Rejoinder of Colombia - Volume I

INTERNATIONAL COURT OF JUSTICE
_____________________________________________
ALLEGED VIOLATIONS OF SOVEREIGN
RIGHTS AND MARITIME SPACES IN THE
CARIBBEAN SEA
(NICARAGUA v. COLOMBIA)
REJOINDER OF THE
REPUBLIC OF COLOMBIA
VOLUME I
15 November 2018

TABLE OF CONTENTS
PART I
OVERVIEW OF COLOMBIA’S CASE
Chapter 1
INTRODUCTION 3
A. The Unsupported Nature of Nicaragua’s Claims Regarding the Alleged Violations of its Sovereign Rights 5
(1) The Alleged “Incidents” 6
(2) The Contiguous Zone 15
B. The Real Scope of Colombia’s Position and the Constitutional Court’s Ruling Regarding the Pact of Bogotá 17
C. Colombia’s Counter-claims 22
(1) Nicaragua’s Infringement of the Traditional Fishing Rights of the Inhabitants of the San AndrÉs Archipelago 23
(2) The Unlawfulness of Nicaragua’s Straight Baselines 25
D. The Structure of the Rejoinder 26
Chapter 2
COLOMBIA’S LEGITIMATE INTERESTS IN THE SOUTHWESTERN CARIBBEAN SEA 31
A. Introduction 31
B. Freedoms of Navigation and Overflight, and Other Internationally Lawful Uses of the Sea 33
C. Colombia’s Presence in the Southwestern Caribbean Sea, including in Nicaragua’s EEZ, is an exercise of its Freedoms of Navigation and Overflight and an Internationally Lawful use of the Sea, which does not Infringe Nicaragua’s Sovereign Rights 38
iii
(1) The Presence of the Colombian Navy falls within the Freedom of Navigation afforded to all States under International Law 38
(2) The Enjoyment by Colombia of its Freedoms of Navigation and Overflight represents an Internationally Lawful Use of the Sea and does not Infringe Nicaragua’s EEZ rights 44
D. Colombia is exercising its Freedoms and Rights to Protect Legitimate Interests and Concerns 47
(1) Colombia is not Acting in a Policing Fashion 48
(2) Colombia’s Navy Presence is Necessary for the Prevention of Transnational Organized Crime at Sea, Especially Drug Trafficking 50
(3) Colombia’s Obligation to Assists Vessels in the Southwestern Caribbean Sea 54
(4) Colombia’s Environmental Observing and Informing Activities do not Infringe Nicaragua’s rights 59
(a) Colombia’s environmental concerns are consistent with general international law and the Cartagena Convention, and do not impair Nicaragua’s sovereign rights and jurisdiction. . . . . . . . . . . . . . . . .64
(b) Colombia is fulfilling its responsibilities towards fragile ecosystems and environmentally vulnerable communities 71
E. Conclusions 78
iv
PART II
COLOMBIA HAS NOT VIOLATED NICARAGUA’S SOVEREIGN RIGHTS OR MARITIME SPACES
Chapter 3
NICARAGUA’S ALLEGED INCIDENTS IN THE SOUTHWESTERN CARIBBEAN SEA 85
A. Introduction 85
B. The Court Has No Jurisdiction over Events Occurring after 27 November 2013 87
(1) The Limits of the Court’s Jurisdiction Ratione
Temporis 88
(2) The Defects in Nicaragua’s Jurisdictional Arguments 94
C. None of the Alleged “Incidents” Constitutes a Violation by Colombia of Nicaragua’s Sovereign Rights 102
(1) Nicaragua’s Own Conduct Undermines its Claims 103
(2) Colombia’s Right to be Present in the Area 107
(3) The Individual “Incidents” 110
D. Colombia Has Not Awarded Petroleum Blocks in Nicaragua’s EEZ 128
(1) Nicaragua’s New Claim is Inadmissible. . . . . . . . . . . . .128
(2) The Claim is Without Merit in any Event 132
E. The False Accusation that Colombia Has Authorized Fishing in Nicaragua’s EEZ 135
F. Conclusions 145
v
Chapter 4
THE CONTIGUOUS ZONE OF THE COLOMBIAN ISLAND TERRITORIES IN THE SOUTHWESTERN CARIBBEAN SEA 147
A. Introduction 147
B. Decree No. 1946 of 2013 (as amended in 2014) 149
C. Colombia’s Integral Contiguous Zone May Overlap with Nicaragua’s EEZ 154
D. The Powers Set Out in the Decree Are in Conformity with International Law 175
(1) Article 33 does not Reflect Customary International Law 177
(2) The Customary International Law on the Contiguous Zone 182
(3) The Correct Interpretation of Article 33 187
(4) The Powers set forth in the Decree are not Contrary to International Law 204
E. The Outer Limits of Colombia’s Contiguous Zone Do Not Contravene Nicaragua’s Rights 207
F. Neither the Enactment nor the Application of the Decree Violated any Rights of Nicaragua 221
G. Conclusions 235
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PART III
COLOMBIA’S COUNTER-CLAIMS
Chapter 5
NICARAGUA’S INFRINGEMENT OF THE TRADITIONAL FISHING RIGHTS OF THE INHABITANTS OF THE SAN ANDRÉS ARCHIPELAGO 239
A. Introduction 239
B. The Dependence of the Inhabitants of the Archipelago on their Traditional Fishing in the Southwestern Caribbean Sea 243
C. The Traditional Fishing Rights Survived the Emergence of the EEZ Regime and the 2012 Judgment 246
D. Nicaragua’s Express Recognition of the Traditional Fishing Rights 257
E. The Evidence Corroborates the Existence of the Traditional Fishing Rights 262
F. The Evidence Substantiates the Infringement of the Traditional Fishing Rights 280
G. Conclusions 286
Chapter 6
NICARAGUA’S VIOLATION OF COLOMBIA’S SOVEREIGN RIGHTS AND MARITIME SPACES THROUGH ITS STRAIGHT BASELINES DECREE 289
A. Introduction 289
B. Nicaragua’s Claimed Baselines Violate the Principles of International Law Governing the Drawing of Straight Baselines 294
(1) The Configuration of Nicaragua’s Islands does not Justify the Use of Straight Baselines set by Decree No. 33-2013 296
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(a) The Court’s case law does not support Nicaragua’s claim that its basepoints are posited on a “fringe of islands” 296
(b) Nicaragua does not demonstrate that its basepoints are posited on islands constituting “a fringe of islands along the coast in its immediate vicinity” 303
(2) The Absence of a Sufficiently Close Link between the Sea Areas Enclosed and the Land Domain 321
C. Conclusions 323
Chapter 7
SUMMARY 325
A. Nicaragua’s Claims 325
B. Colombia’s Counter-claims 330
SUBMISSIONS 333
TABLE OF CONTENTS VOLUME II 337
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4
PART I
OVERVIEW OF COLOMBIA’S CASE
1
2
Chapter 1
INTRODUCTION
1 1 Colombia is filing this Rejoinder pursuant to the Court’s
Order dated 15 November 2017, which fixed 15 November 2018
as the time-limit for its submission 1
1 2 As Colombia will show, Nicaragua’s claims rest on a
serious mischaracterisation of the facts and a misapplication of
the law. When the facts are examined, it will be seen that
Colombia’s conduct has been entirely in keeping with its
customary international law rights in the exclusive economic
zone,2 and has not impeded the exercise of Nicaragua’s
sovereign rights. Indeed, as shown below and in Annex 71 to
this Rejoinder, since the 2012 Judgment,3 Nicaragua’s fishing in
the relevant area has increased dramatically, undiminished by
any alleged harassment by Colombia 4
1 3 With respect to the law, Nicaragua seeks to present its
EEZ as if it was its territorial sea, limiting Colombia’s freedom
of navigation and overflight, as well as other internationally
1 Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v Colombia), Counter-claims, Order of
15 November 2017, I.C.J. Reports 2017, p. 315, para. 82 (B).
2 Hereinafter “EEZ”.
3 Territorial and Maritime Dispute (Nicaragua v Colombia),
Judgment, I.C.J. Reports 2012, p. 624 (hereinafter “2012 Judgment”).
4 See Annex 71: Ministry of Foreign Affairs of Colombia, Report on
Nicaraguan Fishing Statistics in the Caribbean Sea
3
lawful uses of the sea, to no more than a right of innocent passage This misguided approach is reflected not only in the way Nicaragua has argued its case,5but also in the words of its own Presidentand high-ranking officials 1 4For example, on 26November 2012, just after the Court’s Judgment was rendered, President Ortega proclaimedthat Nicaragua was “exercising aerial and maritime sovereignty” in the “recovered area” granted by the Court 6Similarly, on 13August 2013, Rear-Admiral Marvin Elías Corrales, stated that President Ortega had instructed the Naval Force to “exercise sovereignty in the sea and jurisdictional airspace restored to Nicaragua by the International Court ofJustice”.7And on 19August 2015, President Ortega reiterated the point, stating that Nicaragua had “a new territorial sea” of “90,000 square kilometres”, in which it would act accordingly under the Court’s Judgment 8Thesetypesof assertionsby President Ortegaandhigh-ranking Nicaraguan civil and military authorities claiming 5Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia),Reply of Nicaragua (hereinafter, “NR”), paras. 2.35-2 38 6Annex 1: Message from President Daniel Ortega to the People of Nicaragua, 26 November 2012.7Annex 2: Speeches at the 33rdAnniversary of the Nicaraguan Naval Force, 13 August 2013.8Annex 5: Speeches at the 35thAnniversary of the Nicaraguan Naval Force, 19 August 2015. Similarly, inFebruary 2017, when referring to the 2012 Judgment, President Ortega reiterated that “Nicaragua is already exercising sovereignty in that territorial sea” (Annex 64: La Prensa, Daniel Ortega did not present results, 22 February 2017). 4
Nicaragua’s sovereignty over its EEZ are constant and
reiterative 9
1 5 While such statements are wrong as a matter of law, they
show how Nicaragua’s case is built on a false legal premise:
Nicaragua’s EEZ is not territorial sea, and it is not an area over
which Nicaragua is entitled to exercise sovereignty.
A. The Unsupported Nature of Nicaragua’s Claims
Regarding the Alleged Violations
of its Sovereign Rights
1 6 Nicaragua’s claims rest on two basic contentions The
first is that Colombia has violated Nicaragua’s sovereign rights
by, as Nicaragua characterizes it, aggregating to itself the right
to engage in a “systematic monitoring, surveillance and policing
operation” in Nicaragua’s EEZ,10 and installing “a naval
9 For instance, on 1 August 2013, General Spiro José Bassi, Head of
the Nicaraguan Air Force, highlighted its participation in the Peace and
Sovereignty Mission General Augusto C. Sandino, “exercising sovereignty
with our air resources in the air and maritime spaces restored to our People
by the International Court of Justice” (Annex 3: Speeches at the 34th
Anniversary of the Nicaraguan Air Force, 31 July 2013). Similarly, on
21 February 2015, General Julio César Avilés, Head of the Nicaraguan
Army, stated that the “Naval Force, with support from the Air Force,
exercises sovereignty” and “particularly (…) since November 2012, it has
done so in the waters of the Caribbean that were recognized by the
International Court of Justice” (Annex 7: Speeches at the 81st Anniversary of
General Augusto C. Sandino's transit to immortality, 21 February 2015). For
its part, in March 2017, Congressman Wálmaro Gutiérrez stated that the ICJ
had recognized the “sovereignty of Nicaragua up to 200 nautical miles from
its coasts in the Caribbean” (Annex 65: El Nuevo Diario, Congressmen
repeal “patriotic tariff”, 8 March 2017).
10 NR, para. 2.52.
5
presence to occupy Nicaragua’s waters and treat them as their own”.11The second is that Colombia has engaged in “an internationally wrongful act” by enacting an Integral Contiguous Zone around the islands of the San Andrés Archipelago.12Seemingly as an afterthought, the Reply also adds a new claim never advanced before –namely, that Colombia continues to offer hydrocarbon blocks in areas within Nicaragua’s EEZ in violation of Nicaragua’s sovereign rights, an allegation that is demonstrably untrue, as Nicaragua is well aware.(1)THE ALLEGED “INCIDENTS”1 7With respect to the first contention, Colombia has in no way acted as if it has “policing powers” within Nicaragua’s EEZ; nor has Colombia adopted a policy that treats these waters as its own. When the facts relating to the “incidents” are examined, it will be seen that Colombia’s conduct has been responsible and non-threatening Ithas been fully in line with the freedoms of navigation and overflight, and other internationally lawful uses of the sea,that it enjoys,to undertake activities aimed, inter alia, at observing whether there areany illegal drug trafficking or environmentally harmful practices in the area Colombia has neither impeded Nicaraguan naval vessels or fishing boats from operating in Nicaragua’s EEZ,nor has it violated Nicaragua’s sovereign rights, and Nicaragua is 11NR, para. 2.34.12NR, para. 3 8 6
unable to show otherwise. In short, there is no policy to usurp
Nicaragua’s EEZ rights.
1 8 To the contrary, it is Nicaragua that assumes it has full
and unfettered sovereignty over its EEZ, not just the limited
sovereign rights and jurisdiction that international law allocates
to coastal States, such as Nicaragua 13 For example, while
Nicaragua purports to accept that Colombia has freedom of
navigation and overflight in Nicaragua’s EEZ,14 it seeks to
equate those freedoms with the more limited rights that apply in
the territorial sea. Thus, Nicaragua cites UNCLOS – a treaty to
which Colombia is not a State party – and refers to Article 18,
which is devoted to the right of innocent passage in the
territorial sea, not the EEZ, for declaring that “navigation”
merely encompasses “the passage of ships or the movement of
ships on water”.15 This is tantamount to recognizing no more
than a right of innocent passage for Colombia through
Nicaragua’s EEZ, a proposition that is wholly untenable and
finds no support in customary international law or UNCLOS
13 Although Colombia is not a party to the United Nations Convention
on the Law of the Sea (hereinafter “UNCLOS”), in any event, Nicaragua is,
and as a State party thereto, it is bound by its provisions. Some of the
obligations incumbent on a party to UNCLOS are not limited to other States
parties to the Convention. Under Article 2(1), “States Parties” is a defined
term. Yet, other provisions – e g Articles 56 (2) and 58 – establish that the
coastal State shall have due regard to the rights and duties “of other States”,
which is an obligation not limited to States parties
14 NR, para. 2.13.
15 NR, paras. 2 36 and 2 38
7
1 9The most that can be said is that there is a general principle reflected in Article 58, paragraph 3 of UNCLOS, that, in the EEZ, States shall have due regard to the rights and duties of the coastal State Colombia has not failed to pay due regard to Nicaragua’s sovereign rights. Indeed, Nicaraguan officials recognize that fishing by Nicaraguan boats in the area has significantly increased since the Court’s 2012 Judgment,16a fact that Colombia documented in its Counter-Memorial and which is supplemented by the information provided in Annex 71hereto 171 10On 28 February 2018, the National Institute of Development Information of Nicaragua (INIDE, from its Spanish acronym) published statistics regarding Nicaraguan fishing in the Caribbean Sea drawn from previousstudies carried out by the NicaraguanInstitute for FishingandAquaculture(INPESCA, from its Spanish acronym) These show that, since the Court’s 2012 Judgment, Nicaragua has enjoyed a 107% increase of total catch from the CaribbeanSea,16The Chief of the Nicaraguan Naval Force, Rear-Admiral Marvin Elías Corrales Rodríguez, acknowledged that Nicaraguan fishermen had not been fishing in the area before the Court’s Judgment, but that by 18 November 2013, one year after the Judgment, 16 fishing boats were operating in those waters Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaraguav Colombia), Colombia’s Preliminary Objections (hereinafter, “CPO”), Annex 43.17Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia),Colombia’s Counter-Memorial (hereinafter “CCM”), para. 3.21 and Graphic No. 2 at p. 107.8
with significant increases in the number of Nicaraguan fishing
vessels and annual fishing days 18
1 11 The table on the following page shows in graphic form
this increase It casts grave doubt on Nicaragua’s claim that
Colombia’s conduct has had an adverse effect on Nicaragua’s
ability to exercise its sovereign rights over the living resources
of its EEZ.
1 12 In the light of the above, the two critical questions are:
(i) What are the rights of Nicaragua in its EEZ? and (ii) Is there
any evidence that Colombia has violated those rights? As the
Applicant in the present case, Nicaragua bears the burden of
proving that its sovereign rights have been violated Although
Colombia will show in Chapter 2 that it acts in conformity with
its rights and duties pursuant to its legitimate interests in the
Southwestern Caribbean Sea, it does not need to prove that its
conduct is expressly authorized under international law.
18 Annex 71.
9
Graphic CR 1Reported Landing of Major Fishery Resources by Nicaragua in the Caribbean Sea 2011-2016 (by Species)
10
1 13 In considering these issues, it should be recalled that
Nicaragua, whether under customary international law or
UNCLOS, only possesses sovereign rights and jurisdiction in its
EEZ, not sovereignty. Pursuant to Article 56, paragraph 1, of
UNCLOS, which reflects customary international law,
Nicaragua’s sovereign rights exist solely
“for the purpose of exploring and exploiting,
conserving and managing the natural resources,
whether living or non-living, of the waters
superjacent to the seabed and of the seabed and its
subsoil, and with regard to other activities for the
economic exploitation and exploration of the
zone”.
1 14 At the same time, under the customary rule embodied in
Article 56, paragraph 2, in exercising these rights, Nicaragua has
an obligation to have due regard to the rights and duties of other
States, including Colombia
1 15 None of Colombia’s conducts of which Nicaragua
complains impeded Nicaragua from exercising its sovereign
rights This is evident from five overriding factors that are
mutually consistent and fundamentally undermine Nicaragua’s
claims
1 16 First, Colombia is fully entitled to be present in
Nicaragua’s EEZ in the exercise of the freedoms of navigation
and overflight, and of other internationally lawful uses of the
sea, provided that it has due regard for the sovereign rights of
11
Nicaragua Contrary to Nicaragua’s assertions,19customary international law does not deprive Colombia of the right to observe and collect information about the activities of maritime traffic in the area. In particular, Colombia has compelling interests to be on the look-out for suspicious boats that may be engaged in drug smuggling across the Southwestern CaribbeanSea Colombia also has a vested interest in the preservation of the environmental integrity of the area, which includes the Seaflower Biosphere Reserve –a unique area of special environmental importance that has been recognized byUNESCO. Furthermore, Colombia has an interest in ensuring the safety and livelihood of the inhabitants of the San Andrés Archipelago, particularly the Raizales –descendant of the enslaved Africans and the original Dutch, British and Spanish settlers –many of whom continue to rely on the sea for their sustenance Engaging in any of these activities causes no prejudice to Nicaragua Indeed, it is to the benefit of the international community. Moreover, the activities in question are fully justified as a corollary of Colombia’s freedoms of navigation and overflightand other internationally lawful usesof the seain the region 1 17Second, Nicaragua has produced no reliable evidence with respect to the “incidents” that are said to underlie its claims Rather than relying on contemporaneous evidence showing that Colombia engaged in an internationally wrongful 19See NR, paras. 2.26-2 27 and 2 52 12
conduct, Nicaragua cites non-contemporaneous and third-party
sources, including newspaper articles and indirect reports
allegedly furnished from Nicaraguan fishing boats to its Naval
Force, well after the events complained of occurred. These are
erroneous in fact and insufficient in law Actually, they are not
“incidents” at all. In Chapter 3, therefore, Colombia will
demonstrate on a case-by-case basis that Nicaragua has not met
its burden of proving that Colombia impeded its vessels from
exercising its sovereign rights.
1 18 Third, Nicaragua’s claims are belied by the
contemporaneous statements of its most senior political and
military officials While Nicaragua continues to harp on what it
contends is Colombia’s “rejection” of the 2012 Judgment,20 it
was Nicaragua’s President himself, Daniel Ortega, who referred
to the need to downplay what he termed “all this media
turbulence” by stating, just three months before Nicaragua filed
its Application in this case, that Colombia’s Navy “has been
respectful and there has not been any kind of confrontation
between the Colombian and Nicaraguan Navy”.21 Similarly, it
was the Chief of the Nicaraguan Naval Force – someone who
would be expected to know if there had been any provocations
or “incidents” – who affirmed one year after the Judgment was
delivered that “[t]here have not been any conflicts and that is
why I want to highlight that in one year of being there we have
20 NR, para. 4.44.
21 CPO, Annex 11, p. 118.
13
not had any problems with the Colombian Navy”.22And it was General Avilés, the Chief of the Nicaraguan Army, who, on 18March 2014, four months afterthe Pact of Bogotá ceased to be in force between Nicaragua and Colombia and the Application was filed, emphasized: “There are no incidents” involving the Colombian Navy 231 19Fourth, at no time during this period did Nicaragua raise a single complaint to Colombia about any so-called “incidents”. The first time Nicaragua sent a note of complaint to Colombia was in September 2014, conveniently just a few weeks before Nicaragua filed its Memorial and well after the Pact of Bogotá had ceased to be in force between Nicaragua and Colombia 1 20Fifth, while Nicaragua claims that Colombia has engaged in a systematic policy of harassing Nicaraguan fishing vessels, the fact is thatstatistically, even if those alleged events were true (quod non), they are de minimisin relation to the combined number ofdays spent by all Nicaraguan fishing vessels in the area (i.e. fishing trip days). For example, in 2013, the number of events alleged by Nicaragua represents0 021%ofitsfishing trip days As can be seen in Annex 71, similar statistics follow for 2014, 2015 and 2016 2422CPO, Annex 43, p. 355.23CPO, Annex 46, p. 367.24For 2014, the number of events alleged by Nicaragua represents 0.057% of its fishing trip days; for 2015, itrepresents 0.018%; and for 2016, itrepresents 0,005%.14
1 21 In short, Nicaragua’s claims are not supported by
evidence, and they cannot be reconciled with the repeated and
consistent affirmations made by its senior officials
(2) THE CONTIGUOUS ZONE
1 22 Nicaragua has also not demonstrated that Colombia
violated Nicaragua’s sovereign rights and maritime spaces by its
adoption of Decree No. 1946, Article 5 of which provided for
the establishment of a contiguous zone around the Colombian
islands comprising the San Andrés Archipelago. There is not a
single instance that Nicaragua can cite where one of its flagged
vessels has been prejudiced or impeded from exercising
Nicaragua’s EEZ rights within Colombia’s contiguous zone.
1 23 Under customary international law, the jurisdictional
powers that States can exercise in the contiguous zone,
including those enumerated in Decree No 1946 (as amended),
are not incompatible with the sovereign rights a coastal State
Graphic CR 2Nicaraguan Annual Fishing Trip Days and Alleged “Incidents” in the Caribbean Sea Involving Nicaraguan Fishing Ships
15
such as Nicaragua has within its EEZ. Each provides for a distinct set of rights that are not in conflict with each other In other words, contiguous zone jurisdiction may be exercised by one State in an area that lies within another State’s EEZ without displacing the latter’s resource-based EEZ rights Especially in today’s world, contiguous zone rights enable a coastal State to exercise a degree of control close to its shores that is essential to protect its vital interests 1 24Article 101 of Colombia’s 1991 Political Constitution, proclaiming a contiguous zone, states that such a zone “is in accordancewith international law”. For its part, Article 5 of Decree No 1946 (as amended) provides that its application“will be carried out in conformity with international law and Article 7 of the present Decree”. Article 7, in turn, makes it clear that nothing in the Decree will “affect or limit the rights of other states”.25Thus, the legislation of which Nicaragua complains expressly provides that it will be applied in conformity with international law and that it will not affect or limit the rights of third States such as Nicaragua 1 25Colombia’s enactment of the Decree has not affected or limited Nicaragua’s sovereign rights or maritime spaces As noted above, Nicaragua cannot point to any prejudice it has suffered as a result of the adoption of the Decree 25DecreeNo 1946 (as amended) may be found in Annex 7 to the CCM, Vol II at p 77 16
1 26 As Colombia discussed in its Counter-Memorial, and
will again demonstrate in this Rejoinder, the jurisdictional
powers that the Decree grants to it in the contiguous zone are
essential to protect the vital interests of the Archipelago and its
inhabitants, and are consistent with customary international law
and with State practice. Moreover, the spatial extent of the zone
is tailored to the specific geographic characteristics of the
islands of the San Andrés Archipelago, and does not prejudice
the sovereign rights Nicaragua possesses in the waters of its
EEZ.
B. The Real Scope of Colombia’s Position and the
Constitutional Court’s Ruling Regarding
the Pact of Bogotá
1 27 Colombia has not denied Nicaragua’s sovereign rights
and jurisdiction over its maritime spaces, nor has it denied the
binding effect of the 2012 Judgment. Yet, Nicaragua clings to an
array of political statements devoid of legal content, let alone
legal effect. In fact, as demonstrated in Colombia’s Preliminary
Objections, Counter-Memorial and this Rejoinder, Colombia has
not violated Nicaragua’s sovereign rights and maritime spaces
1 28 Moreover, in its Reply Nicaragua asserts that the
Constitutional Court’s ruling regarding certain provisions of the
Pact of Bogotá is a decision that “bar[s] compliance with the
19 November 2012 Judgment” 26 In relation to the scope of the
26 NR, p. 191, Submissions, 1 (e).
17
judgment of Colombia’s Constitutional Court, Nicaragua claims that the “Agent of the Respondent merely said that Colombia and its Constitutional Court now recognize the 2012 Judgmentas binding”27and that “[t]his passage barely clarifies anything.”281 29Colombia previously referred in both its written and oral pleadings on the preliminaryobjections to the scope of the 2014 ConstitutionalCourt’s ruling regarding the Pact of Bogotá 29In the light of Nicaragua’s distortion of Colombia’s true position,the matter willbe briefly revisitedto demonstrate the baseless nature of Nicaragua’s submission 1 30In its PreliminaryObjections, Colombia summarized its position as follows:“In fact, Colombia has never taken any decision not to comply with the Judgment despite the disappointment of certain constituencies in Colombia with parts of it. On the contrary, both its highest officials and its highest court (the Constitutional Court) havemade it clear that the Judgment is binding under international law However, in order to give effect to the Judgment in its domestic legal order (to make it ‘applicable’), it is necessary for Colombia to comply with the requirements of domestic law, in particular with 27NR, para. 1.8.28NR, para. 1 8 29CPO, paras. 2.41-2.46; Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia),PublicSitting, 28 September 2015,CR 2015/22, p. 16, para. 9 and p. 35, para. 18 (Agent) 18
Article 101, paragraph 2, of its Constitution.
Contrary to what Nicaragua would have the Court
believe, there is nothing exceptional in the
distinction between the position under international
law and domestic law, particularly in States
following a dualist approach Nor is it unusual that
time is needed to give effect to an international
obligation, whether under a treaty or a judgment.”30
1 31 Paragraphs 2 38 to 2 46 of the Preliminary Objections
further explained the process before the Constitutional Court
and its subsequent decision.
1 32 For his part, during the public hearings on the
preliminary objections, the Agent of Colombia made it clear that
the Constitutional Court “ruled unambiguously that, pursuant to
Article 94 of the Charter of the United Nations, judgments
rendered by this International Court of Justice are binding and
cannot be disregarded” 31 He further asserted that, as a matter of
international law, Colombia recognised the binding force of the
2012 Judgment, as confirmed by the Constitutional Court 32
Counsel for Colombia also explained that, as a matter of
domestic law,
“decisions of the International Court of Justice
with respect to boundaries had to be incorporated
30 CPO, para. 2.24.
31 Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v Colombia), Public Sitting, 28 September 2015,
CR 2015/22, p. 16, para. 9 (Agent).
32 Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea (Nicaragua v Colombia), Public Sitting, 28 September 2015,
CR 2015/22, p. 17, para. 13 (Agent).
19
into domestic law in the manner provided for by Article 101 of the Constitution: that is, by means of treaties.”331 33In its Reply, Nicaragua has chosen to ignore these explanations and to distort Colombia’s position. This is so for at least two reasons 1 34First, the subject-matter of the dispute –as identified by the Court in its 2016 Judgment on Preliminary Objectionsin the present case–does not coverquestionsconcerning Colombia’s compliance with the 2012 Judgment. Rather, the scope of the present proceedings is limited to“the alleged violations by Colombia of Nicaragua’s rights in the maritime zones which, according to Nicaragua, the Court declared in its 2012 Judgment appertain to Nicaragua”.341 35In its Reply, Nicaraguacontinues to confuse what are in reality two distinct legal questions (compliancewith the 2012 Judgment,and “alleged violations of Nicaragua’s sovereign rights and maritime spaces”) by amalgamating these separate questions into one. Thus, Nicaragua asserts that “[t]he central issue in the present case is precisely that Colombia not only refusedto comply with the 2012 Judgment but breached 33Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaraguav. Colombia),Public Sitting, 28 September 2015,CR 2015/22, p. 37, para. 23 (Bundy).34Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, I.C.J. Reports 2016(hereinafter “Judgment on the Preliminary Objections), p. 32, para 79 20
Nicaragua’s sovereign rights stemming from it”.35 Yet, even if
Nicaragua seeks to portray the former as “the central issue” of
its case (i.e. compliance with the 2012 Judgment), in fact the
Court has already established that the dispute relates only to one
issue: the alleged violations of Nicaragua’s sovereign rights and
maritime spaces
1 36 Second, Nicaragua misrepresents what Colombia’s
Constitutional Court actually decided with respect to the 2012
Judgment As Colombia has already explained, in so far as
questions of boundaries are concerned, Colombia’s 1991
Political Constitution adopts a dualist approach Under the
Constitution, for a boundary to be established or modified as a
matter of Colombian law, a treaty must be signed and ratified
This is the manner in which, according to the Constitutional
Court’s ruling, the 2012 Judgment will have to be incorporated
into domestic law That in no way means that Colombia has
“refused to comply with the 2012 Judgment”, as claimed by
Nicaragua. To the contrary, the Constitutional Court itself noted
that:
“the decisions rendered by the International Court
of Justice, on the basis of the jurisdiction
recognized by Colombia through Article XXXI of
the Pact [of Bogotá], cannot be disregarded, in
conformity with what is prescribed in Article 94 of
the Charter of the United Nations, that provides
that each Member of the United Nations is
committed to comply with the decision of the
35 NR, para. 1.9. (Emphasis added).
21
International Court of Justice in any caseto which it is a party.”361 37Nicaragua’s claimthat Colombia has a systematic policy of disregarding the 2012 Judgment isthusunfounded C.Colombia’s Counter-claims1 38In its Order of 15 November 2017, the Court found that Colombia’s third and fourth counter-claims are admissible and form part of the current proceedings 37Colombia’s third counter-claim requests the Court to adjudge and declare that the traditional fishing rights of the inhabitants of the San Andrés Archipelago, including the Raizales, exist and that Nicaragua has infringed those rights to access and exploit their traditional fishing banks The fourth counter-claim requests the Court to declare that Nicaragua’s system of straight baselines, adopted pursuant to Decree No 33-2013of 19 August 2013is contrary to customary international law and violates Colombia’s sovereign rightsand maritime spaces 36CPO, Annex 4, para. 9.10. (Emphasis added).37Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia),Order of 15 November 2017, paras 82 (A) and 82 (B) 22
(1) NICARAGUA’S INFRINGEMENT OF THE TRADITIONAL FISHING
RIGHTS OF THE INHABITANTS OF THE SAN ANDRÉS
ARCHIPELAGO
1 39 Nicaragua’s Reply seeks to deny the inhabitants of the
San Andrés Archipelago their right to continue exercising their
traditional fishing practices in maritime areas of the
Southwestern Caribbean Sea, on three main grounds First,
Nicaragua asserts that with the adoption of UNCLOS these
traditional rights have been extinguished within its EEZ because
the coastal State has exclusive sovereign rights to explore and
exploit the living resources therein 38 Second, Nicaragua denies
that the local inhabitants of the Archipelago even have such
rights and contends that Colombia has failed to prove that the
rights in question exist.39 Third, even assuming the existence of
such rights, Nicaragua denies that it has infringed them.40
Notwithstanding these denials, Nicaragua nonetheless affirms
that
“it remains open, in the spirit of brotherhood and
good neighbourly relations, to work with Colombia
to reach a bilateral agreement that takes account of
Colombia’s and Nicaragua’s concerns, including
the fishing needs of the Raizales.”41
1 40 On the first point, Nicaragua’s arguments are seriously
misguided Nicaragua does not dispute the fact that traditional
38 NR, paras. 6.7-6 30
39 NR, paras. 6.31-6 76
40 NR, paras. 6.77-6 95
41 NR, para. 6 76
23
fishing rights of nationals of one State have been recognized to exist in the territorial sea of another State even though(i) the latter State possesses sovereignty over its territorial sea as opposed to the quite limited sovereign rights that exist in the EEZ, and (ii)UNCLOS does not expressly refer to such rights. Yet, if traditional fishing rights can exist in the territorial sea of another State, it is counterintuitive, to say the least, to maintain that they cannot exist in the EEZ. Indeed, as will be seen, the jurisprudence shows the contrary 421 41Nicaragua’s second argument –that Colombia has failed to demonstrate that the inhabitants of the Archipelago, including the Raizales, have traditionally fished in what is now part of the waters of Nicaragua’s EEZ –is extraordinary in its boldness. For it is no less than Nicaragua’s President who has repeatedly referred to andrecognized preciselythese traditional fishing rights of the Raizales Indeed, President Ortega has unequivocally stated that “we will respect the historical rights that they have”,43there will be “open communication channels to ensure the Raizalpeople their fishing rights”,44and “the raizal community, living in San Andrés can continue fishing in the Caribbean waters now belonging to Nicaragua and that their rights as native people will not be affected”.45Quite apart from the witness statements Colombia has filed attesting to historical fishing in the area, unilateral statements such as the above 42See Chapter 5 infra 43CCM, Annex 73. See also Annexes 1 and 6to this Rejoinder 44CCM, Annex 74.45CCM, Annex 76.24
emanating from Nicaragua’s highest political authority would
had never been made if the traditional fishing rights of the
inhabitants of the San Andrés Archipelago did not exist, as
Nicaragua now seeks to argue in its Reply
1 42 As for Nicaragua’s third argument – that it has not
infringed the traditional fishing rights of the local inhabitants of
the San Andrés Archipelago – Nicaragua conveniently adopts a
more stringent standard of evidence from the one it applies to its
own claims. In this respect, Colombia will show that the
Nicaraguan Naval Force harasses and bullies the artisanal
fishermen that it intercepts. As a consequence of this conduct,
the artisanal fishermen fear getting stopped by the Nicaraguan
armed agents, which is why they have been forced to abandon
many of their traditional fishing banks
(2) THE UNLAWFULNESS OF NICARAGUA’S STRAIGHT
BASELINES
1 43 In the present case the legality of the straight baselines
that Nicaragua enacted pursuant to its Decree No 33-2013 is
squarely in issue, the Court having found that Colombia’s
counter-claim challenging the legality of Nicaragua’s straight
baselines is admissible. By enacting its decree, Nicaragua has
aggregated to itself, as internal waters, large areas that used to
be territorial sea; and has unilaterally extended the breadth of its
territorial sea and EEZ in a manner that is contrary to customary
international law, as well as the strict conditions for straight
25
baselines set out in Article 7 of UNCLOS, which are binding on Nicaragua 1 44As identified by Colombia in its Counter-Memorial and in this Rejoinder, Nicaragua’s straight baselines run afoul of severalcriteria that govern the validity of a systemof straight baselines For example:Nicaragua’s coast is not deeply indented and cut into; it does not possess a fringe of islands along the coast in its immediate vicinity that justify straight baselines; its straight baselines fail to respect the requirement that they not depart to any appreciable extent from thegeneral direction of the coast;and the sea areas they purport to appropriate as internal waters lying within the baselines are not sufficiently closely linked to the land domain to be subject to the regime of internal waters Consequently, they should be ruled to be legally invalid D.The Structure of the Rejoinder1 45This Rejoinder is organized as follows:Part I of this pleading introduces Colombiaʼsarguments and explains the legitimate interests that Colombia has. Indeed,•Chapter 2 willshowthat Colombia’spresence in the Southwestern Caribbean Sea,including in areas within the waters of Nicaragua’s EEZ,is fully in line with itsrights in thisarea, including 26
freedoms of navigation and overflight and other
internationally lawful uses of the sea
In Part II Colombia will demonstrate that Nicaragua’s allegation
that Colombia has violated Nicaragua’s sovereign rights and
maritime spaces is unfounded in fact and in law, and that
Nicaragua has not met its burden of proof for its claims In
particular:
• Chapter 3 will show that, with respect to the
“incidents” that Nicaragua relies on for its
allegation that Colombia has violated its
sovereign rights, the Court’s jurisdiction is
limited to events that occurred between the date
of the Court’s 2012 Judgment (i e 19 November
2012) and the date when the Pact of Bogotá
ceased to be in force between Nicaragua and
Colombia (i e 27 November 2013, one day after
Nicaragua filed its Application). Following that,
Colombia will demonstrate, on a case-by-case
basis, that none of the “incidents” involved any
violation of Nicaragua’s sovereign rights
Colombia will also show that it has never
authorized industrial fishing in Nicaragua’s EEZ
and that Nicaragua’s claim that Colombia
continues to offer petroleum blocks in the waters
of Nicaragua’s EEZ is false.
27
•Chapter 4 turns to the second element of Nicaragua’s claims –the validity of the contiguous zone established around the islands of the San Andrés Archipelago. Colombia will show that the exercise of its jurisdictional rights in the contiguous zone, and the geographical extent of that zone, are consistent with customary international law, and do not affect Nicaragua’s ability to exercise sovereign rights in the waters of its EEZ. Moreover, Colombia will also demonstratethat it is bound by its own legislation to implement the contiguous zone in accordance with international law and in a manner that does not affect the rights of other States, and that Nicaragua has not provedthat it has suffered any prejudice as a resultof the passage or application of the legislation In Part III, Colombia will demonstrate that its two counter-claims foundadmissible by the Court are well founded In particular:•Chapter 5 addresses Colombia’s counter-claimthat Nicaragua has infringedthe traditional fishing rights of the local inhabitants of the Archipelago –rights that Nicaragua, through thedeclarationsof its President, has expressly recognized to exist. Colombia will also show that 28
Nicaragua’s attempt to deny these rights on the
basis that they have been extinguished with the
adoption of the EEZ regime is misguided
• Chapter 6 deals with the enactment by Nicaragua,
after the 2012 Judgment was delivered, of a
system of straight baselines Colombia will show
that these straight baselines do not conform to the
conditions imposed under both customary
international law and UNCLOS, that they
prejudice Colombia, and that they are thus
contrary to international law
• Chapter 7 contains a short summary of
Colombia’s reasoning It will be followed by
Colombia’s Submissions
Colombia is also filing one volume with the documentary
annexes referred to in the Rejoinder, including an Appendix in
which Colombia will show that, while the Court lacks
jurisdiction to consider the post-critical date events advanced by
Nicaragua, none of them evidences any violation of its
sovereign rights
29
30
Chapter 2
COLOMBIA’S LEGITIMATE INTERESTS IN
THE SOUTHWESTERN CARIBBEAN SEA
A. Introduction
2 1 Nicaragua has portrayed and continues to portray the
conduct of Colombia in the Southwestern Caribbean Sea as one
of sustained infringement of the EEZ regime,46 particularly
through an allegedly repeated obstruction of Nicaraguan
authorities and harassment of Nicaraguan licensed fishing
vessels, so as to give the appearance that confrontation and
divisiveness prevail over cooperation This is far from true 47
Nicaragua speaks at length of “incidents” that would have
involved Colombian authorities in the Southwestern Caribbean
Sea. As will be seen in Chapter 3, this is not the case Colombia
has never claimed a “general right to engage in policing
46 NR, para. 2.10.
47 In fact, there is a friendly and cordial relationship between the
Colombian Navy and the Nicaraguan Naval Force The respective
Commanders have met frequently in naval conferences in Buenos Aires
(September 2014), Cartagena (August 2015), Mexico (September 2017) and
Cartagena (July 2018). Similarly, the two Navies have cooperated in search
and rescue operations – for instance, the Colombian A.R.C. “Caldas” assisted
when four Nicaraguan marines shipwrecked in Luna Verde in December
2013 – and drug interdiction operations – like the recent multilateral
Operation “Orion” in April 2018, which led to the seizing of 18.5 tons of
cocaine and 1 ton of marihuana, and the capture of 85 people. In addition, in
October 2018, two Nicaraguan naval officers attended the VII Naval War
Games of Central America and the Caribbean in Cartagena This type of joint
activities would definitely not happen if the Colombian Navy was indeed
hostile or had a harassing attitude towards the Nicaraguan Naval Force
31
activities inNicaragua’s EEZ.”48And none of the facts reproached by Nicaragua to Colombia can seriously be qualified as “policing activities.”492 2The presence of the ColombianNavy in the Southwestern Caribbean Sea is an exercise of its freedom of navigation and overflight,and other internationally lawful uses of the sea, which is wholly consistent with customary international law AsColombia explained in its Counter-Memorial, itenjoys suchrights in waters of the NicaraguanEEZ. These freedoms allow Colombia to be present in the area and carry out a range of activities, which include observingand informingabout practices that prejudice the marine environmentor that threaten the habitat and livelihood of the inhabitants of the San AndrésArchipelago who have traditional fishing rights in the area;render assistance to persons and vessels in distress at sea;and cooperate to prevent and interdictdrugtrafficking and other forms of transnational crime Allofthe aboveis carried out in accordance with customary international law and the relevant treaties applicable tothese matters 2 3In its Reply, with the intent to challenge Colombia’s presence and activities in the Southwestern Caribbean Sea, Nicaragua erroneously reduces freedoms of navigation and overflight, as well as other internationally lawful uses of the sea, to innocent passage This mistaken conclusion is derived from 48NR, paras. 2.26-2 56 49NR, paras. 2.26-2 60 32
Nicaragua’s apparent belief that the 2012 Judgment granted to it
full and unimpeded sovereignty over the waters of its EEZ.
However, Colombia will show that Nicaragua’s understanding
of the freedoms of navigation and overflight, and other
internationally lawful uses of the sea, is contrary to international
law (Section B), and that its presence in the Southwestern
Caribbean Sea, including in the waters of Nicaraguaʼs EEZ, is
the legal exercise of these freedoms and an internationally
lawful use of the sea, which does not infringe Nicaragua’s
sovereign rights and jurisdiction (Section C) Further, Colombia
will show that it is not acting in a general policing fashion in the
waters of the Nicaraguan EEZ, but rather, it is exercising its
freedoms and rights to protect legitimate interests and concerns,
including the need to prevent transnational crime at sea, drug
trafficking, the need to ensure safety for fishermen, the
protection of fragile ecosystems and the well-being of
vulnerable communities by ensuring a healthy environment for
these communities (Section D)
B. Freedoms of Navigation and Overflight, and other
Internationally Lawful Uses of the Sea
2 4 Apart from the limited sovereign rights and jurisdiction
reserved to the coastal State in the waters of its EEZ, therein
other States enjoy freedom of navigation and overflight as well
as other internationally lawful uses of the sea – including for
their foreign military ships
33
2 5Rather thancontestingthat Colombia is entitled to freedom of navigation and overflight in Nicaragua’s EEZ under customary international law,50Nicaragua:•Tries to limit the scopeof these freedoms by asserting that freedom of navigation merely encompasses a right of “passage”51(i e that a ship can only sailfrom one point to another) 52•Argues that third States do not enjoy the same liberties it does inthe waters ofits EEZ because “the high seas does not have the status of a ‘residual regime’in relation to the EEZ so thatin the event of doubt as to the existence or scope of coastal State rights in the EEZthe ‘high seas presumption’ against the existence of coastal State jurisdiction over foreign-flag ships would operate.”53•Asserts that “Colombia must establish that the rights that it claims in Nicaragua’s EEZ are ‘attributed’ to it, and not to Nicaragua, by the regime of the EEZ.”542 6Nicaragua is in error on all three points 50NR, para. 2.11.51NR, para. 2.36.52NR, paras. 2.38and2 40 53NR, para. 2 8 54NR, para. 2.10.2 34
2 7 First, as for the scope of the freedom of navigation,
Nicaragua ignores the notion of “freedom”, and erroneously
reduces it to a mere right to navigate from point A to point B 55
2 8 There is no doubt that freedom of navigation entails the
freedom of movement of vessels But freedom of navigation
also means the freedom of operations at sea,56 which
encompasses the right to navigate for any lawful purpose
2 9 Second, freedom of navigation in waters of another
State’s EEZ entails paying due regard to the coastal State’s
limited sovereign rights, but these are otherwise unaffected 57
However, some activities that can be freely exercised on the
high seas fall under the jurisdiction of the coastal State in its
EEZ. Conversely, those activities that do not fall under the
55 NR, para. 2 40
56 R. O’Rourke, Maritime Territorial and Exclusive Economic Zone
(EEZ) Disputes Involving China: Issues for Congress, Congressional
Research Service, 2017, p. 4, available at:
http://www.andrewerickson.com/wpcontent/
uploads/2017/10/CRS_ORourke_China-Maritime-EEZDisputes_
R42784_20171016 pdf (last visited: 1 November 2018).
57 This has been confirmed by ITLOS in the M/V ‘Virginia G’ case In
this case, the Tribunal addressed the question whether the activity of
bunkering while navigating was subject to the exclusive jurisdiction of the
coastal State It held that the coastal State has no competence with regard to
bunkering activities not directed to fishermen, thereby implicitly, but
necessarily, acknowledging that this activity is encompassed into freedom of
navigation, M/V “Virginia G” (Panama/Guinea-Bissau), Judgment, ITLOS
Reports 2014, p. 4, p. 70, para. 223 Y Tanaka comments that some countries
do no adopt regulation on bunkering activities in the EEZ. This is the case of
the U.K. and other States. This is why, except when the coastal State does
adopt specific regulation, “fishing vessels remain free to supply and to
receive bunkers in the EEZ”, Y. Tanaka, “Navigational Rights and
Freedoms”, in D. R Rothwell, A. G. Oude Elferink, et al (eds.), The Oxford
Handbook of the Law of the Sea, Oxford University Press, 2015, p. 554
(available at the Peace Palace Library)
35
jurisdiction of the coastal State can be freely exercised by third States while navigating in its EEZ, to the extent, of course, that they do not infringetherights of the coastal State and of other States. For example, freedom of navigation in the EEZ includes:“the right to effectuate operations with regard to the towing and rescue of vessels ( )These actions are connected with the freedom of navigation and,consequently, a coastal State should neither reserve thisright to itself, as itmay do within its territorial sea, nor demand from other States a prior request about the possibility of conducting such rescue actions.”582 10Likewise, the freedom of overflight in the EEZ is the same as that enjoyed on the high seas While contemporary international law transformed large parts of the high seas into EEZ, it has not affected the freedom of overflightoverthe EEZ. 2 11The 1944 Chicago Convention, which was concluded before the introduction of the EEZ ininternational law,distinguished between the territories of the contracting parties and the high seas 59When the concept of the EEZ was introduced in UNCLOSIII, the Secretariat of the International Civil Aviation Organisation conducted a study on the legal implications of UNCLOS on the Chicago Convention and other air law instruments That study concludedthat:58A. A. Kovalev, Contemporary Issues of the Law of the Sea, Eleven InternationalPublishing, 2004, p. 56 (available at the Peace Palace Library).59Convention on International Civil Aviation, 7 December 1944, 15UNTS 296 36
“For all practical and legal purposes, the status of
the airspace above the EEZ and the regime over the
EEZ is the same as over the high seas and the
coastal States are not granted any precedence or
priority ”60
2 12 It follows that the scope of the freedom of overflight
over the high seas and in Nicaragua’s EEZ is not limited by
customary international law, nor by UNCLOS, because the
airspace above Nicaragua’s EEZ is international. Yet, Nicaragua
repeatedly claims to be exercising “sovereignty in the airspace
over the waters restored by the International Court of Justice” 61
2 13 Third, Nicaragua is not correct in asserting that, under
customary international law as reflected in UNCLOS Article 59,
and as far as the EEZ is concerned, if a right is not specifically
attributed to third States, then it must be vested on the coastal
State 62 It suffices to read the ordinary meaning of the article to
understand that, to the contrary, its sole purpose is to resolve
conflicts that could only arise if rights in the EEZ are not
automatically attributable to the coastal State
60 International Civil Aviation Organisation, “United Nations
Convention on the Law of the Sea – Implications, if any, for the application
of the Chicago Convention, its Annexes and other international air law
instruments”, doc. C-WP/7777 (1984), para. 11.12, in Netherlands Institute
for the Law of the Sea (ed.), International Organizations and the Law of the
Sea Documentary Yearbook 3, 1987, p. 243 (available at the Peace Palace
Library)
61 See Annexes 1-5 and 7
62 NR, para. 2.8.
37
2 14In sum, Nicaragua’s understanding of the basics of the law applicable in theEEZ is wholly erroneous. C.Colombia’s presence in the Southwestern CaribbeanSea, including in Nicaragua’s EEZ, is an exercise of its freedomsof navigation and overflight and an internationallylawfuluse of the sea,which doesnotinfringeNicaragua’ssovereign rights2 15Nicaragua wrongly asserts that the activities carried out by the Colombian Navy in its EEZ are not lawful(Sub-section 1). Moreover, even if these activities were not permitted under the regime of freedoms of navigation and overflight,or were not internationally lawful usesof the sea,quod non,it would be for Nicaragua, not Colombia, to prove that they infringe its rights in its EEZ, which it has not done (Sub-section 2) (1)THE PRESENCE OF THE COLOMBIAN NAVY FALLS WITHIN THEFREEDOM OF NAVIGATION AFFORDED TO ALL STATES UNDER INTERNATIONAL LAW2 16Nicaragua complains that the mere presence of the Colombian Navy in the Southwestern Caribbean Sea, including within the waters of its EEZ, is not an exercise of Colombia’s freedom of navigation. However, to the extent that Colombian ships simply observe and inform about unlawful activities, they do not impede the exercise by Nicaragua of its sovereign rights.2 17Even with respect to military vessels, while Article 58 of UNCLOS “does not expressly mention military activities or 38
survey activities”,63 it is undisputable that “the naval powers
maintain that the language was intended to ensure that
traditional freedoms of the seas in article 87 were preserved in
the EEZ.”64
2 18 Moreover, State practice clearly confirms that States are
entitled to carry out military operations in a foreign State’s EEZ.
As has been recalled recently:
“The United States, like most other countries,
believes that coastal states under UNCLOS have
the right to regulate economic activities in their
EEZs, but do not have the right to regulate foreign
military activities in their EEZs.
U S military surveillance flights in international
airspace above another country’s EEZ are lawful
under international law, and the United States
plans to continue conducting these flights as it has
in the past.”65
2 19 In this sense, that country’s Handbook on the Law of
Naval Operations clearly states that in the EEZ, as international
63 R. Beckham and T. Davenport, “The EEZ Regime, Reflection After
30 Years”, Proceedings from the 2012 LOSI-KIOST Conference on Securing
the Ocean for the Next Generation, 2012, p. 10, available at:
https://www.law.berkeley.edu/files/Beckman-Davenport-final pdf (last
visited: 1 November 2018).
64 R. Beckham and T. Davenport, “The EEZ Regime, Reflection After
30 Years”, Proceedings from the 2012 LOSI-KIOST Conference on Securing
the Ocean for the Next Generation, 2012, p. 10, available at:
https://www.law.berkeley.edu/files/Beckman-Davenport-final pdf (last
visited: 1 November 2018).
65 R. O’Rourke, Maritime Territorial and Exclusive Economic Zone
(EEZ) Disputes Involving China: Issues for Congress, Congressional
Research Service, 2017, available at: http://www.andrewerickson.com/wpcontent/
uploads/2017/10/CRS_ORourke_China-Maritime-EEZDisputes_
R42784_20171016 pdf (last visited: 1 November 2018).
