosphere Reserve’s objectives have been drawn reflects the integrity of the area that it covers They are to achieve a sustainable balance between biodiversity conservation, economic development, and cultural survival In order to achieve thesegoals, the biosphere reserve is designed to fulfil 46UNESCO, Biosphere Reserve Information: Colombia, Seaflower Available at:http://www unesco org/mabdb/br/brdir/directory/biores asp?mode=all&code=COL+05 (Last visited: 10 Nov 2016)
45
three complementary functions: conservation (preserve genetic
resources, species, ecosystems, and landscapes); development
(foster sustainable economic and human development); and,
logistic support (support demonstration projects, environmental
education and training, research and monitoring related to local,
national, and global issues of conservation and sustainable
development) 47
2 49 The area covered by the Seaflower Biosphere Reserve is
depicted on Figure 2.2 As the MAB Programme’s “General
Description” of the reserve indicates, it comprises areas of
coastal mangrove swamps and “highly intact and productive
associated coral reef ecosystems, [which are] a major site of
coral and fish diversity” 48 The administrative authority for the
Seaflower Reserve in Colombia is the Corporation for the
Sustainable Development of the Archipelago of San Andrés,
Providencia and Santa Catalina (CORALINA)
47 M W Howard, Evaluation Report Seaflower Biosphere Reserve
Implementation: The First Five Years 2000–2005, Archipelago Of San
Andrés, Old Providence & Santa Catalina, June 2006, p 7 Available at:
http://www unesco org/csi/smis/siv/Car ibbean/San_actEnvEd_Se
aflower2000-2005%20 pdf (Last visited: 10 Nov 2016)
48 UNESCO, Biosphere Reserve Information: Colombia, Seaflower
Available at:
http://www unesco org/mabdb/br/brdir/directory/biores asp?mode=all&code=
COL+05 (Last visited: 10 Nov 2016)
46
CaribbeanSeaPACIFICOCEANSerranilla CayGuanaja I.San Andrés I.LittleCorn I.GreatCorn I.Santa Catalina I.QuitasueñoCayProvidencia I.Roncador CayEast Southeast CaysAlburquerque CaysSerranaCayGorda I.Cajones Is.Bajo Nuevo CayMiskitosCaysCOSTA RICAPANAMAHONDURASCOLOMBIANICARAGUAVENEZUELA10°N10°N15°N75°W 80°W 85°W 80°W 85°W Seaflower BiosphereReserveBoundary from the2012 ICJ JudgmentJOINTREGIMEAREA(Colombia / Jamaica)JOINT REGIMEAREA(Colombia / Dominican Republic)Costa RicaPanamaColombiaNicaraguaNicaraguaColombiaCol.Col.HonNic411143222JamaicaColombiaHaitiColombia1AB23456798COLOMBIA’S SEAFLOWER BIOSPHERERESERVE0150200100500100200300Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping40012 M Territorial SeaColombiaPanamaFigure 2.2
47
2 50 CORALINA has played a key role in the management of
the Seaflower Biosphere Reserve, a role made possible by
domestic Colombian legislation and administration 49 In respect
of the main concerns of the Archipelago, its natural environment
and the related human interaction, especially fishing,50 the
principal governing actors at the local level are CORALINA,51
the Agriculture and Fishing Secretary,52 the Public Services and
Environment Secretary,53 the Departmental Government of the
Archipelago of San Andrés and the Municipality of Providencia
and Santa Catalina,54 and the Departmental Board of Fishing
49 The Colombian legislation grants to the Archipelago a large degree
of autonomy for its governance (Colombian Constitution, Arts 310 and 42
transitory; Presidential Decree 2762 of 1991, Art 1; Law 47 of 1993, Art 1;
and Law 915 of 2004, Art 1) and for the management of its natural resources
(Colombian Constitution, Arts 79, 80, 150-7 and 310; Law 47, Arts 5, 23-
30; Law 99 of 1993, Art 37; Law 915, Art 24-47)
50 On the human interaction with the Archipelago’s features, see
Chapter 2, Sec C infra
51 The Board of Directors of CORALINA is composed of: a The
Minister of Environment or his representative; b The Governor of the
Archipelago Department of San Andrés, Providencia and Santa Catalina who
shall preside it; c A representative of the President of the Republic; d The
Director of Institute of Marine and Coastal Investigation (INVEMAR);
e A representative of the economic groups existing in the Archipelago; f A
representative of the artisanal, agriculture and livestock and fishing
production groups duly incorporated in the Archipelago; g The Director of
the General Maritime Directorate of the Ministry of Defense; h The
members of the Board for the Protection of Natural and Environmental
Resources of the Archipelago Department of San Andrés, Providencia and
Santa Catalina
52 As its name indicates, the Agriculture and Fishing Secretary has the
function of controlling and monitoring all activities related to the fishing and
agriculture activities in the Archipelago
53 The Public Services and Environment Secretary has the function of
developing the activities of the Environmental System of the Archipelago
Department and programs for the due preservation, administration and
sustainable use of the natural resources therein
54 The Departmental Government of the Archipelago of San Andrés
and the Municipality of Providencia and Santa Catalina, are in charge of
48
and Aquaculture 55CORALINA’s authority includes land and sea, allowing the agency to advance across-sectoral approach to marine resource management emphasized by the White Water to Blue Water Initiative, the World Summit on Sustainable Development (WSSD), and the International Coral Reef Initiative (ICRI) 562 51 Amongst its tasks, CORALINA carries out studies on climate, oceanography, hydrology, the flora and fauna of the reserve, socio-economic aspects and long-term monitoring of the marine ecosystems In order to increase awareness, CORALINA has organized a special programme of education, public awareness and community involvement amongst the local population of the islands in order for them to develop and understand the philosophy and approaches of the MAB executing the fishingpolicy of the national government; regulating and enforcing the fishing activity and periodically establishing the maximum number of boats, their kind and size, in order to not exceed the maximum allowed yield 55The Departmental Board of Fishing an Aquacultureis formed by nine members: the Governorof the Archipelago; the Agriculture and Fishing Secretary; amember from the General Maritime Directorateof the Ministryof Defense(DIMAR); andpersons representing respectively CORALINA, SENA (National Service for Learning), the National Presidency, artisanal fishers from Providencia, artisanal fishers from San Andrés, and industrial fishers They have to find agreementson the regulatory system for fishing and land use, and the control of illegal activities at the sea such as drug trafficking.56United NationsEnvironment Programme (UNEP),Annotated format for presentation reports for the areas proposed for inclusion inthe SPAW List (Revised draft) Fourth Meeting of the Scientific and TechnicalAdvisory Committee (STAC) to the ProtocolConcerning Specially Protected Areas and Wildlife (SPAW)in the Wider Caribbean Region Gosier, Guadeloupe, France, 2-5 July 2008 Par 8, P 2 Available in: http://www car-spaw-rac org/IMG/pdf/Colombia_-_Presentation_report_for_the_Seaflower_MarineProtected_Area-3 pdf (Last visited: 10 Nov 2016)
49
Programme in cultural, environmental and economic terms As
the MAB Programme Information notes:
“To contribute to sustainable economic and human
development, the biosphere reserve will support
eco and ethno-tourism, and strengthen traditional
native pursuits of subsistence agriculture, small
animal rising, and artisan fishing that promotes
self-sufficiency ”57
2 52 The area covered by the Seaflower Biosphere Reserve is
rich in biological resources that are in serious need of protection
and preservation These include some 400 species of fish, 170
species of macroalgae, 99 species of hard and soft coral, 66
species of invertebrates, which include lobsters and other similar
creatures, and four of the seven species of sea turtles in the
world 58 Colombia’s action in creating the Reserve has
contributed to the sustainability of its living resources and has
raised awareness of the importance of the protection of the
marine environment in the region
(iii) The Seaflower Marine Protected Area
2 53 Largely in response to the concerns expressed by the
local Raizal population, who were worried about the protection
of the environment surrounding the Archipelago and about over-
57 UNESCO, Biosphere Reserve Information: Colombia, Seaflower
Available at:
http://www unesco org/mabdb/br/brdir/directory/biores asp?mode=all&code=
COL+05 (Last visited: 10 Nov 2016)
58 Overview of the Seaflower Biosphere Reserve Available at:
http://www caribbeancolombia com/content/reserva-de-biosfera-seaflowersan-
andres (Last visited: 10 Nov 2016)
50
fishing and the conservationof their traditional fishing areasand resources, Colombia initiated a project, executed by CORALINA, entitled “Caribbean Archipelago Biosphere Reserve: Regional Marine Protected Area System” in June, 2000. This project built on an initiative to work on environmental problems in the Archipelago in 1998 that was partnered by Scotland’s Heriot-Watt University and funded by the European Union 2 54 On 27 January 2005, Colombia established the Seaflower Marine Protected Area (the “Seaflower MPA”) as the next step in the process The Seaflower MPAis depicted on Figure 2.3 It is comprised within the larger Seaflower Biosphere Reserve and covers maritime areas in the vicinity of the islands of San Andrés, Providencia, Santa Catalina, Quitasueño, Serrana, Roncador, the Alburquerque Cays and the East-Southeast Cays where the ecosystems are deemed to be subject to particularly high risks. As the Proposal for the listing for the Marine Protected Area under the SPAW Protocol noted:“The MPA was created in response to a demand from the islander community -that has depended on marine resources for their livelihood for centuries -for improved conservation of marine biodiversity and management to promote sustainable use ”5959Annex 89: Proposed areas for inclusion in the SPAW List, Annotated Format for Presentation Report for Seaflower Marine Protected Area, Colombia, 5 Oct 2010, p 5
51
CaribbeanSeaPACIFICOCEANGuanaja I.San Andrés I.LittleCorn I.GreatCorn I.Santa Catalina I.QuitasueñoCayProvidencia I.Roncador CayEast Southeast CaysAlburquerque CaysSerranaCayGorda I.Cajones Is.Bajo Nuevo CaySerranilla CayMiskitosCaysCOSTA RICAPANAMAHONDURASCOLOMBIANICARAGUAVENEZUELA10°N10°N15°N75°W 80°W 85°W 80°W 85°W Seaflower BiosphereReserveSeaflower Marine Protected AreaJOINTREGIMEAREA(Colombia / Jamaica)JOINT REGIMEAREA(Colombia / Dominican Republic)Costa RicaPanamaColombiaNicaraguaCol.Col.ColombiaPanamaHonNic411143222JamaicaColombiaHaitiColombia1AB23456798COLOMBIA’S SEAFLOWER MARINEPROTECTED AREA0150200100500100200300Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping40012 M Territorial SeaBoundary from the2012 ICJ JudgmentNicaraguaColombiaFigure 2.3
52
2 55 The Seaflower Marine Protected Area was designed to implement biosphere objectives in an area characterized by the presence of significant marine and coral ecosystems, in line with the customary internationallaw principles concerning thepreservationand protection ofthe environment Its objectives are preservation, recovery, and long-term maintenance of species, biodiversity, ecosystems, and other natural values including special habitats, promotion of sound management practices to ensure long-term sustainable use of coastal and marine resources, equitable distribution of economic and social benefits to enhance local development, protection of rights pertaining to historical use, and education to promote stewardship and community involvement in management 60As such, the MPA follows an integrated approach that depends as much on social considerations as on biological and ecological ones 2 56 The Seaflower Marine Protected Area covers some 2,000 square kilometresof coral reefs, which the UNEP/CAR-SPAW Regional Action Centre Factsheet describes as “some of the most productive and diverse coral ecosystems in the region”, along with atolls, mangroves and seagrass beds 61A detailed description of the site may be found in the Proposal for Listing under the SPAW Protocol, made by Colombia on5 October 2010, and attached asAnnex 89 6260Annex 89: p 26 61Annex 94: Seaflower Marine Protected Area –a SPAW Listed Site:Factsheet (undated) 62Annex 89
53
2 57 The Seaflower MPA submission was accompanied by an
Integrated Management Plan, both of which were developed in
collaboration with the local stakeholders, especially those who
live off the marine resources of the area, who had final decisionmaking
power.63 The initiative was thus a highly participatory
process, particularly involving the Raizales who rely heavily on
the coastal and marine resources for their traditional cultural
value The focus of the Management Plan for the area included:
• species and habitat protection and conservation;
• recovery of species;
• establishment of size and catch limits;
• creation of no entry or no-take zones where
necessary;
• minimization of socio-economic impacts; and
• sound management practices to ensure sustainable
use and historical fishing, including education
programmes for the local populace
2 58 As noted above, Colombia made a proposal for listing the
Marine Protected Area under the SPAW Protocol in October
2010 UNEP, in its role as secretariat under the Protocol, carried
out a standard evaluation which included external review The
proposal was subsequently submitted to the SPAW Scientific
and Technical Advisory Committee for decision The proposal
clearly met the criteria for inclusion as a listed site, and the
63 Annex 89
54
Seaflower Marine Protected Area was accordingly listed under SPAW on 23 October 2012 2 59 Like the Seaflower Biosphere Reserve, the Seaflower Marine Protected Area is managed and administered by CORALINA Its actions in this regard have received praise from the World Bank’s Global Environment Facility (GEF). As GEF observed in 2010, when the MPA was submitted for listing under the SPAW Protocol:“The process that CORALINA spearheaded to arrive at the MPA’s declaration was exceptional According to Cheri Recchia, Chair of Seaflower’s International Advisory Board, ‘CORALINA has, with this project, exemplified international best practice for establishing MPAs They led a truly participatory process, and gathered and used the best available biological and socioeconomic information, combined with stakeholder input, to design all aspects of the Seaflower MPA: objectives, external boundaries, zone types and placement, and regulations The design of the MPA itself is cutting-edge, encompassing the islands and using a zoned approach to allow a range of human activities balanced with critically needed ecological protections, including a well-thought-out series of «no-take»areas critical for restoring reef system health and productivity With these solidfoundations, the Seaflower MPA is poised to generate significant benefits not only for Colombia, but for the Caribbean region ’”6464Global Environment Facility: “Persistence and a Clear Vision Mark the Way Forward for the Caribbean’s Largest Marine Protected Area”, 7 July 2010 Available at:https://www thegef org/news/2010-iyb-persistence-and-clear-vision-mark-way-forward-caribbean%E2%80%99s-largest-marine-protected (Last visited: 10 Nov 2016)
55
2 60 In sum, Colombia takes its environmental responsibilities
under customary international law seriously Colombia has
played a leading role in developing and implementing a complex
and multi-layered geographical, legal and environmental regime
in the Southwestern Caribbean, which include programmes for
the protection and preservation of the marine environment in the
waters around the San Andrés Archipelago Importantly, in view
of the interconnected ecosystem of the Archipelago, Colombia
has adopted an integrated approach to its development so as to
ensure sustainability These have been met with wide-spread
approval from the international community
C. The Dependence of the Inhabitants of the Archipelago
and the Raizal People on the Marine Environment and
Artisanal Fishing
(1) THE DEPENDENCE ON THE SOUTHWESTERN CARIBBEAN
SEA
2 61 The inhabitants of the Archipelago have always relied for
their sustenance on what the islands of this geo-political unit and
the Southwestern Caribbean Sea could provide This is
unsurprising considering the location of the Archipelago in the
middle of a semi-enclosed sea, that is to say at a rather
significant distance from the continental coasts Historically, the
inhabitants of the Archipelago who have resided in these islands
were first and foremost men and women of the sea Life in the
Archipelago has always depended on the Southwestern
Caribbean Sea and the trade of its resources with the
56
communities based in the Mosquito Coast, Costa Rica, Panama, Jamaica, the Cayman Islands and continental Colombia 2 62 It was estimated that by 2015, the Archipelago, which is the only Colombian “departamento” without continental land,would have approximately76 442inhabitants 65Such figuresmake it one of the most densely populatedoceanic islandsin the world Consequently, each island of the Archipelago, as well as the waters that surround itand connect it to the other islands, are crucial for the socio-economic functioning of the Archipelago 2 63 Presently, agriculture is limited due to the reduced availability of surface soil Artisanal fishing, on the other hand, remains a fundamental activity providing food security in the Archipelago as well as the survival of the traditions of its inhabitants 2 64 Included amongst the inhabitants of the Archipelago is the indigenous Raizal people The Raizales are the descendants of the enslaved Africansandthe original Dutch,British and Spanish settlers They are the result of the amalgamation of all these different groups,but have acquired through the centuries their own specific culture The name of this ancestral community, quite appropriately, comes from the word “raiz” which means “roots” in Creole Since time immemorial, they 65Annex 86: National Administrative Statistics Department of Colombia (Departamento Administrativo Nacional de Estadística –DANE), Postcensal Studies No 7, National and Departmental Population Projections 2005-2020, Mar 2010, p 50
57
have navigated all of the Southwestern Caribbean in search of
resources, such as fish and turtles The Raizales represent more
than a third of the inhabitants of the Archipelago and constitute
approximately 90 percent of the population of Providencia and
Santa Catalina 66 Their culture is clearly recognizable They
speak Creole, English and Spanish and are predominantly of the
Protestant faith as a direct consequence of the British Puritans’
historical presence
2 65 The Raizales and other inhabitants of the Archipelago
recognize that the viability of their habitat and of their longstanding
fishing activities depends on the preservation of the
marine environment and their ability to access the traditional
banks where their ancestors have always fished and turtled
unimpeded Artisanal fishermen understand that they must find
the right equilibrium between exploitation and preservation in
order to achieve sustainable development Sound management
of marine resources is an arduous challenge that can only be met
by addressing the integrity of the Archipelago as a whole The
right balance between what the Archipelago may provide and
what the fishermen need to catch for their economic well-being
therefore has been an important task of the Colombian
66 Annex 87: National Administrative Statistics Department of
Colombia (Departamento Administrativo Nacional de Estadística – DANE),
General Census 2005 Bulletin - Profile Archipelago Department of San
Andrés, 13 Sep 2010, p 2; Annex 88: National Administrative Statistics
Department of Colombia (Departamento Administrativo Nacional de
Estadística – DANE), General Census 2005 Bulletin - Profile Providencia
and Santa Catalina, 14 Sep 2010, p 2
58
authorities and, in particular, of CORALINA 67The adoption of quotas and temporary bans on fishing of certain species, as well as the creation, in some instances, of “no-catch” or “no-entry” zones within the Seaflower Marine Protected Area are measures that, while restricting the lives of the fishermen inthe short term, are designed to help them in the long run 2 66 The creation of the Seaflower Biosphere Reserve and the Seaflower Marine Protected Area demonstrates that Colombia is committed to the protection of the habitat of the inhabitants of the Archipelago Colombia is also committed to fulfilling its legal obligations under customary international law vis-à-visthe inhabitants of the Archipelago to ensure the protection of their marine environment This istruein particular with regard to the Raizales who are indigenous peoples of the Archipelago Indeed, as interpreted by the Inter-American Court of Human Rights, the American Convention onHuman Rights (to which Colombia and Nicaragua areparties) obliges State Parties to “take positive, concrete measures geared toward fulfilmentof the right to a decent life, especially in the case of persons who are vulnerable and at risk, whose care becomes a high priority”,68such as groups that international law qualifies as indigenous peoples, and to ensure that indigenous and tribal communities “may continue living their traditional way of life, and that their distinct cultural identity, social structure, 67For more on CORALINA’s role and objectives, see para 2 49 et seq supra 68I/A Court H R , Case ofYakye Axa Indigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgmentof 17 June 2005,SeriesC , No 125,para 162
59
economic system, customs, beliefs and traditions are respected,
guaranteed and protected ”69 This issue is also addressed in
Chapter 3 70
(2) THE LONG-STANDING ARTISANAL FISHING AND TURTLING
PRACTICES
2 67 The history of artisanal fishing in the Archipelago has
evolved since the beginning of the seventeenth century What
has not changed, however, is that the inhabitants of the islands
of the Archipelago were always seafarers with remarkable skills
in the artisanal arts of navigation, fishing and turtling
2 68 This section will demonstrate those long-standing
practices in the Archipelago First, it identifies what constitutes
artisanal fishing (sub-section (a)) Next, the history of artisanal
fishing and turtling in the Archipelago will be discussed,
demonstrating how these activities were carried out throughout
the traditional fishing grounds of the Southwestern Caribbean,
and how the boats and fishing practices of the fishermen
evolved over the years (sub-section (b)) Importantly, these
long-standing practices show that, as a practical matter, the
drawing of maritime boundaries did not affect the extent of the
fishing activities of the indigenous fishermen (sub-section (c))
69 I/A Court H R , Case of Saramaka People v. Suriname, Preliminary
Objections, Merits, Reparations, and Costs, Judgment of 28 November 2007,
Series C No 172, para 121
70 See Chapter 3, Sec C (3) infra
60
(a)Artisanal Fishing Distinguished from Subsistence Fishing and Industrial Fishing2 69 Artisanal fishinggenerally comprises traditional,small-scale fishing practices undertaken by local inhabitants for subsistence or the local community Subsistence fishing,whichis practiced by manyof the inhabitants of the Archipelago,is essentially fishingfor personal consumption While artisanal fishing has an important subsistence component,beyondthesurrounding watersof the islands of San Andrés, Providencia and Santa Catalina, artisanal fishing hashistorically also occurred at greater distances from the shores in both shallow and deep-sea waters according to the species involved 2 70 Besides being of particular significance to the fishermen who depend on it for their own families’ economic well-being,artisanal fishing contributes to food security within the overall community of the Archipelago 71This is because artisanal fishermen are often members of fishing associations that impose specific obligations that serve their interests as well as those ofthe Archipelago’s community at large This is well illustrated by the following excerpt from the affidavit by MrLandel Hernando RobinsonArchbold, fisherman and President of the cooperative “Fish and Farm” of Providencia 71Annex 71: Affidavit by Jorge De la Cruz De AlbaBarker: “Artisanal fishing fulfils a social role in the Archipelago; it contributes to local food security as opposed to industrialfishing in which the interest is purely economic”; Annex 62: Affidavit by LandelHernandoRobinsonArchbold;Annex 65: Affidavit byLigorio Luis ArchboldHoward
61
“Subsistence fishing is just when you go along the
beach, with a line, catch a snapper and go home
Artisanal fishing is about selling products to your
community. You want to make your economic
situation viable Subsistence fishing does not have
this commercial component It is only about
survival We have a policy in the co-operative, to
the effect that fishing products must first be sold to
the community Only the surplus can be sold
outside of the community Fishermen are not
forced to be part of the co-operatives but there is an
interest in doing so because the co-operatives can
help you on your project if you pay the fees If a
fisherman does not own a boat, he can use the boat
of the co-operative But if he is not a member, the
co-operative’s policy is to give the priority to the
members when establishing the crew for a specific
expedition If there is no space, you have to
wait ”72
2 71 Artisanal fishing must also be distinguished from
industrial fishing Both have commercial connotations, but the
activities’ production scales are vastly different For instance, an
artisanal fisherman may fish with lines with five to ten hooks,
but this is very different from an industrial vessel that may trawl
with a thousand hooks that do not discriminate between the
species caught This is portrayed in the affidavit by Mr Ligorio
Luis Archbold Howard, another member of the cooperative
“Fish and Farm”
“For me, artisanal fishing relates to the arts of
fishing; it is the ancestral way of fishing Instead of
using the modern industrial means that rely on long
lines with thousands of hooks that do not
72 Annex 62 Cf also Annex 68: Affidavit by Orlando Eduardo Francis
Powell
62
discriminate, you fish with lines with four, five or ten hooks. It is the traditional way. Subsistence fishing is just for household, personal and family use Artisanal fishing is for commercial purposes but itis also necessary for our subsistence I believe that 90% of the population of Providencia depends on artisanal fishing This is because there are not many jobs People have to fish to better their living conditions Many of us fishermen receive support from the co-operative in the form of resources to help us in our fishing projects While some fishermen have their own boats, others rely on the three boats of the co-operative Right now the biggest fishing boat in Providencia is a 35 ft boat owned by theco-operative, but currently it is their only one functioning I have my own boat but I am currently repairing it This is why, right now, I depend on other fishermen or the co-operative to go fishing ”73(b)The History of Artisanal Fishing in the Area and itsEvolution 2 72 The history of artisanal fishing in the Archipelago attests to the fact that this activity has been carried out throughout the Southwestern CaribbeanSea between the Mosquito Coast and the Archipelago, in the area known as “Cape Bank”, as well as in the bankssurrounding theislands ofQuitasueño, Serrana, Bajo Nuevo, Serranillaand Roncador Figure 2.4depicts the traditional shallowbanks of the artisanal fishermen of the Archipelago on both sides of the boundary established by the Court’s Judgment in 2012 73Annex 65 Cf alsoAnnex 64: AffidavitbyOrnuldoRodolfoWaltersDawkins; Annex 71.
Figure 2.4
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64
2 73 The map shows that the area that Nicaragua calls “Luna Verde” in its Memorial is part of Cape Bank located East of the 82°West Meridian and South of the 15thNorth parallel 74While for Nicaragua, Luna Verde is just a small additionto its huge area of shallow waters, for Colombia, this specific part of Cape Bank constitutes one of the biggest and most important traditional banks for the inhabitants of the Archipelago.75Figure2.5depicts on a larger scale the traditional shallowbanks as well as thedeep-sea banks (that are the most important for the artisanal fishermen of the Archipelago) 74Memorial of Nicaragua, para 2 23, Figures 2 3-2 5 75Annex 68; Annex 71; Annex 72: Affidavit by Antonio Alejandro Sjogreen Pablo
Figure 2.5
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66
2 74 Figures 2.4 and2.5indicatethat those traditional shallow and deep-sea banks are located between: Providencia and Quitasueño; Quitasueño and Serrana;and,Serrana and Roncador 76It also demonstrates theexistence ofimportant shallow and deep-sea traditional banks that go beyond the triangle depicted in the Memorial of Nicaragua. These banks are ecologically interconnected, as has been explained above 2 75 In the past, traditional fishing activities often occurred close to San Andrés and Providencia However, historical documents and affidavits demonstrate that the inhabitants of the Archipelago also historically navigated, fished and turtled in the waters surrounding the Northern and Western banks of Quitasueño, Serrana, Serranilla, Roncadorand Bajo Nuevo, as well as in the whole of Cape Bank 772 76 In the second-half of the twentieth century, due to the decrease in production around Providencia and San Andrés, artisanal fishermen started sailing to Cape Bank and the Northern banks much more frequently.78While long fishing expeditions have always taken place, over the past few decadesmany artisanal fishermen have goneto these more remote fishingbanksmore frequently (at least prior to the 2012 76Annex 62; Annex 63: Affidavit by Wallingford González Steele Borden; Annex 64; Annex 65; Annex 66: Affidavit by Jonathan Archbold Robinson 77Annex 63;Annex 64;Annex 66;Annex 67: Affidavit by Alfredo Rafael Howard Newball; Annex 69: Affidavit by Domingo Sánchez McNabb; Annex 71 78Annex 65; Annex 69
67
Judgment) – since these are the most productive areas that
guarantee food security for the inhabitants of the Archipelago 79
2 77 The fishing practices of artisanal fishermen also evolved
with technology and the boats they had Catboats are probably
the most representative of the traditional boats used, and
sometimes are still used, by the inhabitants of the Archipelago 80
They are direct evidence of the positive cross-cultural
interactions between the sea-faring communities of the
Southwestern Caribbean since they were introduced at the
beginning of the twentieth century by the inhabitants of the
Cayman Islands that were engaged, like those of the
Archipelago, in turtling expeditions 81 On these relatively small
boats of approximately 30 ft , the artisanal fishermen would sail
in small groups to the fishing grounds located far beyond the
waters immediately adjacent to San Andrés, Providencia and
Santa Catalina 82 These boats were specifically designed for
turtling in the sea but were also used for fishing and trade 83
2 78 The affidavit by Mr Wallingford González Steele Borden
discusses the evolution of artisanal fishing in the Archipelago
79 Annex 71; Annex 72
80 Annex 69
81 Annex 91: A I Márquez-Pérez, “Catboats, lanchs and canoes: Notes
towards a history of the relations between the islands of Providencia, Santa
Catalina and the Central American and Insular Caribbean by means of the
construction and use of wooden vessels”, Revista Internacional de História
Política e Cultura Jurídica, Vol 6, No 3, September-December 2014,
p 491; Annex 67
82 Annex 65
83 Annex 63; Annex 65
68
“We artisanal fishermen always fished in Roncador, Quitasueño, Serrana and in the area of the 82° west of Providencia We would even go further and reach Bobel Cays close to Cape Gracias a Dios But at that time the expeditions occurred less frequently because in the sixties we had a lot of fish also around Providencia We would go inthese expeditions to the Northern and Western banks a few times a year and stay there one or two months With less fish around Providencia we started going more often to these banks. Of course it was easier once engines arrived and westarted using lanchas To go on a catboat to the North Cays is a demanding physical exercise Lanchasallow us to reach the grounds with less effort I personally used to go one or two times a month to Quitasueñoand Serrana When I went onlonger expeditions, I would even sleep a month in Serrana where I built a hut with coconut palm Our stay in Serrana depends on the boat we use When we go on small boats like my lancha, I stay two or three days When we went on bigger boats that carried our catboats, we would stay up to fifteen days,sometimes,even a month in Serrana Cays ”84As mentioned in the last part of this excerpt, artisanal fishermen also relied on schooners and sloops to carry catboats to these traditional banks.These boats would sometimes serve as floating stations 85Other times they would leave the fishermen on an island such as Serrana or Roncador for weeks or months to later come back to pick the salted and corned products as well as the fishermen 86From these islands and so-called mother 84Annex 63 Cf alsoAnnex 69 85Annex 65 86Annex 65 Similar practices were also carried out by fishermen from other Caribbean communities, see for example Annex 83, where R C Smith, recalls that “[Cayman] Brac fishermen also collected seabird eggs and
69
boats the fishermen would sail between the different cays and to
the west toward Cape Bank and the Mosquito Coast.
2 79 This is, in particular, explained in the affidavit by
Mr Ligorio Luis Archbold Howard:
“We used to build larger wooden boats of 50 ft
long that could carry 20 sailors to the Northern
fishing grounds In those days the boat could be
considered big, but today what used to be seen as a
big boat is in fact a small boat when you compare
it to non-artisanal boats These boats could carry 5
to 15 small catboats on their decks. These were
then used to fish in those cays for weeks or
months The large boat would often be used as a
station for the [sic] fishermen to go after their
activities But very often the fishermen would build
shelters on the cays where they would be able to
rest after their fishing activities and to process
(salt) the products they fished Once filled with
fish, the large boat would return to the main island
to sell the catch to the community, while most of
the fishermen remained with their catboats at the
provisional station in order to prepare a new stock
in the Northern fishing grounds Sometimes the
large boat would sail to Jamaica to sell the
phosphate-rich guano, particularly on the larger of the Serrana Cays… who
often camped in small huts… for weeks until sufficient amounts of these
products were collected for market in Jamaica.” (p 79) Historical literature
also mentions the fact that islands such as Roncador were traditionally used
by fishermen as a hub for their fishing activities A well-known writing from
the mid-nineteenth century describes it as follows: “… ‘El Roncador’ is
famous for the number of its turtles, and is frequented, at the turtle season, by
turtle-fishers from Old Providence, and sometimes from the main land
Among the palm trees, to which I have referred, these fishermen had erected
a rude hut of poles, boards, and palm branches, which was literally withed
and anchored to the trees, to keep it from being blown away by the high
winds ” S A Bard, Waikna, Adventures on the Mosquito Shore, University of
Florida Press (Reproduction of the 1855 edition), 1965, pp 39-40, Available
at:
https://archive.org/details/waiknaoradventur00bard (Last visited: 10 Nov
2016) See
70
products and then go back to the cays to pick up the fishermen that remained and their new stock, in order to finally return to Providencia and San Andrés Today it is easier to go to the Northern Cays thanks to the lanchasthat are equipped with outboard engines We can go farther in less time ”872 80 While fishing and turtling originally occurred on catboats and other sailing boats such as schooners and sloops, in the second half of the twentieth century, the inhabitants of the Archipelago adapted the design of catboats so as to leave space for outboard motorsand then started relying on lanchas,i e boats designed to be equipped with an engine, for their fishing activities 88These boats sometimes play the same role that schooners and sloops did previously They are regularly used to transport smaller boats in the fishing banks located in the northern part of the Archipelago 89However, other times they perform navigation and fishing functions 2 81 In sum, history demonstrates that artisanal fishingby the inhabitants of the Archipelagowas carried out throughout the Southwestern CaribbeanSea, even though practices varied with technological advances and time 2 82 Although banned by Colombia today, turtling alsoplayed an essential role in the history of the Archipelago As put by Professors Sharika Crawford and Ana Isabel Márquez-Pérez, the 87Annex 65;Cf alsoAnnex 66 88Annex 69 89Annex 68;Annex 71
71
search for turtles and its trade “facilitated the creation and
recreation of a dynamic contact zone of ongoing transnational
and cross-cultural encounters among indigenous, European and
Afro-Caribbean inhabitants”90 across the Southwestern
Caribbean The inhabitants of the Archipelago went turtling
around the Northern banks of Quitasueño, Serrana, Roncador,
Serranilla and Bajo Nuevo, but also in the Corn Islands, and the
waters surrounding the continental communities in Bluefields,
Tortuguero and Bocas del Toro, a town founded by fishermen
from the Archipelago 91 Thus, turtling was an activity that, from
the seventeenth to the twentieth centuries, led the artisanal
fishermen of San Andrés, Providencia and Santa Catalina to
exploit the marine resources all around the Southwestern
Caribbean
2 83 Performed since times immemorial, turtling was already
practiced by the English Puritans from Bermuda who settled in
Providencia in 1630 92 In fact, by the mid-eighteenth century,
the harvesting of turtles was one of the main economic activities
of the fishing populations established in the Archipelago and, in
particular, in Providencia 93 The lives of the inhabitants of the
Archipelago depended on the harvesting, consumption and
commerce of turtles’ meat and scales This commerce greatly
90 Annex 93: S D Crawford, A I Márquez-Pérez, “A Contact Zone:
The Turtle Commons of the Western Caribbean”, The International Journal
of Maritime History, 2016, 64
91 Annex 91, p 495
92 Annex 93, p 73; Annex 85: M J Jarvis, In the Eye of All Trade:
Bermuda, Bermudians, and the Maritime Atlantic World, 1680-1783, Chapel
Hill, 2010, pp 190, 219
93 Annex 93, p 74
72
stimulated theeconomic and cultural exchanges between the fishing communities of the Southwestern Caribbean, which followed the circular migration patterns of these marine reptiles across the sea 942 84 By the mid-nineteenth century, recently freed Afro-Caribbean Caymanians dedicated to turtling,also established themselves in the Archipelago, which they had come to know during their fishing expeditions in the banks of Quitasueño, Serrana and Roncador 95And in 1835, British Captain Beaufort, who was conducting a survey of the eastern coast of Central America, stressed that the younger part of the 342 inhabitants of Providencia was engaged in turtling activities six months of the year on “three vessels of from ten to fifteen tons burthen” which, “from their size, [were] managed very easily among the banks they frequent[ed] –such as the Serrana, Serranilla, Roncador, &c ”96In the famous book “Waikna, Adventures on the Mosquito Shore” published in 1855, Ephraim Squier, a diplomat of the United States of America, described the arrival to Roncador of a turtle schooner withfishermen from the islands of Providencia or Santa Catalina 97This attests to the generally recognized navigational skills of the inhabitants of the 94Annex 93, p 70 95Annex 83: R C Smith, The MaritimeHeritage of the Cayman Islands, Gainesville, 2000, p 77; Annex 91,p 7 96C F Collet, “On the Island of Old Providence”, 7 Journal of the Royal Geographical Society(1837), pp 207-208 Available at:https://ia601704 us archive org/1/items/jstor-1797524/1797524 pdf (Last visited: 10 Nov 2016) 97S A Bard, Waikna;orAdventures on the Mosquito Shore(New York, Harper & Brothers, 1855), pp 36-55 Available at:https://archive.org/details/waiknaoradventur00bard (Last visited: 10 Nov 2016)
73
Archipelago since Roncador is located approximately 75
nautical miles from Providencia
2 85 In the second half of the nineteenth century and the first
half of the twentieth century, unauthorized incursions of British
and American turtling expeditions in the Northern banks of
Quitasueño, Serrana, Roncador, Serranilla and Bajo Nuevo
jeopardised the interests of the fishing communities which
depended on these marine reptiles for their sustenance In a
letter of 26 September 1871, the Prefect of the National
Territory of San Andrés and San Luis de Providencia brought to
the attention of the US Secretary of Finance and Development
that, in the waters of Quitasueño and Roncador, citizens of the
United States of America fished “turtle and tortoises” and
extracted “guano” without the required authorizations and that
these activities “[were] highly damaging to the interests of the
territory” 98 By a diplomatic note of 25 March 1914, the
Colombian Minister in London stressed that “[t]he Colombian
Government ha[d] constantly received complaints from the San
Andrés’ authorities regarding the illegal practice performed by
some subjects of His British Majesty of fishing turtles in those
islands”; a habit which “seem[ed] to increase” 99
2 86 Thus, even though turtling as an activity has diminished in
importance today, the history of the practice similarly
demonstrates that the artisanal fishermen of the Archipelago
98 Territorial and Maritime Dispute (Nicaragua v Colombia),
Counter-Memorial of Colombia (Vol. II), Annex 279
99 Ibid , Annex 37
74
exploited the marine resources all around the Southwestern Caribbean (c)Boundaries Did Not Affect Fishing Activities2 87 As seen from the above,artisanal fishing and turtling werecarried out by the Archipelago’s inhabitants throughout the Southwestern CaribbeanSea In practice, boundaries did not affect the extent of fishermen’s activities 2 88 The 1930 Protocol to the 1928Esguerra-Bárcenas Treaty between Colombia and Nicaragua established that:“…the Archipelago of San Andrés and Providencia, whichis mentioned in the first clause of the referred to Treaty, doesnot extend west of the 82 Greenwich meridian ”100However, many artisanal fishermen have stressed that, regardless of the adoption of the 1928 Treaty and its Protocol of 1930, they continued to fish, often with their parents, grand-parents or uncles, in banks located west of the 82°West Meridian, that is to say on the other side of what Colombia then considered to be itsmaritimeboundary with Nicaragua These traditional fishing grounds are located in Cape Bank and, in particular, close to the Corn islands,101Cape Gracias a Dios,102100Treaty concerning Territorial Questions at issue between the two States, signed at Managua, March 24, 1928, and Protocol of Exchange of Ratifications, signed at Managua, May 5, 1930, 105 LNTS337 See text in Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, (Vol.II), Annex 1A 101Annex 64: Affidavit by Ornuldo Walters 102Annex 69;Annex 71
75
Bobel Cay,103 or along “La Esquina”, that is to say the
geographic limit of Cape Bank located on both sides of the 82°
West Meridian 104
2 89 Thus, the position of the artisanal fishermen of the
Archipelago was that the existence of boundaries, or alleged
boundaries, did not in practice affect the extent of their
activities This is well explained in the affidavit by Mr Alfredo
Rafael Howard Newball
“In those days, there were no limits, we fished in
all the cays and banks. The fishermen from the
Nicaraguan coast would also come to fish to the
cays and banks. They came and went, and we came
and went It was the same territory, you did not
have to ask anyone for permission, there was no
authority at that time ”105
2 90 As a result of the 2012 Judgment, many traditional fishing
banks of the inhabitants of the Archipelago are now located in
the maritime zones under the jurisdiction of Nicaragua, while
others are situated in those of Colombia (such as the banks
located in and around Quitasueño, Serrana, Bajo Nuevo and
Serranilla), but can only be accessed by navigating through
waters belonging to Nicaragua’s exclusive economic zone
103 Annex 65
104 Annex 64; Annex 65; Annex 70; Annex 71
105 Annex 67 Cf also Annex 69: “The dispute between Colombia and
Nicaragua is a problem between Bogotá and Managua, not a problem
between the peoples of the islands of San Andrés, Providencia, Corn Islands,
Bluefields, Pearl Lagoon, Puerto Limon or Jamaica We are all one culture
and have always had cultural and trade exchanges It was a single Caribbean
Sea There were no limits for the communities and we did not care, which
allowed the exchange of knowledge, information, culture and business with
all of the Caribbean ”
76
2 91 The traditional fishing banks found in the maritime zones that now appertain to Nicaragua are, in particular, those located in Cape Bank on both sides of the 82°West Meridian, as well as between the two enclavescreated by the Court–Quitasueño and Serrana –and the delimitation line along the northern parallel established by the Court in 2012 Some of these traditional banks straddle the boundary. 2 92 The inhabitants of San Andrés, Providencia and Santa Catalina are concerned by the fact that some of their most important traditional banks can only be reached now by navigating through the maritime zones adjudicated toNicaragua Although this is their right, the discontinuity of the Archipelago’s maritime spaces has had a chilling effect on the artisanal fishermen’s resolve to reach the areas where they, and their ancestors, have always fished Considering the conduct of Nicaragua’s Naval Force, this is no mere theoretical fear as will be demonstrated in Colombia’s counter-claims 106106See Chapter 9 of this Counter-Memorial
77
D. The Threat of Drug Trafficking, Transnational Crime
and Other Security Concerns
2 93 The size of the Archipelago as well as its location between
South and North America is a factor that attracts all kinds of
illegal activity Colombia is committed to protecting the
Archipelago and its diverse interdependent components, both for
the sake of the Colombian population and for preservation of the
integrity and security of the Caribbean Sea as a common good
This aspect will be further developed in sub-section (1)
2 94 As an illustration of the fact that many other States rely on
Colombia to maintain security in the area, some of the
agreements concluded by Colombia with other States on
responsibilities for drug interdiction will be discussed in subsection
(2)
(1) COLOMBIA’S NAVY AND AIR FORCE PRESENCE FOR
SECURITY, ENVIRONMENTAL MONITORING AND DRUG
INTERDICTION
2 95 Nicaragua has argued that the presence of Colombian
forces in the Archipelago and its vicinity reflects a hostile
posture 107 This could not be further from the truth Colombia’s
presence in the area is aimed at protection of the Archipelago,
and in particular its environment, the preservation of which is
indispensable for its inhabitants, and also for the interdiction of
107 Memorial of Nicaragua, p 33, paras 2 22, 2 26, 2 27, 2 28, among
others, and Annex 50
78
illegal activities, without infringing on Nicaragua’ssovereign rights 2 96 Unfortunately, in spite of growing awareness that the environment must be protected, environmental norms are not spontaneously respected They need to be monitored and, where circumstances justify it,enforced Such enforcement action isbeyond the capability and jurisdiction of CORALINA and the Farm and Fishing Secretary For purposes of implementation of the Seaflower Biosphere Reserve and Marine Protected Area, therefore, the cooperation and assistance of the Colombian Navy is required 2 97 Itis a factthat the San Andrés Archipelago has been used for decades by transnational drug traffickers, who consider it a major gateway for delivering South American illegaldrugs to North American markets(see Figure 2.6) Also, asnotedina2016 Official Report by the United States, “[t]he Caribbean coast regions of Nicaragua,… remain the primary routes for international drug trafficking”.108This has also been recognized by the United Nations Office on Drugs and Crime 109The 108United States of America, Bureau of International Narcotics and Law Enforcement Affairs, 2016 International Narcotics Control Strategy Report (INCSR), Country Report: Nicaragua, Conclusion Available at:http://www state gov/j/inl/rls/nrcrpt/2016/vol1/253295 htm (Last visited: 10 Nov 2016) 109As explained by the United Nations Office on Drugs and Crime, “The Caribbean is situated in the midst of some of the world's major drug trafficking routes, between the world's main drug producing countries to the South and the major consumer markets of the North.”Available at:
79
Archipelago’s proximity to Nicaragua’s coasts makes it
particularly vulnerable, as its various features offer numerous
places for drug traffickers to hide. In this regard, the Colombian
Navy has been tasked to monitor and fight crime, in particular
transnational crime, in and around the Archipelago
https://www unodc org/ropan/en/unodc-regional-programme-2014-2016-insupport-
of-the-caricom-crime-and-security-strategy html (Last visited: 10
Nov 2016)
Figure 2.6
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81
2 98 In order to combat drug trafficking, protect the
environment, and maintain security, infrastructure works have
been built and maintained by Colombia on various features of
the Archipelago as depicted in Figure 2.7. There are Marine
Infantry detachments entrusted with tasks concerning drug
trafficking, environmental monitoring and security not only on
San Andrés, where the main Naval Garrison of the Archipelago
is located, but also on Serrana, Serranilla, Roncador, and Cayo
Bolívar (one of the East-South-East Cays) On these islands,
Colombia has built lighthouses, quarters and facilities for Navy
detachments, solar panels, water collection wells, facilities for
the use of the Navy infantry corps and fishermen who visit the
islands and cays, and radio stations or antennae
82
SantaCatalina I.ProvidenciaIslandSan AndrésIslandEast SoutheastCaysAlburquerqueCaysEast ReefWest ReefSerranillaCayRoncador CaySerrana CayQuitasueñoCayBajo NuevoCayCaribbeanSea82°W 15°N14°N13°N15°N14°N13°N12°N81°W 80°W 79°W 80°W 81°W 82°W 79°W 1234567891011JOINTREGIMEAREA(Colombia / Jamaica)IJKColombiaPanamaNicaraguaColombiaColombiaNicaraguaColombiaColombia11AB234565798North CayBolivar CayNAVAL BASE - San Andrés IslandRoncador CaySerrana CaySerranilla CayEXAMPLES OF COLOMBIA’SPRESENCE ON THE ISLANDS OFTHE ARCHIPELAGO06080402004080160120Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International MappingCoastal information sources:NGA nautical charts: 26050, 26081, 26083, 28050.Colombian nautical charts: 044, 045, 046, 201, 203, 204, 208, 211, 213, 215, 218, 416, 630, 631, 634,supplemented with information collected by the Colombian Navy in 2008. Boundary from the2012 ICJ JudgmentSerranilla CayNorth Cay - Alburquerque Cays Roncador CaySerrana CayBolivar Cay - East Southeast CaysColombian Marinesbased on SerranillaMilitary Housingon Serrana CayNaval baseHeliportLight towerLight towerLight towerMilitary housingMilitary housingCommunication towerFigure 2.7
83
2 99 As important as these detachments are, they are alone
insufficient to ensure effective control International criminals
may circumvent them to avoid arrest, and polluters and
fishermen that engage in predatory fishing practices can hide in
remote places A significant naval presence is therefore needed
in order to monitor and discourage any illegal activities,
including those harmful to the environment
2 100 The Colombian Navy operates in three naval forces and
four commands, one of which is the Specific Command of San
Andrés and Providencia The Colombian Navy built a large base
in San Andrés, which performs a vital role in control of the
Archipelago and the war against illicit drug trafficking.110 It
consists of the General Headquarters of the Specific Command,
Naval Base No 4, and a unit attached to the Caribbean Naval
Force From this base, the Navy regularly carries out missions,
including aerial missions, with the purpose of surveillance,
protection of the marine environment, fishing control, defense
against armed actions such as piracy, the fight against and
interdiction of smuggling operations, arms and other related
110 Presidential Decree Nº 487 establishing the Naval Garrison on San
Andrés, 8 March 1940 Naval Base A R C San Andrés, Coordinates:
12°31’31’’N 81°43’48’’E The headquarters of the Specific Command for
San Andrés and Providencia (Comando Específico de San Andrés y
Providencia – CESYP) are located on the San Andrés island The CESYP has
the military responsibility for the area of the archipelago, and the operational
command of the Navy vessels detached in the area This command responds
to the Naval Force of the Caribbean (Fuerza Naval del Caribe) based in
Cartagena, where the main base of the Colombian Navy is located
84
criminal activitiesas part of Colombia’s response to transnationalcrime 1112 101 Colombia is also present in the area in order to perform its duties as part of international coalitions against drug traffickers. One such coalition is the ongoing Operation Martillo(Spanish for hammer), launched in association with 14 countries, including the United Statesand six Central American and Caribbean coastal countries (Panama, Costa Rica, Nicaragua, Honduras, Guatemala and Belize),112which seeks to disrupt drug-trafficking routes in the Atlantic, the Caribbean and the Pacific Since it was launched on 15 January 2012, Operation Martillo has netted more than 1 million pounds of cocaine and more than 100 000 pounds of marijuana It has also led to the arrest of at least 1 348 people in various operations under the program The interdictions have resulted in a loss of about $8 billion in revenue for drug trafficking organizations, according to official U S estimates 113111Some outcomes of the operations carried out by the Navy in the Caribbean (in the area of the San Andrés Archipelago) between 2009 and 2016 are: 59.299 kg (average of 6.662,3 kg per year) of cocaine hydrochloride seized; 163 people arrested for drug trafficking (about 33 per year); 248 people rescued in search and rescue operations (approximately 31 per year); 24 420 gallons of contraband fuel seized (average of 4070 gal per year) and 28.713 kg of fish (about 4.785 kg per year) from illegal fishing by vessels using prohibited methods of fishing or violating restrictions or seasons of fishing 112Fourteen countries areparticipating: Belize, Canada, Colombia, Costa Rica, El Salvador, France, Guatemala, Honduras, the Netherlands, Nicaragua, Panama, Spain, United Kingdomand the United States 113Miami Herald, “Drug interdictions result in a loss of about $8 billion in revenue for drug traffickers”, 4July 2015 Available at:http://www miamiherald com/news/local/crime/article26499271 html (Last visited: 10 Nov 2016)
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2 102 Colombia plays a leading role in Operation Martillo As
explained in a Joint Press Release on the United States –
Colombia Action Plan on Regional Security Cooperation dated
15 April 2012:
“One example of direct combined U S and
