Uncorrected
Non corrigé
CR 2012/17
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2012
Public sitting
held on Friday 4 May 2012, at 3.10 p.m., at the Peace Palace,
President Tomka presiding,
in the case concerning the Territorial and Maritime Dispute
(Nicaragua v. Colombia)
____________________
VERBATIM RECORD
____________________
ANNÉE 2012
Audience publique
tenue le vendredi 4 mai 2012, à 15 h 10, au Palais de la Paix,
sous la présidence de M. Tomka, président,
en l’affaire du Différend territorial et maritime
(Nicaragua c. Colombie)
________________
COMPTE RENDU
________________ - 2 -
Present: Presient ka
Vice-Presipeúnltveda-Amor
Judges Owada
Abraham
Keith
Bennouna
Skotnikov
Cançado Trindade
Greenwood
Xue
Donoghue
Sebutinde
Judges ad hoc Mensah
Cot
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : M. Tomka,président
SepMúl.vvae-poé,ident
OwMada.
Abraham
Keith
Bennouna
Skotnikov
Crinçade
Greenwood
XuMe mes
Donoghue
Sebgutisnde,
MeMnsah.
jugesCot, ad hoc
Cgefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of Nicaragua is represented by:
H.E. Mr. Carlos José Argüello Gómez, Ambassador of the Republic of Nicaragua to the Kingdom
of the Netherlands,
as Agent and Counsel;
Mr. Vaughan Lowe, Q.C., Chichele Professor of Inte rnational Law, University of Oxford, Counsel
and Advocate,
MrA. lexOudeElferink, Deputy-Director, Netherlands Institute for the Law of the Sea,
Utrecht University,
Mr.AlainPellet, Professor at the University Pa risOuest, Nanterre-La Défense, former Member
and former Chairman of the International Law Commission, associate member of the Institut de
droit international,
Mr.PaulReichler, Attorney-at-Law, Foley Hoag LLP, Washington D.C., Member of the Bars of
the United States Supreme Court and the District of Columbia,
Mr.AntonioRemiroBrotóns, Professor of International Law, Universidad Autónoma, Madrid,
member of the Institut de droit international,
as Counsel and Advocates;
Mr.RobinCleverly, M.A., DPhil, C.Geol, F.G.S., Law of the Sea Consultant, Admiralty
Consultancy Services, The United Kingdom Hydrographic Office,
Mr.JohnBrown, R.D., M.A., F.R.I.N., F.R.G.S., Law of the Sea Consultant, Admiralty
Consultancy Services, The United Kingdom Hydrographic Office,
as Scientific and Technical Advisers;
Mr. César Vega Masís, Director of Juridical Affairs, Sovereignty and Territory, Ministry of
Foreign Affairs,
Mr. Walner Molina Pérez, Juridical Adviser, Ministry of Foreign Affairs,
Mr. Julio César Saborio, Juridical Adviser, Ministry of Foreign Affai
rs,
Ms Tania Elena Pacheco Blandino, Juridical Adviser, Ministry of Foreign Affairs,
Mr.Lawrence H. Martin, Foley Hoag LLP, Washi ngton D.C., Member of the Bars of the United
States Supreme Court, the District of Columbia and the Commonwealth of Masschusetts,
MsCarmen Martínez Capdevila, Doctor of Public International Law, Universidad Autónoma,
Madrid,
as Counsel; - 5 -
Le Gouvernement du Nicaragua est représenté par :
S. Exc. M. Carlos José Argüello Gómez, ambassadeur de la République du Nicaragua auprès du
Royaume des Pays-Bas,
comme agent et conseil ;
M.VaughanLowe, Q.C., professeur de droit interna tional à l’Université d’Oxford, titulaire de la
chaire Chichele, conseil et avocat,
M. Alex Oude Elferink, directeur adjoint de l’Ins titut néerlandais du droit de la mer de l’Université
d’Utrecht,
M.AlainPellet, professeur à l’Université de Pari sOuest, Nanterre-La Défense, ancien membre et
ancien président de la Commission du droit inte rnational, membre associé de l’Institut de droit
international,
M. Paul Reichler, avocat au cabinet Foley Hoag LLP, Washington D.C. , membre des barreaux de