39
waters, “the coastal State cannot unduly restrict or impede the exercise of the freedoms of navigation in and overflight of the EEZ. Since allships and aircraft, including warships and military aircraft, enjoy the high seas freedoms of navigation and overflight and other internationally lawful uses of the sea related to those freedoms, in and over those waters, the existence of an EEZ in an area of naval operations need not, of itself, be of operational concern to the naval commander.”662 20Similarly, the Australian Navyconsiders that “the EEZ regime in UNCLOS does notpermit the coastal state to limit military activities in its EEZ”67because of the high seas freedoms that exist therein, which permit the conduct of military activities, with some limitations, such as to “refrain from unlawful threat, have due regard for the coastal state’s rights and duties, due regard for others using the EEZ, and observe obligations under other treaties and rules”.6866United States Navy, “The Commander’s Handbook on the Law of Naval Operations”, 2017, p. 2-9, available at: http://www.jag.navy.mil/distrib/instructions/CDRs_HB_on_Law_of_Naval_Op… pdf(last visited: 1 November 2018).67Royal Australian Navy, Commander M.H. Miller, “The impact on the Law of the Sea Convention on the roles and activities of the RAN in meeting Australian Government requirements”, p. 53, available at: http://www.defence.gov.au/ADC/Publications/Geddes/2005/PublcnsGeddes200… pdf(last visited: 1 November 2018).68Royal Australian Navy, Commander M.H. Miller, “The impact on the Law of the Sea Convention on the roles and activities of the RAN in meeting Australian Government requirements”, p. 58, available at: http://www.defence.gov.au/ADC/Publications/Geddes/2005/PublcnsGeddes200… pdf(last visited: 1 November 2018). 40
2 21 For its part, the United Kingdom’s Ministry of Defence
asserts that:
“The long-standing principle of freedom of
navigation in international waters allows maritime
forces to access areas of national interest and
potential threat This access guarantees freedom of
navigation for maritime forces up to 12 nautical
miles from a coastline to allow options for
intervention at a time and place of national
choosing.”69
2 22 A similar position is adopted by Spain, who also
considers that in international waters (including another State’s
EEZ), “any State may conduct training and exercises with its
naval forces, including with real fire”, provided that they
“respect the purposes for which that exclusive economic zone
has been declared.”70
2 23 Moreover, a warship can even exercise the right of visit
in another coastal State’s EEZ (a right that the Colombian Navy
did not exercise in waters of the Nicaraguan EEZ):
“[W]arships, military aircrafts, or other ships and
aircrafts clearly marked and identifiable as being
on government service and duly authorised, may
engage in the right of visit (…) the right of visit
69 United Kingdom Ministry of Defence, “Joint Doctrine Publication
0 - 10: UK Maritime Power”, 5th edition, 2017, p. 37, para. 3.18, available at:
https://assets.publishing.service.gov.uk/government/uploads/system/uplo…
attachment_data/file/662000/doctrine_uk_maritime_power_jdp_0_10 pdf
(last visited: 1 November 2018).
70 Annex 72: Kingdom of Spain, Ministry of Defence, Law of the Sea
Manual, Volume 1, 27 May 2015.
41
applies not only on the high seas, but also in the EEZ, subject to the coastal state rights therein”.712 24Thus, Colombiamay carry out military manoeuvres and surveys in Nicaragua’s EEZ so long as they are consistent with international law, in particular Article 2(4) of the UNCharter, and do not trespasson Nicaragua’s sovereign rights More generally, as expressly provided by Article 58 of UNCLOS, which reflects customary international law, in the EEZ, all States “enjoy (...) the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms”.722 25In this regard, contrary to what Nicaragua suggests, Colombia is certainly not the only State having its Navy deployed in the area. Many States, both Caribbean and non-Caribbean, have vessels conducting maritime surveillance and other operations in the area. For example, the multinationaldrug interdictionOperation “Martillo”73which involved 15 Statesfrom the Americas and Europe,74has ledto the confiscationof 693 metric tons of cocaine and USD 25 million in bulk cashand the detention of1,863 suspects and 581 vessels and aircraft,71E. Papastavridis, The Interception of Vessels on the High Seas: Contemporary Challenges to the Legal Order of the Oceans, Hart Publishing, 2013, p. 66 (available at the Peace Palace Library). 72Emphasis added 73See CCM, para. 2.101.74Belize, Canada, Chile, Colombia, Costa Rica, El Salvador, France, Guatemala, Honduras, the Netherlands, Nicaragua, Panama, Spain, United Kingdom and United States 42
since its launch on January 2012 75 In this context, Canada has
deployed destroyers, frigates, maritime coastal defence vessels,
aircrafts and warships in the Caribbean Sea 76
2 26 Similarly, the Royal Netherlands Navy has led Operation
“Caribbean Venture” and conducted drug interdiction operations
in waters of the EEZ of the Dominican Republic and Haiti 77
2 27 For its part, the United Kingdom’s Royal Navy maintains
a “near constant presence in the Caribbean (…) deterring drug
traffickers and patrolling the seas” 78
75 United States Department of Defence, “Operation Martillo Still
Hammering Away at Illicit Trafficking”, 30 March 2016, available at:
https://www.defense.gov/News/Article/Article/708314/operation-martillos…-
hammering-away-at-illicit-trafficking/ (last visited: 1 November 2018);
see also United States Southern Command, “Operation Martillo”, available
at: http://www.southcom.mil/Media/Special-Coverage/Operation-Martillo/
(last visited: 1 November 2018); other maritime interdiction operations
before and after the filing of Nicaragua’s Application can be found in Annex
70: Ministry of Foreign Affairs of Colombia, Sample Maritime Drug
Interdiction Operations before and after the filing of Nicaragua’s
Application
76 National Defence and the Canadian Armed Forces, “Operation
CARIBBE”, available at: http://www.forces.gc.ca/en/operations-canadanorth-
america-recurring/op-caribbe page (last visited: 1 November 2018).
77 Coastguard News, “Royal Netherlands Navy and U.S. Coast Guard
seize 13,000 pounds of marijuana and 12 smugglers”, 27 May 2015, available
at: https://coastguardnews.com/royal-netherlands-navy-and-u-s-coast-guardse…-
13000-pounds-of-marijuana-and-12-smugglers/2015/05/27/ (last
visited: 1 November 2018), and “Coast Guard offloads $17 million of
cocaine”, 20 November 2015, available at: https://coastguardnews.com/coastguard-
offloads-17-million-of-cocaine/2015/11/20/ (last visited: 1 November
2018)
78 United Kingdom Royal Navy, “Atlantic Patrol Tasking North”,
available at: https://www.royalnavy.mod.uk/news-and-latestactivity/
operations/north-atlantic/atlantic-patrol-tasking-north (last visited: 1
November 2018)
43
2 28France has deployed naval vessels to “patrol off the island of Hispaniola to detect and intercept the primary maritime flow of drug trafficking from Colombia and Venezuela” 792 29The aforesaid is very much in line with Nicaragua’s concession that Colombia has a “right to take action in Nicaragua’s EEZ if it happens to encounter a ship suspected of the illegal transportation of narcotics, or to search for such a ship if it has a reason to suspect that it is there.”80Nevertheless, suchpresence cannot be qualified as an “occupation” of another State’s EEZ, as suggested by Nicaragua,81since the coastal State’s exclusivity in its EEZ does not comprise druginterdiction activities and itis questionable that the figure of occupation applies at all in the EEZor when there are no hostilities (2)THE ENJOYMENT BY COLOMBIAOF ITS FREEDOM OF NAVIGATION AND OVERFLIGHT REPRESENTS ANINTERNATIONALLY LAWFUL USE OF THE SEA ANDDOESNOTINFRINGE NICARAGUA’SEEZRIGHTS2 30In accordance with the principle of onus probandi incumbit actori, the burden is on Nicaragua to prove that its 79Ministry of Armed Forces of France, “FAA : coopération franco-américaine enmer des Caraïbes”, 17 December 2014, available at:https://www defense gouv fr/espanol/operations/operations/forces-prepositionnees2/forces-de-souverainete/antilles/actualites/faa-cooperation-franco-americaine-en-mer-des-caraibes(last visited: 1 November 2018).80NR, para. 2.34.81NR, para. 2.34.44
sovereign rights have been violated 82 In contrast, the burden is
not on Colombia to prove that it did not violate Nicaragua’s
sovereign rights or to prove that each one of its actions are
permitted under international law
2 31 If the Court finds that Colombia’s exercise of its
freedoms of navigation and overflight is lawful, as Colombia
submits is the case, that disposes of Nicaragua’s claims
However, the converse is not true. Thus, even if the Court finds
that Colombia’s activities are not specifically included within
the principle of freedoms of navigation and overflight, or do not
constitute an internationally lawful use of the sea, Nicaragua
still has to show that they constituted violations of its sovereign
rights. In other words, if an activity of Colombia were not
specifically recognised as encompassed into its freedoms of
navigation and overflight, or another permissible use of the sea,
under customary international law, quod non, that does not
automatically mean that such activity is unlawful vis-à-vis
Nicaragua Nicaragua must still prove that Colombia’s actions
impeded, or materially prejudiced, Nicaragua’s ability to
exercise its sovereign rights. Since Nicaragua has failed to make
82 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment,
I.C.J. Reports 2010, p. 71, para. 162; Maritime Delimitation in the Black Sea
(Romania v Ukraine), Judgment, I.C.J. Reports 2009, p. 86, para. 68;
Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South
Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 31, para. 45;
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro),
Judgment, I.C.J. Reports 2007, p. 128, para. 204; Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para.
101
45
this demonstration, its claims must fail.832 32In this regard, it can be recalled that the EEZ is a sui generiszone with a distinct legal regime that has been specifically negotiated to balance the interests of coastal States and other maritime States. In its EEZ, “[t]he coastal State’s rights relate essentially to the natural resources”,84and are limited or inexistent with respect to other matters. Concerning the prevention of drug trafficking for example, “the coastal State may assert jurisdiction over foreign vessels suspected of being engaged in drug trafficking only with regard to such activities occurring on artificial islands or other installations pursuant to Article 60 (2), LOSC”.85Therefore, Nicaragua cannot claim an exclusive jurisdiction for addressing allmatters in its EEZ. 2 33It follows that any suggestion that Colombia violated Nicaragua’s sovereign rights merely because it carried out certain observing and informing activities in its EEZ that are not specifically authorizedin UNCLOS (to which Colombia is notaparty) or under customary international law, is untenable. Nicaragua has to go further to show that its own rights were violated, which it has failed to do. 83See Chapter 3 infra.84R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rded., Manchester University Press, 1999, p. 166 (available at the Peace Palace Library) 85Ε. Papastavridis, “Crimes at Sea: A Law of the Sea Perspective”, in Ε. Papastavridis, K. N. Trapp (eds.), La Criminalité en Mer/Crimes at Sea,The Hague Academy of International Law, Martinus Nijhoff Publishers, 2014, p.13 (available at the Peace Palace Library) 46
D. Colombia is exercising its freedoms and rights to protect
legitimate interests and concerns
2 34 Nicaragua’s Reply completely misses the point that the
nature, purpose, and intensity of the exercise by Colombia of its
freedoms of navigation and overflight in the area must be
assessed in their factual and geographic context, namely in the
Southwestern Caribbean Sea, where there are a number of
special characteristics that are highly relevant In an attempt to
support its allegations that Colombia has infringed its rights and
jurisdiction, Nicaragua distorts Colombia’s position by asserting
that Colombia claims a “general right to engage in policing
activities in Nicaragua’s EEZ”.86
2 35 This is simply not the case. As will be shown, Colombia
is not acting in a policing fashion (Sub-section 1). Moreover,
contrary to what Nicaragua asserts,87 the special circumstances
of the Southwestern Caribbean Sea further explain and justify
the necessity for Colombia to take appropriate measures
accepted by international law to prevent transnational organized
crime at sea, especially drug trafficking (Sub-section 2)
Likewise, since ships flying Colombia’s flag also carry out
activities in the area, it is Colombia’s duty, as the flag State, to
provide them safety at sea and other support; this latter
obligation is also due to ships of any nationality (Sub-section 3)
Lastly, it will be argued that Colombia’s observing and
86 NR, pp. 19-32
87 NR, paras. 1.13-1 18
47
informing onenvironmentally-harmfulactivities doesnot infringe Nicaragua’s rights(Sub-section4) (1)COLOMBIA IS NOT ACTING IN A POLICING FASHION2 36Nicaragua tries to qualify Colombia’s activities in its EEZ as “policing activities” 88However, none of the facts reproached by Nicaragua to Colombia can be qualified as such, as demonstrated in Chapter3 below 2 37Colombia further notes that, in order to lend support to its case, Nicaragua also complains of what it portrays as wrongful “intent”, or “policies” on the part of Colombia. Indeed, Nicaragua’s written pleadings show that Nicaragua’s focus is not so much onwhat Colombia’s Navy did, but onthesignificance Nicaragua attributes to Colombia’s presence in the Southwestern Caribbean Sea Nicaragua’s case is thus not so much about facts –although Colombia will show in Chapter3below that Nicaragua’s version of the facts is seriously flawed–but about Colombia’sintent or policy that, according to Nicaragua, would qualify as an illegal infringement of its sovereign rights 2 38Nicaragua’s arguments fail, first, because the law on State responsibility does not attach any consequence to intent;8988NR, paras. 2 26-2 60 89International Law Commission, “Commentary to the Draft Articles on Responsibility of States for Internationally Wrongful Acts”, Report of the International Law Commission on the Work of its Fifty-Third Session,48
second, because, in any event, the reasons why Colombia’s
Navy is present in the area are legitimate; and third, because
Colombia has not interfered with Nicaragua’s exercise of its
sovereign rights since the 2012 Judgment
2 39 In this regard, the special circumstances of the
Southwestern Caribbean Sea, described and explained by
Colombia in Chapter 2 of its Counter-Memorial, are relevant,
because they form the basis for what is the objective factual and
legal context (or “the relevant circumstances”, to take the words
of UNCLOS Article 59). Needless to say, the mere presence of a
navy vessel is not tantamount to occupation – a notion which
has a specific legal content in international law Moreover, as
noted above, Nicaragua’s unfounded accusations derive from
the fact that it wrongly equates EEZ rights to sovereignty over
the territorial sea
2 40 It is striking that Nicaragua does not address or challenge
these circumstances as presented in Colombia’s Counter-
Memorial Nicaragua only contends that they are irrelevant, 90 an
argument that Colombia submits is misguided For the sake of
completeness, some further elements may be added to the
relevant context provided in the Counter-Memorial
A/56/10, Commentary to Article 2, p. 36, para. 10, available at:
http://legal.un.org/ilc/documentation/english/reports/a_56_10.pdf (last
visited: 1 November 2018).
90 NR, paras. 1.13-1 18
49
(2)COLOMBIA’SNAVY PRESENCE IS NECESSARY FOR THE PREVENTION OF TRANSNATIONAL ORGANIZED CRIMEAT SEA,ESPECIALLY DRUG TRAFFICKING2 41Colombia is one of the Caribbean States taking appropriate measures to prevent transnational organized crime committed at sea, including in cooperation with third States. In fact, Colombia’s action in this respect is an absolute necessity in the Caribbean Sea, because the area is particularly conducive for drug trafficking 2 42In its Reply, Nicaragua asserts that it“does not contest Colombia’sright to take action in Nicaragua’s EEZ if it happens to encounter a ship suspected of the illegal transportation of narcotics, or to search for such a ship if it has reason to suspect that it is there Nicaragua’s complaint isthat Colombia has erected and implemented a regime of surveillance and enforcement that treats Nicaragua’s EEZ as if it were Colombian national waters”.912 43Thisassertion obfuscates completely the reality, visibly misunderstood by Nicaragua. The reality, as illustrated by the mapproduced in Colombia’s Counter-Memorialat Figure 2 6, is that drug trafficking in the area is a widespread phenomenon Drug trafficking in the Caribbean is not a sporadic event thatColombia’s Navy may randomly encounter from time to time A substantial presence is thus necessary to address drug trafficking in the Caribbean 91NR, para. 2.34.2 50
2 44 Located between Colombia, Central America, the
Caribbean and North America, the San Andrés Archipelago is
particularly vulnerable to drug trafficking As the Commander
of the Caribbean Coastguard of Colombia has put it:
“In both [drug trafficking] routes [to the United
States and Europe], the San Andres Archipelago is
like a gas station in the middle of the sea, an
alternative to find fuel and logistic support”.92
2 45 An aggravating factor is the poor control exercised by
Nicaragua in its maritime areas. This area, and in general the
Caribbean coast of Central America, has been described as
“(…) kind of Wild West that in places has changed
little from the days of the pirates It has hidden
ports and forts that are no-go zones for law
enforcement, places from which the drug runners
operate with complete impunity.”93
In this respect Nicaragua’s assertion that it “shares Colombia’s
concern regarding law enforcement [and] security” calls for
caution 94 This situation has been particularly well documented
by the Foundation Insight Crime in 2012,95 in particular in a
92 Annex 60: El Espectador, Drug traffickers and the Caribbean route,
31 March 2014
93 J. G. Stravridis, Sea Power: The History and Geopolitics of the
World’s Oceans, Penguin Press, 2017, p. 294 (available at the Peace Palace
Library)
94 NR, para. 1.16.
95 InSight Crime is a foundation dedicated to the study of organized
crime, considered by it as the principal threat to national and citizen security
51
comprehensive report published by Jeremy McDermott96on 19July 2012 97Moreover, as evidenced by this report, it is not uncommon forfishing vessels to engage in drug trafficking, and thus try to hide their unlawful conduct behind the appearance of fishing activities In suchcircumstances, a strong naval presence is necessary to curb drug trafficking and transnational organized crime more generally, a goal Colombia is committed to.2 46Colombiahas enteredinto some 88 bilateral treatiesand agreementsrelated to drug trafficking 98Most of these agreements have been signed with Caribbean States, including Costa Rica, Cuba, the Dominican Republic, Honduras, Jamaica, Mexico, Panama, Venezuela and the United States Additionally, the Colombian Navy has concluded agreements on in Latin America and the Caribbean (https://www.insightcrime.org/about-us/#ethical-commitment), with which Colombia has no relation whatsoever 96Jeremy McDermott is the Executive Director and co-founder of InSight Crime. He also leads the investigations and coverage of Panama, the Caribbean and South America (except Brazil) and manages the team, which is based primarily in Medellín, Colombia McDermott has two decades of experience reporting from around Latin America. He is a former British Army officer, who saw active service in Northern Ireland and Bosnia. Upon retiring from the military he became a war correspondent, covering the Balkans, based in Bosnia, then the Middle East from Beirut, before being sent to Colombia to cover the conflict. He has travelled extensively throughout Latin America Before setting up InSight Crime he worked for many of Britain’s most prestigious media outlets, including the BBC, the Daily Telegraph and The Economist. He specializes in drug trafficking, organized crime and the Colombian civil conflict He has an MA from the University of Edinburgh 97J. McDermott, “Bluefields: Nicaragua’s Cocaine Hub”, InSight Crime, 19 July 2012, available at: https://www.insightcrime.org/investigations/bluefields-nicaraguas-cocai…(last visited: 1 November 2018).98Ministry of ForeignAffairs of Colombia, Virtual Library of Treaties, available at: http://apw.cancilleria.gov.co/tratados/SitePages/BuscadorExternoForm.as…(last visited: 1 November 2018).52
naval and maritime cooperation with partner authorities from
Jamaica, Costa Rica, Mexico, Honduras, the Dominican
Republic, Guatemala, Panama and the Netherlands 99
2 47 There is no legal requirement that the Colombian Navy,
after the Court’s 2012 Judgment, cease its operations in waters
of Nicaragua’s EEZ, so long as the latter’s sovereign rights are
not impeded
2 48 As indicated in Colombia’s Counter-Memorial, drug
interdiction activities carried out by the Colombian Navy
between 2009 and 2016 around the San Andrés Archipelago
resulted in 59 299 kg of cocaine seized and 163 people arrested
for drug trafficking 100 In addition to aggregate data, in Annex
70, Colombia includes a list of some maritime drug interdiction
operations conducted by Colombia individually or jointly with
partner States, before and after the filing of Nicaragua’s
Application
2 49 In sum, Colombia takes its duty to prevent drug
trafficking in the Southwestern Caribbean Sea seriously
Nicaragua, on the other hand, does not.
99 CCM, para. 2.107.
100 CCM, footnote 111.
53
(3)COLOMBIA’SOBLIGATION TO ASSISTS VESSELS IN THE SOUTHWESTERN CARIBBEAN SEA2 50AsColombiahas previously recalled, the inhabitants of the San Andrés Archipelago, and especially the Raizales,have always depended on what the sea could provide and relied on the trade of its resources with the neighbouring communities across the Southwestern Caribbean Sea 101Thus, afundamental role in this community is played by the many fishermen who have ancestrally fished far awayandenjoy traditional fishing rights inareas overlapping with Nicaragua’s EEZ.102In addition, the inhabitants of the Archipelagorely on asubstantial amount of imports from the mainland, many of which are transported by sea 2 51As a result,there is a significant marine traffic inand aroundthe San Andrés Archipelagobyvesselswhich navigate both in Colombian and third States’ waters, including those of Nicaragua’s EEZ. These vessels are of many nationalities and include, of course, Colombian-flagged vessels –over which Colombiahas anumber of rights, duties and responsibilities,such as to protectand providerelief in cases of security or technical difficulties 2 52As a matter of fact, the weather in the Caribbean Sea is unpredictable, creating a high risk for vessels navigating in the 101CCM, Chapter 2, Section C. 102CCM, Chapter 2, Section C;and Chapter 5infra 54
area – especially for the Raizales who have recourse to
traditional methods of fishing and sailing
2 53 It should be stressed that “as individuals, fishers enjoy
the rights provided by general human rights treaties”103 and
Article 4(1) of the American Convention on Human Rights
provides that Colombia is bound to protect the right to life of
fishermen under its jurisdiction as the flag State 104
2 54 Moreover, as a State party to the 1979 International
Convention on Maritime Search and Rescue,105 Colombia is
under an obligation to establish a marine search and rescue area
to assist any vessel or person in distress at sea 106 Under Article
2.1.10 of the Annex to this Convention,
“Parties shall ensure that assistance be provided to
any person in distress at sea They shall do so
regardless of the nationality or status of such a
person or the circumstances in which that person is
found.”
103 I. Papanicolopulu, “International law and the protection of fishers”,
in A del Vecchio (ed.), International Law of the Sea: Current Trends and
Controversial Issues, Eleven International Publishing, 2014, p. 326 (available
at the Peace Palace Library)
104 M. Rota, “Case-law of the Inter-American Court of Human Rights:
Chronicle for the Year 2008”, in Journal for Constitutional Theory and
Philosophy of Law, Vol. 9, 2009, p. 133: “The article 4 of the Convention
provides two obligations: the negative obligation to not endanger life (art. 4),
and the positive obligation to protect this right, including against the actions
of private individuals. Indeed, the Court granted a horizontal effect to the
Convention.”, available at: https://journals.openedition.org/revus/502 (last
visited: 1 November 2018).
105 Hereinafter “SAR Conventionˮ
106 SAR areas are based on States’ technical capacities and do not
necessarily conform to political boundaries
55
Colombia’s SAR area, as well as that of other Caribbean States (including Nicaragua) is shown in FiguresCR 2 1and CR 2 1abelow:107107United States Coast Guard, “IMO Maritime SAR Regions”, p. 9 (excerpt), available at: https://www.dco.uscg.mil/Portals/9/CG-5R/nsarc/IMO%20Maritime%20SAR%20R… pdf(last visited: 1November 2018) 56
Figure CR 2.1Source: http://docs.imo.org/Shared/Download.aspx?did=75819MAPS ON THE WORLD’S MARITIME SEARCHAND RESCUE REGIONS(CENTRAL AMERICA AND SOUTHWESTERN CARIBBEAN SEA)See CR 2.1afor detail
57
Figure CR 2.1aSource: http://docs.imo.org/Shared/Download.aspx?did=75819MAPS ON THE WORLD’S MARITIME SEARCHAND RESCUE REGIONS(EXCERPT OF CENTRAL AMERICA AND SOUTHWESTERN CARIBBEAN SEA)
58
2 55 Nicaragua, for its part, is not sufficiently equipped to
ensure the safety of its vessels in the Southwestern Caribbean
Sea. This explains why Nicaraguan fishermen rely on the
Colombian Navy at times of distress 108
2 56 Rather than ‘policing’, the Colombian Navy’s presence
in the area is in conformity with international law and required
for ensuring the safety of vessels in the area, including its own
(4) COLOMBIA’S ENVIRONMENTAL OBSERVING AND INFORMING
ACTIVITIES DO NOT INFRINGE NICARAGUA’S RIGHTS
2 57 The present dispute involves crucial environmental
stakes and challenges that Nicaragua fails to consider Nicaragua
asserts that “the rights and duties of the Parties with respect to
the preservation and protection of the environment are [not]
relevant to the present case” 109
2 58 In its Counter-Memorial, Colombia showed that “the
rights and obligations of the Parties to protect and preserve the
marine environment, including the environment of the local
inhabitants of the Archipelago”110 are part of the dispute before
the Court
108 See CCM, Chapter 8.
109 NR, para. 1 12
110 CCM, para. 3.23. See also CCM, paras. 3.24-3 85
59
2 59To portray environmental issues as wholly irrelevant to the caseis both incorrectand misleading It is incorrect because the existence of environmental concerns is central to Colombia’s naval presence in the area of the Southwestern Caribbean Sea, as are certain ongoingpractices that risk damaging the marine environment It is misleading because Nicaragua is trying to “distract”111or “divert”112the Court’s attention from one crucial fact, namely that both States,within their different scope of competence, should adopt the appropriate measures to protect the fragile ecosystems of the Southwestern Caribbean Sea and to ensure the right to a healthy environment tothe individuals under their jurisdiction, including the Raizales 1132 60On the other hand, as demonstrated in Colombia’s Counter-Memorial, under general international law, the existence of sovereign rights in maritimeareas does not exempt a State such as Nicaragua from complying with its international obligations towards other States, including Colombia 114Nor does it affect Colombia’s rights and duties, such as the duty to cooperate in theprotection ofthe fragile marine environment of the Southwestern Caribbean Sea and the right to ensure the protection, promotion and respect of the right of the population of the Archipelago, including the Raizales, to live in a healthy environment 111NR, para. 1.11.112NR, para. 1.2.113For the source of the relevant legal obligations, see CCM, Chapter 3, Section C 114CCM, para. 3.3.2 60
2 61 Nicaragua seeks to exclude other States in the
Southwestern Caribbean Sea from exercising their rights and
complying with their duties, in particular when fragile
ecosystems and fragile human communities are at stake, which
is at odds with the EEZ regime under general international law.
Such an attitude is also detrimental to local communities, which
have a right to a healthy environment within the Southwestern
Caribbean Sea
2 62 These issues form part and parcel of the dispute In
accordance with its jurisprudence, it is for the Court itself to
determine and delineate the subject-matter of a dispute in an
objective manner, taking into account “the Application itself [as
well] as subsequent proceedings, the Submissions of the Parties
and statements made in the course of the hearings” 115
2 63 The Court reiterated the same position in the case
concerning Certain Questions of Mutual Assistance in Criminal
Matters (Djibouti v. France) when it stated that “it would not
confine itself to the formulation by the Applicant when it was
called upon to determine the subject of the dispute” 116
2 64 In its Memorial and Reply, Nicaragua describes the
present dispute as one that “originates in Colombia’s actions
115 Case concerning Right of Passage over Indian Territory (Merits),
Judgment of 12 April 1960: I.C.J. Reports 1960, p. 33.
116 Certain Questions of Mutual Assistance in Criminal Matters
(Djibouti v France), Judgment, I.C.J. Reports 2008, p. 207, para. 70.
61
subsequent to the Judgment”117of 19 November 2012 and, in particular, Colombia’s “exercise of purported sovereign rights and jurisdiction in thosewaters, and its prevention of Nicaragua from exercising its sovereign rights and jurisdiction within its maritime boundaries as fixed by the Court ”1182 65As theCourt has noted, in order for itto adjudicate over a State’s conduct, such as Colombia’s, it must “discharge (…)an assessment of the legality of (…)conduct of States with regard to the obligations imposed upon them by international law”.119The Court cannot undergo this process without considering its wider context,i e the exercise of freedom of navigation and overflight plusconcerns regardingthe protection and preservation ofthe fragile ecosystems of the Southwestern Caribbean Sea, coupled with the right to a healthy environment of the Raizales and other vulnerable communities of the Archipelago 120All of these constitute “otherinternationallylawful uses of the sea” of the kind that, under customary international law, third States possess in another State’s EEZ.2 66Nicaragua relies on the Court’s Orderconcerning theadmissibility of Colombia’s counter-claims to extrapolate that 117Alleged Violations ofSovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia),Memorial of Nicaragua (hereinafter, “NM”), para. 1.35.118NM, para. 1.35.119Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p 155,para 41 (Emphasis added) 120For the source of the relevant legal obligations see CCM, Chapter 3, Section C 62
environmental “rights and obligations are unrelated to
Nicaragua’s claims” 121 But that is beside the point That
decision cannot prejudge the merits of a case, nor can they
prevent a Respondent from formulating its defence on the merits
as it deems appropriate 122
2 67 Colombia’s efforts to cooperate in the preservation and
protection of the fragile environment of the Southwestern
Caribbean Sea are inextricably linked to the subject-matter of
the dispute and are therefore within the scope of the present
proceedings 123 The environmental activities of Colombia in the
Southwestern Caribbean Sea, which are limited to observing and
informing others of environmental risks and the need to protect
the fragile ecosystem, are in accordance with international law.
2 68 The oversimplification of the dispute by Nicaragua is
untenable and Colombia respectfully invites the Court to take
into account the legitimate environmental concerns in the
settlement of the present dispute
2 69 It is the said legitimate concerns that have prompted
Colombia’s actions (i e observing and informing) in conformity
with international law, conducted in accordance with general
121 NR, para. 1.20.
122 See e g Certain Phosphate Lands in Nauru (Nauru v Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 262, para. 56, and
Oil Platforms (Islamic Republic of Iran v United States of America),
Preliminary Objections, I.C.J. Reports 1996, Separate Opinion of Judge
Ranjeva, p 844
123 NR, para 1 22
63
international law and have not impaired Nicaragua’s sovereign rights and jurisdiction(a); and are consistent with Colombia’s responsibilitiestowards fragile ecosystems and environmentally vulnerable communities(b) (a)Colombia’s environmental concernsare consistent with general international lawandthe Cartagena Convention,and do not impair Nicaragua’ssovereignrightsand jurisdiction2 70Colombia’s conduct has been compatible with the rights of Nicaragua as the coastalStateand is in line with the duty that both Nicaragua and Colombia have under general international law and in particular the Cartagena Convention124to preserve the fragile environment of the Southwestern Caribbean Sea 2 71As noted above, Nicaragua’s Memorial attempts to deny the relevance of rights and duties concerning the protection of the environment of the Southwestern Caribbean Sea and the preservation of the right to a healthy environment of the Raizales 2 72Nicaragua goes further and vaguely refers to “rights and obligations” that “are not pertinent, insofar as Colombia pretends to exercise them in areas in which Nicaragua has exclusive sovereign rights and jurisdiction” 125124Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region See, in particular: Articles 4, 5 and 10 (in CCM, Annex17) 125NR, para. 1.19.2 64
2 73 In other parts of its Reply, Nicaragua dismisses the
“catalogue of measures adopted – and treaties signed – by
Colombia since the 1970s in order to protect the environment
(…) in the Southwestern Caribbean Sea” 126
2 74 In yet other parts of its Reply, Nicaragua contests
Colombia’s understanding of those rights and obligations,
asserting that there is a
“link between them and the harassment and
intimidation of Nicaragua’s fishing vessels, or the
prevention of Nicaragua’s authorities from
exercising their law enforcement mission and from
issuing fishing licenses to Colombia’s nationals
and foreign boats in zones appertaining to
Nicaragua” 127
2 75 Nicaragua thus purports to avoid discussing the treaties
relevant to the Caribbean Sea Not even a passing mention is
made to the Cartagena Convention, which is in fact crucial to
understand Colombia’s environmental concerns in the
Southwestern Caribbean Sea
2 76 Through its inconsistent approach, Nicaragua confuses
the existence of environmental rights and obligations with their
implementation 128
126 NR, para. 1.16.
127 NR, para. 1 20
128 See, in particular, the duty and right to protect and preserve the
biodiversity of the Southwestern Caribbean Sea; the duty to exercise due
65
2 77Paragraph2 73 of Nicaragua’sReply is revealing in this respect. Nicaragua explicitly acknowledges that both Colombia and Nicaragua have a duty to protect the environment of the Southwestern Caribbean Sea and that such duties can be found “in relevant treaties to which both Colombia and Nicaragua are parties”. In Nicaragua’s own words:“No one doubts that Colombia and Nicaragua are under duties to protect the biosphere and to take action against activities such as illegal fishing that threaten it No one doubts that many of these duties can be found set out in treaties to which both Colombia and Nicaragua are parties, and which require them to take appropriate action ‘individuallyor jointly’”.1292 78Nicaragua, thus, does not deny that Colombia has duties to protect the marineenvironment and that compliance with the said duties might entail “individual” actions, such as in the case of Colombia’s environmental alerts in the Southwestern Caribbean Sea, whichcan be conducted as long as they are done in accordance with its obligations under general international law and the Cartagena Convention 2 79In thatrespect, Colombia’s environmental activities consisted of informing of the environmental risks at stake and diligence with respect to the environment of the Southwestern Caribbean Sea;and the right and duty to protect the right of the inhabitants of the Archipelago to a healthy, sound and sustainable environment (CCM, Chapter 3, SectionC) 129NR, para. 2.73. (Emphasis added).66
the impact of harmful actions taken by fishermen, as shown in
several annexes to Colombia’s Counter-Memorial
2 80 A first set of Communications shows that the Colombian
Navy vessels informed Nicaraguan vessels about concerns of
damage to the marine environment:
• Communication No 678 of 5 October 2013 mentions
that “[a]lso, a QUERY via marine VHF was completed,
informing that they were carrying out fishing activities in
the ‘Seaflower’ natural reserve, which is internationally
protected by UNES[C]O, reminding it, on numerous
occasions, that performing these fishing activities
constitutes a breach of international norms…”.130
• Communication No 677 of 5 October 2013 also
confirms that: “[l]ikewise, a QUERY by marine VHF
was performed, informing the fishing boat that it was
carrying out a fishing operation in an area of the
‘Seaflower’ natural reserve, which is internationally
protected by UNES[C]O, repeatedly reminding it that it
was in violation of international laws while performing
such operations in that area” 131
2 81 In the same vein, a second set of Colombia’s Navy
Communications alerted on illegal fishing practices by
130 CCM, Annex 43.
131 CCM, Annexes 42, 54 and 57.
67
Nicaraguan fishing vessels:•Communication No 375 of 6 August 2013states:“A.R.C. 801 kept the fishing vessel under surveillance, noticing that it kept artisanal boats carrying out fishing with oxygen tanks”.132•Communication No 059of 16 October 2013: It is mentioned that“taking into account that lobster fishing with divers is internationally considered as predatory due to its adverse environmental impact, I hereby report this activity totheCommand for whatever purposesit sees fit ( )”.1332 82Finally, a third set of Colombia’s Navy Communications refer to predatory fishing activities, specifically fishing with divers, which is a practicethat undermines the protection and sustainability of the marine environment 1342 83It is noteworthy that in many of those communications, Colombia did not assert its own jurisdiction, butmerely invokedenvironmental obligations owed by Nicaragua as well. Thus, the nature of Colombia’s conduct is simply not of the kind that could create even a potential, let alone an actual, conflict with the enjoyment of Nicaraguan EEZ rights. Under customary 132CCM, Annex 37.133CCM, Annex 45.134CCM, Annexes 40, 41, 47 and 48. 68
international law, the regime of the EEZ does not allow a coastal
State from denying the rights and duties of other States,
including environmental rights and duties
2 84 Furthermore, such environmental concerns are in line
with the very object and purpose of the Cartagena Convention,
which was concluded in the light of 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 135
2 85 The Cartagena Convention is based on the customary
international law principle obliging States to protect and
preserve the marine environment, applied to the specific
characteristics of the Wider Caribbean Sea 136
2 86 The Convention reflects the same pro-active spirit as
customary international law and establishes that its
“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
135 CCM, Annex 17, Preamble.
136 CCM, para. 3.36.
69
for this purpose the best practicable means at their disposal and in accordance with their capabilities ”1372 87Colombia rejects Nicaragua’s assertions according to which Colombia was engaged “in harassment or any other conduct in Nicaragua’s EEZ that falls outside an exercise of its rights in good faith and with due regard for the interests of otherStates ”138Colombia also denies that its “obligations in relation to fisheries or the environment or drug trafficking or the repression of other kinds of crime warrant the kind of activities that are in issue in this case ”1392 88It isforNicaragua to discharge its burden of proof and to demonstrate which of its sovereign rights were infringed Nicaragua’s Reply, as its Memorial, is unhelpful in this regard. 2 89Nicaragua cannot invoke its own inaction as a pretext to accuse Colombia of “policing” its waters. As Colombia emphasized, the CartagenaConvention invites States parties to ensure sound environmental management through “the best practicable means at their disposaland in accordance with their respective capabilities.”140This is what Colombia has done through its environmental alerts in the Southwestern Caribbean Sea 2 90The environmental concerns of Colombia do not 137CCM, Annex 17, Article 4. (Emphasis added).138NR, para. 2.68.139NR, para. 2.68.140CCM, Annex 17, Article 4.70
constitute an internationally wrongful act On the contrary, they
are a fulfilment of its responsibilities with respect to fragile
ecosystems and environmentally vulnerable communities
(b) Colombia is fulfilling its responsibilities towards fragile
ecosystems and environmentally vulnerable communities
2 91 The Southwestern Caribbean Sea is host to some very
important ecosystems. As the Court has recently stressed, any
ecosystem should be protected as a whole 141 The due diligence
that is required from States to protect ecosystems is even greater
when the ecosystems at stake are as fragile and interconnected
as those in the Southwestern Caribbean Sea (i) In addition, the
ecosystems of the Southwestern Caribbean Sea are inextricably
linked to the livelihood, survival and basic human needs of
vulnerable communities, such as the Raizales (ii)
(i) The ecosystems of the Southwestern Caribbean Sea
possess special characteristics which require a greater
degree of due diligence
2 92 Because of their fragility and interconnectedness, the
ecosystems of the Southwestern Caribbean Sea possess special
characteristics It is only through a greater degree of due
diligence that the said special characteristics can be taken into
141 Certain Activities carried out by Nicaragua in the Border Area
(Costa Rica v Nicaragua) – Compensation owed by the Republic of
Nicaragua to the Republic of Costa Rica, Judgment of 2 February 2018, para.
78 (not yet printed)
71
account and preserved 1422 93Thiscrucialneed to protect the fragile marine and coastal ecosystems of the Southwestern Caribbean Sea found specific expression through the establishment of the Seaflower Marine Protected Area143and the Seaflower Biosphere Reserve The former is part of the latter, which in turn encompasses the total area ofthe Archipelago The MPA was designed to protect the biosphere reserve and includes the largest, most productive open-ocean coral reefs in the Caribbean Sea 1442 94As Colombiaexplained already in its Counter-Memorial,“[The]resources [of the Seaflower Biosphere Reserve area]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-on142Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) –Compensation owed by the Republic of Nicaragua to the Republic of Costa Rica,Judgment of 2 February 2018, para. 78(not yet printed) 143Hereinafter “MPA”.144The Colombian Ocean Commission has explained that: “The Seaflower Biosphere Reserve houses important ecosystems such as tropical dry forests, mangrove forests, seagrass meadows or seagrass beds, soft bottoms and coralline sand beaches, which are very well preserved (Taylor et al, 2011). Likewise, it has more than 77% of the shallow coralline areas of Colombia (Invemar 2005, 2009, Coralina-Invemar 2012), the world’s third biggest coral reef, deep ecosystems (including deep corals), key species, great richness and diversity of fish, corals, sponges, gorgonacea, macroalgae, queen conch, lobsters, birds, reptiles, insects, among others, which provide countless ecosystem services such as food, coastal protection, recreation, etc. (Conservation International 2008, Burke et al, 2008)” (Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaraguav Colombia), Counter-Memorial of Colombia, Annex 16). 72
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”.145
2 95 The protection of the ecosystems of the Southwestern
Caribbean Sea, which are scattered under various jurisdictions,
requires the cooperation of States in the region.
2 96 The conduct of the Colombian Navy, informing and
warning of dangers to the ecosystems of the Southwestern
Caribbean Sea, in conformity with international law, is aimed at
preventing damage to them
2 97 Nicaragua cannot blow hot and cold It cannot claim that
it cares for the environment, when it is blatantly and without any
argumentation asserting in its Reply that the Southwestern
Caribbean Sea does not present “special characteristics” 146
Nevertheless, it has not challenged Colombia’s lengthy
depiction of the special circumstances of the Caribbean Sea
2 98 It also shows that, far from what it claims in its Reply,
Nicaragua is oblivious to, or unaware of, the potential negative
impact of the deterioration of fragile ecosystems on the
livelihood of vulnerable communities, such as the Raizales.
145 CCM, para. 2.10.
146 NR, paras. 1.13-1 18
73
(ii)The well-being of the Raizalesis intrinsically linked to the sound protection of the environment of the fragile ecosystems of the Southwestern Caribbean Sea2 99Thatthe well-being of the Raizales is intrinsically linked to a sound protection of the environment is self-evident The silence of Nicaragua’s Reply with respect to the right of the Raizales to live in a healthy and sustainable environment is even more striking than its denial of the special characteristics of the Southwestern Caribbean Sea 2 100Colombia is not arguing in a legal void that the protection of the environmentof the Southwestern Caribbean Sea is a prerequisite for ensuring the well-being of indigenous populations and local communities such as the Raizales International law recognizesthe special relationship of indigenous peoples and local communities with the protection of the environment 1472 101Inresponse to a request made by Colombia, in November 2017 theInter-American Court ofHuman Rights148rendered a ground-breaking Advisory Opinion where it expounded on State obligations in relation to the environment, in the context of the protection and guarantee of the rights to life and the right to personal integrity, as recognized in Articles 4 147CCM, Chapter 3, Section C (3).148Hereinafter “I/A Court H. R.”.74
and 5 of the American Convention on Human Rights 149
2 102 In its Advisory Opinion, the Court confirmed the
irrefutable relationship between the protection of the
environment and the realisation of human rights, due to the fact
that environmental degradation affects the effective enjoyment
of other human rights, as follows:
“47. This Court has recognised the existence of an
undeniable relationship between the protection of
the environment and the realisation of other human
rights, since the environmental degradation and the
adverse effects of climate change affect the
effective enjoyment of human rights.”150
2 103 In addition, the I/A Court H R emphasised the
interdependence and indivisibility between human rights, the
environment and sustainable development, since the full
enjoyment of all human rights depends on a favourable
environment Having in mind the protection of local
communities, the Court stated:
“54. From this relationship of interdependence and
indivisibility between human rights, the
environment and sustainable development,
multiple connecting points arise with regard to
which, as expressed by the Independent expert, ʻall
human rights are vulnerable to environmental
degradation, in the sense that the full enjoyment of
149 Annex 69: Inter-American Court of Human Rights, Environment
and Human Rights, Advisory Opinion OC-23/17 requested by the Republic
of Colombia, 15 November 2017 (excerpts).
150 Annex 69.
75
all human rights is contingent upon a favourable environmentʼ” 1512 104The Advisory Opinion lays out a clear legal framework of the shared responsibilities of States to protect the marine environment in the Wider Caribbean region In order to identify the fundamental principles of international environmental law, the I/A Court H R relied extensively on the decisions of the International Court of Justice It stressed the crucial role of the following duties of States:152•States have the obligation to prevent significant environmental damage, within or outside of their territory; •States shall regulate, supervise and control the activities under their jurisdiction which may produce significant damage to the environment;•States must carry out studies on environmental impact when the potential for significant damage to the environment exists; •States must adopt contingency plansin order to minimize the possibility of serious environmental accidents; and•States must mitigate the significant environmental damage they may have caused 151Annex 69.152Annex 69.2 76
2 105 In line with Colombia’s submissions, the I/A Court H R
affirmed that States have the obligation to cooperate in good
faith for the protection against significant transboundary
environmental damage. It did so in the following terms:
“7. With the purpose of respecting and
guaranteeing the rights of life and integrity of the
people under their jurisdiction, States have the
obligation to cooperate, in good faith, for the
protection against significant transboundary harm
caused to the environment.”153
2 106 This ground-breaking Advisory Opinion also builds on
previous decisions of the I/A Court H R , which had addressed
the link between the protection of the environment and the rights
of indigenous peoples and local communities 154
2 107 The responsibility for Colombia to ensure that the
subsistence and traditional fishing activities of the Raizales are
not undermined extends to the entire living space of such
communities. This responsibility entails, as the Interamerican
Commission on Human Rights stated in the Kuna case, that:
153 Annex 69.
154 I/A Court H. R., Case of the Kichwa Indigenous People of Sarayaku
v. Ecuador (Merits and Reparations), Judgment of June 27, 2012, paras 146-
147; Case of the Indigenous People of Mudungandí and the Emberá
Indigenous People of Bayano and their Members v. Panama (Merits), 13
November 2012, paras 233-234; Case of Xákmok Kásek Indigenous
Community v. Paraguay. Judgment of August 24, 2010 (Merits, Reparations
and Costs), para. 85; Case of the Sawhoyamaxa Indigenous Community v.
Paraguay, Judgment of March 29, 2006 (Merits, Reparations and Costs),
para. 118; Case of the Yakye Axa Indigenous Community v. Paraguay,
Judgment of June 17, 2005 (Merits, Reparation and Costs), para. 137; Case
of the Saramaka People v. Suriname, Judgment of November 28, 2007
(Preliminary Objections, Merits, Reparations and Costs), para 88
77
“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 ”1552 108The environmental activities that Colombia conducts in the area,consistin informing vessels that they are engaging in activities that are contrary to international law The discharge of this obligation is especially important in situationswhere significant harm to fragile ecosystems is in question, or in cases of predatory fishing activities that may “entail catastrophic repercussions for the livelihood and economic well-being of the population”156of Colombia E.Conclusions2 109Colombiahas always paid great heed to the protection of the environment, and in particular, to the protection of the fragile ecosystems of the Southwestern Caribbean Sea, shared among several States. In this context, in the spirit of Article 4 of the Cartagena Convention, Colombia has always sought to “jointly, take all appropriate measures” together with other 155Inter-American Commission on Human Rights, Case of the Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayanoand their members v. Panama, Report No. 125/12 of November 13, 2012 (Merits), para. 234, available at: https://www.oas.org/en/iachr/decisions/court/12.354FondoEng.pdf(last visited: 1 November 2018).156Delimitation of the Maritime Boundary in the Gulf of Maine Area, Judgment, I.C.J. Reports 1984, p. 342, para. 237. 78
neighbouring States in order to ensure that the environment of
the Southwestern Caribbean Sea is well preserved, and that the
right of local communities, including the Raizales, to a healthy
environment is fully protected
2 110 Colombia is also acting in this spirit with respect to the
protection of the Seaflower Biosphere Reserve in the context of
the UNESCOʼs Man and Biosphere Program As to the status of
the Seaflower Biosphere Reserve, when UNESCOʼs
International Co-ordinating Council last discussed the issue in
June 2014, it called for “the authorities of Colombia and
Nicaragua to continue to respect the protected areas of the
Seaflower Biosphere Reserve”. It also “encouraged Colombia
and Nicaragua to work together in the peaceful management of
the Seaflower Biosphere Reserve.ˮ157
2 111 Colombia is indeed open to collaborate with Nicaragua
to maintain the level of self-restraint that has allowed the
Seaflower Biosphere Reserve to flourish thus far. In this respect,
it is worth stressing that the acts of the Colombian Navy in the
157 The Council also explicitly invited the parties to: “Evaluate the
possibilities to establish a transboundary biosphere reserve Transboundary
biosphere reserves are jointly managed by two or more countries to ensure
the conservation of the environment, sustainable development and joint
research on issues of relevance of the countries concerned If the authorities
of the two countries so wish, UNESCO can assist in the designation of a
transboundary biosphere reserve with all stakeholders concerned.”
International Co-ordinating Council of the Man and the Biosphere (MAB)
Programme, Twenty-sixth session, 10-14 June 2014, Final Report, Document
SC-14/CONF.226/15, p. 85, 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: 1 November 2018)
79
Southwestern Caribbean Sea have always sought to maintain the level of environmental protection ensured by the existing international legal regime of the SeaflowerBiosphere Reserveas a UNESCO protected reserve 2 112In linewith the object and purpose of the Cartagena Convention, Colombia is willing “to take all appropriate measures in accordance with international law and in accordance with this Convention to protect the marine environment”. Colombia has been doing this in a spirit of cooperation, that it would also like to pursue with Nicaragua, in order to protect the fragile ecosystems of the Southwestern Caribbean Sea and the right to a healthy environment of vulnerable communities 2 113To conclude, the presence of Colombia in the Southwestern Caribbean Sea, including in waters of Nicaragua’s EEZ, conforms to its freedom of navigation and overflightand thus represents an internationally lawful use of the sea Therefore, it is wholly consistent with customary international law 2 114As previously shown, freedom of navigation consists in the right to navigate for any lawful purpose Inparticular, Colombia’s presence in the Southwestern Caribbean Sea is motivated by its legitimate concerns in relation to the marine environment, search and rescue, and transnational crimes, in accordance with internationallaw 80
2 115 As such, and as it will be shown in the next Chapter of
this Rejoinder, the so-called “incidents” alleged by Nicaragua
are artificial and over-exaggerated They simply do not
constitute either real incidents or internationally wrongful acts
81
82
PART II
COLOMBIA HAS NOT VIOLATED
NICARAGUA’S SOVEREIGN RIGHTS OR
MARITIME SPACES
83
84
Chapter 3
NICARAGUA’S ALLEGED INCIDENTS IN THE
SOUTHWESTERN CARIBBEAN SEA
A. Introduction
3 1 In its Memorial, Nicaragua referred to some 36
“incidents” which it claims represent interference by Colombia
with Nicaragua’s sovereign rights in its EEZ – of which only 13
are dated before the critical date. These incidents, to which
Nicaragua has added a few more in its Reply, are alleged to have
involved the threat of the use of force by Colombia’s Navy, the
harassment of Nicaraguan fishing vessels, the granting of fishing
permits to non-Nicaraguan vessels, the offer of hydrocarbon
blocks and the prevention of the Nicaraguan Naval Force from
being able to exercise its law enforcement mission east of the
82nd West Meridian, in violation of international law 158 In its
Judgment on Colombia’s Preliminary Objections, the Court
ruled that it had no jurisdiction to consider Nicaragua’s claims
based on the alleged threat to use force 159 Colombia will
therefore not respond to this aspect of Nicaragua’s claims
further
3 2 In Section B, Colombia will demonstrate that, contrary to
the arguments advanced by Nicaragua in its Reply, the Court
158 NM, paras. 1.9 and 2.22-2 52 and NR, paras. 4.51-4 129
159 Judgment on the Preliminary Objections, p. 33, para. 78 and p. 42,
para 111(1)(c) (dispositif)
85
lacks jurisdiction to consider most of these incidents This is because the vast majority of individual episodes on which Nicaragua reliestook place after the “critical date”, when the Pact of Bogotá ceased to be in force between Colombiaand Nicaragua(27 November 2013) 3 3With respect to the remainder of the “incidents” which are said to have occurred before the critical date, and thus over which the Court has jurisdiction, Colombia’s Counter-Memorial showed that some did not even occur and, in any event, none of them could possibly constitute a violation of Nicaragua’s sovereign rights. In other words, they are not incidents at all Onthe one hand, Nicaragua’s arguments are based on the assumption that Colombia’s freedoms of navigation and overflight, and other internationally lawful usesof the sea,merely comprise the right to navigate from Point A to Point B and nothing more Not only is this proposition untenable as a matter of law, it misses the key point: it is not Colombia that bears the burden of proving that its actions were consistent with its rights; it is for Nicaragua to prove that Colombia’s actions violated Nicaragua’s sovereign rights –a different question. Not only Nicaragua has presentedthe flimsiest of evidence to back-up its allegations, but also the material it relies on misrepresents the facts What is more, Nicaragua also draws unwarranted legal conclusions fromthem. As Colombia will show in Section C, Nicaragua’s Reply offers no new evidence to support any of these so called “incidents”, and they remain unproven.86
3 4 In its Reply, Nicaragua also contends that Colombia’s
National Hydrocarbon Agency “continues to act in direct
contravention of the 2012 Judgment by offering hydrocarbon
blocks in areas within Nicaragua’s EEZ.”160 As Colombia will
show in Section D, this is a new claim, which is therefore
inadmissible It is also baseless Colombia has not licensed or
awarded any petroleum blocks in areas falling outside its own
EEZ.