Colombian operational efforts is OPERATION
MARTILLO, where the U S Joint Interagency
Task Force – South (JIATF-S) and Colombian
Navy and Air Forces are coordinating air and
maritime detection, monitoring, and interdiction
efforts to detect and disrupt transnational organized
criminal elements who exploit the extensive coasts
and sparsely populated interior throughout Central
America ”114
2 103 The U S -Colombia Action Plan on Regional Security
Cooperation launched in 2012 is also worth mentioning
This plan:
“draws on Colombia’s established and expanding
expertise to develop security assistance programs
and operational efforts that support six nations in
the hemisphere afflicted by the effects of
transnational organized crime, including the
Northern Triangle countries
With assistance from the State Department’s
Bureau of International Narcotics and Law
Enforcement Affairs (INL) and SOUTHCOM, the
action plan has completed hundreds of capacitybuilding
engagements since its inception in 2013,
many of them led by Colombian military training
114 US Department of State, Office of the Spokesperson, Washington
DC, April 15, 2012 Available at:
http://www state gov/r/pa/prs/ps/2012/04/187928 htm (Last visited: 10 Nov
2016)
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teams and subject matter experts or hosted at Colombian law-enforcement and military schools ”1152 104 Colombia is now recognized as playing a leading role in the fight against drug trafficking, which requires thepresence of Naval Forces and a high level of vigilance in and around the Archipelago The USA acknowledged in 2016 that:“Colombia continues to take steps to combat the drug trade. These efforts likely have kept hundreds of metric tons of drugs each year from reaching the United States and other markets, and have helped stabilize Colombia Colombia is now a partner in exporting security expertise and training to international partners ”1162 105 As an acknowledgment of Colombia’s effectiveness and activities in this regard, a number of other Caribbean States or States interested in securing the region have concluded international agreements with Colombia on responsibilities for drug interdiction 115J Ruiz, Southern Command Public affairs, “US Joins Northern Triangle Security Dialogue Hosted by Colombia” Available at:http://www southcom mil/newsroom/Pages/U-S--joins-Northern-Triangle-security-dialogue-hosted-by-Colombia aspx (Last visited: 10 Nov 2016) 116Bureau of International Narcotics and Law Enforcement Affairs, 2016 International Narcotics Control Strategy Report (INCSR), Country Report: Colombia, Conclusion Available at:http://www state gov/j/inl/rls/nrcrpt/2016/vol1/253252 htm (Last visited: 10 Nov 2016)
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(2) COLOMBIA’S AGREEMENTS WITH OTHER CARIBBEAN
STATES ON RESPONSIBILITIES FOR DRUG INTERDICTION
2 106 Colombia, other Caribbean countries (Mexico, Jamaica,
Costa Rica, Honduras, Panama, Guatemala, the Dominican
Republic) and the United States have promoted the conclusion
of international conventions establishing cooperation in the fight
against illicit drug trafficking by sea, in particular in the
Caribbean Sea In line with this policy, Colombia has concluded
a number of bilateral “shiprider” agreements with neighboring
States in the region, reinforcing the fight by facilitating visits
and inspections of private or commercial vessels of the flag of
either party by the respective authorities According to the
United States Bureau of International Narcotics and Law
Enforcement Affairs in a 2016 Report, the agreement to
suppress illicit traffic by sea between the Government of the
Republic of Colombia and the Government of the United States
of America, concluded on 1 April 1997, “continues to be one of
the most effective in the region, enabling the United States to
seize over 29 MT of cocaine in fiscal year 2015 ”117
2 107 Internationally, Colombia is considered an essential actor
for the effective enforcement of the fight against trasnational
crime in the region Colombia’s Navy has improved its capacity
and developed its skills over many years, notably under an
117 Bureau of International Narcotics and Law Enforcement Affairs,
2016 International Narcotics Control Strategy Report (INCSR), Country
Report: Colombia, Conclusion Available at:
http://www state gov/j/inl/rls/nrcrpt/2016/vol1/253252 htm (Last visited: 10
Nov 2016)
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international cooperation framework, ranging from its participation in the Inter-American Naval Conference,118to exchanges of naval personnel with the US Navy 119Colombia also exports its expertise in maritime security to other countries As onecommentator observed: “Colombia is…a ‘net security exporter’, providing [counter-narcotics]training to numerous countries in Latin America, the Caribbean,and West Africa Colombian forces are also contributing air and naval assets in a multinational effort to interdict smuggling along the Pacific and Atlantic coasts of Central America ”120This meets one of the objectives of the US-Colombia Action Plan on Regional Security Cooperation, under which Colombia’s security forces provide expertise for countering transnational organized crime and drug trafficking to nations in Central America and the Caribbean with US assistance This Action Plan included 39 capacity-building activities in four countries in 2013, and has 118The Naval Conference, initiated in 1959 by the United States Navy, promotes the exchange of ideas, knowledge and mutual understanding of maritime problems that affect the hemisphere, the main purpose of which is to encourage permanent professional contacts between the hemisphere’s navies (Argentina, Bolivia, Brazil, Canada, Chile, Colombia, Ecuador, Guatemala, Honduras, Mexico, Panama, Paraguay, United States of America and Uruguay), with the purpose of promoting solidarity in the hemisphere It includes, for example, a specialized conference on naval control of shipping The 2012 Conference on this matter was held in Cartagena, Colombia 119Memorandum of Agreement on Exchange of Naval Personnel of 30 April 1985, allowing for the Exchange of personnel between both institutions with the purpose of developing knowledge Exchange in terms of doctrine and services among both institutions 120J Thomas, C Dougherty, Beyond the Ramparts. The Future of U.S. Special Operations Forces, Center for Strategic and Budgetary Assessments (CSBA), May 2013 Available at:http://www csbaonline org/publications/2013/05/beyond-the-ramparts-the-future-of-u-s-special-operations-forces/ (Last visited: 10 Nov 2016)
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grown to include more than 200 activities in six countries 121
Separately, Colombia has also concluded a series of cooperation
agreements with neighboring countries, Jamaica,122 Costa
Rica,123 Mexico,124 Honduras,125 the Dominican Republic,126
Guatemala,127 Panama,128 and the Netherlands 129
121 Bureau of International Narcotics and Law Enforcement Affairs,
2016 International Narcotics Control Strategy Report (INCSR), Country
Report: Colombia Available at:
http://www state gov/j/inl/rls/nrcrpt/2016/vol1/253252 htm (Last visited: 10
Nov 2016)
122 Operational Agreement between the Ministry of National Defense of
Colombia and the Ministry of National Security of Jamaica, 2 May 2002,
which allows for mutual cooperation to counteract and reduce unlawful
activities in jurisdictional waters, through coordinated naval operations,
information exchanges and operations for strengthening integral maritime
safety and security
123 Supplementary Agreement between the Government of the Republic
of Colombia and the Government of the Republic of Costa Rica on maritime
cooperation in the jurisdictional waters appertaining to each State for the
fight against illicit drug traffic, illegal exploitation in the Exclusive Economic
Zone and rescue of lost ships, 23 February 2004, which allows for mutual
cooperation for conducting coordinated actions in the fight against illicit drug
traffic by sea, through information exchanges and joint training; mutual
advice; search and rescue of vessels lost at sea; protection of the living and
non-living resources existing in the Exclusive Economic Zones of the Parties;
the protection, preservation and conservation of the marine environment
124 Inter-institutional Agreement for maritime cooperation between the
Ministry of National Defense – National Navy on behalf of the Republic of
Colombia and the Secretariat of the Navy of the United Mexican States, 31
January 2005, which allows for developing mutual cooperation, in order to
counteract and reduce unlawful activities in jurisdictional waters, through the
coordination of maritime interdiction operations; information exchanges;
increasing integral maritime safety and security; protecting the marine
environment; developing plans and programs for joint education and training;
mutual advice; developing scientific research and technical development
programs
125 Maritime cooperation agreement between the Ministry of National
Defense of Colombia and the Secretariat of Defense of the Republic of
Honduras, 8 August 2005, which allows for mutual cooperation with the
purpose of developing coordinated actions in the fight against illicit traffic in
the maritime sphere, through information exchanges and joint training;
mutual advice and developing programs of scientific and technological
research; integral maritime safety and security; search and rescue of vessels
lost at sea; protection of the living and non-living marine resources; the
protection, preservation and conservation of the marine environment
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2 108 It is in the context described in this section, a context completely ignored by Nicaragua in its Memorial, that Colombia deploys an important and costly security force in and around the San Andrés Archipelago Although it is a financial burden for 126Inter-institutional Agreement for maritime cooperation between the Ministry of National Defense –National Navy on behalf of the Republic of Colombia and the Secretariat of State of the Armed Forces of the Dominican Republic -Navy of the Dominican Republic, 5 December 2005, which allows for mutual cooperation with the purpose of conducting coordinated actions in the fight against illicit traffic in the maritime sphere,through information exchanges, plans and programs for joint education and training; mutual advice and developing scientific and technological research programs; integral maritime safety and security; search and rescue of vessels lost at sea; protection ofthe living and non-living marine resources; the protection, preservation and conservation of the marine environment 127Agreement on maritime cooperation between the Ministry of National Defense of the Republic of Colombia and the Ministry of National Defense of the Republic of Guatemala, 2 October 2013, which allows for mutual cooperation to counteract and reduce unlawful activities in jurisdictional waters, through developing coordinated operations; information exchanges; providing training and promotingthe mutual development of common measures aimed at preserving the marine environment and prevent the unlawful exploitation of its resources 128Inter-institutional agreement for maritime cooperation between the Ministry of National Defense –National Navyon behalf of the Republic of Colombia and the Ministry of Public Security of the Republic of Panama –National Aero-naval Service, 26 July 2014, which allows for developing coordinated actions against illicit traffic of narcotic drugs, psychotropic substances and chemical precursors; as well as arms, munitions and explosives trafficking and related crimes; education and training plans and programs; information exchanges; integral maritime safety and security; search and rescue of vessels lost at sea; protection of marine resources and the marine environment in general; advice on maritime matters 129Memorandum of Understanding between the Ministry of National Defense –National Navy on behalf of the Republic of Colombia and the Ministry of Defense of the Netherlands, 2 August 2015, which increases the cooperation and complementarity activities in operational matters, intelligence gathering and information exchanges with the purpose of counteracting transnational organized crime at sea, promoting cooperation in the field of training and education, and advice on maritime matters and maritime safety and security
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Colombia,130 it is necessary for ensuring environmental
protection, security at sea, protection of the inhabitants of the
Archipelago, and transnational crime interdiction, among other
public missions that Colombia carries out for the benefit of the
region, including Nicaragua
2 109 In this respect, it is worth emphasizing that Nicaragua
omits to mention events that clearly show that the Colombian
Navy has been very helpful in providing security to its own
fishing vessels, especially in the Luna Verde bank area There,
Nicaragua fails to exercise any security or regulatory control
over vessels operating under Nicaraguan licenses, although
many of them are overcrowded, devoid of basic marine security
gear, and acting in complete disrespect of environmental norms
and navigational rules, thereby endangering the environment as
well as the life of their crew and passengers, and even of other
ships The Court will find in Appendix A and depicted in
Figure 2.8 examples of events in which the Colombian Navy
provided humanitarian assistance,131 technical aid,132 and carried
130 Per year, the average number of naval units permanently located in
the area is seven major units Fragata/OPV, one maritime patrol aircraft, one
reconnaissance helicopter and four patrol boats RRU The average number of
men detached in the area on board of the naval units involved is 598 per year
The number of operations carried out in the area is 19 on average per year
For these operations, from 2012 to 2016, $69 362 982 542 COP (sixty-nine
billion, three hundred sixty-two million, nine hundred eighty-two thousand,
five hundred forty-two COP) have been invested, approximately
$15 413 996 120 00 COP (fifteen billion, four hundred thirteen million, nine
hundred ninety-six thousand, one hundred twenty COP) per year
131 One example can be highlighted: on 17 August 2013, the Captain of
the Nicaraguan flag vessel named “Trapper” located in the area of Luna
Verde required health assistance for 15 persons on his board The captain of
the Colombian ship A R C “Antioquia”, on routine patrol, ordered his staff
to carry out humanitarian assistance Assistance was given to 12 persons
92
out search and rescue operations,133most of the time upon express request of fishing vessels, including Nicaraguan flagged vessels. Likewise, Nicaragua failsto mention the importance and efficiency of the Colombian Navy in carrying out its part of the task in the global fight against drug trafficking.134During the operation, it was observed that the vessel had scuba tanks and canoe type boats(cayucos) It was also noted that the quality of life on board was deficient considering that the fishing vessel was not equipped to host 70 persons 132For example: on 8 November 2013, the Colombian ship A R C “San Andrés”was called via radio VHF channel 16 by the Nicaraguan fishing vessel “Pacific Star”, located in the Luna Verde bank, requesting support because of a water in the engine compartment The Colombian A R C successfully helped the fishing vessel to resolve the problem with pumps and shoring equipment 133As an example, on 17 November 2013, the Colombian Frigate A R C “Almirante Padilla”found two Nicaraguan fishermen drifting in the Luna Verde bank in a canoe type boat (cayuco)without any element of maritime safety The frigate rescued them and the fishermen said they part of the crew of the “Miss Sofia” The Colombian Navy then tried to contact the “Miss Sofia” several times, with no success The Colombian Navy had therefore, with the assistance of the Nicaraguan Naval Forces, no other option than to look for another vesselto which to deliver the two fishermen They were therefore rendered to another Nicaraguan fishing vessel, the “Caribean Star” 134See Chapter 2, Sec D, paras 2 93-2 110 supra
93
CaribbeanSeaPACIFICOCEANSan Andrés I.LittleCorn I.GreatCorn I.Santa Catalina I.QuitasueñoCayProvidencia I.Roncador CayESE CaysAlburquerqueSerranaCayBajo Nuevo CaySerranilla CayMiskitosCaysCOSTA RICAPANAMAJAMAICACUBACOLOMBIANICARAGUAHONDURAS10°N15°N10°N15°N20°N75°W 80°W 75°W 80°W Seaflower BiosphereReserveSeaflower MPAJOINTREGIMEAREA(Colombia / Jamaica)Costa RicaPanamaColombiaPanamaColombiaNicaraguaNicaraguaColombiaCol.Col.HonNicJamaicaColombiaCCayman Islands (U.K.)HondurasBABoundary from the2012 ICJ Judgment765432 1 - Nicaraguan fishing vessel Lady Aimee 2 - Nicaraguan fishing vessel Papa D 3 - Nicaraguan fishing vessel Papa D 4 - Nicaraguan fishing vessel Trapper 5 - Nicaraguan fishing vessel Sea Falcon 6 - Nicaraguan fishing vessel Pacific Star 7 - Nicaraguan fishing vessel Miss Sofia Acts of Humanitarian Aid andTechnical Assistance provided to:17 November 20132 February 20135 February 201325 September 201330 April 201318 August 20138 November 201310150200100500100200300Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping400EXAMPLES OF EVENTS IN WHICH THECOLOMBIAN NAVY PROVIDEDHUMANITARIAN ASSISTANCE, TECHNICALAID, AND CARRIED OUT SEARCH ANDRESCUE OPERATIONSFigure 2.8
94
E.Conclusion2 110 In light of the special circumstances in this region of the Caribbean, Colombia’s presence in the relevant waters and the actions it has taken are based on, and justified by,its rights of freedom of navigation and overflight, and the fulfilment of its legal obligations and international duties Nicaragua’s claims must be assessed both in this context, and in the light of Nicaragua’s serious failure to respect its own obligations under international law
95
Chapter 3
THE RIGHTS AND DUTIES OF THE PARTIES
IN THE SOUTHWESTERN CARIBBEAN SEA
A. Introduction: Nicaragua’s Misconception of the
Applicable Legal Principles
3 1 In view of the fact that Colombia is not a party to the
United Nations Convention on the Law of the Sea (UNCLOS),
the applicable law in the present case is based on customary
international law, as informed by other Conventions and legal
instruments to which Colombia and Nicaragua are parties This
applies both to the claims by Nicaragua and the counter-claims
made by Colombia and included in Part III of the present
Counter-Memorial 135
3 2 Nicaragua takes a myopic view of the applicable legal
principles Its case is premised on what it claims are Colombia’s
violations of its rights and maritime spaces – sovereign rights
which exist primarily for the purpose of exploring and
exploiting the natural resources of the exclusive economic zone
and continental shelf But in adopting this one-sided posture,
Nicaragua ignores the fact that (i) Colombia also possesses
rights and duties under international law that are relevant to and
require its presence and conduct in the Southwestern Caribbean,
and (ii) Nicaragua, as a corollary to its rights, also has important
135 Moreover, as stated by the Court in Territorial and Maritime
Dispute, the fact that Colombia is not a party to UNCLOS does not relieve
Nicaragua of its own obligations thereunder See 2012 Judgment, p 669,
para 126
96
legalobligations in the relevant area –obligations that Colombia will show Nicaraguahasfundamentallybreached 3 3 In other words, the existence of sovereign rights and jurisdiction over maritime spaces does not exempt a Statesuch as Nicaraguafrom complying with its international obligations towards other States, including Colombia Nor does it deprive Colombia of its own rights or relieve Colombia of its duties This is particularly the case in a situation such as the present where a number of special circumstances exist requiring a high degree of diligence on the part of the coastal States of the Southwestern CaribbeanSeato preserve and protect the fragile marine environment of this semi-enclosed sea, and to ensure that the historical fishing rights and natural habitat of the population of the Archipelago, including the Raizales, are not harmed 3 4 As the Arbitral Tribunal recently noted in the Chagos Marine Protected Area Arbitration, within various maritime zones (such as the territorial sea, international straits, and exclusive economic zone), customary international lawrequires that “States will exercise their rights (…)subject to, or with regard to, the rights and duties of other States” 1363 5 In this chapter,Colombia will discuss the rights and dutiesof both Partieswith respect to the relevant maritime area, and by which the legality of itsconduct, as well as that of 136Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Final Award, ICGJ 486 (PCA 2015), 18th March 2015, Permanent Court of Arbitration [PCA], para 503
97
Nicaragua, can be assessed Those rights and duties stem from
principles and rules of international law that go well beyond the
artificially narrow category of “sovereign rights” relied on by
Nicaragua, and include:
• The basic freedoms of navigation and overflight
that Colombia enjoys, including the right to
monitor and report suspicious maritime traffic as
part of its obligation to counter drug trafficking,
and to dissuade destructive fishing and other
practices (Section B);
• The obligation to preserve and protect the marine
environment, coupled with the duty to exercise due
diligence within the maritime spaces of the
Southwestern Caribbean, and the duty to respect
and protect the rights of the inhabitants of the
Archipelago to a healthy habitat and environment
under customary international law as informed by
the Cartagena Convention, to which both Colombia
and Nicaragua are Parties (Section C); and
• The existence of historic fishing rights vested in
Colombia and the inhabitants of the Archipelago,
who depend on a right to access their traditional
fishing banks for their livelihood and as part of
their traditional culture (Section D)
98
3 6 These rights and duties underlie three central propositions that are at the heart of Colombia’s case First, Nicaragua’s rights and jurisdiction within its EEZ are enumerated exclusive rights that are carved out from waters that otherwise form part of the high seas They do not preclude other States, Colombia included, from exercising their own rights and duties in such areas Second, Colombia has the right to be present in Nicaragua’s EEZ for monitoring and tracking activities that prejudice the marine environment, constitute suspicious trafficking of drugs andother forms of transnational crime, or threaten the habitatand livelihood of theinhabitants of theArchipelago who have traditional fishing rights in the area Third, in addition to a coastal State’s environmental obligations with respect to its maritime zones (special environmental obligations), all State users of the residual high seas freedoms have general environmental obligations If Nicaragua fails to fulfil its own special and general obligations, it is not in a position to object to others fulfilling their general environmental obligations so long as this does not infringe on Nicaragua’s sovereign rights (which Colombia’s activities have not done) 3 7 As willbe seen in the followingtwo chapterswhere the facts relating to Colombia’s conduct are addressed, in reality,Colombia’s actions within the Southwestern CaribbeanSeaare
99
evidence of the good faith exercise of its rights, undertaken in
compliance with its duties, under international law In contrast,
as Colombia will demonstrate when it presents its counterclaims,
Nicaragua has breached its obligations
B. Freedom of Navigation and Overflight
3 8 In introducing this Section, Colombia must first clarify its
position in relation to what the Court considered in its 17 March
2016 Judgment, at paragraph 71 This paragraph reads as
follows:
“Regarding the incidents at sea alleged to have
taken place before the critical date, [Colombia]
does not rebut Nicaragua’s allegation that it
continued exercising jurisdiction in the maritime
spaces that Nicaragua claimed as its own on the
basis of the 2012 Judgment ”137
3 9 Colombia wants to make crystal clear that it is not its
position that, with respect to any so-called “incidents” raised by
Nicaragua, it exercised “jurisdiction” in Nicaragua’s EEZ This
is simply not the case; nor does it form the basis of Colombia’s
counter-claims Rather, Colombia’s position is that Nicaragua’s
allegation, according to which Colombia is said to have
infringed Nicaragua’s maritime spaces when its vessels and
aircraft navigated in or above its EEZ, is unsupported and
clearly wrong This allegation is based on a basic misconception
of the freedoms of navigation and overflight that Colombia
enjoys throughout the Caribbean beyond the territorial sea of
137 Judgment on the Preliminary Objections, para 71
100
other States(1), and ignores the fact that Colombia exercised suchfreedoms peacefully and in amanner that duly respectedNicaragua’s sovereign rights (2) (1)NICARAGUA’SMISCONCEPTION OF THE FREEDOMS OF NAVIGATION AND OVERFLIGHT3 10 Nicaragua acknowledges that Colombia’s air and naval forces have a right to be presentin the Southwestern CaribbeanSea,including inNicaragua’s EEZ, by virtue of rights it enjoys in this areaunder customary international law Nicaragua refers in particular to the “right” of Colombian aircraft “to overfly Nicaragua’s exclusive economic zone”,138and further admits that “overflight by Colombian aircraft of fishing vessels in waters that are part of the Nicaraguan exclusive economic zone does not in itself imply a repudiation of Nicaragua’s rights in those waters ”139Surprisingly, Nicaragua omits mentioninganother key principle, namely freedom of navigation, despite the fact that it is also animportant part of the legal context inthe presentcase In other words, whileNicaragua emphasizesthesovereign rights and jurisdiction it possesses in its EEZ, it is forced to concede that Colombia is also entitled to enjoy certain“rights” in this area 3 11 Notwithstandingthis isolated and rather incomplete acknowledgment, Nicaragua’s arguments are inconsistent Nicaragua’s claim still relies on the assumption that Colombia’s 138Memorial of Nicaragua, para 3 34 139Ibid
101
mere presence in its EEZ, in and of itself, constitutes an
infringement of its rights and jurisdiction, and a repudiation of
the 2012 Judgment As Nicaragua’s Memorial asserts:
“(i) The Republic of Colombia maintains naval
units on a permanent basis in areas under the
sovereignty and jurisdiction of Nicaragua,
disregarding Nicaraguan rights, as recognized by
the Court’s Judgment of 19 November 2012 ”140
3 12 This contention echoes one of President Ortega’s
statements, which appears to express the basic legal assumption
underlying Nicaragua’s case – namely, that Colombia has no
right to be present in Nicaragua’s EEZ In President Ortega’s
words:
“Until recently, not too long ago, surveillance was
exercised by the Colombian Navy, by the
Colombian Air force up to November 19th; they
exercised surveillance in the area…
…when we speak of implementing the Agreements
of the Ruling, the decision by the International
Court of Justice in The Hague… this is similar to
when there is a change in government Namely,
with their strength, they had control of the area in
the past, but now the strength does not stem from
force but rather from a ruling; and it mandates that
we exercise sovereignty in the area, that we patrol
the area as Nicaraguans …Namely, that…
Nicaragua starts exercising sovereignty in the area,
as we are now doing with the Navy and with the
Air force, (…)” 141
140 Memorial of Nicaragua, para 3 38
141 Ibid , Annex 27, p 361
102
3 13 Nicaragua therefore seems to consider that,as a consequence of the 19 November 2012 Judgment, it is entitled to exercise “sovereignty in the area” Its basic legal position is that Colombia is obliged to withdraw its vessels and aircraft from what is now Nicaragua’s EEZ,as if itwere Nicaragua’s territory 3 14 This is not correct The EEZ has never been envisaged as a zone of sovereignty; to the contrary, it is a zone of shared rights andresponsibilities Coastal States have the sovereign right to explore and exploit the natural resourceswithin the EEZ, but foreign States retain, among other rights,the freedomsof navigation and overflight This is true under both customary international law and UNCLOS, since the applicable rulesexpressly preserve the rights of overflight and navigation in the EEZ for all aircraft and vessels, includingthoseof a military nature Colombia is thus entitled to freedom of navigation andoverflight in and over Nicaragua’s EEZfor all aircraft and vessels registered in its books or flying its flag, including those acting under its military authorities 3 15 Colombia recognisesthat, justas acoastal State’ssovereign rights and jurisdictionwithin its EEZ must be exercised with “due regard” to the rights and dutiesof other States, so also must the rights derivingfrom the freedoms of navigation and overflightbe exercised with “due regard” to the rights and duties of the coastal State However,the right of another State to freedom of navigation and overflight includes
103
the right to carry out surveillance activities, provided they are
peaceful and undertaken with due regard for the coastal State’s
sovereign rights and jurisdiction 142
3 16 It is first necessary to emphasize that the freedoms of
navigation and overflight are essential to permit a State to carry
out its duties 143 Under customary international law, amongst
others, a State has the right, as well as the duty, to protect and
preserve the marine environment A State also has the right to
monitor activities essential to its security and territorial integrity,
such as drugs and arms trafficking at sea, including in the EEZ
of another State, to the extent that it respects the “due regard”
requirement The United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances adopted
at Vienna on 20 December 1988, to which both Colombia and
Nicaragua are Parties, reflects the customary “due regard”
requirement with respect to the coastal State’s rights and
jurisdiction Article 17, paragraph 11, of the Convention states
that actions taken in respect of suppression of illicit traffic at sea
“shall take due account of the need not to interfere with or affect
the rights and obligations and the exercise of jurisdiction of
coastal States in accordance with the international law of the
sea ”
142 J. S. Kraska, “Resources Rights and Environmental Protection in the
Exclusive Economic Zone: The Functional Approach to Naval Operations”,
in Military Activities in the EEZ, P Dutton (ed ), p 82 Available at:
https://www usnwc edu/Research---Gaming/China-Maritime-Studies-
Institute/Publications/documents/China-Maritime-Study-7_Military-
Activities-in-the- pdf (Last visited: 10 Nov 2016)
143 See Chapter 3, Sec B, paras 3 17, 3 29-3 30; Chapter 3, Sec C (2)
paras 3 52-3 84 infra
104
(2)COLOMBIA EXERCISED ITS FREEDOMS OF NAVIGATION AND OVERFLIGHTWITH DUE REGARD FORNICARAGUA’SRIGHTS3 17 Colombia exercised its freedoms of navigation and overflight while carrying out its duties with respect to the protection of the environmentand the rights of the local population, ensuring security at sea, and fulfilling its commitments to combat drug trafficking, peacefully and in full respect of the “due regard” requirement 3 18 Nicaragua attemptsto argue that Colombia’s activities were not carried out peacefully, and were based on the use of force and threat to use force For instance, in its Memorial, Nicaragua assertsthat:“Followingthe Court’s judgment of 19 November 2012, and in spite of it, Colombia has continued to deploy its naval forces in areas determined by the Court to form part of Nicaragua’s Exclusive Economic Zone and continental shelf, and has used these forces to prevent Nicaragua from exercising its sovereign rights and jurisdiction in those areas ”1443 19 This argument lacksany seriousness, and the Court in its Judgment of 17 March 2016has ruledthatit has no jurisdiction overany Nicaraguanclaimconcerning the threat or the use of force 144Memorial of Nicaragua, para 3 37
105
3 20 Therefore, the only question still at issue between the
Parties is whether Colombia’s activities in Nicaragua’s EEZ
have been carried out with “due regard” to Nicaragua’s
sovereign rights and jurisdiction Nicaragua claims that
Colombian aircraft and vessels have “harassed” fishing vessels
flying Nicaragua’s flag or licenced by Nicaragua According to
the Applicant, Colombia has carried out its right of overflight
“in a harassing manner, with the apparent aim of frightening off
or ‘dissuading’ vessels authorized by Nicaragua from fishing in
those waters ”145 Colombian naval frigates and military aircraft
are also accused of having “harass[ed] and intimidate[d]
Nicaraguan licensed fishing vessels and prevent[ed] them from
fishing in areas subject to exclusive Nicaraguan jurisdiction;
thereby depriving Nicaragua of its right to benefit from the full
enjoyment of its rich fishing areas ”146
3 21 Colombia will demonstrate in Chapter 4 that Nicaragua’s
account of Colombia’s behaviour does not reflect reality: insofar
as the facts are concerned, Nicaragua has simply not
substantiated its “harassment” claims For purposes of this
section, however, a simple test demonstrates the implausibility
of Nicaragua’s allegation that its fishermen have been deprived
of access to their fishing grounds due to Colombia’s activities If
that were true, the fishing production of Nicaragua’s fishermen
in the Caribbean Sea would have remained as it was before
November 2012 But this is clearly not the case As reported in
145 Memorial of Nicaragua, para 3 34 See also paras 1 9,
146 Ibid , para 2 22 See also, among others, paras 2 28; 2 36
106
an official assessment publishedin 2014 by the Nicaraguan institution for fisheries and agriculture, INPESCA147, from 2012 to 2014, the total catch ofNicaraguan fishermenin the Caribbean Seaincreased bymore than 100%, risingfrom 12 589 596 pounds in 2012, to 16 735 109 pounds in 2013 and 25 551 466 pounds in 2014. The following graph speaks for itself148:147Annex 92: Nicaraguan Institute for Fishing and Aquaculture –INPESCA, Fishing and Aquaculture Yearbook for 2014, June 2015, p 7 148Figure taken from Annex 92
107
108
3 22 It isabundantly clear from Nicaragua’s own records that Nicaraguan fishermen have not suffered from any Colombian “harassment”, whatever this term means, or from other actions that have prevented them from carrying out their fishing activities Colombia exercised its freedoms of navigation and overflight, and carried out its duty of due diligence in order to monitor drug trafficking and protect the environment But it did not prevent Nicaraguan fishermen from engaging in their fishing activities within Nicaragua’s EEZ, even when such activities were being carried out in a predatory and destructive manner No doubt, some Nicaraguan fishermen would have preferred to be able to carry out their illegal practices unobserved But the facts relating to Colombia’s conduct cannot be construed as reflecting a violation of Nicaragua’s sovereign rights and jurisdiction C.The Rights and Duties of the Parties toPreserve and Protect the Marine Environmentand toExercise Due Diligence3 23 Thissection will set out the legal framework relating to the rights and obligations of the Parties to protect and preserve the marine environment, including the environment of thelocal inhabitants of the Archipelago 3 24 As willbe shown, Colombia has beenacting in accordance with three types of rights and duties recognized by international law to apply to bothNicaragua and Colombia First, Colombia
109
was acting in conformity with the right and duty to protect and
preserve the environment of the Southwestern Caribbean Sea
(Section (1)) Second, Colombia was complying with the duty to
exercise due diligence within the relevant maritime area
(Section (2)) Third, Colombia was fulfilling the right and duty
to protect the environment and habitat of the Raizales and the
other local communities inhabiting the Archipelago (Section
(3)) None of this involved an infringement of Nicaragua’s
sovereign rights or maritime spaces In contrast, Chapters 8, 9
and 10, dealing with Colombia’s counter-claims, will show that
Nicaragua has violated its obligations on all three counts
(1) THE PARTIES’ RIGHTS AND DUTIES TO PRESERVE THE
ENVIRONMENT OF THE SOUTHWESTERN CARIBBEAN SEA
3 25 On several occasions, the Court has recalled that respect
for the environment is an obligation of States aimed not simply
at benefitting other States, but also mankind as a whole As the
Court stressed in its Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons:
“the environment is not an abstraction but
represents the living space, the quality of life and
the very health of human beings, including
generations unborn The existence of the general
obligation of States to ensure that activities within
their jurisdiction and control respect the
environment of other States or of areas beyond
national control is now part of the corpus of
international law relating to the environment” 149
149 Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996, pp 241-242, para 29
110
3 26 Following the footsteps of the Court, other international courts and tribunals have alsoacknowledged that the “duty to prevent, or at least to mitigate”150significant harm to the environment, has become a principle of general international law 3 27 There is no doubt that the obligation to respect the environment is incumbent upon all States This means that all States have a “common interest”151–indeed an “essential interest”–152in preventing damage to the environmentandin preserving ecological balance This is particularly important in the context of a rare and fragile ecosystem such as the Southwestern Caribbean As the Court recognised in the Pulp Mills case in the context of the fragile ecosystem of the River Uruguay, “vigilance and prevention is all the more important in the preservation of the ecological balance, since the negativeimpact of human activities… may affect other components of the ecosystem…such as its flora, fauna, and soil” 153Due to this fragility and inter-connectivity, the reality for Colombia is that its land, waters and people are especially vulnerable 150Iron Rhine Arbitration (Belgium v. Netherlands), Award, ICGJ 373 (PCA 2005), 24th May 2005, Permanent Court of Arbitration [PCA],para 59 151Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment,I.C.J. Reports 2012, p 449, para 68 152Gabcikovo-Nagymaros Project (Hungaryv. Slovakia), Judgment, 1.C.J. Reports 1997, p 41, para 53 153Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Reports 2010, p 67, para 188
111
3 28 Colombia attaches the utmost importance to the need to
preserve the environment of the Caribbean Sea and has
conducted itself to this end Colombia made reference to
environmental concerns during the proceedings in the
Territorial and Maritime Dispute case,154 and its actions since
the Judgment in that case have been consistent with its
international rights and duties In several diplomatic notes,
Colombia has stressed that it was “in the process of duly and
judiciously reviewing the 2012 Judgment in order to fully
ascertain all its implications” with a view to “make use of all
legal recourses available to defend… the sustainability of the
Seaflower Marine Reserve, as well as the sovereign rights of
Colombia, within international law” 155
3 29 Environmental concerns within the Southwestern
Caribbean Sea need to be fully taken into account regardless of
considerations of sovereignty or sovereign rights The
154 See in particular, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Counter-Memorial of Colombia (Vol. I), paras 2 16, 2 8
(concerning the cays of the Archipelago in general) and paras 3 89-3 91,
3 99 (concerning the domestic laws and regulations for the protection of the
Archipelago environment)
155 Following the 2012 Judgment, Colombia voiced its concerns for the
Southwestern Caribbean Sea environment in various multilateral contexts
This is attested by a series of letters addressed to the Secretariats of the
United Nations, the Organization of American States, and UNESCO As
reiterated in all these letters, Colombia is keen in ensuring the “sustainability
of the Seaflower Marine Reserve” after the 2012 Judgment See, Annex 19:
Diplomatic Note DM No 94331 from the Minister of Foreign Affairs of
Colombia to the Secretary-General of the United Nations, 23 November
2012; Annex 20: Diplomatic Note DM No 94365 from the Minister of
Foreign Affairs of Colombia to the Secretary-General of the Organization of
American States, 23 November 2012; and Annex 21: Diplomatic Note DM
No 78634 from the Minister of Foreign Affairs of Colombia to the Director-
General of the United Nations Education, Scientific and Cultural
Organization – UNESCO, 23 November 2012
112
“sovereignty (or sovereign rights) umbrella”,156that Nicaragua relies onfor purposes of claimingthat Colombia violated its maritime rights and spacescannot exist to the detriment of the environment of the Southwestern CaribbeanSeaor derogate from both Parties’ obligation to preserve and protect the marine environment, as well as the right of local communities to enjoy and benefit from a healthy0environment 3 30 In short,Nicaragua and Colombia each have the duty to adopt, take and implement appropriate measures and actions that would ensure respect for the environment of the maritime zones within the Southwestern CaribbeanSea, having regard forthe rights and duties of the other State As the Court stated intheDispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua)case, in a context where Nicaragua was alsoadvancing an expansiveapproach to the scope of its sovereignty,“sovereignty is affirmed only to the extent that it does not prejudice the substance of [another State’s] right…”1573 31 At the least, Colombia has the right to monitor any practices that contravene the obligation to preserve and protectthe marine environment, and to urge that such activities cease This is particularly so when they are undertaken in ecologically sensitive areas such as the Seaflower Biosphere Reserve and the 156Expression borrowed from the Chagos Arbitration, Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Final Award, ICGJ 486 (PCA 2015), 18th March 2015, Permanent Court of Arbitration [PCA], para 122 157Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, I.C.J. Reports 2009, p 237, para 48
113
Seaflower Marine Protected Area, which surround the San
Andrés Archipelago Nicaragua also has the obligation to
preserve and protect the marine environment, and to exercise
due diligence over its vessels and nationals in this regard
(a) The Duty To Protect and Preserve Requires Preventive
and Proactive Action
3 32 The applicable international law at stake in the present
dispute is clear, in particular concerning the protection and
preservation of the marine environment of the Southwestern
Caribbean Sea Customary international law imposes an
obligation for Nicaragua and Colombia to act in both a
preventative and proactive way in order to prevent damage to
the environment of the Southwestern Caribbean
3 33 The emphasis on the obligation both to “protect” and
“preserve” the marine environment, entails two elements: to
protect the marine environment from future damage, and to
preserve the marine environment in the sense of maintaining or
improving its present condition.158 Customary international law
thus prohibits Nicaragua and Colombia from actions whose
effect is to degrade the marine environment This is especially
important with respect to the environmentally sensitive
Seaflower Reserve and the Seaflower Marine Protected Area
Under customary international law, all States have an obligation
158 This is also reflected in Article 192 of UNCLOS, to which
Nicaragua is a party and which thus establishes a legal obligation on it
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to protect and preserve a “shared resource”,159such as the Seaflower Reserve 3 34 Colombia has historically taken several concrete steps to protect the marine environment of the Southwestern CaribbeanSea, includingthe Seaflower Biosphere Reserveand the Seaflower Marine Protected Area 160Morerecently, it established an Integral Contiguous Zone, which Nicaragua vigorously contests in its Memorial, but one of the purposes of which is to ensure the protection and preservation of the marine environmentwithin its confines 161Nicaragua has failed to take any similar stepsor even to acknowledge that it has anylegal obligation to protect and preserve the marine environment 3 35 The Cartagena Convention, to which Colombia and Nicaragua are parties,but which Nicaragua passes over in 159Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Reports 2010, p 82, para 204 160Colombian authorities have issued the following legislation in order to protect the Caribbean environment: Ministry of Environment, Housing and Territorial Development,Resolution No 107 of 2005 (in Annex 4); Ministry of Environment and Territorial Development,Resolution No 679 of 2005 (Rosario Archipelago and San Bernardo Archipelago MPAs); CORALINA,Agreement No 021 of 2005 (in Annex 5); CORALINA, Agreement No 025 of 2005 (in Annex 6); Ministry of Environment, Housing and Territorial Development, ResolutionNo 2372 of 2010; Ministry of Environment and SustainableDevelopment, Resolution No 977 of 2014 (in Annex 9); CORALINA,Agreement No. 027 of 2001 (Johnny Cay Regional Park Declaration); CORALINA, Agreement No 041 of2001 (Delimitation and reservation of Johnny Cay Regional Park). Colombia currently has 54 protected areas, out of which 12 are marine protected areas A list of the Protected Areas in the Caribbean is available at:http://www invemar org co/redcostera1/invemar/docs/cartillasampcolombia pdf (Last visited: 10 Nov 2016) 161See in particular the Preamble of Presidential Decree No 1946 of 9 September 2013, as modified and amended by Presidential Decree No 1119 of 17 June 2014 (composite version), in Annex 7
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silence, is also relevant in this connection It specifically
addresses the protection and development of the marine
environment of the Wider Caribbean Region 162
3 36 The Convention is based on the customary international
law principle obliging States to protect and preserve the marine
environment Its provisions apply that general obligation to the
specific characteristics of the wider Caribbean Sea As Article 3,
paragraph 2, provides: “This Convention and its protocols shall
be construed in accordance with international law relating to
their subject-matter” 163
3 37 The Convention reflects the same pro-active spirit as
customary international law and requires both Nicaragua and
Colombia to “individually or jointly, take all appropriate
162 The Cartagena Convention (in Annex 17) establishes its scope of
application as follows:
“Article 1. Convention Area
1 This Convention shall apply to the wider Caribbean region,
hereafter referred to as ‘the Convention area’ as defined in
paragraph 1 of article 2
2 Except as may be otherwise provided in any protocol to the
Convention, the Convention shall not include internal waters
of the Contracting Parties ” Article
Article 2. Definitions
For the purposes of this Convention:
1 The ‘Convention area’ means the marine environment of
the Gulf of Mexico, the Caribbean Sea and the areas of the
Atlantic Ocean adjacent thereto, south of 30 deg north
latitude and within 200 nautical miles of the Atlantic coasts
of the States referred to in article 25 of the Convention ”
See also: Chapter 2, Sec B (2), paras 2 33-2 43 supra
163 Cartagena Convention, Article 3, para 2 (in Annex 17)
116
measures in conformity with international law… toprevent, reduce and control pollution of the Convention area and to ensure sound environmental management, using for this purpose the best practicable means at [its] disposal and in accordance with [its] capabilities” 164(Emphasis added) 3 38 Measuresand actions undertaken by Colombia –including the establishment of its ICZ –show that Colombia has used in good faith the best practical means at its disposal to ensure the protection and preservation of the marine environment of the San Andrés Archipelago andof theSouthwestern CaribbeanSea Measures and actions were also adopted by Colombia in order to “take all appropriate measures to prevent, reduce and control pollution of the Convention area caused by discharges from ships”,as required by the CartagenaConvention 165This is not the case when it comes to Nicaragua, as will be seen in Chapter 8dealing with Colombia’s counter-claims 3 39 In the light of the foregoing, and in contrast to what Nicaragua allegesin its Memorial, both Parties haveobligations that relate to its actions (or, in Nicaragua’s case,lack of action) in the relevant maritime area Colombia’smeasures and actions have been taken not only as a consequence of its freedoms discussed in Section B, but also in order to comply with its duties under international law:in particular, its duty to protect and preserve the marine environment of the Southwestern 164Cartagena Convention, Article 4, para 1(in Annex 17) 165Cartagena Convention, Article 5, (in Annex 17)
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Caribbean Sea The paradox is that Colombia is the Respondent
in these proceedings The Applicant – i.e., Nicaragua – is
complaining of alleged violations of its sovereign rights and
maritime spaces when it not only ignores Colombia’s rights and
duties, but also has not shown any effort or due diligence to
comply with its duty to protect and preserve the marine
environment 166
(b) The Parties’ Duty and Right To Protect and Preserve the
Biodiversity of the Southwestern Caribbean Sea
3 40 One of the main purposes of the customary obligation to
protect and preserve the marine environment is to ensure the
sustainability of marine biodiversity
3 41 The Court is familiar with the need to protect and preserve
biodiversity and has acknowledged its importance in the context
of the law of the sea Indeed, the Court stated that “[t]he very
fact of convening the third Conference on the Law of the Sea
evidences a manifest desire on the part of all States to proceed to
the codification of that law on a universal basis, including the
question of fisheries and conservation of the living resources of
the sea” 167 (Emphasis added)
3 42 In the Pulp Mills case, the Court stressed the “duty to
protect the fauna and flora” in relation to the obligation to
166 See Chapter 8 infra
167 Fisheries Jurisdiction (United Kingdom v. Iceland), Merits,
Judgment, I.C.J. Reports 1974, p 23, para 53
118
preserve the aquatic environment 168Furthermore, the Court notedthat rules and measuresadopted by States thataim at preserving the aquatic environment “should also reflect their international undertakings in respect of biodiversityand habitat protection” 169Thus, customary international law emphasizes the need to protect and preserve marine biodiversity, and in particular, “rare or fragile ecosystems”170 In line with this, the Cartagena Conventionprovidesthat: “The Contracting Parties shall, individuallyor jointly, take all appropriate measures to protect and preserve rare or fragile ecosystems, as well as the habitat of depleted, threatened or endangered species, in the Convention area To this end, the Contracting Parties shall endeavour to establish protected areas”171 The Seaflower Marine Protected Area pursues such objectives 3 43 As shown in Chapter 2, the Southwestern CaribbeanSea is animportant reservoir of biodiversity As such, and in accordance with its duties under customary international law, Colombia has been,172and is, very concerned with the protection and preservation of the biodiversity of the Caribbean Sea One of the objectives of the Seaflower Biosphere Reserve 168Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Reports 2010, p 100, para 262 169Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Reports 2010, p 100, para 262 (Emphasis added) 170UNCLOS, article 194, para 5 171Article 10 (Emphasis added) 172Inthis respect, see in particular, Territorial and Maritime Dispute (Nicaragua v Colombia), Counter-Memorial of Colombia (Vol. I), paras 2 8, 2 16, 2 26, 3 28, 3 89 –3 91, 3 99 Ibid , Rejoinder of Colombia (Vol. I), paras. 2.89, 3.35. Ibid., Public Sitting, 26 April 2012, CR2012/11,p 52, p 55 (Bundy); Ibid., Public Sitting, 27 April 2012, CR2012/13,p 25 (Bundy)
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and the Seaflower Marine Protected Area, as well as the ICZ, is
to ensure conservation of the biodiversity of the Southwestern
Caribbean Sea in order to protect the ecosystems at risk. This
can be seen from the Preamble to the Cartagena Convention,
which reads: “Considering the protection of the ecosystems of
the marine environment of the wider Caribbean region to be one
of th[e] principal objectives” 173 (Emphasis added)
3 44 Colombia’s concerns for the preservation of biodiversity
within the Southwestern Caribbean Sea date back many years
Already by Resolution No 206 of 1968, the Board of Directors
of the Colombian Institute for Agrarian Reform (INCORA)
provided that the territory of the San Andrés Archipelago would
no longer be included in what was termed the “territorial reserve
of the State”, and certain sectors thereof were declared to be
special reserves The operative part stated:
“Article Three: To declare as special reserve zones,
with the purpose of preserving the flora, fauna,
lake levels, the creeks and natural scenic beauties,
the following sectors of the Archipelago of San
Andrés and Providencia
(…)
Cays and Banks
Preservation Zones
(…)
b) The Cay of Serrana and the banks of Roncador,
Quitasueño, Serrana, Serranilla, Bajo Nuevo and
Alicia
173 Cartagena Convention, fifth preambular paragraph (Annex 17)
Emphasis added
120
Article Four: To declare as special reserve zones for tourism purposes the following sectors of the Archipelago of San Andrés and Providencia: Cays and banks. All of the cays and banks that form part of the Archipelago of San Andrés and Providencia, excluding Cangrejo and Serrana Cays as well as the banks of Roncador, Quitasueño, Serranilla, Bajo Nuevo and Alicia, comprised within the intangible preservation zones dealt with in the previous article ” 1743 45 As discussed in Chapter 2,CORALINAwas created with a jurisdiction comprising the “territory of the Archipelago Department of San Andrés, Providencia and Santa Catalina, the territorial sea and the EEZ generated by the land sections of the Archipelago” It was mandated to promote the preservation, protection and sustainable use of the renewable natural resources and the environment of the Archipelago, and integration of the native communities inhabiting the islands and their ancestral methods of using nature’s resources inthis process 3 46 Beyondbiodiversity concerns,there are also concerns to maintain the “essential processes”175of the nature,or to maintain what arenowadays generically referred to as “ecosystems” Internationally accepted definitions of the term 174Annex 2: Colombian Institute for Agrarian Reform, Resolution No 206 of 16 December 1968 175UN Doc A/RES/37/7 World Charter for Nature, General Principle 1 Available at: http://www un org/documents/ga/res/37/a37r007 htm (Last visited: 10 Nov 2016)
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“ecosystem” include that in Article 2 of the Convention on
Biological Diversity, which defines ecosystem to mean “a
dynamic complex of plant, animal and micro-organism
communities and their non-living environment interacting as a
functional unit”176.