la Cour suprême des Etats-Unis d’Amérique et du district de Columbia,
M.AntonioRemiroBrotóns, professeur de droi t international à l’Universidad Autónoma de
Madrid, membre de l’Institut de droit international,
comme conseils et avocats ;
M.RobinCleverly, M.A., D.Phil, C.Geol, F.G.S., consultant en droit de la mer, Admiralty
Consultancy Services du bureau hydrographique du Royaume-Uni,
M.JohnBrown, R.D., M.A., F.R.I.N., F.R.G.S., consultant en droit de la mer, Admiralty
Consultancy Services du bureau hydrographique du Royaume-Uni,
comme conseillers scientifiques et techniques ;
M. César Vega Masís, directeur des affaires juridiques, de la souveraineté et du territoire au
ministère des affaires étrangères,
M. Walner Molina Pérez, conseiller juridique au ministère des affaires étrangères,
M. Julio César Saborio, conseiller juridique au ministère des affaires étrangères,
Mme Tania Elena Pacheco Blandino, conseiller juridique au ministère des affaires étrangères,
M.Lawrence H. Martin, cabinet Foley Hoag LLP, Washington D.C., membre des barreaux de la
Cour suprême des Etats-Unis d’Amérique, du district de Columbia et du Commonwealth du
Massachusetts,
Mme Carmen Martínez Capdevila, docteur en droit international public de l’Universidad
Autónoma de Madrid,
comme conseils ; - 6 -
Mr.Edgardo Sobenes Obregon, First Secretary, Embassy of Nicaragua in the Kingdom of the
Netherlands,
MsClaudia Loza Obregon, Second Secretary, Embassy of Nicaragua in the Kingdom of the
Netherlands,
Mr.Romain Piéri, Researcher, Centre for Inte rnational Law (CEDIN), University Paris Ouest,
Nanterre-La Défense,
Mr. Yuri Parkhomenko, Foley Hoag LLP, United States of America,
as Assistant Counsel;
Ms Helena Patton, The United Kingdom Hydrographic Office,
Ms Fiona Bloor, The United Kingdom Hydrographic Office,
as Technical Assistants.
The Government of Colombia is represented by:
H.E. Mr. Julio Londoño Paredes, Professor of In ternational Relations, Universidad del Rosario,
Bogotá,
as Agent and Counsel;
H.E. Mr. Guillermo Fernández de Soto, member of the Permanent Court of Arbitration, former
Minister for Foreign Affairs,
as Co-Agent;
Mr. James Crawford, S.C., F.B.A., Whewell Prof essor of International Law, University of
Cambridge, member of the Institut de droit international, Barrister,
Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris , member of the New York Bar,
Eversheds LLP, Paris,
Mr. Marcelo Kohen, Professor of International Law at the Graduate Institute of International and
Development Studies, Geneva, associate member of the Institut de droit international,
as Counsel and Advocates;
H.E. Mr. Eduardo Pizarro Leongómez, Ambassador of the Republic of Colombia to the Kingdom
of the Netherlands, Permanent Representative of Colombia to the OPCW,
as Adviser;
H.E. Mr. Francisco José Lloreda Mera, Preside ntial High-Commissioner for Citizenry Security,
former Ambassador of the Republic of Colombia to the Kingdom of the Netherlands, former
Minister of State,
Mr. Eduardo Valencia-Ospina, member of the International Law Commission, - 7 -
M. Edgardo Sobenes Obregon, premier secrétaire de l’ambassade du Nicaragua au Royaume des
Pays-Bas,
MmeClaudia Loza Obregon, deuxième secrétaire de l’ambassade du Nicaragua au Royaume des
Pays-Bas,
M.Romain Piéri, chercheur au centre de droi t international (CEDIN) de l’Université de
Paris Ouest, Nanterre-La Défense,
M. Yuri Parkhomenko, cabinet Foley Hoag LLP, Etats-Unis d’Amérique,
comme conseils adjoints ;
Mme Helena Patton, bureau hydrographique du Royaume-Uni,
Mme Fiona Bloor, bureau hydrographique du Royaume-Uni,
comme assistantes techniques.