3 5 The last element of Nicaragua’s claim is that Colombia
has authorized Colombian licensed vessels to fish in
Nicaragua’s EEZ. Although Colombia already showed in its
Counter-Memorial that this claim is without merit,161 in Section
E, Colombia will again explain how Nicaragua has
misrepresented the import of Colombia’s licensing regime and
has failed to show that Colombia issued any such authorisations
As with the other parts of the claim, this allegation is equally
unfounded
B. The Court Has No Jurisdiction over Events Occurring
after 27 November 2013
3 6 Colombia does not contest that the Court has jurisdiction
regarding the 13 alleged “incidents” that are said to have
occurred before Nicaragua filed its Application and before
Colombia ceased to be a party to the Pact of Bogotá As the
160 NR, para. 4 126
161 CCM, para. 4.46.
87
Court ruled in its Judgment on Colombia’s Preliminary Objections, “[t]he 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”.1623 7However, the jurisdictional situation regarding the remaining “incidents” that allegedly took place afterthe Pact of Bogotá ceased to be in force between Nicaragua and Colombia is different 163(1)THE LIMITS OF THE COURT’SJURISDICTIONRATIONE TEMPORIS3 8When delineating the extent of its jurisdiction in the present case, the Court in its Judgment on the Preliminary Objections clearly distinguished between pre and post-critical date events The Court stated that the dispute was circumscribed “to those [events] which allegedly occurred before the critical date”.164It then reiterated that it would focus on “the alleged incidents that were said to have occurred before Nicaragua filed its Application”.1653 9This conforms to Article XXXI of the Pact of Bogotá, which provides for the compulsory jurisdiction of the Court only “so long as the present Treaty is in force”.166As a result, the 162Judgment on the Preliminary Objections, p. 26, para. 48.163CCM, para. 4.21.164Judgment on the Preliminary Objections, p. 33, para. 76.165Judgment on the Preliminary Objections, p. 33, para. 77.166The full text of Article XXXI reads as follows: 88
Court has no jurisdiction to rule on the legality of any alleged
wrongful acts said to be attributed to Colombia after 27
November 2013 when the Pact was no longer in force for
Colombia
3 10 In considering this issue, it should also be recalled that
there are actually two “critical dates”, both of which have
jurisdictional repercussions The first – 26 November 2013 – is
the date on which Nicaragua filed its Application in these
proceedings As the Court noted in its Judgment on the
Preliminary Objections: “The Court recalls that the date at
which its jurisdiction has to be established is the date on which
the application is filed with the Court.”167 Thus, 26 November
2013 was the critical date for determining whether the Court had
jurisdiction over Nicaragua’s claims set out in its Application
“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) The interpretation of a treaty;
b) Any question of international law;
c) The existence of any fact which, if established,
would constitute the breach of an international
obligation;
d) The nature or extent of the reparation to be
made for the breach of an international
obligation.”
167 Judgment on the Preliminary Objections, p. 18, para. 33.
89
3 11The second “critical date” relevant here for jurisdictional purposes is the following day, 27 November 2013, which is when the Pact of Bogotá ceased to be in effect for Colombia as a result of its denunciation one year earlier. Once this happened, the compromissory clause appearing in Article XXXI of the Pact providing for the Court’s jurisdiction also ceased to be applicable to Colombia ratione temporis While this did not affect the scope of the Court’s jurisdiction as established on the date of Nicaragua’s Application, it did mean that the Pact no longer provided a basis for jurisdiction for the Court to rule on the legality of any events relied on by Nicaragua after 27 November 2013 for its claim that Colombia violated its sovereign rights 3 12The Court has recognised that its jurisdiction can be limited by conditions set out in a compromissory clause in a treaty As the Court noted in its Judgment in the case concerning Armed Activitieson the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda):“The Court recalls in this regard that its jurisdiction is based on the consent of the parties and is confined to the extent accepted by them (…)When that consent is expressed in a compromissory clause in an international agreement, anyconditions 90
conditions to which such consent is subject must be
regarded as constituting the limits thereon.”168
3 13 In particular, the Court has recognised that temporal
limitations in a compromissory clause can have the effect of
excluding disputes from the Court’s jurisdiction. In the Certain
Property (Liechtenstein v Germany) case, Liechtenstein relied
on Article 1 of the European Convention for the Peaceful
Settlement of Disputes of 29 April 1957 as the basis of the
Court’s jurisdiction for its claim regarding Germany’s treatment
of certain property of Liechtenstein nationals 169 Article 27(a) of
the European Convention provides that the Convention shall not
apply to “disputes relating to facts or situations prior to the entry
into force of this Convention as between the parties to the
dispute”.
3 14 The European Convention came into force as between
Lichtenstein and Germany on 18 February 1980 For
jurisdictional purposes, therefore, the Court had to determine
whether the “facts or situations” in question giving rise to
Liechtenstein’s claim arose before or after the critical date of 18
February 1980 170
168 Armed Activities in the Territory of the Congo (New Application:
2002) (Democratic Republic of the Congo v Rwanda), Jurisdiction and
Admissibility, Judgment, I.C.J. Reports 2006, p. 39, para. 88.
169 Certain Property (Liechtenstein v Germany), Preliminary
Objections, Judgment, I.C.J. Reports 2005, p. 10, para. 1.
170 Certain Property (Liechtenstein v Germany), Preliminary
Objections, Judgment, I.C.J. Reports 2005, p. 22, para. 39.
91
3 15In the event, the Courtfound that the “facts or situations” that were the real source of the dispute arose out of a series of confiscation decrees issued in 1945 (the Beneš Decrees) and a 1955 Settlement Convention concluded between the United States, the United Kingdom, Franceand the Federal Republic of Germany. Since these constituted “facts or situations” prior to the entry into force of the European Convention as between Liechtenstein and Germany, the Court found that it lacked jurisdiction ratione temporisto decide the dispute 171In other words, the Court has no jurisdiction over “facts or situations” on which a claim is based if those events occurred at a time when there was no jurisdictional bondbetween the parties 3 16Similarly, in thecase concerningJurisdictional Immunitiesof the State(Germany v Italy), the Court held that Italy’s counter-claim fell outside the temporal limit of Article 27(a) of the European Convention because the dispute raised by Italy to support its counter-claim related to facts and situations that existed prior to the entry into force of the European Convention as between the two parties 172Accordingly, the Court held that the dispute fell outside the temporal scope of the Convention and that the counter-claim thus did not come within the Court’s jurisdiction and was inadmissible 173171Certain Property (Liechtenstein v Germany), Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 27, paras. 52 and 54 (1)(b).172Jurisdictional Immunities of the State (Germany v Italy), Counter-claims, Order of 6 July 2010, I.C.J. Reports 2010, pp. 320-321, para. 30.173Jurisdictional Immunities of the State (Germany v Italy), Counter-claims, Order of 6 July 2010, I.C.J. Reports 2010, p. 321, para. 31. 92
3 17 In short, for the Court to have jurisdiction to consider
whether facts alleged by a party in support of its claim constitute
a breach of an international obligation by the other party, those
facts must have occurred during a period when a jurisdictional
basis exists between the parties. In the present case, the
“incidents” relied on by Nicaragua that occurred after
27 November 2013 took place at a time when the Pact of Bogotá
was no longer in force with respect to Colombia Just as the
Court lacks jurisdiction over claims based on “facts or
situations” occurring before a basis of jurisdiction exists
between the parties to a case, so also does the Court lack
jurisdiction to consider “facts or situations” that take place after
any basis of jurisdiction has lapsed
3 18 Colombia’s consent to the Court’s jurisdiction under the
Pact of Bogotá was limited ratione temporis; it was valid only
for “so long as the [Pact of Bogotá] is in force”. As the Court in
the Border and Transborder Armed Actions (Nicaragua v
Honduras) case observed, the commitment to submit a dispute
to the Court in Article XXXI of the Pact of Bogotá remains
“valid ratione temporis for as long as that instrument itself
remains in force between those States”.174
3 19 It follows that the Court lacks jurisdiction to consider
whether any of the “incidents” that Nicaragua refers to that took
place after 27 November 2013 constitute a violation of
174 Border and Transborder Armed Actions (Nicaragua v Honduras),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 84, para. 34.
93
Nicaragua’s sovereign rights or maritime spaces It is for this reason that, in its Counter-Memorial, Colombia only addressed the “incidents” referred to by Nicaragua that took place during the period between the date of the Court’s Judgment in the original case (19 November 2012) and the date when the Pact of Bogotá ceased to be in force for Colombia (27 November 2013) Colombia will continue to do the same in this pleading, although, ex abundanti cautela, Colombia will also show inanAppendixto this Rejoinder how the post-critical date “incidents” cited by Nicaragua are for the most part factually wrong and, in any case, do not amount to a violation of its sovereign rights or maritime spaces 175(2)THE DEFECTS IN NICARAGUA’SJURISDICTIONAL ARGUMENTS3 20In its Reply, Nicaragua has advanced a number of arguments in support of the proposition that the Court has jurisdiction to consider whether post-critical date “incidents” constitute a violation of its sovereign rights Colombia will address the flaws undermining each of Nicaragua’s contentions in turn 3 21Nicaragua’s first argument is that the Court’s decision on the admissibility of two of Colombia’s counter-claims, which were lodged after the Pact of Bogotá ceased to be in force for Colombia, shows that the Court has jurisdiction over events that 175See CR, Vol. II.94
“represent the continuation of a dispute over which the Court
already has jurisdiction” even if the basis of jurisdiction relied
on for the principal claims has lapsed in the meantime 176
However, this is a non sequitur: the jurisdictional position
ratione temporis is not the same for claims and counter-claims
3 22 Under Article 80, paragraph 2, of the Rules of Court, a
counter-claim “shall be made in the Counter-Memorial”. That is
the earliest a Respondent can file a counter-claim since, by
definition, a counter-claim must “counter” the claim detailed in
the Applicant’s Memorial It would be unrealistic to oblige a
Respondent to file a counter-claim before it had detailed
knowledge of the claim itself Provided that the counter-claim is
directly connected with the subject-matter of the claim of the
other party and comes within the jurisdiction of the Court, the
counter-claim is admissible Since the date for filing the
Counter-Memorial may be after the date on which the basis of
jurisdiction for the principal claim has lapsed, as it is in the
present case, to rule that a counter-claim, which meets the
conditions of Article 80 but could not have been presented
earlier, is inadmissible for lack of jurisdiction ratione temporis
would be unfair to the Respondent State As the Court noted in
its Order on the admissibility of Colombia’s counter-claims:
“the opposite approach would have the
disadvantage of allowing the applicant, in some
instances, to remove the basis of jurisdiction after
176 NR, paras. 4.10-4 12
95
an application has been filed and thus insulate itself from any counter-claims submitted in the same proceedings and having a direct connection with the principal claim”.1773 23In addition, with respect to its counter-claims that have been ruled admissible, Colombia is not relying on events that took place after the critical date Rather, the counter-claims are based on facts or situations that transpired between the date of the Court’s 2012 Judgment and 27 November 2013; that is, during the period when the Pact of Bogotá still provided a basis of jurisdiction as between the parties The same holds true for Nicaragua: it is not entitled to rely on acts that took place after the Pact ceased to be in force for Colombia Contrary to Nicaragua’s contention, the Court’s Order on the counter-claims does not stand for the proposition that the Court’s jurisdiction extends to events after 27 November 2013.3 24Equally inapposite is Nicaragua’s attempt to rely on what it terms the “Nottebohm rule”.In so doing, Nicaragua refers to a passage from the Court’s Judgment in that case where the Courtindicated that, once it has established jurisdiction to entertain a case, “the Court must deal with the claim; it has jurisdiction to deal with all its aspects, whether they relate to jurisdiction, to admissibility or to the merits”.178But that case did not deal with 177Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia), Counter-claims, Order of 15 November 2017, I.C.J. Reports 2017, pp. 310-311, para. 67.178NR, paras. 4.10 and 4.12, citing Nottebohm case (Preliminary Objections), Judgment of November 18th, 1953: I.C.J. Reports 1953,p. 123, and Alleged Violations of Sovereign Rights and Maritime Spaces in the 96
the temporal situation that is presented in these proceedings, and
it does not support Nicaragua’s thesis
3 25 In Nottebohm (Liechtenstein v Guatemala), the Court
ruled that it had jurisdiction with respect to a claim that was
introduced by Liechtenstein in an Application that was filed
before the lapse of Guatemala’s optional clause declaration
However, unlike Nicaragua’s claims in the present case,
Liechtenstein’s claim was based solely on events that occurred
while Guatemala’s declaration was still in effect Nowhere did
the Court indicate in its Judgment that the mere fact that it had
been seised meant that it had jurisdiction to consider
Guatemala’s responsibility for any events that took place after
its declaration had lapsed. Indeed, the Court noted that “[t]here
can be no doubt that an Application filed after the expiry of this
period [i e after the period during which Guatemala’s optional
clause declaration was effective] would not have the effect of
legally seising the Court.”179
3 26 Had Nicaragua filed its Application after the 27
November 2013 critical date and based its claim on facts that
took place after the Pact lapsed for Colombia, the Court clearly
would not have had jurisdiction to entertain the claim The same
result should obtain with respect to Nicaragua’s current attempt
to rely on post-critical date “facts” for its claim.
Caribbean Sea (Nicaragua v Colombia), Counter-claims, Order of 15
November 2017, I.C.J. Reports 2017, pp. 310-311, para. 67.
179 Nottebohm case (Preliminary Objection), Judgment of November
18th, 1953: I.C.J. Reports 1953, p. 121.
97
3 27Nicaragua’s next argument is that, because the Court has considered claims “based on facts that occurred after the filing of the Application on multiple occasions”180, it is therefore entitled to consider facts that occurred after the filing of its Application in this case, including after the Pact of Bogotá ceased to have any effect for Colombia Relying on the Certain Questions of Mutual Assistance in Criminal Matters(Djibouti v France), Fisheries Jurisdiction (Federal Republic of Germany v Iceland) andLaGrand(Germany v United States of America)cases, Nicaragua states that the “appropriate test” for considering the existence of jurisdiction over post-Application facts is “whether the facts ‘aris[e] directly out of the question which is the subject-matter of [the] Application’”.181This argument is equally untenable.3 28In Certain Questions of Mutual Assistance in Criminal Matters, the Court’s jurisdiction was based on Article 38(5) of the Rules of Court (forum prorogatum), which obviously has no application here Jurisdiction in the LaGrand casewas based on a compromissoryclause with no resemblance to Article XXXI of the Pact of Bogotá. Similarly, the compromissory clause in Fisheries Jurisdiction was far different from that in the Pact 180NR, para. 4.16.181NR, para. 4.18, citing Fisheries Jurisdiction (Federal Republic of Germany v Iceland), Merits, Judgment, I.CJ. Reports 1972, p. 203, para. 72 and LaGrand (Germany v United States of America), Judgment, I.C.J. Reports 2001,pp 483-484, para. 45.98
These cases cited by Nicaragua are simply inapposite to the
situation in these proceedings
3 29 That being said, Colombia does not contest that, in
certain circumstances, the Court can take into account facts that
occur after the filing of the Application But in none of the cases
cited by Nicaragua as authority for that proposition, the
jurisdictional link between the parties lapsed after the
Application was filed; i.e., there was still a continuing
jurisdictional basis on which to consider post-Application facts
The present case is fundamentally different. Here, both the
consent of Colombia and the jurisdictional link between the
parties terminated on the day after Nicaragua’s Application was
filed None of the precedents cited by Nicaragua supports the
proposition that, in those circumstances, the Court is entitled to
take into account facts or situations occurring not only after the
Application was filed, but also after the basis of jurisdiction has
lapsed
3 30 Nicaragua tries to counter this point by referring to the
Court’s provisional measures Order in the Legality of Use of
Force (Yugoslavia v Belgium) case. But, once again, the effort
is unavailing given that the case in question also did not deal
with the kind of situation presented here, and the temporal
limitation contained in Yugoslavia’s Article 36 (2) optional
clause declaration was drafted in terms different from the
compromissory clause appearing in Article XXXI of the Pact of
Bogotá
99
3 31In Legality of Use of Force (Yugoslavia v Belgium),Yugoslavia’s optional clause declaration provided for the compulsory jurisdictionof the Court in all disputes “arising or which may arise after the signature of the present Declaration”.182Thus, for jurisdictional purposes, the key question was when the dispute arose. Since the dispute between Yugoslavia and Belgium arose beforeYugoslavia had deposited its Article 36(2) declaration –i e at a time where there was no jurisdictional link between the parties –the Court ruled that there was no prima facie basis of jurisdiction such that provisional measures could be prescribed 3 32This is very different from Article XXXI of the Pact of Bogotá, which provides for jurisdiction over disputes only “so long as the present Treaty is in force”. It is undisputed between the parties that the Pact was not in force when the post-27November 2013 events on which Nicaragua relies for its claim occurred. Thus, the situation is entirely different from that at issue in Legality of Use of Force (Yugoslavia v Belgium) Indeed, citing from the Permanent Court’s Judgment in the Preliminary Objections phase of the Phosphates in Morocco case, the Court, in its Order on Yugoslavia’s request for provisional measures, underscored that “any limitation ratione temporisattached by one of the Parties to its declaration of acceptance of the Court’s jurisdiction,‘holds good as between 182NR, para. 4.19.100
the Parties’”.183 The same holds true for a limitation ratione
temporis contained in the compromissory clause of a treaty,
such as the Pact of Bogotá
3 33 Notwithstanding this, Nicaragua argues that, as in
Yugoslavia v Belgium, the focus in the present case should be
on when the dispute arose, not when the basis of jurisdiction
lapsed, and that Colombia cannot attempt to “slice the dispute in
discrete pieces”.184 Accordingly, Nicaragua’s thesis is that,
because its dispute with Colombia arose before the Pact ceased
to have effect for Colombia, the Court’s jurisdiction extends to
ruling on the legality of Colombia’s actions after 27 November
2013 because those acts constitute part of the same dispute 185
3 34 This line of argument ignores the temporal limitations of
Article XXXI of the Pact for Colombia It destroys the
jurisdictional symmetry of such limitations Just as the Court has
no jurisdiction to rule on facts or situations that arose before the
instrument providing for jurisdiction – in this case the Pact –
came into effect, so also it lacks jurisdiction to rule on events
that transpired after the relevant instrument ceased to be in
effect as between the parties to the dispute
3 35 If taken to their logical conclusion, Nicaragua’s
contentions would also have the perverse effect of allowing a
183 Legality of the Use of Force (Yugoslavia v Belgium), Provisional
Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 135, para. 30.
184 NR, para. 4.21.
185 NR, paras 4 25-4 26
101
party to lodge an application against another party after the instrument providing for jurisdiction ceases to be effective by arguing that the underlying dispute arose earlier, while the instrument was still in force. This is clearly not the law; it would run directly contrary to the Court’s statement in the Nottebohm case that the expiry of the time period when the instrument providing for jurisdiction is effective “would not have the effectof legally seising the Court”.1863 36Based on the foregoing, while the Court has jurisdiction to consider whether the acts of the Colombian Navy between the date of the 2012 Judgment and 27 November 2013 amounted to a violation of Nicaragua’s sovereign rights, which they did not, it does not have jurisdiction to consider any events that occurred after 27 November 2013 when the Pact of Bogotá ceased to be in force for Colombia Nicaragua is simply trying to pad its claim by reference to events falling outside of the Court’s temporal jurisdiction C.None of theAlleged“Incidents” Constitute a Violation by Colombiaof Nicaragua’s Sovereign Rights 3 37There are 13 events that Nicaragua characterizes as “incidents” that occurred before the critical date. Since they form the basis of Nicaragua’s claim that Colombia violated its sovereign rights, each event must be examined carefully. Once 186Nottebohm case (Preliminary Objections), Judgment of November 18th, 1953: I.C.J. Reports 1953, p. 121.102
that is done, it becomes evident that none of them violated
Nicaragua’s rights
3 38 This is confirmed by Nicaragua’s own conduct during
the period in question. As explained below, that conduct is
fundamentally inconsistent with the notion that Nicaragua
considered Colombia to be engaging in any wrongful conduct at
the time
(1) NICARAGUA’S OWN CONDUCT UNDERMINES ITS CLAIMS
3 39 The first point to note is that Nicaragua never protested
any of these “incidents” to Colombia until it was preparing its
Memorial for this case, well after the critical date and months
after the “incidents” themselves had allegedly occurred. In itself,
this strongly suggests that Nicaragua did not consider them to be
a violation of its sovereign rights
3 40 It was not until 13 August 2014, more than eight months
after Nicaragua filed its Application, that Nicaragua’s Foreign
Ministry sought information from its Naval Forces as to whether
any “incidents” had taken place. And it was only on 13
September 2014, shortly before Nicaragua was due to file its
Memorial, that Nicaragua sent a diplomatic note to Colombia
alleging that Colombia had infringed its sovereign rights In
these circumstances, it is difficult to avoid the conclusion that
Nicaragua was trying to manufacture a case where no basis for
one genuinely existed.
103
3 41This conclusion is reinforced when it is recalled that, precisely during the period when Nicaragua now asserts that Colombia was engaging in activities that violated its sovereign rights, Nicaragua’s senior-most political and military officials were on record as emphasizing the contrary Those officials are on record as stating that: (i) Colombia’s Navyhad not approached Nicaraguan fishing vessels;187(ii) in the one year following the Court’s Judgment (i e up to the critical date), Nicaragua had nothad any problems or conflicts with the Colombian Navy and the Navies of both countries had maintained continuous communications;188(iii) there were “no incidents”even as of March 2014 –that is, some four months after Nicaragua had filed its Application;189and (iv) the Colombian Navy had been respectful towards Nicaragua and there had not been any kind of confrontation between the Navies 1903 42Recognizing the weakness of its claims, Nicaragua’s Reply asserts that “Colombia’s ‘incident-by-incident’ approachtends to obscure thecriticalcontext that must inform the Court’s evaluation of the facts”.191Not only is this line of reasoning erroneous –Nicaragua has the burden of showing that specific conduct attributed to Colombia breached its sovereign rights –it187CCM, para. 4.8 and CPO, Annex 36.188CCM, para. 4.8 and CPO, Annex 43. 189CCM, para. 4.8 and CPO, Annex 46.190CCM, para. 4.8 and CPO, Annex 11.191NR, para. 4.44.104
ignores a crucial element of that conduct and its real context.
This is the fact, unrebutted by Nicaragua, that Nicaragua did not
raise a single complaint to Colombia at the time, and that its
own most senior political and military leaders repeatedly
emphasised that there had been no incidents or confrontations
involving Colombia
3 43 Nicaragua tries to pass off the affirmations of its
President and senior military officials that there were no
incidents, no Colombian approaches to Nicaraguan fishing
vessels, no problems or conflicts between the Navies of the two
countries, and no confrontations by arguing that all of these
statements merely reflected “a deliberate policy of restraint” on
Nicaragua’s part 192 This self-serving assertion lacks credibility
3 44 Had Nicaragua genuinely been following a policy of
self-restraint, one would have at least expected reports from the
Nicaraguan Naval Force stating that there had been provocations
from Colombia, but that the Navy was adopting a low profile
and exercising restraint in order to avoid raising tensions 193 And
one would have expected Nicaragua’s President to say that there
192 NR, para. 4.36.
193 NR, para. 4 37 Nicaragua points to a statement of General Avilés
stating that the Nicaraguan Armed Forces were in communication with the
Colombian authorities, that “there has been no boarding to fishing vessels”
and that business fishermen had declared that the Colombians “have been
going around but not boarding, which is serious”. Nicaragua tries to spin this
statement to suggest that the situation was “serious” (NR, para. 4.38). But it
is clear that what the General was referring to was the eventual boarding of
fishing boats, which, had it ever occurred, would have been serious, not to
the mere presence of Colombian vessels. As admitted by the General, there
was never any boarding by Colombia of Nicaraguan fishing boats
105
had been incidents, but that Nicaragua had not responded in kind so that the matter would not escalate. Moreover, one would expect Nicaragua to be able to produce contemporary records of such “incidents” and rules of engagement for its Navy instructing Nicaraguan vessels to exercise self-restraint Yet there is nothing of the kind. Indeed, it is undisputed that the Nicaraguan Naval Forcenever informed Nicaraguan political officials of any “incidents” until ten months after the Application had been filed, and then only after being prompted by Nicaragua’s Foreign Ministry, which was then in the process of preparing Nicaragua’s Memorial 3 45The statements of Nicaragua’s political and military leaders represent positive affirmations that there were no incidents, problems, confrontations or anything else of a provocative nature on the part of Colombia, not evidence of self-restraint If there were no incidents, there was no reason to exercise self-restraint. In these circumstances, to suggest, as Nicaragua does in its Reply, that these statements were “in no wayinconsistent with the fact that Colombia had been engaged in actions against other Nicaraguan vessels that otherwise constituted serious violations of Nicaragua’s sovereign rights and jurisdiction” is unconvincing.1943 46To be clear, Colombia is not relying on these statements to “rehash” the argument that there was no dispute between the 194NR, para. 4.40.106
parties at the time Nicaragua filed its Application, as Nicaragua
mistakenly asserts in its Reply 195 Rather, the statements from
Nicaragua’s highest officials contradict Nicaragua’s account of
the “incidents” and undermine their relevance. As Nicaragua
emphasised in its Reply: “[t]he facts are the facts”.196 When
coupled with the meagre nature of the “facts” that Nicaragua
adduces in support of its claims, the statements of its political
and military leaders represent an important element of the
context for assessing Nicaragua’s claims.
(2) COLOMBIA’S RIGHT TO BE PRESENT IN THE AREA
3 47 The other side of the equation regarding the context for
examining the individual “incidents” relied on by Nicaragua
concerns Colombia’s right to be present in the area in the
exercise of its freedoms of navigation and overflight, and other
internationally lawful uses of the sea
3 48 Contrary to Nicaragua’s assertion, Colombia has not
adopted a policy of “occupation” of Nicaragua’s EEZ – a notion
which, as already noted, has a specific legal content in
international law and moreover, has nothing to do with rights
such as freedoms of navigation and overflight. Rather, as
explained in Chapter 2, Colombia has been exercising said
freedom of navigation and overflight, as well as other
internationally lawful uses of the sea, especially bearing in mind
195 NR, para. 4.28.
196 NR, para. 4 29
107
that it has a legitimate interest in maintaining a presence in the area in order to assess whether there is maritime shipping that is engaged in illegal activities such as drug trafficking, and to call attention to fishing vessels engaged in destructive environmental activities that they should modify their practices Colombia also has an interest in ensuring the security and well-being of the inhabitants of the San Andrés Archipelago None of this amounted to an interference in, let alone violation of, Nicaragua’s sovereign rights 3 49In accordance with the principle of onus probandi incumbit actori, the burden is on Nicaragua to prove that its sovereign rights have been violated 197However, as Colombia will demonstrate in the next section, there are serious evidentiary problems with Nicaragua’s version of the facts, which render the factual basis for its claims unreliable and incapable of proving any such violation 3 50Legally, the EEZ is a sui generiszone with a distinct legal regime that was specifically negotiated to balance the interests of coastal States and those of other maritime States 197Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Reports 2010, p. 71, para. 162; Maritime Delimitation in the Black Sea (Romania v Ukraine), Judgment, I.C.J. Reports 2009, p. 86, para. 68; Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p. 31, para. 45; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 75, para. 204; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101 108
Under customary international law, a coastal State such as
Nicaragua, does not have sovereignty in its EEZ; only limited
sovereign rights for the purpose of exploring and exploiting, as
well as conserving and managing, the natural resources of the
waters superjacent to the seabed and of the seabed and its
subsoil, and with regard to other activities for the economic
exploitation of the zone.198 The coastal State also has limited
jurisdiction in its EEZ. This extends solely to the establishment
and use of artificial islands, installations and structures, marine
scientific research, and the protection and preservation of the
marine environment, none of which are germane since there is
no allegation that Colombia interfered with such jurisdictional
rights
3 51 It follows that any suggestion (quod non) that Colombia
violated Nicaragua’s sovereign rights merely because the
alleged “incidents” are claimed not to represent the legitimate
exercise of the freedoms of navigation and overflight, and other
internationally lawful uses of the sea, is untenable Nicaragua
has to go further and to show that its own rights were violated
by the failure of Colombia to pay due regard to those rights As
Proelss has observed in his Commentary on UNCLOS:
“As the sui generis nature of the EEZ is
inseparably linked to existence of exclusive
sovereign rights and jurisdiction of the coastal
198 D. Rothwell and T. Stephens, The International Law of the Sea, Hart
Publishing, 2016, pp. 90-91 (available at the Peace Palace Library) See also
UNCLOS Article 56
109
State under Art. 56, this zone ought to be treated as high seas if and to the extent to which these rights and jurisdiction are not affected”.1993 52In The M/V “SAIGA” (No. 2) case, forexample, the International Tribunal for the Law of the Sea noted that, “while [UNCLOS] attributes certain rights to coastal States and other States in the exclusive economic zone, it does not follow automatically that rights not expressly attributed to the coastal State belong to other States or, alternatively, that rights not specifically attributed to other States belong as of right to the coastal State” 2003 53As will be seen in the next section in which Colombia addresses the specific “incidents”, Nicaragua has failed to demonstrate that Colombia’s conduct impeded Nicaragua from exercising any of its sovereign rights in its EEZ.(3)THE INDIVIDUAL “INCIDENTS”3 54In this Sub-section, Colombia will address the thirteen individual “incidents” that Nicaragua alleges took place before the Pact of Bogotá ceased to be in force for Colombia As Colombia will show, the “evidence” produced by Nicaragua 199A. Proelss, United Nations Convention on the Law of the Sea: a Commentary, C.H. Beck / Hart / Nomos, 2017, p. 451 (Proelss Commentary) (available at Peace Palace Library) 200M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, p. 56, para. 137 110
falls well short of demonstrating any violation by Colombia of
Nicaragua’s sovereign rights
Incident 1
3 55 Nicaragua asserts that on 19 February 2013, a Colombian
naval vessel prevented a Nicaraguan naval vessel from
inspecting a Colombian-flagged fishing boat that was operating
in the Luna Verde area. Colombia has previously explained why
the facts show that this alleged “incident” could never have
happened because the Colombian vessel was hundreds of miles
away at the time 201
3 56 In response, Nicaragua’s Reply states that the source for
the “incident” is not a complaint from the Nicaraguan naval
vessel that was allegedly trying to inspect the Colombian boat –
indeed, there was no complaint at all raised by the Nicaraguan
Naval Force – but rather from a Colombian news article 202
Nicaragua also admits that the article “does not clarify exactly
when the incident took place”.203 That is the sum total of the
“evidence” Nicaragua submits for this so-called “incident”.
3 57 It is striking that Nicaragua relies solely on a news report
from the Colombian news outlet, Caracol, as evidence that the
incident occurred, not on any reports from its own naval
201 CCM, para. 4.23.
202 NR, para. 4.51.
203 NR, para. 4.51.
111
forces 204In any event, consistent with its established jurisprudence on this matter, the Court should treat news reports of this kind with considerable caution, particularly since it has been demonstrated that the “facts” in question never took place 3 58In the Armed Activitieson the Territory of the Congo (Democratic Republic of Congo v Uganda)case, for example, the Court observed that “particular caution” should be shown where press information is relied upon as evidence 205The Court noted that press articles are secondary evidence which is not capable of proving the existence of facts; at best, such material can only confirm the existence of facts which are established by other evidence. Here, there is no other evidence.3 59In Military and Paramilitary Activities in and against Nicaragua(Nicaragua v United States of America),the Court also emphasised the need to treat press reports and secondary sources with caution. As the Court explained: “in the present case the Court has before it documentary material of various kinds from various sources A large number of documents has been supplied in the form of reports in press articles, and some also in the form of extracts from books. Whether these were produced by the applicant State, or by the absent Party before it ceased to appear in these proceedings, the Court has been careful to treat 204NM, para. 2.39 and Annex 34. 205Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, I.C.J. Reports 2005, p. 204, para 68 112
them with great caution; even if they seem to meet
high standards of objectivity, the Court regards them
not as evidence capable of proving facts, but as
material which can nevertheless contribute, in some
circumstances, to corroborating the existence of a
fact, i.e., as illustrative material additional to other
sources of evidence.”206
3 60 To sum up, with respect to Incident 1, there is no firsthand
evidence confirming either the existence, the timing or the
specifics of the “incident” Nicaragua is seeking to rely on. There
was also no complaint Nor is there any evidence of prejudice to
Nicaragua That is wholly insufficient for purposes of
supporting a claim that Colombia violated Nicaragua’s
sovereign rights
Incident 2
3 61 According to Nicaragua, Incident 2 involved the conduct
of “military and surveillance manoeuvres” by a Colombian
airplane and patrolling by Colombian frigates, which Nicaragua
paints as in violation of its sovereign rights 207 Again,
Nicaragua’s Reply adds no new evidence relating to this
“incident”. Instead, Nicaragua once more relies on a few
206 Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports
1986, p. 40, para. 62. The Court reiterated this position in a more recent
Judgment where it stated: “Evidence of this kind and other documentary
material (such as press articles and extracts from books) are merely of a
secondary nature and may only be used to confirm the existence of facts
established by other evidence”. (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Croatia v Serbia),
Judgment, I.C.J. Reports 2015, p. 87, para. 239).
207 NM, para. 2.25 and NR, para. 4 54
113
Colombian press reports for its claim without producing a shred of evidence of its own that such manoeuvres hindered Nicaragua or Nicaraguan fishing in any way 208As is the case for Incident 1, the Court should treat these reports with considerable caution, given that there is no first-hand evidence from either Nicaraguan fishing boats or the Nicaraguan Naval Forceto suggest that Nicaragua’s account of Incident 2 is accurate or that Nicaragua suffered any prejudice as a result 3 62Nicaragua acknowledges that Colombia enjoysfreedoms of navigation and overflight in and over Nicaragua’s EEZ.209Yet, notwithstanding that there was not a single complaint from Nicaragua or its fishermen regarding this event, Nicaragua asserts that it is not credible to view Colombia’s actions as benign 210The problem with this line of argument is that thereis absolutely no evidence to back it up. To the contrary, this was nothing more than the lawful exercise by Colombia of its freedoms of navigation and overflight, as well as other internationally lawful uses of the sea 3 63Nicaragua’s Reply then goes on to state that, “even if Colombia’s conduct on this one occasionviewed in isolationwere not considered to have violated international law, the incident must be understood in the larger context as part of a 208NM, para. 2.25 and footnote 69. 209NR, paras. 2 31 and 2 32 210NR, para. 4.56.114
pattern of Colombia’s persistent and insistent disregard for
Nicaragua’s sovereign rights and jurisdiction”.211
3 64 There is no such pattern 212 Indeed, Nicaragua itself
acknowledges that throughout the relevant period fishing by
Nicaraguan fishermen increased in its waters;213 in fact, it
increased exponentially, as Colombia demonstrated in its
Counter-Memorial214 and demonstrates as well in this
Rejoinder 215 In other words, any actions said to be attributed to
Colombia did not dissuade Nicaraguan fishing vessels from
operating in Nicaragua’s EEZ. If there is any “pattern” of
conduct that is relevant, it is characterized by (i) the paucity of
evidence Nicaragua has been able to muster with respect to the
“incidents”, (ii) Nicaragua’s failure to lodge a single protest
over any of them, and (iii) the consistent statements emanating
from Nicaragua’s political and military leaders saying precisely
the opposite of what Nicaragua now alleges
3 65 There is no principle of customary international law or
provision in UNCLOS, that prohibits flights by military aircraft
over another State’s EEZ.216 As noted by Ambassador Tommy
Koh, during the negotiations of UNCLOS concerning military
211 NR, para. 4.58.
212 See Chapter 1 supra.
213 NR, para. 5.4.
214 CCM, para. 3.21.
215 Annex 71.
216 H. S. Kim, “Military Activities in the Exclusive Economic Zone:
Preventing Uncertainty and Defusing Conflict”, International Law Studies,
Vol. 80, 2006, p. 259, available at: https://digitalcommons
usnwc edu/ils/vol80/iss1/9/ (last visited: 1 November 2018).
115
activities in the EEZ, “[i]t was the general understanding that the text we negotiated and agreed upon would permit such activities to be conducted”.2173 66 This is confirmed by the negotiating history of Article 58 of UNCLOS, which does not give coastal States the right to regulate the conduct of foreign military activities in their EEZ. It is significant in this respect that, at the seventh session of the Conference in 1978, Peru proposed a provision requiring foreign warships and militaryaircraft to “refrain from engaging in manoeuvres or using weapons” in the EEZ without the coastal State’s consent 218However, this proposal was rejected. 3 67 Moreover, the fact that there was no complaint from Nicaragua is consistent with the repeated affirmations of its President and senior military officials that Colombia had been respectful and that there had been no incidents or confrontations during the period when the “incident” is said to have taken place. In sum, Colombia’s actions, which did not involve the use of weapons or the interdiction, let alone boarding, of any Nicaraguan ships, did not constitute a violation of Nicaragua’s sovereign rights 217T. Koh, cited in J. Van Dyke (ed.), Consensus and Confrontation: The United States and the Law of the Sea Convention, a Workshop of the Law of the Sea Institute, January 9-13, 1984, University of Hawaii / Law of the Sea Institute, 1985, pp. 303-304 (available at the Peace Palace Library) 218M. H. Nordquist, S. N. Nandan and S. Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, University of Virginia / Martinus Nijhoff (Virginia Commentary), Vol. II, 1993, p. 563 (available at the Peace Palace Library) 116
Incident 3
3 68 Incident 3 involved President Santos delivering a speech
on a Colombian frigate, which Nicaragua asserts was engaged in
a “sovereignty exercise” involving patrolling by Colombian
naval vessels into waters as far west as the 82nd West
Meridian 219 Once again, there is not a shred of evidence from
Nicaragua demonstrating where the Colombian vessel was
alleged to have navigated Nor does Nicaragua offer any
evidence that Colombia interfered with the exercise by
Nicaragua of its sovereign rights in its EEZ. No complaints were
made at the time either internally amongst Nicaraguan actors or
by Nicaragua to Colombia. In such circumstances, there is no
factual or legal basis for finding a violation of Nicaragua’s
sovereign rights
3 69 Recognizing that it has no evidence of its own to back up
the claim, Nicaragua’s Reply refers to a statement made by
President Santos during the exercise according to which he said:
“We find ourselves patrolling and exercising sovereignty over
Colombian waters”.220 But Nicaragua accepts that the exercise
was conducted “off the coast of San Andrés”, which would have
been in Colombian waters While Nicaragua contends that the
219 NM, para. 2 27
220 NR, para. 4.59.
117
exercise reached up to the 82ndWest Meridian,221it produces no evidence to this effect 3 70 In sum, with respectto Incident 3 as well as the other “incidents”, there is no evidence of any violation of Nicaragua’s sovereign rights, no demonstration of any prejudice to Nicaragua, which appears not even to have been aware that anything objectionable had occurred,and no complaints from anyone on the Nicaraguan side Incident 43 71 Incident 4 involved what is said to be acommunication by a Colombian naval vessel on 13 October 2013 informing a Nicaraguan vessel (the “Rio Escondido”) that, according to Nicaragua’s version of events, it was “sailing in Colombian waters” 222In its Counter-Memorial, Colombia showed that this incident did not happen becauseon that datethe Colombian vessel identified by Nicaragua (the A.R.C. “20 de Julio”) was anchored some one hundred miles further south in the territorial sea of San Andrés 2233 72 In its Reply, Nicaragua changed its story. It now argues that, even if Colombia’s account is correct, it only suggests that the Nicaraguan vessel may have misidentified the Colombian 221NR, para. 4.59.222NM, para. 2.40. 223CCM, para. 4.26. 118
ship, not that the “incident” did not happen.224 Of course,
Colombia can only respond to the allegations advanced by
Nicaragua It is Nicaragua that is unable to provide an accurate
account of the facts, including identifying the Colombian vessel
that was supposed to have been involved, despite bearing the
burden of proof for its claims Nicaragua’s only source for its
allegations is a letter from the Nicaraguan Naval Force to the
Ministry of Foreign Affairs dated 26 August 2014 – some ten
months after the “incident” is alleged to have occurred – that
contains no first-hand or contemporaneous evidence supporting
Nicaragua’s claim
3 73 It follows that Nicaragua has not even come close to
demonstrating that any such “incident” occurred, let alone that it
amounted to a violation of its sovereign rights. Indeed,
Nicaragua even goes so far as to distort the 26 August 2014
letter on which it relies While Nicaragua’s Memorial asserted
that the Colombian naval commander warned the Nicaraguan
vessel that it was sailing “in Colombian waters”, Nicaragua’s
own document actually has the Colombian Commander saying
simply that the Nicaraguan vessel was sailing “towards
Colombian waters” 225 Even on Nicaragua’s ex post facto version
of events, therefore, such a statement cannot possibly be
construed as an infringement on Nicaragua’s sovereign rights
224 NR, para. 4 62
225 NM, Annex 23 A.
119
Incident 5 3 74 Incident 5 relates to the alleged harassment at 09:50 hourson 19 October 2013 by Colombian aircraft that are claimed to have flown at a threatening low altitude over a Nicaraguan coast guard vessel and a fishing boat 2263 75 Unlike Nicaragua, which has only relied on indirect reports of the “incident”,227Colombia filed a contemporaneousTravel Report from one of its naval vessels that was monitoring air traffic in the area on the day in question.228That Report indicates that it detected a Colombian aircraft at 11:00hoursthat was engaged in “verifying surface and aerial panorama”, but no traffic at 09:50hoursas alleged by Nicaragua. Moreover, echo radar indicated that the aircraft was at an altitude of 4,600 feet, which isconsistent with Colombian Air Force rules This cannot be characterized as flying at a “threatening low altitude” as alleged by Nicaragua 3 76 In the light of the Court’s admonishment that: “the Court will treatwith caution evidentiary materials specially prepared for this case and also materials emanating from a single source”229–which Nicaragua’s Annex 23 A gives every indication of being –and that, “[i]t will prefer contemporaneous 226NR, para. 4 64 227See for example NM, Annex 20 and Annex 23 A.228CCM, Annex 49.229Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, I.C.J. Reports 2005, p. 201, para 61 120
evidence from persons with direct knowledge”230 – as is the case
with respect to the Colombian Navy’s Travel Report –
Nicaragua once again has failed to prove any violation of its
sovereign rights
Incidents 6 and 7
3 77 Nicaragua’s allegations regarding these two incidents are
similar and can be discussed together They allegedly involved
Colombian aircraft flying at low altitude in a “hostile manner”
over Nicaraguan fishing boats and naval vessels. Once again,
however, Nicaragua presents no contemporary evidence of these
facts and no evidence of any impediment to the exercise of its
sovereign rights
3 78 Colombia demonstrated in its Counter-Memorial that its
aircraft were not flying in such a manner, and that it was
perfectly legitimate for its aircraft to undertake general
observation activities in an area outside of Nicaragua’s
territorial sea known for maritime drug trafficking 231 In any
event, the Court has already held that the alleged incidents that
were said to have occurred before Nicaragua filed its
Application relate to the claim on alleged violations of sovereign
rights and maritime spaces – rather than that concerning a threat
of use of force upon which it stated it did not have
230 Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v Uganda), Judgment, I.C.J. Reports 2005, p. 201,
para 61
231 CCM, paras. 4.31-4 33
121
jurisdiction 232What remains is the fact that Colombian aircraft were fully entitled to exercise their freedom of overflight In any case, the naval vessels and fishing boats were never prevented from carrying out their activitiesand Nicaragua did not protest at the timeof their alleged occurrence 3 79 Once more, Nicaragua is unable to provide any contemporary evidence for these “incidents”. It relies on its 26 August 2014 internal letter,233almost a year after the events in question, its subsequent diplomatic note to Colombia of 13 September 2014,234and a one-page list of “locations”.235These do not constitute any first-hand evidence of the underlying facts or give their source 3 80 No new evidence is presented in Nicaragua’s Reply Rather, Nicaragua repeats its mantra that these events must be seen against the context of what is claimed to be a patternof provocative Colombian actions 236However, as Colombia has explained, there was no such “pattern”. The true context is that (i)the events in question did not give rise to any contemporary complaint from either the fishing boats or Nicaragua’s Naval Forceto the Nicaraguan authorities, (ii) Nicaragua itself made no protest to Colombia, and (iii) Nicaragua’s military heads confirmed that there were no confrontations or incidents Those 232Judgment on the Preliminary Objections, p. 33, para 77 233NM, Annex 23 A.234NM,Annex 18.235NM,Annex 24.236NR, para. 4 66 122
facts completely undermine the claims that Nicaragua raises in
these proceedings. In short, there was no violation of
Nicaragua’s sovereign rights with respect to either of these
“incidents”.
Incident 8
3 81 Incident 8 allegedly involved a Colombian helicopter
flying over a Nicaraguan naval vessel on 31 October 2013 at
09:00 hours, and subsequently landing on a Colombian frigate.
3 82 In its Memorial, Nicaragua adduced no evidence to
suggest that its vessel was threatened or impeded in any way It
simply relied on second hand reports that were prepared months
after the alleged event took place The Reply adds nothing to
Nicaragua’s case other than to speculate that, while the
helicopter was airborne “it plainly could have impermissibly
harassed the Nicaraguan vessel”.237 But “could have harassed” is
not the same thing as “did harass”. The Reply also asserts that
Colombia “does not challenge the facts”.238 But this is plainly
wrong In its Counter-Memorial, Colombia introduced
contemporary evidence in the form of a Travel Report from its
naval vessel, the A.R.C. “Independiente”, demonstrating that the
helicopter did not take off until 09:42 hours on the day in
237 NR, para. 4.78. (Emphasis added)
238 NR, para. 4.77.
123
question, well afterthe time when Nicaragua says the “incident” occurred 2393 83 Apart from the fact that there was nocomplaint issued by Nicaragua at the time, Nicaragua also has not produced any evidence to show that the fishing boat was threatened or impeded in its activities The mere flying and landing of a Colombian helicopter on a Colombian vessel nearby is entirely consistent with Colombia’s freedoms of navigation and overflight, as well as other internationally lawful uses of the sea It cannot therefore constitute a violation of Nicaragua’s sovereign rights Incidents 9 and 103 84Incidents 9 and 10 are also based on the same second-hand report –the internal report attached in Annex 23 A to Nicaragua’s Memorial –dated some ten months after the “incidents” are said to have occurred. Nicaragua’s allegation is that Colombian frigates chased away two Nicaraguan fishing boats, the “Lucky Lady”(Incident 9) and the “Miss Sofia”(Incident 10), stating that they were in Colombian waters. Apart from the lack of any first-hand evidence for these events, to which the Nicaraguan Reply adds nothing, Colombia has explainedwhy these alleged “incidents” could not have happened in the manner recounted by Nicaragua 240239CCM, para. 4.34 and Annex 49. 240CCM, paras. 4.37 and 4.39. 124
3 85 In its Counter-Memorial, Colombia presented evidence
that the Colombian frigate allegedly involved in Incident 9 was
not even in the Caribbean Sea at the time that Nicaragua’s
Memorial indicated the “incident” occurred 241
3 86 In response, Nicaragua tries to explain away its lack of
credible evidence by again claiming that the date it gave in its
Memorial for Incident 9 was the date the matter was reported to
a local naval base, not necessarily the date that the event
complained of took place 242 This rather feeble excuse, which
Nicaragua omitted to explain in its Memorial, still leaves
Nicaragua unable to provide any specifics about the incident,
including when it was said to have transpired or how the fishing
boat was prevented from continuing with its activities. In short,
the evidence Nicaragua adduces to support its claim is neither
reliable nor probative that the incident occurred or that any
prejudice to Nicaragua’s sovereign rights was caused
3 87 The same deficiencies undermine Nicaragua’s claim
based on Incident 10 concerning the “Miss Sofia”: no first-hand
contemporary evidence; no complaints at the time; no evidence
of the fishing boat being prevented from operating in
Nicaragua’s EEZ. Moreover, the notion that the Colombian
vessel – the A R C “Almirante Padilla” – contacted the “Miss
Sofia” to inform it that it was in Colombian waters, as alleged
by Nicaragua, is belied by the fact that, after the “Miss Sofia”
241 CCM, para. 4.37, Annex 50.
242 NR, para. 4 80
125
abandoned two of its fishermen, it was a Colombian frigate that had to rescue them The frigate even tried to contact the “Miss Sofia”to return the fishermen, but the latter never bothered to respond 243In short, there were no communications between the Colombian vessel and the “Miss Sofia” 3 88As documented in Annex 53 to Colombia’s Counter-Memorial, it was in these circumstances that theA R C “Almirante Padilla”contacted the Nicaraguan coast guard vessel “Rio Escondido”.Contrary to Nicaragua’s assertion, that contact did not involve any refusal to leave the area or mention of the Court’s 2012 Judgment 244Rather, having been unable to contact the “Miss Sofia”itself, the Colombian frigate initiated a series of exchanges with the Nicaraguan patrol boat that had been overheard also trying to contact the “Miss Sofia”by radio to arrange for the transfer of the two rescued fishermen When the “Miss Sofia”could not be reached, arrangements were made to transfer the fishermen to another Nicaraguan fishing boat, the “Caribbean Star”, instead.Far from representing a violation of Nicaragua’s sovereign rights, Colombia’s actions were driven by humane considerations. Significantly, the two fishermen rescued by Colombia never intimated that the Colombian vessel had threatened their fishing boator crew. Rather, they signed written declarations attesting to their good treatment at the hands of crew onboard the Colombian frigate 245243CCM, paras. 4 39-4.40 and Annex 53.244NR, para. 4 83 245CCM, Annex 52. 126
3 89 Moreover, even if Nicaragua’s version of these
“incidents” is accepted (quod non), which is highly improbable
given the Nicaraguan Naval Force’s assurances that there were
no incidents involving Colombia during this period, Nicaragua
has not demonstrated how either the fishing vessels or
Nicaragua were prejudiced in a manner that constituted a
violation of Nicaragua’s sovereign rights
Incidents 11, 12 and 13
3 90 These last three incidents allegedly involved Colombian
airplanes flying over Nicaraguan vessels situated in Nicaragua’s
EEZ. As Colombia pointed out in its Counter-Memorial, there is
no evidence of any hostile actions or prejudice caused to
Nicaragua 246 As before, Nicaragua did not produce any direct
source material supporting its allegations, only vague
descriptions set out in the later-prepared 26 August 2014
internal document, the sole purpose of which seems to have
been a belated attempt to shore up Nicaragua’s otherwise
undocumented claims at a time when Nicaragua was in the final
stages of preparing its Memorial
3 91 Nicaragua’s Reply only contains two brief paragraphs on
these “incidents”, which largely repeat what it said in its
Memorial without providing any new evidence or showing how
246 CCM, paras. 4.42-4 44
127
Nicaragua was prevented from exercising its sovereign rights. In so far as Colombia enjoys freedom of overflight in the EEZ, Colombia’s mere overflight over Nicaraguan vessels cannot constitute a violation of Nicaragua’s sovereign rights Notwithstanding the gaps in Nicaragua’s case, it is worth noting that, as with all the other “incidents”, Nicaragua made no protest at the time –a fact that is consistent with the contemporary statementsof Nicaragua’s naval officials, political and military leadersstating that there were no incidents D.Colombia Has Not Awarded Petroleum Blocks in Nicaragua’s EEZ3 92Nicaragua alleges in its Reply –and for the first time in the current proceedings –that Colombia is “[o]ffering and awarding hydrocarbon blocks encompassing parts of Nicaragua’s EEZ”247and that this constitutes a violation of Nicaragua’s sovereign rights No such claim was made in the Application or Memorial As Colombia will show in Sub-section1, the claim isinadmissible. Moreover, even if itwere admissible (quod non), the claim has no merit (Sub-section 2) (1)NICARAGUA’SNEW CLAIM ISINADMISSIBLE3 93Article 40, paragraph 1, of the Statute provides that the subject of the dispute “shall be indicated” in the Application. This is supplemented by Article 38, paragraph 2, of the Rules of 247NR, para. 4 129 128
Court, which stipulates that the Application must specify “the
precise nature of the claim”. As the Court observed in the
Phosphate Lands in Nauru (Nauru v Australia) case, these
provisions are “essential from the point of view of legal security
and the good administration of justice”.248
3 94 Nicaragua’s new claim that Colombia has issued
petroleum blocks in violation of Nicaragua’s sovereign rights
was neither identified as part of the subject of the dispute in
Nicaragua’s Application; nor was the nature of such a claim
ever set out or even mentioned implicitly in that document
Indeed, the claim did not even appear in Nicaragua’s Memorial.