3 47 Nicaragua seems to think that mere promises to protect the
marine environment of the Southwestern Caribbean Sea and its
biodiversity are sufficient However, compliance with
international law is dependent on actions not words or promises
In particular, where a fragile ecosystem is at stake, international
law requires both Parties to take proactive action and not adopt a
“wait-and-see” attitude
3 48 It is astonishing that, in addressing Colombia’s allegedly
illegal presence in its EEZ, Nicaragua’s Memorial does not
address these important legal objectives embodied in
international conventions to which it is a party Nor does
Nicaragua recognize that Colombia has a legitimate interest,
indeed a duty, in seeing that the marine environment of the
Southwestern Caribbean is protected and preserved, let alone
that it (Nicaragua) also has serious obligations in this regard
3 49 To achieve sustainable development, biodiversity needs to
be preserved, in particular in the context of semi-enclosed seas
176 Convention on Biological Diversity, Art 2 Available at:
https://www cbd int/convention/text/ (Last visited: 10 Nov 2016)
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where ecosystems are not only fragile,but very much interdependent and interconnected 3 50 Asemphasized in the Preamble of the Convention on Biological Diversity, which informs rights and obligations under customary international law, “the conservation of biological diversity is a common concern of humankind” 177The Convention on Biological Diversity also states that “the fundamental requirement for the conservation of biological diversity is the in-situconservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings” 1783 51 TheSeaflower Biosphere Reserve, the Seaflower Marine Protected Area and the ICZ all facilitatethe development of in-situconservation of the ecosystems They constitute a fulfilment by Colombia of the duty to protect and preserve the biodiversity of the Caribbean Sea and thefragile ecosystemsencompassing the San Andrés Archipelago.Indoing so, Colombia is complyingwith another fundamental duty under international law, namely,the duty to exercise due diligence 3 52 These initiativescannot be seen, therefore, as an impediment to the exercise by Nicaraguaof itssovereign rights177Convention on Biological Diversity, Preamble Available at:https://treaties un org/doc/Treaties/1992/06/19920605%2008-44%20PM/Ch_XXVII_08p pdf (Last visited: 10 Nov 2016) 178Convention on Biological Diversity, Preamble Available at:https://treaties un org/doc/Treaties/1992/06/19920605%2008-44%20PM/Ch_XXVII_08p pdf (Last visited: 10 Nov 2016)
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– rights which, in any event, are not unfettered, and must be
exercised while fulfilling the obligation to protect and preserve
the marine environment
(2) THE PARTIES’ DUTY TO EXERCISE DUE DILIGENCE WITHIN
THE MARITIME SPACES OF THE SOUTHWESTERN
CARIBBEAN SEA
3 53 Customary international law requires that States, and in
particular, States whose maritime spaces are situated within a
semi-enclosed sea such as the Caribbean, exercise due diligence
in order to prevent infringements within maritime zones, such as
infringements of environmental protection and fisheries
3 54 The present sub-section aims at showing that Nicaragua
and Colombia are bound by a duty under international law to
exercise due diligence within the maritime spaces of the
Southwestern Caribbean Sea This duty of due diligence is of a
“reinforced”179 character given the particular environmental
characteristics of the Southwestern Caribbean Sea More
specifically, in the context of the present case, the reinforced
duty of due diligence applies to the protection of the
environment (Sub-section (a)) and concerns predatory fishing
practices within the Southwestern Caribbean Sea (Sub-section
(b))
179 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment,
I.C.J. Reports 2010, p 80, para 197
124
3 55 Nicaragua’s pleadingstotally ignoreits duty of due diligence, as will be shown in the section on counter-claims But that scarcely meansthat Colombia mayalso ignore its due diligence duty,or be accused of “harassing” Nicaraguan fishermen when it fulfils this vital duty (a)The Parties’ Reinforced Duty to Exercise Due Diligence with respect to the Environment of the Southwestern CaribbeanSea 3 56 Colombia has already stressed the importance of the duties that Nicaragua and Colombia have under customary international law to protect and preserve the marine environment, as well as the marine biodiversity of the Caribbean Sea Those duties are components of a broader duty:namely,the duty to exercise due diligence with respect to the environment in general 3 57 Customary international law incorporates such a duty of due diligence As the Court has highlighted, under customary international law, “[a] State is thus obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environmentof another State” 180The Court went further and emphasizedthat the obligation to act with due diligence in respect ofactivities which take place under the jurisdiction and control of aState is an obligation thatentails not 180Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Reports 2010, p 56, para 101
125
only the adoption of appropriate rules and measures, but also “a
certain level of vigilance in their enforcement and the exercise
of administrative control applicable to public and private
operators, such as the monitoring of activities undertaken by
such operators, to safeguard the rights of the other [State]” 181
(Emphasis added)
3 58 It follows that the due diligence obligation requires a State
to adopt appropriate rules and measures, and to exercise
vigilance in their enforcement and administrative control In
other words, the Flag State has “an obligation ‘to deploy
adequate means, to exercise best possible efforts, to do the
utmost’” 182
3 59 Moreover, the Court has recognized in the Pulp Mills case
that the obligation of due diligence can be “further
reinforced”183 in certain circumstances The specific context of
the Southwestern Caribbean Sea, combined with the fragility of
its ecosystems, and the growing threats to the environment –
such as predatory fishing practices, pollution, large
infrastructure projects, etc. – requires that the duty of due
diligence be reinforced This means that a State must be allowed
to exercise related rights in order to fulfil its duty of due
181 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment,
I.C.J. Reports 2010, p 89, para 197
182 Responsibilities and Obligations of States with respect to activities
in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p 41,
para 112; Request for Advisory Opinion submitted by the Sub-Regional
Fisheries Commission, Advisory Opinion, 2 April 2015, para 129
183 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment,
I.C.J. Reports 2010, p 80, para 197
126
diligence(although, for the avoidance of doubt, those related rights are not contingent on performance of the duty of due diligence) Accordingly, Colombia must be able to exercise in conformity with international law its rights of freedom of navigation, overflight, monitoring, humanitarian assistance andother relatedrights, which include the proper “monitoring of activities undertaken”184by public or private operatorswithout being accused of impeding Nicaragua’s sovereignrights 3 60 It is precisely this level of vigilance in terms of environmental protection that isatissue in the present case Inimplementing this duty, Colombia has in no way prevented Nicaragua from exercising its own sovereign rights 3 61 The other side of the coin is thatNicaragua also has a duty of due diligence over fishing vessels carrying its flagor operating under its licenses,as well as over its nationals Given thenature of the marine area, that should entail a “zero tolerance”attitude towards public or private operators from Nicaragua that engage in destructive practices andshow noregardfortheenvironment Nicaragua has utterly breached thisobligation (b)The Parties’ Reinforced Duty of Due Diligence with respect to Predatory Fishing Practices within the Southwestern CaribbeanSea184Ibid., p 79, para 197
127
3 62 Additionally, customary international law imposes upon
both Nicaragua and Colombia a heightened duty of due
diligence with respect to the protection and preservation of
living resources of the Caribbean Sea As recalled by the
International Tribunal of the Law of the Sea (ITLOS), “[T]he
conservation of the living resources of the sea is an element in
the protection and preservation of the marine environment” 185
3 63 The United Nations General Assembly has expressed
concerns regarding fisheries within the Caribbean Sea, and
encouraged concerned States to implement sustainable fishing
practices For instance, in 2004, the General Assembly adopted
Resolution 59/230 on “Promoting an integrated management
approach to the Caribbean Sea area in the context of sustainable
development”, in which it “call[ed] upon States, taking into
consideration the Convention on Biological Diversity, to
develop national, regional and international programmes for
halting the loss of marine biodiversity in the Caribbean Sea, in
particular fragile ecosystems, such as coral reefs” 186 The same
concerns were reiterated in Resolution 63/214 adopted in 2008
(“Towards the sustainable development of the Caribbean Sea for
present and future generations”),187 and the UN General
Assembly went as far as encouraging Caribbean States “to meet
the principles of the Code of Conduct for Responsible Fisheries
185 Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan),
Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p
295, para 70
186 UN Doc A/RES/59/230, para 14
187 UN Doc A/RES/63/214
128
of the Food and Agriculture Organization of the United Nations” 1883 64 The Code of Conduct for Responsible Fisheries was adopted on 31 October 1995 by more than 170 members of the Food and Agriculture Organization, including Colombia and Nicaragua It is considered as reflecting minimum international standards 189It provides that “[t]he right to fish carries with it the obligation to do so in a responsible manner so as to ensure effective conservation and management of the living aquatic resources”,190and establishes, among other things, that States should prevent overfishing and excess fishing capacity,191and take account of the interests of fishers.192The UN General Assembly insisted on the same concerns in 2012 1933 65 Both Nicaragua and Colombia are thus under a reinforcedduty of due diligence to prevent harmful fishing practices, predatory fishing and harvesting of endangered species that would damage the living resources of the Caribbean Sea and threaten their sustainability This is particularly significant given the inter-connectivity and fragility of the ecosystem of the Archipelago and its surrounding waters Predatory fishing 188United Nations,International Fisheries Instruments with Index,Sect III Available at Peace Palace Library 189R Wolfrum, “Preservation ofthe Marine Environment”, inJ Basedow, U Magnus, R Wolfrum, The Hamburg Lectures on Maritime Affairs, 2011-2013(Springer, 2015), p 6 Available at Peace Palace Library 190Article 6 1 191Article 6, para 3 192Article 7 2 2 (c) 193UN Doc A/RES/67/205
129
activities in the maritime area relevant to this case take the form
of destructive fishing methods, including fishing with divers and
scuba tanks. Both Parties have the obligation to adopt
appropriate measures and take action to prevent such activities
within the Southwestern Caribbean Sea
3 66 These obligations are not only based on customary
international law, but also derive from the Cartagena
Convention, and the 1973 Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES)194
3 67 The most fished species in the border area between
Colombia and Nicaragua, which mainly comprises the Luna
Verde bank, Quitasueño and Serrana, are the Caribbean Spiny
Lobster and the Queen Conch 195
3 68 The Caribbean Spiny Lobster is recognised as a species
that could rapidly become endangered It is listed in Annex III
of SPAW, which means that countries party to the SPAW
Protocol, such as Colombia, must take special measures to
ensure the protection and recovery of the Spiny Lobster whilst
regulating the use of the species
3 69 The Queen Conch is listed under Appendix II of the
CITES In accordance with the CITES, Colombia has reduced
194 Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES) Available at:
https://treaties un org/doc/publication/unts/volume%20993/volume-993-i-
14537-english pdf (Last visited: 10 Nov 2016)
195 See Chapter 6, para 6 8 infra.
130
drastically the activity of its fishing sector with regard to Queen Conch The number of Colombia’s fishermen fishing Queen Conch is limited to only 90, spread in 15 small boats 196No industrial boats areallowed to fish this species, and only free diving is permitted Colombia does not export Queen Conch 197Queen Conch fishing in the Archipelago is subject to specific regulations, which foresees a strict system of allocation of fishing quota limited to artisanal fishermen and reserved for local consumption 1983 70 By inviting Nicaraguan flagged and authorized vessels to cease predatory activities that would have a detrimental effect on those species, Colombia is complying with itsduty of due diligence With respect to Queen Conch in particular, the CITES Conference of Parties (COP) 16 has encouraged States “toparticipate in the development of national, subregional and 196See M C Prada, R S Appeldoorn, Draft Regional Queen Conch Fisheries management and Conservation Plan, pp 16, 23 Available at:http://www fao org/fi/static-media/MeetingDocuments/WECAFC16/Ref20e pdf (Last visited: 10 Nov 2016 )197According to Resolution No 350 of 10 October 2013 issued by the Ministry of Agriculture andRural Development, 16 Tons of Queen Conch catch quota are exclusively assigned to artisanal fishermen and is only for local consumption (i e not for export) (Annex 8) Thiswas duly ratified by Resolution No 1680 of 27 December 2013, Resolution No 1845 of 13 December 2014 and Resolution 1975 of 10 November 2015, issued by the National Authority on Aquiculture and Fishing 198In accordance with Resolution 3312 of 24 November 2010, Queen Conch fishing was bannedfor the Department of San Andrés, Providencia and Santa Catalina; consequently, during of 2011 and 2012 there wasno allocation of catch quota forQueen Conch From the year 2013, the responsible authority allocates an overall fishing quota of 16 Tn of Queen Conch in the area of the San Andrés Archipelago This quota has been of exclusive assignment to artisanal fishermen and it is solelyfor local consumption
131
regional plans for the management and conservation of
[Strombus gigas] and to share information and collaborate on:
… enforcement issues, including illegal, unregulated and
unreported fishing (IUU) ”199
3 71 More generally, the need to exercise reinforced due
diligence against IUU fishing has also been endorsed in the
context of the Western Central Atlantic Fishery Commission
(WECAFC), of which both Nicaragua and Colombia are
members In Resolution WECAFC/15/2014/6 on region-wide
support to the implementation of the Caribbean Regional
Fisheries Mechanism (CRFM) 2010 Castries Declaration on
Illegal, Unreported and Unregulated Fishing, the WECAFC
stressed the need to fight against IUU fishing practices, and to
that end, to “facilitate the development and implementation of
policies and measures to prevent, deter and eliminate IUU
fishing within the region.”200 (Emphasis added)
199 Convention on International Trade in Engendered Species and Wild
Fauna and Flora, Sixteenth meeting of the Conference of the Parties,
Bangkok, Thailand, 03-14 March 2013, Decision 16 141 to 16 148, Regional
cooperation on the management of and trade in the Queen Conch (Strombus
gigas), at 16 143 Available at:
https://www cites org/eng/dec/valid16/230 (Last visited: 10 Nov 2016)
200 Western Central Atlantic Fishery Commission, Fifteenth Session,
Port of Spain, Trinidad and Tobago, 26-28 March 2014, Document
WECAFC/XV/2014/16, “Draft Resolutions and Recommendations”, Draft
Resolution WECAFC/15/2014/6 on region-wide support to the
implementation of the CRFM “Castries, St Lucia, (2010) Declaration on
Illegal, Unreported and Unregulated Fishing”, p 20 Available at:
ftp://ftp fao org/FI/DOCUMENT/wecafc/15thsess/16e pdf (Last visited: 10
Nov 2016 )
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3 72 In the Outcome Document of the 2012 United Nations Conference on Sustainable Development (Rio+20), the international community acknowledged that:“[I]llegal, unreported and unregulated fishing deprive many countries of a crucial naturalresource and remain a persistent threat to their sustainable development”201and recommitted “to eliminate illegal, unreported and unregulated fishing… and to prevent and combat these practices, including throughthe following: developing and implementing national and regional action plans in accordance with the FAOInternational Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing; implementing, in accordance with international law, effective and coordinated measuresby coastal States, flag States, port States, chartering nations and the States of nationality of the beneficial owners and others who support or engage in illegal, unreported and unregulated fishing by identifying vessels engaged in such fishing and by depriving offenders of the benefits accruing from it” 202(Emphasis added) The Sustainable Development Goals (SDGs)go in the same direction Indeed, SDG14 (“Conserve and Sustainably use the oceans, seas and marine resources”) require from all Members Statesof the United Nations to “effectively regulate harvesting and end overfishing, illegal, unreported and unregulated fishing and destructive fishing practices…” 203(Emphasis added) 201UN Doc A/66/L 56,Rio+20 Outcome Document, para 170 202UN Doc A/66/L 56,Ibid.203UN Doc A/70/L 1 (Emphasis added)
133
3 73 Additionally, reinforced due diligence is required for the
conservation of the habitats of endangered fish species,
particularly in fragile ecosystems In addition to preventing the
direct harvesting of species recognized internationally as being
threatened with extinction, customary international law extends
to the prevention of harms that would affect depleted,
threatened, or endangered species indirectly through the
degradation of their habitat While the measures taken by
Colombia in respect of the Seaflower Biosphere Reserve and the
Seaflower Marine Protected Area contribute to protecting and
preserving those species, Nicaragua has taken no such action
3 74 In addition to these considerations, the Court has
acknowledged that a State (such as Nicaragua in the present
case) “ha[s] an obligation to take full account of [another
State’s] rights and of any fishery conservation measures the
necessity of which is shown to exist in”204 maritime spaces For
the Court, “[i]t is one of the advances in maritime international
law, resulting from the intensification of fishing, that the former
laissez-faire treatment of the living resources of the sea… has
been replaced by a recognition of a duty to have due regard to
the rights of other States and the needs of conservation for the
benefit of all.”205 (Emphasis added)
204 Fisheries Jurisdiction (United Kingdom v. Iceland), Merits,
Judgment, I.C.J. Reports 1974, p 31, para 72
205 Ibid. (Emphasis added)
134
3 75 All of these rights and duties regarding the preservation of the environmentand the sustainable conservation of fisheries do not operate in isolation from other rights, in particular the rights of Raizalcommunityand other inhabitants of the Archipelago Customary international law requires the Partiesto preserve the environment not only for ecologicalreasons, but alsoforhuman purposes As Principle 1 of the 1992 Rio Declaration on the Environment and Development states: “Human beings are at the centreof concerns for sustainabledevelopment They are entitled to a healthy and productive life in harmony with nature” 2063 76 Theentitlement to a healthy, sound and sustainable environment is even more crucial when vulnerable communities living in the Archipelago such as the Raizales areat stake. The subsistence of those communities is inextricably linked to,and dependent on,a healthy and sustainable environment This has been explicitly recognized by the international community at the Rio+20 Conference,where it was emphasized“that indigenous peoples and local communities are often the most directly dependent on biodiversity and ecosystems and thus are often the most immediately affected by their loss and degradation” 207The next section turns to this issue 206UN Doc A/CONF 151/26 (Vol I), Principle 1 of the Rio Declaration on the Environment and Development 207UN Doc A/66/L 56,Rio+20 Outcome Document, para 197
135
(3) THE PARTIES’ RIGHT AND DUTY TO PROTECT THE RIGHT OF
THE RAIZALES AND OTHER INHABITANTS OF THE ARCHIPELAGO TO A
HEALTHY, SOUND AND SUSTAINABLE ENVIRONMENT
3 77 On several occasions, the Court has acknowledged the link
between environmental protection and the well-being of human
communities As the Court has observed, “the environment is
not an abstraction but represents the living space, the quality of
life and the very health of human beings” 208 (Emphasis added)
Such an acknowledgement shows that a foundational aim of the
obligation of States to protect the environment is to preserve a
healthy and sound environment for human beings When the
environment of vulnerable communities such as the Raizales
and other inhabitants of the Archipelago is at stake, States need
to be even more diligent with respect to the need to protect the
environment of these communities
3 78 This duty applies regardless of considerations of
sovereignty What is at stake are not sovereign rights over
maritime spaces, but the right of the Raizales and other
inhabitants of the Archipelago to a healthy and sustainable
environment
3 79 The right of indigenous peoples and local communities to
benefit from the protection of their environment and habitats is
recognized in State practice Noteworthy, in the context of the
208 Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996, pp 241-242, para 29; Gabcikovo-Nagymaros
Project (Hungary v. Slovakia), Judgment, 1.C.J. Reports 1997, p 41, para
53
136
presentdispute, is the American Declaration on the Rights of Indigenous Peoples, adopted on 15 June 2016 Article XIX (Right to protection of a healthy environment) states at paragraph 2 that: “Indigenous peoples have theright to conserve, restore, and protect the environment and to manage their lands, territories and resources in a sustainable way ”2093 80 The Inter-American Court of Human Rights (“I/ACourt H R ”)has, on various occasions, addressed the link between the protection of the environment and the rightsof indigenous peoples and local communities This jurisprudenceis particularly significant as it recognizes that the protection of the territories of indigenous peoples and local communities stems from the need to ensure the continuity of their use of natural resources, which in turn allows them to maintain their way of living 3 81 In the Sarayaku case, for example, the I/A Court H R found that “the right to use and enjoy the territory would be meaningless for indigenous and tribal communities if that rightwere not connected to the protection of natural resources in the territory ”210And in the Bayano case, thatcourtfurther extended 209American Declaration on the Rights of Indigenous Peoples, Availableat:http://www narf org/wordpress/wp-content/uploads/2015/09/2016oas-declaration-indigenous-people pdf (Las visited: 10 Nov 2016)210I/A Court H R , Case of theKichwa Inigenous Peolple of Sarayaku v. Ecuador, Judgment (Merits and Reparations) 27 June 2012, paras 146-147 See also, Xákmok Kásek Indigenous Community, Merits, Reparations and Costs, Judgment of August 24, 2010, para 85; Sawhoyamaxa Indigenous Community,Merits, Reparations and Costs, Judgment of March 29, 2006,
137
the nexus between the protection of the environment and the
enjoyment of rights for indigenous peoples and local
communities by holding that:
“In addition, although neither the American
Declaration of the Rights and Duties of Man nor
the American Convention on Human Rights
includes any express reference to the protection of
the environment, it is clear that several
fundamental rights enshrined therein require, as a
precondition for their proper exercise, a minimal
environmental quality, and suffer a profound
detrimental impact from the degradation of the
natural resource base” 211
3 82 Based on the link between the environment and the
enjoyment of indigenous rights, the I/A Court H R went on to
conclude that States have a duty to prevent harm to and protect
the habitat of indigenous peoples “taking into account the
special characteristics of indigenous peoples, and the special and
unique relationship that they have with their ancestral territories
and natural resources found therein” 212 As the I/A Court H R
also recalled: “States are under an obligation to control and
prevent illegal extractive activities such as logging, fishing, and
illegal mining on indigenous or tribal ancestral territories, and to
investigate and punish those responsible” 213
Series C No 146, para 118; Yakye Axa Indigenous Community, Merits,
Reparation and Costs, Judgment of June 17, 2005, Series C No 125, para
137; Saramaka People, Preliminary Objections, Merits, Reparations and
Costs, Judgment of November 28, 2007, Series C No 172, para 88
211 I/A Court H R , Report No 125/12, Case 12 534, Kuna Indigenous
People of Mudungandi and Embera Indigenous People of Bayano and their
Members v. Panama, Merits, 13 November 2012, para 233
212 Ibid , para 234
213 Ibid
138
3 83 As explained in Chapter 2, the protection of the environment andaccess to and conservation of fisheries in areas where they have traditionally fished is of vital importance for the subsistence of the Raizales The Court itself has recognized the importance of fishing for the well-being and quality of life of the inhabitants of coastal or riparian areas For instance, while referring specifically to subsistence fishing, in its Judgment on the Dispute regardingNavigational and Related Rights (Costa Rica v Nicaragua), the Courtupheld the customary right of fishing of the inhabitants of Costa Rica in the NicaraguanSan JuanRiver 2143 84 Both Nicaragua and Colombia have a duty to prevent the potential threat to the Raizales’ traditional fishing rights through the protection of their environment and habitat Colombia has complied with that duty by ensuring the involvement of the Raizales and other communities of the Archipelago in the regulation and management of initiatives such as the Seaflower Marine Protected Area This was established in accordance with Colombian legislation in 2005byCORALINA’sAgreements No 021 and 025 215However,Nicaragua’sMemorial ignores all of these elements Apparently, Nicaragua considers that the mere possession of sovereign rights over its EEZ exempts it 214The Court held that “fishing by the inhabitants of the Costa Rican bank of the San Juan River for subsistence purposes from that bank is to be respected by Nicaragua as a customary right”, Dispute relating to Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, Merits, I.C.J. Reports 2009,p 266, paras 143-144 215Annexes 5 and 6
139
from complying with the obligations that accompany those
rights and that are duly recognized under customary
international law. Similarly, Nicaragua seeks to deny to
Colombia the rights and duties that it has in the relevant area,
except for what it contends is Colombia’s obligation not to carry
out activities in Nicaragua’s EEZ
3 85 Yet, the existence of sovereign rights does not supersede,
much less eliminate, the duty that both Nicaragua and Colombia
have to protect the rights of the Raizales as well as the other
inhabitants of the Archipelago to a healthy, sound and
sustainable environment
D. The Customary Artisanal Fishing Rights To Access
and Exploit the Traditional Banks
3 86 The existence of traditional fishing rights in favour of the
inhabitants of the Archipelago is not a matter of controversy As
evidenced by the practice put forward by Colombia in the form
of historical documents and affidavits discussed in Chapter 2,
ever since colonial times, the Raizales, who are the ancestral
inhabitants of the Archipelago, and the other communities living
there have been navigating, fishing and turtling in maritime
areas of the Southwestern Caribbean that go beyond those that
were found to appertain to Colombia in the 2012 Judgment That
much is uncontested Nicaragua has not only acknowledged the
existence of this long-standing practice, but has also recognized
that the artisanal fishermen of the Archipelago have the right to
140
fish in Nicaragua’s own maritime zones without having to request an authorization 216(1)THE FORMATION AND RECOGNITION OF A LOCAL CUSTOMARY RIGHT TO ARTISANAL FISHING3 87 It is not uncommon for States to agree, either tacitly or explicitly, that inhabitants living in border regions should be allowed to traverse boundaries in order to have access to resources that are important for the livelihood oftheir communities This happens in the context of territorial frontiers217,as well as with regard to functional maritime boundaries 218216Annex 73: El 19 Digital, President Daniel meets Juan Manuel Santos in Mexico, 2 Dec 2012; Annex 74: Radio La Primerísima, Daniel ratifies to Colombia his vocation for peace, 2 Dec 2012; Annex 76: Radio La Primerísima, Powerful interests want a confrontation with Colombia, 21 Feb 2013; Annex 75: Radio La Primerísima, Nicaragua exercises peaceful sovereignity over its waters, 5 Dec 2012; Annex 77: El 19 Digital, Daniel meets delegation from Iceland, 18 Nov 2014 217Kasikili/Sedudu Island (Botswana/Namibia), I.C.J. Reports 1999, p 1094, para 74: “It is, moreover, not uncommon for the inhabitants of border regions in Africa to traverse such borders for purposes of agriculture and grazing, without raising concern on the part of the authorities on either side of the border ”; Eritrea-Ethiopia Boundary Commission, Decision Regarding Delimitation of the Border between the State of Eritrea and the Federal Democratic Republic of Ethiopia, 13 April 2002, 41 ILM 1057, p 1116, para 7 3: “Regard should be paid to the customary rights of the local people to have access to the river ”; Frontier Dispute (Burkina Faso/Niger), Judgment, I.C.J. Reports 2013, pp 90-91, para 112; Article 9 of the Agreement regarding Water rights on the Boundary between Tanganyika and Ruanda-Urundi, London, 22 November 1934, 190 LNTS 106 218Award of the Arbitral Tribunal in the second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Decision of 17December 1999, R.I.A.A., Vol. XXII,paras 103-112; Article 5(1) of the Agreement between the Government of the Republic of Indonesia and the Government of Papua New Guinea concerning maritime boundaries between the Republic of Indonesia and Papua New Guinea and co-operation on related matters; Agreement between the Government of Papua New Guinea and the Government of Solomon Islands concerning the administration of the special
141
3 88 Often, these practices have been observed for a long
period of time without giving rise to any protest from the
authorities of the neighbouring State Sometimes, the “positive”
practice of private individuals necessarily implies the existence
of a “negative” practice on the part of State authorities which,
although aware of the on-going activities within their
jurisdiction, fail to take action in circumstances where there is a
duty to react within a reasonable period of time
3 89 This was acknowledged by the Court as early as 1960 in
its Judgment in the Case concerning Right of Passage over
Indian Territory 219 In that Judgment, the Court found that the
“negative” practice of the British and, later, of the Indian
authorities of allowing free passage between coastal Daman and
the enclaves had given rise to a local custom between Portugal
and India 220 The finding that Portugal held a customary right of
passage in favour of private persons, civil officials and goods
did not require an in-depth analysis of opinio juris sive
necessitatis The circumstances were such that India’s toleration
of the activities occurring under its jurisdiction satisfied the
Court that “that practice was accepted as law by the Parties and
ha[d] given rise to a right and a correlative obligation” 221 On
areas; Memorandum of Understanding between the Government of Australia
and the Government of the Republic of Indonesia regarding the operations of
Indonesian traditional fishermen in areas of the Australian exclusive fishing
zone and continental shelf
219 Case concerning Right of Passage over Indian Territory, (Portugal
v. India), Merits, Judgment, I.C.J. Reports 1960, p 6
220 Ibid., p 40
221 Ibid., p 40
142
the other hand, India’s timely complaints vis-à-visthe unannounced passage of Portuguese troops in its territory attested to the non-existence of a parallel customary right in favour of armed forces, armed police and arms and ammunition 2223 90 Similarly, in a recent case which also concerned Nicaragua, the Court found that, “the failure… to deny the existence of a right arising from the practice which had continued undisturbed and unquestioned over a very long period, [was] particularly significant”, before ruling in favour of the existence of a Costa Rican customary right to fish in the territory of Nicaragua 223In suchcircumstances, where both parties have recognized a long-standing practice224, the State that has tolerated the conduct taking place under its jurisdiction cannot hide behind the argument that it is for the State relying on the customary norm to demonstrate the opinio juris sive necessitatis In fact,the Court has beenpreparedto recognize the existence of a customary right on the basis of little evidence since it rightly stressed that the practice in question, “especially given the remoteness of the area and the small, thinly spread population, [was] not likely to be documented in any official record” 225222Case concerning Right of Passage over Indian Territory, (Portugal v India), Merits, Judgment, I.C.J. Reports 1960, pp 41-43 223Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, I.C.J. Reports 2009, pp 265-266, para 141 224Ibid., p 265, para 141 225Ibid
143
3 91 The Court’s findings in these two precedents spanning half
a century also demonstrate that there can be no doubts as to the
existence in international law of local customary norms in
addition to general ones As stated by the Court in its 1960
Judgment in the Case concerning Right of Passage over Indian
Territory, “[i]t is difficult to see why the number of States
between which a local custom may be established on the basis of
long practice must necessarily be larger than two” 226
3 92 State authorities can also recognize the existence of such
customary rights explicitly, instead of merely recognizing the
existence of a practice Indeed, there are no uncertainties when
the omissions are followed by explicit and reiterated recognition
that such practices amount to the exercise of a right
3 93 Significantly, in the present case, there are a number of
explicit recognitions when it comes to the traditional fishing
rights of the Raizales to artisanal fishing in waters that now fall
within Nicaragua’s EEZ The first of these took place on 26
November 2012 when President Ortega stressed that Nicaragua
fully respected the rights of the inhabitants of the Archipelago
“to fish and navigate those waters, which they ha[d] historically
navigated” 227
226 Case concerning Right of Passage over Indian Territory (Merits),
Judgment of 12 April 1960: I.C.J. Reports 1960, p 39
227 El 19 Digital, Message from the President Daniel to the People of
Nicaragua, 26 November 2012 (Memorial of Nicaragua, Annex 27)
144
3 94 In that statement,however, the President of Nicaragua also suggestedthat artisanal fishermen would require an authorization from the relevant Nicaraguan authorities Such arequirement would have deprivedthe recognition of theRaizales’historic rights of any meaning Yet, subsequent statements by President Ortega omitted any reference to the need for an authorization Thus, at the meeting in Mexico City of 1 December 2012, President Ortega stressed that “Nicaragua will respect the ancestralrightsof the Raizales” and that distinct “mechanisms” will have to be established in order to “ensure the right of the Raizal people to fish” 228Then, on 21 February 2013, President Ortega explicitly distinguished the situation of artisanal fishermen from the situation of industrial ones 229While industrial fishermen would have to request an authorization from the relevant Nicaraguan authority, the Nicaraguan Naval Force wouldnot demand permits from artisanal fishermen 230President Ortega also specified the scope of the “mechanisms” by explaining that the technical issue wasone of identifying the artisanal fishermen of the Archipelago and their boats in order to allow them to “fish freely” 231On 18 November 2014, President Ortega further statedthat, while the 2012delimitation will have to be implemented, guarantees to the Raizal communitiesof the Archipelago will also have to be included in the agreementto be negotiatedwith Colombia 232Finally, on 5 November 2015, President Ortega underlined once 228Annex 73;Annex 74 229Annex 76 230Ibid 231Ibid 232Annex 77
145
more that the right to fish of the “Raizales brothers” will be
recorded in said agreement 233
3 95 The recognition of this right by the highest representative
of Nicaragua is critical for the present proceedings Given the
importance that Colombia attaches to protecting the historical
fishing rights of the inhabitants of the Archipelago, it is worth
recalling that the very day following the delivery of the 2012
Judgment, the Minister for Foreign Affairs of Colombia
declared her willingness to establish a dialogue with the
authorities of Nicaragua in order to make sure that the fishermen
of Colombia, especially those who practiced artisanal fishing,
were not harmed by the decision 234
3 96 The statement made by the President of Colombia on 13
February 2013 also insisted on the importance of respecting
those artisanal fishing rights According to President Santos, the
inhabitants of the Archipelago should not have to request
permission from Nicaragua in order to exercise their historical
fishing rights in the banks where they had traditionally been
fishing 235
3 97 The importance of protecting the artisanal fishing rights is
also attested to by the adoption of Decree No 1946 of 9
233 Annex 78: El 19 Digital, President Daniel receives letters of
credence from the ambassadors of Colombia, El Salvador, Germany and
Italy, 6 Nov 2015
234 Press Conference of the Minister of Foreign Affairs of Colombia, 18
Feb 2013, Preliminary Objections of Colombia, Annex 10
235 Declaration of the President of the Republic of Colombia, 18 Feb
2013, Preliminary Objections of Colombia, Annex 10
146
September 2013, which also reflected Colombia’smandate to protect the historical fishing rights of the inhabitants of the Archipelago,236and also by the Government’s decision topay subsidies to the artisanal fishermen who were impacted by the loss of traditional fishing grounds after the 2012 delimitation 237(2)THE TRADITIONAL FISHING RIGHTS SURVIVE THE 2012MARITIME DELIMITATION3 98 While Nicaragua has thus recognized in principle the existence of traditional fishing rights vested on the inhabitants of the Archipelago, it is important to recall that the general rule under international law is that traditional rights remainunaffected by the delimitation of new international boundaries As stated by an Arbitral Tribunal in a recent award:“The jurisprudence of international courts and tribunals as well as international treaty practice lend additional support to the principle that, in the absence of an explicit prohibition to the contrary, the transfer of sovereignty in the context of boundary delimitation should not be construed to extinguish traditional rights to the use of land (or maritime resources) ”238236Memorial of Nicaragua, p 46, para 2 41 (Annex 23-B, Audio Transcript of 8 May 2014, p 339); El Nuevo Diario, The Navies are Communicating, 5 Dec 2012, Preliminary Objections of Colombia, Annex 36 237See, for example: Agreement between the National Fund for Disaster Risk Management and the Department for Social ProsperityNo 9677-20-251-2013 238Award in the Arbitration regarding the delimitation of the Abyei Area between the Government of Sudan and the Sudan People’s Liberation Movement/Army, Award of 22 July 2009, R.I.A.A., Vol. XXX, p 408, para 753
147
3 99 It follows that the customary regimes in question survive
the delimitation of maritime boundaries, and it is only in the
event that the concerned parties agree otherwise that those rights
are relinquished 239 As stated by another Arbitral Tribunal,
traditional fishing regimes do not depend, “either for [their]
existence or for [their] protection, upon the drawing of an
international boundary” 240 Moreover, “no further joint
agreement is legally necessary for the perpetuation of a regime
based on mutual freedoms” 241
3 100 This customary regime, which could also be called a
servitude internationale242, a kind of international usufruct or, in
other words, a right in rem, might be perceived as derogating
from the exclusive character of sovereignty and sovereign rights
The Court has already found, regarding arguments in respect of
treaty provisions that are entirely transposable to customary
norms, tacit agreements and unilateral undertakings that, once a
limitation to sovereignty is established, there is no reason for
239 Ibid., pp 408-410, paras 753-760
240 Award of the Arbitral Tribunal in the second stage of the
proceedings between Eritrea and Yemen (Maritime Delimitation), Decision
of 17 December 1999, R.I.A.A., Vol. XXII, p 361, para 110
241 Ibid., p 361, para 111
242 Award of the Arbitral Tribunal in the first stage of the proceedings
between Eritrea and Yemen (Territorial Sovereignty and Scope of the
Dispute), Decision of 9 October 1998, R.I.A.A., Vol. XXII, p 244, para 126:
“In the first place, the conditions that prevailed during many centuries with
regard to the traditional openness of southern Red Sea marine resources for
fishing, its role as means for unrestricted traffic from one side to the other,
together with the common use of the islands by the populations of both
coasts, are all important elements capable of creating certain “historic rights”
which accrued in favour of both parties through a process of historical
consolidation as a sort of “servitude internationale” falling short of territorial
sovereignty ”
148
interpreting its scopenarrowly 243The material and personal scopes of the fishing rights in the present case should be clear As stated by President Ortega on 22 February 2013, while the artisanal fishermen of the Archipelago would be allowed to fish in the maritime zones judged to appertain toNicaragua without having to request a permit from the Nicaraguan authorities, industrial fishermen will have to request such an authorisation 2443 101 It goeswithout saying that the customary rights in question, whose content will be developed below, are not tantamount toexclusive sovereign rights; nor do theyderogate from the sovereign rights of Nicaragua These traditional rights are not even to be considered the customary equivalent of a joint regime area such as the one established between Jamaica and Colombia where both States share equal rights and obligations Rather, the nature of these rights is more limited They are merely customary rights of access and exploitation that fall well short of a claim of sovereignty or of sovereign rights over the 243Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, I.C.J. Reports 2009, p 237, para 48: “…the Court is not convinced by Nicaragua’s argument that Costa Rica’s right of free navigation should be interpreted narrowly because it represents a limitation of the sovereignty over the river conferred by the Treaty on Nicaragua While it is certainly true that limitations to the sovereignty of a State over its territory are not to be presumed, this does not mean that treaty provisions establishing such limitations, such as those that are in issue in the present case, shouldfor this reason be interpreted a prioriin a restrictive way A treaty provision which has the purpose of limiting the sovereignty powers of a State must be interpreted like any other provision of a treaty, i.e. in accordance with the intentions of its authors as reflected by the text of the treaty and the other relevant factors in terms of interpretation ”244La Opinion, Nicaragua asks Bogotá to form the Hague Commissions, 22 Feb 2013, Memorial of Nicaragua, Annex 35
149
continental shelf and exclusive economic zone Their exercise
does not negate the exclusive sovereign rights of the coastal
State, that is to say, Nicaragua
3 102 This conforms to the history of the region The artisanal
fishermen of the Archipelago have been fishing in their
traditional fishing grounds since time immemorial, regardless of
past and present disputes Until the second half of the twentieth
century, it was customary for the population of the Archipelago
to follow the migration patterns of turtles through the
Southwestern Caribbean The question, therefore, is not one of
excluding these communities from their traditional fishing
grounds, but rather of allowing their artisanal practices to
continue unimpeded, to the extent that they are respectful of the
environment
3 103 This limited right of access and exploitation is also
grounded on necessity since its purpose is to support the
concrete needs of the population that would otherwise be deeply
affected As Colombia demonstrated in Chapter 2, the
inhabitants of the Archipelago, and in particular, the Raizal
community, have fished for more than three centuries in
traditional banks that are located on both sides of the 82° West
Meridian These artisanal fishing practices, which involved
relatively long distance navigation on sailing boats and later
lanchas, are part of the cultural identity of the inhabitants of the
Archipelago and serve to satisfy the vital and economic needs of
the islands’ population
150
3 104 During the hearings on the preliminaryobjections, Nicaragua felt compelled to argue that “Colombia never advanced any argument regarding the purported ancestral fishing rights of the autochthonouspopulation of San Andrés”245in the first case between the two Parties However, boundaries do notnecessarily take into account the necessities and traditional rights of local communities As the Arbitral tribunal in the Barbados-Trinidad and Tobago case observed: “Taking fishing activity into account in order to determine the course of the boundary is, however, not at all the same thing as considering fishing activity in order to rule upon the rights and duties of the Parties in relation to fisheries within waters that fall, as a result of the drawing of that boundary, into the EEZ of one or other Party ”2463 105 For reasons pertaining to jurisdiction, the Arbitral Tribunal in that case was not able to rule on the existence of Barbados’ claim to a customary right of access to the flyingfish fishery 247It did,however,find that “Trinidad and Tobago 245Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v Colombia), Public Sitting 9 October 2015, CR 2015/29,p 50, para 30(Agent) 246Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, R.I.A.A., Vol. XXVII, p 147, at pp 224, para 276 247Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to thedelimitation of the exclusive economic zone and the continental shelf between them, R.I.A.A., Vol. XXVII, p 147, atp 226, para 283
151
ha[d] assumed an obligation” to grant “Barbados access to
fisheries within [its] EEZ” 248
3 106 The Court, arbitral tribunals and States have stressed on
many occasions that traditional rights ought to be respected
regardless of the course of the boundary Accordingly, while
they do not play an important role in assessing the path followed
by a boundary, the line adopted by the Parties, the judges or the
arbitrators, does not affect their existence Although a Chamber
of the Court gave little weight to El Salvador’s arguments based
on “crucial human necessity” when assessing the course of the
boundary in the 1992 Judgment in the Land, Island and
Maritime Frontier Dispute case, it nonetheless indicated that it
had confidence that the parties would find a way so that the
“acquired rights” of the inhabitants that found themselves living
on the wrong side of the line be fully respected 249 And in the
Eritrea-Yemen arbitration, the Arbitral Tribunal emphasized that
the traditional fishing regime that applied for the benefit of
artisanal fishermen, “does not depend, either for its existence or
for its protection, upon the drawing of an international boundary
by this Tribunal” 250
248 Ibid., p 227, para 292
249 Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992,
p 400, para 66 See also: German Settlers in Poland, Advisory Opinion,
1923 P.C.I.J. Series B, No. 6, p 36
250 Award of the Arbitral Tribunal in the second stage of the
proceedings between Eritrea and Yemen (Maritime Delimitation), Decision
of 17 December 1999, R.I.A.A., Vol. XXII, para 110
152
3 107 In the light of the foregoing, there is no dispute as to the existence of traditional fishing rights in the maritime zones recognized to appertain to Nicaragua Accordingly, it comes as no surprise that, in the immediate aftermath of the 2012 Judgment, Colombia and Nicaragua have recognized, both tacitly and explicitly, that such a regime based on a long-established practice had taken the shape of a local customary norm that survived the maritime delimitation 3 108 However, the Parties’ understanding that they will conclude fishing agreements is not aprerequisite for establishing the existence of a local customary right to fish In the present case, that customary right has already been shown to exist The statements of the highest representatives of both Parties demonstrate thisunderstanding Thosestatements are also justified on the basis of the recognition of the existence of an already consolidated regime protecting the traditional fishing rights of the inhabitants of the Archipelago In other words, while the Parties might in the future resolve some technical issues by way of fishing agreements, the interested States have already accepted that the artisanal fishermen of the Archipelago have a right to fish in the maritime zones adjudicated toNicaragua 3 109 The recognition by both Parties of the historical fishing rights of the inhabitants of the Archipelago attests to the formation of a local customary right It matters little whether the formal source is a local customary norm, a tacit agreement, an
153
act of acquiescence, a unilateral undertaking or even a rule of
international law on the treatment of vested rights of foreign
nationals The result is the same The inhabitants of the
Archipelago and, in particular, the Raizales have the right to fish
in the banks located in the maritime zones found to appertain to
Nicaragua where they have always been fishing, without having
to request an authorization
3 110 As already highlighted in Chapter 2, these traditional
banks are in particular situated in:
• The shallow grounds of Cape Bank and, in
particular, along la Esquina, that is to say on both
sides of the 82° West Meridian, and the area
known as Luna Verde; and
• The deep-sea banks situated North of Quitasueño,
East of the 82° West Meridian and West and
North-West of Providencia, and between,
respectively, Providencia and Quitasueño,
Quitasueño and Serrana and Serrana and Roncador
3 111 But the recognition by Nicaragua that the inhabitants of
the Archipelago have these established traditional fishing rights
does not mean that, in practice, Nicaragua has respected those
rights As Colombia will show in Chapter 9, Nicaragua’s
conduct has impeded the ability of the inhabitants of the
Archipelago to access freely their traditional fishing banks,
154
notwithstanding the statements that have been made by its highest officials to the contrary E.Conclusion3 112 The Parties’ conduct as coastal States in the Southwestern CaribbeanSea must be assessed in the light of the rights and duties of both Parties with respect to the relevant maritime area In this context, it will become apparent that Colombia has exercised its rights in good faith and in order to fulfil its duties under international law In contrast, Nicaragua has consistently breached its obligationsand infringed Colombia’s rights
155
PART II
COLOMBIA HAS ACTED LAWFULLY IN THE
CARIBBEAN SEA
156
157
Chapter 4
THE ILL-FOUNDED NATURE OF
NICARAGUA’S CLAIMS REGARDING
ALLEGED VIOLATIONS OF ITS MARITIME
RIGHTS
A. Introduction
4 1 In this Chapter, Colombia will respond to the allegation
that it has violated Nicaragua’s sovereign rights and maritime
spaces, and will show that these claims are unfounded in fact
and in law
4 2 Section B places the issue in context by demonstrating the
lack of seriousness of Nicaragua’s claims when viewed against
the Applicant’s own conduct and the public statements it made
before the Application was lodged While Nicaragua now tries
to paint a picture of systematic harassment of its vessels by
Colombia and violations of its maritime spaces, at the relevant
time Nicaragua made no complaint To the contrary, Nicaraguan
officials, including its Head of State, repeatedly confirmed that
there were no incidents and that the situation at sea was calm
4 3 Nicaragua’s claims cannot therefore be reconciled with its
contemporaneous conduct Rather, the only plausible reason
Nicaragua instituted the proceedings when it did is because 26
November 2013 (the date of the Application) was the last
possible day on which a jurisdictional basis existed for bringing
any case against Colombia under the Pact of Bogotá and not
158
because the claims had any inherent merit The timingof that filing was entirely opportunistic 4 4 In Section C, Colombia will address the “incidents” adduced by Nicaragua in support of its claims on a case-by-case basis As will be seen, based on the evidence that Nicaragua itself has produced, there was no violation of Nicaragua’s maritime rights and no impediment for Nicaragua to exercise sovereign rights or jurisdiction in areas that it considered fell within its exclusive economic zone or continental shelf Nicaragua’s assertions to the contrary are not only misleading, in many cases they are based on demonstrably inaccurate “facts” B.The Lack of Seriousness of Nicaragua’s Claims4 5 In its Judgment on the Preliminary Objections, the Court ruled that, as of the critical date (the date of the Application), there was a dispute between the Parties regarding alleged violations by Colombia of Nicaragua’s rights in the maritime zones which, according to Nicaragua, the Court declared in its 2012 Judgment appertained to Nicaragua 251However, the existence of a dispute and the question whether in fact and in law there were any such violations are two different matters 4 6 In its Application, Nicaragua did not refer to a single “incident” that had occurred at sea that gave rise to a violation 251Judgmenton the Preliminary Objections,para 74
159
of its maritime rights Most of the Application took issue with
statements made by senior Colombian officials about the 2012
Judgment and the enactment by Colombia of Decree No 1946
establishing an Integral Contiguous Zone (discussed in the next
chapter) Nicaragua did allege that “Colombia had consistently
resorted to the threat of the use of force”,252 but the Court
upheld Colombia’s preliminary objection on that claim The
Application also asserted that Colombia’s Naval Forces had
given “hostile treatment” to Nicaraguan vessels, which was said
to have seriously affected the ability of Nicaragua to exploit the
resources of its exclusive economic zone and continental
shelf 253 However, no specific instances of such treatment were
cited
4 7 As Colombia showed during the jurisdictional phase, in
the period between the date of the Court’s 2012 Judgment and
the filing of Nicaragua’s Application, including the following
day when the Pact of Bogotá ceased to be in force for Colombia,
Nicaragua’s own officials were on record as repeatedly saying
that there were no problems involving the Colombian Navy, no
confrontations and no incidents These statements in themselves
contradict Nicaragua’s claim that Colombia’s conduct amounted
to a violation of Nicaragua’s sovereign rights Manifestly,
Nicaragua did not think so at the time. Nicaragua never
complained to Colombia until almost ten months after having
instituted the present proceedings