Le Gouvernement de la Colombie est représenté par :
S. Exc. M. Julio Londoño Paredes, professeur de relations internationales à l’Universidad del
Rosario, Bogotá,
comme agent et conseil ;
S.Exc.M.Guillermo Fernández de Soto, membre de la Cour permanente d’arbitrage, ancien
ministre des affaires étrangères,
comme coagent ;
M.James Crawford, S.C., F.B.A., professeur de dr oit international à l’Université de Cambridge,
titulaire de la chaire Whewell, membre de l’Institut de droit international, avocat,
M.Rodman R.Bundy, avocat à la Cour d’appel de Paris, membre du barreau de NewYork,
Cabinet Eversheds LLP, Paris,
M. Marcelo Kohen, professeur de droit internationa l à l’Institut de hautes études internationales et
du développement de Genève, membre associé de l’Institut de droit international,
comme conseils et avocats ;
S. Exc. M. Eduardo Pizarro Leongómez, ambassadeur de la République de Colombie auprès du
Royaume des Pays-Bas, représentant permanent de la Colombie auprès de l’OIAC,
comme conseiller ;
S. Exc. M. Francisco José Lloreda Mera, haut conseiller présidentiel pour la cohabitation et la
sécurité des citoyens, ancien ambassadeur de la République de Colombie auprès du Royaume
des Pays-Bas, ancien ministre d’Etat,
M. Eduardo Valencia-Ospina, membre de la Commission du droit international, - 8 -
H.E. Ms Sonia Pereira Portilla, Ambassador, Ministry of Foreign Affairs,
Mr. Andelfo García González, Professor of Intern ational Law, former Deputy Minister for Foreign
Affairs,
Ms Mirza Gnecco Plá, Minister-Counsellor, Ministry of Foreign Affairs,
Ms Andrea Jiménez Herrera, Counsellor, Embassy of Colombia in the Kingdom of the
Netherlands,
as Legal Advisers;
CF William Pedroza, International Affairs Bureau, National Navy of Colombia,
Mr. Scott Edmonds, Cartographer, International Mapping,
Mr. Thomas Frogh, Cartographer, International Mapping,
as Technical Advisers;
Mr. Camilo Alberto Gómez Niño,
as Administrative Assistant. - 9 -
S. Exc. Mme Sonia Pereira Portilla, ambassadeur, ministère des affaires étrangères,
M. Andelfo García González, professeur de droit inte rnational, ancien ministre adjoint des affaires
étrangères,
Mme Mirza Gnecco Plá, ministre-conseiller au ministère des affaires étrangères,
Mme Andrea Jiménez Herrera, conseiller à l’ambassade de Colombie au Royaume des Pays-Bas,
comme conseillers juridiques ;
Le capitaine de frégate William Pedroza, bureau des affaires internationales, Marine colombienne,
M. Scott Edmonds, cartographe, International Mapping,
M. Thomas Frogh, cartographe, International Mapping,
comme conseillers techniques ;
M. Camilo Alberto Gómez Niño,
comme assistant administratif. - 10 -
The PRESIDENT: Please be seated. The sitting is open. I invite ProfessorCrawford to
continue his pleading and to make his five points. You have the floor, Sir.
Mr. CRAWFORD:
4. N ICARAGUA ’SEEZ CLAIM (PART 1CONTINUED )
21. (Continued) Well the first of these points, Mr.President, Members of the Court, is that
Mr.Elferink tried to convince you that the purpose of the nautical charts is to show rocks above
tidal datums 1. The real reason for hydrographic surveys, as I have said, is to create charts depicting
hazards to the safety of navigation.