It has been raised for the first time in the Reply In such
circumstances, the claim is inadmissible
3 95 In rejecting the admissibility of a late-filed claim in the
Ahmadou Sadio Diallo (Republic of Guinea v Democratic
Republic of the Congo) case, the Court noted that:
“additional claims formulated in the course of
proceedings are inadmissible if they would result,
were they to be entertained, in transforming ‘the
subject of the dispute originally brought before [the
Court] under the terms of the Application’”.249
248 Certain Phosphate Lands in Nauru (Nauru v Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 267, para. 69.
249 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic
of the Congo), Judgment, I.C.J. Reports 2010, p. 656, para. 39 citing
Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v Honduras), Judgment, I.C.J. Reports 2007 (II),
p. 695, para. 108.
129
As the Court emphasised, “it is the Application which is relevant and the Memorial, ‘though it may elucidate the terms of the Application, must not go beyond the limits of the claim as set out therein’.”2503 96In the present case, Nicaragua did not even raise its new claim relating to petroleum blocks in its Memorial As noted above, the new claim has only appeared in the Reply. It bearsno relationship to the original claim, which was based on a series of statements by Colombian authorities, a number of so-called maritime “incidentsˮ(discussed above) and the establishment of the contiguous zone (discussed in the next Chapter). This reinforces the conclusion that the claim should be deemed inadmissible 3 97Indeed, the Court has noted that the situation is even more serious when a new claim only appears in the Reply, at a time when the Respondent is no longer able toassert preliminary objections –a right that the Court termed “a fundamental procedural right”in the Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo)case As the Court explained:250Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Judgment, I.C.J. Reports 2010, p. 656, para. 39 citing Certain Phosphate Lands in Nauru (Nauru v Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 267, para. 69 citing the Case concerning Prince von Pless Administration, Order of 4 February 1933, P.C.I.J., Series A/B, No. 52,p 14 130
“This right is infringed if the Applicant asserts a
substantively new claim after the Counter-
Memorial, which is to say at a time when the
Respondent can still raise objections to
admissibility and jurisdiction, but not preliminary
objections”.251
3 98 As to the relationship of the new claim to the claim(s)
raised in the Application, the Court has stated that “it is not
sufficient that there should be links between them of a general
nature”.252 Rather, the new claim must either be implicit in the
original claim, or it must arise directly out of the question that is
the subject-matter of the Application 253 Nicaragua’s new claim
relating to alleged petroleum blocks satisfies neither of these
tests. It was not implicit in Nicaragua’s Application, or even in
its Memorial; and it does not arise out of the same questions that
were the subject-matter of the Application: the question whether
Colombian vessels harassed Nicaraguan vessels in violation of
Nicaragua’s sovereign rights, and the question concerning
Colombia’s integral contiguous zone
251 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic
of the Congo), Judgment, I.C.J. Reports 2010, p. 658, para. 44.
252 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic
of the Congo), Judgment, I.C.J. Reports 2010, p. 657, para. 41, citing
Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v Honduras), Judgment, I.C.J. Reports 2007 (II),
p. 695, para. 110.
253 Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic
of the Congo), Judgment, I.C.J. Reports 2010, p. 657, para. 41, citing the
Case concerning the Temple of Preah Vihear (Cambodia v Thailand),
Merits, Judgment of 15 June 1962: I.C.J. Reports 1962, p. 36 and the
Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v Honduras), Judgment, I.C.J. Reports 2007, p.
697, para. 114.
131
3 99For these reasons, Nicaragua’s new claim is inadmissible (2)THE CLAIM ISWITHOUT MERIT IN ANY EVENT3 100Even if the Court were disposed to consider Nicaragua’s new claim, it can readily be shown that the claim has no merit.3 101In the first place, it should be recalled that Nicaragua already resorted to the same argument during the hearings on preliminary objections in a different case, and that Colombia had shown that argument to be fallacious This was the case concerning the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v Colombia) There, Nicaragua’s Agent presented a map by the Colombian National Agency of Hydrocarbons(ANH, fromits Spanish acronym) dated 2015 as an example of supposed “unilateral actions of Colombia regarding the exploration or exploitation of the resources, not only over Nicaraguan waters as established by the Court’s Judgment of November 2012 (…)” 2543 102In those hearings, Colombia clarified that there are no existing licenses in the areas concerned; that these areas appear listed in Colombia’s ANH maps since well before the 2012 254Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia),Public Sitting,6 October 2015, CR 2015/27, p. 16, para. 21 (Nicaraguan Agent).132
Judgment; and that while two blocks were awarded in 2010
(CAYOS 1 and CAYOS 5) – again, before the 2012 Judgment –
they were suspended in 2011, and no contracts were signed
afterwards 255
3 103 In its Reply, Nicaragua attempts to rehash this argument
by stating that “the signature of the relevant contracts remains
outstanding”256 – which is not true Nicaragua seeks to make a
case out of nothing, because as stated, in October 2011 President
Santos removed from consideration oil and gas exploration and
exploitation in and around the San Andrés Archipelago.
Moreover, since 2012 both the Administrative Tribunal of San
Andrés and the Council of State (Colombia’s highest
administrative law tribunal) have confirmed the suspension of
activities relating to these two blocks 257 It follows that there is
no possible violation of Nicaragua’s sovereign rights in this
regard
3 104 As for the “remaining” nine blocks not awarded in 2010,
Nicaragua contends in its Reply that they continue to be offered
255 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, 7 October 2015, CR 2015/28,
p 40, para. 19 (Wood).
256 NR, para. 4.128.
257 Annex 20: Administrative Tribunal of San Andrés, Providencia and
Santa Catalina, Judgment on Case No. 88-001-23-31-003-2011-00011-00
filed by the Corporation for the Sustainable Development of San Andrés,
Providencia and Santa Catalina (CORALINA) against the National Agency
of Hydrocarbons (ANH), 4 June 2012.
133
by Colombia by reference to a map from the ANH dated 17 February 2017 2583 105As noted above, Nicaragua’s claim and the “evidence” it purports to rely on is inadmissible as it concerns a different subject-matter from the claims it introduced in its Application and has been advanced more than three years after the Court ceased tohave jurisdiction between the parties due to the denunciation by Colombia of the Pact of Bogotá 3 106Moreover, even if the Court were to consider the map, it does not show any violation of Nicaragua’s sovereign rights Once again, none of these blocks have been the object of any implementation process since 2010. This is because: (i) some of these areas are excluded because they are within a natural park, i e the Seaflower Biosphere Reserve and Marine Protected Area, and (ii)as noted by the ANH in its website, “Areas Available” are “those areas that have not been allocated.”259Thus, there is no existing contract or proposal awarded for the blocks in question (nor there could be), and Nicaragua’s sovereign rights remain unaffected 3 107What is striking is how Nicaragua’s arguments change at its convenience, and how distorted its account of the facts is. Quite simply, Colombia has awarded no petroleum blocks in 258NR, Figure 4.3. 259National Agency of Hydrocarbons, “Lands Map, February 17th2017”, available at: http://www.anh.gov.co/en-us/Asignacion-de-areas/Paginas/Mapa-de-tierras…(last visited: 1 November 2018). 134
areas falling within Nicaragua’s EEZ as delimited by the Court
in 2012 It follows that Colombia has not violated Nicaragua’s
sovereign rights and maritime spaces
E. The False Accusation that Colombia Has Authorized
Fishing in Nicaragua’s EEZ
3 108 Nicaragua alleged in its Memorial that Colombia has
issued fishing license authorisations to Colombians and
nationals of third States to operate in Nicaraguan waters 260 To
support its accusation, Nicaragua submitted as evidence: (i)
Resolution No 5081 issued by the Governorship of the
Archipelago Department of San Andrés, Providencia and Santa
Catalina on 22 October 2013;261 (ii) Resolution No 305 issued
by the General Maritime Direction (DIMAR, from its Spanish
acronym) on 25 June 2014;262 and (iii) a Report on the Status of
the Natural Resources and the Environment issued by the Office
of the Comptroller General of San Andrés, Providencia and
Santa Catalina on July 2013 263
3 109 In its Reply, Nicaragua reformulated its accusation
against Colombia by indicating that: “Colombia has also
continued to violate Nicaragua’s sovereign rights and
jurisdiction by authorizing, encouraging and protecting
260 NM, paras. 2.22, 2.51 and 2.52.
261 NM, Annex 11.
262 NM, Annex 14.
263 NR, Annex 12.
135
industrial fishing in Nicaragua’s EEZ.”264As “evidence” of the alleged violation, Nicaragua submitted a number of resolutions issued by DIMAR,265and the Governorship of the Archipelago Department ofSanAndrés, Providencia and Santa Catalina–albeit Nicaragua claims these resolutions were issued by DIMAR, it is clear in itsown Annexes that they were not 2663 110Based on the above, Nicaragua asks the Court to declare Colombia’s international responsibility for its allegedly “wilful disregard of its international obligations, including the obligation to have due regard for Nicaragua’s exclusive sovereign rights to the natural resources of its EEZ”267and, therefore that Colombia be ordered to “revoke permits granted to fishing vessels operating in Nicaragua’s exclusive economic zone, as delimited in the Court’s Judgment of 19 November 2012”268 3 111The first defect in Nicaragua’s claim and the “evidence” it submits is that it is based on post-critical date facts The264NR, para. 4.101.265General Maritime Direction, Resolution No. 0311 of 2013 (26 June 2013) (NR, Annex 7); General Maritime Direction, Resolution No. 305 of 2014 (25 June 2014) (NR, Annex 9, which was already submitted in the Memorial as Annex 14); General Maritime Direction, Resolution No. 0437 of 2015 (27 July 2015) (NR, Annex 12); General Maritime Direction, Resolution No. 0459 of 2016 (27 July 2016)(NR, Annex 16); General Maritime Direction, Resolution No. 550 of 2017 (15 August 2017) (NR, Annex 17).266General MaritimeDirection, Resolution No. 4997 (NR, Annex 11); General Maritime Direction, Resolution No. 4356 of 2015 (NR, Annex 13); General Maritime Direction, Resolution No. 4780 of 2015 (NR, Annex 14); General Maritime Direction, Resolution No. 2465 of 2016 (NR. Annex 15). 267NR, para. 4.121. 268NR, Submissions, para, 1 (d). 136
resolutions regarding the vessels “Rough Rider” (NR, Annex
11), “Capt. Geovanie” (NR, Annex 13) and “The Saga” (NR,
Annex 14) were issued respectively on 10 November 2014, 1
September 2015 and 24 September 2015 The Court lacks
jurisdiction to consider whether any of these facts – which took
place after 27 November 2013 when the Pact of Bogotá ceased
to be in force for Colombia – constitutes a violation of
Nicaragua’s sovereign rights or maritime spaces
3 112 Additionally, the special and transitory measures
(i e exemption from a security tax payment and automatic
navigation authorisation) granted for vessels registered in the
jurisdiction of the Harbour Masters of San Andrés and
Providencia are sovereign acts of the Colombian State
materialized in a series of resolutions issued by DIMAR
between 2014 and 2017 (NR, Annexes 9, 12, 16 and 17). As
these acts also occurred after the Pact of Bogotá ceased to be in
effect for Colombia, the Court lacks jurisdiction to consider if
they constitute a violation of Nicaragua’s sovereign rights or
maritime spaces
3 113 Thus, the only facts with respect to which the Court has
jurisdiction are: the resolutions concerning the affiliation of the
fishing vessel “Captain KD”,269 and the special and transitory
measures granted by DIMAR in Resolution No 311 of 2013 270
269 NM, Annex 11.
270 NR, Annex 7.
137
3 114However, for the sake of completeness, Colombia will also address Nicaragua’s post-critical date facts and evidence to demonstrate that none of these support Nicaragua’s complaints either 3 115The fact of the matter is that the Colombian fishing industry in the San Andrés Archipelago was devastated by the2012 Judgment because of its lack of access to areas situated in areas forming part of Nicaragua’s EEZ.3 116A 2013 Report on the Status of the Natural Resources and the Environment issued by the Office of the Comptroller General of San Andrés, which Nicaragua submits as evidence of its claims, preciselynoted that “the great majority of the industrial [fishing] companies have left the islands” 271That report also indicated that catches of species such as lobster and whitefish had declined to a fraction of their pre-Judgment levels 2723 117Infact, in2013, the largest fisheries and export company in San Andrés, Antillana, reported six months after the Judgment that it was ceasing operations “due to the economic unsustainability of theindustry after the loss of 75,000 square 271NM, Annex 12.272The Report shows that the catch of whitefish fell from 116 tons in 2012 to 27 tons from January to July 2013 and the catch of lobster fell, in that same period, from 133 tons to 36 tons (NM, Annex 12, pp. 190-192) 138
kilometres of marine spaces in San Andrés”.273 Moreover, the
second largest company, King Crab, also stated that it was
ceasing operations for the same reason 274 Rather than granting
licenses as before over areas that came to be situated in
Nicaragua’s EEZ, it was the inability to access these areas that
caused a significant collapse of the industry and severe
economic hardship to the inhabitants of the Archipelago
3 118 With regard to the resolutions issued by DIMAR
(NM Annex 14; NR Annexes 7, 9, 12, 16 and 17), Nicaragua
alleges that through them Colombia has authorised industrial
fishing in Nicaragua’s EEZ and encouraged such fishing by
giving financial incentives 275 This statement is demonstrably
false: they do not grant fishing licenses simply because DIMAR
is not the competent authority to grant these permits. Moreover,
nowhere in these resolutions are economic incentives granted to
promote fishing in Nicaragua’s EEZ
3 119 What these resolutions provide is the following:
(i) They authorize to “stay and operate in the
jurisdiction of the San Andrés and Providencia
Harbour Master’s Office (…) upon authorisation
of the Office of the Secretary of Agriculture and
273 Annex 54: El Universal, San Andrés’ largest fishery is shutting
down, 19 May 2013; and Annex 55: El Isleño, Chamber of Commerce regrets
the closure of Antillana, 23 May 2013
274 Annex 57: Radio Nacional de Colombia, ICJ ruling jeopardizes
industrial fishing in San Andrés, 13 August 2013.
275 NR, para. 4.104.
139
Fishing of the Government of San Andrés, Providencia and Santa Carolina [sic]” 276As can be seen, they do not authorise industrial fishing because fishing permits are issued by the Secretariat of Agriculture and Fishing of San Andrés, not by DIMAR.(ii)The special and transitory measures, such as the exemption from the payment of the Maritime Security Service, were granted to overcome the “negative economic and social effects” of the 2012 Judgment, but do not refer at all to Nicaragua’s EEZ. 3 120Ascan be seen, Nicaragua’s reading of these DIMAR Resolutions is a mere distortion of the facts Colombia’s issuance of special and transitory measures doesnot authorisenor encourage industrial fishing in waters of the NicaraguanEEZ. They only grant certain financial reliefs to the benefit of the fishing fleet registered in San Andrés and Providencia –an act not prohibited by international law, and one that in no way affects or purports to affect Nicaragua’s sovereign rights 3 121As for the resolutions issued by the Governorship of the Archipelago Department of San Andrés, Providencia and Santa 276NR, para. 4.104. 140
Catalina,277 Nicaragua alleges that through them Colombia
issued fishing permits in Nicaragua’s EEZ.278 This statement is
incorrect, as the following analysis of each resolution will show:
a Resolution No. 5081 of 2013:279 As explained by
Colombia in its Counter-Memorial,280 Nicaragua’s
assertion is based on the “Whereas” clauses, whilst in the
operative part of the permit, Article Three clearly does
not include Luna Verde bank nor any maritime spaces
adjudicated to appertain to Nicaragua by the 2012
Judgment. Indeed, the authorisation is specifically
limited to “the Archipelago Department of San Andrés,
Providencia and Santa Catalina (Roncador, Serrana and
Quitasueño, Serranilla Keys) and Shallows (Alicia and
Nuevo)”.
b Resolution No. 4997 of 2014:281 This resolution merely
authorises the disaffiliation of the vessel “Rough Rider”
from the permitholder’s fishing fleet (see Article One)
Thus, it does not grant a fishing permit and in no way
evidences that Colombia is granting fishing
authorisations in waters of the Nicaraguan EEZ.
277 NM, Annex 11 and NR, Annexes 11, 13, 14 and 15.
278 NR, paras. 4.105-4 107
279 NM, Annex 11.
280 CCM, para. 4 46
281 NR, Annex 11.
141
Additionally,the only areas mentioned in the Resolution are “the banks (Roncador, Serrana and Quitasueño, and Serranilla) and Shoals (Alicia and Nuevo), and in the fishing zones that are permitted by the laws, fishing regulations and system of Protected Marine Areas”. Nomention whatsoever is made of any areas falling within waters of the NicaraguanEEZ.c Resolution No. 4356 of 2015:282The same analysis made above with respect to Resolution No 4997 of 2014 appliesto this resolution First, it simply authorizes the disaffiliation of the vessel “Fair Winds” from the permitholder’s fishing fleet (see Article One). Thus, it does not grant a fishingpermit and in no way evidences that Colombia is granting fishing authorisations in waters of the NicaraguanEEZ. Second,the only areas mentioned in the Resolution are “the banks (Roncador, Serrana and Quitasueño, and Serranilla) and Shoals (Alicia and Nuevo), and the zone where fishing is permitted by the laws”. No mention whatsoever is made of any areas falling within waters of the NicaraguanEEZ.Simply put, unlike licenses that had been issued before the 2012 Judgment, whichlisted the Luna VerdeBank as 282NR, Annex 13.142
one of the permitted fishing areas,283 the new Resolutions
expressly indicate that the areas where fishing activities
are authorised are solely those which the Court has
recognised to lie within Colombia’s territorial sea and
EEZ
d Resolution No. 4780 of 2015:284 Again, this resolution
refers to the affiliation of the vessel “The Saga” to the
fishing fleet of the permit holder Ms Vianova Forbes
James (see Article One) It does not grant a fishing
permit, and its purpose is not to indicate the areas in
which Colombia is granting fishing authorisations
As with Resolution No 5081 of 2013, Nicaragua’s claim
is based on the “Whereas” clauses. However, operative
Article Six only establishes that the “fishing fleet carries
out fishing activities in the authorised fishing grounds in
the area of the Department of San Andrés, Providencia
and Santa Catalina”. There is no authorisation to fish at
the Luna Verde bank or in any maritime spaces
recognised to Nicaragua by the 2012 Judgment
3 122 In sum, the Resolutions issued by the Governorship of
the Archipelago Department of San Andrés, Providencia and
283 Annex 18: Archipelago Department of San Andrés, Providencia and
Santa Catalina, Resolution No. 2479, 13 June 2006; and Annex 19:
Archipelago Department of San Andrés, Providencia and Santa Catalina,
Resolution No 20, 13 November 2009.
284 NR, Annex 14.
143
Santa Catalinasubmitted by Nicaragua in its Memorial and Reply,285do not authorise fishing activities in Nicaragua’s EEZ. To the contrary, all of them expressly indicate that the areas where fishing operations can be carried out are areas which the Court recognised fall within Colombia’s territorialsea or EEZ(i e Roncador, Serrana, Quitasueño, Serranilla, Bajo Alicia and Bajo Nuevo) Nowhere in their operative part is there an authorisation to carry out fishing activities at the Luna Verdebank or in other maritime spaces situated within Nicaragua’s EEZ.3 123Finally, Resolution No. 2465 of 2016,286issued by the Governorship of the Archipelago Department of San Andrés, Providencia and Santa Catalina, is completely irrelevant. It refers to the procedure for inscription in the fishermen’s book and the identification of artisanal commercial fishermen Accordingly, it has nothing to do with the granting of fishing permits or any Nicaraguan maritime spaces To the contrary, Article 8expresslyprovides that: “The commercial artisanal fishing activities can only be exercised in the territory that includes the jurisdiction of the ArchipelagoDepartment of San Andrés, Providencia and Santa Catalina”. 285NM, Annex 11 and NR, Annexes 11, 13 and 14. 286NR, Annex 15. 144
F. Conclusions
3 124 Based on the foregoing, it is clear that Nicaragua has not
demonstrated any violation of its sovereign rights or maritime
spaces by Colombia This includes the “incidents” that are
claimed to have occurred before the critical date when the Pact
of Bogotá ceased to be in force between Nicaragua and
Colombia, the alleged issuance of fishing permits in Nicaraguan
waters and the alleged granting of hydrocarbon exploration and
exploitation licences. It follows that Nicaragua’s submissions on
this aspect of its claims should be rejected
145
146
Chapter 4
THE CONTIGUOUS ZONE OF THE
COLOMBIAN ISLAND TERRITORIES IN THE
SOUTHWESTERN CARIBBEAN SEA
A. Introduction
4 1 In its Reply, Nicaragua requests the Court to adjudge and
declare that “Colombia must revoke, by means of its choice, all
laws and regulations which are incompatible with the Court’s
Judgment of 19 November 2012, including the provisions in
Decrees 1946 of 9 September 2013 and 1119 of 17 June 2014 on
maritime areas which have been recognized as under the
jurisdiction or sovereign rights of Nicaragua”.287
4 2 It appears from the Reply that, so far as concerns the
contiguous zone, Nicaragua claims that Decree No. 1946 (as
amended) directly affects its rights under customary
international law Nicaragua claims that the Decree does so
because it extends beyond the EEZ delimitation line set out in
the 2012 Judgment; because the powers described in the Decree
go beyond those permitted under customary international law;
and because in certain places the contiguous zone extends to a
distance beyond 24 nautical miles from the baselines, also
287 The wording of the submissions in Nicaragua’s Reply is quite
different from that in its Application and Memorial, but on each occasion, it
would seem that Nicaragua does not seek to challenge Decree 1946 (as
amended) in the abstract, but only in so far as Nicaragua’s own rights have
been directly affected by enactment of the Decree
147
allegedly contrary to customary international law Nicaragua further asserts that the mere adoption of the Decree violates its rights under customary international law, even though it has failed to demonstrate that the Decree has in effect been enforced by Colombiain a manner that has madeNicaragua suffer any harm due to such application 4 3As Colombia has shown in its Counter-Memorial, each of these assertions is without merit In this Chapter, Colombia will address in particular the arguments deployed in Nicaragua’s Reply After describing Decree No 1946 (as amended) (SectionB), the Chapter first shows that,under customary international law, Colombia may lawfully exercise its contiguous zone powersin areas where the contiguous zone overlaps withpart of Nicaragua’s EEZ (Section C). It next shows that none of the powers provided for in the Decree go beyond those which Colombia is entitled to exercise under customary international law (Section D). The next section explains that the outer limit of the Colombian integral contiguous zonein the Southwestern Caribbean Sea is a lawful simplification of maritime zones and does not encroach upon Nicaragua’s rights (Section E) And, finally, it explains that Nicaragua has failed to demonstrate that the enactment and application of the Decree has violated any of its rights under international law (Section F) 148
B. Decree No. 1946 of 2013 (as amended in 2014)
4 4 Colombia’s Political Constitution of 1991 provides for a
contiguous zone in accordance with the international law of the
sea 288 This was implemented, so far as concerns the contiguous
zone in the Southwestern Caribbean Sea, by Article 5 of Decree
No. 1946 concerning the Territorial Sea, Contiguous Zone, and
Continental Shelf of the Colombian Island Territories in the
Southwestern Caribbean, issued on 9 September 2013 and
amended by Decree No 1119 of 17 June 2014 289
4 5 The present section describes these provisions of
Colombian law, which are in full conformity with the customary
international law of the sea The section also corrects
Nicaragua’s distortions and misinterpretations of Colombian
domestic law 290
4 6 The existence of Colombia’s contiguous zone was
reflected in Article 101 of the Political Constitution of Colombia
288 CCM, para. 5.9.
289 CCM, Annex 7.
290 It is typical of Nicaragua’s approach that it even complains about the
name given by Colombia under its internal law to the contiguous zone it has
declared around the islands and cays of the San Andrés Archipelago.
Nicaragua asserts, in footnote 73 of its Reply, that the name ‘Integral
Contiguous Zone’ “is abusive: it corresponds to no accepted notion in
international law.” Yet States are not required to use UNCLOS terminology
when naming zones and features under domestic law The adjective ‘integral’
is appropriate in order to reflect the geographical reality that the greater part
of the contiguous zone around the Archipelago forms a single zone, not a
series of separate contiguous zones
149
of 1991,291which refers to “the subsoil, the territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone” andwhich provides that these are “in accordance with international law or the laws of Colombia in the absence of international law.”292The quoted words confirm, at the level of the Colombian Constitution, that the Colombia’s contiguous zone is to be implemented in conformity with international law 4 7This principle is further confirmedby the express provisions of the Decrees of 2013 and 2014 293Article 1(3) of the 2013 Decree provides that Colombia exercises jurisdiction and sovereign rights over the maritime spaces other than the territorial sea “in the terms prescribed by international law”. The commitment to act in conformity with international law is reiterated by the addition in 2014 of a last paragraph to Article 5 (on the contiguous zone), which states that the application of Article 5 “will be carried out in conformity with international law and Article 7” (which itself provides that the rights of other States are not affected or limited by the Decree) 4 8DecreeNo 1946 (as amended) was issued by the President of the Republic of Colombia in exercise of his powers under the 1991 Political Constitution in furtheranceof Law 10 of 1978, which provides that the Government shall indicate the 291There had been an earlier reference to the contiguous zone in a law of 1984: see CCM, para. 5.9. 292CCM, para. 5.9.293The background to Decree No. 1946, which was issued by the President of Colombia on 9 September 2013 and amended by Decree No 1119 of 17 June 2014, was described in CPO, paras. 2 61-2 62 150
baselines from which various maritime spaces are measured, and
Law 47 of 1993 (concerning the Archipelago Department of San
Andrés, Providencia and Santa Catalina). After reciting Article
101 of the 1991 Political Constitution, and relevant provisions
of Laws 10 of 1978 and 47 of 1993, the preamble to the Decree
proclaims that: “The Republic of Colombia exercises all the
rights over its maritime spaces in accordance with International
Law”.
4 9 Article 1(1) and (2) of the Decree set out a detailed
definition of the island territories of Colombia in the
Southwestern Caribbean Sea. Article 1(3) provides, inter alia,
that Colombia “exercises full sovereignty over its insular
territories and territorial sea” and “jurisdiction and sovereign
rights over the rest of the maritime spaces generated by its
insular territories in the terms prescribed by international law”.
Article 2 provides that “[i]n accordance with (…) customary
international law” the maritime spaces generated by the island
territories (including the contiguous zone) “are part of
Colombia”.
4 10 Article 3(1) of the Decree provides that “the Government
will indicate the points and baselines for which the width of
territorial seas will be measured, along with the contiguous
zone”. Article 3(2) provides that “[t]hese lines will be drawn in
accordance with criteria recognized by customary international
law” (which include special criteria related to islands situated on
atolls or islands surrounded by reefs) Article 3(3) concerns
151
straight baselines Article 6 then makes provision for the publication of official thematic maps of the points and baselines, and also of the Integral Contiguous Zone once the points and baselines have been set forth in a Decree 4 11Article 4 makes provision for the 12 nautical miles’territorial seas of the island territories 4 12Article 5 makes provision for the contiguous zone of the island territories It comprises three sections Section 1 provides that the contiguous zone of the island territories extends up to a distance of 24 nautical milesfrom the baselines Section 2 provides that “the lines indicated for the outer limits of the contiguous zones will be joined to each other through geodetic lines.” Section 3 then describes the faculties ofenforcement and control necessary for specified purposes The final paragraph of Section 3 then includesthe following provision, which applies to the whole of Article 5 of the Decree: “The application of this article will be carried out in conformity with international law and Article 7 of the present Decree.”4 13Article 7 provides that the Decree will not “affect or limit(…)the rights of other states”.4 14Nicaragua complains that the map of Colombia’s contiguous zone included in the Counter-Memorial (Figure 5 1) differs from the map shown at the televised press conference on 9 September 2013,a depiction ofwhich Nicaragua reproduced 152
in its Application and reproduces again at Figure 3 1(a) of its
Reply As stated in Colombia’s Preliminary Objections and in
its Counter-Memorial,294 Colombia has not yet issued an official
map showing the contiguous zone because technical work is still
ongoing to determine the relevant points and baselines
according to Article 3 of the Decree, so that they can be
proclaimed in accordance with Article 6 of the Decree Pending
such official publication, Figure 5.1 of the Counter-Memorial
depicts the integral contiguous zone for illustrative purposes,
and – for the purposes of the present case – is nothing more than
an accurate illustration of how the Decree should apply in
practice
4 15 As explained in the Counter-Memorial, due to the
geography of the region, the contiguous zones of the islands
intersect – each island is less than 48 nautical miles from a
neighbouring island – and hence the zone which Colombia
established is a single, integrated contiguous zone for the
Archipelago Furthermore, for the effective implementation of
this contiguous zone, Colombia, in conformity with customary
international law, drew geodetic lines to connect the 24-nauticalmile
arcs from the islands
4 16 Nicaragua, in its Reply, accepts “the entitlement of
Colombia to a contiguous zone”,295 which necessarily includes
the establishment of a contiguous zone for the San Andrés
294 CPO, para. 2.59 and CCM, para. 5.1.
295 NR, para. 3.20.
153
Archipelago. Nicaragua does, however, dispute the extension of the contiguous zone into its EEZ, the rights exercised within the contiguous zone, and the simplification of the outer limits of the contiguous zone Colombia will address Nicaragua’s objections to the contiguous zone of its island territories in turn C.Colombia’s Integral Contiguous Zone MayOverlapwithNicaragua’s EEZ4 17Nicaragua attempts to convince the Court that under customary international law, a contiguous zone of one State may not extend into the EEZ of another State. Nicaragua’s proposition is that its EEZ rights extinguish any protective rights and powers of Colombia as part of the contiguous zone regime 296Nicaragua does not present any convincing evidence or doctrine to that effect There is none The Court should thus reject its unfounded ipse dixit interpretation of customary international law 4 18This Section will show that the right of the coastal State to establish a contiguous zone is independent of, and not incompatible with, any resource-oriented EEZ rights of another State in the same space Within the contiguous zone,the coastal State only has the right to exercise the degree of control necessary to protect its vital interests within its territory or territorial sea Colombia will demonstrate that no inherent conflict exists between one Stateʼs EEZ rights and another 296NR, para. 3.21.154
Stateʼs contiguous zone powers, and that, under international
law, a coastal State is permitted to exercise its contiguous zone
rights, regardless of the existence of another State’s EEZ rights
in the same maritime space
4 19 In its Counter-Memorial, Colombia demonstrated that
the right of the coastal State to establish a contiguous zone under
customary international law is distinct from the right to a
contiguous zone in the 1958 Convention on the Territorial Sea
and the Contiguous Zone,297 and later in UNCLOS 298 The
customary right to establish a contiguous zone encompasses the
exercise of control necessary to protect the vital interests of the
coastal State including, inter alia, security interests and
environmental protection 299 Nevertheless, even if the Court
were to accept Nicaragua’s contention that the customary right
to establish a contiguous zone has been codified and is now
limited to the precise formulations in Article 24 of the 1958
Convention and Article 33 of UNCLOS, Colombia will
demonstrate that both the establishment of its contiguous zone
and all the powers specified in Article 5 of Decree No 1946 (as
amended), are in conformity with those provisions
4 20 For present purposes, the key point is that the
jurisdiction and powers vested in the coastal State within the
297 Hereinafter “the 1958 Convention”.
298 CCM, paras. 5.39-5 54
299 CCM, para. 5.48.
155
contiguous zone are different from the sovereign rights a State possesses in its EEZ As the Virginia Commentary notes:“The rights of control exercisable by the coastal State in the contiguous zone, however, differ from its sovereign rights or jurisdiction in the exclusive economic zone, which relate to the natural resources of that zone”3004 21In the EEZ, UNCLOS Article 56 and customary international law provide that the coastal State has specific, mainly resource-oriented rights, including the exclusive right to exploit the resources of the water column, the sea-bed and its subsoil,and has specific jurisdiction with regard to the establishment and use of artificial islands, installations and structures, marine scientific researchand the protection and preservation of the marine environment These defined rights must be exercised with due regard to the rights and duties of other States in the zone 4 22The EEZ regime thus does not bestow sovereignty upon the EEZ coastal State; that State only possesses certain exclusive resource-oriented sovereign rights and jurisdiction in its EEZ,while all other States continue to enjoy their traditional rights and freedoms therein. Hence, the exercise of these specific resource-oriented rights by the coastal State in its EEZ is subject 300Virginia Commentary, p. 275; see also Proelss Commentary,p. 262; J. Carlson, “Presidential Proclamation 7219: Extending the United States’ Contiguous Zone –Didn’t Someone Say This Had Something to Do with Pollution?”,University of Miami Law Review, Vol. 55, No. 3, 2001 (available at the Peace Palace Library) 156
to the obligation to have due regard to the rights and duties of
other States, including those in UNCLOS Article 33 and the
customary right to establish a contiguous zone
4 23 Nicaragua contends that Colombia must prove that any
rights it claims within Nicaragua’s EEZ – in this case,
contiguous zone rights – are attributed to Colombia and not to
Nicaragua in accordance with UNCLOS Article 59 301 This
argument is misguided; Article 59 has no role to play.
4 24 Article 59 was a new provision negotiated at UNCLOS
III with a view to providing a basis for the resolution of any
conflict of interests between the coastal State and any other
State, in cases where the Convention did not allocate rights or
jurisdiction to the coastal State or other States There is little if
any practice concerning Article 59
4 25 In any event, Nicaragua’s reliance on this provision does
not assist its case First, Nicaragua simply assumes that Article
59 reflects customary international law but fails to prove its
opposability to Colombia. For this reason alone, the Court
should disregard any purported relevance of Article 59 to the
case Second, even if the Court were minded to consider that
Article 59 reflected customary international law, quod non, it is
clear from its terms, context and negotiating history that Article
301 NR, para. 2.10.
157
59 has no relevance to the question that arises in the present case, that of overlapping contiguous zones and EEZs. 4 26Article 59 of UNCLOS reads:“In cases where this Convention does not attribute rights or jurisdictionto the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interestsof the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involvedto the parties as well as to theinternational community as a whole.”302UNCLOS Article 59 does not envision, as Nicaragua would have it, the attribution of additional rights to the coastal State in its EEZ. Article 59 only concerns conflicts of interests of the coastal State in its EEZ and those of other States: interests,not rights or jurisdiction. Furthermore, Article 59 applies only to cases where UNCLOS “does not attribute rights or jurisdiction” to any State As much of Nicaragua’s argument against Colombia’s contiguous zone circles around UNCLOS Article 33, it is evident that the Convention does in fact attribute contiguous zone rightsand jurisdiction Hence,Article 59 is inapplicable to the question at hand. 4 27Nor has Nicaragua shown any conflictof interests As explained below, there is no inherent conflict between the 302Emphasis added 158
resource-related rights and jurisdiction of the coastal State in the
EEZ and the control that may be exercised, for specific
purposes, by a coastal State in the contiguous zone. Nor has
Nicaragua shown any actual such conflict in the present case
Finally, the content of the rule in Article 59 does not assist
Nicaragua: even if it applied, Article 59 gives no preference to
EEZ rights over the rights of other States, including the latter’s
contiguous zone rights
4 28 UNCLOS Article 73 prescribes that any legislation or
enforcement by the coastal State within the EEZ must be limited
to the specific rights and duties of the State in the EEZ:
“The coastal State may, in the exercise of its
sovereign rights to explore, exploit, conserve and
manage the living resources in the exclusive
economic zone, take such measures, including
boarding, inspection, arrest and judicial
proceedings, as may be necessary to ensure
compliance with the laws and regulations adopted
by it in conformity with this Convention.”
Therefore, as part of the EEZ regime, the EEZ coastal State does
not possess the right to exercise, beyond its own contiguous
zone, control with respect to its customs, fiscal, immigration or
sanitary laws and regulations The absence of such a right as
part of the EEZ regime is intentional. During the Conference, it
was repeatedly stressed that the EEZ and the contiguous zone
regimes conferred separate and distinct types of jurisdictions
159
upon the State 303The contiguous zone rights were reserved for the first 24 nautical miles from the coast presumably to protect the freedom of navigation and other rights of all other international users 304It is thus clear that not only does the EEZ State lack the right to protect its own interests with respect to customs, fiscal, immigration or sanitary laws and regulations as part of the EEZ regime, but, a fortiori, it may not interfere with or purport to safeguardthe contiguous zonerights thatanother State may havein the same area. Under international law, the right and duty to protect such vital interests of the coastal State are vested solely in thatState 4 29There is no inherent conflict between the rights of the coastal State in the contiguous zoneand the rights of another State in its EEZ At UNCLOS III, “the prevailing view (…) was that (…)the envisaged legal regime of the EEZ was intended to 303Virginia Commentary, p. 270; see e g Official Records of the Third United Nations Conference on the Law of the Sea: A/CONF.62/C.2/SR.9,Summary records of meetings of the Second Committee, 9thmeeting, India, para. 3; Indonesia, para. 4; Iraq, para. 11; Algeria, para. 12; A/CONF.62/C.2/SR.22,Summary records of meetings of the Second Committee, 22ndmeeting, Switzerland, paras. 135-136; A/CONF.62/C.2/SR.26,Summary records of meetings of the Second Committee, 26thmeeting, Egypt, para. 27;A/CONF.62/C.2/SR.31,Summary records of meetings of the Second Committee, 31stmeeting, Italy, para. 32; Germany, para. 35; Bahrain, paras. 42-43, available at: http://legal.un.org/diplomaticconferences/1973_los/vol2.shtml(last visited: 1 November 2018) 304The objection to extending the contiguous zone beyond 12 nautical miles was raised for fear it would “lead to serious disturbance of international communication and the freedom of navigation”. J. Symonides, “Origin and legal essence of the contiguous zone”, in Ocean Development & International Law, Vol. 20, Issue 2, 1989, p.206 (available at the Peace Palace Library) 160
cover entirely different subjects [than the
contiguous zone regime], and that there were thus
no overlaps in substance between these two
maritime zones”.305
As noted above, the rights of the State in the EEZ mainly
concern resources, and its jurisdiction is limited to specified
actions in relation to these (UNCLOS Article 56). For example,
the EEZ State may regulate the exploitation of resources in the
EEZ or regulate traffic to offshore installations. In contrast,
contiguous zone jurisdiction is preventive and corrective: therein
the coastal State is afforded the necessary powers in order to
prevent and punish infringement of its customs, fiscal,
immigration or sanitary laws and regulations within its territory
or territorial sea. The right to exercise control in the contiguous
zone only comes into operation once the event or action
develops a potential to adversely affect the essential interests of
the coastal State in its territory or territorial sea
4 30 Thus, if in a given maritime area, State A exercises EEZ
rights while State B exercises contiguous zone rights, no conflict
should arise, as each State has jurisdiction over events which
affect its own rights and interests. In this area of the sea, State
A, the EEZ State, would have the right to regulate the
enumerated resource exploitations and have jurisdiction over
offshore installations, maritime research and an alike; in part of
the same maritime area, State B, the contiguous zone State, will
exercise the necessary control in the contiguous zone over
305 Proelss Commentary, p. 262.
161
actions and inbound ships which threaten to violate its customs, fiscal, immigration or sanitary laws and regulations and over ships which have transgressed such laws and regulations 306As neither State may exercise jurisdiction over events affecting the protective laws and regulations of the other State, there can be no conflict 4 31The different jurisdictions in the two maritime regimes were distinguished in UNCLOS III During the31stmeeting of the Second Committee, which concluded the Committee’s discussion on the contiguous zone, the representativeof the German Democratic Republic clarified that:“[w]ithrespect to the rights of the coastal State in the contiguous zone, he said they should include the right to control customs, immigration, fiscal and sanitation regulations The regulations governing the contiguous zone would not affect the right of the coastal State to utilize the living and mineral resources in the zone adjacent to its territorial sea if the concept of the economic zone was incorporated in the new law of the sea.”307306As discussed in the Counter-Memorial, it is Colombia’s position that under customary international law, inthe contiguous zone the coastal State may exercise necessary control over other actions and events which may adversely affect its vital interests. See CCM, paras. 5.50-5 54 307Official Records of the Third United Nations Conference on the Law of the Sea,A/CONF.62/C.2/SR.31, Summary records of meetings of the Second Committee, 31stmeeting, Germany, para. 35, available at: http://legal un org/docs/?path= /diplomaticconferences/1973_los/docs/english/vol_2/a_conf62_c2_sr31 pdf&lang=E(last visited: 1 November 2018).162
The representative of Bahrain
“agreed with the view that the establishment of a
contiguous zone for particular purposes beyond the
territorial waters of a coastal State was not
inconsistent with the concept of an exclusive
economic zone since the latter, as its name implied,
would be an area in which the utilization of
resources and other economic matters were the sole
concern
A coastal State’s rights in the contiguous zone
were of a functional and protective nature.”308
A contrary proposition would undermine the essential interests
of the coastal State in its contiguous zone and the balance struck
in the text of UNCLOS.
4 32 The limited jurisdiction of a State in its EEZ was
intentional; the Conference rejected the initiative of certain
States to transform the EEZ into a 200-nautical-mile territorial
sea 309 While certain voices within the Conference suggested that
the contiguous zone should be discarded,310 the concept was
308 Official Records of the Third United Nations Conference on the Law
of the Sea, A/CONF.62/C.2/SR.31, Summary records of meetings of the
Second Committee, 31st meeting, Bahrain, paras. 42-43, available at:
http://legal.un.org/docs/?path=../diplomaticconferences/1973_los/docs/e…
h/vol_2/a_conf62_c2_sr31 pdf&lang=E (last visited: 1 November 2018).
(Emphasis added)
309 Virginia Commentary, p. 550.
310 Virginia Commentary, p. 269; see e g. Official Records of the Third
United Nations Conference on the Law of the Sea: A/CONF.62/C.2/SR.9,
Summary records of meetings of the Second Committee, 9th meeting, Mexico,
para. 2; Israel, paras. 5-6; Kenya, para. 10, available at:
http://legal.un.org/docs/?path=../diplomaticconferences/1973_los/docs/e…
h/vol_2/a_conf62_c2_sr9 pdf&lang=E (last visited: 1 November 2018).
163
preserved because it differs from the EEZ and confirms the coastal State’s customary rights The jurisdiction and rights bestowed upon the coastal State for each regime are intentionally distinct 311During the 31stmeeting of the Second Committee, the Italian representative explained that:“His position on the contiguous zone was related to his concept of the economic zone The rights of the coastal State in the economic zone would be purely economic, while its rights in a much more restricted zone would relate to national security, customs, taxation, health and immigration, and the right to guarantee the protection of its territory If the breadth of the territorial sea was to be reduced and a contiguous zone established beyond it, it should be stated very clearly that the coastal State had different competences over the different parts of the high seas beyond its territorial waters It would have rights and competences with regard to the protection of its territory in the contiguous zone, while it would have rights and competences with regard to the protection of its clearly defined economic interests in the economic zone measured from the outer limit of the territorial sea The 311Virginia Commentary, p. 270; see e g.Official Records of the Third United Nations Conference on the Law of the Sea: A/CONF.62/C.2/SR.9,Summary records of meetings of the Second Committee, 9thmeeting, Indonesia, para. 4; Iraq, para. 11; Algeria, para. 12; India, para. 3; A/CONF.62/C.2/SR.22,Summary records of meetings ofthe Second Committee, 22ndmeeting, Switzerland, paras. 135-136; A/CONF.62/C.2/SR.26,Summary records of meetings of the Second Committee, 26thmeeting, Egypt, para. 27; A/CONF.62/C.2/SR.31,Summary records of meetings of the Second Committee, 31stmeeting, Italy, para. 32, available at: http://legal.un.org/diplomaticconferences/1973_los/vol2.shtml(last visited: 1 November 2018). See also J. Carlson, “Presidential Proclamation 7219: Extending the United States’ Contiguous Zone –Didn’t Someone Say This Had Something to Do with Pollution?”,University of Miami Law Review, Vol. 55, No. 3, 2001, p. 518 (available at the Peace Palace Library) 164
concept, and the functions of the contiguous zone
and the economic zone were thus very different.”312
The Italian position was in line with the position of the
representative of Switzerland, who had explained in an earlier
meeting on the contiguous zone that:
“First, the proposed economic zone and the
contiguous zone served different purposes: within
the economic zone, the coastal State would have
exclusive exploitation rights over living and nonliving
resources; its sole competence in the
contiguous zone, however, would be the prevention
and punishment of offences against certain rules
designed to ensure the maintenance of good order
Secondly, the type of jurisdiction to be exercised in
each zone was completely different: in the
exclusive economic zone, the coastal State would
have – chiefly legislative – jurisdiction over natural
resources and the preservation of the marine
environment; in the contiguous zone, it would have
the right to punish certain offences committed or to
prevent offences likely to be committed by a vessel
or its crew on the territory of the coastal State or in
its territorial waters. Its competence did not extend
to offences that had been or would be committed in
the contiguous zone, and there could thus be no
application of rules within that zone.”313
312 Official Records of the Third United Nations Conference on the Law
of the Sea, A/CONF.62/C.2/SR.31, Summary records of meetings of the
Second Committee, 31st meeting, Italy, para. 32, available at:
http://legal.un.org/docs/?path=../diplomaticconferences/1973_los/docs/e…
h/vol_2/a_conf62_c2_sr31 pdf&lang=E (last visited: 1 November 2018).