252 Application, para 9
253 Ibid., para 15
160
4 8 In order to place Nicaragua’s contentions about the so-called incidents that gave rise to its claim in their properperspective, it is useful to recall the relevant chronology •On 5 December 2012, shortly after the Court’s Judgment in the Territorial and Maritime Dispute case, the Chief ofNicaragua’s Army, General Avilés, stated that communication with the Colombianauthorities was on-going, and that the Naval Forces of Colombia had not approached Nicaraguan fishing vessels 254•On 14 August 2013, some nine and one-half months after the Judgment was handed down, Nicaragua’s President Ortega said the following:“As I said, we must recognize that in the middle of all this media turbulence, the Naval Force of Colombia, which is very powerful, that certainly has a very large military power, has been careful, has been respectful and there has not been any kind of confrontation between the Colombian and Nicaraguan Navy, thank God, and God help us to continue working that way.”255•On 18 November 2013, shortly before Nicaragua filed its Application, Admiral Corrales Rodriquez, 254Preliminary Objectionsof Colombia, Annex 36 255Ibid ,Annex 11
161
Chief of the Nicaraguan Naval Forces, said the
following: “in one year of being there [that is, in
the one year since the Court’s 2012 Judgment], we
have not had any problems with the Colombian
Navy” He added that the naval forces of both
countries “maintain[ed] a continuous
communication”, and that “we have not had any
conflicts in those waters” 256
• On 18 March 2014 – that is, three and one-half
months after the Application was filed and
Colombia had ceased to be bound by the Pact of
Bogotá – General Aviles of the Nicaraguan Army
again reiterated that there “are no incidents”, and
that the navies of both countries were navigating in
their respective waters and remaining in
“permanent communication” 257
4 9 It is impossible to reconcile these statements with the
notion that, throughout this period, Colombia was engaging in
conduct that rose to the level of a violation of Nicaragua’s
sovereign rights and maritime spaces It is inconceivable that, if
incidents breaching Nicaragua’s rights had genuinely taken
place, Nicaragua’s military commanders and President Ortega
would not have mentioned them But nothing at all was said To
the contrary, the statements emanating from Nicaragua’s highest
256 Preliminary Objections of Colombia, Annex 43
257 Ibid , Annex 46
162
officials showed precisely the opposite 4 10 As for the position of President Santos of Colombia, following his meeting with President Ortega in Mexico City a few days after the 2012 Judgment was delivered, he said the following:“We expressed that we should handle this situation with cold head, in an amicable and diplomatic fashion, as this type of matters must be dealt with to avoid incidents He [President Ortega] also understood We agreed to establish channels of communication to address all these points I believe this is the most important I believe thismeeting was positive ”2584 11 As the statements of Nicaragua’s officials made after this meeting attest, channels of communication were opened, particularly between the naval forces of both countries, and there were no incidents or confrontations 4 12 It was not until 13 August 2014, some eight and one-half months after Nicaragua filed its Application, and Colombia ceased to be bound by the Pact, that Nicaragua’s Deputy Minister for Foreign Affairs and Director of Juridical Affairs, Sovereignty and Territory, Mr César Vega Masís, wrote to Rear Admiral Corrales, the Head of Nicaragua’s Naval Forces, “in order to request that you kindly inform us of any incidents that may have taken place between the Colombian Navy and the Nicaraguan Navy, as 258Preliminary Objectionsof Colombia, Annex 9
163
well as with Nicaraguan fishermen in the zone that
was returned by the International Court of Justice
(ICJ) in its judgment of November 19, 2012 ”259
4 13 Admiral Corrales responded on 26 August 2014 with a
letter to which was attached a report on what he termed
“incidents” involving Colombia’s Navy and aircraft 260 This was
the same individual who, just one week before Nicaragua lodged
its Application, had stated that, in the one year following the
Court’s Judgment, there had not been any problems with the
Colombian Naval Forces, nor any conflicts in those waters Yet,
Nicaragua now refashions and elevates the same events which
had not even warranted mention when they occurred to the
status of “incidents” and, in its Memorial, relies on them as
evidence of Colombia’s alleged violations of Nicaragua’s rights
The argument is not credible
4 14 On 13 September 2014, almost ten months after the
Application had been filed and a mere three weeks before the
filing of the Memorial, Nicaragua sent a diplomatic note to
Colombia which, for the first time, alleged that Colombia had
infringed Nicaragua’s sovereign rights and threatened to use
force 261 Colombia responded by a diplomatic note dated 1
October 2014 pointing out its surprise at Nicaragua’s note, and
stating that, without prejudice to the facts of any of the so-called
“incidents” referred to in the Nicaraguan note, none of them
259 Memorial of Nicaragua, Annex 23-A, p 281
260 Ibid , pp 282, ff
261 Preliminary Objections of Colombia, Annex 17
164
could have been understoodby Nicaragua as a genuine incident at the time of their alleged occurrence given Nicaragua’s failure to report them despite the fact that there were good channels of communication between the officials of both countries 2624 15 What is clear from the above is that, even after the Application was submitted, Nicaragua’s Foreign Ministry had no information about any such “incidents” That fact, considered together with the statements made by Nicaragua’s highest political and military leaders, further confirms that, prior to the filing of the Application and the effective date of Colombia’s denunciation of the Pact, there were no actions by Colombia at sea that Nicaragua considered amounted to a violation of its maritime spaces As for the “incidents” that Nicaragua subsequently seems to have discovered, the next section will show that none of them amounted to a violation of Nicaragua’s rights C.The Misleading Version of the Events Presented by Nicaragua4 16 In its Memorial, Nicaragua refers to 36 “incidents” which purportedly support its claim that Colombia breached its obligation not to violate Nicaragua’s sovereign rights and maritime zones declared by the Court’s 2012 Judgment However, almost two-thirds of those incidents (23 outof 36) occurred after Colombia ceased to be bound by the provisions of 262Preliminary Objectionsof Colombia, Annex 18
165
the Pact of Bogotá (i e , after 26 November 2013) and after
Nicaragua had filed its Application As will be discussed in Sub-
Section (1), the evidence relating to these events is not
admissible because the Court has no jurisdiction over alleged
violations that occurred after the critical date
4 17 Furthermore, when Nicaragua’s assertions with respect to
the remaining incidents are examined in the light of the
contemporaneous evidence, it becomes apparent that its
descriptions are inaccurate, representing a distorted account of
the events (if, indeed, there was one) Sub-Section (2) will
demonstrate the lack of basis for Nicaragua’s allegations on an
incident-by-incident basis, and show that none amounted to a
violation of Nicaragua’s maritime rights
4 18 While Nicaragua also complains that Colombia violated
its sovereign rights and maritime spaces by licensing fishing
vessels to fish in Nicaraguan waters, this too distorts the factual
record As will be shown in Sub-Section (3), the reality is that
Colombia is acting in compliance with its international
obligations in the Caribbean Sea, and there has been no
impediment to the exercise by Nicaragua of its sovereign rights
(1) THE COURT LACKS JURISDICTION OVER ALLEGED
VIOLATIONS THAT OCCURRED AFTER 26 NOVEMBER 2013
4 19 In the operative part of its Judgment on the Preliminary
Objections, the Court found that it has jurisdiction, on the basis
of Article XXXI of the Pact of Bogotá, to adjudicate upon the
166
dispute between the Parties concerning the alleged violations by Colombia of Nicaragua’s maritime zones 263As the Court had earlier indicated in the same Judgment: “The Court recalls that the date at which its jurisdiction has to be established is the dateon which the application is filed with the Court” 2644 20 It follows that the Court does have jurisdiction over Nicaragua’s claims to the extent those claims existed as of the critical date –the date of the Application. By the same token, the Court has jurisdiction to consider whether the facts that relate to pre-critical date events support Nicaragua’s claims To recall what the Court said in its 17 March 2016 Judgment: “The subsequent termination of the Pact as between Nicaragua and Colombia does not affect the jurisdiction which existed on the date that the proceedings were instituted” 2654 21 However, the situation is different when it comes to post-critical date events Pursuant to Colombia’s denunciation of the Pact of Bogotá on 27 November 2012, the Pact, including its dispute resolution provisions, ceased to be in force for Colombia as of 27 November 2013, the day after Nicaragua’s Application was filed Given that Colombia’s consent to the Court’s jurisdiction lapsed as of that date, the Court has no jurisdiction ratione temporisto consider any alleged violations that occurred afterwards Stated another way, any facts on which Nicaragua relies in support of its claims that post-date 26 November 2013 263Judgmenton the Preliminary Objections,para 111(2) 264Ibid , para 33 265Ibid., para 48
167
are not apposite or subject to judicial review Had those facts
been adduced in connection with a separate claim or a new case
introduced by Nicaragua against Colombia after 26 November
2013, there clearly would have been no jurisdiction Nor do such
facts amount to a continuing pattern of allegedly illegal conduct
on the part of Colombia
4 22 Given that only 13 of the incidents occurred before
Colombia ceased to be bound by the Pact and are therefore
admissible as evidence, this section will focus on those events
As will be seen, far from being a violation of Nicaragua’s rights,
these events involved the exercise of freedom of navigation or
overflight, efforts to aid local inhabitants of the islands who
were exercising their traditional fishing rights, efforts to protect
the ecosystem in the UNESCO-registered Seaflower Biosphere
Reserve and the Seaflower Marine Protected Area under the
SPAW Protocol, Colombia’s protection of its own maritime
rights, and situations where the Colombian Navy was extending
assistance to vessels in distress, including Nicaraguan flagged
vessels To the extent that Colombia was in the area, it was also
fulfilling international obligations vis-à-vis third States For
instance, Colombia has entered into international agreements
with Jamaica, Costa Rica, Mexico, the United States, Honduras,
Dominican Republic, Guatemala and Panama to coordinate
actions against the illicit traffic of narcotic drugs and
psychotropic substances, carry out the search and rescue of
vessels lost at sea, increase integral maritime safety and security,
168
and protect and preserve the marine environment 266(2)THE “INCIDENTS”ALLEGED BY NICARAGUA4 23 In examining the allegations of Nicaragua in this Section, it is apparent that many of its assertions are factually inaccurate and not borne out by the evidence. Taken in a chronological order, the first alleged incident occurred on 19 February 2013 According to Nicaragua, the A R C “Almirante Padilla” prevented a Nicaraguan naval vessel from inspecting a Colombian fishing boat that was operating in the Luna Verde area Under Nicaragua’s thesis, this was an instance of Colombia impeding Nicaragua’s efforts to enforce its own fisheries jurisdiction 267(“Incident 1”) However, it is not possible that this “incident” actually occurred The Navigation Log of A R C “Almirante Padilla” indicates that on 19 February 2013, the frigate was docked at the pier of BN1 (Cartagena’s Naval Base) The locations of the Nicaraguan naval vessel and the A R C are shown in Figure 4.1below TheNavigationLogof the A R C also shows that itsnext departure for San Andrés Island was scheduled for 20 February 2013 268It thus could not have impeded Nicaragua in any way Given that the “facts” on which Nicaragua relies are clearly wrong, Nicaragua has totally failed to meet its burden of proof that Colombia violated its maritime rights and spaces 266See Chapter 2, Sec D(2) supra 267Memorial of Nicaragua, para 2 39 268Annex 31: Navigation Log, A R C “Almirante Padilla”, 19 Feb 2013
169
CaribbeanSeaPACIFICOCEANSan Andrés I.LittleCorn I.GreatCorn I.Santa Catalina I.QuitasueñoCayProvidencia I.Roncador CayEast Southeast CaysAlburquerque CaysSerranaCayBajo Nuevo CaySerranilla CayMiskitosCaysCOSTA RICAPANAMAJAMAICACUBACOLOMBIANICARAGUAHONDURAS10°N15°N20°N10°N15°N20°N75°W 80°W 75°W 80°W CartagenaJOINTREGIMEAREA(Colombia / Jamaica)Costa RicaPanamaColombiaPanamaColombiaNicaraguaNicaraguaColombiaCol.Col.HonNicJamaicaColombiaCCayman Islands (U.K.)HondurasBALunaVerdeArea“INCIDENT” 1 ALLEGED BY NICARAGUA(19 February 2013)0150200100500100200300Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping400Boundary from the2012 ICJ JudgmentLocation of the ARC “Almirante Padilla”at Pier BN1 of Cartagena’s Naval BaseApproximate location of theunnamed Nicaraguan naval vesselFigure 4.1
170
4 24 The second event that Nicaragua points to in its Memorial is not an “incident”, but rather, an assertion based on a few miscellaneous press articles Nicaragua alleges that military and surveillance manoeuvers were conducted by a Colombian airplane over the Caribbean Sea, and the media reported that Colombia’s purpose in so doing was to “exercis[e] sovereignty” over Colombia’s maritime areas 269(“Incident 2”) Nicaragua also tries to attach significance to the report that Governor of the San AndrésArchipelago, Ms Aury Guerrero Bowie, stated that in her tour of the area, she did not visually see any vessels besides Colombian navy frigates 270However, regardless of how the media presented the story, the only fact thatis being referred to in the press articles is the exercise by Colombian navy vessels and aircraft of their right of freedom of navigation and overflight Under customary international law, in the EEZ all States enjoy the freedom of navigation and overflight 4 25 The third event (“Incident 3”) is similar to Incident 2; it involved the exercise by Colombian vessels of their right of freedom of navigation Regardless of how it is described,271the exercise by a State of its right of freedom of navigation does not infringe the coastal State’s EEZ rights, and Nicaragua points to no way in which it was prevented from exercising its sovereign rights Moreover, what Nicaragua ignores is that the declaration by President Santos (on which Nicaragua bases its complaint) 269Memorial of Nicaragua, para 2 25 and Annex 36 270Ibid., para 2 26 and Annex 37 271Ibid., para 2 27
171
emphasized Colombia’s commitment to “continue to protect the
Seaflower Reserve, which UNESCO deems as patrimony of
humanity”, and that “this area is of great importance for
[Colombia’s] artisanal fishermen” 272 The reality is that, many
alleged “incidents” involved Colombia drawing attention to and
urging Nicaragua and Nicaraguan vessels to respect the
traditional fishing habitat of the artisanal fishermen, and to
protect the fragile ecosystem of the Seaflower Biosphere
Reserve As was shown in Chapter 3, Colombia has rights and
obligations under international law to preserve and protect the
marine environment
4 26 The fourth “incident” is said to have occurred on 13
October 2013 at 08:55 hours According to the Nicaraguan
Commander of the GC-205 “Río Escondido” (Navy Lieutenant
Holvin Martínez), the “Río Escondido” was located at
14°50’00”N – 081°42’00”W when the Colombian frigate
A R C “20 de Julio” called him on the marine channel to say
that the Nicaraguan vessel was heading toward Colombian
waters The Lieutenant then responded that he was navigating in
the jurisdictional waters of Nicaragua273 (“Incident 4”)
However, according to Colombia’s records, the A R C “20 de
Julio” was not in the area identified at the time the alleged
events took place. At that time, it was conducting exercises with
the helicopter A R C 201 in another area 274 The approximate
272 Memorial of Nicaragua, Annex 5
273 Ibid., para 2 40 and Annexes 18, 23-A and 24
274 According to the A R C ’s Maritime Travel Report, it was at
coordinates 12°01 1’N and 81°59 0’W at 06:28 hours, and at 12°05 7’N and
172
locations of the GC-205 and the A R C are shown in Figure 4.2below After that, the A R C moved to 12°31 2’N and 81°43 9’W, in the territorial sea of San Andrés, and was anchored there the rest of theday, loading and unloading educational materials donated by the South American Foundation (in Spanish, “Fundación Suramericana”) 275Nicaragua also has not provided any recording or transcript of the communication between the A R C and “Río Escondido” However, based on Nicaragua’s own exhibit, after the Lieutenant responded, the Commander of the Colombian frigate did not call again 276In any event, simply drawing attention to the fact that a vessel is heading toward another State’s waters causes no prejudice whatsoever and can scarcely be equated with a violation of Nicaragua’s maritime rights Thus, even if Incident 4 had taken place, it did not result in any inability of Nicaragua to exercise its sovereign rights 81°58 0’W at 06:57 hours See Annex 46: Maritime Travel Report, A R C “20 de Julio”, 21 Oct 2013, p 5 275Ibid 276Memorial of Nicaragua, Annex 23-A, p 291
173
CaribbeanSeaPACIFICOCEANSan Andrés I.LittleCorn I.GreatCorn I.Santa Catalina I.QuitasueñoCayProvidencia I.Roncador CayEast Southeast CaysAlburquerque CaysSerranaCayBajo Nuevo CaySerranilla CayMiskitosCaysCOSTA RICAPANAMAJAMAICACUBACOLOMBIANICARAGUAHONDURAS10°N15°N20°N10°N15°N20°N75°W 80°W 75°W 80°W JOINTREGIMEAREA(Colombia / Jamaica)Costa RicaPanamaColombiaPanamaColombiaNicaraguaNicaraguaColombiaCol.Col.HonNicJamaicaColombiaCCayman Islands (U.K.)HondurasBABoundary from the2012 ICJ Judgment“INCIDENT” 4 ALLEGED BY NICARAGUA(13 October 2013)0150200100500100200300Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping400LunaVerdeAreaApproximate location of Colombian Naval VesselARC “20 de Julio”Approximate location of NicaraguanNaval Vessel GC-205 “Rio Escondido”Figure 4.2
174
4 27 In fact, Annex 23-A of Nicaragua’s Memorial demonstrates that on 13 October 2013, Nicaragua’s naval vessels were operating in waters east of the 82°meridian That exhibit shows that, shortly after Incident 4 which allegedly occurred at 08:55 hours,the “Río Escondido” at 09:20 hours reported that it was at position 14°42’00”N –081°39’00”W, and was ordered to proceed to coordinates 14°41’00”N –081°35’00”W At 12:00 hours, the vessel reported that it had arrived at 14°36’00”N –081°48’00”W, and at 13:10 hours, the Commander of the “Río Escondido” “reports nothing new from position 14°36’00”N –081°49’00”W (65 M NE of the Miskito Keys)” The vessel “Río Grande de Matagalpa” also reports at 09:45 hours that it is anchored at position 15°32’00”N –081°59’00”W and resupplied “La Capitana”, a fishing vesselwith a Nicaraguan fishing permit277which was fishing in the area, with 50 gallons of water 278The Nicaraguan naval vessels were therefore navigating freely, reporting on activities in the area, and supporting fishing vessels carrying Nicaraguan permits with no interference from Colombia 4 28 The next few “incidents” involve alleged overflights by Colombian aircraft It is important to recall that, insofar as Nicaragua claims that such overflightsrepresenteda threat of use of force, the Court has observed that none of these incidents even relate to such a claim 279The Court also determined that it has no jurisdiction to consider any claims concerning the threat 277Memorial of Nicaragua, Annex 23-A, p 284 278Ibid , Annex 23-A, p 291 279Judgmenton the Preliminary Objections, para 77
175
or use of force 280 In addition, virtually all of these incidents
(Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13) took place either in the
month before, or a few days after, the Chief of Nicaragua’s
Naval Forces had categorically stated that there were no
problems or conflicts with the Colombian Navy As the Court
has recognized, “members of Nicaragua’s executive and military
authorities confirmed that the situation at sea was calm and
stable ”281
4 29 Nicaragua claims that on 19 October 2013, two OV-10
Bronco airplanes of the FAC (Colombian Air Force) flew over
the “Río Escondido” from north to south in a hostile manner for
10 minutes They also are said to have flown over the fishing
vessels “La Capitana”, flying the Honduran flag with a
Nicaraguan fishing permit, and “Camerón”, which was flying
the Nicaraguan flag 282 (“Incident 5”) However, the aircrafts,
which were flying at an altitude of 4600 feet,283 were exercising
their freedom of overflight in the EEZ, and neither the
Nicaraguan naval unit nor the fishing vessels were prevented
from continuing their activities in the area
4 30 Moreover, the alleged location of Incident 5 is in an area
which covers one of the air and maritime routes most widely-
280 Judgment on the Preliminary Objections, para 111(1)(c) dispositif
281 Ibid., para 76
282 Memorial of Nicaragua, para 2 28 and Annexes 18, 20, 23-A and
24 It is noted, however, that based on Annex 20 thereof, apparently it is
alleged that only one fishing vessel named “Capitana-Cameron” is involved,
instead of two separate vessels named “La Capitana” and “Cameron”
283 Annex 49: Maritime Travel Report, A R C “Independiente”,
6 Nov 2013
176
used for the transportation of narcotics from South America to Central and North America States are obliged under international law to cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances 284Up until the date of the 2012 Judgment, Colombia carried out maritime traffic safety and airspace monitoring missions in the area relating to the fight against organized crime and drug-trafficking. Colombia continues to be the only State in the region with the technical and operational capacity to do so, and it was continuing to cooperate in the suppression of illicit traffic in drugs by its overflight in the area, in compliance with its international obligations 4 31 Thealleged sixth incident, which Nicaragua says took place on 29 October 2013, is similar to Incident 5 Apparently, Nicaraguan Naval Forcevessels GC-201 “Río Grande Matagalpa” and GC-205 “Río Escondido” were located at 14°36’00”N –081°55’00”W and 14°37’00”N –081°58’00”W when a Colombian Air Force plane was said to have flown over them in a “hostile manner” 285(“Incident 6”) As with Incident 5, there is no evidence of any hostile activity against Nicaragua’s Naval Units Incident 6 allegedly occurred in an area widely-used for the transportation of narcotics, and while Nicaragua has not identified the relevant aircraft, planes are routinely 284Both Nicaragua and Colombia are Parties to the 1988United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Article 17(1) thereofprovides that “[t]he Parties shall co-operate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea ” 285Memorialof Nicaragua, Annexes 18, 23-A and 24
177
dispatched on drug and contraband reconnaissance missions and
to verify suspected drug-trafficking incidents. In any case, the
plane had freedom of overflight in the EEZ, and its flight did not
interfere with Nicaragua’s ability to exercise its maritime rights
4 32 On 30 October 2013, the Nicaraguan vessel GC-201 “Río
Grande Matagalpa” reported that it was located at 14°36’00”N –
081°55’00”W when a Colombian Navy helicopter flew over it
The helicopter also allegedly flew over the GC-205 “Río
Escondido”, at position 14°37’00”N – 081°58’00”W, in the
same way 286 Based on Nicaragua’s exhibit, both of these
overflights apparently occurred at 16:40 hours, and one occurred
at an altitude of approximately 200 feet (i e , 60 96 metres),
while the other occurred at an altitude of 400 feet (i e , 121 92
metres) 287 (“Incident 7”)
4 33 On Colombia’s records, while the helicopter A R C 201
was in the area, there was no hostile conduct, and it did not fly
over those Nicaraguan vessels at such low altitudes According
to internal naval orders, Colombia’s helicopters are not allowed
to fly above any military-type vessel at a height lower than 3500
feet The order of operations issued by the Specific Command of
San Andrés and Providencia states that “… [i]t is forbidden to
fly above any military-type vessel at a lower height of 3500 feet,
taking into account that these acts may be considered as hostile
286 Memorial of Nicaragua, Annexes 18, 23-A and 24
287 Ibid., Annex 23-A, p 294
178
by the respective vessel…” 288According to Colombia’s records, this order was duly implemented since the helicopter, which carries no air-to-surface weapons,289was flying at 6400feet 290In any case, the helicopter was doing no more than exercising its freedom of overflight in the EEZ Even though the helicopter also flew over a U S coastguard vessel, the United States never made any complaint in that regard Moreover, Incident 7 allegedly occurred in an area widely-used for the transportation of narcotics, and Colombia was carrying out its duties to monitor and cooperate in the suppression of illicit traffic in drugs 4 34 In the eighth “incident”, the Commander of the GC-201“Río Grande de Matagalpa” reported that it was at 14°36’00”N –081°55’00”W when, at 09:00 hours on 31 October 2013, a helicopter flew over his vessel from north to south At 10:00 hours, he noticed a Colombian frigate arrive about 5 miles southeast of his vessel, where the helicopter landed and they subsequently headed northeast, disappearing from the radar 291(“Incident 8”) In fact, this was not an “incident” at all On Colombia’s records, the helicopter A R C 201 took off at 09:42, but had to return to land on the A R C “Independiente” at 10:23 due to loss of communication 292This could not possibly have 288Annex 61: Communication No 241000R / MDN-CGFM-CARMA-SECAR-JONA-CAVNA-CGANCA-CEANCAR 29 60, 24 June 2016, p 1 289Ibid 290Annex 49: Maritime Travel Report, A R C “Independiente”,6Nov 2013, p 7 291Memorial of Nicaragua, Annexes 18, 23-A, p 295, and 24 292Annex 49: Maritime Travel Report, A R C “Independiente”, 6Nov 2013, p 10
179
prejudiced Nicaragua in any way Nicaragua’s Chief of Naval
Forces evidently did not feel differently when he reported during
the same period that there had been no problems with the
Colombian Navy
4 35 At this juncture, it is worth recalling that, in respect of
each of incidents 5, 6, 7 and 8, the Court has observed that none
of these overflights relate to a claim concerning a threat of use
of force 293 Similarly, there was no interference with
Nicaragua’s ability to exercise sovereign rights in its maritime
spaces
4 36 The next alleged “incident”, which is said to have
occurred on 7 November 2013, is based on an indirect report
According to Nicaragua, the Head of the Puerto Cabezas Naval
Base reported that the Captain of the Nicaraguan-flagged fishing
vessel “Lady Dee II” informed him that the fishing vessel was
approached by the Colombian frigate A R C “Antioquia” 294
Given the situation, the Commander of GC-401 of the
Nicaraguan Naval Force established communication with the
Colombian frigate to state that the “Lady Dee II” fishing vessel
was fishing in waters within Nicaragua’s jurisdiction 295
(“Incident 9”)
4 37 Nicaragua has not provided any evidence of the alleged
293 Judgment on the Preliminary Objections, para 77
294 Memorial of Nicaragua, para 2 29 and Annexes 18, 20, 23-A and
24
295 Ibid., Annexes 18, 20, 23-A and 24
180
communications between the vessels, and its account of the facts could not be further from reality Based on Colombia’s records, the A R C “Antioquia” was not even in the Caribbean Sea on the date the alleged facts took place. Additionally, there is no record of any interaction between the frigate and the “Lady Dee II” or between the frigate and the GC 401 –which is not surprising since the Colombian frigate was not in the area According to the A R C “Antioquia’s” Navigation Log, on 7 November 2013, the frigate was docked at the pier of Malaga’s Naval Base in the Pacific Ocean 296The locations of the “Lady Dee II” and the A R C are shown in Figure 4.3below Clearly, therefore, Nicaragua’s version of the event is unreliable, and as such forms no grounds for a claim that Colombia violated Nicaragua’s maritime spaces 296Annex 50: Navigation Log, A R C “Antioquia”, 7Nov 2013
181
CaribbeanSeaPACIFICOCEANSan Andrés I.LittleCorn I.GreatCorn I.Santa Catalina I.QuitasueñoCayProvidencia I.Roncador CayEast Southeast CaysAlburquerque CaysSerranaCayBajo Nuevo CaySerranilla CayMiskitosCaysCOSTA RICAPANAMAJAMAICACOLOMBIANICARAGUAHONDURAS10°N15°N10°N5°N15°N75°W 75°W 80°W MalagaJOINTREGIMEAREA(Colombia / Jamaica)Costa RicaPanamaColombiaPanamaColombiaNicaraguaNicaraguaColombiaCol.Col.HonNicJamaicaColombiaLunaVerdeAreaLunaVerdeAreaLocation of the ARC “Antioquia”at a pier in Malaga’s Naval BaseApproximate location of Nicaraguan-flagged fishing vessel “Lady Dee II”Boundary from the2012 ICJ Judgment“INCIDENT” 9 ALLEGED BY NICARAGUA(7 November 2013)0150200100500100200300Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping400Figure 4.3
182
4 38 The tenth “incident” is also based on an indirect report, which Colombia challenges According to Nicaragua, Navy Lieutenant Mario Páramo, the Commander of GC-205 “Río Escondido”, reported that theCaptain of the Nicaraguanflagged lobster vessel“Miss Sofía” advised him that he was at position 14°50’00”N –081°45’00”W on 17 November 2013 when the Commander of the Colombian frigate A R C “Almirante Padilla” ordered him to withdraw from that position because he was in waters within Colombia’s jurisdiction When the Nicaraguan vessel refused to leave the area, the A R C is said to have sent a speedboat to chase it away 297Subsequently, the Nicaraguan “Río Escondido” established communication with the Colombian frigate “Almirante Padilla” and informed the latter that it was in Nicaraguan waters pursuant to the 2012 Judgment, but the “Almirante Padilla” refused to withdraw from its location 298(“Incident 10”)4 39 However, theA R C “Almirante Padilla” neverordered the “Miss Sofía”to withdraw from its position; nor did it send a speedboat to harass the fishing vessel According to Colombia’s Navy reports, the A R C tried to contact the fishing vessel“Miss Sofía” on 17 November, but was unsuccessful The approximate locations of the “Miss Sofia” and the A R C areshown in Figure 4.4below 297Memorialof Nicaragua, para 2 30 and Annexes 18, 20, 23-A and 24 298Ibid., para 2 31 and Annexes 18, 20, 23-A, p 297 and 24
183
CaribbeanSeaSan Andrés I.LittleCorn I.GreatCorn I.SantaCatalina I.QuitasueñoCayProvidencia I.RoncadorCayEast Southeast CaysAlburquerqueCaysSerranaCaySerranillaCayMiskitosCaysCOSTA RICANICARAGUAHONDURAS10°N15°N10°N80°W80°W15°NCosta RicaPanamaColombiaPanamaColombiaNicaraguaNicaraguaColombiaCol.Col.HonNicLunaVerdeArea“INCIDENT” 10 ALLEGED BY NICARAGUA(17 November 2013)0751005025050100150Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 15°N)Prepared by: International Mapping200Approximate location of Nicaraguan-flagged fishing vessel “Miss Sofia”Reported location of Colombian NavalFrigate ARC “Almirante Padilla”Figure 4.4Boundary from the2012 ICJ Judgment
184
4 40 Furthermore, on 17 November 2013the A R C “Almirante Padilla” actually rescued two fishermen from“Miss Sofía”, who appeared to have been abandoned by the crew ofthe vesseland were found to have no communication equipment The A R C therefore sought to contact the “Miss Sofía”, but once again did not receive any response The two fishermen were taken on board the frigate, where they received first aid and food 2994 41 Undercustomaryinternational law, in the EEZ there is a duty to render assistance to any person found at sea in danger of being lost, and a duty to proceed with all possible speed to the rescue of persons in distress, which is precisely what the Colombian vessel did However, as the A R C was unable to contact the fishing vesselon 17 November 2013, it proceeded to contact a Nicaraguan unit that was in the area, which advised that the A R C should wait until the next day in order to coordinate the transfer of the two fishermen On 18 November 2013, the fishing vessel“Miss Sofía” sailed at dawn to continueits fishing activities, notwithstanding that its crew was aware that two of its fishermen were lost and had been found by the A R C In the course of that day, the A R C , in coordinationwith a Nicaraguan Naval Forceunit, delivered the two fishermen to the fishing vessel“Caribean Star”instead,given that the“MissSofía” was not near the rescue area 300299Annex 112: Video, Event “Miss Sofía”, 17 Nov 2013 See also Appendix A, Event No 7 300Annex 53: Communication No 304 –MD-CGFFMM-CARMA-SECAR-JONA-CFNC-CFSUCA-CMW29 57, 20 Nov 2013
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4 42 The remainder of the 13 “incidents” relate to overflights,
which do not form any basis for a threat of use of force claim
and, in any event, resulted in no interference with Nicaragua’s
ability to exercise its maritime rights
4 43 For example, Nicaragua alleges that on 19 November
2013, the GC-201 “Río Grande de Matagalpa” reported that a
Colombian Navy aircraft flew over it 301 (“Incident 11”)
However, there was no hostile conduct; the aircraft was merely
exercising its freedom of overflight As mentioned above, the
minimum altitude for helicopters is 3500 feet when flying over
any military-type vessel The alleged incident also occurred in
an area widely-used for the transportation of narcotics, and
Colombia would have been carrying out its duties to monitor
and cooperate in the suppression of illicit traffic in drugs
4 44 The GC-201 “Río Grande de Matagalpa” made similar
reports on 21 and 24 November 2013, stating that a Colombian
Navy helicopter flew over it 302 (“Incident 12”) This allegedly
happened again on 25 November 2013 303 (“Incident 13”)
According to the Maritime Travel Report of the Colombian
Navy’s A R C “Almirante Padilla”, the A R C 201 (a
helicopter) did fly over GC-201 on those dates However, there
was no hostile conduct, and the helicopter’s mission was to
301 Memorial of Nicaragua, para 2 46 and Annexes 18, 23-A and 24
302 Ibid , para 2 46 and Annexes 18, 23-A and 24
303 Ibid., para 2 46 and Annexes 18, 23-A and 24
186
identify any suspicious drug trafficking activity.304In any event, the helicopter was exercising its freedom of overflight, and Nicaragua was neither impeded from exercising its sovereign rights, nordid it register a complaint with Colombia 4 45 Aside from their factual inaccuracies, Nicaragua’s reliance on these 13 alleged “incidents” tells an incomplete story Aside fromthe fact that Colombia did not violate Nicaragua’s sovereign rights and maritime spaces, the reality is that Colombia was providing technical and humanitarian assistance tovessels and persons in distress, including Nicaraguan flagged vessels, protecting the marine environment, in particular the Seaflower Biosphere Reserve and Seaflower Marine Protected Area, and combating illegal activities, such as illegal, unreported and unregulated (IUU) fishing activities by Nicaraguan fishing vessels These events are considered in greater detail in Chapter 8 (3)NICARAGUA’SILL-FOUNDED ARGUMENTS ON COLOMBIA’SLICENSING OF FISHING VESSELS4 46 Separately, while not categorized as an “incident”per se,Nicaragua alleges a violation of its rights on the basis that, on 22 October 2013, the Governor of San Andrés authorized a Honduran vessel, the “Captain KD”, to use an “Integrated Commercial Industrial Fishing Permit” that had been accorded to Mr Armando Basmagui Perez in September 2012 According 304Annex 55: Maritime Travel Report, A R C “Almirante Padilla”,5Dec 2013, pp 21-23
187
to Nicaragua, that permit authorized the fishing fleet associated
with Mr Perez to fish in, besides other areas that are not
challenged by Nicaragua, an area known as “Luna Verde”,
which Nicaragua asserts “is plainly under the jurisdiction of
Nicaragua pursuant to the Court’s 2012 Judgment ”305 However,
when the permit is examined, it is apparent that the part on
which Nicaragua bases its assertion is part of the “Whereas”
clauses of the resolution The permit only authorizes, at Article
three (i.e., under the “Resolves” part of the resolution), the area
of operation of “the Archipelago Department of San Andrés,
Providencia and Santa Catalina (Roncador, Serrana y
Quitasueño, Serranilla Keys) and Shallows (Alicia and Nuevo),
and their port of disembarkation will be the Island of San
Andres” 306 There is no authorization to fish at the Luna Verde
bank, and the operator of the vessel, if he in fact sailed there,
went on his own accord
D. Conclusions
4 47 In respect of the alleged “incidents” that occurred before
Colombia ceased to be bound by the Pact, the vast majority
concerned the exercise by Colombian vessels and aircraft of
their freedom of navigation and overflight, rights that belong to
all States in the EEZ These events do not relate to a claim
concerning a threat of use of force, and in any event, any such
claim falls outside the jurisdiction of the Court In respect of the
305 Memorial of Nicaragua, para 2 51 and Annex 11
306 Ibid , Annex 11, pp 174-175
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rest of the “incidents”, one concerned Colombia’s rescue of two fishermen of the Nicaraguanflagged lobster vessel“Miss Sofía”, and the rest are largely based on demonstrablyerroneous information Anumber of the allegations are simply not substantiated by contemporary evidence, and Nicaragua has not satisfied its burden of proof Moreover, and more importantly, none of these “incidents” prevented Nicaragua or Nicaraguan nationals from exercising their maritime rights; and none were thought by Nicaragua’s senior officials to have caused any problems, confrontations or conflicts at the time they allegedly occurred and were not protested to Colombia 4 48 To the extent Colombia was present in the area, it was exercising its freedom of navigation and overflight, endeavouring to carry out its duty to monitor and cooperate in the suppression of transnational crimes, to protect human life at sea, to provide assistance required by boats present in the area, and to protect the ecosystem in the UNESCO-registered Seaflower Biosphere Reserve and the Seaflower Marine Protected Area Those areas are not only essential to the livelihood of Colombian artisanal fishermen, they include the waters from which the Raizalcommunityhashistorically drawn itssustenance, and form part of their identity, habitat and way of life Colombia’s actions in this regard were fully consistent with its rights and duties under international law, including its freedom of navigation and overflight
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Chapter 5
COLOMBIA’S CONTIGUOUS ZONE IS NOT A
WRONGFUL ACT UNDER INTERNATIONAL
LAW
A. Introduction
5 1 At issue is the lawfulness of Colombia’s contiguous zone
around the islands comprising the San Andrés Archipelago as
set out in Article 5 of Colombia’s Presidential Decree No 1946
concerning the Territorial Sea, Contiguous Zone and
Continental Shelf of the Colombian Islands Territories in the
Southwestern Caribbean, issued on 9 September 2013307 The
objective of Article 5 is:
“[S]ecure the proper administration and orderly
management of the entire Archipelago of San
Andrés, Providencia and Santa Catalina, and of
their islands, cays and other formations and their
maritime areas and resources, and in order to avoid
the existence of irregular figures or contours which
would make practical application difficult, the lines
indicated for the outer limits of the contiguous
zones will be joined to each other through geodetic
lines. In the same fashion, these will be linked to
the contiguous zone of the island of Serranilla by
geodetic lines which maintain the direction of
parallel 14° 59´ 08”N, and to Meridian 79° 56´ 00”
W, and thence to the North, thus forming an
307 The text of Decree 1946 was already submitted to the Court
(Preliminary Objections of Colombia, Annex 3) This Decree was modified
and supplemented by means of Decree 1119 of 17 June 2014 (Preliminary
Objections of Colombia, Annex 5) For ease of reference, a composite
version of these two Decrees is presented as Annex 7 to the present Counter-
Memorial
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Integral Contiguous Zone of the Department Archipelago of San Andrés, Providencia and Santa Catalina ”308The powers to be exercised in the contiguous zone are: “a) Prevent and control the infractions of the laws and regulations related with the integral security of the State, including piracy and trafficking of drugs and psychotropic substances, as well as conduct contrary to the security in the sea and the national maritime interests, the customs, fiscal, migration and sanitary matters which take place in its insular territories or in their territorial sea In the same manner, violations against the laws and regulations related with the preservation of the maritime environment and the cultural heritage will be prevented and controlled b) Punish violations of laws and regulations related to the matters indicated in section a) above, committed in its island territories or in their territorial sea ”309These specific sections of Article 5 will be considered in this chapter No official map of the Integral Contiguous Zone has been published 5 2 In its Application of 26 November 2013, Nicaragua fails to adduce any compelling evidence of actual injury it may have suffered but refers to the existence of Colombia’s Integral Contiguous Zone, as expressed in Article 5 of the Decree, as if it were a per seviolation of Nicaraguan rights 310In its Memorial 308Annex 7 309Ibid.,at section 3(a) and (b) 310Application, pp 12-14, para 10
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of 3 October 2014, Nicaragua summarily described Article 5 of
Presidential Decree No 1946 as Colombia’s “rejection and
defiance of the November 2012 judgment ”311 Nicaragua reads
the Decree as purporting “to establish Colombia’s rights and
jurisdiction in parts of the Caribbean that indisputably belong to
Nicaragua under the Court’s Judgment ”312 At paragraph 2 14 of
the Memorial, Nicaragua avers that “neither the size of the
ICZ nor the nature of the rights in jurisdiction that Colombia
claims within it, are consistent with the definition of contiguous
zone recognized by international law ”313 This reflects a
misunderstanding of the nature of a contiguous zone as well as
the historic adaptability of the law of the sea to idiosyncratic
geographical situations This and other Nicaraguan
misconceptions will be analysed in this chapter First, however,
it will be useful to recall the actual international legal situation
5 3 In its Judgment of 19 November 2012, the Court
recognized that “Colombia, and not Nicaragua, has sovereignty
over the islands at Albuquerque, Bajo Nuevo, East-Southeast
Cays, Quitasueño, Roncador, Serrana and Serranilla”314,
Colombia’s sovereignty over the islands of San Andrés,
Providencia and Santa Catalina having been settled by the 1928
Treaty between the Parties 315 The Court then continued, in
paragraph (4) of the operative part of its Judgment, to set out the
311 Memorial of Nicaragua, p 26, para 2 14
312 Ibid
313 Ibid., pp 28-29, para 2 14
314 2012 Judgment, p 662, para 103
315 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Preliminary Objections, Judgment, I.C.J Reports 2007, p 861, para 88
192
single maritime boundary delimiting the continental shelves and the exclusive economic zones of the Parties 3165 4 While the Court recognized that Colombia’s islands were capable of generating maritime entitlements under international law, it did not address the subject matter of the contiguous zone, even though, in oral argument, both Colombia and Nicaragua had accepted the idea of Colombia’s entitlement to a contiguous zone around its islands As recounted in Colombia’s Preliminary Objections in 2003:“At one point in the proceedings relatingto Costa Rica’s request to intervene, Nicaragua contended that Colombia had never claimed a contiguous zone around its islands However when Colombia recalled Article 101 of its Constitution, which expressly proclaimed such a zone, the allegation was not repeated Instead, both Parties referred in some detail to the contiguous zones around the islands during the hearings on the merits ”3175 5 Notwithstanding this concurrence, Nicaragua, in its Application of 26 November 2013, prayed the Court to adjudge and declare that “Colombia is in breach of its obligation not to violate Nicaragua’s maritime zones as delimited in paragraph 3162012 Judgment, pp 719-720, para 251 (4) 317Preliminary Objections of Colombia, p 35, para 2 53 See also: Territorial and Maritime Dispute (Nicaragua v. Colombia), Rejoinder of Colombia,paras 3 10 in fine, 5 34, 6 51,7 35, 8 63 and 8 68 See in particular paras 7 9 to 7 11, wherein Colombia described the overlapping contiguous zones of the archipelago, and depicted them in Figure R-7 1 This matter was also mentioned by Colombia in the publichearings on the merits(inCR2012/12, p 15, para 27 (Bundy)) Significantly at CR2012/12, pp 18-19, paras 42-46 (Bundy) Colombia described in detailhow the contiguous zones of the islands overlapped See also CR2012/12,p 27, para 3; p 29, para 9 (Crawford)
193
251 of the Court Judgment of 19 November 2012 as well as
Nicaragua’s sovereign rights and jurisdiction in these zones”
Nicaragua particularly focuses on “rights under customary
international law as reflected in parts V and VI of the United
Nations Convention on the Law of the Sea” 318
5 6 In its effort to substantiate these allegations, Nicaragua
relies on a number of statements and declarations made by highranking
Colombian officials, which it defines as “hostile”.319
The majority of these declarations were issued in the immediate
aftermath of the 2012 Judgment 320 On the other hand,
Nicaragua chooses to ignore subsequent official statements
which clarify Colombia’s considered position 321 Such
atmospherics aside, the lawfulness of Colombia’s integral
contiguous zone depends on its configuration and assigned
powers
5 7 Nicaragua’s submission is that the Integral Contiguous
Zone (ICZ) established under Article 5 of the Decree “infringes
on Nicaragua’s sovereign rights and jurisdiction, by extending
318 Application, p 15
319 Memorial of the Nicaragua, p 3, para 1 3
320 Ibid., pp 22-26 These include declarations made by President Juan
Manuel Santos, on 19 November 2012, 28 November 2012, 3 December
2012, 9 September 2013, 19 September 2013, and 17 June 2014; a statement
made by the Foreign Affairs Minister of Colombia, María Ángela Holguín,
on 27 November 2012; a Letter from Colombia to the Secretary General of
the Organization of American States, dated 27 November 2012; a Statement
made by the Commander of the Colombian Navy, Vice Admiral Hernando
Wills, on 19 September 2013; and a Statement made by the Governor of San
Andrés, on 19 September 2013
321 See Alleged Violations of Sovereign Rights and Maritime Spaces in
the Caribbean Sea (Nicaragua v. Colombia), Public Sitting 28 September
2015, CR2015/22, p 17 (Agent)
194
beyond the maritime boundary determined by the Court in the north, west and south” (hereinafter “Nicaragua’s first claim”) Furthermore, Nicaragua claims that “neither the size of the ICZ [which in many places extends substantially more than 24 M from Colombia’s baselines], nor the nature of the rights and jurisdiction that Colombia claims within it, are consistent with the definition of a contiguous zone recognized by international law” (hereinafter “Nicaragua’s second claim”) 322As will be shown, both of these claims are premised on misconceptions of the relevant international law and mischaracterizations of the relevant facts B.Colombia’sIntegral Contiguous Zone isInternationally Lawful5 8 The spatial extent and legal content of the contiguous zone situated beyond Colombia’s territorial sea lying off its continental and insular coasts are governed by customary international law, with which Colombia’s legislation has consistently complied (1)COLOMBIA’SINTEGRAL CONTIGUOUS ZONE WAS PROCLAIMED UNDER ITS CONSTITUTION5 9 As to the existenceofthe contiguous zone,323it is mentioned for the first time in Colombian domestic law in 1984, in a decree which reorganized theNational Maritime Authority (DIMAR); that decree states that the authority “exercises its 322Memorial of Nicaragua, pp 28, para 2 14 323PreliminaryObjectionsofColombia,paras 2 47-2 64
195
jurisdiction… in the following areas:… [the] contiguous
zone…” 324 The existence of the contiguous zone was
confirmed in Article 101 of the Constitution of 1991, which
refers to “the subsoil, the territorial sea, the contiguous zone, the
continental shelf, the exclusive economic zone” of Colombia 325
The provision states explicitly that it is “in accordance with
international law”, confirming Colombia’s intention to comply
therewith
5 10 The criteria for establishing baselines from which to
measure Colombia's 12-mile territorial sea are set out in Articles
4, 5, 6 and 9 of Law No 10 of 1978 326 These baselines also
serve, according to customary international law, as the basis for
measuring Colombia's contiguous zone
324 Annex 3: Presidential Decree No 2324 of 18 September 1984
325 Constitution of Colombia, Article 101 (in Preliminary Objections of
Colombia, Annex 1):
“The borders of Colombia are those established in
international treaties approved by Congress, duly ratified by
the President of the Republic, and those defined by
arbitration awards in which Colombia takes part. The borders
identified in the form provided for by this Constitution may
be modified only by treaties approved by Congress and duly
ratified by the President of the Republic Besides the
continental territory, the archipelago of San Andrés,
Providencia, Santa Catalina, and Malpelo are part of
Colombia in addition to the islands, islets, keys, headlands,
and sand banks that belong to it. Also part of Colombia is the
subsoil, the territorial sea, the contiguous zone, the
continental shelf, the exclusive economic zone, the airspace,
the segment of the geostationary orbit, the electromagnetic
spectrum and the space where it applies, in accordance with
international law or the laws of Colombia in the absence of
international regulations ”
326 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Counter-Memorial of Colombia (Vol. II), Annex 142
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5 11 The regulation of Colombia’s insular territories in the Southwestern Caribbeanwas complemented by Presidential Decree No 1946 which implements Colombia's Constitution and Law No 10 of 1978 and is adapted to the territorial, cultural, administrative and political unity of the San Andrés Archipelago 327The factual unity of the Archipelago has been historically recognized by Colombia 328Examples include its designation as a “National Intendancy” in 1912, a “SpecialIntendancy” in 1972and a “Department” in 1991 (Article 309 of the PoliticalConstitution). Like Article 101 of the Constitution, these laws also state that their provisions have to be understood and applied in conformity with international law In particular, Article 7 of Presidential Decree No 1946 reads as follows: “Rights of Third States: Nothing of what is established herein will be understood as affecting or limiting the rights and obligations derived from the ‘Maritime Delimitation Treaty between the Republic of Colombia and Jamaica’ signed between those States on 12 November 1993, or affecting or limiting the rights of other States ”5 12 The integrality of Colombia’s Integral Contiguous Zone is not only a manifestation of the cultural, administrative and political unity of the Archipelago; it is, essentially, an inescapable factual consequence The overlap of most of the Colombian islands’ contiguous zones occurs naturally –and inevitably The integrality of such zones is thus one largely 327See in this regardthe discussion in Chapter 2 and footnote27supra 328See for example: Territorial and Maritime Dispute (Nicaragua v.Colombia), Counter-Memorial of Colombia, (Vol. I), Chapter 2
197
dictated by geography 329 In this respect, the decree merely
restates a geographical circumstance
(2) COLOMBIA’S ISLANDS HAVE A RIGHT TO A CONTIGUOUS
ZONE UNDER INTERNATIONAL LAW
5 13 As early as 1924, and in his capacity as the Chairman of
the Committee on Neutrality constituted by the International
Law Association, Judge Alvarez recognized that groups of
islands should be “assimilated for the purpose of delimiting the
territorial sea” This position, which he reiterated in 1927
alongside Sir Thomas Barclay in their capacity as Special
Rapporteurs, recognized in essence the capacity of archipelagos
to generate maritime zones 330
5 14 Consistent with this trend, Article 10 of the 1958
Convention on the Territorial Sea and Contiguous Zone
recognized the right of islands to possess territorial seas 331 The
Convention further recognized in Article 24 that contiguous
zones are contiguous to territorial seas; it drew no distinction, in
this regard, between the mainland and its islands Given the
raison d’être of the contiguous zone, the assumption was plainly
that if a territorial possession was entitled to a territorial sea, it
was entitled to a contiguous zone
329 See Chapter 2, Sec A (2) supra
330 Annex 82: S Ghosh, Law of the Territorial Sea: Evolution and
Development, 1988, pp 223-225
331 Colombia signed but never ratified this Convention Available in:
https://treaties un org/doc/publication/mtdsg/volume%20ii/chapter%20xxi/xx
i-1 en pdf (Last visited 10 Nov 2016)
198
5 15 The debate during the Third Law of the Sea Conference largely focused on the rights of islands to possess a continental shelf and an exclusive economic zone But by necessary implication, the assumption that a territorial sea generated a contiguous zone was confirmed Ultimately UNCLOS Article 121 specified that “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf ” Exclusio unius est inclusio alterius:Article 121(3)’s explicit exclusion of an EEZ or continental shelf coupled with the same provision’s lack of mention of a territorial sea or a contiguous zone confirms that these latter zones can be generated by all islands (3)NOTHING IN THE 2012JUDGMENT ADDRESSES THE CONTIGUOUS ZONE OR CAN BE READ TO QUESTION COLOMBIA’SCONTIGUOUS ZONE RIGHTS5 16 In its 2012Judgment,the Court recognized that San Andrés, Providencia and Santa Catalina and its islets and cays formed an archipelago which generated maritime and submarine zones, including territorial sea, continental shelf, and exclusive economic zone 5 17 Because the Court in its 2012Judgment did not address the contiguous zone or questions relating to Colombia’s contiguous zone rights, there is no legal basis for denying the entitlement to a contiguous zoneof the islands of the Archipelago
199
5 18 Thus, Colombia’s Contiguous Zone is long-standing, in
compliance with international law and unaffected by the 2012
Judgment
C. The Proper Exercise of Contiguous Zone Powers by a
State in its Contiguous Zone is Not Incompatible with, and
Does Not Violate Internationally Specified Sovereign EEZ
Rights of a Neighbouring State
5 19 Nicaragua’s first claim332 is that by extending into its
delimited EEZ, Colombia’s ICZ has infringed Nicaragua’s
sovereign rights and jurisdiction This claim is misconceived, as
the exercise of contingent powers by a coastal State to specified
categories of events within its contiguous zone neither negates
nor otherwise infringes a neighbouring State’s exercise of its
specified sovereign rights within its overlapping EEZ
5 20 In its 2012 Judgment, the Court noted that it “never
restricted the right of a State to establish a territorial sea of
12 nautical miles around an island on the basis of an overlap
with the continental shelf and exclusive economic zone
entitlements of another State” 333 (Emphasis added)
5 21 Nicaragua’s underlying premise is that the exercise in its
contiguous zone by a contiguous zone holder of a lawful power
in waters that are also in the exclusive economic zone of a
coastally opposite State would ipso facto infringe the latter’s
sovereign rights and maritime spaces Nicaragua actually goes
332 See para 5 7 supra
333 2012 Judgment, p 690, para 178
200