22. Second, he showed a high astronomical tide ⎯ HAT ⎯ of 80cm which is completely
inaccurate for a micro-tidal region such as the Caribb ean Sea. I addressed this matter in my first
presentation last week. In his second presentation Mr. Elferink changed his tone to say “ we were
not criticizing the vertical datum used by Dr. Smith . . . ”2 Instead, he criticized the FES model as
one that is unreliable in shallow waters. He said the peer review paper quoted in my last
intervention supports this point 3. On the contrary; Torres and Tsimplis ⎯ the authors of the
paper ⎯ assess the tidal model against tide gauges placed in shallow waters. “The paper concludes
that there is very good agreement between obser ved and modelled tide, w ith harmonic amplitude
4
differences below 1.5 cm.”
23. Third, in his slide labelled AOE2-16, depicting Providencia, Mr.Elferink argued that
since the “drying reef” symbol was not used on the charts of Quit asueño, then there was no drying
5
reef in the area . What he fails to realize is the diff erence in the scales of the charts used for
Providencia and those used for Quitasueño. Ch art218 has a resolution five times better than
charts630 and631, and ten times better than ch art431; all three charts depicting Quitasueño
CR 2012/14, p. 33, para. 7 (Oude Elferink).
Ibid., p. 39, para. 18 (Oude Elferink).
3
Ibid., p. 39, para. 19 (Oude Elferink).
CR2012/12 p. 42, para. 49 (Crawford).
CR 2012/14, pp. 35-6, para. 11 (Oude Elferink). - 11 -
Bank. The scale of these last nautical charts and the hydrography in the area, it is inadequate to use
the symbol of drying reefs recommended by Mr. Elferink.
24. Fourth, in illustration AOE2-12, Nicaragua showed the symbol of rocks which do not
cover above height datum, which were not used in Colombia’s nauti cal charts of Quitasueño. But,
Nicaragua failed to explain the first of the symbols in Admiralty Chart 5011/INT 1 which appears
at the top of the same slide and corresponds to a danger line.
25. The IHO recognizes that conducting hydrogra phic surveys in coral reef waters such as
Quitasueño is challenging, as supported by the booklet “Regulations of the IHO for International
(INT) Charts and Chart Specifications of the IHO”, which is graphic 6. It appears on the screen. I
will only ready the second of the extracts:
B-420.1 “A danger line, consisting of dots backed by solid blue tint, must be
used to draw the navigator’s attention to a danger which would not stand out clearly
enough if it were represented solely by the symbol of the feature. The danger line
must also be used to delimit areas cont aining numerous dangers, through which it is
unsafe to navigate at the scale of the chart.”
26. These areas correctly appear in the Quitasu eño nautical charts to draw the navigator’s
attention to shallow danger zones. This is the correct symbol to use when hydrographic data comes
from a survey with lines 500metres apart. Again, these guidelines emphasize the purpose of a
hydrographic survey— to provide a product whose purpose is the safety of navigation, not the
giving of evidence.
27. Fifth, Nicaragua criticized Colombia’s use of satellite imagery of Quitasueño. The
image was used in Colombia’s pleadings in an illustrative way to show shallow areas that highlight
the extent of Quitasueño Bank. In the first r ound Mr.Elferink presented the same satellite image
processed using the red and infrared bands. As these bands do not penetrate the water, he
concluded “the satellite image does not indicate that there are any features above water on
6
Quitasueño” . On the contrary, Colombia’s conclusion is that this image is inappropriate to rebut
the existence of features above water. The main reason is that the imag e has a 30-metre spatial
resolution. Spatial resolution refers to the smallest object that can be resolved on the ground and is
6
CR 2012/9, pp. 55-6, para. 43 (Oude Elferink). - 12 -
thus clearly unsuitable in this location. The pr oof of islands on Quitasueño has been forcefully
made in the two Colombian surveys and I will not repeat that.