(Emphasis added)
313 Official Records of the Third United Nations Conference on the
Law of the Sea, A/CONF.62/C.2/SR.22, Summary records of meetings of the
Second Committee, 22nd meeting, Switzerland, paras. 136-137, available at:
165
Similarly, the representative of Iraq explained that:“the concept of the contiguous zone differed from that of the economic zone While he did not oppose the proposals to postpone consideration of the question of the contiguous zone until after the question of the economic zone had been discussed, he pointed out that the concept of the economic zone related only to jurisdiction over resources The concept of the contiguous zone, on the other hand, involved the jurisdiction of the coastal State in regard to customs, fiscal, sanitation and immigration regulations.”314The Indonesian representative pointed out that while:“the contiguous zone would lose its importance if the ideaof an economic zone were approved, but since the latter would essentially relate to questions of economics and marine resources, his delegation preferred that the concept of the contiguous zone should not be discarded completely, since it involved other powers of the coastal State with regard to customs, fiscal and police control, and sanitation and immigration regulations.”315http://legal.un.org/docs/?path=../diplomaticconferences/1973_los/docs/e… pdf&lang=E(last visited: 1 November 2018) 314Official Records of the Third United Nations Conference on the Law of the Sea, A/CONF.62/C.2/SR.9,Summary records of meetings of the Second Committee, 9thmeeting, Iraq, para. 11, available at: http://legal.un.org/docs/?path=../diplomaticconferences/1973_los/docs/e… pdf&lang=E(last visited: 1 November 2018).315Official Records of the ThirdUnited Nations Conference on the Law of the Sea, A/CONF.62/C.2/SR.9,Summary records of meetings of the Second Committee, 9thmeeting, Indonesia, para. 4, available at: http://legal.un.org/docs/?path=../diplomaticconferences/1973_los/docs/e… pdf&lang=E(last visited: 1 November 2018).166
4 33 Since State A, the EEZ State, may not exercise its own
contiguous zone jurisdiction beyond its contiguous zone, and
any contiguous zone jurisdiction it exercises will be limited to
preventing the infringement of its own vital interests with
respect to customs, fiscal, immigration or sanitary laws and
regulations, State A does not possess the right to regulate
beyond its territorial sea activities which may adversely affect
the customs, fiscal, immigration or sanitary laws and regulations
of State B The right and duty to protect itself against such
activities and to punish any perpetrators rests solely with State B
in that part of State A’s EEZ which is State B’s contiguous zone
4 34 Were the coastal State precluded from exercising its
contiguous zone rights beyond the territorial sea, its ability to
protect its vital interests, as expressed in its relevant laws and
regulations, would be severely undermined. The consequences
of such a preclusion, would be exacerbated in geographical
contexts like that of the San Andrés Archipelago These effects
can be illustrated in several scenarios
4 35 In the first scenario, if the coasts of the two States are
less than 24 nautical miles apart, each State exercises
sovereignty within its respective territorial sea It was for this
reason that then President Clinton proclaimed that the
167
contiguous zone of the United States does not extend to the territorial sea of another State 3164 36In a second scenario, if the coasts of the opposing States are 48 nautical miles apart and the delimitation was the median line, each State would be entitled to a territorial sea of 12 nautical miles and a contiguous zone of up to 12 nautical miles Whether one or both of the States were to declare an EEZ up to the equidistance line would have no effect on the exercise of contiguous zonerights by either State In case the States are less than 48nauticalmilesapart, the contiguouszonesof the States overlap; each State would exercise the necessary degree of control over ships inbound into its respective territorial sea and events that affect its defensive laws and regulations, withintheir respective overlapping contiguous zones 4 37In contrast to Nicaragua’s claim that the delimitation of the contiguous zonesis part of the delimitation of the EEZ,317the possibility of overlapping contiguous zoneswas recognised in the UNCLOS negotiations, and, according to the Virginia Commentary, was the reason for the removal of the delimitation provision with respect to the contiguous zone 318The 316W. Clinton, Proclamation 7219 –Contiguous Zone of the United States, 1999, availableat:http://www.presidency.ucsb.edu/ws/?pid=56452(last visited: 1 November 2018).317NR, paras. 3.21-3 23 318Virginia Commentary, pp. 273-274; other explanations have also been put forward for the removal of the delimitation provision.SeeH Caminos, “Contiguous Zone”, Max Planck Encyclopaedia of Public International Law, para. 16 (available at the Peace Palace Library); Proelss Commentary, pp 262-263; D. R. Rothwell and T. Stephens, The 168
Commentary quotes the following explanation for the removal
of the delimitation provision in the preparatory work of the
ISNT/Part II draft:
“There is no provision in the Convention for the
delimitation of contiguous zones Such a zone
cannot, by definition, be extended into the
territorial sea of another state Since the nature of
control to be exercised in the contiguous zone does
not create any sovereignty over the zone or its
resources, it is possible for two states to exercise
control over the same area if their zones should
overlap, for the purpose of prevention of or
punishment for infringement of their respective
customs, fiscal, immigration or sanitary laws and
regulation within their respective territories of
territorial sea.”319
This rationale applies with equal force to delimitations in which
the contiguous zone rights of the coastal State are to be
exercised within the EEZ of the other State. The contiguous
zone does not bestow upon the coastal State any sovereign rights
with respect to the resources of the EEZ; nor does it accord it
any jurisdiction which could conflict with those assigned to an
EEZ State in UNCLOS Article 56(b) It only accords
jurisdiction with respect to inbound threats of infringement of
the laws and regulations of the coastal State or to outbound
International Law of the Sea, Hart Publishing, 2016, p. 90 (available at the
Peace Palace Library)
319 Virginia Commentary, pp. 273-274, quoting Commonwealth Group
of Experts, Ocean Management: A Regional Perspective – The Prospects for
Commonwealth Maritime Co-operation in Asia and the Pacific,
Commonwealth Secretariat, 1984. (Emphasis added). See also: H Caminos,
“Contiguous Zone”, Max Planck Encyclopaedia of Public International Law,
para 16 (available at the Peace Palace Library)
169
perpetrators. Thus, analogous to overlapping contiguous zones,one State’s contiguous zonerights may co-exist with another State’s EEZ rights 4 38Nicaragua refers in its Reply to the United StatesProclamation of its contiguous zone in 1999 320However, it neglects to mention that in the Proclamation, theUnited Statesrecognised that the only maritime area where contiguous zonerights may not overlap with rights of other States is the territorial sea That is why the Proclamation states that theUnited Statescontiguous zonecannot extend “within the territorial sea of another nation”.321In addition, it underlined that it in no way affected the United States’ EEZ rights and obligations. This reaffirms the position that exercising contiguous zonerights in no way restricts the sovereign rights of States in other areas, such as the EEZ. 4 39In the case of delimitations which only accord acoastal State a territorial sea –a scenario in which Colombia finds itself as a result of the 2012 Judgment –the inability to extend the contiguous zone intothe EEZ of the opposing State would be devastating to the coastal State’s ability to protect its vital interests The coastal State wouldthusnot be able to prevent infringements of its vital interests in its territorial sea or territorial domain from materializing, and its ability to punish 320NR, para 3 35 321W.J. Clinton, Proclamation 7219 –Contiguous Zone of the United States, 1999, available at:http://www.presidency.ucsb.edu/ws/?pid=56452(last visited: 1 November 2018).170
and deter further offenses would also be compromised The
danger to the coastal State would be further exacerbated, since
the neighbouring EEZ State would itself not have the
jurisdiction to prevent such threats from materializing or to
punish offenders that escaped the coastal State’s territorial sea
In fact, such a proposition would create the absurd situation in
which customary rights, indispensable to the coastal State,
would be rendered unenforceable
4 40 Therefore, Colombia submits that, under customary
international law, a coastal State has the right to extend its
contiguous zone rights up to 24 nautical miles from the coast A
coastal State has the right to safeguard, at the very least, its vital
protective customs, fiscal, immigration, sanitary, environmental,
security or cultural heritage laws and regulations regardless of
any resource-based rights of other States in the same area A
contrary proposition would deprive the coastal State of the
ability to prevent the infringement of its vital protective laws
and regulations, as neither it nor its neighbour would be
empowered to act
4 41 Nicaragua, in its Reply, makes several demonstrably
fallacious arguments on this issue
4 42 First, Nicaragua claims that the Sketch-map of the
contiguous zone presented by Colombia illustrates that
Colombia accepts that the maritime boundaries in the north with
171
Honduras and Jamaica confine its contiguous zone 322It is quite puzzling that Nicaragua, after criticizing the same Sketch-map based on the Decree, now purports to take it out of context. The Sketch-map only illustrates the contiguous zone where it is relevant to the case and any depiction of it within Colombia’s EEZ serves only to illustrate its simplification. According to the Decree, the integral contiguous zone is not confined by the division of sovereign rights to resources and other jurisdictions with Honduras and Jamaica 4 43Second, Nicaragua claims that the delimitation of the EEZand continental shelfbetween Colombia and Nicaragua in the 2012 Judgment entailed the delimitation of the contiguous zonesbetween the States Colombia does not consider Nicaragua’s argument to have any merit Nicaragua’s argument is not based on what the Court decided in the 2012 Judgment, but rather on the fact that maps presented in that case at some point depicted contiguous zones 323Nicaragua never requested a delimitation that included the contiguous zone; it was outside the object of the dispute Nicaragua’s claim directly contradicts the Court’s own understanding of what is res judicatainits 2012 Judgment 4 44Nevertheless, the contiguous zone is not a maritime area subject to be delimited, and even if it was, as Colombia explained above, there was nooverlapping of the contiguous 322NR, para. 3 24 323NR, paras. 3.21-3 23 172
zones of the parties to that case and therefore there was no need
to delimit them – and the Court obviously did not do that In any
case, even if there had been such an overlap, both the Proelss
Commentary, on which Nicaragua heavily relies, and the
Virginia Commentary, accept that two contiguous zones may
overlap without giving rise to any need for a delimitation
4 45 Third, Nicaragua submits that the contiguous zone rights
of Colombia are not included within UNCLOS Article 58,324
which is part of general international law The reference in
Article 58(1) to Article 87 of UNCLOS (i e freedom of the high
seas), and the recognition that, except for the listed examples
therein, all States have the right to conduct “other internationally
lawful uses of the sea related to these freedoms, such as those
associated with the operation of ships, aircraft”, and the
requirement that such uses are “compatible with the other
provisions of this Convention”, entail a reference to the “inter
alia” component of Article 87. Thus, under both customary
international law and Article 58, all States retain in the EEZ, the
traditional high seas freedoms except those assigned to the EEZ
State under Article 56 or its customary equivalent. Since
contiguous zone rights are traditional high seas rights of the
coastal State exercisable in the area adjacent to its territorial sea
(and fully compatible with other provisions of the Convention),
and such rights were not assigned as part of the EEZ regime to
324 NR, para. 3.21.
173
the EEZ coastal State, theyconstitute a lawful exercise of rights of other States within the EEZ of another State. 4 46For the above reasons, Colombia submits that the Court should reject Nicaragua’s objection to the brief overlap ofColombia’s contiguous zone into Nicaragua’s EEZ. The delimitation performed by the Court in the 2012 Judgment has left the western flank of Colombia’s Archipelago with only a territorial seaand two of the islands conforming that Archipelago were granted only a territorial sea 325Hence,as a direct consequence of the Courtʼs 2012 Judgment, part ofColombia’s contiguouszoneperforce lies in waters of Nicaragua’s EEZ. In its EEZ, Nicaragua does not possess the right to safeguard Colombia’s territory and territorial sea from potential infringement of Colombia’s vital interests addressed by its customs, fiscal, immigration or sanitary laws and regulations. Moreover, Nicaragua also lacks the right to detain and punish perpetrators who infringed such vital Colombian interests and have managed to flee seaward fromColombia’s territorial sea Hence, besides the fact that a contiguous zonemay lawfully co-exist within the EEZ of another State, if Colombia was precluded from exercising its powers thereinthe Colombianislands would be exposed to violations of its customs, fiscal, immigration or sanitary laws and regulations,and Colombia 325Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment, I.C.J. Reports 2012, p. 710, para. 235 and p. 714, Sketch-map No 11 174
could not do anything to prevent such threats from
materializing Nor could Nicaragua, for that matter
D. The Powers Set Out in the Decree Are in Conformity
with International Law
4 47 In its Reply, Nicaragua grossly distorts Colombia’s
position concerning the contiguous zone Colombia does not
claim “that it could potentially extend its contiguous zone over
the whole Caribbean Sea (or even further)”.326 And Colombia
does not argue that customary international law does not
“prescribe[] geographical and material limits to the contiguous
zone”.327 What Colombia claims is that no rule of customary
international law was violated by the issuance of Decree No
1946 (as amended)
4 48 First, the present section will show that Article 33 of
UNCLOS does not reflect present-day customary international
law on the contiguous zone Nicaragua has failed to show
otherwise
4 49 Second, the section will show that under existing
customary international law, a coastal State is permitted to
establish zones contiguous to its territorial sea, of varying
breadth and for a range of purposes, going in some respects
beyond those expressly envisaged in Article 33 of UNCLOS.
326 NR, para. 3 7
327 NR, para. 3.8.
175
4 50Third, and in the alternative, even if the Court were to hold that Article 33 of UNCLOS reflects, in whole or in part, rules of customary international law, this treaty provision has been interpreted and applied broadly enough to encompass both the spatial and the substantive content of Article 5 of Decree No 1946 (as amended) 4 51Fourth, even if the powers set forth in Article 5 of Decree No 1946 (as amended) were being applied in a manner going beyond what the rules of customary international law on the contiguous zone would permit, that would not in itself mean that such application violated Nicaragua’s EEZ rights. Whether that was the case would depend upon the specific powers in question and the circumstances of their application. Colombia will show that based on customary international lawall States enjoy extensive freedom of navigationand overflightrights, as well as other internationally lawful uses of the seawithin a coastal State’s EEZ. The exercise of such rights, even if deemed additional to those that may be exercised in the contiguous zone, quod non, is lawful under international law even if, for the purposes of domestic law, they are described as being exercisable as part of a contiguous zone. The question is not whether Colombia’s contiguous zone is excessive spatially or in terms of powers, quod non, but rather if it has somehow violated the Nicaragua’s EEZ rights. 176
(1) ARTICLE 33 DOES NOT REFLECT CUSTOMARY
INTERNATIONAL LAW
4 52 Any assessment of whether the contiguous zone of the
Colombian island territories in the Southwestern Caribbean Sea
complies with customary international law must begin by
examining whether Colombia’s claimed jurisdiction complies
with the customary international law concerning the contiguous
zone As elaborated in the Counter-Memorial, under customary
international law the interests for the protection of which the
coastal State may exercise control in the contiguous zone are not
limited to those set out in Article 24 of the 1958 Convention and
Article 33 of UNCLOS, but rather have evolved with the threats
posed to the coastal State, and include, inter alia, the coastal
State’s security and environmental concerns 328
4 53 The customary international law right of the coastal State
to establish a contiguous zone to protect its vital interests dates
back to the 18th century and was recognised in the 1958
Convention 329 Article 24 of the Convention provides:
“1 In a zone of the high seas contiguous to its
territorial sea, the coastal State may exercise the
control necessary to:
328 CCM, paras. 5 39-5 55
329 A. V. Lowe, “The Development of the Concept of the Contiguous
Zone”, British Yearbook of International Law, Vol. 52, 1982 (available at the
Peace Palace Library)
177
(a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea;(b) Punish infringement of the above regulations committed within its territory or territorial sea 2 The contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured 3 Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its contiguous zone beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of the two States is measured.”UNCLOS Article 33, adopted after only limited discussion by UNCLOS III, provides:“1 In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;(b) punish infringement of the above laws and regulations committed within its territory or territorial sea 2 The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.”178
Article 33 UNCLOS is almost identical to Article 24 of the 1958
Convention, except for the deliberate omission of the latter’s
paragraph 3 (delimitation)
4 54 In its Reply, referring to the Draft Articles on the Law of
the Sea adopted by the International Law Commission (ILC) in
1956, Nicaragua states that: “The matters listed in this draft
article reflect State practice contemporary with its adoption”.330
And it adds,
“none of the elements put forward by Colombia
supports its argument, according to which
customary international law authorises States to
exercise control, in their contiguous zone, over
matters other than those listed in Article 33 of
UNCLOS” 331
4 55 This tries to shift the burden of proof It is Nicaragua that
asserts that Colombia’s Decree has violated the customary
international law on the contiguous zone and the burden is,
therefore, on Nicaragua to show that. If Nicaragua’s claim is
based on the customary status of Article 33, then it is for
Nicaragua to establish such status, based on State practice and
opinio juris. Not only has Nicaragua failed to do so, its own
arguments and references undermine its contentions
330 NR, para. 3.30.
331 NR, para. 3.40.
179
4 56First, discussions over the various texts negotiated on the contiguouszone show that there were fundamental disagreements as to the texts adopted. At the time of the negotiation of the 1958 Convention and later during UNCLOS III, “customs, fiscal, immigration or sanitary laws and regulations” were considered sufficient, by some, to protect the vital interests of the coastal State But this was far from a unanimous view. Indeed, during UNCLOS I, Poland proposed an amendment that would add “security” to the list of specified rights in Article 24 While Poland’s proposal was adopted by the responsible Committee and gained the support of the majority of the participating States, it did not achieve the necessary two-thirdsmajority in the Plenary and so was ultimately not adopted 3324 57Nicaragua itself admits that the final text of Article 24 of the 1958Convention was a result of compromise. Indeed, the record shows that there was no general agreement among States as to the rights of the State in the contiguous zone Nicaraguafurther admits thatno real agreement or exchange of views was reached during the UNCLOS negotiations 3334 58Professor Vaughan Lowe, who has acted as Counsel for Nicaragua,surveys the development of the concept of the contiguous zone, noting that when the 1958 Convention was 332H Caminos, “Contiguous Zone”, Max Planck Encyclopaedia of Public International Law, para. 17 (available at the Peace Palace Library).333NR, para. 3.33.180
concluded, writers such as Fitzmaurice and Lauterpacht still
questioned the existence of the concept itself under international
law 334
4 59 He notes that there was “no uniform practice establishing
the agreement of parties to the 1958 Convention upon the
interpretation of the contiguous zone article”335 and that
“practice is divergent, and its analysis is complicated by the
emergence of claims to pollution, defence and economic zones
going beyond the scope of the 1958 contiguous zone article.”336
4 60 Lowe notes further that Article 24 was “incorporated
verbatim, and without significant discussion” by UNCLOS
III 337 He concludes that,
“lack of agreement upon its meaning has not
affected its durability Whatever the shortcomings
it might have as a treaty provision, the 1958
formula succeeded in bringing together a number
of different approaches to maritime jurisdiction.”338
334 A. V. Lowe, “The Development of the Concept of the Contiguous
Zone”, British Yearbook of International Law, Vol. 52, 1982, pp. 158-159
(available at the Peace Palace Library)
335 A. V. Lowe, “The Development of the Concept of the Contiguous
Zone”, British Yearbook of International Law, Vol. 52, 1982, p. 168
(available at the Peace Palace Library)
336 A. V. Lowe, “The Development of the Concept of the Contiguous
Zone”, British Yearbook of International Law, Vol. 52, 1982, p. 168
(available at the Peace Palace Library)
337 A. V. Lowe, “The Development of the Concept of the Contiguous
Zone”, British Yearbook of International Law, Vol. 52, 1982, p. 168
(available at the Peace Palace Library)
338 A. V. Lowe, “The Development of the Concept of the Contiguous
Zone”, British Yearbook of International Law, Vol. 52, 1982, p. 168
(available at the Peace Palace Library) (Emphasis added)
181
4 61Thus, Article 33 of UNCLOS was concluded as a compromise text when no agreement on the scope of the powers to be exercised in the contiguous zone existed. As is usual in such situations, its terms are broad and allow for various interpretations and continuing disagreement between UNCLOS parties Therefore,those terms did not and do notadequatelyreflect the status of customary international law on the contiguous zone (2)THE CUSTOMARY INTERNATIONAL LAW ON THE CONTIGUOUSZONE4 62Colombia explained in its Counter-Memorial that, under customary international law, based upon State practice and acceptance as law,339in an area contiguous to its territorial sea, the coastal State may exercise the control necessary to protect and safeguard its essential interests, including but not limited to those relating to customs, fiscal, immigration or sanitary laws and regulations enacted to protect its interests in its territory and territorial sea This right enables the coastal State to safeguard its essential interests in such fields as security or drug trafficking, while limiting potential interference with the maritime rights of other States 340The rights of the coastal State within the contiguous zone do not extend to the resources of the sea-bed or the water column;nor do they extend to marine 339CCM, Chapter 5.340H Caminos, “Contiguous Zone”, Max Planck Encyclopaedia of Public International Law, para. 16 (available at the Peace Palace Library).182
scientific research or offshore installations of the contiguous
zone
4 63 This is also what the negotiations over the texts which
became both Article 24 of the 1958 Convention and later
UNCLOS Article 33 reveal The broad language aimed at
bridging the various views on the contiguous zone was intended
to prevent misuse by the coastal State in ways that might
undermine the rights and freedoms of other States, in particular
their freedom of navigation and other internationally lawful uses
of the sea, while still affording the coastal State the control
necessary to protect its essential interests These dual policies
must be kept in mind in identifying the extent of contiguous
zone rights under customary international law
4 64 Nicaragua attempts to dismiss the State practice
presented by Colombia in its Counter-Memorial by stating that:
“A careful review of Colombia’s Appendix B
therefore shows that the State practice from which
the Respondent seeks support is, at best, uncertain
and does not reflect a general practice Therefore, it
cannot form the content of customary international
law”341
But it is wholly inconsistent for Nicaragua to claim that Article
33 represents customary international law while at the same time
341 NR, para. 3.39.
183
asserting that the practice of States presentedby Colombia “does not reflect a general practice”.4 65The Court will encounterhere a fundamental flaw recurring throughout Nicaragua’s argumentation Rather than meeting its burden of proof to establish that its rights have been violated by a Decree that is allegedlynot in accordance with international law, it attempts to shift that onus to Colombia, as if it were the latter that is supposed to show that it has not violated any of Nicaragua’s rights in the EEZ.4 66As to State practice itself, Colombia stands by the State practice put forward in its Counter-Memorial demonstrating the general practice and the content and scope of the contiguous zone, in the contemporary world 342Following both the 1958 Convention and UNCLOS, States have engaged in a widespread practice of adopting and enforcing legislation that expands the limitations in Articles 24 and 33 States’ domestic laws and powers within the contiguous zone have come to encompass varied and legitimate concerns, ranging from security and defence to environmental protection and maritime conservation, and to cultural heritage protection 4 67Nicaragua’s attempt to set aside thiswidespread practice fails for several reasons 342CCM, paras. 5.39-5.55 and Appendix B.184
4 68 First, Nicaragua seeks to dismiss some of this practice
with obscure and unconvincing reasoning. For example:
• That the Court should dismiss the “legislation of Gambia
[since it] is old and unclear as it refers to ‘any law or
right of The Gambia’.”343 i e since it is expansive in its
application of contiguous zone rights, it should be
ignored
• That the expansive laws of Israel and Cameroon should
be ignored since they have yet to declare a contiguous
zone, ignoring the substance of the laws 344
• That Vietnam only addresses security matters relating to
third States’ military vessels,345 when in fact the
“Government of the Socialist Republic of Vietnam
exercises the control in its contiguous zone necessary to
see to its security and custom and fiscal interest” 346
• It dismisses other States’ practice with the blanket
statement that the practice of certain States is irrelevant
because it does not mention “security”. However, it is the
content of the law, not the specific term used that reflects
343 NR, para. 3 38 and footnote 153
344 NR, para. 3.38 and footnote 153.
345 NR, para. 3.38 and footnote 153.
346 Vietnam, Statement on the Territorial Sea, the Contiguous Zone, the
Exclusive Economic Zone and the Continental Shelf, 1997, available at:
https://www.state.gov/documents/organization/58573.pdf (last visited: 1
November 2018) (Emphasis added)
185
the relevant State practice. For example, Romanian law, while not referring to security, explicitly refers to control in its contiguous zone to prevent “infractions relating to the crossing of the State frontier”, clearly a security consideration 3474 69Nicaragua also attempts to dismiss legislation enacted before UNCLOS as somehow irrelevant 348However, when current legislation was enacted is irrelevant; it represents current State practice and evidence of opinio juris. Moreover, if considerable legislation pre-dating UNCLOSgoes beyond the scope of the latter yet is still in force, it cannot be said that UNCLOS Article 33 reflects customary international law 4 70Most critically, Nicaragua is mistaken since the key terms of UNCLOS Article 33 have remained unchanged from the 1958 Convention Hence, even if the Court were to decide to adopt a cut-off date for relevant legislation and other practice, it should be the adoption of the 1958 Convention and not that of UNCLOS 4 71Nicaragua tries to dismiss the State practice presented as insufficient in quantity to establish the predominant State 347Romania, Act Concerning the Legal Regime of the Internal Waters, the Territorial Sea and the Contiguous Zone, 1990, Article 7, available at: http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/ROM_1990_Act pdf(last visited: 1 November 2018).348NR, para.3 38 186
practice 349 However, the practice put forth by Colombia
represents the legislation of almost half of the States that have
declared a contiguous zone 350 That is more than sufficient to
establish the predominance of practice
4 72 Additionally, Nicaragua claims that the legislation of the
States concerned differs, some claiming rights over security,
others over environmental protection and so on 351 However,
Nicaragua misses the point. As explained above, the customary
international law on the contiguous zone enables States to
protect their interests in their territory and territorial sea with
due regard for the rights of other States, such as freedom of
navigation rights or EEZ rights. All of the laws and regulations
concerned protect their interests in the territory and territorial
sea in matters such as security, pollution, cultural heritage and
so on. Thus, the State practice identified by Colombia
demonstrates a common understanding of the scope and content
of customary international law, as a tool to protect the State’s
essential interests in its territory and territorial sea
(3) THE CORRECT INTERPRETATION OF ARTICLE 33
4 73 Under Article 33 of UNCLOS the coastal State has the
right to exercise up to 24 nautical miles from its coast the
control necessary to prevent and punish the infringement of its
349 NR, paras 3 38-3 39
350 CCM, Appendix B.
351 NR, para. 3.38.
187
customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea 4 74Accordingly, even if UNCLOS Article 33 were deemed to enumerate exhaustively the customary international law rights within its contiguous zone, Colombia has the right to exercise the control necessary to prevent any actions or events that may infringe its vital interests within its territory or territorial sea as reflected in “its customs, fiscal, immigration or sanitary laws and regulations”. In other words, Colombia has the right to prevent any actions taken by ships within its contiguous zone that may infringe these vital interests of Colombia, including any ships inbound into Colombia’s territorial sea, which are suspected of intending to infringe Colombia’s customs, fiscal, immigration or sanitary laws and regulations. Moreover, Colombia has the authority under international law to send naval vessels to pursue and apprehend any violators of such interests that fled Colombia’s territorial sea and are present in its contiguous zone 4 75Treaty terms, including the extent of the terms “customs”, “fiscal”, “immigration” and “sanitary”, are to be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”352352Vienna Convention on the Law of Treaties, Article 31.4 188
4 76 UNCLOS was conceived as an especially long-term
treaty, intended by its drafters to put in place a legal order of the
seas and oceans 353 As a “treaty of continuing duration”, drafted
to endure through improvements in scientific understanding and
technological developments, UNCLOS and its terms must be
interpreted in an evolutionary manner In the Dispute regarding
Navigational and Related Rights (Costa Rica v Nicaragua)
case, the Court held that:
“[W]here the parties have used generic terms in a
treaty, the parties necessarily having been aware
that the meaning of the terms was likely to evolve
over time, and where the treaty has been entered
into for a very long period or is ‘of continuing
duration’, the parties must be presumed, as a
general rule, to have intended those terms to have
an evolving meaning.”354
4 77 This holding applies to the interpretation of the generic
terms “customs”, “fiscal”, “immigration” and “sanitary” in
UNCLOS, which date back over 60 years, at least to the Draft
Articles on the Law of the Sea adopted in 1956 by the ILC The
meaning of these terms changes with time and its reference
tracks through time both social developments and scientific
understanding; for example, the understanding of health and the
factors which adversely affect it, has evolved significantly since
the 1950s There is no evidence that the participants in
UNCLOS III intended the scope of terms such as these to be
353 UNCLOS, Preamble.
354 Dispute regarding Navigational and Related Rights (Costa Rica v
Nicaragua), Judgment, I.C.J. Reports 2009, p. 213, para. 66.
189
frozen in their 1950s understanding Onthe contrary, with the recognised objective of protecting the vital interests of the coastal State, the drafters surely intended such terms to be interpreted in an evolutionary manner to assure continuous effet utile 4 78As explained above, during the drafting of UNCLOS, these generic terms were deemed to cover a coastal State’s vital interests in its territory and territorial sea The purpose of Article33 was to endow the coastal State with sufficient control to prevent inbound threats to its territory orterritorial sea from materialising and to accord adequate control to punish those who violated them, all without compromising the correlative rights of other States Such a purpose, by its very nature, requires an evolutionary interpretation to the threats of the present, lest the threats to the coastal State evolve with time while the jurisdiction to deal with them does not The generality of the terms selected enables a coastal State to adapt its control totheevolvingthreats to its vital interests 4 79In its 1956 report to the General Assembly, the ILCexplained that:“The Commission did not recognize special security rights in the contiguous zone It considered that theextreme vagueness of the term ‘security’ would open the way for abuses and that the granting of such rights was not necessary The enforcement of customsand sanitary regulations will be sufficient in most cases to safeguard the 190
security of the State In so far as measures of selfdefence
against an imminent and direct threat to
the security of the State are concerned, the
Commission refers to the general principles of
international law and the Charter of the United
Nations.”355
4 80 Two reasons were put forth by the ILC for the omission
of an express reference to “security”: (1) “security” was
considered too wide a term, that could enable the coastal State to
extend its jurisdiction and undermine the freedom of navigation;
and (2) “customs, fiscal, immigration or sanitary laws and
regulations” were considered to be sufficient to cover the
security interests of the coastal State 356
4 81 Interpretation of a treaty term, including whether the
term should be interpreted extensively or restrictively, must be
performed in light of the other provisions of the treaty In this
regard, UNCLOS Article 303 is especially enlightening in that it
applies a broad and flexible interpretation to the terms in
355 International Law Commission, “Commentary to the articles
concerning the law of the sea”, Report of the International Law Commission
on the Work of its Eighth Session, A/CN.4/104, Commentary to Article 66, p.
295, para. 4, available at:
http://legal.un.org/ilc/documentation/english/reports/a_cn4_104.pdf (last
visited: 1 November 2018).
356 International Law Commission, “Commentary to the articles
concerning the law of the sea”, Report of the International Law Commission
on the Work of its Eighth Session, A/CN.4/104, Commentary to Article 66, p.
295, para. 4, available at:
http://legal.un.org/ilc/documentation/english/reports/a_cn4_104.pdf (last
visited: 1 November 2018); See H Caminos, “Contiguous Zone”, Max
Planck Encyclopaedia of Public International Law, para. 16, (available at the
Peace Palace Library); J. Symonides, The New Law of the Sea, Polish
Institute of International Affairs, 1988, p. 205 (available at the Peace Palace
Library)
191
UNCLOS Article 33. Article 303, entitled “Archaeological and historical objects found at sea” provides that:“(1) States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for thispurpose (2) In order to control traffic in such objects, the coastal State may, in applyingarticle 33, presume that their removal from the seabed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article.”4 82UNCLOS Article 303 not only generalises and unifies the terms “customs”, “fiscal”, “immigration” and “sanitary”, but recognises a contiguous zoneright which is, stricto sensu, far removed from a narrow reading of these generic terms It interprets the potential removal of “objects of an archaeological and historical nature” to constitute an infringement of the coastal State’s “customs”, “fiscal”, “immigration” and “sanitary” laws and regulations Not only is this a broad interpretation of the terms in Article 33, but the objective is expanded beyond protecting the vital laws and regulations of the coastal State, to controlling traffic in archaeological and historical objects UNCLOS Article 303 confirms that “customs”, “fiscal”, “immigration” and “sanitary” are generic terms providing for the protection of the vital interests of the coastal State, and that such generic terms are to be interpreted accordingly 192
4 83 The proposition that the terms of UNCLOS Article 33
should be interpreted in an evolutionary manner has been
supported by legal scholarship The President of UNCLOS III,
Ambassador Tommy Koh, deemed the liberal or broad
interpretation of the text of UNCLOS Article 33 to represent the
majority view of scholars 357 An evolutionary interpretation of
the terms in UNCLOS Article 33 was recently supported in the
Proelss Commentary, which warned that
“[a]n all too narrow interpretation of the purposes
enumerated in Art 33 should therefore not stand in
the way of effectively combating new and serious
threats, for example those originating in vesselsource
pollution.”358
4 84 In its Reply, Nicaragua has again labelled Colombia’s
protective control measures in its integral contiguous zone as
contrary to the provisions of UNCLOS Article 33, which
Nicaragua construes as limiting the authority of the coastal State
under customary international law The latter contention has
been rebutted by Colombia in the Counter-Memorial and in this
Rejoinder Colombia will now demonstrate that the former claim
357 T. Koh, “The Territorial Sea, Contiguous Zone, Straits and
Archipelagos under the 1982 Convention on the Law of the Sea”, Malaya
Law Review, Vol. 29, 1987, pp. 163, 174-175 (available at the Peace Palace
Library) Ambassador Koh was referring to the interpretation of the term
“territory or territorial sea” with respect to the question whether the coastal
State may exercise the same powers with respect to inbound or outbound
ships, i.e., whether it may arrest and punish inbound ships. According to
Ambassador Koh, the liberal interpretation equating the powers of the coastal
State in the contiguous zone and the territorial sea is the majority view See
also: J Symonides, The New Law of the Sea, Polish Institute of International
Affairs, 1988, pp. 205-206 (available at the Peace Palace Library)
358 Proelss Commentary, p 267
193
by Nicaragua misrepresents Colombia’s contiguous zone The contiguous zone is in full compliance with customary international law, even if the law were deemed tobe limited to a strict reading of the generic terms of UNCLOS Article 33 4 85The powers that Colombia may exercise, theoretically, inthe contiguous zone are set forth in Article 5(3) of Decree No 1946 (as amended):“3. In developing what has been provided for in the previous numeral, with the purpose of protecting the sovereignty in its territory and territorial sea, in the Integral contiguous zone established in this Article Colombia exercises the faculties of enforcement and control necessary to:(a) Prevent and control the infractions of the laws and regulations related with the integral security of the State, includingpiracy and traffickingof 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.”359359CCM, Annex 7. (Emphasisadded) 194
4 86 A careful reading of Article 5(3) shows that Nicaragua’s
contention that it exceeds the recognised rights of the coastal
State in the contiguous zone is meretricious Decree No 1946
(as amended) proclaims that Colombia has the right to exercise
the control necessary to prevent actions and events that transpire
in the contiguous zone, which may adversely affect its vital
interests and preventive laws and regulations The operative part
of Article 5(3) extends to the prevention and control of
infractions of the laws and regulations with respect to: the
security of the State including from piracy and drug trafficking;
conduct contrary to security at sea; the national maritime
interests; customs, fiscal, migration and sanitary matters; the
preservation of the marine environment; and cultural heritage.
Under customary international law, all of these competences
constitute lawful exercises of control by the coastal State in the
contiguous zone, in order to protect vital national interests.360
Moreover, none of these competences displaces or conflicts with
Nicaragua’s EEZ rights. Thus, even if the whole of customary
international law applicable to the contiguous zone were deemed
by the Court to be confined to Article 33, quod non, Colombia’s
exercise of control in its contiguous zone would still be in
compliance with international law
4 87 There is no doubt that the exercise of control with
respect to “the national maritime interests, the customs, fiscal,
migration and sanitary matters” are lawful exercises of control
360 CCM, Chapter 5.
195
by a coastal State in its contiguous zone Article 5(3) of the Decree is not, however, confined to such generic terms; for the avoidance of doubt, Article 5(3) specifies, in greater detail, several key issues that affect the preventive customs, fiscal, migration and sanitary laws and regulations of Colombia 4 88Decree No 1946(as amended)provides that Colombia will exercise control to prevent infringement “of the laws and regulations related to the integral security of the State, including piracy and trafficking of drugs and psychotropic substances”. Clearly, the exercise of control necessary to prevent and punish piracy and drug traffickingfits neatly in the conventional boundaries of UNCLOS Article 33 Both piracy and drug trafficking contravene the laws and regulations of the coastal State in relation to customs, fiscal and sanitarymatters A coastal State, aware that pirates attack ships inbound and outbound from its territorial sea or that drug trafficking vessels are inbound into its territorial sea or have escaped its territorial sea en routeto their illicit markets, cannot be left powerless to stop them A coastal State is clearly allowed to take preventive and corrective measures in its contiguous zone against pirates and drug traffickers, for both affect its vital interests in its territory or territorial sea 361361For example, the United States provides that in its contiguous zone, its Coast Guard may “board and search a foreign vessel suspected of smuggling drugs, carrying illegal immigrants, polluting the ocean, or tampering with sunken ships or other underwater artifacts (…)” See:Office of the Vice President of the United States, Vice President Al Gore Announces New Action to Help Protect and Preserve U.S. Shores and Oceans, 1999, availableat:196
4 89 With respect to other “laws and regulations related to the
integral security of the State” and “conduct contrary to the
security in the sea”, Colombia submits that security has been
recognised as part of the customary interpretation of UNCLOS
Article 33 As detailed in the Counter-Memorial, the protection
of security interests of the coastal State has been adopted by
many States as part of their contiguous zone regimes 362 In 1984,
two years after the adoption of UNCLOS and when the
1958 Convention had long been in force, a Commonwealth
Group of Experts explained that the coastal State’s rights in the
contiguous zone include safety laws and regulations: “[i]n a
zone contiguous to the territorial sea, the coastal state may
exercise the control necessary to prevent infringement of its
customs, fiscal, immigration, health and safety laws and
regulation”.363 In any case, as demonstrated by the examples
provided in Article 5(3) of the Decree, i e piracy and drug
trafficking, the clear intention of the Colombian law is to
exercise the necessary control only over events which may
adversely affect its laws and regulations in its territory and
territorial sea; such actions would fall under the “customs”,
https://clintonwhitehouse5.archives.gov/textonly/WH/EOP/OSTP/html/999_
8 html (last visited: 1 November 2018). It may be recalled that, in contrast to
some States in the Southwestern Caribbean Sea, Colombia has invested
heavily in its capacity to prevent piracy and drug trafficking in the region
See CCM, paras. 2.98-2 109
362 CCM, para. 5.48 and Appendix B.
363 Commonwealth Group of Experts, Ocean management: a regional
perspective: the prospects for Commonwealth Maritime Co-operation in Asia
and the Pacific, Commonwealth Secretariat, 1984, pp. 33-34 (available at the
Peace Palace Library) Emphasis added
197
“fiscal”, “immigration” and “sanitary” generic categories, insofaras they are embodied in customary international law. If, however, modern security threats are deemed to extend beyond the confines of “customs”, “fiscal”, “immigration” and “sanitary”, a contemporary and evolving interpretation of UNCLOS Article 33 shouldfind such security interests included 4 90The prevention and punishment of infringement of its laws and regulations concerning the preservation of cultural heritage is explicitly included in UNCLOS Article 303 Nicaragua submits that Colombia has failed toshow that UNCLOS Article 303(2) reflects customary international law 364Again, as throughout its Reply, Nicaragua attempts to shift the burden of proof to Colombia As aparty toUNCLOS, Nicaragua has accepted, by ratification, the interpretation of UNCLOSArticle 33 as put forth in UNCLOS Article 303(2) If Nicaragua claims that UNCLOS Article 33 reflects customary international law, it must prove it; similarly, if it claims that while UNCLOS Article 33 reflects customary international law, the interpretation in UNCLOS Article 303(2) doesnot, it must prove it Nicaragua has failed to do both Colombia considers it to be irrelevant whether Article 303(2) reflects customary international law since, by ratifying UNCLOS,Nicaragua has acceptedtheauthentic interpretation of the generic terms in Article 33found in Article 303(2) 364NR, para. 3.51.4 198
4 91 While some controversy exists over as to the scope of the
contiguous zone State’s right to exercise the necessary degree of
control to prevent threats to its “sanitary” laws and
regulations,365 a cogent interpretation, whether originalist or
evolving, should accord the coastal State the right to exercise
control in its contiguous zone over an environmental threat
which threatens to adversely affect its territory or territorial sea
For example, if the coastal State is aware of actions which
threaten to pollute and destroy the biosphere within its territory
or its territorial sea, threatening both the health of the population
and its food security, it would be unthinkable for international
law to render the coastal State powerless to stop such actions
from materialising
4 92 Thus, Colombia’s intention to exercise a measure of
control in its contiguous zone necessary to prevent or punish
violations of its laws and regulations with respect to the
preservation of the environment is lawful under customary
international law as well as consistent with UNCLOS Article 33
4 93 The English word “sanitary” derives from the Latin word
sanitas, which means “health”.366 The Oxford English
365 Proelss Commentary, p. 267; J. Carlson, “Presidential Proclamation
7219: Extending the United States’ Contiguous Zone – Didn’t Someone Say
This Had Something to Do with Pollution?”, University of Miami Law
Review, Vol. 55, No. 3, 2001 (available at the Peace Palace Library).
366 Oxford Dictionary, Sanitary, available at:
https://en.oxforddictionaries.com/definition/sanitary (last visited: 1
November 2018)
199
Dictionary defines the term “sanitary” as:“Relating to the conditions that affect hygiene and health, especially the supply of sewage facilities and clean drinking water.” The Merriam-Webster Dictionary similarly defines “sanitary” as “relating to health”.367In 1984, the Commonwealth Group of Experts, used the term “health” instead of “sanitary” to explain the extent of the rights within the contiguous zone 368It is now widely recognised by the scientific community and the general public that environmental damage is a cause of severe health problems Indeed, the Court has recognised “that the environmentis not an abstraction but represents the living space, the quality oflife and the very health of human beings, including generations unborn.”369It would thus be unreasonable to interpret the word “sanitary”, which means “health”, as not including environmental threats. As one commentator recently wrote “it is the ‘sanitary’power that has the greatest potential to be applicable to environmental matters”.370367Merriam-Webster Dictionary, Sanitary, available at:https://www.merriam-webster com/dictionary/sanitary(last visited: 1 November 2018) 368Commonwealth Group of Experts, Ocean management: a regional perspective: the prospects for Commonwealth Maritime Co-operation in Asia and the Pacific,Commonwealth Secretariat, 1984, pp. 33-34 (available at the Peace Palace Library) 369Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I. C. J. Reports 1996, p. 226, para. 29.370K. Zou, Sustainable Development and the Law of the Sea, Brill Nijhoff, 2017, pp. 51-52 200
4 94 While some commentators have argued that “sanitary”
was not intended at the Conference to include pollution,371
several States, including the United States and Canada, have
recognised that contiguous zone rights extend to environmental
threats, and specifically pollution.372 On 2 September 1999,
President Clinton extended the contiguous zone of the United
States to 24 nautical miles, stating in the Proclamation that the
“[e]xtension of the contiguous zone of the United States to the
limits permitted by international law will advance the law
enforcement and public health interests of the United States ˮ373
The same day, Vice-President Gore, referring to President
Clinton’s Proclamation, announced that
“[w]ithin the extended contiguous zone, the Coast
Guard may now board and search a foreign vessel
suspected of smuggling drugs, carrying illegal
immigrants, polluting the ocean, or tampering with
sunken ships or other underwater artifacts, without
371 Proelss Commentary, p. 267; see also J. Carlson, “Presidential
Proclamation 7219: Extending the United States’ Contiguous Zone – Didn’t
Someone Say This Had Something to Do with Pollution?”, University of
Miami Law Review, Vol. 55, No. 3, 2001 (available at the Peace Palace
Library)
372 J. Carlson, “Presidential Proclamation 7219: Extending the United
States’ Contiguous Zone – Didn’t Someone Say This Had Something to Do
with Pollution?”, University of Miami Law Review, Vol. 55, No. 3, 2001
(available at the Peace Palace Library); N. Wulf, “Contiguous Zone for
Pollution Control”, Journal of Maritime Law and Commerce, Vol. 3, 1972,
pp 537-558 (available at the Peace Palace Library); K. Zou, Sustainable
Development and the Law of the Sea, Brill Nijhoff, 2017, pp. 53-54
(available at the Peace Palace Library)
373 W. Clinton, Proclamation 7219 – Contiguous Zone of the United
States, 1999, available at: http://www.presidency ucsb edu/ws/?pid=56452
(last visited: 1 November 2018). (Emphasis added).
201
first obtaining permission from the country where the vessel is registered.”3744 95Such an interpretation is cogent: in the 21stcentury, it is recognised that a responsibility of the State includes taking actions to protect the health of its population It would be unthinkable that a coastal State would recognise a potential threat to the marine environment in its contiguous zone and to the health of its population but be prevented from taking action until the threat materialised in its territory or territorial sea Such a proposition would not only defeat the purpose of the contiguous zone,itwould defy common sense 4 96The same approach was voiced during UNCLOSIII The representative of Algeria urged the retention of the concept of the contiguous zone, since, inter alia,“bearing in mind the level of pollution in the Mediterranean, he felt that his country needed strong regulations to protect the marine environment adjacent to its coasts.”3754 97The Rio+20 Conference concluded that “indigenouspeoples and local communities are often the most directly 374Office of the Vice President of the United States, Vice President Al Gore Announces New Action to Help Protect and Preserve U.S. Shores and Oceans, 1999, available at:https://clintonwhitehouse5.archives.gov/textonly/WH/EOP/OSTP/html/999_8 html(last visited: 1 November 2018). (Emphasis added).375Official Records of the Third United Nations Conference on the Law of the Sea, A/CONF.62/C.2/SR.9,Summary records of meetings of the Second Committee, 9thmeeting, Algeria, para. 12, available at: http://legal.un.org/docs/?path=../diplomaticconferences/1973_los/docs/e… pdf&lang=E(last visited: 1 November 2018).202
dependent on biodiversity and ecosystems and thus are often the
most immediately affected by their loss and degradation.”376
In this regard, the situation of the San Andrés Archipelago
requires the exercise of control by Colombia over potential
environmental damage in the contiguous zone As Colombia
explained in the Counter-Memorial, environmental damage and
predatory fishing by Nicaraguan vessels are especially
threatening to the Raizales, an indigenous people who depend
for their livelihood and their well-being on the environment in
this area of the Southwestern Caribbean Sea 377
4 98 Thus, under customary international law, Colombia may
lawfully exercise control in its contiguous zone to protect the
Raizal community from such harm to the ecosystem which
threatens their health. Therefore, a hypothetical action which it
might take in the contiguous zone, targeted at preventing
environmental threats from impacting its territory or territorial
sea and not infringing any of the specified EEZ rights of
Nicaragua or other lawful international users, would be an
internationally lawful use of the sea and the exercise of
contiguous zone rights, under customary international law.
376 United Nations General Assembly, “The Future We Want”,
A/66/L.56, para. 197, available at: http://undocs.org/en/A/66/L.56 (last
visited: 1 November 2018)
377 CCM, Chapter 2, Section C.
203
(4)THE POWERS SET FORTHIN THE DECREE ARE NOT CONTRARY TO INTERNATIONAL LAW4 99Even if some of the powers set forth in Article 5 of Decree No 1946 (as amended) were beyond those to which a coastal State is entitled to exercise under the rules of customary international law on the contiguous zone (quod non), that would not in itself mean that thosepowers could not be exercised in Nicaragua’s EEZ or necessarily violated Nicaragua’s EEZ rights 4 100Since the enactment of Decree No 1946 (as amended) in itself cannot be considered a violation of Nicaragua’s rights (see Section Fbelow), the legal issue is not the wording of the Decree,but rather if and how Nicaragua’s rights in its EEZ have been violated by Colombia’s actions This is the case whether events took place within the areas covered by the Decree (and Nicaragua has not identified a single such instance) or outside those areas; and whether Colombia considered its actions to be an exercise of its contiguous zone powersoran internationally lawful use of thesea, such as the exercise of its freedomsof navigationand overflight. The answer to this latter question, one that Nicaragua has focused on, is a nonsequitur. In all cases, the crux of the issue is identifying whether Nicaragua’s sovereign rightsor maritime spaceswere actually violated, not how Colombia characterised its own actions 4 101Considering that Nicaragua has failed to point to any violation of its EEZ rights in the Colombian integral contiguous 204
zone, there is no need for the Court to determine the conformity
of Decree No 1946 (as amended) with customary international
law. Nevertheless, even if the Court took upon itself that task
and found that the Decree were not in conformity with
customary international law, that still does not answer the
question of whether the rights of Nicaragua in its EEZ have been
violated in any way
4 102 Whether Nicaragua’s rights were violated would depend
upon the specific powers in question and their application As
Colombia explained above, all States enjoy extensive freedoms
of navigation and overflight within the EEZs of other coastal
States (including those related to security), as well as other
internationally lawful uses of the sea The exercise of these
rights and freedoms additional to those that may be exercised in
the contiguous zone may nevertheless be lawful under
international law even if, for the purposes of Colombian
domestic law, they are categorised and described as being
exercisable in the contiguous zone. For international legal
purposes, the way domestic law describes itself is not decisive;
it is international law’s characterisation which is
determinative 378 The exercise of such freedom of navigation
would not violate Nicaragua’s EEZ rights, which would not
have been affected by the terms of the Decree. In other words,
378 International Law Commission, “Commentary to the Draft Articles
on Responsibility of States for Internationally Wrongful Acts”, Report of the
International Law Commission on the Work of its Fifty-Third Session,
A/56/10, Commentary to Article 4, p. 42, para. 11, available at:
http://legal.un.org/ilc/documentation/english/reports/a_56_10.pdf (last
visited: 1 November 2018).
205
the question is not whether Colombia’s contiguous zone legislation is excessive spatially or in terms of powers (quod non)but rather if Colombia has actually violated Nicaragua’s EEZ rights.4 103As explained above, under customary international law, all States retain within the EEZ high seas rights and freedoms not specifically assigned to the EEZ coastal State All of Colombia’s powers under the Decree fit squarely into those residual freedoms. For example, even if control in the contiguous zone related to security were deemed beyond the evolutionary interpretation of Article33,quod non, it would be a lawful exercise of control based on the freedoms of navigation and overflight, and other internationally lawful uses of the seas 4 104As Nicaragua, the EEZ coastal State, does not have jurisdiction, as part of the EEZ regime, to exercise control over events that affect Colombia’s protective laws and regulations, the exercise of such powers by Colombia does not violate or otherwise interfere with Nicaragua’s rights, whether such powers are viewed as within its contiguous zone rights or as an internationally lawful use of the sea 4 105At the end of the day, just as Nicaragua has failed to demonstrate more generally a violation of its EEZ rights by Colombia, so it has failed to demonstrate any such violation by the promulgation of the powers contained in Decree No 1946 (as amended). Colombia thus requests the Court to reject 206
Nicaragua’s argument concerning the extent of the rights in the
Decree and to find that all the powers claimed by Colombia in
the Decree are lawful exercises of control within a State’s
contiguous zone or otherwise an internationally lawful use of the
sea exercised by Colombia within another State’s EEZ.
E. The Outer Limits of Colombia’s Contiguous Zone Do
Not Contravene Nicaragua’s Rights
4 106 This section responds to Nicaragua’s contention that the
outer limits of Colombia’s contiguous zone do not conform with
customary international law
4 107 It is uncontested that all the islands in the San Andrés
Archipelago are entitled to a territorial sea and consequently to a
contiguous zone As a result of their naturally unique geographic
configuration, the contiguous zones of these islands intersect
thus creating an integrated contiguous zone As Colombia
demonstrated in the Counter-Memorial and recalled earlier, the
simplification of the contiguous zone through the use of
geodetic lines, is essential to enable Colombia to adequately
protect its rights within its territorial sea and terrestrial
domain 379 In contrast to Nicaragua’s exaggeration, the area
beyond 24 nautical miles, but within the contiguous zone that
overlaps with Nicaragua’s EEZ, is minimal, as can be seen in
Figure CR 4 1 below
379 CCM, Chapter 5.
207
C.R.
Pan.
Colombia
Panama
Jam.
Col.
Hon.
Nic.
Colombia
Nicaragua
Col. Col.
A
B
9
7 8
4
1
3
2
6
5
San Andrés I.
Santa
Catalina I.
Providencia I.
Roncador
Cay
ESE Cays
Alburquerque
Cays
Bajo Nuevo
Serranilla
Serrana
Cay
Quitasueño
Cay
79°W
79°W
80°W
80°W
81°W
81°W
82°W
82°W
17°N 17°N
16°N 16°N
15°N 15°N
14°N 14°N
13°N 13°N
12°N 12°N
11°N 11°N
Integral Contiguous Zone
(Total area: 65,058 sq. km)
Areas beyond 24 M
and within Nicaragua’s EEZ
(5,334 sq. km / 8.2% of ICZ)
JOINT
REGIME
AREA
(Colombia / Jamaica)
Caribbean
Sea
24 M limit
12 M limit
Miskitos
Cays
Figure CR 4.1
0 25 50 75 100
0 50 100 150
Nautical Miles
Kilometers
Mercator Projection
Datum: WGS-84
(Scale accurate at 14°N)
Prepared by: International Mapping
200
AREAS OF COLOMBIA’S ICZ LYING BEYOND
24 M AND WITHIN NICARAGUA’S EEZ
208
4 108 In the process of establishing the outer limit of its
contiguous zone, Colombia first drew arcs of circle of 24
nautical miles around each of its islands in the Southwestern
Caribbean Sea The result was, however, deemed to be
impractical as being unmanageable by the Colombian Navy, or
in fact any other naval force under similar circumstances, as is
clear when one examines the contours of the contiguous zone
without the geodetic lines, as shown in Figure CR 4.2 below.