further, contending that the mere declaration of a contiguous zone infringes the EEZ of a neighbouringstate Both of these contentions misconceive the nature and extent of the rights of a State in its EEZ and the nature and extent of the contingent powers of a State in its contiguous zone 5 22 The EEZ is a maritime space adjacent to the territorial sea of a coastal State, in which space that coastal state has been accorded, jure gentium,certain specified exclusive rights and coordinate obligations Undercustomary international law, as reflected inUNCLOS Article 56(1), the coastal State is accorded enumerated rights and jurisdictions within its EEZ: “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources,” as well as jurisdiction over “(i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; and (iii) the protection and preservation of the marine environment ” 5 23 The point of emphasis is that no coastal state “owns” an EEZ; rather, it is a high seas maritime space in which a limited number of enumerated economic rights are accordedtothe coastal State But because of the residual high seas character of the waters of the EEZ, international users continue to be entitled to exercise the rights which international law accords them –to the extent that the exercise of such rights has due regard for and does not infringe the enumerated sovereign economic rights of the coastal State in its EEZ In this respect, the EEZ may be
201
contrasted with the territorial sea, which the coastal State may
be said to “own”, subject to a servitude erga omnes, that is, the
right of innocent passage Other than that servitude, an
international user has no rights in the territorial sea of the coastal
state Nicaragua, seemingly oblivious to all this, apparently
considers that in its EEZ it has a plenary and absolute
sovereignty
5 24 The types of powers that may be exercised by a coastal
State in its contiguous zone under customary international law334
do not interfere with the economic rights granted to an EEZ
holder Therefore, within the same stretch of waters, a certain
overlap or co-presence may exist as between the EEZ of one
State and the contiguous zone of another neighbouring State
5 25 This would not be the case, were the situation one of a
narrow strait in which the contiguous zone of one State
purported to extend into the territorial waters of a coastally
opposite State In such a scenario, the exercise of the powers and
authorities granted to the contiguous zone holder would
ineluctably infringe the plenary jurisdiction and sovereignty of
the opposite State in its territorial waters 335 But that cannot be
said about the limited rights and jurisdictions granted to an EEZ
holder vis-à-vis an appropriate exercise of contiguous zone
334 For a discussion of the kinds of powers that may be exercised by a
coastal State in its contiguous zone, under customary law, see Chapter 5,
Sec E infra
335 That is not to say that a particular and properly implemented
exercise by the contiguous zone State, based on the right of self-defense,
would necessarily constitute a violation of international law
202
rights by a neighbouringState 5 26 Thus, the proper exercise of contiguous zone powers by a State within its contiguous zone is not incompatible with, and does not violate internationally enumerated sovereign EEZ rights of a neighbouringState D.The Spatial Construction of Colombia’s Integral Contiguous Zone is Dictated by the Natural and Special Configuration of the Archipelago and Does Not Violate International Law(1)COLOMBIA’SINTEGRAL CONTIGUOUS ZONE IS ALMOST ENTIRELY A RESULT OFTHE NATURALLY OVERLAPPING CONTIGUOUS ZONES OF THE COMPONENT ISLANDS OF THE SAN ANDRÉS ARCHIPELAGO5 27 While Colombia’s entitlement to a contiguous zone around its islands was discussed by the Parties in the case concluded by the Judgment of 19 November 2012,336the configuration of the contiguous zone was neither addressed nor decided there by the Court. Hence some background will be useful 5 28 As will be recalled,337the Integral Contiguous Zone established under Article 5 of Presidential Decree No 1946 and depicted for illustrative purposes in Figure 5.1,was configured on the basis of arcs of circles of 24 nautical miles (12 nautical miles for the width of the territorial sea and 12nautical miles for 336See Chapter 5, Sec A, para 5 4 and footnote317supra 337See para 5 1 supra
203
the width of the contiguous zone) surrounding the islands
comprising the San Andrés Archipelago Because of its
geography, the resulting ICZ includes perforce the overlapping
contiguous zones of the islands and cays of the Archipelago
The outermost points of these arcs of circles were then
connected with geodetic lines and thus include further areas
The introduction of these geodetic lines allowed for the creation
of a continuous and viable zone, with an unindented outer limit
The resulting clarity contributes to the zone’s intended purpose
and facilitates its administration by Colombian officials
204
JOINTREGIMEAREACosta RicaPanamaColombiaPanamaJamaicaColombiaCCayman Islands (U.K.)HondurasBACosta RicaPanamaColombiaPanamaJamaicaColombiaJOINTREGIMEAREACaribbeanSeaPACIFICOCEANSan Andrés I.LittleCorn I.GreatCorn I.Santa Catalina I.QuitasueñoCayProvidencia I.RoncadorCayESE CaysAlburquerqueSerranaCayBajo NuevoSerranillaMiskitosCaysCOSTA RICAPANAMAJAMAICACUBACOLOMBIANICARAGUAHONDURAS10°N15°N10°N15°N20°N75°W 80°W 75°W CCayman HondurasBA0150200100500100200300Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping400QuitasueñoQuitasueñoIntegral Contiguous ZoneCOLOMBIA’S ‘INTEGRAL CONTIGUOUS ZONE’AS SET OUT IN PRESIDENTIAL DECREENUMBER 1946 OF 2013Figure 5.112 M limit
205
5 29 This part of Article 5 has a firm jurisprudential basis In
the Anglo-Norwegian Fisheries Case, the Court affirmed the
principle that, in certain exceptional geographical or socioeconomic
circumstances, methods used to establish maritime
zones may depart from general rules In the circumstances of
that case, the Court found it appropriate to apply a flexible
approach, taking into consideration, inter alia, the idiosyncratic
geography which the case presented, viz , the fragmented nature
of the coastline, or as the Court described it:
“The coastal zone concerned in the dispute is of
considerable length it includes the coast of the
mainland of Norway and all of the islands, islets,
rocks and reefs, known by the name of skjærgaard
(literally, rock rampart), together with all
Norwegian internal and territorial waters The
coast of the mainland, which without taking into
account of fjords, bays and minor indentations, is
over 1,500 kilometers in length, is of a very
distinctive configuration. Very broken along its
whole length, it constantly opens out into
indentations often penetrating for greater distances
inland ” 338
5 30 As Presidential Decree No 1946 explains, the
configuration of the zone was dictated not only as a result of the
geographic proximity of the islands to each other, but also by
“the need to avoid the existence of irregular figures or contours
which would make practical application difficult” 339 The spatial
configuration of Colombia’s ICZ, and, in particular, Colombia’s
338 Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports
1951, p 127
339 Annex 7, Article 5(2)
206
reliance on geodesic lines connecting the outermost points of the 24nm arcs of circles to effect a unified zone are, like the Norwegian Decree, a direct consequence of the unique geographical features of the archipelago itself, and are in conformity with the practice of the Court 5 31 For comparable reasons, the Court, itself, did this in its 2012 Judgment, in invoking the need for geodetic lines: “235 Themethodusedintheconstructionoftheweightedline(asdescribedinthepreviousparagraph)resultsinalinewhichhasacurvedshapewithalargenumberofturningpoints Suchaconfigurationofthelinemaycreatedifficultiesinitspracticalapplication TheCourtthereforeproceedstoafurtheradjustmentbyreducingthenumberofturningpointsandconnectingthembygeodeticlines Thisproducesasimplifiedweightedlinewhichisdepictedonsketch-mapNo 10 ”340(2)THE ADDITION OF GEODETIC LINES CONNECTING THE OVERLAPPING CONTIGUOUS ZONES OF THE ISLANDS ALLOWS FOR THE ORDERLY ADMINISTRATION OF COLOMBIA’SRIGHTS AND OBLIGATIONS IN ITS INTEGRAL CONTIGUOUS ZONE 5 32 Article 5(2) of Presidential Decree No 1946 clarifies that the configuration of the Integral Contiguous Zone responded to the need to ensure the “proper administration and orderly management of the entire Archipelago of San Andrés,Providencia and Santa Catalina” This was done in application of a general principle of good administration and orderly 3402012 Judgment, p 710, para 235 and Sketch-Map No 10, p 712
207
management of maritime resources This principle was
implicitly applied by the Court in its 2012 Judgment when it
rejected Nicaragua’s proposal to draw enclaves around each of
Colombia’s islands As the Court put it,
“In addition, the Nicaraguan proposal would
produce a disorderly pattern of several distinct
Colombian enclaves within a maritime space which
otherwise pertained to Nicaragua with unfortunate
consequences for the orderly management of
maritime resources, policing and the public order
of the oceans in general, all of which would be
better served by a simpler and more coherent
division of the relevant area”
As noted above, this venerable and common-sense policy of the
law of the sea underpinned the Anglo-Norwegian Fisheries Case
and was reaffirmed most recently in the 2012 Judgment 341
5 33 Colombia established the ICZ to achieve the protection
and orderly management of its territorial and maritime
resources, taking account of the unique security concerns and
challenges that confront the Caribbean region as a whole
Particularly as it relates to Colombia which has suffered over
fifty years of internal armed conflict and continues to face the
threat of human trafficking, drugs and arms smuggling and
terrorism Colombia also has obligations for ensuring the
protection of the marine environment, as well as the cultural
heritage, that are vital to the subsistence of the inhabitants of the
341 2012 Judgment, p 708, at para 230 See also, para 5 29, footnote
338 supra
208
Archipelago 342As the preamble of Decree 1946 makes clear, one of the objectives of the ICZ is to ensure conservation of the biodiversity of the Southwestern CaribbeanSea, in order to protect the ecosystems in the area 343This applies, in particular, to the fragile ecosystems of the Seaflower Biosphere Reserve and Seaflower Marine Protected Area 344An unindented configuration of the zone enhances Colombia’s ability to address these concerns in an effective manner and with no corresponding injury to neighbouringstates 5 34 Two points must be emphasized: First, the lines drawn by the Decree are not delimitation lines; their sole purpose is to define a functionalarea within which Colombia may execute, on a case-by-case basis, the powers granted in accordance with international law Second, a configuration of the zone, which was not based on geodetic lines connectingthe outermost points of the arcs of circles, would have resulted –borrowing the words of the Court –in a curved shape with a large number of turning points which would create difficulties in its practical application That would have rendered the zone less effective, if not inoperative for its stated purposes 342For adiscussion of the kind of control that may be exercised by a coastal State in its contiguous zone, under customaryinternationallaw, seeparas.5 39-5 55infra.343The preamble of Decree 1946 states, inter alia, that the extent of the contiguous zone needs to be determined, “in order to secure the protection of the environment and resources”, and that “[t]he Colombian State is committed to the preservation of the ecosystems of the Archipelago, which are fundamental to the ecological balance of the zone, and to preserve historical, traditional,ancestral, environmental and cultural rights, and the rights of survival of the inhabitants ”344See Chapter 3, Sec C (1) supra
209
(3) THE CONTINGENT POWERS WHICH COLOMBIA MAY
EXERCISE IN THE INTEGRAL CONTIGUOUS ZONE, AS SPECIFIED IN
PRESIDENTIAL DECREE NO 1946, ARE CONSISTENT WITH
INTERNATIONAL LAW
5 35 By definition, the powers which a coastal State is entitled
to exercise in appropriate circumstances and appropriate ways in
its contiguous zone relate to high seas freedoms inuring to third
States and their nationals, the exercise of which, in specific
instances, threaten or compromise vital – and internationally
recognized – interests of the coastal State Thus Presidential
Decree No 1946 includes matters customarily found in the
police powers of a coastal State in its contiguous zone, such as
customs, fiscal, immigration and sanitary regulation Other
rights to be exercised in the contiguous zone under the Decree
are concerned with special and, alas, notorious problems
infecting the Caribbean region: the “comprehensive security of
the State,” “includ[ing] piracy and trafficking of drugs and
psychotropic substances, and forms of conduct as well as
conduct contrary to the security of the sea and the national
maritime interests ” The Decree also provides that “violations
against the laws and regulations related to the preservation of
the environment, cultural heritage, and the exercise of historical
fishing rights” will be prevented and controlled 345
5 36 Given the objects and purposes of a contiguous zone as
they relate to the responsibilities of the coastal State, it is
345 Annex 7, Article 5(3)(a)
210
obvious that a State is entitled to exercise contiguous zone rights with respect to inhabited dependent archipelagos no less than to mainland coastal regions Indeed, archipelagos are particularly vulnerable to actions initiated in and beyond their land components and their territorial seas that may impact their security and their often fragile social and ecological processes No surprise, then, that the Decree includes express reference to Colombia's competence to punish violations of laws and regulations concerning the above-mentioned matters, provided that the infringements are “committed in its island territories” or “in their territorial sea ”3465 37 That this Decree was scrupulously designed to conform to the requirements of international law is confirmed in its text Thus, Article 1(3) specifies that Colombia exercises jurisdiction and sovereign rights over the maritime spaces different from the territorial sea “in the terms prescribed by international law in what corresponds to each of them ” It also specifies that “in those spaces Colombia exercises historic rights in conformity with international law,” deriving from practice in waters which were long believed to be Colombia’s This provision is critical, for the core issue of lawfulness is not the existence ofacontiguous zone as such, but rather the circumstances of and the way specific exercises of contiguous zone powers are carried outwithin it,as well as the extent to which due regard has been paid, in those exercises, to the rights of third States 346Annex 7, Article 5(3)(b)
211
5 38 Thus, like every contiguous zone, Colombia's Integral
Contiguous Zone (i) is necessary for the orderly management,
policing and maintenance of public order in the maritime spaces
pertaining to the San Andrés Archipelago; (ii) is to be applied in
conformity with international law having due regard to the rights
of other States; (iii) is in conformity with international law; and
(iv) consequently, cannot be said to be contrary to the Court's
Judgment of 19 November 2012
E. The Extent and Contingent Powers of Colombia’s
Integral Contiguous Zone are Consistent with International
Law
5 39 Nicaragua’s second claim347 is that both the spatial
configuration of the ICZ and the nature of the contingent powers
that Colombia claims within it are inconsistent with customary
international law Considering both the legislative history and
subsequent state practice surrounding Article 24 of the U N
Convention on the Territorial Sea and the Contiguous Zone and
Article 33 of UNCLOS, Colombia considers that these Articles
do not reflect the rules of customary international law and as a
result, even though they might serve as guidance, are not
applicable in the instant case
5 40 Under the customary law of the sea, the spatial conception
of the contiguous zone is based on context, function and policy
considerations (Even with respect to States parties to UNCLOS,
unique circumstances may temper the numerical standard of
347 See para 5 7 supra
212
geographical distance and the enumerated functions in UNCLOS Article 33, as will be explained below )5 41 The Draft Convention on Territorial Waters of 1929 was produced by a Research Committee of the Harvard Law School, in preparation for the 1930 Hague Conference for the Codification of International Law The Draft was also the first joint international articulation and conceptualization of the contiguous zone Its Article 20 provided: “The Navigation of the high sea is free for all states On the high sea adjacent to the marginal sea, however, a state may take such measures as may be necessary for the enforcement within its territory or territorial waters of its customs, navigation, sanitary or police laws or regulations, or for its immediate protection” 348The proponents of Article 20 of the Draft refused to lay down stringent technical requirements on either the breadth or thenature of the measures to be exercised within the zone Instead, they turned to a general test of necessity, which respected the zone’s core flexible character, as they explained in their commentary:“It would seem to serve no useful purpose to attempt tostate what is adjacent in terms of miles as the powers described in this article are not dependent upon sovereignty over the locus and are not limited to a geographical area which can be thus defined The distance from the shore at which these powers may be exercised is determined not 348Harvard Research in International Law, Draft Convention on Territorial Waters, Art 20, reprinted in 23Am. J. Int’l. L. Supp.(1929), pp 243, 333-334 Available at Peace Palace Library
213
by mileage but by the necessity of the littoral state
and by the connection between the interests of its
territory and the acts performed on the high sea
The recognition that such measures are proper
when they can be shown to be necessary for the
enforcement of a state’s customs, navigation,
sanitary or police laws, or for its immediate
protection does in some degree modify the general
principle of freedom of navigation on the high sea,
but the modification is here narrowly restricted and
it is a modification which would seem to be
entirely reasonable in view of the fact that it
represents the long established practice of many
states ”349
5 42 The 1930 Hague Conference was witness to a continuation
of the debates among States as to the purposes for which the
zone should be recognized As summarized by Professor
Reeves: “Enforcement of customs legislation, supervision and
even control over fisheries, and security to the littoral state were
the main foundations for the theory of the contiguous zone,
insistence upon one or another depending upon the policy or
point of view of particular states ”350
5 43 The debates surrounding the spatial flexibility of the
regime of the contiguous zone continued during the 1958
Geneva Conference on the Law of the Sea. The ILC’s had taken
a strict approach, seeking, in the 1956 Draft on the Articles
Concerning the Law of the Sea, to limit both the nature and
349 Harvard Research in International Law, Draft Convention on
Territorial Waters, Art 20, reprinted in 23 Am. J. Int’l. L. Supp. (1929), pp
243, 333-334 Available at Peace Palace Library
350 J S Reeves, “The Codification of the Law of Territorial Waters”, 24
Am. J. Int’l L (1930), pp. 486, 494 Available at Peace Palace Library
214
geographic scope of the contiguous zone 351A number of States (Yugoslavia, Chile, Ecuador, Poland, the Philippines, Ceylon and Korea) submitted proposals during the conference to expand on the nature of the zone 352Two such proposals were adopted in the First Committee: Ceylon’s proposal to include immigration considerations and Poland’s proposal to include security interests 3535 44 At the Plenary Committee, the combined new draft was welcomed by a vote of 40 in favour and 27 against with 9 abstentions That was, however, shy of the 2/3 majority necessary for adoption, a fact which allowed the U S to propose at the last minute alternative wording which included immigration but not security; it was eventually adopted 354In view of what actually transpired at the Conference, Judge Oda observed that the final wording of Article 24 of the 1958 Convention could not be deemed to reflect the consensus of the majority of States at the Conference:351Articles Concerning the Law of the Sea with Commentaries, Text Adopted by the International Law Commission at its eight session, reprinted in 2 Y.B. Int’l L. Comm’n,Commentary to Article 66 (1956) While the ILC rejected the notion that a coastal State may be allowed to exercisejurisdiction on matters relating to security, fishing, conservation of living resources, and immigration within the zone, it is submitted that in doing so it reliedheavily on general justifications that did not conform to the practice of States at the time Available in:http://legal un org/ilc/texts/instruments/english/commentaries/8_1_8_2_1956 pdf (Last visited: 10 Nov 2016) 352S Oda, “The Concept of the Contiguous Zone”,11 Int’l & Comp.L.Q.131, 147-149 (1962) Available at Peace Palace Library 353Ibid.(Ceylon’s proposal was adopted by 39 votes to 15 with 20 abstentions; Poland’s proposal was adopted by 33 to 27 with 5abstentions The final draft of the first committee which incorporated both proposals was sent to the Plenary Meeting by a vote of 50 to 18 with 8 abstentions) 354Ibid
215
“An examination of the drafting process at the
Geneva Conference has indicated that the terms of
Article 24 did not truly represent the opinion of the
majority of the States at the Conference ”355
5 45 At the 1972 session of the Sea-Bed Committee, a group of
55 States supported the inclusion, as item 3, of the question of
the contiguous zone 356 That item was divided into three subitems:
3 1 – nature and characteristics; 3 2 – Limits; 3 3 – Rights
of the coastal States with regard to national security, customs
and fiscal control, sanitary, and immigration regulations The
introduction of, and continued discussions on this adopted
agenda item further underlines the fact that the differences and
debates on the scope and nature of the contiguous zone had not
subsided following the adoption of the 1958 Convention
5 46 In the Third United Nations Conference on the Law of the
Sea, the focus of negotiations shifted to addressing issues
surrounding the emerging EEZ regime Those deliberations
overshadowed the continued debates surrounding the nature and
scope of the contiguous zone Nonetheless, proposals were again
put forward, calling for greater flexibility: these included India’s
proposal for a 30-mile contiguous zone; Egypt’s and Honduras’
355 S Oda, op. cit , p 158
356 Annex 80: UN Doc A/AC 138/66 and Corr 2, 14 Mar 1972:
Algeria, Argentina, Brazil, Cameroon, Chile, China, Colombia, Congo,
Cyprus, Ecuador, Egypt, El Salvador, Ethiopia, Fiji, Gabon, Ghana,
Guatemala, Guyana, Iceland, India, India, Indonesia, Iran, Iraq, Ivory Coast,
Jamaica, Kenya, Kuwait, Liberia, Libyan Arab Republic, Madagascar,
Malaysia, Mauritania, Mauritius, Morocco, Nicaragua, Nigeria, Pakistan,
Panama, Peru, Philippines, Romania, Senegal, Sierra Leon, Somalia, Spain,
Sri Lanka, Sudan, Trinidad and Tobago, Tunisia, United Republic of
Tanzania, Uruguay, Venezuela, Yemen, Yugoslavia, and Zaire
216
proposals for an 18-mile contiguous zone; and Israel’s proposal for the insertion of “broadcasting” into the list of activities over which coastal States may enforce their jurisdiction While none of these proposals was adopted, and while a final proposal by the Soviet Union and its backers to merely repeat the wording of the 1958 Convention was eventually accepted, the full record indicates that Article 33 of UNCLOS was far from reflecting unanimity 3575 47 One may note that in 1975 a U S domestic court was called to determine the legality of the seizure of a Japanese vessel, the F/V Taiyo Maru, by the U S Coast Guard within the contiguous fisheries zone of the United States, for alleged violation of U S fisheries law Deciding on the legality of the U S Coast Guard’s hot pursuit, District Judge Edward Thaxter Gignoux had to address the issue of whether the 1958 Convention allowed for a contiguous zone to encompass fishing rights Judge Gignoux held that Article 24 did not prohibit “the establishment of a contiguous zone for a purpose other than one of those specified in the Article ” He reasoned instead that the list contained in that article was non-exhaustive:“The language of Article 24, relating to the purposes for which a contiguous zone may be established, is permissive, rather than restrictive It provides that a coastal State "may" establish a contiguous zone for the purposes of enforcing its customs, fiscal, immigration or sanitary 357S N Nandan & S Rosenne (Eds ), United Nations Convention on the Law of the Sea 1982: A Commentary(Vol II), 1993, pp 268-275 (Virginia Commentary) Available at Peace Palace Library; see also Annex 82: S Ghosh, op. cit , pp 271-277
217
regulations Although Article 24 only affirmatively
recognizes the right of a coastal State to create a
contiguous zone for one of the four enumerated
purposes, nothing in the Article precludes the
establishment of such a zone for other purposes,
including the enforcement of domestic fisheries
law ”358
5 48 Echoes of the crux of Judge Gignoux’s holding recur in
the rather widespread practice of States following both the 1958
Convention and UNCLOS States have adopted and enforced
legislation that expands the numerical and material limitations
enumerated in Articles 24 and 33 States’ domestic laws and
powers within the contiguous zone have come to encompass
varied concerns, ranging from security and defense, to
environmental protection and maritime conservation, to fishing
rights, and to cultural heritage protection This is supported by
extensive State practice Appendix B to this Counter-Memorial
shows examples from some 41 States which have enacted
domestic legislation granting powers to address such
concerns 359
5 49 Customary law is a continuous dynamic process, as
exemplified by the sizeable body of State practice reviewed
above It also calls to mind the Court’s allowance for an
evolutionary interpretation of treaties in appropriate
circumstances In its 2009 Judgment in Dispute Regarding
358 Annex 81: United States v. F/V Taiyo Maru, Civ No 74-101 SD,
Cr No 74-46 SD, 395 F Supp 413 (1975)
359 Appendix B: Examples from States which have enacted domestic
legislation concerning the Contiguous Zone
218
Navigational and Related Rights,the Court stated that:“There are situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used –or some of them –a meaning or content capable of evolving, not one fixed once and for all, so as to make allowances for, among other things, developments in international law ”3605 50 The terms of Article 24 of the 1958 Convention, and Article 33 of UNCLOS, as they pertain to “custom, fiscal, immigration, or sanitaryregulation”, may thus be read in the light of contemporary developments in international law Given that States have been adopting interpretations of what is respectively covered under the expressions “custom”, “fiscal”, “immigration”, and “sanitary”, in terms of contemporary administrative needs, the treaty terms, and the correlating customary norm reflected therein, may be read to be flexible and adaptive. Taking the aforesaid into account, the “laws for the protection of the environment”, in Article 5 of the Presidential Decree No 1946, are to be read to qualify as “sanitary laws and regulations” in the context of the contemporary understanding of the customary international legal regime of the contiguous zone 361360Dispute Regarding Navigational and Related Rights (Costa Rica v.Nicaragua), Judgment, I.C.J. Reports 2009, p 242, para 64 361In this regard, the Court has stated that:“The Court has no difficulty in acknowledging that the concerns expressed by Hungary for its natural environment in the region affected by the Gabcikovo-Nagymaros Project related to an ‘essential interest’of that State, within the meaning given to that expression in Article 33 of the Draft of the International Law Commission The Commission, in its
219
5 51 This is, moreover, entirely in keeping with the historic
function of the contiguous zone In his venerable ruling in
Church v Hubbart (1804), United States Chief Justice John
Marshall contributed to the customary international law
foundations of a flexible contiguous zone Chief Justice
Marshall noted that as a matter of principles which are
“universally acknowledged” the power of a State to “secure
itself from injury may certainly be exercised beyond the limits
of its territory”:
“These means do not appear to be limited within
any certain marked boundaries, which remain the
Commentary, indicated that one should not, in that context,
reduce an ‘essential interest’ to a matter only of the
‘existence’ of the State, and that the whole question was,
ultimately, to be judged in the light of the particular case (see
Yearbook of the International Law Commission, 1980, Vol
II, Part 2, p 49, para 32); at the same time, it included
among the situations that could occasion a state of necessity,
‘a grave danger to the ecological preservation of al1 or
some of [the] territory [of a State]’ (Ibid, p 35, para 3); and
specified, with reference to State practice, that "It is primarily
in the last two decades that safeguarding the ecological
balance has come to be considered an 'essential interest' of all
States ” (Ibid., p 39, para 14 )
The Court recalls that it has recently had occasion to stress, in the following
terms, the great significance that it attaches to respect for the environment,
not only for States but also for the whole of mankind:
“the environment is not an abstraction but represents the
living space, the quality of life and the very health of human
beings, including generations unborn The existence of the
general obligation of States to ensure that activities within
their jurisdiction and control respect the environment of other
States or of areas beyond national control is now part of the
corpus of international law relating to the environment ”
(Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, I.C.J. Reports 1996, pp 241-242, para 29 )
Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports
1997, p 41, para 53
220
same at all times and in all situations If they are such as unnecessarily to vex and harass foreign lawful commerce, foreign nations will resist their exercise If they are such as are reasonable and necessary to secure their laws from violation, they will be submitted to In different seas and on different coasts, a wider or more contracted range, in which to exercise the vigilance of the government, will be assented to ”3625 52 Chief Justice Marshall thus held that rather than rigid limitations, broader standards of reasonableness and necessity are to be applied In such a regime, the degree of intrusiveness, the extent, if any, of the displacement of the rights of other States, the legal justification of the State action in question, including its urgency and correlative proportionality, and the reaction of the international community, all play a role in a contextual assessment of the lawfulness of the extent to which contiguous zone powers are exercised as well as the lawfulnessof the specific actions taken by the contiguous zone holder.5 53 This approach was examined by Professors McDougal and Burke who concluded that the “brief and enigmatic Article 24 of the 1958 Convention” was as “far removed from the desirable community policies as from the probable future realities of claim and decision ” In the face of “the considerable flexibility in the distances at which states have projected, and continue to project their contiguous zone,” those authoritative scholars found a single zone of twelve miles to be “decidedly 362Annex79:Churchv.Hubbart,6U S 187,234-235(1804)
221
anachronistic” 363 With respect to the issue of the nature and
functions of the zone, they endorsed an approach, sensitive to
context and to international policies:
“The proposed limitation of permissible purposes
for contiguous zones in the reference to ‘customs,
fiscal, sanitation, and immigration’ is certainly no
accurate summary of the purposes of which states
have in the past demanded, and been accorded, an
occasional exclusive competence in contiguous
waters Their mutual demands, and reciprocal
differences, have extended, as we have seen, to
important common interests in relation to security
and power, as well as to other forms of wealth
protection With developing technology and
expanding enlightenment, new uses of the oceans,
would appear certain to emerge It can scarcely be
regarded as an appropriate clarification of the
common interests of states to protect a formulation
of the purposes for which they may exercise
reasonable exclusive competence which both omits
important contemporary shared interest and
forecloses the future protection of new, emerging
interests, whatever their importance or urgency
Certainly any prediction that states will be able to
live, and secure their common interests, within
such limitations must be viewed as most
precarious ”364
In the light of subsequent State practice, the final sentence,
published in 1962, has proved to have been prescient 365
5 54 The preceding review supports Colombia’s position that,
363 M S McDougal & W T. Burke, The Public Order of the Oceans: A
Contemporary International Law of the Sea, 1962, pp 604-607 Available at
Peace Palace Library
364 Ibid
365 Ibid
222
in accordance with customary international law, both the spatial conception of the contiguous zone and the powers which the contiguous State may exercise therein are to be determined by reference to context, function and consideration 5 55 Should, however, the Court find that the 24-mile limit of the contiguous zone reflects customary international law, Colombia’s ICZ is, nonetheless, lawful, pursuant to the customary exemptionto such a numerical rule As discussed above in Section 3(A), under customary international law, in unique geographical circumstances, the techniques according to which the external limit of a maritime zone isdetermined, if reasonable in context, may depart from the general rules in order to create a viable contiguous zone that enables the achievement of its purposes The geographical circumstances of the San Andrés Archipelago are such that the application of the general rule would create an impracticable contiguous zone Thus, in accordance with customary international law, the configuration of Colombia’s contiguous zone is lawful F.In Any Event, Nicaragua Can Point to No Actions in Colombia’sIntegralContiguous Zone That Have Prejudiced Nicaragua’s EEZ Rights 5 56 What the preceding review indicates is that each specific action allegedly taken by Colombia within its contiguouszone, and not only the spatial configuration of the zone itself, must be examined, on a case-by-case basis, against the backdrop of generally accepted international principles and State practice In
223
this contextual analysis, the validity of the justification for the
specific action must be examined, alongside the excessive or
trivial nature of the allegedly injurious consequences of the
measure The burden of proof is, of course, on the party alleging
the injurious event: Ei incumbit probatio qui dicit, non qui
negat.
5 57 As it relates to alleged “injurious” events presented by
Nicaragua in its Memorial and Annexes, Nicaragua will thus
find it impossible to demonstrate any injury caused by Colombia
because it has not proven that any incidents occurred within the
ICZ Moreover, in none of the alleged events subject to the
jurisdiction of the Court, i.e., those which occurred before
Colombia’s denunciation of the Pact of Bogotá, did Nicaragua
raise the issue of Colombia infringing an alleged sovereign right
or its maritime space as a result of the implementation of the
ICZ It is only with reference to a few events occurring after the
denunciation (2 January 2014, 1 February 2014, 2 February
2014, and 5 February 2014) that Nicaragua specifically alleges
that Colombia was implementing the ICZ to Nicaragua’s
detriment As explained in Chapter 4, Section C, wholly apart
from their lack of merit, these alleged events are outside the
jurisdiction of the Court But the critical point is that Nicaragua
fails to demonstrate an actual injury suffered by it, as the result
of specific actions or measures taken by Colombia in its ICZ.
224
G.Conclusion5 58 As demonstrated in this chapter, Colombia’s Presidential Decree No 1946 of 9 September 2013, proclaiming an Integral Contiguous Zone is not a wrongful act under international law In particular:(i)The spatial configuration of Colombia’s Integral Contiguous Zone is internationally lawful; (ii)The powers which Decree No 1946 specifies are internationally lawful; and(iii)Nicaragua has not proven that it has suffered any injury by reason of the existence of the Integral Contiguous Zone
225
Chapter 6
THE REMEDIAL SITUATION
6 1 Nicaragua contends that it has suffered both material and
moral injuries from Colombia’s alleged wrongful acts 366 In
relation to material injuries, Nicaragua requests the immediate
cessation of Colombia’s internationally wrongful acts, as well as
restitution, compensation and guarantees of non-repetition by
Colombia 367 As for the purported moral damage, Nicaragua,
because it is “hardly financially assessable”, requests a
declaration of the wrongfulness of Colombia’s actions by the
Court 368
6 2 The short answer to Nicaragua’s requests for relief is that
(i) the Court has already ruled that it has no jurisdiction over the
claim based on the allegation of the threat of use of force 369, and
(ii) that Colombia has not committed any of the alleged
international wrongful acts
6 3 The list of purported “incidents” to have involved the
Colombian Navy have been shown by Colombia to be based on
erroneous or, at best, entirely misleading information No
Nicaraguan fishing vessels have been prevented from fishing in
the waters found to appertain to Nicaragua as a result of
Colombia’s exercise of its freedoms of navigation and overflight
366 Memorial of Nicaragua, para 4 6
367 Ibid , para 4 11
368 Ibid., paras 4 12-4 13
369 Judgment on the Preliminary Objections, paras 75-79
226
and its right to monitor suspicious trafficking and practices that harm the marine environment Indeed, even after allegedly having been chased away by the Colombian Navy, vessels such as the “Miss Sofia” continued fishing not only in the waters that were found to appertain to Nicaragua, but also in Serrana’s territorial sea and in the waters of the Joint Regime Areaestablished between Colombia and Jamaica 370It is also worth mentioning that these two vessels have a history of abandoning their crew members to their fate 3716 4 As for Colombia’s Decree No 1946 enacting an Integral Contiguous Zone, Colombia has shown that the decree is neithercontrary to international law, nor incompatible with Nicaragua’sability to exercise sovereign rights in its exclusive economic zone or continental shelf Once again, no Nicaraguanvessels have been prevented from fishing inthoseparts of the Integral Contiguous Zone that overlap with Nicaragua’s EEZ 6 5 It follows that Nicaragua’sclaim that Colombia should re-establish thestatus quo anteby revoking laws, regulations and permits granted to fishing vesselsisdevoid of merit andcallsfor no furthercomment at this stage By the same token,Nicaragua’s claim based on an obligation to compensate is untenable The facts of this case demonstrate that, even assuming quod non that the purported incidents have taken place and that they were in breach of international norms(which is not 370Memorial of Nicaragua, paras 2 30 and 2 36 371See Chapter 8, Sec C infraand Appendix A (in Vol II)
227
the case), no injury was suffered, as the fishing vessels
authorized by Nicaragua have not been prevented from fishing
in Nicaragua’s EEZ
6 6 Accordingly, the Applicant’s assertion that Colombia
should compensate it for the “loss of profits resulting from the
loss of investment caused by the threatening statements of
Colombia’s highest authorities” 372 is implausible Not only does
the very description of the “incidents” provided by Nicaragua
show that no impediment has been created for fishing vessels
authorized by Nicaragua, the Applicant has failed to provide
even a shred of evidence in relation to this claim
6 7 Quite simply, Nicaragua cannot demonstrate that it has
suffered material injuries from the actions of Colombia To the
contrary, the situation in the relevant area demonstrates that
Nicaragua is already fully enjoying its rights in the maritime
spaces that were found to belong to it in 2012 In fact, according
to the 2014 Report of the Instituto Nicaragüense de Pesca y
Acuicultura (INPESCA), the production of fishery resources in
the Nicaraguan Caribbean Sea has increased by more than 100%
between 2012 and 2014 The production has grown steadily with
respect to most of the marine resources including fish, spiny
lobsters, conches and shrimp 373
372 Memorial of Nicaragua, Submissions, para 2 c
373 Annex 92: Nicaraguan Fishing and Aquiculture Institute
(INPESCA), Fishing and Aquiculture Yearbook 2014, July 2015, pp 7-9
228
6 8 Likewise,the FAO Report of the first meeting of the Working Group on Caribbean Spiny Lobster, which included Nicaragua but not Colombia as a participant,stresses the fact that Nicaragua suspended its quotas for total allowable catches of Caribbean Spiny Lobster “in 2012 after gaining territorial rights over a disputed area in the Atlantic allowing the countryto expandits fishing zone” 374But, more significantly, the Report includes as Nicaragua’s presentation aInformeby INPESCA on the status of this resource in the Caribbean 375The Informe specifically draws attention to Luna Verde by attaching a map depicting the considerable amount of spiny lobsters that were harvested in the aftermath of the 2012 Judgment While the exact tonnage is not given, the dots show that, between the rendering of the 2012 Judgment and the adoption of the Report in October 2014,Nicaragua has been fully enjoying its newly acquiredrights in that area, although this has been accompanied with the widespread use of predatory fishing practices As stressed in the Informe, Luna Verde is currently one of the “principal banks”, if not the most important, for spiny lobsters’ exploitation This Informe conclusively shows that, contrary to Nicaragua’sunsubstantiated claims, its fishermen are fishing, and substantially depleting, the spiny lobster resources located in Luna Verde, regardlessof the purported “threatening”presence of the Colombian Navy 374FAO, Western Central Atlantic Fishery Commission, Report of the First Meeting of the OSPESCA/WECAFC/CRFM/CFMC Working Group on Caribbean Spiny Lobster, Panama City, 21-23 October 2014, p 22, para 32 Available at: http://www fao org/3/a-i4860b pdf (Last visited: 10 Nov 2016) 375Ibid ,pp 80-83
229
6 9 Accordingly, none of the purported “incidents” or
Decree No 1946 have caused Nicaragua any injury Nicaraguan
fishing vessels have also not been prevented from carrying out
their fishing activities, nor have any of Nicaragua’s sovereign
rights or jurisdiction been otherwise infringed To the contrary,
Colombia has shown that it was entitled to be in the relevant
area and that its actions were consistent, and in compliance, with
its duties under international law For these reasons, Nicaragua’s
requests for relief have no factual or legal basis and should be
rejected
230
231
PART III
COUNTER-CLAIMS
232
233
Chapter 7
COLOMBIA’S COUNTER-CLAIMS
A. Introduction
7 1 Colombia has demonstrated in the preceding chapters that
the picture of Colombia’s behaviour in the Southwestern
Caribbean Sea portrayed by Nicaragua in its pleadings does not
correspond to reality, and that no wrongful conduct can be
attributed to Colombia But the story told by Nicaragua is not
simply inaccurate; it is the opposite of what actually occurred
during the period beginning with the Judgment of the Court of
19 November 2012 up to the critical date, 27 November 2013
(“the relevant period”) and is, therefore, incomplete
7 2 As Colombia will show in the following chapters, it is
Nicaragua’s own conduct during this period in relation to both
the areas in which it claims sovereign rights and jurisdiction,
and in areas within Colombia’s territorial sea – i.e., areas under
Colombia’s sovereignty – that has given rise to a number of
breaches of Nicaragua’s obligations owing to Colombia
7 3 The Court’s Judgment of 19 November 2012 did not result
in Nicaragua having unfettered sovereign rights or jurisdiction
within its EEZ Rather, with those newly recognized rights come
responsibilities and duties, in particular vis-à-vis Colombia, but
also with respect to third States Nicaragua’s pleadings disregard
these obligations
234
7 4 Amongstothers, Nicaragua has the obligation to protect and preserve the marine environment However, Nicaraguahas not onlycompletely failed to prevent and control predatory fishing practices and the destruction of the marine habitat perpetrated by vessels flying its flag or acting under its licenseswithin the relevantarea, it has tolerated and even endorsed such practices By doing so, Nicaragua not only breached its general environmental obligations,it violated the rights of the inhabitants of the Archipelago, including the Raizal community,to benefit from a healthy, sound and sustainable environment andhabitat This is the subject of Colombia’s first two counter-claims, discussed in Chapter 8 7 5 Moreover, while senior Nicaraguan representatives have made public pronouncementspurporting to recognize the traditional fishing rights of the Raizal community and of Colombia,in practice Nicaragua has infringed the artisanal fishing rights of the inhabitants of the Archipelago to access and exploit their traditional banks Its Naval Forcehas harassed the artisanal fishermen, by intimidating them, and seizing their products, fishing gear, food and personal property This is the subject of Colombia’s third counter-claim, addressed in Chapter 9 7 6 Lastly, Nicaraguaevenwent further in adopting a Decree establishing straight baselines for the determination of the breadth of its maritime zones, in clear contradiction with
235
international law, and thus purported to extend its maritime
spaces beyond what international law permits This decree
directly infringes on Colombia’s maritime rights and spaces, and
forms the basis for Colombia’s fourth counter-claim, discussed
in Chapter 10
B. Admissibility of the Counter-claims
7 7 Article 80, paragraph 1, of the Rules of Court provides
that:
“The Court may entertain a counter-claim only if it
comes within the jurisdiction of the Court and is
directly connected with the subject-matter of the
claim of the other party ”
Therefore, for counter-claims to be entertained by the Court,
they must (i) come “within the jurisdiction of the Court”, and
(ii) be “directly connected with the subject-matter of the claim
of the other party ” In earlier pronouncements of the Court,
these two requirements have been characterized as concerning
the “admissibility” of the counter-claim 376 In other words,
“‘admissibility’ in this context must be understood broadly to
encompass both the jurisdictional requirement and the directconnection
requirement ” 377
376 Oil Platforms (Islamic Republic of Iran v. United States of
America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998,
p 203, para 33; Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Counter-Claims, Order of 29 November
2001, I.C.J. Reports 2001, p 678, para 35
377 Jurisdictional Immunities of the State (Germany v. Italy), Counter-
Claim, Order of 6 July 2010, I.C.J. Reports 2010, pp 315-316, para 14
236
7 8 Section (1)below will address the jurisdictional requirement with respect to Colombia’s counter-claims Section (2)will then set out the legal considerations that underpin the “direct connection” requirement In the chapters that follow, Colombia will show that the admissibility test for each counter-claim is met, and that the counter-claims are well-founded infact and law (1)THE COUNTER-CLAIMS COME WITHIN THEJURISDICTION OF THE COURT7 9 The jurisdiction of the Court overa dispute between two States depends on their consent to have thedispute settled by the Court In the current proceedings,the Court held in its Judgmenton Preliminary Objections that consent to its jurisdiction to adjudicate upon the dispute between Nicaragua and Colombia derives from ArticleXXXI of the Pact of Bogotá 3787 10 Article XXXI of the Pact readsas follows:“In conformity with Article 36, paragraph 2, of the Statute of the International Court of Justice, the High Contracting Parties declare that they recognize, in relation to any other American State, the jurisdiction of the Court as compulsory ipso facto,without the necessity of any special agreement so long as the present Treaty is in force, in all disputes of a juridical nature that arise among them concerning: (a) [t]he interpretation of a treaty; 378Judgmenton the Preliminary Objections,p 41, para 111 (2)
237
(b) [a]ny question of international law;
(c) [t]he existence of any fact which, if established,
would constitute the breach of an international
obligation;
(d) [t]he nature or extent of the reparation to be
made for the breach of an international obligation ”
7 11 In order to assess if the counter-claims come within the
jurisdiction of the Court, it is convenient to distinguish between
jurisdiction ratione materiae, ratione temporis and ratione
personae
7 12 With respect to jurisdiction ratione materiae, Colombia’s
counter-claims indisputably concern a “dispute of a juridical
nature”, as required by Article XXXI of the Pact Indeed, they
all concern “questions of international law” (Article XXXI (b)),
the existence of facts which, if established, would constitute
breaches of Nicaragua’s obligations (Article XXXI (c)), and the
nature and extent of the reparation to be made for those breaches
(Article XXXI (d))
7 13 As for jurisdiction ratione temporis, Article XXXI of the
Pact provides that consent to the jurisdiction of the Court exists:
(i) “so long as the present Treaty is in force”; (ii) in a dispute
that arises among the Parties; (iii) concerning “the existence” of
facts As a consequence, a dispute that arises between the Parties
with respect to the “existence” of facts that did not occur “so
long as the Treaty was in force”, but that occurred after the
Treaty ceased to be in force, does not come within the
238
jurisdiction of the Court But the facts alleged by Colombia in its counter-claims all occurred before 27November 2013, that is to say, at a timewhen the Pact of Bogotáwas still in force between Nicaragua and Colombia, as decided by the Court 7 14 It is also undisputedthat the Court decided that the Pact of Bogotáceased to apply between the Partiesas of 27 November 2013 Yet, it was still in force, and expressedthe consent of the Partiesto the jurisdiction of the Court, on 26 November 2013, the date when Nicaragua lodged its Application instituting the presentproceedings 379Thus, jurisdiction is established both ratione personaeand ratione temporis 7 15 Article 80, paragraph 2, of the Rules of Court provides thata counter-claimshallbe made inthe Counter-Memorial of the party presenting it Thus, Colombia’s counter-claims are submitted not to institute new proceedings, but as “Incidental Proceedings”,380“that is to say, within the contextof a case which is already in progress ”381Made in the Counter-Memorial, the counter-claims are presented in the jurisdictional context of the procedure already initiated by Nicaragua on 26 November 2013 In other words, the Court’s jurisdiction over incidental proceedings must be assessed at the time of the filing of the 379Judgmenton the Preliminary Objections,p 24, para 48 380This is the title of Section D of the Rules of Court in which Art 80 is inserted 381Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Counter-Claims, Order of 17 December 1997, I.C.J. Reports 1997,p 257, para 30
239
main proceedings Since the Court has found that it has
jurisdiction over the main proceedings, jurisdiction is also
established over the counter-claims
(2) THE DIRECT-CONNECTION REQUIREMENT
7 16 The Court’s jurisprudence establishes that the Court has
discretion to assess whether the counter-claim is sufficiently
connected to the main claim to be admissible In doing so, the
direct connection must be considered “both in fact and in law”
As explained by the Court in the Bosnian Genocide case:
“Whereas the Rules of Court do not define what is
meant by ‘directly connected’; whereas it is for the
Court, in its sole discretion, to assess whether the
counter-claim is sufficiently connected to the
principal claim, taking account of the particular
aspects of each case; and whereas, as a general
rule, the degree of connection between the claims
must be assessed both in fact and in law ”382
7 17 In relation to the factual connection, the Court has to
consider “whether the facts relied upon by each party relate to
the same geographical area or the same time period”,383 and also
382 Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Counter-Claims, Order of 17 December 1997, I.C.J. Reports 1997, p 258,
para 33
383 Certain Activities Carried Out by Nicaragua in the Border Area
(Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the
San Juan River (Nicaragua v. Costa Rica), Counter-Claims, Order of 18
April 2013, I.C.J. Reports 2013, p 211-212, para 33 See also: Application
of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Counter-
Claims, Order of 17 December 1997, I C J Reports 1997, p 258, para 34;
240
examine whether these facts are of the “same nature, in that they allege similar types of conduct” 384This was addressed by the Court in theCertain Activities; Construction of a Road casesin the following way:“In previous decisions relating to the admissibility of counter‑claims, the Court has taken into consideration a range of factors that could establish a direct connection both in fact and in law between a counter‑claim and the claims in the principal case for purposes of Article 80 The Court has thus considered whether the facts relied upon by each party relate to the same geographical area or the same time period (see Application ofthe Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.Yugoslavia), Counter‑Claims, Order of 17 December 1997, I.C.J. Reports 1997, p 258, para 34; Oil Platforms (Islamic Republic of Iran v.United States ofAmerica), Counter‑Claim, Order of 10 March 1998, I.C.J. Reports 1998, p 205, para 38) The Court has also considered whether the facts relied upon by each party are of the same nature, in that they allege similar types of conduct (see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Counter‑Claims, Order of 29 November 2001, I.C.J. Reports 2001, p 679, para 38)” 385Oil Platforms (Islamic Republic of Iran v. United States of America), Counter-Claim, Order of 10 March 1998, I.C.J. Reports 1998, p 205, para 38 384Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Counter-Claims, Order of 18 April 2013, I.C.J. Reports 2013, p 211-212, para 32 See also:Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda),Counter-Claims, Order of 29 November 2001, I.C.J. Reports 2001, p 678-679, para 38 385Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the
241
7 18 As for a direct connection in law, the key question is
whether there is a direct connection based on the legal principles
or instruments relied on, or whether the Parties can be
considered to be pursuing the same legal aim As the Court
stated in the Certain Activities; Construction of a Road cases:
“The Court has further examined whether there is a
direct connection between the counter‑claim and
the principal claims of the other party based on the
legal principles or instruments relied upon, or
where the Applicant and the Respondent were
considered as pursuing the same legal aim by their
respective claims (see Application of the
Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Counter‑Claims, Order of 17
December 1997, I.C.J. Reports 1997, p 258, para
35; Oil Platforms (Islamic Republic of Iran v.
United States of America), Counter‑Claim, Order
of 10 March 1998, I.C.J. Reports 1998, p 205,
para 38; Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria),
Order of 30 June 1999, I.C.J. Reports 1999 (II),
pp 985‑986; Armed Activities on the Territory of
the Congo (Democratic Republic of Congo v.