28. Mr.President, Members of the Court, I should emphasize again that Dr.Smith took a
conservative approach in reaching his conclusions as to whether features on Quitasueño constituted
7
islands . His first conservative step was to use the highest astronomical tide (HAT) with reference
to mean sea level. What this means is that over the course of 19 years of measuring tides the
feature would remain above water at even the highest of tides, which is not required by the
definition in the Conventions. Coastal States when determining their baselines typically use some
predetermined mean level of high tide, but not the highest tide. In the case of Colombia’s
Hydrographic Service, all their charts use MSL datu m to refer to any elevation above the sea. So
Dr. Smith’s approach is very conservative.
29. It may assist to compare the practice of the United States, as shown in public domain
materials. Let me point out just a few items on th is comprehensive graphic. First, note the term
“mean” before the phrases Lower low-water line an d Higher high-water line. Over the course of
19years of measurement NOAA, the official United States charting agency ⎯ which is called
NOAA, apparently, in the business ⎯ has taken the “mean” value, not the lowest, not the highest,
but the mean value. These are levels at which the United States Government considers the baseline
from which to determine its territorial sea (mean lower low water) and the level of high water
(mean higher high water). You will notice there is no mention of low-water springs nor of the
highest astronomical tide.
30. Nicaragua made much of the method by which Colombia determined the heights of the
features on Quitasueño. In fact the process was relatively straightforward. The heights were
measured to the centimetre. Th ese photographs were taken at QS32. When the tidal correction
model was applied to the survey data the results came out to three decimals, i.e., to centimetres.
The accuracy is to the centimetre not to the millimetre. The third decimal value was not relevant to
reaching the conclusions in Dr. Smith’s Report.
7
Smith Report, p. 9 - 13 -
31. Finally, a comment on Nicaragua’s assertion that what was found in the surveys was
merely “coral debris”. This graphic shows so me photos included in Appendix1, Annex6 of
Dr. Smith’s Report. This is not coral debris, but ra ther represents part of a much larger coral reef
firmly attached to the substrate. One does not have to be a technical expert to deduce that
Quitasueño is one of those coral islands that h as formed over centuries by the gradual accretion of
the skeletons of the coral polyp in temperate waters 8.
32. In an attempt to discredit the findings in Dr.Smith’s Report, Mr.Elferink attempted to
discredit both his independence and his expertise. First, let me address the element of his working
9
as an “independent consultant” . Is it the suggestion that Dr.Smith was expected to conduct his
endeavour in a truly solo, independent manner ⎯ to row himself out to the bank, to set up the
survey equipment, to take the measurements, to stay overnight in the small boat and to do the
cooking? Dr.Smith’s Report acknowledges the method of work, including assistance by the
Colombian Navy. But he makes it clear that the conclusions in his report are his alone.
33. Turning now to the attempt to discred it Dr.Smith’s reputation as an expert on the
geographic and technical aspects of the law of the sea, Mr.Elferink relived a question posed to
Dr. Smith during his appearance as a technical expert on behalf of Guyana in the arbitration against
Suriname 10. When asked about the concept of low-wa ter springs Dr. Smith honestly admitted that
he could not define the term. This does not me an that he is not an expert on geographic and
technical matters in the law of the sea. His expe rience, reflected in his résumé, speaks otherwise.
As I have said, the United States does not use this datum in its charting practice.
34. Finally, in Mr.Elferink’s presentati on, Mr.Elferink mentioned the 1983fisheries
11
agreement which included an illustratio n showing a grey box around Quitasueño . He notes that
Dr.Smith was an employee of the State Department at the time. In fact, at the time Dr.Smith’s
office was in a bureau of the department that did not have responsibility for negotiating fishery
agreements. And that, you will be relieved to hear, is all I have to say about Quitasueño.
8CR 2012/14, p.41, para. 21 (Oude El ferink), citing D.W. Bowett, The Legal Regime of Islands in International
Law, Oceana, 1979, pp. 4-5.