209
C.R.Pan.ColombiaPanamaJam.Col.Hon.Nic.ColombiaNicaraguaCol.Col.AB987413265San Andrés I.SantaCatalina I.Providencia I.RoncadorCayESE CaysAlburquerqueCaysBajo NuevoSerranillaSerranaCayQuitasueñoCay79°W79°W80°W80°W81°W81°W82°W82°W17°N17°N16°N16°N15°N15°N14°N14°N13°N13°N12°N12°N11°N11°NJOINTREGIMEAREA(Colombia / Jamaica)CaribbeanSea24 M limit12 M limitMiskitosCaysFigure CR 4.20751005025050100150Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping200THE IMPRACTICAL AND UNMANAGEABLECONTOURS OF THE 24 M ARCS AROUNDCOLOMBIA’S ISLANDS
210
4 109 The picture says it all Absent the simplification of the
contiguous zone, a tangle of interconnected arcs, imposing
significant difficulties in implementation, would be produced
Since Nicaragua has persistently failed to protect the
environment and security in this part of the Southwestern
Caribbean Sea, it was imperative that Colombia’s contiguous
zone be manageable and effective. Hence, geodetic lines were
used by Colombia to connect the 24-nautical-mile arcs, thus
simplifying the outer perimeter of the contiguous zone As
evident from Figure CR 4 3, the use of the geodetic lines created
a contiguous zone which enables Colombia to fulfil its
obligations toward the residents of the Archipelago, infringes no
Nicaraguan right and is clear and understandable for other
members of the international community
211
C.R.Pan.ColombiaPanamaJam.Col.Hon.Nic.ColombiaNicaraguaCol.Col.AB987413265San Andrés I.SantaCatalina I.Providencia I.RoncadorCayESE CaysAlburquerqueCaysBajo NuevoSerranillaSerranaCayQuitasueñoCay79°W79°W80°W80°W81°W81°W82°W82°W17°N17°N16°N16°N15°N15°N14°N14°N13°N13°N12°N12°N11°N11°NIntegral Contiguous Zone(Total area: 65,058 sq. km)JOINTREGIMEAREA(Colombia / Jamaica)CaribbeanSea24 M limit12 M limitMiskitosCaysFigure CR 4.30751005025050100150Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 14°N)Prepared by: International Mapping200THE SIMPLIFICATION OF COLOMBIA’SCZ THROUGH THE USE OF GEODETIC LINES
212
4 110 When reasonable and not excessive, a simplified line has
been adapted for maritime zones in analogous circumstances
While the establishment of a contiguous zone does not require,
and is not, a delimitation,380 it is worthwhile to briefly review the
judicial practice of delimitation to ascertain whether the use of
geodetic lines by Colombia is a lawful practice in determining
maritime zones
4 111 As early as 1951, in Fisheries, the Court confirmed that
in the particular circumstances of a case, methods of setting
maritime boundaries or limits may depart from the general
rules 381 In cases where the geography would otherwise have
produced maritime boundaries which are unmanageable or
overly complicated, the Court resorted to the use of simplified
and manageable lines. For example, in the 2012 Judgment, the
Court decided to use a simple and straight delimitation line
instead of a complicated line which follows the contours of the
coasts:
380 As explained by the Commonwealth Group of Experts in 1984, the
delimitation provision was removed from the contiguous zone because there
is no need to delimit a contiguous zone; two or more contiguous zone
jurisdictions may be exercised by different States in the same area. See
Commonwealth Group of Experts, Ocean management: a regional
perspective: the prospects for Commonwealth Maritime Co-operation in Asia
and the Pacific, Commonwealth Secretariat, 1984, p. 39 (available at the
Peace Palace Library). Hence, as explained above, a contiguous zone of State
A and an EEZ of State B, may co-exist and do not require a delimitation, as
both regimes bestow distinct, separate and non-conflicting sets of powers
upon the States
381 Fisheries case, Judgment of December 18th, 1951: I.C.J. Reports
1951, pp 128-130
213
“The method used in the construction of the weighted line (…) results in a line which has a curved shape with a large number of turning points Such a configuration of the line may create difficulties in its practical application The Court therefore proceeds to a further adjustment by reducing the number of turning points and connecting them by geodetic lines This produces a simplified weighted line which is depicted on sketch-map No. 10.”382Similarly, in its recent Judgment inMaritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua), the Court decided on a simplified line for delimitation. The Court said that “[g]iven the complexity of the lines described in the previous paragraph [i e the adjusted equidistanceline], the Court considers it more appropriate to adopt a simplified line”.3834 112Simplification on a limited scale is an acceptable exercise in maritime delimitation; it fulfils the purpose of arrangements ensuring the orderly management of the oceans While not a maritime delimitation, the use of a single, simplified line forcontiguous zonesfacilitates the management by the coastal State of its rights and duties and affords foreseeability to the international users as well as other members of the international community 382Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment, I.C.J. Reports2012,p. 710, para. 235 383Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua),Judgment of 2 February 2018, p. 63, para. 158 214
4 113 As recognised by the Court in 2012, the San Andrés
Archipelago presents an idiosyncratic case for setting maritime
boundaries As Sketch-Map No 10 in the 2012 Judgment
confirms, setting the boundary at the 12-nautical-mile arcs of
circle of the Colombian islands would have created difficulties,
hence the use of a simplified line was justified 384 The same
should apply to the 24-nautical-mile arcs around the same
islands The management of a contiguous zone set to the 24-
nautical-mile arcs around the islands would create significant
practical, navigational and administrative difficulties, which are
exacerbated by the unique challenges facing littoral States of the
Southwestern Caribbean Sea 385 As explained in the Counter-
Memorial and in this Rejoinder, the Raizales, whose prosperity
and well-being are an urgent national and international priority,
depend upon the ability of Colombia to safeguard their vital
interests, inter alia, through the contiguous zone. Creating an
effective and enforceable contiguous zone was thus imperative
4 114 With these considerations in view, Colombia utilised
geodetic lines to connect the arcs to create simplified and
manageable lines for the contiguous zone The use of straight
lines to define the limits of the contiguous zone enables the
Colombian Navy to efficiently protect vital interests. Moreover,
the straight geodetic lines enable the other users of the
Southwestern Caribbean Sea to foresee when they enter the
384 Territorial and Maritime Dispute (Nicaragua v Colombia),
Judgment, I.C.J. Reports 2012, p. 710, para. 235 and Sketch-Map No 10, p.
712
385 CCM, Chapters 2 and 5.
215
contiguous zone. Overall, the simplification of the contiguous zoneis dictated by thegeography in this part of the Southwestern Caribbean Sea 4 115Moreover, as Colombia demonstrated above, there is no conflict between the sovereign resource-related rights of the coastal State within its EEZ and the rights of anothercoastal State within itscontiguous zone The contiguous zonedoes not bestow upon the coastal State any territorial or sovereign rights As the ILCstated as early as 1956, “this power of control does not change the legal status of the waters over which it is exercised.”386In those parts of Nicaragua’s EEZ, in whichColombia may exercise contiguous zone rights, whether within 24 nautical miles from the coast or as part of the simplification of the contiguous zone to enable the effective exercise of the contiguous zonerights, Nicaragua would continue to fully enjoy all the sovereign rights and jurisdiction accorded to it under the EEZ regime. Hence, the simplification of the geographical scope of the contiguous zone while providing Colombia with the ability to effectively protect its vital interests, neither undermines nor diminishes Nicaragua’s sovereign rights within the EEZ; while the one derives a benefit, the other sustains no loss 386International Law Commission, “Commentary to the articles concerning the law of the sea”, Report of the International Law Commission onthe Work of its Eighth Session, A/CN.4/104, Commentary to Article 66, p. 295, para. 1, available at: http://legal.un.org/ilc/documentation/english/reports/a_cn4_104.pdf(lastvisited: 1 November 2018).216
4 116 Without the simplification of the contiguous zone, all
maritime shipping would be subject to Colombia’s contiguous
zone rights within the 24-nautical-mile arcs, while unaffected in
the small pockets that form part of the simplification of the
contiguous zone As evident, such areas are limited in size, and
it is doubtful if any shipping passing through this area would be
able to avoid completely Colombia’s contiguous zone rights
within the 24-nautical-mile arcs. Moreover, it is questionable if
the international community would benefit from a jagged line
producing erratic contiguous zone jurisdiction As explained
above, a coherent division of jurisdiction is beneficial to all
users of the sea. It is also questionable whether the interests of
the international community lie in allowing, unchecked,
activities which may threaten the vital interests of a coastal
State, for example, drug trafficking, smuggling or pollution.
4 117 Nicaragua contends that the simplification of the
contiguous zone is contrary to international law since it extends
beyond 24 nautical miles from the coasts of the Colombian
islands Nicaragua submits that States do not establish a
contiguous zone that goes beyond 24 nautical miles from the
baselines and that the 2012 Judgment is distinguishable since, to
quote Nicaragua, the passage
“concerns the simplification of a common maritime
boundary between two States and not the unilateral
extension by a State of one of its maritime zones
217
beyond the maximum limit authorized by customary international law.”387Nicaragua’s arguments are misleading 4 118In practice, contiguous zones may have been extended by other means. While States have extended their contiguous zones up to 24 nautical miles from baselines, special consideration due to the contours of the coast may have been taken into account in setting those baselines themselves Whilenot all straightbaselines are lawful(like Nicaragua’s),388maritime zones established on their basis, including contiguous zones, have perforce extended beyond the prescribed 24 nautical miles from normal baselines Nicaragua’s reliance on State practice thus misses the point and fails to undermine Colombia’s position that particular cases justify the adjustment of maritime lines In this case, the Court has confirmed that Colombia’s Archipelago is such a special case The geodetic lines connecting the arcs lead to the same outcome as has the simplified line used by the Court 4 119Nicaragua’s objection to the use of simplified lines for “the unilateral extension by a State of one of its maritime zones beyond the maximum limit authorized by customary international law”389is puzzling Nicaragua itself purports to use simplified lines–straight baselines–to unilaterally extend its 387NR, para. 3.18.388See for example: CR, Chapter 6.389NR, para. 3.18.218
jurisdiction seaward beyond the distance prescribed by
international law. Nicaragua purports to extend its territorial sea
and even claim internal waters in areas beyond the distance
prescribed by international law! Nicaragua’s excessive and
unlawful use of simplified lines, and the extent to which such
simplified lines is the unilateral extension by a State of one of its
maritime zones beyond the maximum limit authorized by
customary international law, is shown by figure 7-9 of
Nicaragua’s Reply:
219
Figure CR 4.4FIGURE 7.9 OF NICARAGUA’S REPLY: NICARAGUA’SSTRAIGHT BASELINES SHOWING AREAS OF INTERNALWATERS MORE THAN 12 M FROM THE LOW WATER LINE
220
4 120 As Colombia will explain in Chapter 6 of this Rejoinder,
Nicaragua’s coast and several remote islands do not constitute
an idiosyncratic case that justifies the use of simplified straight
baselines for unilaterally projecting seaward all the maritime
jurisdictions of the State. Far from it, Nicaragua’s baselines are
unlawful, exorbitant and in fact reduce the rights of Colombia
and the entire international community The point here is that
Nicaragua’s use of a simplified line as part of its purported
straight baselines demonstrates that Nicaragua’s objection to
Colombia’s simplified line is self-contradictory and hypocritical
4 121 With no effect upon Nicaragua’s rights, de minimis
effect, if any, on shipping and with significant benefits to
Colombia and the rest of the Southwestern Caribbean Sea,
Colombia submits that the simplification of the contiguous zone
promotes the public order and efficient management of the
oceans and is justified based on the law and the facts Colombia
thus requests the Court to reject Nicaragua’s argument against
the use of a simplified line for its contiguous zone
F. Neither the Enactment nor the Application of the Decree
Violated any Rights of Nicaragua
4 122 It has already been shown that, on its face,
Decree No 1946 (as amended) does not violate Nicaragua’s
rights under the customary international law of the sea In its
Counter-Memorial, Colombia explained that in any event
Nicaragua could not point to any action in the contiguous zone
221
of the Colombian island territories in the Southwestern Caribbean Sea that had prejudiced Nicaragua’s rights 3904 123In its Reply, Nicaragua argues that the mere enactment of Decree No 1946 (as amended) entails Colombia’s international responsibility vis-à-visNicaragua 391In doing so, Nicaragua seeks to make two points:first, that the existence of an internationally wrongful act does not depend upon injury; and second, that the mere enactment of legislation may constitute an internationally wrongful act 4 124Colombia does not contest either of these two points in principle What it does reject is the distortion of these principles in their putative application by Nicaragua 4 125So far as concerns the first point, it is clear from the ILC commentary to Article 2 of the Articles on State Responsibility, quoted by Nicaragua, that whether or not injury is an element of an internationally wrongful act depends entirely on the primary obligation that is alleged to have been breached:“there is no exception to the principle stated in article 2 that there are two necessary conditions foran internationally wrongful act–conduct attributable to the Stateunder international law and the breach by that conduct of an international obligation of the State. The question is whether those two necessary conditions are also sufficient 390CCM, paras. 5.56-5 57 391NR, paras. 3 53-3 60 222
It is sometimes said that international responsibility
is not engaged by conduct of a State in disregard of
its obligations unless some further element exists,
in particular, ‘damage’ to another State. But
whether such elements are required depends on the
content of the primary obligation, and there is no
general rule in this respect.”392
4 126 Nicaragua’s entire argument on whether, in the present
case, the primary obligation requires “damage” consists of the
following assertion:
“In the present case, the primary obligation
consists in the preservation of the exclusive
sovereign rights belonging to Nicaragua in its EEZ
in accordance with Articles 56 and 58 of the
UNCLOS. By appropriating such rights to itself,
Colombia has clearly entailed its international
responsibility.”393
4 127 Colombia rejects this assertion It is thoroughly
misleading to describe the primary rule as “the preservation of
the exclusive sovereign rights belonging to Nicaragua in its EEZ
in accordance with Articles 56 and 58 of the UNCLOS”
Describing a rule in such general terms, such as “preservation”
or “appropriation”, sheds little, if any, light on the complex
interplay between the EEZ State and other States and the
obligations owed by other States towards the EEZ State in
392 International Law Commission, “Commentary to the Draft Articles
on Responsibility of States for Internationally Wrongful Acts”, Report of the
International Law Commission on the Work of its Fifty-Third Session,
A/56/10, Commentary to Article 2, p. 36, para. 9, available at:
http://legal.un.org/ilc/documentation/english/reports/a_56_10.pdf (last
visited: 1 November 2018).
393 NR, para. 3.56. Emphasis in the original
223
respect of its sovereign rights, jurisdiction and other rights and duties in the EEZ. And even if the obligation is stated in general terms –an obligation not to infringe Nicaragua’s EEZ rights–Nicaragua’s assertion is circular since it offers no explanation as to how Colombia has “appropriated”Nicaragua’s EEZ rights. As explained above, Colombia did not appropriate any EEZ rights to itself, rather Colombia only has the right to exercise, within the contiguous zone,rights which are distinct and different from Nicaragua’s EEZ rights. 4 128Under both UNCLOS and customary international law, the relationship between the sovereign rights, jurisdiction and other rights and duties that the coastal State has and the rights and duties of other States in the EEZ requires a detailed, point-by-point analysis Nicaragua has not even begun to attempt anything of the sort Had it done so,it would have become clear that the enactment of Decree No 1946 in no way violated Nicaragua’s EEZ rights nor failed to accord due regard to Nicaragua’s rights. As Colombia explained above, all the powersexercisable in accordance with Decree No. 1946 (as amended) are distinct from EEZ rights, are internationally lawful usesof the seaand may lawfully be exercised within another State’s EEZ 4 129Turning to Nicaragua’s second point, while it may be the case that in certain circumstances the mere enactment of legislation may constitute an internationally wrongful actthat was notthe case with Decree No 1946(as amended) 224
4 130 Nicaragua misstates the law when it says, baldly, that
“it is unquestionable that the adoption of a national law or
regulation entails the international responsibility of the enacting
State.”394 Of course, it is unquestionable that an act of legislation
by a State legislator, or a regulation by a government, is an act
of the State for the purposes of international responsibility 395
Thus, the enactment of Decree No. 1946 (as amended) is
attributable to Colombia But whether such enactment entails a
breach of an international obligation is quite another matter.
4 131 Whether the mere enactment of Decree No 1946 (as
amended), notwithstanding the lack of any act of
implementation or any application whatsoever, can be
considered a violation of international law depends upon a close
examination of the case-law and the particular facts of the
present case, something Nicaragua has failed to perform.
4 132 According to the commentary to the ILC Articles on
State Responsibility,
“The question often arises whether an obligation is
breached by the enactment of legislation by a State,
in cases where the content of the legislation prima
394 NR, para. 3.60.
395 International Law Commission, “Commentary to the Draft Articles
on Responsibility of States for Internationally Wrongful Acts”, Report of the
International Law Commission on the Work of its Fifty-Third Session,
A/56/10, Commentary to Article 4, p. 40, para. 1, available at:
http://legal.un.org/ilc/documentation/english/reports/a_56_10.pdf (last
visited: 1 November 2018).
225
facie conflicts with what is required by the international obligation, or whether the legislation has to be implemented in the given case before the breach can be said to have occurred Again, no general rule can be laid down that is applicable to all cases.”3964 133This indicates that the matter is entirely case-specific Nicaragua cites a number of cases, none of which is comparable to the present one 4 134Nicaragua begins with the Case concerning certain German interests in Polish Upper Silesia, noting that the Court examined the conformity of a Polish statute with a treaty.397Even if this were the case, at best it would show that, in certain circumstances, enactment of legislation can be a violation of international law. But, in fact, the Permanent Court was referring to the applicationof the law rather than its enactment:“The Court is certainly not called upon to interpret the Polish law as such; but there is nothing to prevent the Court’s giving judgment on the question whether or not, in applying that law,Poland is acting in conformity with its obligations towards Germany under the Geneva Convention.”398396International Law Commission, “Commentary to the Draft Articles onResponsibility of States for Internationally Wrongful Acts” in Report of the International Law Commission on the Work of its Fifty-Third Session,A/56/10, Commentary to Article 12, p. 57, para. 12, available at: http://legal.un.org/ilc/documentation/english/reports/a_56_10 pdf(last visited: 1 November 2018). (Emphasis added).397NR, para. 3.58.398Certain German Interests in Polish Upper Silesia (Germany v Poland), P.C.I.J, Series A, No. 7, pp. 18-19 (Emphasis added) 226
It is also noteworthy that the matter in question concerned
expropriation of property of German nationals through domestic
law and its conformity with a treaty, and thus, in such a
scenario, the enactment itself altered the property rights of the
individuals concerned. This case does not help Nicaragua; the
enactment of Decree No 1946 did not alter or adversely affect
any Nicaraguan rights
4 135 In a footnote, Nicaragua lists a series of human rights
cases 399 It is not surprising that Nicaragua does not make more
of these, since they do not assist its contention either What they
do show is that, only when the legislation has a continuing and
direct effect on the claimant’s human rights, then the legislation
itself may amount to a violation of international law There is
indeed considerable jurisprudence from the European Court of
Human Rights (ECtHR) supporting the proposition that in
certain circumstances the mere enactment of legislation involves
a breach of human rights obligations, but this is because of the
continuous and direct effect on the individual’s human rights
4 136 In Dudgeon v The United Kingdom for example, an Act
concerning the criminalization of certain homosexual activities
in place in Northern Ireland was contested. One question that
arose was if the mere existence of the Act, as opposed to
399 NR, footnote 187.
227
different laws in England and Wales at the time, was of practical consequences. The United Kingdomasserted that,“no one was prosecuted in Northern Ireland during the period in question for an act which would clearly not have been an offence if committed in England or Wales. There is, however, no stated policy not to prosecute in respect of such acts.”400Thus, officially, prosecution was a matter of discretion 4014 137The ECtHR opined that:“[i]n the personal circumstances of the applicant, the very existence of this legislation continuously and directly affects his private life(…)It cannot be said that the law in question is a dead letter in this sphere. It was, and still is, applied so as to prosecute persons with regard to private consensual homosexual acts involving males under 21 years of age (see paragraph 30 above) Although no proceedings seem to have been brought in recent years with regard tosuch acts involving only males over 21 years of age, apart from mental patients, there is no stated policy on the part of the authorities not to enforce the law in this respect (ibid). Furthermore, apart from prosecution by the Director of Public Prosecution, there always remains the possibility of a private prosecution.”402400European Court of Human Rights, Case of Dudgeon v The United Kingdom, 22 October 1981,Series A No 45,p. 10,para.30 401European Court of Human Rights, Case of Dudgeon v The United Kingdom, 22 October 1981,Series A No 45,p 10,para.31 402European Court of Human Rights, Case of Dudgeon v The United Kingdom,22 October 1981,Series A No 45,p. 14,para 41 (Emphasis added) 228
4 138 The Court placed emphasis on the fact that, as long as
there was a possibility that the offensive act, which violated the
applicant’s right to privacy, may be applied, the legislation was
a breach of the United Kingdom’s obligations But it did so
because in the circumstances the existence of the law
“continuously and directly affected” the individual applicant’s
personal life
4 139 In Modinos v Cyprus, under similar circumstances, the
ECtHR repeated the requirement of continuous and direct effect
on the applicant’s private life It stated that:
“23. It is true that since the Dudgeon judgment
the Attorney-General, who is vested with the
power to institute or discontinue prosecutions in
the public interest, has followed a consistent policy
of not bringing criminal proceedings in respect of
private homosexual conduct on the basis that the
relevant law is a dead letter
Nevertheless, it is apparent that this policy
provides no guarantee that action will not be taken
by a future Attorney-General to enforce the law,
particularly when regard is had to statements by
Government ministers which appear to suggest that
the relevant provisions of the Criminal Code are
still in force (see paragraph 9 above). Moreover, it
cannot be excluded, as matters stand, that the
applicant’s private behaviour may be the subject of
investigation by the police or that an attempt may
be made to bring a private prosecution against him
24 Against this background, the Court
considers that the existence of the prohibition
229
continuously and directly affects the applicant’s private life. There is therefore an interference ”4034 140Finally, Nicaragua turns to what it terms “recent law of the sea cases”. In fact, it mentions only two: Virginia ‘G’and Saiga (No. 2), claiming that in these cases the International Tribunal for the Law of the Sea (ITLOS) examined the legality of the enactment of legislation.404However, what Nicaragua fails to acknowledge is that the Tribunal explained that the issue was pertinent,but for the reason that the primary obligation specifically concerned legislation:“Under this provision, the rights and obligations of coastal and other States under the convention arise not just from the provisions of the convention but also fromnational laws and regulations ‘adopted by the coastal State in accordance with theprovisions of this Convention’. Thus, the Tribunal is competent to determine the compatibility of such laws and regulations with the Convention.”4054 141Other cases could have been mentioned, but presumably were not since they do not help Nicaragua’s case. For example, in Fisheries, the Court characterised the dispute as follows:“The subject of the dispute is clearly indicated under point 8 of the Application instituting proceedings: ‘The subject of the dispute is the 403European Court of Human Rights, Case of Modinos v Cyprus, 22April 1993,Series A No 259,p. 8,para.24 (Emphasis added) 404NR, para. 3.59.405M/V “SAIGA” (No. 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, pp. 52-53, para. 121.230
validity or otherwise under international law of the
lines of delimitation of the Norwegian fisheries
zone laid down by the Royal Decree of 1935 for
that part of Norway which is situated northward of
66°28 8' North latitude ’ And further on: ‘… the
question at issue between the two Governments is
whether the lines prescribed by the Royal Decree
of 1935 as the base-lines for the delimitation of the
fisheries zone have or have not been drawn in
accordance with the applicable rules of
international law’.”406
4 142 However, what prompted the United Kingdom’s
application was the implementation of the Royal Decree by
Norway against British nationals fishing in the waters covered
by it 407 Thus, it cannot be said that the case stands for the
proposition that a law or regulation that contradicts international
law on its face necessarily constitutes a breach of international
law
4 143 The same reasoning is found in a decision of a World
Trade Organisation (WTO) Panel On a general note it found
that,
“under traditional public international law,
legislation under which an eventual violation
could, or even would, subsequently take place,
406 Fisheries case, Judgment of December 18th, 1951: I.C.J. Reports
1951, p 125
407 Fisheries case, Judgment of December 18th, 1951: I.C.J. Reports
1951, p 125
231
does not normally in and of itself engage State responsibility.”408This is the case, it added, when obligations “concern only the relations between States, State responsibility is incurred only when an actual violation takes place” 4094 144In the LaGrandcase,410the Court distinguished between the existence of adomestic lawand its applicationin a given case, emphasizing that it is the latter that could constitute a violation of international law. The law in question was not problematic in itself, as it could have been applied in accordance with international law It was only its application in violation of the Vienna Convention on Consular Relations that may constitute an internationally wrongful act 4 145The caselaw thus indicates that onlywhen the domestic law is appliedin violation of international lawan internationally wrongful act may occur 4 146Correspondingly, the ILC commentary to the Articles on State Responsibility notes that:408World Trade Organisation, United States –Sections 301-310 of the Trade Act of 1974, Report of the Panel, WT/DS152/R, 22 December 1999, p. 322, para. 7.80.409World Trade Organisation, United States –Sections 301-310 of the Trade Act of 1974, Report of the Panel, WT/DS152/R, 22 December 1999, p 322, para. 7.81.410LaGrand (Germany v United States of America), Judgment, I.C.J. Reports 2001, p. 466, para. 125.232
“In other circumstances, the enactment of
legislation may not in and of itself amount to a
breach, especially if it is open to the State
concerned to give effect to the legislation in a way
which would not violate the international
obligation in question. In such cases, whether there
is a breach will depend on whether and how the
legislation is given effect.”411
4 147 As indicated above, Decree No. 1946 (as amended)
provides that it is intended to:
“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.”412
4 148 Even if this were not in conformity with the customary
international law applicable to the contiguous zone (quod non),
or the rights of all States within the EEZ (quod non), the mere
existence of the Decree would not constitute a violation of
411 International Law Commission, “Commentary to the Draft Articles
on Responsibility of States for Internationally Wrongful Acts”, Report of the
International Law Commission on the Work of its Fifty-Third Session,
A/56/10, Commentary to Article 12, p. 57, para 12, available at:
http://legal.un.org/ilc/documentation/english/reports/a_56_10.pdf (last
visited: 1 November 2018).
412 CCM, Annex 7.
233
international law The Decree can and will be implemented in accordance with international law The Decree itself states that:“The application of this article [Article 5 on the contiguous zone] will be carried out in conformity with international law and Article 7 of the present Decree.”413And Article 7 reads,“Nothing in this Decree will be understood to affect or limit the rights and obligations derived from the ‘Treaty on maritime delimitation between the Republic of Colombia and Jamaica’signed between those States on 12 November 1993, nor will it affect or limit the rights of other states.”4144 149Decree No. 1946 (as amended), in itself and on its face, is not in conflict with international law and, as in the LaGrandcase, should only be evaluated based on whether or not its implementation violates Nicaragua’s EEZ rights. The Decree itself is in conformity with international law and does not allow for any potential breaches of Nicaragua’s EEZ.4 150Just as the mere enactment of the Decree is neither contrary to international law nor has violated Nicaragua’s rights, the same has to be said about its application Nicaragua has failed to show asingle instancewhereColombiahas impeded itfrom exercising its EEZ rights within Colombia’s contiguous 413CCM, Annex 7.414CCM, Annex 7. (Emphasis added) 234
zone The inescapable conclusion is that no Colombian action in
the contiguous zone has given rise to any violation of
Nicaragua’s sovereign rights or maritime spaces
G. Conclusions
4 151 Decree No 1946 of 9 September 2013 (as amended by
Decree No 1119 of 17 June 2014) established the contiguous
zone of the Colombian island territories in the Southwestern
Caribbean Sea, in accordance with international law It is clear
on the face of the Decree that it is to be interpreted and applied
in full conformity with the customary international law of the
sea
4 152 There is nothing in customary international law that
precludes Colombia’s contiguous zone from extending into
Nicaragua’s EEZ or that precludes Colombia from exercising
the corresponding rights and freedoms therein
4 153 None of the powers provided for in the Decree go
beyond those which Colombia is entitled to exercise under
customary international law as part of the contiguous zone
regime; but even if this were not the case, that would not mean
that they were necessarily contrary to international law since a
State enjoys residual freedoms of navigation and overflight, as
well as other internationally lawful uses of the sea within
another State’s EEZ.
235
4 154The simplification of the outer limit of the Colombian contiguous zone in the Southwestern CaribbeanSea is justified in law and on the facts, and, in any event, does not encroach upon Nicaragua’s EEZ rights. 4 155Finally, Nicaragua cannot argue that the mere enactment of the Decreenor its applicationhas violated any rights of Nicaragua under international law It has failed to show that it has suffered any injury whatsoever as a result of the enactmentor application of the Decree 236
PART III
COLOMBIA’S COUNTER-CLAIMS
237
238
Chapter 5
NICARAGUA’S INFRINGEMENT OF THE
TRADITIONAL FISHING RIGHTS OF
THE INHABITANTS OF THE SAN
ANDRÉS ARCHIPELAGO
A. Introduction
5 1 Although Nicaragua recognised on numerous occasions,
through the statements of its President, the traditional fishing
rights of the inhabitants of the San Andrés Archipelago, in
particular the Raizales,415 Colombia must regretfully note that
the Applicant is using the current pending proceedings to take
the President’s words back. Nicaragua’s judicial strategy, after
the Court ruled Colombia’s third counter-claim admissible, is to
deny the existence of the vested traditional fishing rights of this
vulnerable community,416 as well as their infringement 417
5 2 Nicaragua cannot undo what it has already
acknowledged to exist. President Ortega’s statements are the
Achilles’ heel in the Nicaraguan argumentation. Its Reply,
which cannot and in fact does not feign ignorance of these
declarations,418 perversely suggests that the President’s
conciliatory tone merely stands for “the unremarkable
proposition that continued fishing in Nicaragua’s EEZ by the
415 CCM, paras. 3.93-3.94 and Annexes 73-77; CR, Section D infra
416 NR, paras. 6 3-6 76
417 NR, paras. 6.77-6 95
418 NR, paras. 6.63-6 76
239
Raizales would have the [sic]be the subject of an agreement” 419In other words, Nicaragua distorts the words of its own President in an attempt to prove that, although it is apparently ready to accommodate the rightsof the artisanal fishermen of the Archipelago in a further agreement, it has not recognised the existence of these vested rights as of today 420Thisaccount revealsthe lack of weight of Nicaragua’soverall argument, which blurs the distinction between the recognition of the traditional fishing rights regime and the separate matter of the conclusion of technical agreements fleshing out that regime 421What is more, Nicaragua’s reading of the statementsof its Head of Stateconflicts with the finding, consistently upheld in the jurisprudence, according to which bilateral agreements are not necessary for the perpetuation of acquired rights 5 3The express recognition by the President of Nicaragua of the traditional fishing rights of the inhabitants of the San Andrés Archipelago should, in itself, be sufficient to dispose of its belated attempt to repudiate those rights But Nicaragua has unsurprisingly diverted the focus to other matters. In particular, its Reply relies on convoluted interpretations of UNCLOS, an instrument to which Colombia is not a Party, to assert that all historic rights have somehow evaporateddue to the appearanceof the EEZ in international law 422Nicaragua draws no inference from the fact that the historic rights at stake here are merely 419NR, para. 6 73 420NR, paras. 6.70-6 76 and 6 94 421See Section D infra 422NR, paras. 6.3-6 30 240
traditional fishing rights vested on the inhabitants of the
Archipelago instead of exclusive sovereign rights of
Colombia 423 To the contrary, Nicaragua erroneously puts all
historic rights under the exceptional rights umbrella.424 Turning
the relevant test upside-down, Nicaragua wrongly suggests that,
in order not to be extinguished, traditional fishing rights require
“express carve-outs” in multilateral or bilateral agreements.425
What is more, Nicaragua barely hides the fact that its reasoning
leads to the disingenuous result according to which traditional
rights in general can exist within the land territory, internal
waters, territorial sea and archipelagic waters of a State, but not
in its EEZ.
5 4 Additionally, Nicaragua criticizes the evidence put
forward by Colombia. According to the Applicant, Colombia
has neither proven the existence of the traditional fishing
rights,426 nor their infringement by Nicaragua’s Naval Force 427
Partially quoting from the sworn affidavits, Nicaragua’s Reply
heightens the threshold for establishing the existence of those
vested rights in a manner that clearly contradicts the practical
423 CPO, Annex 10: Declaration of the President of the Republic of
Colombia, 18 February 2013, “Colombian fishermen will be able to exercise
– and we have said this clearly – their historical fishing rights in all places
where they have been fishing before.”; CCM, Annex 1: Press Release from
the Ministry of Foreign Affairs with regard to the Seaflower Biosphere
Reserve, 30 August 2013, “(…) Colombia is analysing the mechanisms,
resources and actions available to it under domestic laws and international
law, to promote the defense of national interests, historic fishing rights and
the rights of the Colombian population of the Archipelago.”
424 NR, para. 6.15.
425 NR, paras. 6.13-6 17
426 NR, paras. 6 32-6 62
427 NR, paras. 6.77-6 95
241
considerations underpinning the consistent jurisprudence on this matter 4285 5Nicaragua’s stance regarding the law and the evidence attests to the fact that the dispute concerns not only the infringement but also, and in particular, the very existence of the traditional fishing rights, which the Nicaraguan Reply seeks to deny inno less than 25 of the 31 pages devoted to this counter-claim. This is why Colombia respectfully requeststhe Court to find, on the one hand, that the traditional fishing rights of the inhabitants of the San Andrés Archipelagodoexist and, on the other hand, that they have been breached. 5 6Colombia will first recall the importance of traditional fishing for the inhabitants of the San Andrés Archipelago, the human factor that Nicaragua has ignored in its Reply (Section B) It will then refute Nicaragua’s contention according to which the traditional fishing rights have been extinguished either by theemergence of theEEZor the 2012 Judgment (Section C) After that, Colombia will show that, in any event, Nicaragua has recognised the traditional fishing rights in the aftermath of the appearance of the EEZand of the 2012 Judgment. Accordingly, even if the Court were to agree with Nicaragua’s contention that the vested rights could be superseded solely in theestablishment of the regime ofthe EEZ,quod non, nothing precluded the 428Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, I.C.J. Reports 2009, p. 213, para. 141;The South China Sea Arbitration (Philippines v China), Award of 12 July 2016, PCA Case No. 2013-19,p. 315, paras. 805-807 242
parties to agree otherwise, as they have expressly done (Section
D). Afterwards, Colombia will demonstrate that, in light also of
the nature of the practices at stake and of the remoteness of the
maritime areas in question, it has met the threshold for proving
the existence of the traditional fishing rights (Section E)
Finally, Colombia will show that the Nicaraguan Naval Force
has violated the traditional fishing rights of the inhabitants of the
Archipelago (Section F)
B. The Dependence of the Inhabitants of the Archipelago
on Their Traditional Fishing in the Southwestern
Caribbean Sea
5 7 Colombia already addressed in its Counter-Memorial the
historical evolution of the traditional fishing rights at issue, the
definition of artisanal as opposed to subsistence and industrial
fishing, as well as the social and economic implications of this
practice for the inhabitants of the Archipelago, in particular, the
Raizal people 429 Nicaragua, which for the most part does not
dispute this “narrative”,430 asserted in its Reply that it is ready to
take into account “the fishing needs of the Raizales”.431 While it
is true that the Reply has raised challenges to some aspects of
the affidavits filed by Colombia that will be addressed in
Sections E and F, Nicaragua remained silent with regard to the
historical and anthropological developments included in the
429 CCM, paras. 2.61-2 86
430 NR, para. 6.3.
431 NR, para. 6.76.
243
Counter-Memorial. Rather than reiterating these developments, Colombia will summarize their most fundamental aspects 5 8Artisanal fishermen clearly play a crucial role in the San Andrés Archipelago Aside from its economic and social importance, traditional fishing ensures food security on San Andrés and Providencia.432This is why cooperatives, such as “Fish and Farm”, and associations, such as the “Association of Fishermen and Farmers of San Andrés and Providencia” (ASOPACFA, from its Spanish acronym), have policies providingthat the products must first be sold to the local community 433In this respect,there is in fact a degree of overlap between the notions of artisanal and subsistence fishing 434While artisanal practices have a commercial component, they also carry an important role for the subsistence of the inhabitantsof the Archipelago. Contrary to industrial fishermen, artisanal fishermen do not engage in large-scale fishing activities in boats that trawl with big nets or huge numbers ofhooks 435However, traditional fishing is not fixed in time in the sense that vessels, gear and techniques are not susceptible of being improved.436432CCM, Annexes 62, 65, 71 and 72.433CCM, Annexes 62 and 68.434CCM, paras. 2.69-2 70 435CCM, para. 2.71.436Award 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. 360, para. 106.5 244
5 9 In order to reach the traditional fishing grounds of Cape
Bank437 and the Northern Cays (Serrana, Quitasueño, Roncador,
Serranilla and Bajo Nuevo), the artisanal fishermen of the
Archipelago initially relied on schooners, sloops and catboats
and later, during the second half of the twentieth century, on
lanchas equipped with outboard or inboard motors 438 Because
of its unique traits, turtling is the activity that mainly attracted
the interest of the record keepers, historians and anthropologists
who studied the Archipelago 439 However, fishing was equally
important to the men and women of the sea who settled in this
remote part of the Southwestern Caribbean Sea Due to the
reduced land available for agriculture, life in the Archipelago
always depended on what the sea could offer and the trade of its
resources with the other coastal communities
5 10 The inhabitants of the Archipelago were remarkable
seafarers that held close ties with the coastal communities based
in the Mosquito Coast, Costa Rica, Panama, Jamaica, the
Cayman Islands and continental Colombia They did not live
secluded on their islands, but instead navigated and established
settlements in the whole Southwestern Caribbean Sea The
Raizales constitute a distinct ethnic and cultural community and
are still present in many of the coastal States of the region Their
intimate connection with the sea is best exemplified by the fact
that they navigated, traded and fished in this area of the
437 For a description of the geographical area known as Cape Bank,
which includes Luna Verde, see Section E infra.
438 CCM, Annexes 65, 66, 69 and 91
439 CCM, Annex 93.
245
Southwestern Caribbean Sea before and after the coming into existence of Nicaragua and Colombia as independent States. C.The Traditional Fishing Rights SurvivedtheEmergence of the EEZ Regime and the 2012 Judgment5 11Nicaragua has made two distinct arguments in its attempt to prove that historic rights in abstracto, regardless of their characterisations, can be superseded. First and foremost, Nicaragua relies on the emergence of the EEZto argue that the vested rights of the inhabitants of the San Andrés Archipelago have been extinguished “as early as 1984” with the crystallisation of the new regime under general international law 440Alternatively, Nicaragua indirectly suggests that these rights have been ousted by the 2012 Judgment 5 12In relation to the second argument, Colombia’s Counter-Memorial441has already shown that, according to the consistent jurisprudence, rights vested on the inhabitants of border regions remain unaffected by delimitation processes both on land and in the sea 442Colombia’s Rejoinder can hence be brief on this point 440NR, para. 6.6.441CCM, paras. 3.98-3 111 442Award 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; 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;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, paras. 110-111; Arbitration between Barbados and the Republic of Trinidad and Tobago,relating to the 246
since Nicaragua does not even attempt to rebut the argument by
challenging the jurisprudence Nicaragua’s Reply merely relies
on the misleading contention according to which it is apparently
“revealing” that Colombia “did not see fit during the previous
case to even advert to the existence of the rights it now
claims”.443 Regardless of Nicaragua’s perceptions as to what is
revealing or not, the fact remains that the Court, as well as
arbitral tribunals, have consistently denied any role to the
conduct of private individuals for the specific purpose of
determining the course of boundaries. Accordingly, Nicaragua’s
conjectures in this regard are wholly irrelevant
5 13 Colombia will thus focus its attention on Nicaragua’s
legal argument that the traditional fishing rights “were
extinguished with the creation of the EEZ regime”.444 It is worth
noting from the outset that Nicaragua’s proposition is not
premised on the existence of a provision, under conventional or
customary law, which would explicitly prohibit traditional
fishing rights within the EEZ. With regard to UNCLOS, such an
enquiry would indeed be futile since the parties agree that Part V
does not proscribe traditional fishing rights It is therefore not
surprising that Nicaragua’s Reply, rather than looking for a nonexisting
prohibition where there is none, self-servingly states
Delimitation of the Exclusive Economic Zone and the Continental Shelf
between Them, R.I.A.A., Vol. XXVII, p. 227, para. 292; Land, Island and
Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening),
Judgment, I.C.J. Reports 1992, p. 400, para. 66; German Settlers in Poland,
Advisory Opinion, 1923 P.C.I.J. Series B, No. 6, p. 36.
443 NR, paras. 6.40-6 43
444 NR, para. 6.5.
247
that what is required is an “express carve-out”, a provision preserving traditional fishing rights 445Relying on the maxim expressio unius est exclusi alterius,446which does not displace the rules of treaty interpretation, Nicaragua swiftly dismisses traditional fishing rights for being allegedly incompatible with the EEZregime 5 14At the heart of Nicaragua’s incompatibility plea liesthe notion of“exclusivity”:447the idea that coastal States enjoy sovereign rights vis-à-vis, among other things,the exploitation and management ofthe living resources of the EEZ While the incompatibility might be true in relation to competing assertions of States aiming at regulating and managing the living resources of the coastal State, Colombia neither claims sovereignty nor sovereign rights within Nicaragua’s EEZ 448Colombia is not even claiming rights on its own behalf since the traditional fishing rights are in fact private rights vested on the artisanal fishermen of the San Andrés Archipelago 5 15Colombia fails to see the reason why traditional fishing rights should be perceived as being contrary to the exclusive 445NR, paras. 6.13-6 17 446NR, para. 6.12.447NR, para. 6.9.448CCM, para. 3.101: “It goes without saying that the customary rights in question, whose content will be developed below, are not tantamount to exclusive sovereign rights; nor do they derogate from the sovereign rights of Nicaragua These traditional rights are not even to be considered the customary equivalent of a joint regime area (…). 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 (…).”248
rights of the coastal State within the EEZ. After all, States enjoy
full-fledged sovereignty, which is also exclusive, within their
territory, but Nicaragua does not dispute that traditional rights
have generally been preserved both in the land territory, internal
waters and territorial sea of States. Hence, the exclusive nature
of the rights involved cannot, by itself, justify Nicaragua’s
proposition If traditional rights can subsist within areas where
States enjoy sovereignty, a fortiori they can also exist within
areas in which States merely enjoy sovereign rights
5 16 In its effort to demonstrate that what is required is a
“carve-out” explicitly preserving traditional rights, Nicaragua
has sought to depict historic rights as generally being
exceptional in nature. Yet, historic is not tantamount to
exceptional, and a document of the United Nations Secretariat,
which Nicaragua partially quotes,449 gives a more nuanced
account of the debate on the point. Indeed, the 1962 UN study
on the Juridical Regime of Historic Waters Including Historic
Bays does not boil down all instances of historic claims to the
assertion of exceptional rights. On the contrary, the authors of
the study addressed at length the question whether historic rights
necessarily constitute “exceptional regimes”,450 “prescriptive
449 NR, para. 6.15.
450 United Nations, Juridical Regime of Historic waters including
historic bays – Study prepared by the Secretariat, Doc. A/CN.4/143, pp 7-
11, paras 42-61, available at:
http://legal.un org/ilc/documentation/english/a_cn4_143 pdf (last visited: 1
November 2018)
249
rights”451and “exceptions to rules laid down in a general convention”.452The study sensibly reached the conclusion that it depends on the circumstances If a certain subject-matter has not been regulated within a convention, such as one of the treaties concluded at UNCLOS I, it is pointless to reserve the historic right in a provision 453In others words, it is only when the convention and the historic right clearly conflict that the absence of a carve-out might be of relevance 5 17Since historic rights are not necessarily exceptional rights, Nicaragua is mistaken in suggesting that “carve-outs” are always required. The question that arises is whether non-exclusive traditional fishing rights vested in the inhabitants of a border region are incompatible with the coastal State’s sovereign rights to such an extent that an express reservation would be required under the relevant applicable law. As stated by Norway in the Fisheries (United Kingdomv Norway)case, and quoted in the 1951Judgment, “[t]he Norwegian Government does not rely upon history tojustify exceptional rights, to claim areas 451United Nations, Juridical Regime of Historic waters including historic bays –Study prepared by the Secretariat, Doc. A/CN.4/143, pp 11-12, paras. 62-68, available at: http://legal.un.org/ilc/documentation/ english/a_cn4_143 pdf(last visited: 1 November 2018).452United Nations, Juridical Regime of Historic waters including historic bays –Study prepared by the Secretariat, Doc. A/CN.4/143,pp 12-13, paras. 72-79, available at: http://legal.un.org/ilc/documentation/ english/a_cn4_143 pdf(last visited: 1 November 2018).453United Nations, Juridical Regime of Historic waters including historic bays –Study prepared by the Secretariat, Doc. A/CN.4/143, pp 12-13, paras. 75-77, available at: http://legal un org/ilc/documentation/ english/a_cn4_143 pdf(last visited: 1 November 2018).250
of sea which the general law would deny; it
invokes history, together with other factors, to
justify the way in which it applies the general
law”.454
In that case, the Court found in favour of Norway because it
could not be said that its historic claim conflicted with
customary international law, which is the law also applicable to
the present case No carve-out was required and yet, if
Nicaragua’s approach as to what constitutes conflict were to be
followed, Norway’s straight baselines decree could have been
said to be contrary to the rule according to which the baseline
should follow the low-water mark on permanent land In other
words, it is only when the incompatibility is manifest that a
carve-out is required.
5 18 Nicaragua in the end mainly relies on one single
paragraph of an UNCLOS provision to put forward its thesis
that traditional fishing rights have been extinguished in the
EEZ 455 Article 62(3) states that:
“In giving access to other States to its exclusive
economic zone under this article, the coastal State
shall take into account all relevant factors,
including, inter alia, the significance of the living
resources of the area to the economy of the coastal
State concerned and its other national interests, the
provisions of articles 69 and 70, the requirements
454 Fisheries case, Judgment of December 18th, 1951: I.CJ. Reports
1951, p. 133; see also M. Bourquin, Les baies historiques, Mélanges Georges
Sauser-Hall, 1952, pp. 37-51 (available at the Peace Palace Library)
455 NR, paras. 6.16-6 17
251
of developing States in the subregion or region in harvesting part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which havemade substantial efforts in research and identification of stocks.”This provision, which has to do with the optimum utilisation of the living resources in the EEZ, mentions the need to minimize economic dislocation in States “whose nationals have habitually fished in the zone”. But this reference to “habitual fishing”, which could easily encompass industrial fishing from distant fleets and is not equivalent to the notion of “traditional fishing rights”, is not concerned with acquired rights vested on individuals and communities The provision only deals with “giving access to other States” and, far from being incompatible with private rights of artisanal fishermen, can be applied alongside the traditional rights regimes Because Nicaragua relies on this provision, it is worth mentioning in passing that as of November2018, that is to say 18years after it became a Party to UNCLOS, Nicaragua has yet to determine the allowable catch in its EEZ 5 19Article 51 of UNCLOS regarding archipelagic waters is the onlyprovision in that instrument that specifically mentions traditional fishing rights in a maritime area According to Nicaragua, this provision sets the relevant standard: “the fact that there is no analogous provision in Part V can only mean that 252
traditional fishing rights do not exist in the EEZ”.456 But
Nicaragua’s argument fails to recognise that, notwithstanding
the absence of a similar provision within Part II of UNCLOS,
traditional fishing rights have not been superseded in the
territorial sea either With regard to this maritime area, it
appears that Article 2(3) of UNCLOS, a provision which
broadly states that “[t]he sovereignty over the territorial sea is
exercised subject to this Convention and to other rules of
international law”, is equally protective of traditional fishing
rights. Thus, when it comes to the EEZ, Nicaragua cannot rely
on the absence of an explicit permissive provision to put
forward its claim that traditional fishing rights have been
extinguished. What is more, Nicaragua cannot ignore the fact
that Article 58(2) of UNCLOS on the rights and duties of other
States in the EEZ provides, in a manner reminiscent of Article
2(3) that “other pertinent rules of international law apply to the
exclusive economic zone in so far as they are not incompatible
with this Part”.
5 20 Nicaragua’s Reply deliberately ignores both the Award
in the Arbitration regarding the Delimitation of the Abyei Area
and the decision in the Arbitration between Barbados and the
Republic of Trinidad and Tobago, which were already
mentioned in the Counter-Memorial 457 The former concluded
that “the transfer of sovereignty should not be construed to
extinguish traditional rights to the use of land (or maritime
456 NR, para. 6.14.
457 CCM, paras. 3 98 and 3 105
253
resources)” without drawing any distinction between different maritime areas 458The second specifically mentioned that, notwithstanding the delimitation, Trinidad and Tobago had an obligation to grant “Barbados access to fisheries within [its] EEZ”.4595 21Nicaragua’s Reply does, however, clumsily attempt to deny the relevance of the Award of the Arbitral Tribunal in the Second Stage of the Proceedings between Eritrea and Yemen (Maritime Delimitation)to the present proceedings Nicaragua recognises that this award found that traditional fishing rights existed within the EEZof the coastal States involved 460Yet it asserts that, because Article 2(3) of the Arbitration agreement authorized the Tribunal to take into account “any pertinent factor”, in addition to UNCLOS, it must follow that the “arbitral tribunal did not rely on UNCLOS in rendering its decision on historic fishing rights”.4615 22Remarkably, Nicaragua’s Reply fails to citea singleparagraph from Chapter IV of the Second Stage Award, the 458Award in the Arbitration regarding the Delimitation of the AbyeiArea 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 459Arbitration 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. 227, para. 292.460NR, para. 6.24.461NR, para. 6.29.254
section that addressed the “traditional fishing regime”.462
Nicaragua draws no inference from the fact that the Tribunal
made no reference to pertinent factors in the relevant
paragraphs. But, aside from the fact that the Tribunal explicitly
rejected this speculative argument, Nicaragua’s explanation is
counter-intuitive. Indeed, even if “the tribunal was empowered
to look beyond the terms of UNCLOS”,463 no judge or arbitrator
would give pre-eminence to a pertinent factor over UNCLOS if
the two were truly conflicting and the latter was applicable to
the parties. As the Arbitral Tribunal stated:
“The traditional fishing regime is not limited to the
territorial waters of specified islands; nor are its
limits drawn by reference to claimed past patterns
of fishing. (…) By its very nature it is not qualified
by the maritime zones specified under the United
Nations Convention on the Law of the Sea, the law
chosen by the Parties to be applicable to this task
in this Second Stage of the Arbitration The
traditional fishing regime operates throughout
those waters beyond the territorial waters of each
of the Parties, and also in their territorial waters
and ports, to the extent and in the manner specified
in paragraph 107.”464
Given the jurisprudence, Nicaragua’s applicable law-based
explanation is a last-ditch attempt to clutch at straws
462 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, pp. 356-361, paras. 87-111
463 NR, para. 6.27.
464 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. 109. (Emphasis
added)
255
5 23Aside from the purported incompatibility theory, Nicaragua stresses that historic rights premised on “[t]he exercise of freedoms permitted under international law cannot give rise to a historic right” because nothing calls for acquiescence if it is done in conformity with international law.465This argument, which again assumesthat traditional fishing rights are necessarily exceptional rights that must contradict other rules of international law, is not pertinent with regard to non-exclusive traditional rights. The historical controversy over the breadth of the territorial watersdemonstrates that traditional fishing rights can crystallisewithin areas that used to be part of the high seas prior to the extension of the territorial sea from 3 to 6 and 12 nautical miles 5 24Similarly, in the Fisheries Jurisdiction cases, the Court recognised the United Kingdom’sand Germany’s historic rights to access and exploit banks located in the Icelandic preferential rights zone 466While it is true that the fishing at stake was industrial, this precedent still attests to the fact that historic rights, which do not seek to negate the coastal State’s rights, can exist regardless of the fact that theparticular maritime area usedto be part of the high seas Nicaragua’s own Reply proves the point By drawing attention to traditional fishing rights in archipelagic waters, Nicaragua implicitly, but inevitably, 465NR, para. 6.60.466Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 3; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 175.256
recognises that acquired rights can crystallise within areas where
the freedom of fishing used to apply, given that archipelagic
baselines often enclose maritime areas that used to be high seas
D. Nicaragua’s Express Recognition of the Traditional
Fishing Rights
5 25 Colombia reiterates that the debate as to whether
traditional fishing rights have been superseded by the
appearance of the EEZ becomes purely theoretical when it can
be shown that, in any event, both parties have recognised the
existence of such vested rights.
5 26 Colombia’s main argument is that traditional fishing
rights are protected under international law regardless of the
maritime area involved and irrespective of any form of
recognition from coastal States. Accordingly, for Colombia,
President Ortega’s statements recognising the rights of the
artisanal fishermen of the Archipelago have a purely declaratory
effect They accept already existing rights and customs that can,
of course, be subsequently fleshed out in technical agreements.