Uganda), Counter‑Claims, Order of 29 November
2001, I.C.J. Reports 2001, p 679, paras 38 and
40) ”386
7 19 The following chapters will set out the connection
between the relevant counter-claim and the subject-matter of
Nicaragua’s claims, and show that the counter-claims all meet
San Juan River (Nicaragua v. Costa Rica), Counter-Claims, Order of 18
April 2013, I.C.J. Reports 2013, p 211-212, para 32
386 Ibid
242
the admissibility test In particular, each of the counter-claims relatesto the same geographic area and time period, deals with the conduct and presence of bothParties in relation to the relevant maritime area, and pursuesthe same legal aimsin terms of assessing the lawfulness of that conduct under customary international law
243
Chapter 8
FIRST AND SECOND COUNTER-CLAIMS:
NICARAGUA’S LACK OF DUE DILIGENCE
WITH RESPECT TO THE MARINE
ENVIRONMENT OF THE SOUTHWESTERN
CARIBBEAN SEA AND THE HABITAT OF THE
RAIZALES
A. Introduction
8 1 As discussed earlier, the Southwestern Caribbean Sea is a
highly fragile environmental area Interdependence is strong,
and the acts of each of the Parties have repercussions upon the
ecological balance of this area and its ecosystems This chapter
will show that Nicaragua has breached its obligation to preserve
and protect the marine environment by engaging in conduct that
harms not only the ecological balance of the area, but also the
habitat of vulnerable communities, particularly the Raizales,
whose livelihood depends on the sea
8 2 Colombia is thus filing two counter-claims in relation to
Nicaragua’s actions (and inactions) The first counter-claim is
based on Nicaragua’s violation of its duty of due diligence to
protect and preserve the marine environment of the
Southwestern Caribbean Sea The second counter-claim is a
logical consequence of the first one, and deals with Nicaragua’s
violation of its duty of due diligence to protect the right of the
inhabitants of the San Andrés Archipelago, in particular the
Raizales, to benefit from a healthy, sound and sustainable
244
environment 8 3 Inpresenting these counter-claims,Colombia will first show that they are directly connected with the subject-matter of Nicaragua’s claims(Section B) Colombia will then set out the facts that underlie the counter-claims (Section C), before turning to the reasons why both counter-claims are fully justified in law (Sections Dand E) B.The Direct Connectionwith the Subject-Matter of Nicaragua’sClaims8 4 There are a number of elements which show that these two counter-claims byColombiaare directly connected with the subject-matter of Nicaragua’s claims and pursue the same legal aims, and are thus admissible under the legal standards discussed in the previous chapter 8 5 With respect to the factual component, Colombia’s counter-claims arise out of the same “factual complex”as Nicaragua’s claims In the first place, the counter-claims concern Nicaragua’s failure to preserve and protect the marine environment, and to exercise due diligence over its flagged vessels and fishermen, in the same geographical areatowhich Nicaragua’s claims about the alleged violations of its sovereign rights and maritime spaces relate This areacomprises parts of the Seaflower Biosphere Reserve and the Seaflower Marine Protected Area, including the maritime area around the Luna Verde bank, which is where most of the “incidents” mentioned
245
by Nicaragua are said to have taken place, and within
Colombia’s Integral Contiguous Zone
8 6 In essence, Colombia’s counter-claims represent the other
side of the coin of Nicaragua’s claims, and are thus of the same
nature Nicaragua asserts that Colombia has violated its
sovereign rights and maritime spaces But these accusations fail
to take into account that Nicaragua has legal obligations with
respect to its own conduct in the same areas – namely, to
preserve and protect the marine environment and exercise due
diligence – and that Colombia too has a number of duties in this
respect At issue, therefore, is the conduct of both Parties within
the relevant maritime area, not just that of Colombia This
attests to the direct connection between the subject-matter of the
claims made by Nicaragua and Colombia’s counter-claims
8 7 Second, Colombia’s counter-claims concern events that
occurred within the same period of time as the “facts” adduced
by Nicaragua As noted in Chapter 7, the relevant period for
assessing the claims and the counter-claims is from the date of
the Court’s Judgment on the merits in Territorial and Maritime
Dispute, namely, 19 November 2012, to the date when the Pact
of Bogotá ceased to be in force for Colombia, namely, 27
November 2013 All of the facts introduced by Colombia in
support of its counter-claims took place within this same time
period as the “facts” relevant to Nicaragua’s claims Again,
there is a direct connection between the claims and the counterclaims
246
8 8 Turning tothe legal considerations, Colombia’s counter-claims are based on the same corpus of law as Nicaragua’s claims –that is, customary international law –and pursue the same legal aims The heart of Nicaragua’s claims rests on a challenge to Colombia’s presence in Nicaragua’s EEZ and the actions of Colombia’s naval vessels and aircraft However,Colombia has shown that it hasa right to be present in those waters, and a right and obligation to monitor and report on destructive fishing and other practices (without forcibly interdicting such activities) The so-called “incidents” of which Nicaragua complains werenot really incidents at all To the extent that Colombia had a presence in the area, itwas largely necessitatedbecause of Nicaragua’s failure to live up to its legal obligation to exercise due diligence over its fishing vesselsto preserve and protect the marine environment, including the natural habitatof the Raizalesand other inhabitants of the Archipelago 8 9 In otherwords,Colombia’s counter-claims are, for theirpart, relying on customary international law rules limiting and conditioning the exercise by Nicaragua of its sovereign rights and jurisdiction in itsmaritime zones While Nicaragua views these rights as virtually unrestricted,each Party is contesting the legality of the conduct of the other in the samemaritime areas The legal aim of theclaims andcounter-claims is thus the same, and the connection between the two is clear By admittingthese two counter-claims, the Court will “achieve a procedural
247
economy whilst enabling [itself] to have an overview of the
respective claims of the parties and to decide them more
consistently” 387
C. The Facts Supporting Colombia’s Counter-claims with
Respect to the Protection of the Environment of the
Southwestern Caribbean Sea and the Habitat of the Raizales
and other Inhabitants of the Archipelago
8 10 This sub-section addresses the facts that underlie
Colombia’s two counter-claims in relation to the environment of
the Southwestern Caribbean Sea and the habitat of the Raizales
and other inhabitants of the Archipelago
8 11 The events that will be discussed are evidence of the
failures of Nicaragua to exercise due diligence with respect to
the marine environment and ecosystems of the Southwestern
Caribbean Sea, and the habitat of the Raizales and other
inhabitants of the Archipelago Noteworthy is the fact that those
events have occurred not only in the waters of Nicaragua’s EEZ,
but also within the territorial sea of Colombia They concern
activities of predatory fishing by Nicaraguan vessels that not
only threaten the marine environment but also endanger the
habitat of the inhabitants of the Archipelago, in particular the
Raizales
387 Application of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Counter-Claims, Order of 17 December 1997, I.C.J. Reports 1997, p 257,
para 30
248
8 12 As indicated, some of the alarming events that support Colombia’s counter-claims have taken place within the territorial sea of Colombia and Joint Regime Area with Jamaica (Section (1)) Others have occurred within the area of the Seaflower Biosphere Reserve and theSeaflowerMarine Protected Area (Section (2)) (1)ACTIVITIES OF PREDATORY FISHING IN THE TERRITORIAL SEA OF COLOMBIAAND JOINT REGIME AREA8 13 During the period from 19 November 2012 until 27 November 2013, three incidents occurred within Colombia’s territorial sea and Joint Regime Area with Jamaica as shown in Figure 8.1and described below 8 14 On 13 January 2013, the Colombian patrol aircraft A R C “802” observed the presence of two vessels flying the Nicaraguan flag fishing illegally in Colombian waters, in the territorial sea of Serranilla, namely the “Charlie Junior IV”388and the “Capt Alex II” 389The Colombian aircraft performed a VHF communication callto the vessels, but received no answer 8 15 On 28 April 2013,the Colombian helicopter A R C “202",during air patrols in the area of Bajo Nuevo and Bajo Alicia, reported the presence of the Nicaraguan fishing vessel 388Latitude 15º49 0N; Longitude 80º 00 3W (Territorial Sea of the Colombian Island of Serranilla) See Annex 30:Colombian Navy, Communication No 0080, 16 Jan 2013 389Latitude 15º50 0N; Longitude 80º 01 0W (Territorial Sea of the Colombian Island of Serranilla) See Ibid
249
“Al John”,390 together with three speedboats and about 20 canoe
type boats (cayucos), fishing with divers Radio calls were made
via VHF channel 16 without any response Upon noticing the
presence of the helicopter, the Nicaraguan vessel picked up the
boats and other craft and left the area It is worth noting that the
activities of the “Al John” are well-known to Nicaragua, which
mentions the vessel in its Memorial 391
8 16 Also, on 28 April 2013, the Colombian Air Unit A R C
“202” reported to the A R C “Caldas” that it had observed the
presence in the area of Bajo Alicia, in the Joint Regime Area
with Jamaica, of the Nicaraguan fishing vessel “Papa D”,
anchored with about 25 accompanying canoe type boats
(cayucos) and carrying out unauthorized fishing activities with
divers After several calls by the Colombian Naval unit, the
Capitan of the “Papa D” explained that he was in Colombian
waters by accident, due to engine failure Subsequently, the
Colombian authorities proceeded to board and inspect the
fishing vessel at Lat 16º04 5N, Long 79º21 4W Approximately
200 pounds of illegally caught Queen Conch were found
Moreover, upon checking, it appeared that the crew did not
correspond to eight members as said by the captain, but eleven,
and the number of fishermen was not fifty but seventy-two The
vessel was therefore detained for the illegal exploitation of
Colombian resources and contraventions to Merchant Marine
390 Latitude 15º59 3N; Longitude 79º51 8W (Bajo Alicia in the
Colombia and Jamaica Joint Regime Area) See Annex 59: Colombian Navy,
Communication No 070824, 7 Jun 2014; Annex 95: Photos, Event “Al John”
28 Apr 2014
391 Memorial of Nicaragua, para 2 36
250
standards The motor vessel and its crew were transferred to San Andrés for further proceedings 392392Annex 34: Colombian Navy, Communication No 0877, 30 Apr 2013; Annex 96: Photos, Event “Papa D” 28 Apr 2014 CaribbeanSeaPACIFICOCEANSan Andrés I.LittleCorn I.GreatCorn I.Santa Catalina I.QuitasueñoCayProvidencia I.Roncador CayESE CaysAlburquerqueSerranaCayBajo Nuevo CaySerranilla CayMiskitosCaysCOSTA RICAJAMAICACUBACOLOMBIANICARAGUAHONDURASPANAMA10°N15°N20°N10°N15°N20°N75°W 80°W 75°W 80°W Seaflower BiosphereReserveJOINTREGIMEAREA(Colombia / Jamaica)Costa RicaPanamaColombiaPanamaColombiaNicaraguaNicaraguaColombiaCol.Col.HonNicJamaicaColombiaCCayman Islands (U.K.)HondurasBABoundary from the2012 ICJ JudgmentSeaflower MPAFigure 8.10150200100500100200300Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping400PREDATORY FISHING ACTIVITESOF NICARAGUA WITHIN THETERRITORIAL SEA OF COLOMBIAAND THE JOINT REGIME AREASee insetfor detail80°W 16°N Serranilla's 12 M limit provided for inthe 1993 Colombia/Jamaica agreement1323121 - Nicaraguan fishing vessel Charlie Junior IV Nicaraguan fishing vessel Captain Alex II 2 - Nicaraguan fishing vessel Al John 28 April 20133 - Nicaraguan fishing vessel Papa D 28 April 2013Predatory Fishing Activities of Nicaragua within theTerritorial Sea of Colombia and the Joint Regime Area13 January 2013
251
(2) ACTIVITIES OF PREDATORY FISHING IN THE SEAFLOWER
BIOSPHERE RESERVE AND SEAFLOWER MARINE PROTECTED
AREA
8 17 During the period from the 2012 Judgment until 27
November 2013, further incidents occurred Fourteen examples
of such activities involving Nicaraguan fishing vessels will be
presented below These events mainly occurred in the Luna
Verde area, which is situated in part of the Seaflower Biosphere
Reserve declared by UNESCO and the Seaflower Marine
Protected Area as depicted in Figures 2.2 and 2.3 Many of
these incidents infringed international law in multiple ways,
including by use of predatory fishing practices such as
fishermen fishing with divers and scuba tanks, overfishing, and
overcrowded fishing vessels, which imperil the health and lives
of the people on board The said incidents are described below
and are depicted in Figure 8.2
8 18 The first series of incidents involved the Nicaraguan ship
“Pescasa 35” This vessel was spotted no less than twice in
seven months carrying out predatory fishing practices It should
be noted that the captain of the ship repeatedly claimed, as a
justification, that he was duly authorized to carry out such
conduct by the Nicaraguan Government The facts as described
in the Colombian Navy Reports are the following:
(1) On 9 May 2013, the Colombian A R C “Caldas”
detected the Nicaraguan fishing vessel “Pescasa 35”,
together with two motorboats O/B with four crew
252
members on each, and 18 canoe type boats(cayucos)with two crew members in each of them, fishing Queen Conch withdivers in the Seaflower Biosphere Reserve and Seaflower Marine Protected Area 393The A R C “Caldas” invited them to suspend this type of fishing Subsequently, the A R C “Caldas” lodged a protest before the Port of San Andrés;(2)On 5 October 2013, during anormalnaval patrol, the A R C “Caldas” observed the same Nicaraguan fishing vessel “Pescasa 35”394, with 78 personson board(which was far in excess of the number of people it was licensed to carry, making the conditions on the vesselinhumane) and 5 canoe type boats(cayucos), again carrying out fishing activities with divers The A R C “Caldas”informed the fishing vessel once again by VHF that she was conducting illegal fishing activities in the natural reserve of Seaflower,which is protected by UNESCO This time the captain of the “Pescasa 35” answered that he was authorized by the Nicaraguan government to perform this very activity, and statedthat he would continue doing so 393Latitude14º47 6N; Longitude 81º57 6W (Seaflower Biosphere Reserve and Seaflower Marine Protected Area) See Annex 58:Commander of A R C Caldas, ProtestAttestation No 027, 9 May 2014;Annex 97:Photos, Event “Pescasa 35” 9 May 2013; Annex 98:Video, Event “Pescasa 35”,9 May 2013 394Latitude 14º46 2N; Longitude 81º45 6W (Seaflower Biosphere Reserve and Seaflower Marine Protected Area) See Annex43:Colombian Navy, Communication No 678, 5 Oct 2013; Annex 107:Photos Event “Pescasa 35”,5 Oct 2013
253
8 19 A second series of incidents reported during the relevant
period concerns the Nicaragua vessel “Miss Sofia” According
to the records of the Colombian Navy:
(1) On 4 July 2013, the Colombian maritime patrol aircraft
A R C “801” detected the “Miss Sofia” during a routine
flight survey The vessel was at Latitude 14°50’3”N,
Longitude 81º45’0”W, in the Seaflower Biosphere
Reserve and Seaflower Marine Protected Area, with
auxiliary boats conducting predatory fishing operations
with divers;395
(2) Again, on 4 September 2013, the “Miss Sofia” was
reported by the same patrol aircraft and the A R C “San
Andrés” in the Luna Verde bank396 illegally fishing
lobster with divers;
(3) On 17 November 2013, the Colombian Frigate A R C
“Almirante Padilla” found two Nicaraguan fishermen
drifting in a canoe type boat (cayuco) equipped with four
scuba tanks and one regulator, clearly for illegal fishing,
395 Annex 39: Colombian Navy, Communication No 1693, 21 Aug
2013; Annex 99: Video, Event “Miss Sofia”, 4 July 2013
396 Latitude 14º56 1N; Longitude 81º50 0W (Seaflower Biosphere
Reserve and Seaflower Marine Protected Area) See Annex 40: Colombian
Navy, Chief of Naval Operations Summary Report, 24 Aug 2013 and 4 Sep
2013; Annex 41: Colombian Navy, Communication No 427, 13 Sep 2013;
Annex 105: Photo, Event “Miss Sofía”, 4 Sep 2013
254
and without any maritime safety equipment 397It was the frigate’sduty to rescue them Since the fishermen stated to be fishing with the Nicaraguan flagged vessel “Miss Sofia”, the Colombian Navy then tried to contact the said vessel several times, with no success The Colombian Navy had therefore, with the assistance of the NicaraguanNaval Force, no other solution than to look for another vesselto which the two fishermencould be delivered Finally, on 18 November 2013 they were rendered to another Nicaraguan fishing vessel, the “Caribean Star” Noteworthy is the factthat Nicaragua fully endorsedthe activities of the “Miss Sofia” by presenting in its Memorial the event of November 2013 in an erroneous manner, claiming that it wasColombia, not the “Miss Sofia”, which acted wrongfully 3988 20 The repeated actionsof the Nicaraguan vessel “Capt Charly” constitute a third series of incidents that occurred between 19November 2012 and 27 November 2013 What emergesfrom the Navy reports is as follows:(1)On 23 July 2013, the Colombian ship A R C “Caldas” and the helicopter A R C “203”detected the Nicaraguan 397Latitude 14º45 6N; Longitude 81º46 6W (Seaflower Biosphere Reserve and Seaflower Marine Protected Area) See Annex 53: Colombian Navy, Communication No 304, 20 Nov 2013; Annex 52:Attestationof Good Treatment of the Crew, 17 Nov 2013; Annex 112: Video, Event “Miss Sofía”, 17 Nov 2013; Annex 111: Photos, Event “Miss Sofia”, 17 Nov 2013 398Memorial of Nicaragua, para 2 30
255
fishing vessel “Capt Charly” undertaking predatory
fishing with divers, using four canoe type boats
(cayucos), in the Luna Verde bank 399 During overflights
performed by the A R C “203”, communication via VHF
Channel 16 was established The captain of the
Nicaraguan vessel threatened that “if the units of the
Navy again fly over, the crew would proceed to shoot
toward the helicopter” The A R C “Caldas” invited it to
suspend his illegal fishing Yet later, the Colombian ship
detected the Nicaraguan flagged fishing vessel
performing tasks of predatory fishing with divers again
It renewed its invitation to refrain from this type of
fishing However, no response was received The
Colombian Captain subsequently lodged a protest before
the Port of San Andrés underlying the inadmissibility of
this practice due to the permanent ban on fishing this
species in the Seaflower Marine Protected Area;
(2) One month later, on 24 August 2013, the same fishing
vessel was located by the patrol aircraft A R C “801” at
Latitude 014º51”2’N, Longitude 081º43”1’W, in the
Seaflower Biosphere Reserve and Seaflower Marine
Protected Area, once more fishing lobster with divers 400
399 Latitude 14º30”1’N; Longitude 81º58”1’ (Seaflower Biosphere
Reserve and Seaflower Marine Protected Area) See Annex 36: Colombian
Navy, Chief of Naval Operations Summary Report, 23 Jul 2013 [Note: Due
to a typing error the name of the fishing vessel appears in the Report as
“Capt Charlie” instead of “Capt Charly”]
400 See Annex 40: Colombian Navy, Chief of Naval Operations
Summary Report, 24 Aug 2013 and 4 Sep 2013; Annex 41: Colombian
256
8 21 Seven other incidents have been reported during the relevant period, involving the Nicaraguan vessels “Doña Emilia”, “Lady Dee III”, “Diego Armando”, “Marco Polo”, “Capt Maddox”, “Miss Joela”, “Al John” As reportedby the Colombian Navy:(1)On 3 August 2013, the Nicaraguan fishing vessel “Doña Emilia” was spotted by the Colombian patrol Aircraft A R C “801” in the Luna Verde area,401together with canoe type boats(cayucos), illegally fishing with divers and scuba tanks;(2)On 24 August 2013, the Nicaraguan fishing vessel “Lady Dee III” was observedby the same Colombian patrol aircraft while it was fishing lobsters with divers in the Luna Verde area;402Navy, Communication No 427, 13 Sep 2013; Annex 104: Video, Event“Capt Charly”, 24 Aug 2013 401Latitude 14º48 4N; Longitude 81º53 5W (Seaflower Biosphere Reserve and Seaflower Marine Protected Area) See Annex 37:Colombian Navy, Communication No 375, 6 Aug 2013; Annex 101:Video, Event “Doña Emilia”, 3 Aug 2013; Annex 100:Photos Event, “Doña Emilia”, 3 Aug 2013 402Latitude 14º 53”2’N; Longitude 81º39”5’W (Seaflower Biosphere Reserve and Seaflower Marine Protected Area) See Annex 40: Colombian Navy, Chief of Naval Operations SummaryReport, 24 Aug 2013 and 4 Sep 2013; Annex 41:Colombian Navy, Communication No 427, 13 Sep 2013; Annex 103:Video, Event “Lady Dee III”, 24 Aug 2013
257
(3) On 5 October 2013, the Colombian A R C “Caldas”
noticed in the Luna Verde area403 that the Nicaraguan
fishing vessel “Diego Armando G”, with 72 persons on
board, was conducting predatory fishing operations with
divers, six canoe type boats (cayucos) carrying on board
four crew and one compressor, and one motorboat The
Colombian ship established contact via VHF, to inform
the fishing vessel that she was conducting illegal fishing
activities in the natural protected area of the Seaflower
Biosphere Reserve The Captain of the “Diego Armando
G” answered that he was authorized to perform this
activity by the Nicaraguan Government, and said he would
continue this activity under authorization of his
Government;
(4) On 9 October 2013, the Colombian ship A R C “20 de
Julio” reported that in the Luna Verde bank404 the
Nicaraguan fishing vessel “Marco Polo”, with
approximately 45 persons on board, together with a
fiberglass boat of 26 feet and a 75HP engine, and 12 canoe
type boats (cayucos) with three crewmembers in each, was
performing predatory fishing operations with divers The
Nicaraguan vessel established communication by VHF
403 Latitude 14º50”6’ N; Longitude 81º42”6’W (Seaflower Biosphere
Reserve and Seaflower Marine Protected Area) See Annex 42: Colombian
Navy, Communication No 677, 5 Oct 2013; Annex 106: Photo, Event
“Diego Armando G ”, 5 Oct 2013
404 Latitude 14º47”0’N; Longitude 81º46”0’W (Seaflower Biosphere
Reserve and Seaflower Marine Protected Area) See Annex 45: Colombian
Navy, Communication No 059, 16 Oct 2013; Annex 108: Photo, Event
“Marco Polo”, 9 Oct 2013
258
channel 16 with the A R C “20 de Julio”, calling uponthe unit to stay away because her fishermen were fishing with divers;(5)On 23 October 2013, the Colombian unit A R C “Independiente” observed in the Luna Verde bank405that the Nicaraguan fishing vessel “Capt Maddox” was carrying out predatoryfishing activities with divers; (6)The same day, the Nicaraguan fishing vessel “Miss Joela” was also reported by the A R C “Independiente” carrying out similaractivities in the same area;406(7)On 26 November 2013, the Colombian A R C “Almirante Padilla” detected in the area of Luna Verde407that the Nicaraguan fishing vessel “Al John”, overcrowded and with scuba tanks and other diving gear on deck, was carrying out illegal fishing activities The A R C called the vessel viaVHF Channel 16 in order to inform itthat she was conducting predatoryfishing activities in a protected area, but the vessel did not answer 405Latitude14º54 0N; Longitude 81º41 3W (Seaflower Biosphere Reserve and Seaflower Marine Protected Area) See Annex 48:Colombian Navy, Communication No 202, 29 Oct 2013; Annex109:Photos, Event “Capt Maddox”, 23 Oct 2013 406Latitude 14º52”0’N; Longitude 81º41”0’W (Seaflower Biosphere Reserve and Seaflower Marine Protected Area) See Annex 47:Colombian Navy, Communication No 201, 29 Oct 2013; Annex 110:Photos, Event “Miss Joela”, 23 Oct 2013 407Latitude 14º33”0’N; Longitude 81º54”6’W (Seaflower BiosphereReserve and Seaflower Marine Protected Area) See Annex 55:Colombian Navy, Communication No 2572, 12 Dec 2013; Annex 54:Colombian Navy, Chief of Naval Operations SummaryReport, 26 Nov 2013
259
8 22 The events presented above are only a selection of the
destructive and illegal behaviour of a number of Nicaraguan
vessels following the 2012 Judgment This pattern is still
ongoing Far from decreasing, its intensity has remained
unchanged, if not increased since the critical date Nicaragua’s
international responsibility is engaged for having failed to
exercise due diligence to control and prevent predatory activities
of Nicaraguan fishing vessels that threaten the marine
environment of the Southwestern Caribbean Sea as well as the
habitat of the Raizales and other inhabitants of the Archipelago
8 23 What is characteristic of the events discussed above is that
they involve a number of more or less the same Nicaraguan
vessels acting repeatedly under the protection of the Nicaraguan
flag Nicaragua was not only fully aware of these activities, but
also consistently declined, and continues to decline, to intervene
in order to halt the destructive practices of its fishing vessels
This has been taken by Nicaraguan fishermen as an
authorization to continue to carry on their practices, not only
during the relevant period, but also after 27 November 2013 as
the responses from the Nicaraguan vessels mentioned above
show
260
CaribbeanSeaPACIFICOCEANSan Andrés I.LittleCorn I.GreatCorn I.Santa Catalina I.QuitasueñoCayProvidencia I.Roncador CayESE CaysAlburquerqueSerranaCayBajo Nuevo CaySerranilla CayMiskitosCaysCOSTA RICAPANAMAJAMAICACUBACOLOMBIANICARAGUAHONDURAS10°N15°N20°N10°N15°N20°N75°W 80°W 75°W 80°W Seaflower MPAJOINTREGIMEAREA(Colombia / Jamaica)Costa RicaPanamaColombiaPanamaColombiaPanamaColombiaNicaraguaNicaraguaColombiaCol.Col.HonNicJamaicaColombiaCCayman Islands (U.K.)HondurasBA 1 - Nicaraguan fishing vessel Pescasa 35 2 - Nicaraguan fishing vessel Miss Sofia 3 - Nicaraguan fishing vessel Capitán Charlie 4 - Nicaraguan fishing vessel Doña Emilia 5a - Nicaraguan fishing vessel Capitán Charlie 5b - Nicaraguan fishing vessel Lady Dee III 5c - Nicaraguan fishing vessel Miss Sofia 6 - Nicaraguan fishing vessel Pescasa 35 7 - Nicaraguan fishing vessel Diego Armando G 8 - Nicaraguan fishing vessel Marco Polo 9 - Nicaraguan fishing vessel Capt. Maddox 10 - Nicaraguan fishing vessel Miss Joela 11 - Nicaraguan fishing vessel Miss Sofia12 - Nicaraguan fishing vessel Al JohnPredatory Fishing Activities of Nicaraguawithin the Seaflower Reserve9 May 20134 July 201323 July 201324 August 20134 September 20133 August 201324 August 20135 October 20135 October 20139 October 201317 November 201323 October 201323 October 201326 November 20130150200100500100200300Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping400EXAMPLES OF PREDATORY FISHINGBY NICARAGUAN-FLAGGEDFISHING VESSELSBoundary from the2012 ICJ JudgmentSeaflower BiosphereReserveFigure 8.242126, 8,115a, 5b, 7, 9, 10315c
261
8 24 The most illustrative case in this respect is the grave
incident of February 2016, depicted in Figure 8.3, during which
not less than four Nicaraguan flagged vessels, including the
well-known “Miss Sofía”, “Doña Emilia”, “Capitán Charlie”,
and the “Lady Prem”, were found in Colombia’s territorial sea
near Serrana, carrying out IUU fishing After noticing the
presence of the Colombian Navy, these vessels immediately left
the area, leaving behind 73 fishermen, and abandoning 34 boats,
152 scuba tanks, 24 masks, 34 harnesses for scuba tanks, 26
pairs of fins, 30 diving regulators, 69 knives, 31 hammers, 35
hooks for fishing and 100 kilos of Queen Conch 408 While the
Court does not have jurisdiction to rule on a post-critical date
event like this, Nicaragua’s continued failure to live up to its
obligations is striking.
408 See Annex 60: Colombian Navy, Communication No
20160042230059101, 9 Feb 2016; Annex 26: Note Verbale No S-DISTD-
16-013262 from the Ministry of Foreign Affairs of Colombia to the Embassy
of Nicaragua in Bogotá, 10 February 2016; Annex 27: Note Verbale No
MRE/VM-AJ/0079/02/16 from the Ministry of Foreign Affairs of Nicaragua
to the Ministry of Foreign Affairs of Colombia, 11 February 2016; Annex
112: Photos, Event “Doña Emilia”, “Lady Prem”, “Miss Sofia” and “Capitán
Charlie”, 8 Feb 2013 [Note: Due to a typing error the name of the fishing
vessel appears in the Report as “Capt Charlie” instead of “Capt Charly”]
262
CaribbeanSeaPACIFICOCEANSan Andrés I.LittleCorn I.QuitasueñoCayProvidencia I.Roncador CayESE CaysSerranaCayBajo Nuevo CayCOSTA RICAJAMAICACUBACOLOMBIANICARAGUAPANAMA10°N15°N20°N10°N15°N75°W 80°W Seaflower BiosphereReserveBajo CayBajo CayAREA(Colombia / Jamaica)Costa RicaPanamaColombiaPanamaColombiaNicaraguaJamaicaColombiaCayman Islands (U.K.)HondurasABoundary from the2012 ICJ JudgmentSeaflower MPASan San Providencia CayRoncador CaysESE CaysAREA(Jamaica)(ColombiaNicaraguaNicaraguaSerranaCayBoundary theSeaflower MPAFigure 8.3JAMAICA20°N20°NCUBA1CUBASerrana’s 12 M TSSee insetfor detailQuitasueñoCaySerranaCaySee insetSee detailfor detail1 - Nicaraguan fishing vessels: 8 February 2016 Miss Sofia, Doña Emilia, Capitán Charlie, Lady PremPredatory Fishing Activities of Nicaraguawithin the Territorial Sea of Colombia80°W 80°Cayman HondurasA0150200100500100200300Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping400EXAMPLE OF PREDATORY FISHING ACTIVITIESOF NICARAGUA WITHIN THE TERRITORIAL SEAOF COLOMBIA AFTER THE CRITICAL DATE
263
8 25 All these events confirm the well-founded nature of
Colombia’s two counter-claims They are concrete evidence of
Nicaragua’s failures under customary international law to
preserve and protect the environment and to exercise due
diligence
8 26 In the sections that follow, Colombia will address first, the
failures upon which the first counter-claim is based – that is,
Nicaragua’s violation of its duty of due diligence to protect and
preserve the marine environment of the Southwestern Caribbean
Sea – and secondly, the failures upon which Colombia’s second
counter-claim is based – that is, Nicaragua’s violation of its duty
of due diligence to prevent infringements of the right of the
inhabitants of the San Andrés Archipelago, in particular the
Raizales, to benefit from a healthy, sound and sustainable
habitat within the Southwestern Caribbean Sea
D. Nicaragua’s Violation of its Duty of Due Diligence to
Protect and Preserve the Marine Environment of the
Southwestern Caribbean Sea
8 27 Two particular violations of customary international law
by Nicaragua may be identified here The first violation
concerns Nicaragua’s failure to prevent Illegal, Unreported and
Unauthorized (IUU) fishing within the relevant maritime zones
of the Southwestern Caribbean Sea (Section 1) The second
violation relates to Nicaragua’s failure to comply with the duty
of due diligence to prevent pollution of the Southwestern
Caribbean Sea (Section 2)
264
(1)NICARAGUA’SFAILURE TO PREVENT ILLEGAL,UNREPORTED AND UNAUTHORIZED (IUU)FISHING8 28 Fishinghashistorically played a major role in theSouthwestern CaribbeanSea Fullyaware of this, Caribbean States have adopted numerous measures for ensuring the sustainable management of fishing resources, and particularly of endangered species The most harvested species in the maritimearea appertaining to Colombia and Nicaragua, more specifically in the Luna Verde/ Capebank, and around Quitasueño and Serrana, are the Queen Conchand the Caribbean Spiny Lobster 8 29 The Queen Conch is listed under Appendix II of the CITESConvention, to which both Colombia and Nicaragua are parties Appendix II lists species that are not necessarily now threatened with extinction,but that may become so unlessexploitationis closely controlled For this reason, only the Conference of the Parties to the Convention can decide uponthe removal of a species that is listed under Annex II Queen Conch fishing has also received increased attention at the regional level 409409One important step has been the Declaration of Panama City, which was adopted by the Working Group on Queen Conch of the Caribbean Fisheries Management Council (CFMC), the Organization for the Fisheries and Aquaculture Sector of the Central American Isthmus (OSPESCA), the Western Central Atlantic Fishery Commission (WECAFC) and the Caribbean Regional Fisheries Mechanism (CRFM) See: Declaration of Panama City, CFMC/OSPESCA/WECAFC/CRFM Working Groupon Queen Conch, Panama City, 23-25 October 2012, Available at:ftp://ftp fao org/FI/DOCUMENT/news/QCWG/Declaration_QCWG_Eng_adopted pdf (Last visited: 10 Nov 2016);WECAFC members, including Colombia and Nicaragua, have further adopted a Regional Queen Conch
265
8 30 The Caribbean Spiny Lobster, for its part, is recognized as
a species that could rapidly become endangered 410 Even though
Fisheries Management and Conservation Plan, including recommendations as
to the adoption of stricter regulations on autonomous diving techniques, and
regional cooperation in coordinated patrolling “as many countries of the
region lack the resources to enforce their maritime space” See: M C Prada,
R S Appeldoorn, Draft Regional Queen Conch Fisheries management and
Conservation Plan, CFMC/WECAFC/OSPESCA/CRFM/CITES, June 2015,
p 8, Available at:
http://www fao org/fi/staticmedia/
MeetingDocuments/WECAFC16/Ref20e pdf (Last visited: 10 Nov
2016); Support for the Regional Plan has recently been reiterated by the
Sixteenth WECAFC Meeting, Guadeloupe, 20-24 June 2016 See: Western
Central Atlantic Fishery Commission (2016) Recommendation
WECAFC/15/2014/3 On the Regional Plan for the Management and
Conservation of Queen Conch in the WECAFC Area, 2016 Available at:
http://www wecafc org/en/documents/category/17-
recommendations html?download=76:wecafc-15-2014-3 (Last visited 10
Nov 2016) and, Western Central Atlantic Fishery Commission,
Recommendation WECAFC/16/2016/1, On the Regional Plan for the
Management and Conservation of Queen Conch in the WECAFC Area –
addendum to Recommendation WECAFC/15/2014/3 p 1-2 Available at:
http://www fao org/3/a-bo087e pdf (Last visited: 10 Nov 2016) These efforts
were endorsed at the universal level at the Sixteenth meeting of the
Conference of the Parties (COP) to CITES, in COP Decision 16 141 to
16 146 See: Sixteenth meeting of the Conference of the Parties, Decision
16 141-16 146, Regional cooperation on the management of and trade in the
Queen Conch (Strombus gigas) pp 33-34 Available at:
https://www cites org/sites/default/files/eng/dec/valid16/E16-Dec pdf (Last
visited 10 Nov 2016)
410 Several FAO Reports have long voiced concern that Spiny Lobster
is being fully or overexploited throughout much of its range It is noteworthy
that already back in 2006, at the Fifth Regional Workshop on the Assessment
and Management of Caribbean Spiny Lobster (Mérida, Yucatán, Mexico, 19-
29 September 2006), Nicaragua was listed among the States whose national
populations of Spiny Lobster is overexploited See: FAO Fisheries Report
No 826 FIE/R826 (Bi), Fifth Regional Workshop on the Assessment and
Management of Caribbean Spiny Lobster, Mérida, Yucatán, Mexico, 19-29
September 2006, Available at:
ftp://ftp fao org/docrep/fao/010/a1518b/a1518b00 pdf (Last visited 10 Nov
2016)
See also: FAO Fisheries Report No 788 SLAC/R788 (Tri), Report of the
Twelfth Session of the Commission and of the Ninth Session of the
Committee for the Development and Management of Fisheries in the Lesser
Antilles, Port of Spain, Trinidad and Tobago, 25 - 28 October 2005
Available at:
266
Nicaragua is not party to the SPAW Protocolto the Cartagena Convention,Spiny Lobster is listed in Annex III of this protocol Several other measures have been adopted forthe sustainable management of Spiny Lobster fishing in the regional context of the Caribbean For example, the Organization for the Fisheries and Aquaculture Sector of the Central American Isthmus (OSPESCA), to which Nicaragua is a member, adopted Regulation OSP-02-09in 2009 411This regulation provides for a total ban on catching through diving, the starting period ofwhich has been left undefined 8 31 Despiteregional efforts toprotect the Queen Conch and the Caribbean Spiny Lobster, Nicaragua has shown nowillingness topreservethose vulnerable fishing resources For instance, according to the 2014 Regional Queen Conch Fisheries Management and Conservation Plan, 1 650Nicaraguan fishermen are engaged in fishing Queen Conch, working in up to70canoe typeboats (cayucos)and 22industrial vessels With such an “army” ofovercrowdedfishing vessels, Nicaragua is the http://www fao org/3/a-a0285t pdf (Last visited 10 Nov2016) and, FAO Fisheries and Aquaculture Report SLC/FIPS/SLM/R1095 (Bi), Report of the First Meeting of the OSPESCA/WECAFC/CRFM/CFMC Working Group on Caribbean Spiny Lobster, Panama City, Panama, 21 –23 October 2014 Available at:http://www fao org/3/a-i4860b pdf (Last visited10Nov 2016)411Annex 84: Central American Integration System,Regional Unit for the Fisheries and Aquaculture, RegulationsOSP-02-09 on Regional Management of Caribbean Lobster Fisheries (Panulirus argus), 21 May 2009, Art 13 Support for RegulationOSP-02-09 was also expressed by the Sixteenth WECAFC Meeting (Guadeloupe, 20-24 June 2016) See: Western Central Atlantic Fishery Commission (2016),Recommendation WECAFC/16/2016/2 on Spiny Lobster management and conservation in the WECAFC area, p 3-5 Available at:http://www fao org/3/a-bo087e pdf (Last visited: 10 Nov 2016)
267
second most important producer of the species, with 640 metric
tons in 2013 Up to 90 percent of this production is exported,
resulting in an annual income in 2013 of some 9 million US
dollars 412
8 32 Nicaragua has also indulged in this pattern of overexploitation
after the critical date in this case For the years 2015
and 2016, the Nicaraguan Institute of Fisheries and Aquaculture
(INPESCA) adopted Executive Resolutions PA-No 001-2015 of
6 January 2015 and PA-No 001-2016 of 4 January 2016, that
fix an export quota of 589,670 kg, which corresponds to three
million nine hundred thousand (3,900,000) specimens of Queen
Conch Additionally, this legislation provides an additional
quota for the extraction of Queen Conch aimed for scientific
research of 45,359 kg, equivalent to 45 36 metric tons 413 This
shows that the pre-critical date events on which Colombia’s
counter-claims are based were not isolated occurrences
8 33 Nicaragua has also been involved in predatory heavy
Spiny Lobster fishing by means of diving In 2007, with the
enactment of Law No 613, Nicaragua formally banned
commercial fishing of all species through diving, both in the
412 M C Prada, R S Appeldoorn, Draft Regional Queen Conch
Fisheries management and Conservation Plan,
CFMC/WECAFC/OSPESCA/CRFM/CITES, June 2015, p 23 Available at:
http://www fao org/fi/staticmedia/
MeetingDocuments/WECAFC16/Ref20e pdf (Last visited 10 Nov
2016)
413 Annex 14: Nicaraguan Institute for Fishing and Aquaculture –
INPESCA, Executive Resolution PA-No 001-2015 and Annex 15:
Nicaraguan Institute for Fishing and Aquaculture – INPESCA, Executive
Resolution PA-No 001-2016
268
Caribbean Sea and the Pacific Ocean The ban, as established by Article 16, was tobecome enforceable threeyears after the enactment of the Law, i e by 2010 However,this time-limit was twice extended, first byLaw No 753 of 2011and then byLaw No 836 of 2013, the latterestablishing26 March 2016as the starting date forthe prohibition Astonishingly,yet another legislative measure enacted subsequently by Nicaragua’s National Assembly in 2016 (Law No 923 of that year)eventuallyremoved altogether aspecificdatefor the enforcement of the provision 414In other words, Nicaragua hassimply continued to carryout its policy of exploiting Spiny Lobster fishingby means of diving Nothing could better attest tothis intention than the fact that,as reported by the OSPESCA/WECAFC/CRFM/CFMC Working Group on Caribbean Spiny Lobster:“Nicaragua have total allowable catches (TACs) for Caribbean spiny lobster, and Nicaragua suspended them in 2012 after gaining territorial rights over a disputed area in the Atlantic allowing the country to expand its fishing zone ”415414Annex 10: National Assembly of the Republic of Nicaragua, Law No 613 of 7 February 2007,on the Protection and Safety of Persons Dedicated to the Activity of Diving; Annex 11: National Assembly ofthe Republic of Nicaragua, Law No 753 of 22 February 2011,on the Protection and Safety of Persons Dedicated to theActivity ofDiving; Annex 12: National Assembly of the Republic of Nicaragua, Law No 836 of 13 March 2013, Amending and Adding Law No 613 of 2007; Annex 16: National Assembly of the Republic of Nicaragua, Law No 923 of 1 March 2016,AmendingArticle 16 of Law No 613 of 2007 415FAO Fisheries and Aquaculture Report SLC/FIPS/SLM/R1095 (Bi), Report of the First Meeting of the OSPESCA/WECAFC/CRFM/CFMC Working Group on Caribbean Spiny Lobster, Panama City, Panama, 21 –23 October 2014, p 6, para 32 Available at:http://www fao org/3/a-i4860b pdf (Lastvisited10Nov 2016)
269
8 34 This conduct speaks volumes as to how Nicaragua
interprets the 2012 Judgment: namely, as a license to engage in
predatory fishing practices that harm the marine environment
and exhaust fishing resources under the extraordinary pretext
that, prior to that decision, Colombia had “depriv[ed] Nicaragua
of its rights to benefit from the full enjoyment of its rich fishing
areas ”416 In short, Nicaragua explicitly suggests that it wants
“the full enjoyment of its rich fishing areas” without any need to
observe its corresponding customary international law
obligations
8 35 Nothing could be more at odds with the spirit of regional
efforts taken in the Caribbean context to conserve the natural
resources of the area The failure of Nicaragua to adopt
appropriate legislative and administrative measures for the
protection of the living resources of the Southwestern Caribbean
Sea itself constitutes a violation of the duty to exercise due
diligence with respect to the protection and preservation of the
marine environment However, it is not this aspect that
Colombia wishes to stress in the context of the present subsection
What is even more serious is Nicaragua’s failure to
prevent or control IUU fishing within the Southwestern
Caribbean Sea This failure is in clear violation of customary
international law with respect to the conservation of living
resources As noted by ITLOS, “[T]he conservation of the living
resources of the sea is an element in the protection and
416 Memorial of Nicaragua, para 2 22
270
preservation of the marine environment” 417And to recall whatthe Court said in the Pulp Mills case, due diligence not only comprises adopting appropriate rules and measures, it requires “a certain level of vigilance in their enforcement and the exercise of administrative control” 4188 36 As shownby the events described above, Nicaragua not only has failed to prevent itsfishermen and vesselsfrom engaging in illegal fishingactivities;its policy has been tojustifythese activities under the pretextthat it is Colombia, not Nicaragua, that actswrongfully In its Memorial, on the basis of a systematically erroneous presentation of the facts, Nicaragua claims that “Colombia has regularly harassed Nicaraguan fishermen in Nicaraguan waters, particularly in the rich fishing ground known as ‘Luna Verde’” 419Quite apart from the fact that it has been Nicaragua that has harassed the fishermen of the Archipelago in accessing and exploiting their traditional fishing grounds,420with respect to a number of“incidents” on which Nicaragua relies,Colombia did nothing more than inform Nicaraguan fishermen that they were acting illegally Yet, Nicaragua nowclaimsthat it is Colombia, not the Nicaraguan fishing vessels, that have acted illegally 421This is totally disingenuous What is clear is that, by adopting such a posture,417Southern Bluefin Tuna (New Zealand v. Japan; Australia v Japan), Provisional Measures, Order of 27 August 1999, para 70 418Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010,pp 79-80, para 197 419Memorial of Nicaragua, para 2 28 420See paras 9 18-9 23 infra 421Memorial of Nicaragua, paras 2 30, 2 32, 2 36 and 2 37
271
Nicaragua has demonstrated its full support for and endorsement
of the predatory activities mentioned above
8 37 These activities squarely qualify as IUU fishing under
universally accepted definitions 422 There is no need to expound
on the obligation that Nicaragua had towards Colombia for the
events of IUU fishing that occurred within the territorial sea of
422 See the International Plan of Action to Prevent, Deter and Eliminate
Illegal, Unreported and Unregulated Fishing (IPOA-IUU) (Available at:
ftp://ftp fao org/docrep/fao/012/y1224e/y1224e00 pdf Last visited 10 Nov
2016), endorsed by the 120th Session of the FAO Council on 2 June 2001 as
well as by WECAFC countries in the Castries Declaration on Illegal,
Unreported and Unregulated Fishing of 28 July 2010 It defines IUU fishing
as follows:
“3 1 Illegal fishing refers to activities:
[…]
3 1 2 Conducted by vessels flying the flag of States that are
parties to a relevant regional fisheries management
organization but operate in contravention of the conservation
and management measures adopted by that organization and
by which the States are bound, or relevant provisions of the
applicable international law; or
3 1 3 In violation of national laws or international
obligations, including those undertaken by cooperating States
to a relevant regional fisheries management organization
3 2 Unreported fishing refers to fishing activities:
[…]
3.2.2 Undertaken in the area of competence of a relevant
regional fisheries management organization which have not
been reported or have been misreported, in contravention of
the reporting procedures of that organization
3 3 Unregulated fishing refers to fishing activities:
[…]
3.3.2 In areas or for fish stocks in relation to which there are
no applicable conservation or management measures and
where such fishing activities are conducted in a manner
inconsistent with State responsibilities for the conservation of
living marine resources under international law
272
Colombia. It is clear that, insofar as Nicaragua failed to take action with respect to these events promptly decried by Colombian authorities, Nicaragua is responsible for having violated its customary law obligation notto tolerate illicit activities within a maritime zone falling under Colombia’ssovereignty 8 38 Nicaragua’s responsibilityis also engaged for the events that have occurred within areas of the Seaflower Biosphere Reserve and the Seaflower Marine Protected Area, notwithstanding that parts of theseareas are situated within Nicaragua’s exclusive economic zone For instance, under the FAO Code of Conduct on Sustainable Fishing, which Nicaragua has fully endorsed both unilaterally andjointly with other Caribbean States, all States have a duty to ensure that “only fishing operations allowed by them are conducted within waters under their jurisdiction and that these operations are carried out in a responsible manner” 423It follows that Nicaragua has to abide by its obligationregarding IUU fishingregardless of where the events have occurred,whether in its own or in another State’smaritime zones The obligations contained in Articles 8 1 1 and 8 1 5 of the FAO Code of Conduct refer to “All States” 8 39 Nicaragua hasitself recognized the obligations incumbent on it in this respect For example, Nicaragua endorsedthe efforts 423FAO, Code of Conduct for Responsible Fisheries,Rome,1995 Available at: http://www fao org/3/a-v9878e pdf (Lastvisited10Nov 2016)
273
against IUU fishing that Caribbean States have adopted in the
context of the Western Central Atlantic Fishery Commission
(WECAFC) Consistent with customary international law, the
2010 Castries Declaration on Illegal, Unreported and
Unregulated Fishing recognizes the primary responsibility of the
flag State for taking “measures to ensure that nationals do not
support or engage in IUU fishing” 424 This commitment, which
WECAFC members have undertaken towards one another,
extends to the entire area under the sovereignty or jurisdiction of
a WECAFC member Insofar as both Nicaragua and Colombia
are members of WECAFC, Nicaragua has a specific duty of due
diligence to prevent IUU fishing in addition to its customary
international law obligation
8 40 Finally, it is necessary to recall once more the special
character of the area in question The Seaflower area is both a
Biosphere Reserve under the MAB program and a Marine
Protected Area under the SPAW Protocol According to Article
10 of the Cartagena Convention: “The Contracting Parties shall,
individually or jointly, take all appropriate measures to protect
and preserve rare or fragile ecosystems, as well as the habitat of
depleted, threatened or endangered species, in the Convention
area To this end, the Contracting Parties shall endeavour to
establish protected areas The establishment of such areas shall
424 Organisation of Eastern Caribbean States (OECS) Secretariat,
Castries Declaration on Illegal, Unreported and Unregulated Fishing, 2nd
Special Meeting of the CRFM Ministerial Council, Castries, St Lucia, 28 July
2010 Available at:
ftp://ftp fao org/FI/DOCUMENT/wecafc/15thsess/ref11e pdf (Last visited 10
Nov 2016)
274
not affect the rights ofother Contracting Parties and third States In addition, the Contracting Parties shall exchange information concerning the administration and management of such areas ”8 41 The Seaflower Marine Protected Area implements the object and purpose of Article 10 of the Cartagena Convention As party to the latter convention, Nicaragua hastherefore a general duty to refrain from acting in a way that foreseeably underminesthe purposes sought by Article 10 By failing to prevent IUU fishing in the Convention area,Nicaragua failed to abide by this obligation, which is again one of good faith and due diligence It is true thatArticle 10 states thatthe establishment of a protected area by a party to the Convention shall not “affect the rights of other Contracting Parties” It would, however, fly in the face of basic principles of good faith and reasonableness to interpret these rights of other contracting parties as including the right to tolerate IUUfishingwithinthe protected area established by another party based on the provisions ofthe Cartagena Convention Given that the Seaflower Biosphere Reserve is also recognized in the context of UNESCO and the MAB Program,this strengthens the customary duty of due diligence incumbent upon Nicaragua (2)NICARAGUA’S FAILURE TO PREVENT POLLUTION OF THE SOUTHWESTERN CARIBBEANSEA8 42 In addition to its failure to prevent IUUfishing, Nicaragua has failed to exercise due diligence to prevent pollution of the Southwestern CaribbeanSea,as reflected in the Cartagena
275
Convention and under “applicable international rules and
standards”425
8 43 The Cartagena Convention provides in its Articles 5 and 6
that:
“Article 5 Pollution from ships
The Contracting Parties shall take all appropriate
measures to prevent, reduce and control pollution
of the Convention area caused by discharges from
ships and, for this purpose, to ensure the effective
implementation of the applicable international
rules and standards established by the competent
international organization
Article 6 Pollution caused by dumping
The Contracting Parties shall take all appropriate
measures to prevent, reduce and control pollution
of the Convention area caused by dumping of
wastes and other matter at sea from ships, aircraft
or manmade structures at sea, and to ensure the
effective implementation of the applicable
international rules and standards ”426
8 44 However, Nicaragua has not made any efforts to prevent,
reduce or control pollution in the area The events of 16
December 2012, depicted in Figure 8.4, concerning the
Nicaraguan fishing vessel “Lady Dee I”, in particular, infringed
customary international law and Articles 5 and 6 of the
Cartagena Convention During the inspection of the “Lady Dee
425 Annex 17: Cartagena Convention, Article 5
426 Annex 17: Cartagena Convention, Articles 5 and 6; Pollution from
ships and pollution caused by dumping is also addressed in the MARPOL
Convention and Annexes thereto, to which both Nicaragua and Colombia are
parties
276
I”, officials of Colombia’s Navy noted that its crew had plundered the vesselbefore abandoning it, leaving only waste and approximately 3 000 gallons of oily residues, which Colombia’s officials had to remove in order to avoid further environmental damage Colombia raised this incident through available diplomatic means 427427 Latitude 15°28 1N, Longitude 80°15 4W (Territorial Sea of the Colombian island of Serrana) See Annex 29:Colombian Navy, Communication No 101, 22 Dec 2012; Annex 28: Colombian Navy, Communication No 2175, 17 Dec 2012;Annex 22: Note Verbale No E-16 from the Embassy of Colombia in Managua to the Ministry of Foreign Affairs of Nicaragua, 14 January 2013; Annex 23: Note VerbaleNo MRE/SCPE/014/01/13 from the Ministry of Foreign Affairs of Nicaragua to the Embassy of Colombia in Managua, 14 January 2013; Annex 24:Note Verbale No MRE/DGAJ//0014//13 from the Embassy of Colombia in Managua to the Ministry of Foreign Affairs of Nicaragua, 17 January 2013
277
Caribbean
Sea
PA C I F I C
OCEAN
San Andrés I.
Little
Corn I.
Great
Corn I.
Santa Catalina I.
Quitasueño
Cay
Providencia I.
Roncador Cay
ESE Cays
Alburquerque
Serrana
Cay
Serranilla Cay Bajo Nuevo Cay
Miskitos
Cays
COSTA
RICA
JAMAICA
CUBA
COLOMBIA
NICARAGUA
HONDURAS
PANAMA
10°N
15°N
20°N
10°N
15°N
20°N
80°W 75°W
80°W 75°W
Seaflower Biosphere
Seaflower MPA Reserve
JOINT
REGIME
AREA
(Colombia / Jamaica)
Costa Rica
Panama
Colombia
Nicaragua
Nicaragua
Colombia
Col.
Col.
Hon
Nic
Jamaica
Colombia
C
Cayman Islands (U.K.)