9
CR 2012/14, p. 36, para. 12 (Oude Elferink).
10
CR 2012/14, p. 37, para. 12 (Oude Elferink).
11CR 2012/14, p. 35, para. 10 (Oude Elferink). - 14 -
4. N ICARAGUA ’S EEZ CLAIM PART 2)
Relevant coasts
1. I turn to the relevant coasts. In the first round I pointed out that if Nicaragua insisted on
delimiting the whole area of overlapping EEZ claims, including the area to the east of the
archipelago, then it was necessary to take into account the east-facing coasts of Colombia’s islands,
which generate that entitlement, indeed well beyo nd the area of EEZ rights to which Nicaragua’s
coasts are entitled. Thus it was necessary to count both the east-facing and west-facing coasts.
2. Mr.Reichler was unhappy that islands project radially 12. He alluded to this being “less
13
clear in the case law” than I “made it appear” . The “case law” to which he refers is a separate
opinion in Libya/Malta, joined by Judge ad hoc Jiménez de Aréchaga, Judge Ruda and
Judge Bedjaoui. The separate opinion reads as follows, as quoted by Mr. Reichler:
“Such a radial projection may, undoubtedl y, exist in the case of islands in the
open ocean not facing other States’ coasts, but it does not correspond to the practice of
States in enclosed or semi-enclosed seas, where more than two States may advance
14
conflicting claims in respect of a given maritime area.”
The passage immediately discloses a problem in Mr. Reichler’s attempt to qualify the radial effect
of islands. The separate opinion was concerned w ith situations “where more than two States may
advance conflicting claims in respect of a given maritime area.” That is not the case here: there
are only two States which dispute the relevant area, at least as to all of its central parts. The more
serious problem is that the separate opinion was concerned with two particular third States ⎯ Italy
and Greece ⎯ with which Malta’s radial projections would generate overlapping ⎯ and at the time
unsettled ⎯ entitlements. Nicaragua wishes to dismis s as irrelevant the extensive practice of
delimitation in the western Caribbean. But this practice is highly relevant, as we have noted.
Nicaragua’s eagerness to dismiss the practice leads it to ignore why two judges and one
judge ad hoc in Libya/Malta were concerned to qualify the radial effect of islands: in the particular
circumstances of that case, two nearby third States had not reached a settlement of their
entitlements with Malta. This is not the present situation. That potential problem of radial
projection is not present here.
12
CR 2012/14, p. 44, para. 15 (Reichler).
1CR 2012/14, p. 44, para. 15 (Reichler).
1CR 2012/14, p.44 (Reichler), note 120, quotiI.C.J Reports 1985 , p.78, para.5 (joint separate opinion of
Judges Ruda and Bedjaoui and Judge ad hoc Jiménez de Aréchaga). - 15 -
3. Moreover, the part of the projection of the islands which Nicaragua ignored last week is
the part which faces away from Nicaragua. It was Nicaragua’s erroneous exclusion of those coasts
which made its coastal front comparison last week completely misleading.
4. Notwithstanding his quibbles, Mr.Reichler apparently accepted “for the sake of
15
argument” that islands have a potential 200- nautical-mile entitlement in all directions . But he
accepted it for approximately five minutes, that I could tell! He complained that, within the
putative relevant area, Nicaragua would get only 28 percent of the maritime area. He calls this
“the epitome of disproportionality” 16. But “disproportional” to what? To the old coastal ratio
of 21:1. That is to say, after accepting that islands have radial projections, he went on to ignore all
but the west-facing coasts of the islands.
17
5. He accused me of “suddenly chang[ing] Colombia’s position” . But we have done no
such thing. I merely noted that, if Nicaragua’s putative relevant area was the true relevant area,
then a totally different set of coastal front measurements was applicable. But, moreover, we were
meeting Nicaragua’s new case on Nicaragua’s own terms in order to assist the Court: meeting
Nicaragua’s misguided view that coastal front ra tios are the overriding determinant to be applied
mechanistically to achieve the results sought in maritime delimitation.