However, Colombia’s alternative argument is that if traditional
fishing rights were to be considered incompatible with the EEZ,
this is without consequence in the present case since the
concurrent statements by the Presidents of the two countries can
be construed as having a constitutive effect Nothing precluded
Nicaragua and Colombia from reaching the conclusion that the
traditional fishing rights of the inhabitants of the San Andrés
257
Archipelagoshould be preserved and protected in the aftermath of the 2012 Judgment 5 27Rather than neglecting the statements of its own President, Nicaraguain its Reply endeavours to find an explanationfor them, which, while upholding the good intentions of its highest representative, also attempts to renderhis words withouttroublesome legal consequences. As conveniently put in the Reply, “President Ortega’s attempts to strike a conciliatory tone cannot change the legal situation”.4675 28Nicaragua does not contest, and neither does Colombia, that President Ortega has shown a measure of goodwill by repeatedly emphasising the need to “respect the ancestral rights of the Raizales”.468In fact, right after the 2012 Judgment, President Ortega referred to this matter stating that Nicaragua “fully respect[s] the right to fish and navigate in those waters that they have sailed historically and have also survived from the resources of the sea”.469But for Nicaragua, these references to traditional fishing somehow “fall far short of ‘explicit recognitions’”.470As Nicaragua puts it, thePresident’sstatements merely indicate “that artisanal fishing ‘rights’ do not exist absent an appropriate agreement”,471and thatthe declarations stand “only for the unremarkable proposition that 467NR, Chapter VI, Sub-section (c), p. 141. (Emphasis added) 468NR, para. 6.70.469Annex 1: Message from President Daniel Ortega to the People of Nicaragua, 26 November 2012. 470NR, para. 6.67.471NR, para. 6 71 258
continued fishing in Nicaragua’s EEZ by the Raizales would
have the be the [sic] subject of an agreement”.472
5 29 Aside from the fact that the record shows an altogether
different story, Nicaragua’s reasoning gives rise to serious
difficulties. For example, Nicaragua stresses in relation to the
February 2013 statement that, while it is true that President
Ortega indicated that Nicaragua will “allow Raizales to continue
fishing”, that statement constituted “an exercise of Nicaragua’s
sovereign rights and jurisdiction, not the fulfilment of an
obligation in derogation of Nicaragua’s rights”.473 But even if
that were to be true, which is doubtful and which nothing in the
record supports as can be seen from the transcription of
President Ortega’s speech,474 it would not deprive “this public
statement of its intended legal effects” 475 For Nicaragua does
not, and cannot, dispute the fact that such reading would amount
to granting rights to the artisanal fishermen
5 30 As previously stated, Nicaragua blurs the distinction
between recognition of the traditional fishing rights and the
separate question of the conclusion of technical agreements to
define their exact contours. President Ortega often addresses
both matters in conjunction, but the distinction is nevertheless
472 NR, para. 6 73
473 NR, para. 6.72. (Emphasis added).
474 Annex 6: Speeches at the 79th Anniversary of General Augusto C
Sandino’s Transit to Immortality, 21 February 2013.
475 Nuclear Tests (Australia v France), Judgment, I.C.J. Reports 1974,
p. 267, para. 43; Nuclear Tests (New Zealand v. France), Judgment, I.C.J.
Reports 1974, p. 472, para. 46.
259
clear. Thus, on 2 December 2012, the President of Nicaragua stated that:“Be sure that we will respect the historical rights that they (the Raizals)have had over those territories We will find the mechanisms to ensure the right of the Raizal people to fish, in San Andrés, so we can protect those people that live of that territorial sea and also so we can confront drug trafficking in that region.”476This statement, on the one hand, expressly recognises pre-existing “historical rights” and, on the other hand, stresses that “mechanisms” should be established to “ensure” the “right of the Raizal people to fish”. In other words, the mechanisms are a tool, admittedly an important one, to safeguard the traditional fishing rights, but not a precondition to their existence, which was regarded asan established fact 5 31In his21February 2013 statement,477President Ortega emphasised the importance of establishing a “mechanism”, a “commission” or a “consular section”, for the sake of fleshing out the content of the traditional fishing rights 478This time the emphasis wasnot on the recognition of the traditional rights, which wastaken as a given, but on matters to be clarified such 476CCM, Annexes 73 and 74.477CCM, Annex 76. See also: Annex 6: Speeches at the 79thAnniversary of General Augusto C Sandino’s Transit to Immortality, 21 February 2013 478CCM, Annex 76. See also: Annex 6: Speeches at the 79thAnniversary of General Augusto C. Sandino’s Transit to Immortality, 21 February 2013 260
as who and how. The mechanism should “identify the raizal
fishermen so that they can keep fishing without problems in the
waters that the International Court of Justice reverted to the
country [Nicaragua] in the Caribbean Sea”.479 The situation
needs to be regulated “because right now there is no way to
know how many vessels belong to the raizal community and
which are related by [sic] industrial fishing”.480 A consular
section in San Andrés would allow to clearly determine, “from
there”, “how many raizal fishermen are there, which are their
boats, so that they can fish freely”.481
5 32 While it is true that these are all aspects that may require
information, Nicaragua’s Reply is mistaken in suggesting that
“artisanal fishing ‘rights’ do not exist independently of
‘mechanisms to be approved by Nicaragua’”.482 The fact of the
matter is that Nicaragua’s President has already recognised the
existence of the traditional fishing rights as well as their
fundamental characteristics Artisanal fishermen are allowed to
479 CCM, Annex 76. See also: Annex 6: Speeches at the 79th
Anniversary of General Augusto C. Sandino’s Transit to Immortality, 21
February 2013
480 CCM, Annex 76. See also: Annex 6: Speeches at the 79th
Anniversary of General Augusto C. Sandino’s Transit to Immortality, 21
February 2013
481 CCM, Annex 76. See also: Annex 6: Speeches at the 79th
Anniversary of General Augusto C. Sandino’s Transit to Immortality, 21
February 2013
482 NR, para. 6.70.
261
“fish freely”483without having to ask for permission from INPESCA in the waters appertaining to Nicaragua 5 33Notwithstanding its attempt to diminish the value of its President’s statements, Nicaragua concludes that “it remains open, in the spirit of brotherhood and good neighbourly relations, to work with Colombia to reach a bilateral agreement that takes account of Colombia’s and Nicaragua’s concerns, including the fishing needs of the Raizales”.484But such bilateral agreement would only serve to put into place the mechanism supplementingthe traditional fishing rights regime, whose existence is already established. E.The Evidence Corroborates the Existence of the Traditional Fishing Rights5 34Far from addressing the evidence put forward in Colombia’s Counter-Memorial, Nicaragua relies on partial citations so as to dispute the existence of traditional fishing rights in waters of its EEZ Nicaragua goes further and asserts that Colombia’s evidence “disproves its claims”.485Clearly,Nicaragua believes that anything other than its superficial assessment of the sworn statements must be in vain since,in its contention,the affidavits were made by private persons 483CCM, Annex 76. See also: Annex 6: Speeches at the 79thAnniversary of General Augusto C. Sandino’s Transit to Immortality, 21 February 2013 484NR, para. 6.76.485NR, Chapter VI, Section B, Sub-section (b) 262
interested in the outcome of the proceedings and apparently
“prepared in haste for purpose of this litigation” 486
5 35 This is nothing more than Nicaragua trying to silence the
voice of the Raizales But a full reading of the affidavits
discloses an altogether different picture from the one portrayed
in Nicaragua’s Reply. For the Applicant, the traditional fishing
activities did not occur in what are currently waters under its
jurisdiction and, if they did (which it begrudgingly admits), they
“were too infrequent and of too recent standing to establish
either historic rights or a local custom under international
law”.487 This dismissive critique is focused on two aspects,
spatial and temporal, each of which Colombia will address in
turn
5 36 However, before refuting Nicaragua’s fragmented
reading of the affidavits, Colombia must draw attention to an
aspect that the Applicant purposefully ignored in its Reply This
has to do with the standard of proof for establishing the
existence of traditional fishing rights. Colombia is invoking
rights vested in a small community of artisanal fishermen that
live in an important but, nevertheless, relatively remote region
of the Southwestern Caribbean Sea. Under these circumstances,
the jurisprudence stresses that the matter of proof must be
approached with common sense For example, in the recent
486 NR, para. 6.50.
487 NR, para. 6.62.
263
award in the South China Sea Arbitration, the Arbitral Tribunal found that:“Based on the record before it, the Tribunal is of the view that Scarborough Shoal has been a traditional fishing ground for fishermen of many nationalities, including the Philippines, China (including Taiwan), and Viet Nam. The stories of most of those who have fished at Scarborough Shoal in generations past have not been the subject of written records, and the Tribunal considers that traditional fishing rights constitute an area where matters of evidence should be approached with sensitivity That certain livelihoods have not been considered of interest to official record keepers or to the writers of history does not make them less important to those who practice them With respect to Scarborough Shoal, the Tribunal accepts that the claims of both the Philippines and China to have traditionally fished at the shoal are accurate and advanced in good faith.”4885 37Likewise, in the Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), the present Court was prepared to recognise the existence of a customary right to fish based on little evidence because it considered, also with sensitivityand common sense, 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”.489488The South China Sea Arbitration (Philippines v China), Award of12 July 2016, PCA Case No. 2013-19,p. 315, para. 805. 489Dispute regarding Navigational and Related Rights (Costa Rica v Nicaragua), Judgment, I.C.J. Reports 2009, p. 213, para. 141 264
5 38 In other words, Nicaragua’s attempt to heighten the
burden of proof is misguided considering the nature of the
traditional practices and the context in which they took place.
Under these circumstances, as previously developed, Colombia
considers that the historical documents it gathered are more than
adequate to substantiate the proposition that the inhabitants of
the Archipelago were men and women of the sea who navigated,
traded, turtled and fished throughout the Southwestern
Caribbean Sea since time immemorial 490
5 39 According to Nicaragua, “historic fishing took place
largely in the vicinity of Colombia’s islands, not in waters that
the Court determined to be part of Nicaragua’s EEZ”.491 To
support that proposition, Nicaragua merely highlights the fact
that the affidavits frequently refer to traditional fishing that
occurred in the North Cays (Serrana, Quitasueño, Roncador,
Serranilla and Bajo Nuevo) 492 Obviously the artisanal
fishermen’s sworn statements contain several references to
fishing that took place in waters surrounding these islands
Indeed, it would be extraordinary if the traditional banks were to
be located only on the Nicaraguan side of the 2012 line
However, it would be equally remarkable if these traditional
fishing activities, which Nicaragua takes for granted, were to be
located only on the Colombian side of the 2012 line Nicaragua
would have the Court believe that traditional fishing has always
490 CCM, paras. 2.67-2 86
491 NR, para. 6.51.
492 NR, paras. 6.51-6 54
265
for some reasons been restricted to the banks situated within 12 nautical miles of islands such as Quitasueño and Serrana as if the drawing of a line could influence the conduct of the artisanal fishermen retroactively. But, as explained in the Counter-Memorial, bathymetryand of course the affidavits, give the best indication of where traditional fishing took place 5 40Indeed, some of the biggest and most important fishing banks, both shallowanddeep-sea,are located in the vicinity of the Colombian islands but, nevertheless, in maritime areas adjudicated by the Court to Nicaragua as depictedin Figures 2 4 and 2 5 of Colombia’s Counter-Memorial. Yet, despite its so-called “careful examination of Colombia’s affidavits”,493Nicaragua conveniently fails to mention that the artisanal fishermen expressly refer to traditional banks located in waters that had, according to President Ortegahimself, “reverted” to Nicaragua 4945 41Many of the affiants consider that CapeBank constitutes one of the most important traditional grounds for the artisanal fishermen of the Archipelago Cape Bank is the vast area of shallow waters that extends from the Mosquito Coast tothe 82ndWest Meridian and beyond The fact that someof the affiants refer to the 82ndWest Meridian is because such coordinatelargely coincides with Luna Verde(also known asLa Esquina)–that is to say,the area where the shallow grounds of Cape Bank 493NR, para. 6.62.494CCM, Annex 76.266
give place to its deep-sea grounds, which are also crucial for the
artisanal fishermen of the Archipelago Luna Verde is simply the
part of Cape Bank which is located to the east of the 82nd West
Meridian As stated by Mr George de la Cruz de Alba Barker, an
artisanal fisherman based in San Andrés:
“Cape Bank, what they sometimes call today Luna
Verde but I do not know where this name comes
from, is the name with which I have known the
area since I was a child Cape Bank goes from
Cape Gracias a Dios in Honduras down to Costa
Rica It is not only limited to the area east of the
82nd Meridian and South of the 15th parallel My
parents also fished in this area, and today we
generally go there when there is not enough
product in the South Cays Fishing is more
abundant in this zone and this is why we go there
although it is farther from the South Cays.”495
5 42 Thus, the affidavits both explicitly and implicitly refer to
Cape Bank which is considered by artisanal fishermen as “one
of the best places to fish” 496 Indeed, some of the affiants
expressly mention “Cape Bank”,497 while others point to
locations that are obviously part of its shallow, as well as its
deep-sea, grounds such as the “82° West Meridian”,498 “Luna
Verde”,499 “Great Corn Island and Little Corn Island”,500
495 CCM, Annex 71.
496 CCM, Annex 68.
497 CCM, Annexes 62, 65, 68, 70, 71 and 72.
498 CCM, Annexes 63, 64, 65, 69 and 71.
499 CCM, Annex 71
500 CCM, Annex 64.
267
“Rosalind Bank”,501“Bobel cay”502and “Cape Gracias a Dios” 503As stated by Mr George de la Cruz de Alba Barker: “The fishing banks are mostly located where the sea’s depth changes from very shallow to relatively deep. West of Quitasueño these banks are located east of the 82ndMeridian and south of the 15thparallel. But more to the South, to the west of Providencia, they are located on the 82ndMeridian and a little beyond These are the best areas since Cape Bank is huge and has many resources.”5045 43Likewise, MrWallingford Gonzalez Steele Bordendeclared that he“mostly fish[es]in the 82ndMeridian, west of Providencia, with traps”.505In its Reply, Nicaragua statesthat “this vague reference ‘to the area of the 82° west of Providencia’ does not support Colombia’s case” because that meridian “comes very close” to the maritime boundary drawn by the Court 506Merely insisting on the proximity between the meridian and the boundary, Nicaragua does not deny that the bathymetry of the region clearly shows that west of Providencia,the shallow and deep-sea grounds of Cape Bank are entirely located within the maritime areas adjudicated to Nicaragua, as shown in Figures 2 4 and 2 5 of Colombia’s Counter-Memorial 501CCM, Annexes 65 and 71.502CCM, Annexes 63, 64 and 65.503CCM, Annex 63, 69 and 71.504CCM, Annex 71.505CCM, Annex 63. 506NR, para 6.54.5 268
5 44 Aside from Cape Bank, the affiants mentioned other
important traditional banks that are located on the Nicaraguan
side of the 2012 line, such as “Julio Bank”,507 “Far Bank”508 and
“North East Bank” 509 These are mainly deep-sea banks situated
in the waters surrounding the North Cays that have at times been
named by the artisanal fishermen who discovered them In these
waters, the artisanal fishermen fish “groupers that [they] call
‘John Pou’, Mandilous, Satten, Red Eyes, Soapfish, Yellow
Eyes and Bream” and that are particularly appreciated in the
local markets 510 These deep-sea banks are mainly situated north
of Quitasueño, and between, respectively, Providencia and
Quitasueño, Quitasueño and Serrana, and Serrana and Roncador
Thus, Mr Landel Hernando Robinson Archbold states that:
“Unfortunately some of our banks are now in the
waters of Nicaragua (…) If I want to fish in North
East Bank and in Julio Bank, which are located in
Nicaraguan waters between Quitasueño and
Providencia, I have to be very careful.”511
5 45 Likewise, Mr Wallingford Gonzales Steele Borden
stressed that:
“When we fish close to the cay, it is because we
are looking for shallow banks But we also fish
farther from the cays in the deep-sea banks located
between Providencia and Quitasueño, between
507 CCM, Annexes 62, 63, 64, 65 and 66.
508 CCM, Annexes 63, 64 and 65.
509 CCM, Annexes 62, 64, 65 and 66.
510 CCM, Annex 65.
511 CCM, Annex 62.
269
Quitasueño and Serrana, and between Serrana and Roncador. In those areas, there are large fishing banks that are very well known to us, such as ‘Far Bank’ and ‘Julio Bank’ There you find the groupers which are the fish that the cooperative is most interested in Those fishing banks have names given to them by the people who have discovered them. But no, there is no Wallin[g]ford bank at the moment.”5125 46Mr Ligorio Luis Archbold Howard similarly underlined that:“I fish in Nicaragua’s waters north and west of Providencia. (…)The fishing grounds of Far bank, North East and Julio Banks are traditional fishing grounds of Providencia and now some of their coordinates are in Nicaraguan waters They are deep-water banks very important for artisanal fishermen of Providencia because it is where you can find the fish most appreciated by the islanders We fish from Low Cay off the northern tip of Providencia up to the Southern tip of Quitasueño. I spend 5 or 6 days in Julio Bank, North-East Bank, Far Bank, Low Cay. (…)There are similardeep-seabanks between Quitasueño and Serrana, but I do not know their names Fishermen try to keep them secret, it is a family tradition. They might have a name but I know that I am not the first one who went there so I did not name them.”5135 47Mr OrnuldoRodolfo Walters Dawkins, in addition to fishing in the deep-sea banks located in between these islands, also goes farther north where the shallow grounds of Luna 512CCM, Annex 63.513CCM, Annex 65.270
Verde give way to its extended deep-sea banks located to the
north and northwest of Quitasueño:
“I continue to fish in the area between Providencia
and Quitasueño. I have fished in Julio Bank, Far
Bank, North East Bank and Serrana. But we also
fish farther from the cays like for example as far as
35 miles from the North tip of Queena
[Quitasueño].”514
5 48 In fact, Nicaragua’s own written pleadings demonstrate
that traditional banks are situated in maritime areas located on
the Nicaraguan side of the 2012 delimitation In paragraph 4 121
of its Reply, Nicaragua based its assertion that “Luna Verde is
an area for commercial fishing, not artisanal fishing”, on its own
Annex 22.515 Quite apart from the fact that the annexed
newspaper article does not state the above, which would make
no sense since artisanal and industrial fishing both constitute
distinct sub-categories of commercial fishing under Colombian
law,516 that article specifies that the artisanal fishermen lost
traditional banks to the “west of Providencia and to the east of
Bolivar Key”, as well as the area known as Luna Verde or La
Esquina 517 While the latter was “exploited especially by
industrial fishermen”, the article clearly indicates that that area
is also a traditional ground for artisanal fishermen 518 Likewise,
already in its Memorial, Nicaragua’s annexes proved the point.
514 CCM, Annex 64.
515 NR, para. 4.121 and Annex 22.
516 Annex 17: Ministry of Agriculture, Decree 2256 of 1991, Article 12.
517 NR, Annex 22.
518 NR, Annex 22.
271
For example,the 2013 Report of the Office of the Comptroller General of San Andrés on the status of natural resources and the environment,made explicit reference to the 82ndWest Meridian, North East Bank and Luna Verdeor La Esquina 519With regard to the latter, the Report suggestedthat this bank was “exploited in greater proportion by industrial fisheries of the Archipelago” 520Onceagain,it follows that Luna Verdeis also a traditional bank exploited by Colombia’s artisanal fishermen 5 49Unable to maintain that the traditional banks are only located in the Colombian maritime areas as defined inthe2012Judgment, Nicaragua declares that “at the earliest, artisanal fishermen began venturing into deeper waters closer to Nicaragua only in the 1970s” and that, consequently, “Colombia’s assertion that its fishermen have fished in [its] EEZ ‘since time immemorial’ is [a] profound overstatement”.521Nicaragua’s temporal objection is based on the proposition that traditional fishing rights cannot crystallise over a time frame spanning five decades, which, in itself, is dubious. But what is most problematic is that Nicaragua intentionally distortsthe affidavits 5 50Technological developmentshave enabledartisanal fishermen to venture more frequently in the traditional banks located farther from the Archipelago. Nonetheless,the evidence 519NM, Annex 12. 520NM, Annex 12.521NR, para. 6.57.272
shows that fishing expeditions to Cape Bank and to the waters
surrounding the North Cays were always part and parcel of the
culture of the inhabitants of the San Andrés Archipelago
Contrary to what Nicaragua would have the Court believe, Mr
Wallingford Gonzalez Steele Borden has not stated that in the
1960s and prior to that decade traditional fishing merely
occurred within areas located close to Providencia and San
Andrés.522 On the contrary, he said that:
“We artisanal fishermen always fished in
Roncador, Quitasueño, Serrana and in the area of
82° west of Providencia We would even go further
and reach Bobel Cays close to Cape Gracias a
Dios. But at the time the expeditions occurred less
frequently because in the sixties we had a lot of
fish also around Providencia We would go in these
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 we started using lanchas
(…) Lanchas allow us to reach the grounds with
less effort ”523
5 51 Obviously, the affiants mainly relate to their parents’ and
their own lifetime experiences because it is the time period that
they have witnessed. However, it does not follow, and the
artisanal fishermen do not state, that the geographical scope of
their fishing activities were previously limited to Providencia
and San Andrés. Nor can Nicaragua plausibly argue that those
522 NR, para. 6.56.
523 CCM, Annex 63.
273
activities were “too infrequent”.524For while it is true that the artisanal fishermen could not go to Cape Bank,Luna Verde and the deep-sea banks situated between the North Cays on a daily basis, expeditions that would last weeks or months occurred regularly several times a year. Those expeditions certainly constitute practices that can give rise to traditional fishing rights or local customs 5 52In addition to distorting the affidavits, Nicaragua has also misread Colombia’s domestic law Nicaragua’s misinterpretation reaches its peak when it asserts that Colombia’s legislation prevents artisanal fishermen from fishing beyond 12nauticalmiles of San Andrés and Providencia.525Partially quoting from DIMAR Resolution No 121of 2004, and likewise partially annexing that instrument, Nicaragua wrongly asserts that said instrument “placed tight limits on the areas where artisanal fishermen were permitted to fish”.5265 53But the scopeand purposeof that resolution,527as can be seen from itstitle, is to “facilitate”, not encumber, artisanal fishing. Also, itestablishesa special procedure in relation to coastal (costera)and inshore (de bajura) artisanal fishing Contrary to offshore (de altura)artisanal fishing, coastal and inshore artisanal fishing occurred, according toColombian law,524NR, para. 6.62.525NR, para. 6 39 526NR, para. 6 39 527NR, Annex 6. 274
within, respectively, 1 nautical mile and 12 nautical miles of the
coast 528
5 54 Contrary to what Nicaragua asserts,529 Resolution No
121 does not, and in fact cannot, prohibit offshore artisanal
fishing In so far as it is not regulated by this resolution,
artisanal offshore fishing is perfectly legal to the extent that it is
done in conformity with Decree No 2256 of 1991, which
requires the deliverance of a regular, more formal permit
5 55 Nicaragua has also ignored the fact that both the
President and the Foreign Minister of Colombia, as well as other
Colombian officials, have repeatedly recognised that many of
the traditional fishing grounds of the artisanal fishermen of the
San Andrés Archipelago are located on the Nicaraguan side of
the 2012 line 530 However, Nicaragua has pointed to an alleged
inconsistency in the Colombian position, which it inferred from
two recommendations of a Committee of Experts of the
International Labour Organisation (ILO) 531 It appears that the
528 Annex 17: Ministry of Agriculture, Decree 2256 of 1991, Article 12.
529 NR, para. 6.39.
530 CCM, Annex 20; CPO, Annexes 10 and 38.
531 NR, paras. 6.32-6.37; ILO, Committee of Experts on the Application
of Conventions and Recommendations, “Observations (CEACR) – adopted
2013, published 103rd ILC session (2014), Indigenous and Tribal Peoples
Convention, 1989 (No. 169) – Colombia (Ratification: 1991)”, available at:
https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_
COMMENT_ID:3141200 (last visited: 1 November 2018); ILO, Committee
of Experts on the Application of Conventions and Recommendations,
“Observations (CEACR) – adopted 2014, published 104rd ILC session
(2015), Indigenous and Tribal Peoples Convention, 1989 (No. 169) –
Colombia (Ratification: 1991)”, available at:
275
Office of Cooperation and International Relations, a section of the Colombian Ministry of Labour, cavalierlyconcluded, in a letter which Colombia is annexing to thisRejoinder, that the artisanal fishermen of theSan AndrésArchipelago could not have been impacted by the 2012 line since the islands and, in particular, the North Cays, as well as their appurtenant territorial sea,remained under Colombian sovereignty 5325 56This statementwas delivered in response to a communication made to anILObodyby the Colombian General Confederation of Labour on behalf of the Raizal Small-Scale Fishers’ Associations 533Responding to the claim that Colombia had, in particular, breached the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169), the Office of Cooperation and International Relations sought torefute the proposition that the government had not ensured the right of prior consultation of the Raizal people in the context of the Territorial and Maritime Dispute case While that aspect of the communication is comprehensively addressed to in the response of the Office of https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO::P13100_COMMENT… visited: 1 November 2018) 532Annex 24: Ministry of Labour, Note to the ILO in relation to the application by Colombia of Convention No. 169, 2 September 2013.533Annex 67: General Confederation of Labour, Submission of complaint on behalf of the General Confederation of Labour and the cooperatives and associations of artisanal fishermen and Raizalgroups of the Archipelago of San Andrés, Providencia and Santa Catalina against the Colombian State, 18 February 2013; and Annex 68: General Confederation of Labour, Submission of complaint relating to the breach of Convention No. 169 by the Colombian State, 10 February 2014.276
Cooperation and International Relations, that Office
significantly failed to provide even a shred of evidence to
support its assertion that the traditional fishing sites were
precisely located in the vicinity of areas not affected by the
decision
5 57 Moreover, the Office’s assertion can hardly be
reconciled with the extensive description of “Plan San Andrés”
in its response to the ILO This plan was established by the
Colombian Government in the aftermath of the 2012 Judgment
to alleviate the adverse effects endured by the artisanal
fishermen who had traditionally relied on fishing grounds
located in maritime areas that were adjudicated to Nicaragua
5 58 The Labour Ministry’s communication to the ILO
indicates that Colombia spent 4 383 million Colombian pesos
(some US $ 2 5 million) in marine aquaculture programs
intended to provide alternative employment sources for artisanal
fishermen; and for six months granted a monthly subsidy of 1.8
million Colombian pesos (more than US $ 1,000) to artisanal
fishermen who were certified as such and regularly engaged in
this activity before 19 November 2012, the day the 2012
Judgment was rendered 534
534 For the list of requirements to be afforded the monthly subsidy, see
Annex 21: Department for Social Prosperity, Resolution No. 02117, 21
December 2012
277
5 59The implementation of the artisanal fishing component of the “Plan San Andrés” was overseen by Monitoring Committees composed by artisanal fishermen, the Ombudsman and the Archipelago’s Secretary of Agriculture and Fishing, who in 2013 published the list of subsidies granted (a total of 755 in San Andrés and 275 in Providencia), specifying the beneficiary’s name, ID number and cooperative or association to which they belong 5355 60If Nicaragua’s claim that artisanal fishermen were not in fact impaired after the 2012 Judgment from continuing fishing where they had ancestrally done sowere true, it would not have been necessary for the Colombian Government to establish a plan and devote a significant amount of money to address what in effect became after November 2012a pressing social issue 5 61In this regard,the communications to the ILO from the General Confederation of Labour on behalf of the Raizal Small-Scale Fishers’ Associations actually strengthen the proposition that many traditional fishing banks are located on the Nicaraguan side of the 2012 line. Indeed, the communications received by the ILO clearly indicate that,according to the artisanal fishermen of the Archipelago, traditional fishing used 535Annex 22: Archipelago Department of San Andrés, Providencia and Santa Catalina, List of Beneficiaries of the Artisanal Fishermen Subsidy in San Andrés, 9 April 2013; and Annex 23: Archipelago Department of San Andrés, Providencia and Santa Catalina, List of Beneficiaries of the Artisanal Fishermen Subsidy in Providencia, 9 April 2013 278
to take place in areas that were adjudicated to Nicaragua
According to the claimants, Colombia must take:
“[T]he necessary measures so that the artisanal
fishermen workers of San Andrés and Providencia
can exercise freely as before their activity of
artisanal fishermen in order to seek to improve
their social and economic situations, seriously
affected by the ruling of the International Court of
Justice” 536
Similarly, the claimants stressed that:
“Likewise, the Nicaraguan government must adopt
measures to allow the Raizal artisanal fishermen to
fish in the waters recently adjudicated to that State
that were being exploited by this Raizal
community”.537
In other words, it appears that the position of the artisanal
fishermen of the Archipelago is coherent regardless of whether
their claims are being supported by Colombia in the context of
the current proceedings or, on the contrary, brought against the
Colombian Government before the ILO. Thus, the
communications submitted to the ILO on behalf of the Raizal
Small-Scale Fishers’ Associations clearly support the existence
of traditional fishing rights in the maritime areas adjudicated to
Nicaragua
536 Annex 67. See also Annex 68.
537 Annex 67 See also Annex 68.
279
F.The Evidence Substantiates the Infringement of the Traditional Fishing Rights5 62Nicaragua brushed off the evidence attesting to the infringement of the traditional fishing rights by qualifying most of it as amounting to “hearsay”.538Likewise, Nicaragua also assertedthat Colombia did not adduce “contemporaneous evidence” and that “the omission is revealing” considering that Nicaragua isbeing accused of an “active strategy of intimidation”.539At the very least, Nicaragua argued,contemporaneous “diplomatic protests” or “complaints made to local authorities” should be expected.5405 63The Nicaraguan Reply makes no attempt to hide the two different yardsticks that it applies vis-à-vis, on the one hand, its own claims and, on the other hand, Colombia’s counter-claim With regard to its own claims, which allegedly also involve the implementation “of a considered policy” demonstrating “Colombia’s disregard for Nicaragua’s sovereign rights and jurisdiction”,541Nicaragua appears to be content with the fact that its “evidence” is based on asynchronous second-hand accounts 5 64Nicaragua’s acute case of selective memory is well portrayed by the fact that its list of so-called “incidents” is based 538NR, paras. 6.79, 6.85, 6.87, 6.89 and 6.91. 539NR, para. 6.83.540NR, para. 6 83 541NR, para. 4.45.280
on a diplomatic note, which is based on a report from the
Nicaraguan Naval Force, which in turn is based on a request
from the Nicaraguan Foreign Ministry, that are all far removed
temporally from the alleged events to which they refer 542 While
the Colombian affidavits were apparently “prepared in haste for
purposes of this litigation”,543 the diplomatic note that was sent
three weeks before the filing of the Nicaraguan Memorial is
seemingly a perfect piece of evidence despite the fact that it is
not backed up with contemporaneous evidence
5 65 Apart from criticizing the lack of contemporaneous
evidence, Nicaragua also stresses that the incidents mentioned in
the affidavits are not specific as to the date of occurrence 544 Yet,
Nicaragua again forgets that on many occasions it has provided
the date of an indirect report instead of the date of the purported
“incident” to support its own claims and that several of the
“incidents” it relies on could not have happened as recounted by
Nicaragua 545
5 66 Aside from highlighting Nicaragua’s self-serving double
standards, Colombia will go through the evidence once more to
demonstrate that Nicaragua has infringed the traditional fishing
rights of the inhabitants of the San Andrés Archipelago
Colombia has shown in its Counter-Memorial that by bullying,
the Nicaraguan Naval Force has instilled a climate of fear
542 See Chapter 3 supra
543 NR, para. 6 50
544 NR, paras. 6.87, 6.88 and 6.91.
545 See Chapter 3 supra, incidents 1, 4 and 9.
281
amongst the artisanal fishermen, who, as a consequence of this conduct, have been forced to abandon many of their traditional fishing grounds 5465 67The conduct of the Nicaraguan Naval Force is well portrayed in a number of affidavits annexed to Colombia’s Counter-Memorial 547While Nicaragua’s quick assessment of this part of the counter-claim appears to suggest that, in its opinion, the incidents are trivial in nature, the fact that the Nicaraguan Naval Force requests food, cigarettes or coffee from the fishermen it intercepts, is not only inappropriate, it is serious When a fisherman is approached, or even worse boarded, by Nicaraguan armed agents, he feels intimidated “since [they] have weapons”548and, as understandably put by Mr Antonio Alejandro Sjogreen Pablo, fishermen “cannot say no”.549There is a sharp contrast with the type of “incidents”alleged by Nicaragua and those suffered by Colombia, in that none of those allegedly involving the Colombian Navy relate to boarding a Nicaraguan vessel or looting the fishermen 5 68Let us be clear These Nicaraguan agents have done worse than stealing lunches and beverages As stated byMrGeorge de la Cruz de Alba Barker, “[i]t is common to have our GPS, VHF radio, cigarettes and food supplies taken by them”.550546CCM, paras. 9.11-9 23 547CCM, Annexes 67, 69, 70, 71 and 72. 548CCM, Annex 71.549CCM, Annex 72. 550CCM, Annex 71.282
The Nicaraguan Naval Force, he continues, “also strip[s] the
boats of all their equipment of any value”.551 As indicated by Mr
Alfredo Rafael Howard Newball, “[t]hey stop them, they take
away their products, their equipment and they threaten and
mistreat them”.552
5 69 While Nicaragua relies on the ILO’s aforementioned
recommendations whenever it finds them to be convenient, it
surprisingly fails to mention that, according to those
recommendations, the complaint on behalf of the artisanal
fishermen specified that “Raizal fishers have to cross
Nicaraguan maritime territory, which is reported to give rise to
difficulties and the payment of fines”.553
5 70 Nicaragua states that President Santos’ statement of 18
February 2013554 is “pure hearsay”.555 However, it does not deny
that President Ortega had to instruct its Naval Force not to
detain and not to request permits from the artisanal fishermen
prior to and after President Santos’ statement 556 In fact,
551 CCM, Annex 71.
552 CCM, Annex. 67.
553 ILO, Committee of Experts on the Application of Conventions and
Recommendations, “Observations (CEACR) – adopted 2014, published 104rd
ILC session (2015), Indigenous and Tribal Peoples Convention, 1989 (No.
169) – Colombia (Ratification: 1991)”, available at:
https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO::P13100_COM
MENT_ID,P13100_LANG_CODE:3182299,en:NO (last visited: 1
November 2018)
554 CPO, Annex 10.
555 NR, para. 6.79.
556 Annex 6: Speeches at the 79th Anniversary of General Augusto C
Sandino’s Transit to Immortality, 21 February 2013. See also CCM, Annexes
75 and 76
283
Nicaragua itself annexes evidence attesting to the occurrence of incidents 557Annex 20 of Nicaragua’s Reply refers to three incidents that involved the Nicaraguan Naval Forceand Raizal fishermen. Annex 12 of Nicaragua’s Memorial attests to the fact that the artisanal fishermen are impeded of performing their work because of the conduct of the Nicaraguan Naval Force, which harangues them and, in general, adopts a “very aggressive” behaviour.5585 71Nicaragua disingenuously suggests that “the most that Colombia’s affidavits might be said to establish is that fishermen from San Andrés and Providencia have experienced some uncertainty in the wake of the 2012 Judgment, and that they are reluctant to fish in Nicaragua’s waters”.559Yet, the affiants consistently stress that “there have been incidents with Nicaraguan coastguards”560and that, as a consequence, they fear “to get stopped”561and being “taken to the Nicaraguan coasts”.5625 72Because of these incidents, many of the artisanal fishermen have stopped going to their traditional banks that are situated in the maritime zones recognised to appertain to Nicaragua or that are located aroundthe Colombian islands Landel Hernando RobinsonArchbold, who is “afraid of the Nicaraguan coast-guard”, “do[es]not fish up to la Esquina and 557NR, Annex 20 and NM, Annex 12.558NM, Annex 12.559NR, para. 6.92. 560CCM, Annex 64.561CCM, Annex 65 562CCM, Annex 71. 284
Cape Bank” anymore.563 Ornuldo Rodolfo Walter Dawkins does
not fish “beyond the 82nd Meridian” any longer.564 Ligorio Luis
Archbold Howard “do[es] not go all the way to Serrana and
Quitasueño because there are more possibilities of getting
stopped by Nicaraguan fishermen or coastguard”.565 Orlando
Francis Powell states that he is “afraid” of going to traditional
banks such as Cape Bank, Quitasueño and Serrana, so “[t]he last
time we went in an expedition we went in Roncador because
there we do not risk crossing the Nicaraguan coastguards”.566
Eduardo Steel Martinez “currently only fish[es] around San
Andrés” because he fears getting stopped by the Nicaragua
Naval Force as it sometimes occurs when artisanal fishermen
“try to reach Cape Bank or the North Cays”.567 George de la
Cruz de Alba Barker says artisanal fishermen “cannot go”
anymore to the North Cays or to Cape Bank because “the
decision whether they let us pass through, is up to the
Nicaraguan coastguard”.568 Antonio Alejandro Sjogreen Pablo
explains that because of the conduct of the Nicaraguan Naval
Force “plenty of our people stopped going to Cape Bank and the
North Cays”.569
563 CCM, Annex 62.
564 CCM, Annex 64.
565 CCM, Annex 65.
566 CCM, Annex 68.
567 CCM, Annex 70.
568 CCM, Annex 71.
569 CCM, Annex 72.
285
5 73All of the above clearly substantiates Nicaragua’s infringement of the traditional fishing rights of the inhabitants of the San Andrés Archipelago G.Conclusions5 74Colombia has demonstrated that the inhabitants of the San Andrés Archipelago, in particular the Raizales, have traditionally engaged in artisanal fishing in maritime areas that were adjudicatedto appertain to Nicaraguain the 2012 Judgment, as well as in Colombian areas that require navigating through waters of the Nicaraguan EEZ While Nicaragua has decidedin this case, contrary to the position taken by its President, to deny the existence of these recognised fishing rights, it has provided no rational explanation susceptible of justifying why traditional fishing rights should solely be extinguished in the EEZ 5 75Quite apart from its irrelevant assessment of the case-law relating to the adjustment of maritime boundaries, Nicaragua has failed to identify even one single precedent, which in either the operativepart or the essential reasoning of the decision, stated that non-exclusive fishing rights are extinguished in the EEZ Regardless of Nicaragua’s tortuous reading of UNCLOS, Colombia has also shown that the parties to this case expressly and repeatedly recognised theexistence of thetraditional fishing rights. This notwithstanding, Colombia has proven that the Nicaraguan Naval Force has repeatedly bullied the artisanal 286
fishermen of the Archipelago, thus discouraging them from
reaching their traditional fishing banks
5 76 By means of this counter-claim, Colombia respectfully
requests the Court to find that Nicaragua has infringed the
traditional fishing rights of the inhabitants of the San Andrés
Archipelago Colombia also asks the Court to rule that
Nicaragua is under an obligation to ensure that the inhabitants of
the San Andrés Archipelago, including the Raizales, enjoy
unfettered access to: a) the traditional fishing banks located in
the maritime areas adjudicated to appertain to Nicaragua; and b)
the traditional fishing banks located in the Colombian maritime
areas, access to which requires navigating through the maritime
areas adjudicated to appertain to Nicaragua With regard to
compensation of the assessable damage, including loss of profit,
its form and amount should be determined at a later phase of the
proceedings, following established practice.
287
288
Chapter 6
NICARAGUA’S VIOLATION OF COLOMBIA’S
SOVEREIGN RIGHTS AND MARITIME
SPACES THROUGH ITS STRAIGHT
BASELINES DECREE
A. Introduction
6 1 In its Counter-Memorial, Colombia submitted a counterclaim
challenging the legality, under international law, of
Nicaragua’s Decree No 33-2013, enacted in order to establish
straight baselines for the measurement of Nicaragua’s maritime
areas in the Caribbean Sea 570
6 2 As Colombia demonstrated in that pleading, Nicaragua’s
straight baselines are contrary to customary international law,
and contrary to Article 7 of UNCLOS, which is binding on
Nicaragua These baselines, which have been enacted following
the 2012 Judgment, are drawn from a series of basepoints
located on features that the Court used to proceed to the
delimitation between Nicaragua and Colombia,571 with the
570 In its Reply, Nicaragua acknowledges that the 2018 Judgment in the
case concerning Maritime Delimitation in the Caribbean Sea and the Pacific
Ocean (Costa Rica v. Nicaragua) has an effect on the delimitation of its
territorial sea, and indicates that the basepoint set at Harbour Head, is under
review. See NR, para. 7.12.
571 The Court declared that “[s]ince [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”, Territorial and Maritime Dispute (Nicaragua v.
289
addition of two features located on Nicaragua’s Caribbean mainland coast not mentioned by the Court 572These basepoints are described in the Decree as follows:6 3As Colombia explained in its Counter-Memorial, the unlawful consequences of the enactment of this Decree are extreme with respectto the international communityas a wholeand, in particular, to Colombia and other neighbouring coastal States Figure CR 6 1hereunderillustratesits consequences in terms of the artificial and unlawful extension of Nicaragua’s maritime claims in the Caribbean Sea Colombia), Judgment, I.C.J. Reports 2012, p. 699, para 201 The basepointfrom which Nicaragua departed from the Court’s Judgment, without any explanation, is Edinburgh Reef, since the Decree No. 33-2013 refers instead to Edinburgh Cay 572CCM, Annex 13 (Decree No. 33-2013, Baselines of the Marine Areas of the Republic of Nicaragua in the Caribbean Sea) Colombia protested against this Decree by letter dated 1 November 2013 to the Secretary-General of the United Nations Costa Rica and the United States protested as well Table CR 1Annex I to Nicaragua’s decree No. 33-2013 of 19 August 2013 290
QS9QS7QS6QS13QS12QS11QS28QS25QS19QS23QS18QS14QS46QS44QS43QS54QS51QS50QS49QS48QS8QS5QS4QS3QS2QS1QS53QS52QS47QS45QS42QS41QS39QS40QS38QS37QS36QS35QS34QS33QS32QS31QS30QS29QS27QS26QS24QS22QS20QS21QS17QS16QS15QS10123456789HondurasNigaraguaCaribbeanSeaSan Andrés I.Great Corn I.Little Corn I.Punta CastillaHarbor HeadSanta 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 CaysPANAMANICARAGUACOSTA RICACabo Graciasa DiosHONDURAS80°W 84°W 82°W 80°W 16°N14°N12°N14°N16°N12°N10°NNicaragua’s internal watersfrom straight baseline claimNicaragua’s territorial seafrom straight baseline claimNICARAGUA’S EXTENSION OFITS MARITIME CLAIMS0751005025050100200150Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 12°N)Prepared by: International MappingFigure CR 6.1
291
6 4Colombia has submitted that this Decree entails the breach of Nicaragua’s customary and conventional international obligations It directly violates Colombia’s rights and entitlements in the region, including but not limited to, its rights as discussed in the present proceedings 6 5This counter-claimwas declared admissible by the Court in its Order of 15November 2017 6 6In Chapter VII of its Reply, Nicaragua claims that the peculiarities of its Caribbean coast and of the islands located off thatcoast justify the use of straight baselines,and that their drawing meets the requirements of customary international law. However,Nicaragua’s position is untenable since customary and conventional international law do not allow States to draw straight baselines linking specks of islands, located far from one another and far from their mainland coast, or in areas where the coast is not deeply cut into or indented, or that do not reflect the general direction of the coast and other criteria Section B of this chapter will set out Colombia’s response rebutting Nicaragua’s arguments in this regard 6 7Nicaragua also took the opportunity of its Reply to pursue a new objective: obtaining a judicial acknowledgment of the use of several newalleged basepointsfor the delineation of its entitlements to maritime areas in the Southwestern Caribbean Sea They are posited onwhat are said to below-tide elevations located seaward not only from the unlawful straight baselines, 292
but also from all the nine basepoints previously claimed by
Nicaragua This is the case of the points located on Nee Reef,
London Reef and Blowing Rock, none of which had ever been
referred to before in the present proceedings 573
6 8 Article 16, paragraph 2, of UNCLOS requires State
parties, including Nicaragua, to “give due publicity” to the
baselines they use for measuring the breadth of their territorial
sea, and to “deposit a copy of each such chart or list [of
geographical coordinates]” with the Secretary-General of the
United Nations
6 9 But none of the new contended basepoints have been
referenced in Nicaragua’s own official domestic legal acts
Similarly, the List of geographical coordinates of points
defining the straight baselines from which the breadth of the
territorial sea of Nicaragua in the Caribbean Sea is measured –
as contained in Annex I to Decree No. 33-2013 – deposited with
the Secretary-General of the United Nations on 26 September
573 The use by Nicaragua of additional basepoints east of its claimed
straight baselines which are in dispute in the current proceedings would have
the effect of exacerbating Nicaragua’s attempt to encroach into Colombia’s
maritime zones The 200-nautical-mile limit from what Nicaragua calls
London and Nee Reefs is located at a distance of 3 to 9 nautical miles east of
the 200-nautical-mile limit measured from the basepoints used by the Court
for the purpose of the construction of the provisional median line in its 2012
Judgment In fact, none of these basepoints were used during the proceedings
in the case concerning the Territorial and Maritime Dispute (Nicaragua v
Colombia)
293
2013, contains no reference to these three contended basepoints 5746 10Sincethey are not mentioned in the Nicaraguan Decree the legality of which is disputed by Colombia’s counter-claim, Colombia will not discuss the existence –undemonstrated by Nicaragua − nor the relevance, if any, of these newly asserted basepoints, which in any event are not opposable to Colombia B.Nicaragua’s Claimed Baselines Violate the Principles of International Law Governing the Drawing of StraightBaselines6 11Colombia’sCounter-Memorial demonstrated that the baselines claimed in Nicaragua’s Decree No 33-2013 violate the customary international law principles governingthe drawing of straight baselines 575Both Nicaragua’s recourse to the straight baselines method –which finds no basis in the 2012 Judgment –and the drawing of straight baselines by the Decree, infringe customary international law In particular:•Geographical circumstances permitting recourse to straight baselines–i e a fringe of islands in the 574CCM, Annex 13. Article 1 of the Decree No. 33-2013 provides that: “(t)he straight baselines of the Republic of Nicaragua to be used tomeasure the breadth of its territorial sea, contiguous zone, exclusive economic zone and continental shelf in the Caribbean Sea shall be established [using the geographical coordinates set forth in Annex I]”.575CCM, paras. 10.13-10 65 294
immediate vicinity of Nicaragua’s Caribbean coast – are
not met;576
• Nicaragua’s drawing of straight baselines contravenes
the applicable law since they depart significantly from
the general direction of its coast;577
• The drawing of the straight baselines is unlawful because
it encloses sea areas that are not sufficiently closely
linked to the land domain;578
• The length of the straight baselines segments claimed by
Nicaragua far exceeds any reasonable construction under
international law;579 and
• The effect of Nicaragua’s Decree is to illegally expand
eastwards its internal waters, territorial sea, EEZ and
continental shelf, in detriment to the maritime spaces of
Colombia and the rights of the international community
as a whole 580
6 12 In its Reply, Nicaragua takes issue with each of these
points, submitting that its Decree No. 33-2013 meets the
conditions of paragraphs 1 and 3 of UNCLOS Article 7 However,
576 CCM, paras. 10 33-10 43
577 CCM, paras. 10 44- 10 45
578 CCM, paras. 10.46- 10 51
579 CCM, para. 10 48 and Figure 10 4
580 CCM, paras. 10.52-10 64
295
Nicaragua’s arguments are unsupportable in the light ofboth the relevantgeography (Sub-section 1) and the applicable law (Sub-section 2) (1)THE CONFIGURATION OF NICARAGUA’S ISLANDS DOES NOT JUSTIFYTHE USE OF STRAIGHT BASELINES SETBY DECREENo 33-20136 13As Colombia will show, contrary to what Nicaragua contends in its Reply, the language and reasoning used by the Court in the 2012 Judgment, whether read alone or in relation with other judgments, cannot be interpreted as recognizing that Edinburgh Cay, Muerto Cay, Miskitos Cays, Ned Thomas Cay, Roca Tyra, Little Corn Island and Great Corn Island form a “fringe of islands” under the rule codified in UNCLOS Article 7. In addition, it will be demonstrated that as a matter of fact the location and features of these features do not satisfy the required criteria for a system of straight baselines (a)The Court’s caselaw does notsupport Nicaragua’sclaim that its basepoints are positedon a “fringe of islands”6 14Nicaragua seems to consider that the existence of a “fringe of islands” cannot be questionedsince such qualification would derive from the Court’s own words in its 2012 Judgment 581But Nicaragua confuses two distinct notions, namely “fringing islands” and a “fringe of islands”.581NR, para. 7.22.
296
6 15 The Court did use the term “fringing islands” to describe
certain Nicaraguan islands on which it selected basepoints for the
construction of a provisional median line; the paragraphs referred
to by Nicaragua read:
“[T]he Court (…) considers that Nicaragua’s
entitlement to a 200-nautical-mile continental shelf
and exclusive economic zone has to be measured
from the islands fringing [“les îles côtières”, in the
French version] the Nicaraguan coast”.582
6 16 Of course, in the original case the Court was not called
upon to rule on any question involving straight baselines because
none existed in the relevant area. Thus, the features considered by
the Court in 2012 on which individual basepoints could be situated
fringe Nicaragua’s Caribbean mainland coast in the sense that they
lie off this coast. They are adjacent to Nicaragua’s mainland coast,
i e they can be said to be fringing islands. To the extent that they
qualify as islands – which Nicaragua does not prove – they can be
designated more accurately as “des îles côtières”.
6 17 But that does not mean that they form a “fringe of islands”
(“un chapelet d’îles”, in French) within the meaning of the rule
embodied in UNCLOS Article 7. “Fringing islands” (“des îles
côtières”) and a “fringe of islands” (“un chapelet d’îles”) are two
different notions, corresponding to distinct geographical situations.
582 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p 671, para. 135 and p. 678, para. 145
respectively. See also p. 703, para. 214: “the Nicaraguan mainland and
fringing islands, and the Colombian islands, are located on the same
continental shelf”.
297
A fringe of islands is not justa set of“fringing islands”: it is, as interpreted by the Court, a “cluster of islands” or an “island system”.583Such qualification is nowhere to be found in the 2012 Judgment. The terms “fringing islands” and “fringe of islands” are therefore not interchangeable, and the Court never used the latter in its 2012 Judgment 6 18Nicaragua also asserts that Colombia’s Counter-Memorial “ignores the fact that the Court gave Nicaragua’s fringing islands a different treatment from Serpents’ Island in Black Sea”;584Nicaragua explains that:“In Territorial andMaritime Dispute (Nicaragua v. Colombia), basepoints on Nicaragua’s fringing islands were used in the construction of a provisional equidistance line. To the contrary, Serpents’ Island was ignored by the Court in establishing a provisional equidistance line The Court justified its choice in Black Sea observing that:‘Serpents’ Island calls for specific attention in the determination of the provisional equidistance line In connection with the selection of base points, the Court observes that there have been instances when coastal islands have been considered part of a State’s coast, in particular when a coast is made up of a cluster of fringe islands. (…) However, Serpents’ Island, lying alone and some 20 nautical miles away from the mainland, is not one of a cluster of fringe islands constituting ‘the coast’ of Ukraine To count 583Maritime Delimitation and Territorial Questions betweenQatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 103, paras. 213-214 See also CCM, paras. 10.37 and 10.38.584NR, para. 7.22.