Honduras
B
A
1
1 - Nicaraguan fishing vessel Lady Dee I ran aground
16 December 2012
Harmful Activities to the Marine
Environment
0 50 100 150 200
0 100 200 300
Nautical Miles
Kilometers
Mercator Projection
Datum: WGS-84
(Scale accurate at 14°N)
Prepared by: International Mapping
400
NICARAGUA’S HARMFUL ACTIVITIES
TO THE MARINE ENVIRONMENT IN THE
TERRITORIAL SEA OF COLOMBIA
Boundary from the
2012 ICJ Judgment
Colombia
Panama
Figure 8.4
Serrana’s 12 M TS
See inset
for detail
1
278
8 45 The failures by Nicaragua to prevent IUU fishing and pollution of the maritime zones of theSouthwestern CaribbeanSea pose important threats to the habitat of depleted, threatened or endangered fishing species and other forms of marine life They also pose threatsto the habitatof the Raizales and other inhabitants of the Archipelago It is to this latter threat that the next section turns E.Nicaragua’s Violation of its Duty of Due Diligence ToProtect the Right of the Inhabitants of the ArchipelagoToBenefit from a Healthy, Sound and Sustainable Habitat8 46 The protection of the marine environment of the Southwestern CaribbeanSea is also crucial for the preservation of the environment of the Archipelago asthe habitat of the Raizales The eventsdiscussed abovehave endangered the habitat of the Raizales and other inhabitants of the Archipelago This forms an independent breach of Nicaragua’s obligations towards Colombia 8 47 Nicaragua has failed to exercise due diligence under customary international law to “prevent harmful fishing activities and harvesting of vulnerable species”(Section (1)),and has failed to exercise due diligence to prevent the degradation of the marine habitatof the Raizales (Section (2)) 8 48 These wrongful actsare different from those identifiedunder the first counter-claim,where what was at stake was Nicaragua’s violation of its duty of due diligence to protect and
279
preserve the marine environment of the Southwestern Caribbean
Sea Nicaragua’s failures identified under the second counterclaim
have instead a direct negative impact on the communities,
that is the Raizales and the other inhabitants of the Archipelago,
in so far as they threaten the right of these peoples to benefit
from a healthy, sound and sustainable habitat Nicaragua’s
failure to prevent harmful fishing activities has negative
consequences on the local population by impairing their access
to fishing resources, which are essential to their livelihood and
health,428 “living space” 429 and “quality of life” 430
(1) NICARAGUA’S FAILURE TO EXERCISE DUE DILIGENCE TO
PREVENT HARMFUL FISHING PRACTICES
8 49 Nicaragua has failed to prevent harmful fishing activities
in Colombia’s territorial waters, as well as in the Seaflower
Biosphere Reserve and Marine Protected Area, by allowing the
use of destructive fishing methods, including overfishing and
fishing with divers and scuba tanks. The uncontrolled use of
these materials will inexorably lead to the rapid exhaustion of
the resources essential for the well-being and habitat of the
428 Legality of the Threat or Use of Nuclear Weapons Case, Advisory
Opinion, I.C.J. Reports 1996 (I), pp 241-242, para 29; Gabčíkovo-
Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p
41 para 53
429 Legality of the Threat or Use of Nuclear Weapons Case, Advisory
Opinion, I.C.J. Reports 1996 (I), p 241-242, para 29; Gabčíkovo-
Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p
41 para 53
430 Legality of the Threat or Use of Nuclear Weapons Case, Advisory
Opinion, I.C.J. Reports 1996 (I), p 241-242, para 29; Gabčíkovo-
Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p
41 para 53
280
Raizales and the other inhabitants of the Archipelago 8 50 As explained in Chapter 2, the Seaflower Biosphere Reserve and the Marine Protected Area are crucial to the protection of the habitat and well-being of the Raizales Harmful fishing activities in this protected areaare prohibitedby Colombia It is the duty of Nicaragua to ensure that its vessels also respect these prohibitions Nicaragua’sresponsibility stems from it being the flag State or licensor of the vesselsthat have been involved in the events described earlier in this chapter 8 51 It has been proven that Nicaraguan fishing vessels have engaged in repeatedharmful fishing activities, without any kind of effective control being exercised by Nicaragua During the relevant period, numerousevents constituting excessive and harmful fishing practices occurred, mainly in the Luna Verde area All these involvedNicaraguan fishing vesselsusing divers and scuba tanks in disregard for the obligation to protect and preserve the marine environment 8 52 The protection of the habitatofthe Raizalindigenous peoples, which includes their traditional fishing grounds,stems from the need to ensure the continuity of their use of the area’snatural resources, which in turn allows them to maintain their way of life This connection has aptly been stressed by Inter-American Court of Human Rights in the Sarayakucase, which found that “the right to use and enjoy the territory would be meaningless for indigenous and tribal communities if that right
281
were not connected to the protection of natural resources in the
territory ”431
8 53 As was shown in Chapter 2, the Raizales are heavily
dependent on their ancestral fishing activities Insofar as
Nicaragua has failed to prevent the predatory fishing activities
carried out by Nicaraguan fishing vessels in the traditional
fishing grounds of the Raizales, it has also failed to exercise due
diligence in preserving their habitat
(2) NICARAGUA’S FAILURE TO EXERCISE DUE DILIGENCE TO
PREVENT THE DEGRADATION OF THE MARINE HABITAT OF THE
RAIZALES AND OTHER INHABITANTS OF THE ARCHIPELAGO
8 54 Nicaragua’s approach contravenes international law and
the need to adopt a preventive and anticipatory approach to the
protection of the marine habitat of vulnerable communities
Nicaragua considers that it is enough that President Ortega
addressed President Santos’ stated concern about the
preservation of the Seaflower Marine Biosphere Reserve, which
is an essential element of the Raizales’ habitat 432 For example,
Nicaragua limits itself to stating that “(o)n 5 December 2012,
President Ortega promised that Nicaragua would protect the
areas of the original Seaflower Reserve, now located in
Nicaragua’s exclusive economic zone, as it would the rest of the
areas that are now recognized as being part of the Nicaraguan
431 I/A Court H R , Case of the Kichwa Inigenous Peolple of Sarayaku
v. Ecuador, Judgment (Merits and Reparations) 27 June 2012, pp 36-37,
paras 146-147
432 Memorial of Nicaragua, para 2 57
282
maritime areas” 4338 55 Nicaragua has acknowledgedthe need to protect the biodiversity reservoir that constitutes the Seaflower Biosphere Reserve;yet thus far, its promises have been no more than empty words Compliance with international law is not dependent on mere promises;inparticular, where a fragile marine habitat is at stake, international law requires proactive action and notconscientious neglect and feinted ignorance 8 56 The attitudeof Nicaragua within international fora relevant for the protection of the Seaflower Biosphere Reserve shows a lack of due diligence regarding the need to prevent degradation of the marine habitat of the Raizales 8 57 Atits 26thMeeting of 10-14 June 2014, for instance, the International Coordination Council (ICC) of the Man and BiosphereProgramme (MAB) encouraged both Nicaragua and Colombia to continue their dialogue to address issues relating to the Seaflower Biosphere Reserve 434It is noteworthy that both the Advisory Committee and the ICC stressed the need for both Parties to cooperatein ensuring that any change in the status of the Seaflower Reserve would not entail a lowered level of 433Memorial of Nicaragua, para 2 57 434International Co-ordinating Council of the Man and the Biosphere (MAB) Programme, Twenty-sixth session (10-14 June 2014, Paris), Final Report, Document SC-14/CONF 226/15, p 85 Available at:http://www unesco org/new/fileadmin/MULTIMEDIA/HQ/SC/pdf/SC14-CONF-226-15-MAB-ICC_Final_Report_en_8-7-2014 pdf(Last visitedNov 2016)
283
environmental protection in the area
8 58 Nicaragua, however, progressively disengaged from
playing an active role in ensuring the Raizales’ continued
enjoyment of a healthy, sound and sustainable habitat
Particularly telling is Nicaragua’s conduct concerning the status
of the Seaflower Biosphere Reserve This issue was the object of
discussion in the MAB’s Advisory Committee’s meeting, held
from 14 to 20 March 2014 435 On that occasion, Nicaragua
conceded that it had no information about the area that would
enable it to establish protective measures and ensure the area’s
sustainable use, thereby threatening the sustainability of the
Raizales’ habitat Nicaragua also noted that it had not taken any
decision as to whether it would even maintain the Reserve as
part of the MAB Programme
8 59 Nicaragua has, therefore, failed to demonstrate its
commitment to maintain the current level of protection of the
Reserve and, by logical consequence, the sustainability of the
marine habitat of the Raizales and other inhabitants of the
Archipelago As of 2014, Nicaragua had not participated in
discussions within the International Co-ordinating Council
(ICC) of the MAB Programme This continued negligence
435 International Co-ordinating Council of the Man and the Biosphere
(MAB) Programme, Twenty-sixth session, Item 16 of the provisional agenda:
Information on Seaflower Biosphere Reserve case, Document SC-
14/CONF 226/14 Available at:
http://www unesco org/new/fileadmin/MULTIMEDIA/HQ/SC/pdf/SC-14-
CONF-226-14-Information_on_Seaflower-eng-rev pdf (Last visited 10 Nov
2016)
284
confirms that Nicaragua is not taking any positive steps as required under customary international law to exercise due diligence to preventthe degradation of the marine habitat of the inhabitants of the Archipelago 8 60 Colombiaacknowledges that each biosphere reserve remains within an area under the sovereign rightsof the State or States where it is situated 436The ICC, however, has an important role in ensuring the maintenance of an adequate level of protection for a given area This is even more sowhen, as in the present case, a State other than the one having established theBiosphere Reserve acquires sovereign rights,as well asduties,over part of such an area Participation in the ICC is therefore crucial to assess the conduct of a State and its willingness to abide by its obligation to protect themarine environment and thehuman habitat of communities dependent on an area as fragile as the Seaflower Biosphere Reserve The attitude of Nicaragua showsnowillingness to abide by its duty of due diligence in the protection of the Seaflower Biosphere Reserveor, consequently,the marine habitat of the Raizales and other inhabitants of the San Andrés Archipelago 8 61 Suchan attitude is contrary to customary international law The Court has beenclear in linking the “general obligation 436In a press release dated 30 August 2013, the Colombia Ministry of Foreign Affairs declared that the “SeaflowerBiosphereReserve, [was] registered in UNESCO’sMan and the Biosphere Programme, by means of a sovereign act of Colombia and is subject to national legislation Therefore, it would not be in the field of competence of UNESCO to determine the management program for such Reserve” (Annex 1)
285
to ensure that activities under their control or jurisdiction respect
the environment of other States”437 to the right of human beings
(i.e., the Raizales and other inhabitants of the Archipelago) to
benefit from a sustainable environment (or a habitat) that allows
them to enjoy “living space… quality of life [and] health” 438
F. Conclusion
8 62 For all of the above reasons, Colombia’s two counterclaims
relating to Nicaragua’s violation of its obligation to
preserve and protect the marine environment and the habitat of
the Raizal population and other inhabitants of the San Andrés
Archipelago, and to exercise due diligence in this regard, are
fully substantiated, both factually and in law
8 63 Colombia requests the Court to declare these violations
and to adjudge that Nicaragua is to desist promptly from them
and to give Colombia guarantees of non-repetition The Court is
also requested to order Nicaragua to compensate Colombia for
the material harm it has suffered as a result of Nicaragua’s
violations This compensation should cover any financially
assessable damage including loss of profits, and its form and
amount is to be determined at a later phase of the proceedings,
437 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment,
I.C.J. Reports 2010, p 78, para 193; Legality of the Threat or Use of
Nuclear Weapons Case, Advisory Opinion, I.C.J. Reports 1996 (I), p 241-
242, para 29
438 Legality of the Threat or Use of Nuclear Weapons Case, Advisory
Opinion, I.C.J. Reports 1996 (I), p 241-242, para 29; Gabčíkovo-
Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p
41, para 53
286
following established practice
287
Chapter 9
THIRD COUNTER-CLAIM: NICARAGUA’S
INFRINGEMENTS OF THE ARTISANAL
FISHING RIGHT TO ACCESS AND EXPLOIT
THE TRADITIONAL BANKS
A. Introduction
9 1 As mentioned in Chapter 3,439 section D above, both
Parties have repeatedly recognized the importance of protecting
the traditional fishing rights of the inhabitants of the
Archipelago Nevertheless, as early as February 2013, the
President of Colombia was informed of incidents between the
Nicaraguan Naval Force and the artisanal fishermen of the
Archipelago As the President of Colombia stated during the
Governors summit in San Andrés of 18 February 2013:
“I have heard that some people have complained
that there have been problems with certain
Nicaraguan authorities, which threaten them, or
they say they have to ask permission to be able to
fish here […]
On this point, I will say the following so that it will
be absolutely and totally clear: I have given
peremptory and precise instructions to the Navy;
the historical fishing rights of fishermen will be
made respected, whatever happens Nobody will
have to ask permission from anybody to go fishing
where they had been fishing before
This type of incident should not occur again, and
the Navy indeed will increase its presence or the
439 Chapter 3, Sec D, paras 3 58, 3 86, 3 87 supra
288
number of vessels that it has, so that no such incident will occur again ”4409 2The Presidents of Colombia andNicaragua, already at the end of 2012 during the meeting in Mexico City, had undertakenconstructive discussions as to the importance of recognizing and protecting the rights of the artisanal fishermen of the Archipelago At that time, President Ortega was aware of this problem,as the following statement makes clear:“Another preoccupationof [President] Santos isthe future of the Raizales fishermen, the community inhabitants of the San Andrés Archipelago It is reasonable that hebe worried about the future of the fishermen; because there are fishermen out there who have manifested their fear to sail because now Nicaragua is already displaying its Naval Forces But the Nicaraguan Naval Forces are instructed not to detain any fisherman ” 4419 3In the same vein, in response to the above-mentioned statement of the President of Colombia, President Ortega again stated that the artisanal fishermen of the Archipelago will be allowed to “fish freely”in Nicaragua’s maritime zones until a mechanism, distinct from the one that generally applies to industrial fishermen –which requires obtaining a permit from INPESCA –, is put in place 442In his statement, President Ortega asked General Avilés not to request any document from 440Preliminary Objections of Colombia, Annex 10, p 113 441Annex 75: Radio La Primerísima, Nicaragua exercises peaceful sovereignty over its waters, 5 Dec 2012 442Annex 76: Radio la Primerísima, Powerful interests want a confrontation with Colombia, 21 Feb 2013
289
the artisanal fishermen of the Archipelago since the special
mechanism, which would, in particular, set a list of the artisanal
fishermen and their boats, had yet to be established 443 General
Avilés, as well as the other authorities that were being addressed
by President Ortega, were told not to interfere with the artisanal
fishing activities of the inhabitants of the Archipelago 444
9 4 The foregoing notwithstanding, Colombia is compelled to
raise a counter-claim for infringements of the recognized
customary artisanal fishing rights of the inhabitants of the
Archipelago that are directly attributable to Nicaragua For
while it is true that President Ortega has been on many
occasions supportive of the rights of the inhabitants of the
Archipelago, those rights have been continuously violated by
Nicaragua by reason of the conduct of its Naval Force
9 5 After addressing below the direct-connection requirement
under Article 80 of the Rules of Court, Colombia will
demonstrate that Nicaragua’s Naval Force has been following an
active strategy of intimidation towards the artisanal fishermen of
the Archipelago By threats and pillaging, the Naval Force of
Nicaragua has basically rendered the assurances of President
Ortega meaningless In contrast with the situation of the
Nicaraguan fishermen, who continue to fish in the relevant areas
despite the so-called “incidents” referred to by the Applicant,
most of the artisanal fishermen of the Archipelago have stopped
443 Annex 76: Radio la Primerísima, Powerful interests want a
confrontation with Colombia, 21 Feb 2013
444 Ibid
290
going to the traditional banks located in the maritime zones ruled to appertain toNicaragua, as well as the fishing grounds which, although located in Colombia’s maritime zones, require crossing those of Nicaragua B.The Direct Connection with the Subject-Matter of Nicaragua’s Claims9 6The counter-claim relating to Nicaragua’s infringements of the customary artisanal fishing right to access and exploit the traditional banks is based on events that occurred in the aftermath of the 2012 Judgment in the maritime zones that were found to appertain to Nicaragua –such as Cape Bank and its extension East of the 82°West Meridian known as Luna Verde. There is in fact an obvious temporal and geographic overlapping between Nicaragua’s claims and Colombia’s counter-claim inasmuch as the time frame and the relevant geographical area are exactly the same in both instances 9 7As to the nature of the conduct involved, it suffices to say that Colombia’s counter-claim relates to the Nicaraguan Naval Force’sharassment of the artisanal fishermen of the Archipelago Accordingly, there is a parallel between the alleged conduct of the Colombian Navy vis-à-visNicaraguan fishermen and the Nicaraguan Naval Force’streatment of the artisanal fishermen of the Archipelago The only difference is one of degree since, while Nicaragua’s claims against the Colombian Navy can hardly be portrayed as incidents at all, the
291
conduct of the Nicaraguan Naval Force is far more grave, since
it involves coercive measures in the form of seizure of the
artisanal fishermen’s products, fishing gear, food and other
personal property
9 8 With respect to the requirement that the counter-claim be
based on the same legal principles or instruments as the main
claim or pursue the same legal aim, this condition is also met
The applicable law to the dispute brought before the Court in
both instances is customary international law Nicaragua’s
claims concern customary rules relating to the coastal State’s
rights to exploit marine resources in its own exclusive economic
zone Colombia’s counter-claim relates to customary rights to
access and exploit marine resources located in that same
maritime zone
9 9 In the present case, the Parties are pursuing the same legal
aims since they are both seeking to establish the international
responsibility of the other by invoking violations of customary
rules relating to the harvesting of fishing resources within the
maritime zones of Nicaragua
9 10 Thus, the legal connection is also fulfilled For the
foregoing reasons, the counter-claim is to be considered
admissible according to Article 80 of the Rules of Court
C. The Intimidating Conduct of the Nicaraguan Naval
Force
292
C.The Intimidating Conduct of the Nicaraguan Naval Force9 11Before addressing the conduct of the Nicaraguan Naval Force, Colombia must point out that, unfortunately, Nicaragua has used these proceedings, as well as those in the case concerning the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast, as an opportunity to deprive the customary artisanal fishing rights of the inhabitants of the Archipelago of any meaning 9 12Thus, the Agent of Nicaragua found appropriate, at the conclusion of his oral pleading in the other pending case, to stress the following: “30. Mr. President, last week Nicaragua observed that during the Territorial and Maritime Dispute case Colombia never advanced any argument regarding the purported ancestral fishing rights of the autochthonous population of San Andrés, the Raizales Let me be clearer, there is not a single reference to the Raizal community in Colombia’s written or oral pleadings in the previous case None Zero 31 Colombia’s attempt to appeal to emotions is not based on the Judgment having caused any prejudice to the few thousand Raizales First of all, allow me also to recall that despite that omission that Colombia now tries to make up for, President Ortega offered to grant artisanal fishing rights to the Raizales in waters that the Judgment recognized as Nicaraguan President Ortega took this decision because the Raizal community shares deep ties with the Nicaraguan Caribbean communities 32 Second, it suffices to note the distances between the islands such as Providencia and the
293
banks and cays to understand that no artisanal boat
can actually reach those points in the north For
example, the closest bank, Quitasueño, is located at
61 nautical miles from the nearest inhabited island
of Providencia Similarly, Roncador and Serrana
are located at 77 and 88 nautical miles
respectively, and Serranilla, being the farthest, is
located at 170 nautical miles from Providencia
[Tab 43 on] On the screen, you can see the
artisanal boats used by the Colombian Raizales
They are not equipped for such distances
Furthermore, all incidents that have been reported
by Nicaragua in the case discussed last week
involved only industrial boats, further confirming
that no artisanal boats reach those distances [Tab
43 off] ”445
9 13 Some telling points can be made in response to this
statement First of all, it is surprising that Nicaragua thought it
convenient to stress that Colombia had not put forward the
argument of the historical fishing rights of the inhabitants of the
Archipelago in the Territorial and Maritime Dispute case The
statement may, thus, be understood as suggesting that
Colombia’s so-called omission demonstrates the implausibility
of these rights But Colombia has already demonstrated that the
existence of traditional fishing rights is to be distinguished from
the question of relevant circumstances justifying the shifting of a
maritime delimitation line The former are often invoked
independently from the drawing of the boundary in order to
allow certain nationals to fish where they have done so
445 Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan
Coast (Nicaragua v Colombia), Public Sitting 9 October 2015, CR 2015/29,
original, p 50, paras 30-32 (Agent) Footnotes omitted
294
customarily 446Accordingly, the Arbitral Tribunal in the second stage of the proceedings between Eritrea and Yemen foundthat the existence of a traditional fishing regime did not depend “upon the drawing of an international boundary” 4479 14After having admitted that the President of Nicaragua had acknowledged the existence of these historical fishing rights in waters that were recognized to appertain to Nicaragua, the Agent of Nicaragua nevertheless asserted that there can in fact be no such rights in the maritime zones adjudicated toNicaragua since the fishermen of the Archipelago do not have the means to reach the locationsin question In other words, the repeated recognition of the existence of traditional fishing rights by the highest authorities of Nicaragua is suddenly deprived of any useful effect on the grounds that the Raizales of the Archipelago would have to make the distance between, for example, Providencia and Luna Verde, by paddling on a canoe But artisanal fishing in the Southwestern CaribbeanSea is not tantamount to subsistence fishing in the San Juan River 446Award of the Arbitral Tribunal in the second stage of the proceedings (Maritime Delimitation) between Eritrea and Yemen, Decision of 17 Dec 1999, paras 103-112; Article 5(1) of the Agreement between the Government of the Republic of Indonesia and the Government of Papua New Guinea concerning maritime boundaries between the Republic of Indonesia and Papua New Guinea and co-operation on related matters, 1980;Agreement between the Government of Papua New Guinea and the Government of Solomon Islands concerning the administration of the special areas, 1989; Memorandum of Understanding between the Government of Australia and the Government of the Republic of Indonesia regarding the operations of Indonesian traditional fishermen in areas of the Australian exclusive fishing zone and continental shelf, 1974 447Award of the Arbitral Tribunal in the second stage of the proceedings (Maritime Delimitation) between Eritrea and Yemen, Decision of 17 Dec 1999, para 110
295
9 15 In this respect, the finding of the Arbitral Tribunal in the
second stage of the proceedings between Eritrea and Yemen is
revealing:
“… the term ‘artisanal’ is not to be understood as
applying in the future only to a certain type of
fishing exactly as it is practised today ‘Artisanal
fishing’ is used in contrast to ‘industrial fishing’ It
does not exclude improvements in powering the
small boats, in the techniques of navigation,
communication or in techniques of fishing; but the
traditional regime of fishing does not extend to
large-scale commercial or industrial fishing nor to
fishing by nationals of third States …, whether
small-scale or industrial ”448
9 16 As already addressed in Chapter 2,449 the practice
evidenced by the historical documents and affidavits supplied
attests to the fact that the inhabitants of the Archipelago first
relied on schooners, sloops and catboats, and later on lanchas
equipped with outboard or on-board engines, in order to reach
the rich fishing grounds located on Cape Bank on both sides of
the 82° West Meridian, as well as the banks surrounding the
islands of Quitasueño, Serrana, Bajo Nuevo, Serranilla and
Roncador
9 17 Finally, the Agent of Nicaragua referred to the fact that
since all the incidents that have been reported by Nicaragua
448 Award of the Arbitral Tribunal in the second stage of the
proceedings (Maritime Delimitation) between Eritrea and Yemen, Decision
of 17 Dec 1999, para 106
449 Chapter 2, Sec C (2), paras 2 77-2 81 supra
296
concerned industrial vessels, it must follow thatthere are no artisanal fishing boats in the Nicaraguan maritime zones But the explanation for the artisanal fishermen’s reduced presence in the traditional banks located in the maritime zones adjudicated toNicaragua is entirely different 9 18The followingexcerpt from the affidavit by MrJorge De la CruzDe AlbaBarkerwell illustrates the reasons behind the decision of many artisanal fishermen to abandon their ancestral banks:“In these areas we find other fishermen from the Nicaraguan coast, Bluefields and Corn Islands We have no problems with them since we are the same people, we speak the same language. The problem is between Bogotá and Managua Nowadays we cannot go to the North Cays because the decision whether they let us pass through is up to the Nicaraguan coastguard. There is the risk of being taken to the Nicaraguan coastsby the authorities If you go to Quitasueño, the Nicaraguan coastguard will stop you on the way in and ask you whether you are passing through or fishing there This happens when you goto Quitasueño and to Cape Bank. Usually they would stop the fishermen coming from San Andrés that are navigating west of and north of Providencia to reach Cape Bank or Quitasueño Nowadays, after the [Court’s]decision, we cannot circulate in peace in the waters that belong to Nicaragua This happens in the trips between the islands and the North Cays and from cay to cay in the northern zone, especially in the trip out there It is as if I had a house and had to cross through someone else’syard to get to my
297
house If they do not let me cross through their
yard, I cannot get to my house It is common to
have our GPS, VHF radio, cigarettes and food
supplies taken by them. They also strip the boats of
all their equipment of any value Usually, there are
encounters with the coastguards during transit from
the islands towards the North Cays As opposed to
the Colombian Navy that treats the Nicaraguan
fishermen they find in Colombian waters well The
associations and co-operatives receive complaints
of these cases The fishermen feel intimidated since
the Nicaraguan coastguards] have weapons The
problem is with the coastguards but I have no
problems with the fishermen of Nicaragua, they are
my people, my family … With the Nicaraguan
coast, we share the culture, they are very similar to
us and we even have relatives there We have
traditionally shared the sea with the
Nicaraguans ”450
9 19 This statement is confirmed in other affidavits such as the
one by Mr Antonio Alejandro Sjogreen Pablo, who stressed that:
“We cannot go to the North Cays anymore because
on several occasions we have crossed the
Nicaraguan coastguard big lanchas and they stop
us on the way to the fishing banks. They ask for
coffee and food but it is a way to intimidate us
because we cannot say no They have their arms
and board us Because of that plenty of our people
stopped going to Cape Bank and the North Cays.
[…] Since the 2012 decision, the situation of the
artisanal fishermen has worsened because we feel
threatened and with little security when we want to
450 Annex 71
298
go fish in our traditional banks located farther from San Andrés and Providencia But we have to continue to use and take advantage of the North Cays and Cape Bank because they ensure food security on the islands ”4519 20Other artisanal fishermen have raised similar accusations against the Nicaraguan Naval Force, thus highlighting a pattern in the conduct of the Nicaraguan authority 452As a result of the Nicaraguan Naval Force’sconduct, the artisanal fishermen have been forced to give upmany of their traditional banks by modifying their fishing practices For example, Mr Orlando Eduardo Francis Powell stressed in his affidavit that, because of the policy of intimidation pursued by the Nicaraguan Naval Force, he is scared to navigate in Nicaragua’s maritime zones and, therefore, prefers going to Roncador although it is “a small bank compared to Quitasueño, Serrana and Cape Bank”.453Similarly, MrLigorio Luis ArchboldHoward’s affidavit well illustrates the consequences of the Nicaraguan Naval Force’sconduct on the activities of the artisanal fishermen Although he still fishes in the Nicaraguan maritime zones located between, respectively, Providencia and Quitasueño, and Roncador and Serrana, he avoidsthe maritime zones of the Northern banks.“Right now I fish in Nicaragua’s waters north and west of Providencia. But I do that because I know that I am close to home and can come back quickly if there are problems But now I always go with someone else and remain close to Colombia’s 451Annex 72 452Annex 64; Annex 67; Annex 68; Annex 69; Annex 70 453Annex 68
299
waters I do not go all the way to Serrana and
Quitasueño because there are more possibilities of
getting stopped by Nicaraguan fishermen or
coastguard ”454
9 21 In other words, by pillaging and threatening, the
Nicaraguan Naval Force is successfully preventing on a
recurring basis, or at the very least, seriously discouraging, the
artisanal fishermen of the Archipelago from reaching their
traditional banks located in the maritime zones adjudicated to
appertain to Nicaragua and the Northern Banks of Quitasueño,
Serrana, Serranilla and Bajo Nuevo This constitutes a breach of
the recognized customary fishing right, as well as of the
peremptory instructions given by President Ortega to the
Nicaraguan Naval Forces on 21 February 2013
9 22 Additionally, while it is true that most of the artisanal
fishermen of the Archipelago have made reference to the good
relationships between the Raizales and other indigenous
communities, some of them have emphasised that there are
problems with the Nicaraguan industrial fishermen involved in
predatory practices as well as acts of piracy 455 As mentioned in
the affidavit by Mr Landel Hernando Robinson Archbold:
“We are afraid to go to the North cays nowadays I
know that Minival Ward, a member of the cooperative,
was attacked by Nicaraguan fishermen
when going to the North Cays. They took all of his
products as well as his fishing and navigation gear
and most of his gasoline They left him in his 25 ft
454 Annex 65
455 Ibid
300
lancha with barely enough gasoline to come back to Providencia” 4569 23These Nicaraguan fishermen are not part of the indigenous communities of the Southwestern CaribbeanSea The Nicaraguan Naval Forcehas the duty to ensure that the conduct of its private fishermen does not negate the customary artisanal fishing rights of the inhabitants of the Archipelago By tolerating predatory fishing practices and criminal activities in the traditional banks of the artisanal fishermen of the Archipelago, the Nicaraguan Naval Forceis also responsible for the breach of their customary right to access and exploit the traditional banks.D.Conclusion9 24In the light of these circumstances, Colombia submits this counter-claim in order to protect the artisanal fishing rightsto access and exploit the traditional banks, which have been exercised since timeimmemorialby the inhabitants of the San Andrés Archipelago, includingthe RaizalPopulation 9 25By way of this counter-claim Colombia seeks for the Court to rule that Nicaragua is under an obligation to cease and desist from preventing Colombian artisanal fishermen from accessing their traditional fishing grounds, and to fully respect the traditional, historic fishing rights of the Raizales and other 456Annex 62
301
fishermen of the Archipelago to such grounds The Court is also
requested to order Nicaragua to compensate Colombia for the
material harm it has suffered as a result of Nicaragua’s
violations This compensation should cover any financially
assessable damage including loss of profits, and its form and
amount is to be determined at a later phase of the proceedings,
following established practice
302
303
Chapter 10
FOURTH COUNTER-CLAIM: NICARAGUA’S
STRAIGHT BASELINES DECREE, WHICH IS
CONTRARY TO INTERNATIONAL LAW,
VIOLATES COLOMBIA’S SOVEREIGN
RIGHTS AND MARITIME SPACES
A. Introduction
10 1 Colombia hereby counter-claims that Nicaragua, by
adopting Decree No 33-2013 of 19 August 2013, has extended
its internal waters, its territorial sea, its contiguous zone, its EEZ
and its continental shelf, in violation of international law, and, in
so doing, has violated Colombia’s sovereign rights and
jurisdiction 457 Accordingly, Colombia requests the Court to
adjudge and declare that Nicaragua’s Decree is inconsistent with
international law and to order Nicaragua to adjust in order that it
complies with the rules of international law concerning the
drawing of the baselines from which the breadth of the territorial
sea is measured
10 2 In Section B, Colombia will demonstrate that its counterclaim
is admissible under the criteria set out in Article 80,
paragraph 1, of the Rules of Court Section C will then show
that, contrary to Nicaragua’s assertions, its straight baselines are
not justified on the basis of what the Court said in its 2012
Judgment about the baselines from which Nicaragua’s 200
457 Annex 13: Decree No 33-2013, Baselines of the Marine Areas of
the Republic of Nicaragua in the Caribbean Sea, 19 Aug 2013
304
nautical mile limit is to be measured (Sub-section (1))andthestraight baselines do not complywith the customary international law principles governing the drawing of such baselines (Sub-sections(2)and (3)) Section D will then go on to show thatColombia’s rights are infringed by Nicaragua’s claimed straight baselines These infringements relate to the unauthorized and unlawful extensionof Nicaragua’s Internal Waters (Sub-section 1), Territorial Sea (Subsection 2) and Exclusive Economic Zone (Subsection 3) B. The Direct Connection with the Subject-Matter of Nicaragua’s Claims10 3 This section will show that Colombia’s counter-claim is admissible as is directly connected with the subject-matter of Nicaragua’s claims 458Earlier, Colombia reviewed the Court’sjurisprudence concerning this matter 459It recalls thatthecorrect method for addressing the direct connection requirement must begin with a clarification of the factual and legal considerations of Nicaragua’s relevant claim (Sub-section (1)), to be followed by the same clarification with respect to Colombia’s counter-claim (Sub-section (2)) From this exercise, the factual and legal connectionsmay then be examined for their “sufficiency” (Sub-section (3)) 458In Chapter7, Sec B (1) supra,Colombia has demonstrated that the counter-claim comes under the jurisdiction of the Court 459See Chapter 7, Sec B (2) supra
305
(1) FACTUAL AND LEGAL COMPONENTS OF NICARAGUA’S
RELEVANT CLAIM
10 4 As recalled by the Court in its Judgment on the
Preliminary Objections:
“In its Application, Nicaragua indicates that the
subject of the dispute it submits to the Court is as
follows: ‘The dispute concerns the violations of
Nicaragua’s sovereign rights and maritime zones
declared by the Court’s Judgment of 19 November
2012 and the threat of the use of force by Colombia
in order to implement these violations ’”460
10 5 Nicaragua’s contentions also appear in the submissions
concluding its Memorial dated 3 October 2014 as well as in the
body of its Memorial These submissions, to the extent that they
have not been rejected as inadmissible by the Court in its
Judgment of 17 March 2016, contain two distinct claims: a
claim that Colombia’s Navy has violated Nicaragua’s maritime
zones and sovereign rights, and a claim that by adopting a
Decree establishing its Integral Contiguous Zone, Colombia has
violated Nicaragua’s maritime zones and sovereign rights Only
the latter is relevant to the present discussion It appears in
Nicaragua’s submissions as follows:
“2 Nicaragua also requests the Court to adjudge
and declare that Colombia must: … (i) revok[e]
laws and regulations enacted by Colombia, which
are incompatible with the Court’s Judgment of 19
November 2012 including the provisions in the
Decrees 1946 of 9 September 2013 and 1119 of 17
June 2014 to maritime areas which have been
460 Judgment on the Preliminary Objections, p 26, para 53
306
recognized as being under the jurisdiction or sovereign rights of Nicaragua…” 46110 6 Insofar as facts are concerned, this claim refersto Decree 1946 of 2013, as subsequently modified and amended by Decree 1119 of 2014 These facts are characterized as follows:•they have the natureof domestic legal acts fixing the extent of a maritime zone, namely Colombia’s contiguous zone; •Nicaragua contends that they concern locations that are in its maritime zones “as delimited inparagraph251 of the Court Judgment of 19 November 2012”;462•they establish the competences that Colombia will exercise in this zone;•the respective dates of adoption of these decrees are 9 September 2013and 17 June 2014 10 7 The legal considerations on which Nicaragua alleges that these juridicalacts must be declared wrongful are that: 461Memorial of Nicaragua, Submission 2, p 107 462Ibid , Submission1(a), p 107
307
• they are not in conformity with the international
law of the sea rules related to the delimitation of a
coastal State’s maritime zones;
• they violate Nicaragua’s maritime zones “as
delimited by para 251 of the Court’s Judgment of
19 November 2012,” this delimitation having been
fixed up to “the 200-nautical-mile limit from the
baselines from which the breadth of the territorial
sea of Nicaragua is measured,” as mentioned twice
at para 251(4) of the Judgment;
• additionally, Nicaragua contends in its Memorial463
that they violate Nicaragua’s sovereign rights as
established by the customary law of the sea, insofar
as they attribute to Colombia some competences
that fall under Nicaragua’s jurisdiction
10 8 Nicaragua asks the Court to order Colombia to revoke its
Decrees, so that its sovereign rights and jurisdiction and the
maritime zones it claims are fully respected
463 Memorial of Nicaragua, p 66, para 3 25, and p 67, 3 27
308
(2)FACTUAL AND LEGAL COMPONENTSOF COLOMBIA’SFOURTHCOUNTER-CLAIM10 9 OnColombia’s side, the fact of which it complains is Nicaragua’s Decree No 33-2013464 It is characterized as follows:•it has the nature of a domestic legal actfixing Nicaragua’s straight baselines and, consequently, the extent of all Nicaragua’s maritime zones in the Caribbean Sea, including its contiguous zone Indeed, art 1 ofthe Decree clearly states that its object is:“The straight baselines of the Republic of Nicaragua to be used to measure the breadth of its territorial sea, contiguous zone, exclusive economic zone and continental shelf in the Caribbean Sea shall be established ”•it explicitly contends that it is an application of the Court’s findings in its Judgment of 19 November 2012 Indeed, according to recital V in this Decree:“That the International Court of Justice issued a historic judgement on 19 November 2012 regarding the Territorial and Maritime Delimitation between Nicaragua and Colombia in the Caribbean Sea, in which it found that the islands adjacent to the coast of Nicaragua in the Caribbean Sea are part 464Annex 13
309
of the respective coast and contribute to
the establishment of the baselines”
• it is dated 19 August 2013
10 10 The legal considerations upon which Colombia’s
counter-claim relies are that the Nicaraguan Decree:
• is not in conformity with the international law of
the sea related to the delimitation of a coastal
State’s maritime zones, the breadth of which must
be calculated from baselines drawn in conformity
with certain rules;
• extends the limits of Nicaragua’s maritime zones,
including its contiguous zone and its EEZ, beyond
the limits that international law and paragraph 251
of the Court’s Judgment of 19 November 2012
establishes;
• violates Colombia’s EEZ and continental shelf;
• violates Colombia’s rights and jurisdiction by
claiming absolute sovereignty, or sovereignty
subject to innocent passage, in areas where
Nicaragua has no absolute sovereignty, or where
freedom of navigation and overflight are to be
respected
310
10 11 Colombia’s requestis that the Court declares that Nicaragua’sDecreeviolates international law and Colombia’s sovereign rights and maritime spaces (3)THEDIRECT CONNECTION10 12 As can be seen, Nicaragua’s claim and Colombia’s counter-claim both concern conduct affecting their respectivemaritime spaces Because Nicaragua purports to measure all of its maritime spaces by reference to its straight baselines, there is a direct connection with the subject-matter of the claims Both are also from the same time period, and both concern the 2012 Judgment The connection between Nicaragua’s claim and Colombia’s counter-claim is obvious in fact and in law Moreover, their respective legal aims are the same Thus, Colombia’s counter-claim is admissible under Article 80 of the Rules of Court C. Nicaragua’s Claimed Baselines Violate the Customary International Law Principles Governing the Drawing of Straight Baselines10 13 Nicaragua’s August 2013 Decree establishing straight baselines in the Southwestern Caribbeanpurports to be based on the Court’s 2012 Judgment in the Territorial and Maritime Dispute case Colombia will show that this justification finds no basis in the Court’s Judgment (Sub-section (1)), before turning to the customary principles and rules governing the drawing of
311
straight baselines (Sub-section (2)) and how Nicaragua’s
baselines are clearly in breach of those rules (Sub-section (3))
(1) THE COURT’S 2012 JUDGMENT DOES NOT JUSTIFY
NICARAGUA’S STRAIGHT BASELINES
10 14 In its 19 November 2012 Judgment, the Court took note
that Nicaragua had not yet adopted a position regarding the
baselines from which the breadth of its territorial sea or other
maritime zones were to be measured In the Court’s words
“Nicaragua ha[d] not yet notified the Secretary-General of the
location of those baselines under Article 16, paragraph 2, of
UNCLOS” 465
10 15 At paragraph 237 of that Judgment, the Court repeated
that:
“since Nicaragua has yet to notify the baselines
from which its territorial sea is measured, the
precise location of endpoint A cannot be
determined and the location depicted on sketchmap
No 11 is therefore approximate ” 466
Consequently, the Court determined only the approximate
location of endpoints A and B on sketch-map No 11
10 16 Subsequently, on 19 August 2013, Nicaragua adopted a
decree related to the “Baselines of the Marine Areas of the
Republic of Nicaragua in the Caribbean Sea ”467 On 26
465 2012 Judgment, p 683, para 159
466 Ibid., p 713 , para 237
467 Annex 13
312
September 2013, pursuant to Article 16 ofUNCLOS, Nicaragua deposited with the Secretary-General of the United Nations the list of geographical coordinates contained in its Decree No 33-2013 46810 17 The purpose of this decree, as stated in recital VI of the preamble and in Article 1, is not to set “normal” baselines, that is to say baselines which correspond to the low-water line along the coast, but a line composed of eight straight baselinesegments Article 2 of the decree specifies that these straight baselines shall connect a series of nine consecutive geographical coordinates, which,save for the first and last of them, are located on islands or cays in the Caribbean Sea east of the continental coast of Nicaragua Article 3 stipulates that all the waters located between those straight baselines and the Nicaraguanmainland are to be considered interior waters Appendix I of this decree gives the coordinates of ninegeographical points:•the first and ninth points are located on the mainland coast of Nicaragua, respectively at the Cabo Gracias a Dios and at Harbor Head, which are the easternmost extent of the land borders shared with Honduras and Costa Rica;468Annex 90:Circular Communication from the Division for Ocean Affairs and the Law of the Sea –Office of Legal Affairs, No M Z N 99 2013 LOS, 11 Oct 2013
313
• the seven other points are placed on various
features located in the Caribbean Sea, off the coast
of Nicaragua: Edinburg Cay, Miskitos Cays, Ned
Thomas Cay, Man-of-War Cays, East of Great
Tyra Cay, and both Little and Great Corn Islands
(See Figure 10.1)
314
CaribbeanSeaCOSTA RICAPANAMAHONDURASNICARAGUASan Andrés I.Little Corn I.East of GreatTyra CayCayosMan-of-WarGreat Corn I.HarborHeadCaboGraciasa DiosSanta Catalina I.Quitasueño CayProvidencia I.East Southeast CaysAlburquerque CaysSerrana CayRoncador CayGorda I.Cocorocuma Is.Cajones Is.Serranilla CayMiskitosCaysNed ThomasCayEdinburghReefEdinburghCay84°W 82°W 80°W 84°W 82°W 80°W 16°N14°N12°N14°N16°N12°N10°N123456789NICARAGUA’S STRAIGHT BASELINE CLAIMIN THE CARIBBEAN SEA0751005025050100200150Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 12°N)Prepared by: International MappingFigure 10.1
315
10 18 As noted above, the decree purports to be a mere
application of the findings of the Court in its 2012 Judgment,
mentioning, in recital V of its preamble, that “the International
Court of Justice… found that the islands adjacent to the Coast of
Nicaragua in the Caribbean Sea, are part of the relevant
coastline and contribute to the determination of the baselines ”
10 19 The Court did indeed consider at paragraphs 145 and
201 of the 2012 Judgment that a series of Nicaraguan islands
“contribute to the baselines from which Nicaragua’s entitlement
is measured ” This is undoubtedly correct: as islands (i) they
perforce support baselines, and (ii) such baselines necessarily
“contribute” to Nicaragua’s baselines But the Court neither
implied nor decided that these islands necessarily allow
Nicaragua effectively to re-design its entire mainland coast by
establishing straight lines joining the islands
10 20 At paragraph 201 of the 2012 Judgment, the Court said:
“Since [some Nicaraguan] islands are located
further east than the Nicaraguan mainland, they
will contribute all of the base points for the
construction of the provisional median line For
that purpose, the Court will use base points located
on Edinburgh Reef, Muerto Cay, Miskitos Cays,
Ned Thomas Cay, Roca Tyra, Little Corn Island
and Great Corn Island ” 469
10 21 This paragraph says nothing about the appropriateness of
Nicaragua constructing a series of straight baselines Rather, it
469 2012 Judgment, p 699, para 201
316
explains that solely for the construction of the provisional median linebetween Nicaraguaand Colombia, the Court took account of certainislands as base points, because theislands are “located further east than the Nicaraguan mainland” But the fact that base points have been located on Nicaraguan islands says nothing about any Nicaraguanbaselines between these islands;nor can the Judgment be read asablanketauthorization to draw straight baselines 10 22 In a diplomatic note addressed to the Secretary-General of the United Nations, Colombia protested Nicaragua’s decree, stating that the claimed straight baselines are wholly contrary to international law Colombia stressed that these baselines:“do not relate to a coastline that is deeply indented and cut into or to a fringe of islands along the coast; they depart from the general direction of the coastline; and the sea areas lying within the lines are not sufficiently linked to the land domain to be subject to the regime of internal waters ”470Colombia’s protest hasreceived no answer as ofthe date of submission of thisCounter-Memorial 10 23 Colombia thus counter-claims that Nicaragua’s claimed straight baselines are contrary to customary international law and cause direct injury to Colombia 470Annex 25: Diplomatic Note No S-GACIJ-13-044275 from the Minister of Foreign Affairs of Colombia to the Secretary-General of the United Nations, 1 November 2013
317
(2) THE CUSTOMARY NATURE OF THE PRINCIPLES GOVERNING
THE DRAWING OF STRAIGHT BASELINES
10 24 In the 1951 Fisheries case,471 the Court accepted for the
first time that the breadth of the territorial sea could be
determined not from the low-water mark of the mainland of a
coastal State, but rather from the relevant low-water mark of the
islands that border it (known in Norway as the “Skjærgaard”),
and could take the form of straight lines joining appropriate
points located on these islands 472 Since then, the principle
enunciated by the Court – that a coastal State may indeed be
entitled to draw straight baselines, but only under certain
geographical circumstances and in respect of certain rules, has
become well established in international law and practice The
Court held in the Fisheries case that a coastal State can have
recourse to straight baselines, in particular when that coast is
fringed with islands, only if a number of conditions that can be
summed up as follows are met: (i) such lines must be drawn so
that they do not depart to any appreciable extent from the
general direction of the coast; (ii) they must be drawn so that the
sea areas lying within these lines are sufficiently closely linked
to the land domain to be subject to the regime of internal waters;
and (iii) it is legitimate to take into account certain economic
471 Fisheries case, Judgment of December 18th, 1951: I.C.J. Reports
1951, p 116
472 Ibid , pp 131 et seq
318
interests peculiar to a region, the reality andimportance of which are clearly evidenced by a long usage 47310 25 The 1958Convention on the Territorial Sea and the Contiguous Zone drafted only a few years after the FisheriesJudgment incorporated in extensothe rules of the Court on the application of straight baselines Article 4 of that Convention reads:“1 In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured The drawing of such baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the linesmust be sufficiently closely linked to the land domain to be subject to the regime of internal waters ”As noted by some authors:“This provision [article 4, par 1 and 2] followsthe Anglo-Norwegian Fisheriescase almost verbatim ”47410 26 Since 1958, the rules laid out in Article 4 of this Convention have been commonly used in State practice and international cases They were subsequently included in the 473See:R R Churchill & A V Lowe, The Law of the Sea, 3rded ,Manchester University Press, 2010, p 35 Available at Peace Palace Library 474Ibid , pp 37
319
United Nations Convention on the Law of the Sea, Article 7 of
which is taken from Article 4 of the 1958 Convention
10 27 Evidence that these rules were recognized as a general
practice accepted as law is regularly stressed in the doctrine:
“The system [the drawing of straight baselines] is
supported by extensive state practice, the decision
of the ICJ in the Anglo-Norwegian Fisheries case,
and in the continuity given to this regime by the
core provisions of the Contiguous Zone and the
LOSC ”475
Authors also agree that:
“…the method of straight base-lines was accepted
in that early judgment of the International Court
[Anglo-Norwegian Fisheries], and it has, as a
principle, never been drawn into doubt since then
…
Taking these provisions [article 4 of the 1958
Convention on the Territorial and article 7 of the
1982 Convention on the Law of the Sea] together it
seems to be beyond dispute that the straight baselines
rule is firmly established — it can be applied
if the conditions for the system, the existence of a
deeply indented coastline or a fringe of islands
along the coast, are satisfied ”476
10 28 Nicaragua has never protested against this customary
rule; to the contrary, it has signed and ratified the 1982
475 D R Rothwell & T Stephens, The International Law of the Sea,
Hart Publishing, Oxford/Portland, 2010, Section 2 “Coastal Waters”, pp 43
et seq Available at Peace Palace Library
476 R Bernhardt, “Custom and treaty in the law of the sea”, Collected
courses of the Hague Academy of International Law, Vol 205, Brill/Nijhoff,
Leiden/Boston, 1987, pp 287-288 Available at Peace Palace Library
320
Convention without submitting any reservation as tothe content of Articles 5, 7 or 16 In the written pleadings inthe Territorial and Maritime Dispute case, Nicaragua acknowledged the customary nature of the rules governing the drawing of maritime baselines by a coastal State Thus, at paragraph114 of the 2012 Judgment, the Court observed that:“…The Parties further agree that the relevant provisions of UNCLOS concerning the baselines of a coastal State … reflect customary international law ”10 29 Nicaraguais therefore bound to comply with the customary international rules on the drawing of baselines, including straight baselines (3)NICARAGUA’SBASELINES ARE IN BREACH OF CUSTOMARY INTERNATIONALLAWPRINCIPLES10 30 The customary principles governing straight baselines and their implementation ina specific coastline are reflected in Article 7 of UNCLOS They may be summed up as follows:•The use of straight baselines is an exception to the general principle set out in Article 5, according to which, the “normal baseline” for measuring the breadth of the territorial sea is the “low-water line along the coast” Indeed, as emphasized by the Court:
321
“the method of straight baselines,
which is an exception to the normal
rules for the determination of baselines,
may only be applied if a number of
conditions are met This method must
be applied restrictively ”477
The conditions in order for such exception to be
implemented are stated in the first paragraph of
Article 7 as follows:
“In localities where the coastline is
deeply indented and cut into, or if there
is a fringe of islands along the coast in
its immediate vicinity, the method of
straight baselines joining appropriate
points may be employed in drawing the
baseline from which the breadth of the
territorial sea is measured ”
• When applicable, the drawing of straight baselines
shall respect the “general direction of the coast” and
shall only enclose stretches of sea that are
“sufficiently closely linked to the land domain to be
subject to the regime of internal water”
10 31 These two cumulative guidelines, reflected in paragraphs
1 and 3 of Article 7, read together with Article 5 of UNCLOS,
indicate (a) the two alternative geographical circumstances that
permit recourse to straight baselines, and (b) how these straight
baselines may be drawn when permitted
477 Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, Merits, Judgment, I.C.J. Reports 2001, p 103, para 212
322
10 32 As Colombia will show, Nicaragua’s geographical situation is ineligible for recourse to straight baselines(Sub-section(a)), and Nicaragua’s claimed baselines do not satisfythe legal requirements(Sub-section(b)) (a) Geographical Circumstances Permitting Recourse to Straight Baselines Are Not Met10 33 In the Virginia Commentarieson the 1982 Convention on the Law of the Sea, the section dedicated to Article 7 explains the circumstances in which recourse to straight baselines is allowedas follows:“7 9(b) Paragraph 1 lays down two specified geographical circumstances which permit the employment of the method of straight baselines for determining the baselines One is where the coastline is "deeply indented and cut into"; the other is where "there is a fringe of islands along the coast in its immediate vicinity " The first phrase is taken, without change, from the judgment of the International Court of Justice in the Fisheriescase, which referred to a coast such as that of Eastern Finnmark in Norway. The second expression, a slightly modified version of the one used by the Court in the same judgment covers the case where a number of islands of various size are spread out near the shore so as to form a continuous fringe along the coast ”47810 34 The preamble of Nicaraguan Decree No 33-2013 asserts that Nicaragua’sgeographical situation corresponds to both hypotheses According to recital IV, Nicaragua’s coast would 478Virginia Commentary, p 100 Available at Peace Palace Library
323
present a “special configuration owing to the presence of
numerous coastal islands closely linked by their history and
economy to the mainland, and also owing to the fact that the
coastline is deeply indented and cut into”
10 35 This is manifestly incorrect In reality, Nicaragua’s claim
seems to rely on the contention that its coastline meets the
second geographical condition, namely that there is “a fringe of
islands along” its coast, such “fringe of islands” being said to lie
“in its immediate vicinity”. The 2012 Judgment remarked that
Nicaragua’s islands are “adjacent” to its coast (at paragraphs
159, 168, and 201), but that is far from being a “fringe of islands
along its coasts”, in “its immediate vicinity” To draw straight
baselines, it is not sufficient that there exist adjacent islands;
there must exist a “fringe of islands along the coast”, in its
“immediate vicinity” Neither of these requirements are met
10 36 As noted in the Virginia Commentary:
“the expression fringing islands … covers the case
where a number of islands of various size are
spread out near the shore so as to form a
continuous fringe along the coast The mere
presence of a few isolated islands would not
constitute a solid fringe Such islands groups
generally belong to one of the following
categories: (i) islands which appear to form a unity
with the mainland; or (ii) islands at some distance
from the coast forming a screen which masks a
large proportion of the coast from the sea”479.