298
Serpents’ Island as a relevant part of the coast
would amount to grafting an extraneous element
onto Ukraine’s coastline.’”585
Based on this, Nicaragua then alleges that “the Court was well
aware of the implications of its findings on Serpents’ Island in
assessing the treatment of islands in Territorial and Maritime
Dispute”.586 What such implications are, Nicaragua does not
explain But it contends that the proof of the awareness of the
Court results in the “rejection of Colombia’s Quitasueño as a base
point The Court found that its considerations concerning
Serpents’ Island applied ‘with even greater force to
Quitasueño’” 587
6 19 From there, Nicaragua does not draw any conclusion
regarding the existence of its alleged fringe of islands, and thus the
argument is unintelligible Colombia can only surmise that
Nicaragua suggests that, since the Court found in 2009 that
Serpents’ Island was “not one of a cluster of fringe islands
constituting ‘the coast’ of Ukraine”,588 and then refused to use it as
a basepoint in the construction of a provisional equidistance line,
the fact that in 2012 the Court used Edinburgh Reef, Muerto Cay,
Miskito Cays, Ned Thomas Cay, Roca Tyra, and the Corn Islands
as basepoints in the construction of such a line589 demonstrates that
585 NR, para. 7.22.
586 NR, para. 7.23.
587 NR, para. 7 23
588 Maritime Delimitation in the Black Sea (Romania v Ukraine),
Judgment, I.C.J. Reports 2009, pp. 109 and 110, para. 149
589 Territorial and Maritime Dispute (Nicaragua v Colombia),
Judgment, I.C.J. Reports 2012, p. 699, para. 201
299
each of these seven features is part of a cluster of islands lying off Nicaragua’s mainland coast 6 20This a contrarioargument is untenable 6 21First, the only analogy that could be drawn from the two cases is that,in both of them,the Court assessed the relevance of using the maritime features as basepoints in the construction of a provisional equidistance line In none of themdidthe Courtaddress ordecide the issuewhether straight baselines could join basepoints posited on specificislands 6 22Second, in the Maritime Delimitation in the Black Seacase, the Court, in connection with the soletask of selecting basepoints andof identifying the relevant coast of Ukraine,addressed the question whether coastal islands can be considered as part of a State’s coast As the Court noted, depending on the circumstances, they may The Court then held, in the paragraph Nicaragua quotes, that: “there have been instances when coastal islands have been considered part of a State’s coast, in particular whena coast is made up of a cluster of fringe islands”.590In other words, an island formingpart of a cluster of fringe islands is one of the instanceswhere it may be regarded as forming part ofaState’s relevant coast in connection with a maritime delimitation Contrary to what Nicaraguasuggests,this does not imply that any 590Maritime Delimitation in the Black Sea (Romania v Ukraine), Judgment, I.C.J. Reports 2009, pp. 109 and 110, para. 149.(Emphasis added) 300
maritime feature considered by the Court to be part of a State’s
coastal configuration necessarily forms part of a cluster of fringing
islands for straight baselines purposes
6 23 The need for an island to be part of a cluster of fringing
islands is not a criterion for choosing a basepoint for the
construction of a provisional equidistance line. It is telling that in
its 2012 Judgment, when assessing Quitasueño’s capacity to
contribute to the construction of the provisional median line, the
Court recalled the factors that determined its decision to disregard
Serpents’ Island as a base point without making any reference to
the notion of cluster of islands. The Court explained:
“In the Maritime Delimitation in the Black Sea case,
for example, the Court held that it was inappropriate
to select any base point on Serpents’ Island (which,
at 0.17 square km was very much larger than the part
of Quitasueño which is above water at high tide),
because it lay alone and at a distance of some 20
nautical miles from the mainland coast of Ukraine,
and its use as a part of the relevant coast ‘would
amount to grafting an extraneous element onto
Ukraine’s coastline; the consequence would be a
judicial refashioning of geography, which neither the
law nor practice of maritime delimitation authorizes’
(Maritime Delimitation in the Black Sea (Romania v
Ukraine), Judgment, I.C.J. Reports 2009, p. 110,
para 149) These considerations apply with even
greater force to Quitasueño. In addition to being a
tiny feature, it is 38 nautical miles from Santa
Catalina and its use in the construction of the
301
provisional median line would push that line significantly closer to Nicaragua.”5916 24The only judicial conclusionthat can be drawn from Nicaragua’s quotes from the Maritime Delimitation in the Black Seaand Territorial and Maritime DisputeJudgments is that “[w]hen placing base points on very small maritime features would distort the relevant geography, it is appropriate to disregard them in the construction of a provisional median line”.592It is this consideration that lead the Court to reject Serpents’ Island and Quitasueño as potential basepoints contributing to the construction of the provisional median line, not the fact that they were not partof a cluster of fringing islands 6 25Third, and more generally, no analogy can be madebetween the two cases as regards the treatment of islands in the delimitation since their respectivegeographic contexts are markedly dissimilar InMaritime Delimitation in the Black Sea,the Court proceededto a delimitation of maritime areas between States with mainly adjacent coasts, Serpents’ Island being close to Romania’s coast, lying off the Danube’s mouth. In contrast,in Territorial and Maritime Dispute,the parties’ relevant coasts were strictly opposing coasts 591Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment, I.C.J. Reports 2012,p. 699, para. 202.592Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment, I.C.J. Reports 2012,p. 699, para. 202.
302
6 26 In sum, whether read alone or in the light of the Court’s
findings in the Maritime Delimitation in the Black Sea, the 2012
Judgment cannot be used as a precedent as regards the nature of
Nicaragua’s features (Edinburgh Reef, Muerto Cay, Miskitos
Cays, Ned Thomas Cay, Roca Tyra, Little Corn Island and Great
Corn Island) under the rules reflected in UNCLOS Article 7 or
customary international law 593
(b) Nicaragua does not demonstrate that its basepoints are
posited on islands constituting “a fringe of islands
along the coast in its immediate vicinity”
6 27 In its Counter-Memorial, Colombia demonstrated that the
islands Nicaragua designated as basepoints in its Decree No 33-
2013 are not a “fringe of islands” in the sense of UNCLOS
Article 7 594 They are neither a group of “islands forming a unity
with the mainland”, nor “islands which at some distance from the
coast form a screen which masks a large proportion of the coast
from the sea”, as the United Nations Division for Ocean Affairs
and the Law of the Sea (DOALOS) described the two main
situations “where a fringe of islands is likely to exist”.595
593 It should be added that the Court did not prejudge the baselines
drawing method to be used by Nicaragua when observing that the latter
“ha[d] yet to notify the baselines from which its territorial sea is measured”
(Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J.
Reports 2012, p. 713, para. 237).
594 CCM, paras. 10.37 and 10.38.
595 DOALOS, The Law of the Sea – Baselines: An examination of the
Relevant Provisions of the United Nations Convention on the Law of the Sea,
p. 21, available at:
http://www.un.org/depts/los/doalos_publications/publicationstexts/The%2…
aw%20of%20the%20Sea_Baselines pdf (last visited: 1 November 2018). See
also CCM, para. 10.36.
303
28In its Reply, Nicaragua does not dispute that these are the relevant standards to be used to establish the existence of a fringe of islands However, it arguesthat its seven islands form, together with numerous unidentified “islands”, a group falling intoboth of these categories596and lying in the immediate vicinity of its mainland coast 597Nicaragua’s both contentions are unsustainable (i)Nicaragua fails to demonstrate that the “group” formed by its adjacent islands constitutes a fringe of islands along its coast6 29Nicaragua first contends that the islands forming its alleged fringe of islands are not “relatively small in number”, in the sense thatthe Court used in the Maritime Delimitation and Territorial Questions between QatarandBahraincase,according to which the number of islands is a condition for a “fringe of islands” to exist.598There are, Nicaragua alleges, “in total 95 596NR, paras. 7.23-7 35 597NR, paras. 7.37-7 42 598Maritime Delimitation and Territorial Questions between Qatar and Bahrain,Merits, Judgment, I.C.J. Reports 2001, p. 103, para. 214 See also CCM, para. 10.37. Nicaragua contests the relevance of this case as a precedent because this Judgment refers to the situation of an archipelagic State (Bahrain), which Nicaragua is not (NR, para. 7.27). Such reading of the Judgment is biased Itresults from the plain language used by the Court that Bahrain being an archipelagic State hadno impact on the generalprinciple laid down by the Court according to which a group composed of a few islands cannot be a “fringe of islands” under UNCLOS Article 7. The excerpt Nicaragua cited is only an obiter dictumfollowing the affirmation of this principle, in which the Court specifies that the only hypothesis in which a fringe of Bahraini islands would exist in the sense of Article 7 is where the alleged fringe includes, besides the islands “relatively small in number”, Bahrain’s mainislands; however, in such hypothesis, Bahrain being a multiple-island State, drawing straight baselines between basepoints posited on all its islands including the main ones is allowed by UNCLOS only if 304
islands that fringe Nicaragua’s Caribbean coast”.599 Nicaragua
limits itself to setting out a list of these so-called islands in Annex
31 to its Reply, without justifying their insular nature or
characteristics or specifying their location In Figure 7 3 of its
Reply entitled “Nicaragua’s fringe of islands”,600 the other
“islands” allegedly forming a fringe of islands, along with the
maritime features on which Decree No 33-2013 posited
basepoints, are not specified. But judging from the blue segments
displayed, these supplementary “islands” seem to be located
between the Miskitos Cays and the mainland coast, and between
the Corn Islands and the mainland coast Nicaragua does not give
any information about these features, including their name and
their nature
6 30 Despite this vagueness, Nicaragua’s position can be
inferred from Figure 7.3 of its Reply: the “fringe of islands along
[its] coast in its immediate vicinity” which supposedly justifies the
drawing of straight baselines between the basepoints defined in
Decree No 33-2013 seems to consist of:
• The seven maritime features on which these basepoints
are posited; and
Bahrain has declared itself to be an archipelagic State under Part IV of the
Convention – since Bahrain did not, it is not entitled to draw straight
baselines to join its minor islands to each other The fact that Nicaragua is not
an archipelagic State changes nothing to the requirement of a number of
islands greater than “relatively small” which is required to qualify a fringe of
islands under UNCLOS Article 7
599 NR, para. 7.26. See also para. 7 20
600 NR, p. 166.
305
•Some unidentifiedfeatures located between the mainland coast and the Miskitos Cays and the Corn Islands 6 31This group of features –assuming,quod non,that they are islands as defined by customary international law –does not meet, as a whole, the conditions required by UNCLOS Article 7 for the drawing of straight baselines Asthe Courthas noted,these criteria must be applied “restrictively”.6016 32First, this newly defined group of islands does not form a unity with the mainland.602The only argument made by Nicaragua in its Reply in responseis that unity is demonstrated by the fact that,between Nicaragua’s mainland coast and, respectively, the Corn Islandsand theMiskitos Cays, there are two groups of unidentified maritime features. Since they are unidentified, Nicaragua does not meet its burden of proof 6 33Moreover, such apresence, even ifitwas established and assuming continuity between these features could be demonstrated, would merely illustrate a unity between the mainland and the Miskitos Cays, and between the mainland and the Corn Islands 603But the contended fringe of islands at issueis 601Maritime Delimitation and Territorial Questions between Qatar andBahrain, Merits, Judgment, I.C.J. Reports 2001, p. 103, para. 212.602CCM, para. 10.39.603The point that Nicaragua is thus making, though without the support of any demonstration, is that the “islands” lying between its mainland and Miskitos Cays on the one hand, and those lying between its mainland and Corn Islands on the other hand, form two fringes of islands each arranged on
306
not the “Miskitos Cays group” or the “Corn islands group”, but the
whole group of islands that Nicaragua has elected to connect, from
Edinburgh Reef in the North to Great Corn Island in the south, by
straight baselines
an axis perpendicular to the mainland coast. But it bears no consequence –
and Nicaragua did not draw any in its Decree No 33-2013 – as regards the
case at hand and generally the ability to draw straight baselines between
appropriate basepoints posited on islands pertaining to these “fringes”: as
DOALOS puts it: “[s]ince the fringe has to be ‘along the coast’ [Article 7(1)]
would not, therefore, apply to islands arranged like stepping stones
perpendicular to the coast”. See DOALOS, The Law of the Sea – Baselines:
An examination of the Relevant Provisions of the United Nations Convention
on the Law of the Sea, p. 21 available at:
http://www.un.org/depts/los/doalos_publications/publicationstexts/The%2…
aw%20of%20the%20Sea_Baselines pdf (last visited: 1 November 2018). In
any event, Nicaragua’s Reply does not demonstrate any continuity/unity
between the mainland, middle so-called islands and the Miskitos Cays and
between the mainland, middle so-called islands and the Corn Islands
307
HondurasNigaraguaPANAMAHONDURASNICARAGUASan Andrés I.Great Corn I.Little Corn I.Santa Catalina I.Providencia I.East Southeast CaysAlburquerque CaysRoncador CayGorda I.Cocorocuma Is.Cajones Is.Serranilla CayMiskitosCaysNed ThomasCayEdinburgh CayEast of GreatTyra CayMan-of-WarCaysCaribbeanSea80°W 84°W 82°W 80°W 16°N14°N12°N14°N16°N12°N10°N123456789Quitasueño CaySerrana CayNICARAGUA’S SELECTED “ISLANDS”FOR ITS STRAIGHT BASELINES0751005025050100200150Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 12°N)Prepared by: International MappingSee CR 6.2bfor detailSee CR 6.2afor detailFigure CR 6.2Punta CastillaHarbor HeadCOSTA RICACabo Graciasa Dios
308
21341234Miskitos CaysNed CayCabo Gracias a DiosMiskitos Thomas CayEdinburgh DiosPrepared by: International Mapping01520105Nautical MilesEXCERPT OF NGA CHART 28130Figure CR 6.2aHondurasNigaragua
309
Corn I.of-War CaysGreat Corn I.Little Corn I.East of Great Tyra CayMan-CaysPrepared by: International Mapping01520105Nautical MilesEXCERPT COMPOSITEOF NGA CHARTS 28110 & 28120Figure CR 6.2b
310
6 34 These islands, as a whole, cannot be regarded as forming a
unity with the mainland given the large distance between them
Proceeding from north to south, one finds the following features
that Nicaragua seeks to join by means of its straight baselines:
• Edinburgh Reef, an isolated and minuscule feature;
• 27 nautical miles from it, the small Miskitos Cays and Ned
Thomas Cay to the west of which would be found the
unidentified islands relied on by Nicaragua;
• 75 nautical miles to the south, Man-of-War Cays and Great
Tyra Cay – also very small features;
• 44 nautical miles further southward, and 85 nautical miles
to the north of the next and southernmost basepoint, there
are the Corn Islands, a pair of relatively small islands to
the west of which the alleged spread unidentified islands
would also be found 604
As shown on the Figure, the different components of Nicaragua’s
so-called “fringe of islands” are simply too isolated from each
other to be deemed as forming a “unity”.
604 CCM, Figure 10.4.
311
PANAMAHONDURASNICARAGUACOSTA RICASan Andrés I.Great Corn I.Little Corn I.Santa Catalina I.Providencia I.East Southeast CaysAlburquerque CaysRoncador CayGorda I.Cocorocuma Is.Cajones Is.Serranilla CayMiskitosCaysNed Thomas CayEdinburgh CayEast of Great Tyra CayMan-of-War CaysCabo Graciasa Dios80°W 84°W 82°W 80°W 16°N14°N12°N14°N16°N12°N10°N12345678944 M85 M75 M27 MMAIN DISTANCES BETWEENNICARAGUA’S BASEPOINTS0751005025050100200150Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 12°N)Prepared by: International MappingFigure CR 6.3CaribbeanSeaQuitasueño CaySerrana CayHondurasNigaraguaPunta CastillaHarbor Head
312
6 35 Second, these maritime features do not form, as required
by the rule of customary international law reflected in UNCLOS
Article 7, a continuous fringe along the coast 605
6 36 Third, the maritime features of this newly defined “group”
have no or a very limited masking effect on the mainland coast.
6 37 Nicaragua agrees with Colombia that a controlling
precedent in this respect is the Eritrea/Yemen (second stage) case,
where the arbitral tribunal concluded that what it termed “an
intricate system of islands, islets and reefs which guard this part of
the coast” was indeed a “fringe system” of the kind contemplated
by Article 7 of UNCLOS 606 Nicaragua contends that its islands do
have such a guarding or masking effect
6 38 According to Nicaragua:
• All its fringing islands and features should be taken into
account in the assessment of the masking effect;607
605 Virginia Commentary, p. 100: 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”. See also
CCM, para. 10.36.
606 Award of the Arbitral Tribunal in the Second Stage of the
Proceedings between Eritrea and Yemen (Maritime Delimitation), p. 369,
para. 151. See NR, paras. 7.31 and 7.32; see also CCM, paras. 10.41-10 42
607 NR, para. 7 35
313
•As regards the appreciation of the masking phenomenon itself, “in the light of the Court’s case law it would be reasonable to look at the projection of ‘all islands and features’ between a perpendicular to the general direction of Nicaragua’s mainland coast and an angle of 20 degrees to that perpendicular”;608•The length of the coast with respect to which the masking effect is to be calculated is the total length of the mainland coast minus the indented part of the coast (see infra) from Monkey Point up to the terminus of Nicaragua’s land boundary with Costa Rica;609•Basing itself on these self-serving factors, Nicaragua submits that, with respect to the northern part of the coast, “more than 50% of that mainland coast is masked”;610and that when including the segment from Monkey Point up to the terminus of Nicaragua’s land boundary with Costa Rica, 46% of its total mainland coast would be masked, on the basis of a 20-degrees projection. Finally, if a strictly 608NR, para. 7.35.609NR, para. 7.36.610NR, para. 7 36 Nicaragua purports to illustrate this result by a figure (NR, Figure 7.5) which is notable for lack of any key and incomprehensible: what the pink and green projections are supposed to be representing is not explained, and the names and specifics of the features that areshown as having a masking effect are not identified or documented (the minuscule features just north of Monkey Point, in particular).314
frontal projection is used, Nicaragua contends that 25% of
the overall coast would be masked 611
6 39 These calculations are fanciful Once again Nicaragua
relies on unidentified maritime features, the characteristics of
which are simply ignored, thus depriving its calculation of any
factual basis 612 Additionally, Nicaragua relies on a “projection
angle” that finds no support in the jurisprudence or international
practice While Nicaragua contends a projection angle of 20% is
“reasonable”,613 in reality it is absurd
6 40 The only element on which Nicaragua relies is a sketchmap
(No 5) used by the Court in the Maritime Delimitation in the
Black Sea (Romania v Ukraine) case to depict the projection of
the parties’ relevant coasts along the low-water mark defining the
maritime area to be delimited 614 But this is manifestly irrelevant:
the seaward projection of coasts for determining overlapping
maritime entitlements says nothing about the masking effect of
islands for straight baseline purposes
6 41 Nicaragua’s islands and features do not form an “intricate
system of islands”; they do not “guard” the mainland coast (i e
611 NR, para. 7.34.
612 The list of adjacent maritime features Nicaragua produces in Annex
31 to its Reply provides only the names of the features. It explains nothing
about the dimensions or characteristics of each feature
613 NR, para. 7.35.
614 NR, para. 7.35. The sketch-map is reproduced in Maritime
Delimitation in the Black Sea (Romania v Ukraine), Judgment, I.C.J.
Reports 2009, p. 102.
315
generate a “masking effect”615which covers only 5 or 6% of Nicaragua’s entire mainland coast);616they do not “cover the coast in such a way as to be considered as its seaward extension”;617and they do not form a fringe of islands along the mainland coast Accordingly, they do not justify Nicaragua’s system of straight baselines (ii)Nicaragua fails to demonstrate that the “group” formed by the maritime features adjacent to its coast lies in its immediate vicinity6 42In its Counter-Memorial,Colombia showedthat none of the seven islands on which Nicaragua purports to posit its basepoints lies in the “immediate vicinity” of Nicaragua’s coast.6186 43Nicaragua is obviously aware of this deficiency in its claim In its Reply,therefore, Nicaragua contends that the alleged “fringe of islands” justifying the drawing of straight baselines from Edinburgh Cay up to Great Corn Island not only consistsof the seven “main” islands, but also of unidentified maritime 615As it relates to the measurement of the “masking effect”, see for example the method retained by the United States, as illustrated in United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, Limits in the Seas, No. 106,Developing Standard Guidelines for Evaluating Straight Baselines, pp. 26-27, available at: https://www.state.gov/documents/organization/59584.pdf(last visited: 1 November 2018) 616CCM, para. 10.41 and Figure 10.2. Even assuming, as Nicaragua claims, that the relevant length of Nicaragua’s Caribbean mainland coast was, for the sake of evaluating the masking effect, to be measured from Cabo Gracias a Dios in the north to Monkey Point in the South, this percentage would remain insignificant 617S. Kopela, Dependent Archipelagos in International Law of the Sea,Brill Nijhoff, 2013, p. 63 (available at the Peace Palace Library). 618CCM, para. 10.42 and Figure 10 3 316
features supposedly lying between the mainland coast and, on the
one hand, the Miskitos Cays and, on the other, between the
mainland coast and the Corn Islands Based on this, Nicaragua
argues that the “immediate vicinity” requirement applies only to
the inner edge of the fringe Since, according to Nicaragua, the
westernmost “islands” (not the seven “main” islands) are near the
mainland coast, the whole “fringe”, including the “main” islands
that are not “near” the coast, meets the “immediate vicinity”
requirement.
6 44 This argument is wholly unsubstantiated
6 45 First, in both the Eritrea/Yemen (second stage) case, and
as regards the baselines established by Finland in the area of the
Åland islands area and by Norway in the far north of Tromsø,
both mentioned by Nicaragua,619 straight baselines were drawn to
enclose an intricate system of islands,620 the inner edge of which is
indeed very close to the mainland This geographical characteristic
is absent in the present case, even taking into account all the
contended “islands” between the mainland coast and the islands
Nicaragua uses as basepoints
619 NR, paras. 7.38-7 40
620 This notion was used in the Award of the Arbitral Tribunal in the
Second Stage of the Proceedings between Eritrea and Yemen (Maritime
Delimitation) to designate the fringing islands considered by the Tribunal
The Åland islands form an archipelago, and the Norwegian islands off
Tromsø have a configuration similar to the one of the Skjaergaard that the
Court regarded in the Fisheries case (United Kingdom v Norway) as a fringe
of islands justifying the drawing of straight baselines
317
6 46Second,Nicaragua does not even attempt to identify those “islands” pertaining to the alleged fringewhich are said tobe located in the “immediate vicinity” of its mainland coast As noted earlier, it provides no names, no physical description, no coordinates, no distance to the mainland coast except on a sketch which does not display their names,621andno demonstration that these features are indeed islands under international law 6 47Likewise, Nicaragua fails todemonstrate that there is a “continuity” between the mainland, the unidentified islands allegedly located in the immediate vicinity of the coast, and the “main” islands. As can be seen in Figure 10 3 of Colombia’s Counter-Memorial, the majority of the features on which Nicaragua places its basepoints are located beyond 25 nautical miles from the nearest points on the mainland coast 6 48Furthermore, Nicaragua is unable to identify State practice that would be widespread enough to establish as a rule of customary lawthat a distance ranging from 25 to 30 nautical miles622between the coast and the islands is generally accepted as not excessive. 6 49Suffice it to note that the United States (which protested against Nicaragua’s DecreeNo 33-2013) considers that the “immediate vicinity” criterion is met when the most landward 621NR, Figure 7.3.622The exception only being Man-of-War Cays and Great Tyra Cay (11.6 and 12.7 M respectively) and Miskitos Cays (22.4 M). See CCM, para. 10 42 and Figure 10 3 318
point of each island lies no more than 24 nautical miles from the
mainland coastline,623 and that the DOALOS, in its 1989 study,
observed that:
“The spirit of article 7, in respect of (…) fringing
islands, will be preserved if straight baselines are
drawn when the normal baseline and closing lines of
bays and rivers would produce a complex pattern of
territorial seas and when those complexities can be
eliminated by the use of a system of straight
baselines It is not the purpose of straight baselines
to increase the territorial sea unduly”.624
6 50 But that is precisely the result that is produced by
Nicaragua’s attempt to posit a fringe of islands in the immediate
vicinity of its coast where such a fringe does not exist 625
623 International Law Association, Baselines under the International
Law of the Sea, Final Report (2018), para. 21, available at http://www.ilahq.
org/images/ILA/DraftReports/DraftReport_Baselines.pdf (last visited: 1
November 2018)
624 DOALOS, The Law of the Sea – Baselines: An examination of the
Relevant Provisions of the United Nations Convention on the Law of the Sea,
p. 21, para. 39, available at: http://www.un.org/depts/los/
doalos_publications/publicationstexts/The%20Law%20of%20the%20Sea_Ba
selines pdf (last visited: 1 November 2018). (Emphasis added).
625 Nicaragua tries to minimize the extent of its claim by stating that
“81% of the internal waters that are enclosed by [its] straight baselines
already formed part of [its] territorial sea measured from the low-water line”
(NR, para. 7.51 and Figure 7.9). But this just highlights the problem. By its
newly enacted straight baselines, Nicaragua transforms large areas of what
previously formed part of the territorial sea into internal waters, and areas
that previously were part of the EEZ into territorial sea.
319
(iii)The lastsegment of the claimed straight baselines is inconsistentwith Nicaragua’s justification for the use of straight baselines in the relevant area6 51Nicaragua justifies the southernmost segment of its straight baselines system with the second criterion for drawing straight baselinesreflected in UNCLOS, Article 7(1)–namely,the presence of a coastline that is deeply indented and cut into 6 52In particular, Nicaragua contends that:“the straight baseline between basepoints 8 and 9 defined by Decree No 33-2013runssoutherly from a basepoint on Great Corn Island to the mainland coast of Nicaragua That straight baseline does not only enclose the islands that fringe Nicaragua’s mainland in that area, but in addition encloses the deeply indented and cut-into coast between Monkey Point and the terminus of the land boundary with Costa Rica.”626This is manifestly not the case A mere glance at the map reveals that the mainland coast lying behind the straight baseline segment between Great Corn Island and Harbour Pointis not “deeply indented and cut into” 627Geography being what it is, Nicaragua cannot demonstrate the contrary 626NR, para. 7.18.627Harbour Point is the southernmost of the basepoints posited in Decree No 33-2013, which Nicaragua announced in its Reply it will amend following the Court’s Judgment in the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua)case that determined the terminus of its land boundary with Costa Rica 320
6 53 In sum, Nicaragua’s Decree drawing straight baselines is
not in conformity with international law Nicaragua’s straight
baselines simply do not satisfy the geographical conditions
imposed by customary or conventional international law
(2) THE ABSENCE OF A SUFFICIENTLY CLOSE LINK BETWEEN THE
SEA AREAS ENCLOSED AND THE LAND DOMAIN
6 54 Nicaragua’s Decree No 33-2013 draws segments of
straight baseline of 44 nautical miles (between basepoints 6
and 7), 75 nautical miles (between basepoints 4 and 5), and as
much as 85 nautical miles (between basepoints 8 and 9) The
resulting baselines lie at certain points some 30 nautical miles
off Nicaragua’s mainland coast and enclose 21,500 square
kilometres of water now claimed as internal waters – i e twothirds
the size of Belgium, larger than Slovenia, twice the size of
Lebanon or Jamaica, and almost ten times the size of
Luxembourg These large expanses of waters are obviously not
“closely linked to the land domain”.628
6 55 Nicaragua refers in its Reply to the 1989 baselines study of
the DOALOS, and submits that no mathematical test has been
developed in State practice to assess straight baselines as regards
the link to the land domain required by the rule reflected in
UNCLOS Article 7(3) 629
628 CCM, para. 10.48.
629 NR, para. 7.49.
321
6 56This misses the point. The question is not whether a mathematical test applies Rather, itis whether a straight baselines system leads to a reasonable result, by enclosing as internal waters only parts of the sea that can be legitimately seen as closely linked tothe land domain. On this question, as rightly said by Fitzmaurice, the dominant consideration isthat the waters enclosed really partake of the character of territory, so that it should be reasonable to treat them as internal waters 630Thus, the length of the baselines,631their distance from the mainland coast, and the surface of water enclosed within such system are obviously relevant, since they objectively reflect whether there is a close connection between the coast and the waters concerned 6 57Nicaragua also argues that its newlydesignated internal waters are in a “fairly close proximity” with itscoast, because “a large part of [these internal waters] is studded with the numerous islands and cays that fringe Nicaragua’s Caribbean mainland coast”.632Notwithstanding the fact that Nicaragua does not substantiate this argument in order todemonstrate that these features are linkedwith the mainland coast through the sea areas enclosed, it concedes that it concerns only limited parts of the sea area, and that “the remaining parts” are not concerned.633But it 630G. Fitzmaurice, “The Law and Procedure of the International Court of Justice”, British Yearbook of International Law, Vol. 31, 1954, p. 407 (available at the Peace Palace Library) 631G. Fitzmaurice, “The Law and Procedure of the International Court of Justice”, British Yearbook of International Law, Vol. 31, 1954, p. 409 (available at the Peace Palace Library) 632NR, para. 7.52.633NR, para. 7.52.322
suffices to observe that those “remaining parts” can by no means
be considered internal waters to conclude that Nicaragua’s system
of straight baselines is inconsistent with international law These
baselines exceed “the bounds of what is moderate and
reasonable”, as the Court characterized the “overarching” standard
of compliance in this matter 634
C. Conclusions
6 58 In conclusion, for all of the reasons set out above,
Nicaragua’s newly enacted system of straight baselines does not
comport with international law and prejudices Colombia
6 59 While Nicaragua claims in Decree No 33-2013 that it has
a deeply indented and cut into coastline, and that there is a fringe
of islands along its coast and its immediate vicinity, it has not met
the burden of proof as to these requirements for the drawing of
straight baselines. In fact, the Caribbean coast of Nicaragua is far
from being deeply indented and the scarce insular features referred
to by Nicaragua do not constitute a fringe of islands to justify the
drawing of straight baselines As a result, Nicaragua is attempting
to misappropriate significant maritime areas as its internal waters,
artificially expanding its territorial sea belt and limiting the rights
of third States in the Caribbean
634 Fisheries case, Judgment of December 18th, 1951: I.C.J. Reports
1951, p. 142.
323
324
Chapter 7
SUMMARY
A. Nicaraguaʼs Claims
7 1 Nicaragua alleges that Colombia violated its sovereign
rights and maritime spaces in four ways:
• By interfering with Nicaraguan fishing boats and naval
vessels in its EEZ through a series of so-called
“incidents” involving alleged acts of Colombian naval
vessels and aircraft;
• By licensing oil exploration blocks in parts of
Nicaragua’s EEZ;
• By licensing fishing boats to operate in Nicaragua’s
EEZ; and
• By establishing a contiguous zone which overlaps in
places with Nicaragua’s EEZ, and which provides for
jurisdictional powers and a spatial extent that goes
beyond what is permitted under international law
7 2 Colombia has demonstrated in this Rejoinder that none
of these allegations is factually or legally sustainable
325
7 3The parties agree that, under customary international law, Colombia enjoys the freedomsof navigation and overflight, and other internationally lawful uses of the sea related to these freedoms. In an effort to deny Colombia these rights, however, Nicaragua conceives of its EEZ as equivalent to a territorial sea, with Colombia only enjoying rightof passage to proceed from one point to another. This is flatly contrary to international law, which places no such limitations on Colombia’s, or for that matter, any other Stateʼsrights 7 4Nicaragua, on the other hand, only enjoys sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources within its EEZ, togetherwithother limited jurisdictional powers that are not relevant to this case None of Colombia’s actions have undermined the actual rights of Nicaragua as part of the EEZ regime, as is evidenced by the dramatic increase of Nicaraguan fishing in its EEZ since the 2012 Judgment.7 5For its part, Colombia has shown that it has legitimate reasons to be present in the Southwestern Caribbean Sea, including within Nicaragua’s EEZ, provided that it has due regard for Nicaragua’s sovereign rights 7 6Colombia is fully entitled to be on the watch for illegal activities,such as drug trafficking, andenvironmentallydestructive fishing practices that risk damaging the fragile 326
ecosystem of the region and the healthy environment of the
inhabitants of the San Andrés Archipelago, including the
Raizales It is also entitled (and bound) to provide assistance to
fishing boats in the area when needed
7 7 With respect to the “incidents” that Nicaragua claims
constituted a breach of its sovereign rights, the Court ruled in
2016 that it has no jurisdiction to consider claims based on the
alleged threat to use force. Moreover, of the “incidents” which
Nicaragua accuses Colombia of having caused in its EEZ, only
13 are purported to have occurred before the critical date when
the Pact of Bogotá ceased to be in force between Nicaragua and
Colombia The Court has no jurisdiction to consider post-critical
date events With respect to the alleged incidents which could
fall within the Court’s jurisdiction, Colombia has demonstrated
that some of them simply did not occur and none could possibly
constitute a violation of Nicaragua’s sovereign rights, as indeed
affirmed by contemporaneous acts and statements of Nicaraguan
officials who stressed that Colombia’s Navy had been respectful
and that there had been no incidents following the rendering of
the 2012 Judgment
7 8 With respect to the allegation that Colombia has offered
hydrocarbon blocks in areas within Nicaragua’s EEZ, the claim
is both inadmissible, having not formed part of the subjectmatter
of the dispute set out in Nicaragua’s Application, and
baseless as a matter of fact Colombia has simply not offered
any blocks situated within Nicaragua’s EEZ for exploration or
327
exploitation. Nor has Colombia issued authorisations to fish in Nicaragua’s EEZ. Nicaragua’s allegations of the issuance of fishing licenses and authorisations has been demonstrated to be based on a distorted reading of the relevant Colombian regulations and without foundation The resolutions of the Governorship of the Archipelago Department ofSan Andrés, Providencia and Santa Catalina simply do not authorize fishing activities in Nicaragua’s EEZ.7 9Thereare, in short, no incidents which undermined or violated Nicaragua’s EEZ rights and jurisdiction. It follows that Nicaragua’s submissions on these claims must be rejected 7 10Withrespect to Colombia’scontiguous zone, Decree No 1946(as amended) established the integral contiguous zoneof the Colombian island territories in the Southwestern Caribbean Sea in accordance with Colombia’s rights under customary international law. Indeed, the Decree itself states expressis verbisthat it is intended to be interpreted and applied in full conformity with customary international law As Colombia established in the Counter-Memorial and in this Rejoinder, under customary international law, the contiguous zone of one State may lawfully overlap and co-exist with another State’s EEZ. There is no inherent conflict between the limited jurisdictional powers of one State within its contiguous zone and the sovereign rights and jurisdiction of another State as part of its EEZ entitlement 328
7 11 None of the powers in the Decree exceeds those which
Colombia is entitled to exercise under customary international
law as part of the contiguous zone regime Wholly apart from
the question of the lawfulness of the Colombia’s contiguous
zone, a State may exercise the residual freedoms of navigation
and overflight, and other internationally lawful uses of the sea
related to these freedoms, within another State’s EEZ which do
not interfere with the specified and limited exclusive economic
rights of the other State. Accordingly, all the jurisdictional
powers provided for in Decree No 1946 (as amended) are
lawful exercises of the freedoms of navigation and overflight,
and other internationally lawful uses of the sea, by a State
(Colombia) within another State’s EEZ (Nicaragua’s). In sum,
customary international law does not bar Colombia’s contiguous
zone from co-existing with Nicaragua’s EEZ where they
overlap; nor does it preclude Colombia from exercising the
freedoms of navigation and overflight, and other internationally
lawful uses of the sea, within Nicaragua’s EEZ.
7 12 As to the profile of the zone, the simplification of the
outer limit of the Colombian contiguous zone in the
Southwestern Caribbean Sea is dictated by the geographical
facts and is justified in law The contiguous zones of Colombia’s
islands meet and overlap; each of the islands is less than 48
nautical miles from the nearest island The simplification of the
contiguous zone around the Colombian island territories through
the use of geodetic lines is grounded upon the same rationale
which led the Court to simplify the delimitation line in respect
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of the same islands in the 2012 Judgment. In any event, Colombia’s contiguous zone does not, in terms, encroach upon any of Nicaragua’s sovereign rights in its EEZ. Under customary international law, the mere enactment of Decree No 1946(as amended) does not, in itself, constitute a violation of Nicaragua’s rights. Moreover, Nicaragua cannot point to any action taken by Colombia within its contiguous zone that has in any way interfered with the exercise by Nicaragua of its sovereign rights within its EEZ.B.Colombiaʼs Counter-claims7 13Colombia’s first counter-claimconcerns Nicaragua’s violation of the traditional fishing rights of theinhabitants of theSan Andrés Archipelago, including the Raizales Colombia has demonstrated that the inhabitants of the Archipelago, in particular the Raizales, have traditionally engaged in artisanal fishing in maritime areas that have been held to appertain to Nicaragua, as well as in Colombian areas that require navigating through waters of the NicaraguanEEZ. While Nicaragua, contrary to the public and explicit commitment taken by its President, has denied in these proceedings the existence of these recognized fishing rights, it has failed to identify a single precedent, which in either its operativepart or its essential reasoning, stated that non-exclusive traditional fishing rights are extinguished by operation of law in the EEZ Nicaragua’s failure is understandable, since there is no rational explanation as to why traditional fishing rights, which are otherwise recognized as 330
being capable of existing in the territorial sea, should be deemed
to be extinguished, by operation of law, in the EEZ
7 14 Apart from Nicaragua’s misreading of UNCLOS and
relevant customary international law, Colombia has shown that
the parties to this case expressly and repeatedly recognized these
traditional fishing rights and are precluded from now denying
them. Despite that recognition and the clear law on the matter,
the Nicaraguan Naval Force has repeatedly bullied the artisanal
fishermen of the Archipelago, impeding them from reaching
their traditional banks and lawfully plying their vocation there
This has had a chilling effect in the ability of the local
inhabitants to enjoy their traditional fishing rights
7 15 By means of this counter-claim, Colombia respectfully
requests the Court to find that Nicaragua has infringed the
traditional fishing rights of the inhabitants of the San Andrés
Archipelago, in particular the Raizales Colombia also asks the
Court to rule that Nicaragua is under an obligation to ensure that
the inhabitants of the San Andrés Archipelago, including the
Raizales, enjoy unfettered access to: a) the traditional fishing
banks located in the maritime areas adjudicated to appertain to
Nicaragua; and b) the banks located in the Colombian maritime
areas, access to which requires navigating through the maritime
areas adjudicated to appertain to Nicaragua With regard to
compensation of the assessable damage, including loss of profit,
its form and amount should be determined at a later phase of the
proceedings, following established practice.
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7 16Colombia’s second counter-claim challenges the legality under international law of Nicaragua’s DecreeNo 33-2013establishing straight baselines for the measurement of Nicaragua’s maritime areas in the Caribbean Colombia has shown that this Decree breaches Nicaragua’s customary and conventional international obligations and directly violates Colombia’s rights and entitlements in the Caribbean In addition to these violations of the principles of international law governing the drawing of straight baselines, Colombia has also shown that the configuration of Nicaragua’s islands off its Caribbean coast does not justify the use of straight baselines Nor can Nicaragua demonstrate that its basepoints are posited on islands constituting the requisite “fringe of islands along the coast in its immediate vicinity”. In addition, the islands, as a whole, cannot be regarded as forming a unity with the mainland, another criterion for the drawing of straight baselines that Nicaragua fails to comply with 332
SUBMISSIONS
I For the reasons stated in its Counter-Memorial and
Rejoinder, the Republic of Colombia respectfully requests the
Court to reject each of the submissions of the Republic of
Nicaragua, and to adjudge and declare that
1 Colombia has not in any manner violated
Nicaragua’s sovereign rights or maritime spaces
in the Southwestern Caribbean Sea
2 Colombia’s Decree No 1946 of 9 September
2013 (as amended by Decree No 1119 of 17 June
2014) has not given rise to any violation of
Nicaragua’s sovereign rights or maritime spaces
a There is nothing in international law that
precludes the contiguous zone of one State
from overlapping with the exclusive
economic zone of another State;
b The geodetic lines established in the
Decree connecting the outermost points of
Colombia’s contiguous zone do not
violate international law;
c The specific powers concerning the
contiguous zone enumerated in the Decree
do not violate international law;
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d No Colombian action in the contiguous zone has given rise to any violation of Nicaragua’s sovereign rights or maritime spaces II Further, the Republic of Colombia respectfully requests the Court to adjudge and declare that3 The inhabitants of the San Andrés Archipelago, in particular the Raizales, enjoy traditional fishing rights in maritime areas adjudicated to appertain to Nicaragua 4 Nicaragua has violated the traditional fishing rights of the inhabitants of the San AndrésArchipelago 5 Nicaragua’s straight baselines established in Decree No 33-2013 of 19 August 2013 are contrary to international law and violate Colombia’s sovereign rights and maritime spaces III The Court is further requested to order Nicaragua6 With regard to submissions 3 and 4, to ensure that the inhabitants of the San Andrés Archipelago engaged in traditional fishing enjoy unfettered access to:334
a Their traditional fishing banks located in the
maritime areas adjudicated to appertain to
Nicaragua;
b The banks located in Colombian maritime
areas, access to which requires navigating
through the maritime areas adjudicated to
appertain to Nicaragua
7 To compensate Colombia for all damages caused,
including loss of profits, resulting from
Nicaragua’s violations of its international
obligations, with the amount and form of
compensation to be determined at a subsequent
phase of the proceedings
8 To give Colombia appropriate guarantees of nonrepetition
CARLOS GUSTAVO ARRIETA PADILLA
Agent of Colombia
The Hague, 15 November 2018
335
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TABLE OF CONTENTS
VOLUME II
Appendix
Appendix Colombia’s Response to the Post-Critical Date Events in Nicaragua’s Memorial and Reply 1
Annexes
1.
Statements by Nicaraguan Authorities
Annex 1 Message from President Daniel Ortega to the People of Nicaragua, 26 November 2012 79
Annex 2 Speeches at the 33rd Anniversary of the Nicaraguan Naval Force, 13 August 2013 83
Annex 3 Speeches at the 34th Anniversary of the Nicaraguan Air Force, 31 July 2013 87
Annex 4 Speeches at the 35th Anniversary of the Nicaraguan Air Force, 31 July 2014 93
Annex 5 Speeches at the 35th Anniversary of the Nicaraguan Naval Force, 19 August 2015 97
Annex 6 Speeches at the 79th Anniversary of General Augusto C. Sandino’s Transit to Immortality, 21 February 2013 103
Annex 7 Speeches at the 81st Anniversary of General Augusto C. Sandino’s Transit to Immortality, 21 February 2015 109
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2.
Nicaraguan Official Documents
Annex 8 National Institute of Development Information of Nicaragua (INIDE), Statistical Yearbook for 2011 113
Annex 9 National Institute of Development Information of Nicaragua (INIDE), Statistical Yearbook for 2012 119
Annex 10 National Institute of Development Information of Nicaragua (INIDE), Statistical Yearbook for 2013 125
Annex 11 National Institute of Development Information of Nicaragua (INIDE), Statistical Yearbook for 2014 131
Annex 12 National Institute of Development Information of Nicaragua (INIDE), Statistical Yearbook for 2015 137
Annex 13 National Institute of Development Information of Nicaragua (INIDE), Statistical Yearbook for 2016 143
Annex 14 Nicaraguan Institute for Fishing and Aquaculture (INPESCA), Fishing and Aquaculture Yearbook for 2014 149
Annex 15 Nicaraguan Institute for Fishing and Aquaculture (INPESCA), Fishing and Aquaculture Yearbook for 2015 153
Annex 16 Nicaraguan Institute for Fishing and Aquaculture (INPESCA), Fishing Resources Data Sheets for 2016 161
3.
Colombian Official Documents
Annex 17 Ministry of Agriculture, Decree No. 2256, 4 October 1991 173
Annex 18 Archipelago Department of San Andrés, Providencia and Santa Catalina, Resolution No. 2479, 13 June 2006 179
Annex 19 Archipelago Department of San Andrés, Providencia and Santa Catalina, Resolution No. 20, 13 November 2009 185
338
Annex 20 Administrative Tribunal of San Andrés, Providencia and Santa Catalina, Judgment on Case No. 88-001-23-31-003-2011-00011-00 filed by the Corporation for the Sustainable Development of San Andrés, Providencia and Santa Catalina (CORALINA) against the National Agency of Hydrocarbons (ANH), 4 June 2012 191
Annex 21 Department for Social Prosperity, Resolution No. 02117, 21 December 2012 195
Annex 22 Archipelago Department of San Andrés, Providencia and Santa Catalina, List of Beneficiaries of the Artisanal Fishermen Subsidy in San Andrés, 9 April 2013 203
Annex 23 Archipelago Department of San Andrés, Providencia and Santa Catalina, List of Beneficiaries of the Artisanal Fishermen Subsidy in Providencia, 9 April 2013 217
Annex 24 Ministry of Labour, Note to the ILO in relation to the application by Colombia of Convention No. 169, 2 September 2013 223
4.
Diplomatic Notes
Annex 25 Note Verbale No. S-DVAM-16-010292 from the Ministry of Foreign Affairs of Colombia to the Ministry of Foreign Affairs of Nicaragua, 1 February 2016 249
5.
Colombian Navy Documents
Annex 26 National Navy of Colombia, Maritime Travel Report, A.R.C. “Independiente”, 2 January 2014 253
Annex 27 National Navy of Colombia, Maritime Travel Report, A.R.C. “Independiente”, 6 and 7 January 2014 257
Annex 28 National Navy of Colombia, Maritime Travel Report, A.R.C. “Independiente”, 27 January 2014 261
339
Annex 29 National Navy of Colombia, Communication No.009-MDN-CGFM-CARMA-SECAR-JONA-CFNC- CCESYP-N3CESYP, 28 January 2014 265
Annex 30 National Navy of Colombia, Maritime Travel Report, A.R.C. “Independiente”, 29 January 2014 271
Annex 31 National Navy of Colombia, Maritime Travel Report, A.R.C. “Independiente”, 1 February 2014 275
Annex 32 National Navy of Colombia, Maritime Travel Report, A.R.C. “20 de Julio”, 2 February 2014 279
Annex 33 National Navy of Colombia, Maritime Travel Report, A.R.C. “20 de Julio”, 5 February 2014 283
Annex 34 National Navy of Colombia, Maritime Travel Report, A.R.C. “20 de Julio”, 6 February 2014 287
Annex 35 National Navy of Colombia, Maritime Travel Report, A.R.C. “Almirante Padilla”, 3 March 2014 291
Annex 36 National Navy of Colombia, Communication No. 024 MD-CGFM-CARMA-SECAR-JONA-CFNC-CFSUCA-JDOMK-29.60, 13 March 2014 295
Annex 37 National Navy of Colombia, Communication No. 024 MD-CGFM-CARMA-SECAR-JONA-CFNC-CCESYP -N3CESYP, 7 April 2014 313
Annex 38 National Navy of Colombia, Navigation Log, A.R.C. “20 de Julio”, 8 May 2014 317
Annex 39 National Navy of Colombia, Communication No. 021 MD-CGFM-CARMA-SECAR-JONA-CFNC-CFSUCA-C5KMM-29, 22 July 2014 321
Annex 40 General Maritime Direction, Sailing Record, Lucky Lady, 17 February 2015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .333
340
Annex 41 National Navy of Colombia, Maritime Travel Report, A.R.C. “San Andrés”, 7 April 2015 337
Annex 42 National Navy of Colombia, Maritime Travel Report, A.R.C. “Punta Espada”, 10 May 2015 341
Annex 43 National Navy of Colombia, Maritime Travel Report, A.R.C. “Almirante Padilla”, 21 August 2016 345
Annex 44 General Maritime Direction, Sailing Record, Capt. Geovanie, 5 November 2016 349
Annex 45 National Navy of Colombia, Centre for Oceanographic and Hydrographical Research (CIOH), Monthly Meteomarine Bulletin of the Colombian Caribbean, No. 49,January 2017 353
6.
Media Reports
Annex 46 El Universal, Navy seizes near one hundred kilograms of cocaine in merchant ship, 19 April 2011 357
Annex 47 El Nuevo Siglo, Colombia and Canada in anti-drug activities, 20 March 2012 361
Annex 48 La Nación, Two Costa Rican and two Nicaraguan are captured in a speedboat full of marihuana, 17 July 2012 365
Annex 49 El Heraldo, Navy seizes a ton of cocaine in San Andrés Island, 11 September 2012 371
Annex 50 El Universal, Drug seized in the Caribbean Sea,
23 October 2012 375
Annex 51 El 19 Digital, Army: Nicaragua firmly and prudently exercises its sovereignty, 27 November 2012 379
Annex 52 El Universal, Drug is confiscated in the Caribbean Sea, two foreigners get captured, 21 March 2013 383
341
Annex 53 Caracol Radio, The Navy seized 900 kilograms of cocaine in San Andrés, 7 March 2013 387
Annex 54 El Universal, San Andres’ largest fishery is shutting down, 19 May 2013 391
Annex 55 El Isleño, Chamber of Commerce regrets the closure of Antillana, 23 May 2013 395
Annex 56 El Universal, Cocaine is found in speedboat near the island of Providencia, 12 August 2013 399
Annex 57 Radio Nacional de Colombia, ICJ ruling jeopardizes industrial fishing in San Andrés, 13 August 2013 403
Annex 58 The Archipelago Press, National Navy intercepts motorboat with cocaine offshore, 25 September 2013 409
Annex 59 National Navy, Cocaine is seized during a joint operation in San Andrés, 31 October 2013 413
Annex 60 El Espectador, Drug traffickers and the Caribbean route, 31 March 2014 417
Annex 61 El País, San Andrés is a strategic crossing for drug trafficking: Commander of the island, 14 February 2014 423
Annex 62 Semana, More than half a ton of cocaine is confiscated, 10 November 2014 429
Annex 63 La Prensa, El Niño dried fishing, 9 October 2015 433
Annex 64 La Prensa, Daniel Ortega did not present results,
22 February 2017 437
Annex 65 El Nuevo Diario, Congressmen repeal “patriotic tariff”, 8 March 2017 441
Annex 66 Diálogo, Operation Amphitrite traverses the seas of Colombia and Panama, 18 January 2018 445
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7.
Other Documents
Annex 67 General Confederation of Labour, Submission of complaint on behalf of the General Confederation of Labour and the cooperatives and associations of artisanal fishermen and Raizal groups of the Archipelago of San Andrés, Providencia and Santa Catalina against the Colombian State, 18 February 2013 453
Annex 68 General Confederation of Labour, Submission of complaint relating to the breach of Convention No. 169 by the Colombian State, 10 February 2014 457
Annex 69 Inter-American Court of Human Rights, Environment and Human Rights, Advisory Opinion OC-23/17
requested by the Republic of Colombia, 15 November 2017 465
Annex 70 Ministry of Foreign Affairs of Colombia, Sample Maritime Drug Interdiction Operations before and after the filing of Nicaragua’s Application. 469
Annex 71 Ministry of Foreign Affairs of Colombia, Report on Nicaraguan Fishing Statistics in the Caribbean Sea 475
Annex 72 Kingdom of Spain, Ministry of Defence, Law of the Sea Manual, Volume 1, 27 May 2015 493
8.
Photographic Material
Annex 73 Photographic Material, Event “Captain Maddox”, 1 February 2014 497
Annex 74 Photographic Material, Event “Dora María”, 2 February 2014. 505
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Figures, Graphics and Tables
Figures in Chapter 2
CR 2.1 Maps on the world’s maritime search and rescue regions (Central America and Southwestern Caribbean Sea) 515
CR 2.1a Maps on the world’s maritime search and rescue regions (Excerpt of Central America and Southwestern Caribbean Sea) 516
Figures in Chapter 4
CR 4.1 Areas of Colombia’s ICZ lying beyond 24 M and within Nicaragua’s EEZ 517
CR 4.2 The impractical and unmanageable contours of the 24 M arcs around Colombia’s islands 518
CR 4.3 The simplification of Colombia’s CZ through the use of geodetic lines 519
CR 4.4 Figure 7.9 of Nicaragua’s Reply: Nicaragua’s straight baselines showing areas of internal waters more than 12 M from the low water line 520
Figures in Chapter 6
CR 6.1 Nicaragua’s extension of its maritime claims 521
CR 6.2 Nicaragua’s selected “islands” for its straight baselines 522
CR 6.2a Excerpt of NGA Chart 28130 523
CR 6.2b Excerpt composite of NGA Charts 28110 & 28120 524
CR 6.3 Main distances between Nicaragua’s basepoints 525
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Graphics
CR 1 Reported Landing of Major Fishery Resources by Nicaragua in the Caribbean Sea 2011-2016 (by Species) 526
CR 2 Nicaraguan Annual Fishing Trip Days and Alleged “Incidents” in the Caribbean Sea Involving Nicaraguan Fishing Ships 527
Table
CR 1 Annex I of Nicaragua’s decree No. 33-2013 of 19 August 2013 528
345