479 Virginia Commentary, p 100 Available at Peace Palace Library
324
10 37 The first requirement for straight baselines is the existence of a “group” of islands In other words, the islands must not be “relatively small in number” The Court made thisclear in Qatar v. Barhain In response to Bahrain’s contention that it was entitled, under customary international law, to draw straight baselines connecting the outermost islands located off its main island, the Court emphasized that:“it would be going too far … to qualify them [the maritime features east of Bahrain's main islands] as a fringe of islands along the coast The islands concerned are relatively small in number ”48010 38 Thus, a “fringe of islands” is necessarily a group of islands which is not “relativelysmall in number” By contrast, the “group of islands” lying off Nicaragua’s coasts is relatively small in number, especially when their number and size is compared with the length of the mainlandcoast With the exception of Cayo Mayor, in the Miskitos cays, and the two Corn Islands, all the other features are cays of very small size Although Nicaragua has never given a precise description of the maritime features which compriseitsallegedly“fringing islands”, Nicaragua could only find seven geographical points on very tiny features as base points, when its mainland coast length measures some453 kilometers.481Bycomparison, Bahrain’s claimed “fringe of islands” were more numerous and more important in size (Hawar Island’s lengthaloneis about 480Maritime Delimitation and Territorial Questions between Qatar andBahrain, Merits, Judgment, I.C.J. Reports 2001, p 103, para 214 4812012 Judgment, p 675, paras 144 and 145
325
30% of the length of the eastern coast of the main Bahrain
Island) Yet, the Court considered that these islands were
“relatively small in number ”482
10 39 Even if the number was sufficient, a group of islands
would not be considered a fringe of islands unless it forms a
unity with the mainland This is not the case with respect to
Nicaragua’s islands, most of which are located at considerable
distances from the coast The three main features – the Miskitos
Cays and the Corn Islands – are located, respectively, at 22 and
30 nautical miles from the nearest mainland;483 that is to say,
more than twice the breadth of what would normally be the
territorial sea
10 40 If not so interconnected with the mainland that the group
of islands appears to be its continuation – which is the case of
most of the skjærgaard in Norway484 – a group of islands can be
seen as a fringe of islands if, under the second hypothesis, it
“masks the coast.”485 This criterion has been confirmed in
Eritrea v Yemen, where the arbitral tribunal ruled that:
“The relatively large islet of Tiqfash, and the
smaller islands of Kutama and Uqban further west,
all appear to be part of an intricate system of
islands, islets and reefs which guard this part of the
482 Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, Merits, Judgment, I.C.J. Reports 2001, p 103, para 214
483 See Figure 10 3
484 Fisheries case, Judgment of December 18th 1951: I.C.J. Reports
1951, p 116
485 UN Office for Ocean Affairs and the Law of the Sea, Baselines: An
Examination of the Relevant Provisions of the United Nations Convention on
the Law of the Sea, 1989, p 21 Available at Peace Palace Library
326
coast This is indeed, in the view of the Tribunal, a ‘fringe system’of the kind contemplated by article 7 of the Convention ”48610 41 In contrast, the islands adjacent to the Nicaraguan mainland coast clearly have no or very limited masking effect onthat coast. This is the case even if one were to take into account not only the seven geographical features on which Nicaragua placesits base points, but all the (tiny) land masses thatare located east of the mainland coast A projection of these different islands and features against the general direction of the Nicaraguan mainland coast reveals that such islands and features mask no more than 5 to 6 percent of the coast, as depicted inFigure 10.2 486Award of the Arbitral Tribunal in the second stage of the proceedings (Maritime Delimitation) between Eritrea and Yemen,p 369, para 151
327
General direction of coastCaribbeanSeaCOSTA RICAPANAMAHONDURASNICARAGUASan Andrés I.Little Corn I.East of GreatTyra CayCayosMan-of-WarGreat Corn I.HarborHeadCaboGraciasa DiosSanta Catalina I.Quitasueño CayProvidencia I.East Southeast CaysAlburquerque CaysSerrana CayRoncador CayGorda I.Cocorocuma Is.Cajones Is.Serranilla CayMiskitosCaysNed ThomasCayEdinburghCay84°W 82°W 80°W 84°W 82°W 80°W 16°N14°N12°N14°N16°N12°N10°NPROJECTION OF NICARAGUA'S ISLANDSAND FEATURES ON THE GENERAL DIRECTIONLINE OF ITS MAINLAND COAST0751005025050100200150Nautical MilesKilometersMercator Projection, Datum: WGS-84, (Scale accurate at 12°N)Prepared by: International MappingFigure 10.2
328
10 42 Itmay be possible to consider that some islands or cays which are located close toNicaragua’s main coast as “in its immediate vicinity” But this is not sufficient for Nicaragua to be allowed to draw straight baselines all along its coast First, the requirement for straight baselines is that the entire“fringe of islands” lies in the immediate vicinity of the coast, not only a limited number of islands pertaining to a larger group Second, noneof the islands on which Nicaragua pretends to posit its base points can be considered to be in the “immediate vicinity” of the coastas shown in the table below and as depicted in Figure 10.3:Nicaragua’s geographicalbasepointsCorrespondingClosest location on the mainlandPointCoordinatesDistanceCoordinatesRef Edinburgh Cay82°40’W-14°49’N27.9 NM83°07’W-14°59’NL2Miskitos Cays82°48’W-14°21’N22.4 NM83°11’W-14°19’NL3Ned Thomas Cay82°48’W-14°08’N25.2 NM83°11’W-14°19’NL4Man-of-War Cay83°20’W-13°03’N11.6 NM83°32’W-13°01’NL5Great Tyra Cay83°17’W-12°-56’N12.7 NM83°30’W-12°54’NL6Little Corn Island82°59’W-12°17’N30.0 NM83°29’W-12°23’NL7Great Corn Island83°03’W-12°11’N28.4 NM83°29’W-12°23’NL8
329
CaribbeanSeaCOSTA RICAPANAMAHONDURASNICARAGUASan Andrés I.Little Corn I.Great Corn I.HarborHeadCabo Gracias a DiosSanta Catalina I.Quitasueño CayProvidencia I.East Southeast CaysAlburquerque CaysSerrana CayRoncador CayGorda I.Cocorocuma Is.Cajones Is.Serranilla CayMiskitos CaysNed Thomas CayEdinburgh CayEast of Great Tyra CayMan-of-War Cays84°W 82°W 80°W 84°W 82°W 80°W 16°N14°N12°N14°N16°N12°N10°N876543230 M12 M25 M28 M22 M13 M28 MDISTANCE OF THE STRAIGHT BASELINEFEATURES TO THE MAINLAND COAST0751005025050100200150Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 12°N)Prepared by: International MappingFigure 10.3
330
10 43 It follows that Nicaragua’s geographic situationdoes not allow Nicaraguato draw straight baselines But even if it were the case, it would not entitle Nicaragua to draw the straight baselines mentioned in Nicaragua’s DecreeNo 33-2013 (b) Nicaragua’s Claimed Baselines Do Not Meet the Necessary Requirements(i) Nicaragua’s Straight Baselines Depart from the General Direction of the Coast10 44 As reflected in Article7, paragraph3,ofUNCLOS,in circumstances wherea State is allowed to draw straight baselines, thoselines must follow “the general direction of the coast” This requirement is obviously different from the one set out in the definition of fringing islands according to which the relevant islands are to be located “along the coast in its immediate vicinity” As the Court notedin its Judgment in the Fisheriescase,the general aim of the rules regarding straight baselines, including the requirement that the baselines follow “the general direction of the coast”, is to reflect the general principle “that the belt of territorial waters must follow the general direction of the coast ”487Moreover, the “spirit of Article 7”, as explained by the United NationsOffice for Ocean 487Fisheries case, Judgmentof December 18th, 1951:I.C.J. Reports 1951, p 129
331
Affairs and the Law of the Sea, is not to “increase the territorial
sea unduly ”488
10 45 In Nicaragua’s situation, it cannot connect long distant
islands by straight baselines on the mere ground that the overall
drawing of these baselines has approximately the same shape as
the mainland coast To follow “the general direction of the
coast”, the straight baselines may only extend to outermost
islands and low-tide elevations of fringing islands in the
“localities”489 – and only in localities – where such islands
effectively mask the mainland coast.490 In the remainder of the
coast, it is the “normal” baseline that must be followed 491
(ii) The Sea Areas Lying within the Straight Baselines Are Not
Closely Linked to the Land Domain
10 46 The Court has also emphasized that, with respect to the
drawing of straight baselines, another –
488 UN Office for Ocean Affairs and the Law of the Sea, Baselines: An
Examination of the Relevant Provisions of the United Nations Convention on
the Law of the Sea, 1989, pp 17-20 Available at Peace Palace Library
489 Convention on the Territorial Sea and the Contiguous Zone, 1958,
Sec II, Art 4; UNCLOS, Sect 1, Art 7
490 It should also be recalled that in previous draft versions of what
became the 1958 Territorial Sea Convention, the International Law
Commission had inserted a supplementary rule limiting the length of all
straight baselines to 10 nautical miles (See “Regime of the Territorial Sea”
Art 5(2) at United Nations, Yearbook of the International Law Commission –
Documents of the Sixth Session Including the Report of the Commission to
the General Assembly, 1954, Vol II, p 154 Available at Peace Palace
Library)
491 Convention on the Territorial Sea and the Contiguous Zone, 1958,
Sec II, Art 3; United Nations Convention on the Law of the Sea, Sec 2,
Art 5
332
“[f]undamental consideration, of particular importance…, is the more or less close relationship existing between certain sea areas and the land formations which divide or surround them The real question raised in the choice of base-lines is in effect whether certain sea areas lying within these lines are sufficiently closely linked to the land domain to be subject to the regime of interna1 waters ”49210 47 Further, as explained by the United Nations Office for Ocean Affairs and theLaw of the Sea:“The spirit of the rule is clearly that internal waters must be in fairly close proximity to land represented by islands or promontories Sweden, in a statement to the International Law Commission, expressed the view that the criterion of the sufficient and close link means that ‘… the expanse of water in question is so surrounded by land, including islands along the coast, that it seems natural to treat it as part of the land domain’” 49310 48 Tocalculate whether Nicaragua’s decreecorresponds to this requirement, it should be kept in mind that:(a) the lengths of the straight baselines drawn by Nicaragua range from 7 nautical miles (between point 5 on Man-of-War Cay and point 6 East of Great Tyra Cay) to 83nautical miles (between point 8 on Great Corn Island and Point 9 at Harbor Head);(b) the distance between the outermost island and the closest mainland reaches up to nearly 30 nautical miles; and, (c) the surface area 492Fisheries case, Judgmentof December 18th, 1951:I.C.J. Reports 1951, p 133 493UN Office for Ocean Affairs and the Law of the Sea, Baselines: An Examination of the Relevant Provisions of the United Nations Convention on the Law of the Sea,1989, p 26 Available at Peace Palace Library
333
encompassed between these baselines and the mainland
coastline of Nicaragua may be estimated at around 21,500
square kilometres, that is to say, half the size of the Netherlands
These key figures are depicted in Figure 10.4
10 49 As a consequence, the effect of Nicaragua’s straight
baselines decree is to claim as internal waters substantial
portions of the Southwestern Caribbean (see blue area in
Figure 10.4) Most of this area is not even enclosed in what
should be seen as Nicaragua’s territorial sea measured according
to the normal baselines
334
21,500sq. km.CaribbeanSeaCOSTA RICAPANAMAHONDURASNICARAGUASan Andrés I.Great Corn I.Little Corn I.Punta CastillaHarbor HeadCabo Gracias a DiosSanta Catalina I.Quitasueño CayProvidencia I.East Southeast CaysAlburquerque CaysSerrana CayRoncador CayGorda I.Cocorocuma Is.Cajones Is.Serranilla CayMiskitos CaysNed Thomas CayEdinburgh CayEast of Great Tyra CayMan-of-War Cays84°W 82°W 80°W 84°W 82°W 80°W 16°N14°N12°N14°N16°N12°N10°N89765432130 M12 M25 M28 M22 M13 M28 M85 M44 M75 M27 M84°84°KEY FIGURES RELATED TO NICARAGUA’SSTRAIGHT BASELINE CLAIM0751005025050100200150Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 12°N)Prepared by: International MappingFigure 10.4
335
10 50 There are neither geographical nor legal reasons to
consider the sea areas enclosed between Nicaragua’s claimed
straight baselines and its mainland coast as internal waters
These areas represent an extensive surface, equal to that of the
Kattegat Sea between Sweden and Denmark. These areas are not
isolated from the maritime space beyond Nicaragua’s
sovereignty, since the adjacent islands of Nicaragua are nowhere
close enough to constitute an interlocking system of territorial
seas 494 To the contrary, the vast majority of these areas are
directly and openly connected with seas outside the sovereignty
of Nicaragua Therefore, there is no objective reason for
subjecting the vast maritime areas located within Nicaragua’s
straight baselines to the regime of internal waters, with the
corresponding effect that each of Nicaragua’s maritime zones
(territorial sea, contiguous zone, EEZ and continental shelf) is
artificially extended seaward
10 51 In the light of the above, it is clear that, by its Decree No
33-2013, Nicaragua has claimed an exorbitant baseline in the
Caribbean Sea which is not only contrary to international law,
but also has adverse effects on the rights of other States
including Colombia
494 See Figure 10 5
336
D. Colombia’s Rights Are Infringed by Nicaragua’s Claimed Baselines in the Caribbean Sea10 52 Nicaragua’sunlawful decision to establish a system ofstraight baselines to determine the limit from which the breadth of its maritime zones are measuredhas directly infringed Colombia’s rights in the Caribbean Sea, in the following ways:•by extending its internal waters eastward, Nicaragua deniesthe right of innocent passage andfreedom of navigation in vast stretches of sea in which these rights and freedoms should be enjoyed (Sub-section (1));•by extending the territorial sea of Nicaragua, Colombia’s navigational rightshave also beenunduly restrained(Sub-section (2));•and by extending Nicaragua’s exclusive economic zone, Nicaragua has created an artificialoverlap with Colombia’s entitlement to its exclusive economic zone and continental shelf (Sub-section (3)) (1)THE CLOSING BY NICARAGUA OF THE WATERSWITHIN ITS STRAIGHT BASELINESVIOLATES COLOMBIA’SRIGHTS10 53 As explained, Nicaragua’s claimed baselines purport to redefine a large belt of sea east of Nicaragua’s mainland, the
337
breadth of which extends up to 30 nautical miles, as Nicaragua’s
internal waters Since internal waters are considered as a
continuation of the mainland, Nicaragua’s claim is that it enjoys
full sovereignty over this area, with no exception Moreover, it
denies any right of innocent passage to foreign flagged vessels
of all States, since there is no such clear right, in customary
international law, in internal waters 495
10 54 As a consequence, any foreign ship that would cross,
even unwillingly, the straight baselines drawn by Nicaragua
would immediately fall under the sovereign jurisdiction of
Nicaragua, with possible extreme consequences:
“by entering foreign ports and other internal
waters, ships put themselves within the territorial
jurisdiction of the coastal State Accordingly, that
State is entitled to enforce its laws against the ship
and those on board, subject to the normal rules
concerning sovereign and diplomatic immunities,
which arise chiefly in the case of warships ”496
10 55 It must be emphasized that the enactment by Nicaragua
of Decree No 33-2013 implies not only that it can deny any
right of passage to Colombia in what would become internal
waters, but also that it may forbid any maritime access to them
495 Both the 1958 Convention on the Territorial Sea and the Contiguous
Zone and UNCLOS (to which Colombia is not a Party) contain provisions
establishing a right of innocent passage in waters enclosed as internal waters
as a consequence of the drawing of straight baselines But, as mentioned by
authors: “That, at least, is the position under the Conventions: the position in
cases where such lines are drawn in exercise of rights under customary law is
less clear, the Anglo-Norwegian Fisheries case making no reference [sic] the
preservation of rights of innocent passage in these circumstances,” R R
Churchill & A V Lowe, op. cit., p 61 Available at Peace Palace Library
496 Ibid
338
Thisis the exact opposite of the regime that would apply if Nicaragua’sbaselines werenormal baselines in compliance with international law In that situation, there would be no internal waters of such a huge magnitude Colombia would have the right of freedom of passage in what properly was Nicaragua’s territorial sea, and freedom of navigation and overflight in what should be Nicaragua’s EEZ 10 56 The denial of theserights as a result of Nicaragua’s straight baselines decree thus directly infringes Colombia’s rights (2)NICARAGUA’SCLAIM THAT ITS TERRITORIAL SEA EXTENDS FURTHER EAST THAN WHAT INTERNATIONAL LAW AUTHORIZES INFRINGES COLOMBIA’SRIGHTS10 57 Similarly, the effect of Nicaragua’s straight baselines claim is to push the external limit of its territorial sea far eastof the 12-milelimit thatwould apply if the baselines were correctly drawn 10 58 This has important adverse consequences for allStates, including Colombia Indeed, Nicaragua may exercisesovereigntyin its territorial sea, includingexercisingpolice powers overships and persons located therein, enactinglaws and regulations without any limitation as to their subject-matter and enforcingthem against any person present within its territorialseaand the air space above it The only limitation is that, in its territorial sea, Nicaragua cannot refuse innocent
339
passage of ships, but there is no corresponding right to
overflight
10 59 By drawing straight baselines that lie at an average of 25
nm from the mainland coast, Nicaragua has extended the outer
limit of its territorial sea by an average of 25 nm, as shown in
Figure 10.5 below Such extension directly impedes the rights
to which Colombia is entitled in a maritime zone which, under
international law, can only be Nicaragua’s EEZ As noted by
two authors:
“Whilst the extent of coastal state sovereignty in
the territorial sea is not clearly articulated it is
possible to discern its extent from a review of
customary international law, state practice, and
other relevant provisions of the convention It is
clear that the coastal state has sovereignty over all
the resources which are found within the territorial
sea, and unlike allowances which are made in the
EEZ or continental shelf regime for access rights
by third states or even the equitable sharing of
resources, nothing equivalent prevails within the
territorial sea except in the case of arrangements
that may predate the LOSC or have a historic
basis” 497
10 60 The rights of Colombia that are impeded by Nicaragua’s
extension of its territorial sea are, inter alia, the right to
freedoms of navigation and overflight by aircraft, including
military ones, and the laying of cables and pipelines All these
rights are of a customary nature
497 D Rothwell & T Stephens, op.cit., p 69 Available at Peace Palace
Library
340
CaribbeanSeaCOSTA RICAPANAMAHONDURASNICARAGUASan Andrés I.Little Corn I.East of GreatTyra CayCayosMan-of-WarGreat Corn I.HarborHeadCaboGraciasa DiosSanta Catalina I.Quitasueño CayProvidencia I.East Southeast CaysAlburquerque CaysSerrana CayRoncador CayGorda I.Cocorocuma Is.Cajones Is.Serranilla CayMiskitosCaysNed ThomasCayEdinburghCay84°W 82°W 80°W 84°W 82°W 80°W 16°N14°N12°N14°N16°N12°N10°N84°84°NICARAGUA’S TERRITORIAL SEA AS DERIVEDFROM ITS STRAIGHT BASELINES AS DRAWN INDECREE NUMBER 33-20130751005025050100200150Nautical MilesKilometersMercator Projection, Datum: WGS-84, (Scale accurate at 12°N)Prepared by: International MappingHon.Nic.123456789Nicaragua’s territorial seafrom normal baselinesNicaragua’s territorial seafrom straight baseline claimNicaragua’s internal watersfrom straight baseline claimFigure 10.5
341
(3) THE INFRINGEMENT OF COLOMBIA’S RIGHT TO A 200-
MILE EXCLUSIVE ECONOMIC ZONE
10 61 Under international customary law, a coastal State is
entitled to limited sovereign rights in a zone extending up to 200
miles “from the baselines from which the breadth of the
territorial sea is measured ”498 It is also entitled to a continental
shelf up to the same external limit
10 62 This principle was applied by the Court in its 2012
Judgment when it decided that the delimitation of the maritime
boundary between Nicaragua and Colombia in the Southwestern
Caribbean Sea was not to go beyond the limit – identified by the
Court with endpoints A and B – of the “200-nautical-mile limit
from the baselines from which the territorial sea of Nicaragua is
measured ”499 But, as noted above, the Court also immediately
observed that:
“since Nicaragua has yet to notify the baselines
from which its territorial sea is measure, the
precise location of end-point A cannot be
determined ”500
10 63 As it radiates to successive seaward zones, Nicaragua’s
Decree No 33-2013 has the effect of pushing Nicaragua’s EEZ
and continental shelf into EEZ and continental shelf areas further
east into areas where Colombia has an entitlement By drawing
straight baselines from the outermost islands and features located
498 UNCLOS, Art 57
499 2012 Judgment, para 237
500 Ibid
342
west of its mainland coast, Nicaragua unlawfully extends its entitlements intoareas which are more than 200 nautical miles from the baselines it could lawfully claim 10 64 This is an additional reason why Nicaragua’s enactment of its straight baselinesdecree has infringedthe legitimate rights of Colombiajustifying Colombia’s counter-claim E.Conclusion10 65 For the above reasons, Colombia submits that Nicaragua’sPresidentialDecree No 33-2013 of 19 August 2013is in violation of internationallaw and of Colombia’s sovereign rights and maritime spaces, and therefore, must be adjusted in order that it complies with the rules of international law concerning the drawing of the baselines from which the breadth of the territorial sea is measured
343
Chapter 11
SUMMARY
11 1 The scope of the dispute before the Court concerns not
only the conduct of Colombia in the portions of the
Southwestern Caribbean Sea to which Nicaragua’s claims are
directed, but also the conduct of Nicaragua in the same maritime
areas and within the same timeframe
11 2 The conduct of both Parties falls to be assessed in the light
of the special characteristics of the Southwestern Caribbean Sea
and the applicable principles and rules of customary
international law
11 3 These special circumstances include the following:
• The Southwestern Caribbean Sea is a semienclosed
sea within which the San Andrés
Archipelago is situated The islands comprising the
Archipelago, over which Colombia has
sovereignty, form a political, social, environmental
and economic unit
• The inhabitants of the Archipelago, including the
Raizal community, are dependent on artisanal
fishing in their traditional fishing banks, ecotourism
and the marine environment, which
344
constitutean essential part of their habitat, livelihood and culture •The Southwestern CaribbeanSea is an ecologically fragile maritime area consistingof an inter-connected and interdependent eco-system It is highly vulnerable to predatory fishing practices, depletion of the living resources, pollution and other destructive practices. Colombia has taken the lead in protecting and preserving the marine environment of this area by, inter alia, establishing the Seaflower Biosphere Reserve and the Seaflower Marine Protected Area, and by entering into various bilateral and multilateral agreements to this end •This part of the Caribbean Sea is also of major security concern inasmuch as it constitutes a major trafficking route for drug smuggling and other transnational crimes Colombia has been particularly diligent in this regard and has secured a wide network of agreements with concerned States directed to adequately respond to these threats 11 4 Both Parties have rights and obligations under international law by which their respective conduct falls to be considered
345
11 5 While Nicaragua has sovereign rights to explore and
exploit the natural resources situated within its exclusive
economic zone, it also has obligations arising under
international law, which it ignores in its pleadings These
include the obligation to protect and preserve the marine
environment, exercise due diligence over its nationals and
licensed vessels operating in the maritime area, respect the
rights of the inhabitants of the Archipelago to a healthy, sound
and sustainable environment, and respect the traditional fishing
rights of those inhabitants Furthermore, Nicaragua has the
obligation to have due regard for the rights of Colombia in
exercising its sovereign rights
11 6 Colombia also possesses important rights and duties in the
Southwestern Caribbean, including in areas that fall within
maritime zones that have been adjudicated to Nicaragua
pursuant to the Court’s 2012 Judgment These include the right
of freedom of navigation and overflight, the right to monitor
activities in the area for a number of purposes, the duty to
protect and preserve the marine environment and the habitat of
the Archipelago's community and to exercise due diligence in
this regard, and the right to ensure that the artisanal fishing
rights of the inhabitants of the Archipelago, including the
Raizales, are safeguarded and respected
11 7 Colombia has shown that it has not violated Nicaragua’s
sovereign rights or maritime spaces Pursuant to its freedoms of
navigation and overflight, Colombia has the right to be present
346
inNicaragua’s EEZ and to exercise its duties under international law having due regard to the rights of Nicaragua and other States 11 8 Nicaragua’s claim that Colombia violated its sovereign rights by harassing its fishing vessels is not supported by the facts Many of the “facts” on which Nicaragua relies are based on erroneous information and others post-date the critical date (the date when Colombia ceased to be bound by the Pact of Bogotá) The claims are also inconsistent with Nicaragua’s contemporaneous statements and conduct, which confirm that there were no “incidents” that could have givenrise to a complaint at the time they allegedly occurred, and that the relevant facts were not even brought to the attention of Nicaragua’s political leaders until well after its Agent in The Haguehad instituted thepresentproceedings Moreover, ithas notbeendemonstrated that Colombia ever prevented Nicaragua from enjoying its sovereign rights within its EEZ 11 9 The claim that Colombia violated Nicaragua’s maritime spaces by the enactment of a decree establishing anIntegral Contiguous Zone around the islands of the Archipelago is equally misconceived Apart from the fact that there is no incompatibility between the establishment of a contiguous zone by one State and the exercise of sovereign rights by aneighbouring State in its EEZ, Colombia has demonstrated that neither the configuration of the Integral Contiguous Zone, nor the jurisdiction that Colombia exercises within it, violates
347
customary international law Furthermore, Nicaragua is unable
to show that Colombia has in any way prejudiced Nicaragua in
exercising sovereign rights within its EEZ by virtue of the
enactment of a decree establishing an Integral Contiguous Zone
11 10 It follows that none of the remedies that Nicaragua seeks
in its Memorial are justified In short, based on the facts and the
law, Colombia has not violated Nicaragua’s sovereign rights or
maritime spaces
11 11 In contrast, Nicaragua has breached several international
obligations binding on it that have caused serious prejudice to
Colombia Accordingly, pursuant to Article 80 of the Rules of
Court, Colombia is lodging four counter-claims against
Nicaragua As Colombia has shown, under the Pact of Bogotá
the Court has jurisdiction to rule on these counter-claims, and
each of them, being directly connected with the subject-matter
of Nicaragua’s claims, is admissible
11 12 Colombia’s first and second counter-claims are interrelated
The first counter-claim is based on Nicaragua’s breach
of its obligation to protect and preserve the marine environment
and to exercise due diligence in this regard Colombia has
documented numerous instances in which fishing vessels
licensed by Nicaragua have engaged in predatory and
destructive fishing practices, both within Colombia’s territorial
sea and in other parts of the Southwestern Caribbean in violation
of these obligations
348
11 13 Colombia’s second counter-claim is also based on Nicaragua’s failure to exercise due diligence with respect to the protection and preservation of the marine environment In this instance, however, the counter-claim is based on the consequential failure of Nicaragua to prevent the degradation of the marine habitat of the inhabitants of the Archipelago, including in particular the Raizales, who depend on the environmental integrity and sustainability of their traditional fishing grounds and habitat 11 14 Colombia’s third counter-claim arises as a result of Nicaragua’s infringement of the traditionalartisanal fishing rights of the inhabitants of the Archipelago While Nicaragua’s President has committed Nicaragua to recognize the traditional fishing rights of the Raizales, in practice Nicaragua’s Naval Forcehas harassed and intimidated Colombia’s fishermen, thus preventing them from being able to access and enjoy their traditional fishing rights 11 15 Colombia’s fourth counter-claim is in response to the enactment by Nicaragua of a decree purporting to establish a system of straight baselines connecting scattered islands off its mainland coast These baselines are contrary to the rules governing the drawing of straight baselines and are thus in violation of international law Because the effect of such baselines is to enlargein an impermissible manner the extent of Nicaragua’s internal waters, territorial sea, contiguous zone and
349
exclusive economic zone, they directly prejudice Colombia’s
maritime rights and spaces
11 16 Accordingly, Colombia is requesting the Court to
adjudge and declare that Nicaragua has violated its international
obligations vis-à-vis Colombia and to order Nicaragua to desist
from these violations; to pay compensation for the material
damage caused, including loss of profits; and to give Colombia
appropriate guarantees and assurances of non-repetition
350
351
SUBMISSIONS
I For the reasons stated in this Counter-Memorial, the
Republic of Colombia respectfully requests the Court to reject
the submissions of the Republic of Nicaragua in its Memorial of
3 October 2014 and to adjudge and declare that
1 Nicaragua has failed to prove that any Colombian
naval or coast guard vessel has violated
Nicaragua’s sovereign rights and maritime spaces
in the Caribbean Sea;
2 Colombia has not, otherwise, violated Nicaragua’s
sovereign rights and maritime spaces in the
Caribbean Sea;
3 Colombia’s Decree 1946 of 9 September 2013
establishing an Integral Contiguous Zone is lawful
under international law and does not constitute a
violation of any of Nicaragua’s sovereign rights
and maritime spaces, considering that:
a The Integral Contiguous Zone produced by
the naturally overlapping concentric circles
forming the contiguous zones of the islands
of San Andrés, Providencia, Santa Catalina,
Alburquerque Cays, East-Southeast Cays,
Roncador, Serrana, Quitasueño and
352
Serranillaand joined by geodetic lines connecting the outermost points of the overlapping concentric circles is, in the circumstances,lawfulunder international law;b The powers enumerated in the Decree are consistent with international law; and4 No Colombian action in its Integral Contiguous Zone of which Nicaragua complains is a violation of international law or of Nicaragua’ssovereignrightsand maritime spaces II Further, the Republic of Colombia respectfully requeststhe Court toadjudge and declare that5 Nicaragua has infringed Colombia’s sovereign rights and maritime spaces in the Caribbean Sea by failingto prevent its flag or licensed vessels from fishing in Colombia’s waters;6 Nicaragua has infringed Colombia’s sovereign rights and maritime spaces in the Caribbean Sea by failingto prevent its flag or licensed vesselsfrom engaging in predatory and unlawful fishing methods in violation of its international obligations;
353
7 Nicaragua has infringed Colombia’s sovereign
rights and maritime spaces by failing to fulfil its
international legal obligations with respect to the
environment in areas of the Caribbean Sea to
which said obligations apply;
8 Nicaragua has failed to respect the traditional and
historic fishing rights of the inhabitants of the San
Andrés Archipelago, including the indigenous
Raizal people, in the waters to which they are
entitled to said rights; and
9 Nicaragua’s Decree No 33-2013 of 19 August
2013 establishing straight baselines violates
international law and Colombia’s maritime rights
and spaces
III The Court is further requested to order Nicaragua
10 With regard to submissions 5 to 8:
a To desist promptly from its violations of
international law;
b To compensate Colombia for all damages
caused, including loss of profits, resulting
from Nicaragua’s violations of its
international obligations, with the amount
354
and form of compensation to be determined at a subsequent phase of the proceedings;andc To give Colombia appropriate guarantees of non-repetition 11 With regard to submission 8, in particular, toensure that the inhabitants of the San Andrés Archipelago enjoy unfettered access to the waters to which their traditional and historic fishing rights pertain; and12 With regard to submission 9, to adjust its Decree No 33-2013 of 19 August 2013 in order that it complies with the rules of international law concerning the drawing of the baselinesfrom which the breadth of the territorial sea is measured IV Colombia reserves its right to supplement or amend these submissions CARLOS GUSTAVO ARRIETA PADILLAAgent of ColombiaThe Hague,17 November 2016TABLE
355
TABLE OF CONTENTS
VOLUME II: LIST OF APPENDIXES, ANNEXES
AND FIGURES
APPENDIXES
Appendix A Colombia’s Alleged Events in the Caribbean Sea
-Technical and Humanitarian Assistance Events
Appendix B Examples from States which have enacted
domestic legislation concerning the Contiguous
Zone
ANNEXES
I. OFFICIAL STATEMENTS
Annex 1 Press release from the Ministry of Foreign Affairs
with regard to the Seaflower Biosphere Reserve,
30 August 2013
II. LEGISLATION AND REGULATIONS
(COLOMBIA)
Annex 2 Colombian Institute for Agrarian Reform,
Resolution No 206 of 16 December 1968
Annex 3 Presidential Decree No 2324 of 18 September
1984
Annex 4 Ministry of Environment, Housing and Territorial
Development, Resolution No 107 of 27 January
2005
356
Annex 5Corporation for the Sustainable Development of the San Andrés, Providencia and Santa Catalina Archipelago –CORALINA,Agreement No 021, 9 June 2005 Annex 6Corporation for the Sustainable Development of the San Andrés, Providencia and Santa CatalinaArchipelago –CORALINA, Agreement No 025, 4 August 2005 Annex 7Presidential Decree No 1946 of 9 September 2013, as modified and amended by Presidential Decree No 1119 of 17 June 2014(composite version) Annex 8Ministry of Agriculture and Rural Development, Resolution No 350 of 10 October 2013 Annex 9Ministry of Environment and Sustainable Development, Resolution No 977 of 24 June 2014 III.LEGISLATION AND REGULATIONS (NICARAGUA)Annex 10National Assembly of the Republic of Nicaragua, Law No 613 of 7 February 2007 Annex 11National Assembly of the Republic of Nicaragua, Law No 753 of 22 February 2011 Annex 12National Assembly of the Republic of Nicaragua, Law No 836 of 13 March 2013 Annex 13Decree No 33-2013, Baselines of the Marine Areas of the Republic of Nicaragua in theCaribbean Sea, 19 August 2013 [English and Spanish versionsAnnex 14 Nicaraguan Institute for Fishing and Aquaculture–INPESCA, Executive Resolution PA-No 001-2015
357
Annex 15 Nicaraguan Institute for Fishing and Aquaculture
– INPESCA, Executive Resolution PA-No 001-
2016
Annex 16 National Assembly of the Republic of Nicaragua,
Law No 923 of 1 March 2016
IV. TREATIES AND AGREEMENTS
Annex 17 Convention for the Protection and Development
of the Marine Environment of the Wider
Caribbean Region (Cartagena Convention)
[English and French versions]
Annex 18 Protocol Concerning Specially Protected Areas
and Wildlife to the Convention for the Protection
and Development of the Marine Environment of
the Wider Caribbean Region (SPAW Protocol)
[English and French versions]
V. DIPLOMATIC NOTES
Annex 19 Diplomatic Note DM No 94331 from the
Minister of Foreign Affairs of Colombia to the
Secretary-General of the United Nations,
23 November 2012
Annex 20 Diplomatic Note DM No 94365 from the
Minister of Foreign Affairs of Colombia to the
Secretary-General of the Organization of
American States, 23 November 2012
Annex 21 Diplomatic Note DM No 78634 from the
Minister of Foreign Affairs of Colombia to the
Director-General of the United Nations
Education, Scientific and Cultural Organization –
UNESCO, 23 November 2012
Annex 22 Note Verbale No E-16 from the Embassy of
Colombia in Managua to the Ministry of Foreign
Affairs of Nicaragua, 14 January 2013
358
Annex 23Note Verbale No MRE/SCPE/014/01/13 from the Ministry of Foreign Affairs of Nicaragua to the Embassy of Colombia in Managua, 14January 2013 Annex 24Note Verbale No MRE/DGAJ//0014//13 from the Embassy of Colombia in Managua to the Ministry of Foreign Affairs of Nicaragua, 17January 2013 Annex 25DiplomaticNote No S-GACIJ-13-044275 from the Minister of Foreign Affairsof Colombia to the Secretary-General of the United Nations, 1November 2013 Annex 26Note Verbale No S-DISTD-16-013262 from the Ministry of Foreign Affairs of Colombia to the Embassy of Nicaragua in Bogotá, 10 February 2016 Annex 27Note Verbale No MRE/VM-AJ/0079/02/16 from the Ministry of Foreign Affairs of Nicaragua to the Ministry of Foreign Affairs of Colombia, 11February 2016 VI.COLOMBIAN NAVY DOCUMENTSAnnex 28National Navy of Colombia, Communication No 2175–MD-CG-CARMA-SECAR-JONA-OFAIN-29 80, 17 December 2012 Annex 29National Navy of Colombia, Communication No 101/MD-CGFM-CARMA-SECAR-JONA-CFSUCA-CMR-JDIMR-29 23,22December 2012 Annex 30National Navy of Colombia, Communication No 0080–MD-CG-CARMA-SECAR-JONA-OFAIN-29 80, 16 January 2013 Annex 31National Navy of Colombia, Navigation Log, A R C “Almirante Padilla”, 19February2013
359
Annex 32 National Navy of Colombia, Chief of Naval
Operations Summary Report, A R C “20 de
Julio”, 2 February 2013
Annex 33 National Navy of Colombia, Communication
No 024 – MD-CG-CARMA-SECAR-JONACFNC-
CFSUCA-CMA, 5 February 2013
Annex 34 National Navy of Colombia, Communication
No 0877 – MD-CG-CARMA-SECAR-JONAOFAIN-
29 80, 30 April 2013
Annex 35 National Navy of Colombia, Maritime Travel
Report, A R C “Caldas”, 19 May 2013
Annex 36 National Navy of Colombia, Chief of Naval
Operations Summary Report, Helicopter A R C
“203” and A R C “Caldas”, 23 July 2013
Annex 37 National Navy of Colombia, Communication
No 375/MDN-CGFM-CARMA-SECAR-JONACFNC-
CCESYP-JEM-N3, 6 August 2013
Annex 38 National Navy of Colombia, Communication
No 162 – MD-CG-CARMA-SECAR-JONACFNCCFSUCA-
CMA, 17 August 2013
Annex 39 National Navy of Colombia, Communication
No 1693 – MD-CG-CARMA-SECAR-JONAOFAIN-
29 80, 21 August 2013
Annex 40 National Navy of Colombia, Chief of Naval
Operations Summary Report, A R C “801” and
A R C “San Andrés”, 24 August 2013 /
4 September 2013
Annex 41 National Navy of Colombia, Communication
No 427/MD-CGFM-CARMA-SECARJONA-
CFNC-CCESYP-JEM-JNECESYP,
13 September 2013
Annex 42 National Navy of Colombia, Communication
No 677/MD-CG-CARMA-SECAR-JONACFNC-
CFSUCA-CMB, 5 October 2013
360
Annex 43National Navy of Colombia, Communication No 678/MD-CG-CARMA-SECAR-JONA-CFNC-CFSUCA-CMB, 5 October 2013Annex 44National Navy of Colombia, Maritime Travel Report, A R C “Cartagena de Indias”, 11 October2013Annex 45National Navyof Colombia, Communication No 059 / MD-CGFM-CARMA-SECAR-JONA-CFNC-CFSUCA-CMK-JDOMK-29 60,16October 2013 Annex 46National Navy of Colombia, Maritime Travel Report, A R C “20 de Julio”, 21 October 2013 Annex 47National Navy of Colombia, Communication No 201 / MD-CGFFMM-CARMA-SECAR-JONA-CFNC-CFSUCA-CMC 29 57, 29 October 2013 Annex 48National Navy of Colombia, Communication No 202 / MD-CGFFMM-CARMA-SECAR-JONA-CFNC-CFSUCA-CMC 29 57, 29 October 2013 Annex 49National Navy of Colombia, Maritime Travel Report, A R C “Independiente”, 6 November 2013 Annex 50National Navy of Colombia, Navigation Log, A R C “Antioquia”, 7 November 2013 Annex 51National Navy of Colombia, ClavegramaNo 152023, 8 November 2013 Annex 52National Navy of Colombia, Attestationof Good Treatment to the Crew, A R C “Almirante Padilla”, 17 November 2013 Annex 53National Navyof Colombia, Communication No 304–MD-CGFFMM-CARMA-SECAR-JONA-CFNC-CFSUCA-CMW-29 57,20November 2013
361
Annex 54 National Navy of Colombia, Chief of Naval
Operations Summary Report, A R C “Almirante
Padilla” and A R C “Caldas”, 26 November
2013
Annex 55 National Navy of Colombia, Maritime Travel
Report, A R C “Almirante Padilla”, 5 December
2013
Annex 56 National Navy of Colombia, Communication
No 2525 – MD-CG-CARMA-SECAR-JIONAOFAIN-
29 80, 9 December 2013
Annex 57 National Navy of Colombia, Communication
No 2572 / MD-CG-CARMA-SECAR-JONAOFAIN-
29 80, 12 December 2013
Annex 58 National Navy of Colombia, Protest Attestation
No 027 – MD-CG-CARMA-SECAR-JONACFNC-
CFSUCA-CMB-81 4, 9 May 2014
Annex 59 National Navy of Colombia, Communication
No 070824 / MD-CG-CARMA-SECAR-JONACFNC-
CFSUCA-CMB-2CMB-JDO-81, 7 June
2014
Annex 60 National Navy of Colombia, Communication
No 20160042230059101 / MD-CGFMCARMA-
SECAR-JONA-OFAIN-3, 9 February
2016
Annex 61 National Navy of Colombia, Communication
No 241000R / MDN-CGFM-CARMA-SECARJONA-
CAVNA-CGANCA-CEANCAR 29 60,
24 June 2016
VII. AFFIDAVITS
Annex 62 Affidavit by Mr Landel Hernando Robinson
Archbold, 18 October 2016
Annex 63 Affidavit by Mr Wallingford González Steele
Borden, 18 October 2016
362
Annex 64Affidavit by Mr Ornuldo Rodolfo Walters Dawkins, 18 October 2016 Annex 65Affidavit by Mr Ligorio Luis Archbold Howard, 19 October 2016 Annex 66Affidavit by MrJonathan Archbold Robinson, 19October 2016 Annex 67Affidavit by Mr Alfredo Rafael Howard Newball, 21 October 2016 Annex 68Affidavit by Mr Orlando Eduardo Francis Powell, 21 October 2016 Annex 69Affidavit by Mr Domingo Sánchez McNabb, 21October 2016 Annex 70Affidavit byMr Eduardo Steele Martínez, 24October 2016 Annex 71Affidavit by Mr JorgeDe la Cruz De Alba Barker, 25 October 2016 Annex 72Affidavit by Mr Antonio Alejandro Sjogreen Pablo, 31 October 2016 VIII.MEDIA REPORTSAnnex 73El 19 Digital, President Daniel meets JuanManuel Santos in Mexico, 2 December 2012 Annex 74Radio La Primerísima, Daniel ratified to Colombia his vocation for peace, 2 December 2012 Annex 75Radio La Primerísima, Nicaragua exercises peaceful sovereignty over its waters, 5 December 2012 Annex 76Radio La Primerísima, Powerful interests want a confrontation with Colombia, 21 February 2013 Annex 77El 19 Digital, Daniel meets with delegation from Iceland, 18 November 2014
363
Annex 78 El 19 Digital, President Daniel receives letters of
credence from the ambassadors of Colombia, El
Salvador, Germany and Italy, 6 November 2015
IX. OTHER DOCUMENTS
Annex 79 Church v. Hubbart, 6 U S 187 (1804)
Annex 80 U N Doc A/AC 138/66 and corr 2, 24 March
1972
Annex 81 United States v. F/V Taiyo Maru, CIV. No. 74-
101 SD, Cr. No. 74-46 SD. 395 F.Supp. 414
(1975).
Annex 82 S Ghosh, Law of the Territorial Sea: Evolution
and Development, 1988
Annex 83 R C Smith, The Maritime Heritage of the
Cayman Islands, Gainesville, 2000
Annex 84 Central American Integration System, Regional
Unit for the Fisheries and Aquaculture,
Regulations OSP-02-09 on Regional
Management of Caribbean Lobster Fisheries
(panulirus argus), 21 May 2009
Annex 85 M J Jarvis, In the Eye of All Trade: Bermuda,
Bermudians, and the Maritime Atlantic World,
1680-1783, Chapel Hill, 2010
Annex 86 National Administrative Statistics Department of
Colombia (Departamento Administrativo
Nacional de Estadística – DANE), Postcensal
Studies No 7, National and Departmental
Population Projections 2005-2020, March 2010
Annex 87 National Administrative Statistics Department of
Colombia (Departamento Administrativo
Nacional de Estadística – DANE), General
Census 2005 Bulletin - Profile Archipelago
Department of San Andrés, 13 September 2010
364
Annex 88National Administrative Statistics Department of Colombia (Departamento Administrativo Nacional de Estadística –DANE), General Census 2005 Bulletin -Profile Providencia and Santa Catalina, 14 September2010 Annex89Proposed areas for inclusion in the SPAW List, Annotated Format for Presentation Report for Seaflower Marine Protected Area, Colombia, 5October 2010 Annex 90 Circular Communication from the Division for Ocean Affairs and the Law of the Sea –Office of Legal Affairs, No M Z N 99 2013 LOS, 11October 2013Annex 91A I Márquez-Pérez, “Catboats, Lanchs and Canoes: Notes towards a history of the relations between the islands of Providencia, Santa Catalina and the Central American and Insular Caribbean by means of the construction and use of wooden vessels”, RevistaInternacional de História Política eCultura Jurídica, Vol 6, No 3, September-December 2014 Annex 92Nicaraguan Institute for Fishing and Aquaculture –INPESCA, Fishing and Aquaculture Yearbook for 2014, June 2015 Annex 93S D Crawford, A I Márquez-Pérez, “A Contact Zone: The Turtle Commons of the Western Caribbean”, The International Journal of Maritime History, 2016 Annex 94Seaflower Marine Protected Area –a SPAW Listed Site: Factsheet(undated) X.AUDIOVISUAL AND PHOTOGRAPHIC MATERIALAnnex 95PhotographicMaterial, Event “Al John”, 28 April 2013
365
Annex 96 Photographic Material, Event “Papa D”, 28 April
2013
Annex 97 Photographic Material, Event “Pescasa 35”,
9 May 2013
Annex 98 Audiovisual Material, Event “Pescasa 35”, 9 May
2013
Annex 99 Audiovisual Material, Event “Miss Sofía”, 4 July
2013
Annex 100 Photographic Material, Event “Doña Emilia”,
3 August 2013
Annex 101 Audiovisual Material, Event “Doña Emilia”,
3 August 2013
Annex 102 Photographic Material, Event “Trapper”,
17 August 2013
Annex 103 Audiovisual Material, Event “Lady Dee III”,
24 August 2013
Annex 104 Audiovisual Material, Event “Cap Charly”,
24 August 2013
Annex 105 Photographic Material, Event “Miss Sofía”,
4 September 2013
Annex 106 Photographic Material, Event “Diego Armando
G”, 5 October 2013
Annex 107 Photographic Material, Event “Pescasa 35”,
5 October 2013
Annex 108 Photographic Material, Event “Marco Polo”,
9 October 2013
Annex 109 Photographic Material, Event “Cap Maddox”,
23 October 2013
Annex 110 Photographic Material, Event “Miss Joela”,
23 October 2013
Annex 111 Photographic Material, Event “Miss Sofía”,
17 November 2013
366
Annex 112Audiovisual Material, Event “Miss Sofía”, 17November 2013 Annex 113Photographic Material, Event “Lady Prem”, “Miss Sofía”, “Capitán Charlie” and “Doña Emilia”, 9 February 2016
367
FIGURES
Figure 2.1 The Southwestern Caribbean: A Semi-Enclosed
Sea
Figure 2.2 Colombia’s Seaflower Biosphere Reserve
Figure 2.3 Colombia’s Seaflower Marine Protected Area
Figure 2.4 Traditional Shallow Banks of the Artisanal
Fishermen of the Archipelago
Figure 2.5 Traditional Shallow and Deep-Sea Banks of the
Artisanal Fishermen of the Archipelago
Figure 2.6 Illicit Drug Trafficking Routes Transiting through
and around the Archipelago
Figure 2.7 Examples of Colombia’s Presence on the Islands
of the Archipelago
Figure 2.8 Examples of Events in which the Colombian
Navy provided Humanitarian Assistance,
Technical Aid and carried out Search and Rescue
Operations
Figure 4.1 “Incident” 1 alleged by Nicaragua (19 February
2013)
Figure 4.2 “Incident” 4 alleged by Nicaragua (13 October
2013)
Figure 4.3 “Incident” 9 alleged by Nicaragua (7 November
2013)
Figure 4.4 “Incident” 10 alleged by Nicaragua (17
November 2013)
Figure 5.1 Colombia’s ‘Integral Contiguous Zone’ as set out
in Presidential Decree Number 1946 of 2013
Figure 8.1 Predatory Fishing Activities of Nicaragua within
the Territorial Sea of Colombia and the Joint
Regime Area
Figure 8.2 Examples of Predatory Fishing by Nicaraguan-
Flagged Fishing Vessels
368
Figure 8.3Example of Predatory Fishing Activities of Nicaragua within the Territorial Sea of Colombia after the Critical DateFigure 8.4Nicaragua’s Harmful Activities to the Marine Environment in the Territorial Sea of Colombia Figure 10.1Nicaragua’s straight baseline claim in the Caribbean SeaFigure 10.2Projection of Nicaragua’s islands and featuresonthe general direction line of its mainland coast Figure 10.3Distance of the straight baseline features to the mainland coastFigure 10.4Key figures related to Nicaragua’s straight baseline claimFigure 10.5Nicaragua’s Territorial Sea as derived from its straight baselines as drawn in Decree number 33-2013