6. Mr.President, Members of the Court, to summarize, on Tuesday Mr.Reichler at first
seemed to accept ⎯ as indeed he ought to have accepted ⎯ that the islands of the archipelago face
east and west; that the east-facing coasts generate entitlement ⎯ going potentially 100miles
further than Nicaragua’s entirely east-facing coasts ⎯ and if the delimitation area surrounds the
archipelago, both east and west-facing coasts must be counted. Indeed, Mr. Reichler even gave us
a few more kilometres of relevant coasts than we had calculated for ourselves. But then we came
to the crunch ⎯ the number crunch ⎯ and we went back to the old discredited ratio of 21:1,
generating EEZ areas of 35:1 in favour of Nicaragua. The fallacies here I have already shown.
15
CR 2012/14, p. 44, para. 15 (Reichler).
16
Ibid., p. 45, para. 16 (Reichler).
17Ibid., p. 45, para. 17 (Reichler). - 16 -
7. At the same time Mr.Reichler came up with a new actual coastal length for Nicaragua
18
of ⎯ wait for it ⎯ 701km instead of the previous 453 . How he got 701 he did not bother to
explain. Perhaps he used Reichler’s Patent Coast Enlarger, that sure remedy for distressed counsel
in delimitation cases. Think of a number and add it to your coast. It works wonders! He may be
offering a special price! On our count, using Nicaragua’s graphics, the actual coastal length is
550km: you can see for yourselves that it cannot possibly have increased by 250km from the
straight line previously shown. So the coastal ratio is Nicaragua, 550 km, San Andrés Archipelago,
65 km, or a ratio of 8.5:1. This is much less th an the 21:1 originally pr oposed, let alone the 33:1
which the unexplained 701km gives. It is also 8.5:1 in the same range as Jan Mayen and
Libya/Malta ⎯ significant, yes, but not overwhelming and certainly not at a level that would
produce a zero allocation of EEZ to the archipelago or anything remotely like it.
The proportionality test and its relevance to islands in the context of opposite coasts
8. Mr. President, Members of the Court, the tw o cases in your jurisprudence in which one or
19
a few small islands faced a long mainland coast are Jan Mayen and Malta/Libya. In neither of
them did you conduct a proportionality analysis; in both you took disproportionality of coasts as a
reason for the adjustment of a provisional equidist ance line, but you did not use the ratio of coastal
lengths as in any way a criterion for determining the length of the adjustment or its equitableness.
In both cases you gave the small island coast significant effect.
9. One of the reasons why a proportionality analysis is difficult in the opposite coasts
situation is that it is difficult to determine the relevant area. But it may be instructive to look at the
two cases in order to assess outcomes which the Cour t determined to be equitable when a small
offshore island faces a mainland coast.
10. The case most like ours is Jan Mayen. The ratio of coastal facades was 1:11. It seems
reasonable to take as the relevant area the areas of overlapping potential EEZ entitlements,
bounded in the south by the EEZ of Iceland and in the north by the intersection of the 200-mile
lines of the two Parties. On that basis the area in dispute ⎯ the relevant area ⎯ totalled
18
CR 2012/14, p. 46, para. 21 (Reichler).
1Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment,
I.C.J. Reports 1993, p. 38. - 17 -
161,532sq km. The division of that area based on equidistance would have resulted in an area
ratio of 1:1.27 in favour of Greenland. This may be contrasted with the adjusted area ratio of
1:3.30 in favour of Greenland.
11. The following comments may be made:
(a)First, no priority was given to the contin ental mainland coast as such. There was no
assumption, for example, that the continental shelf was a priori the continental shelf of
20
Greenland .
(b) Second, you specifically rejected a Danish s ubmission that the mainland be allocated a full
21
200-mile zone, with Jan Mayen getting only the residue .
(c) Third, the adjustment was in the circumstances modest and fell well short of the ratio of coastal
facades.
(d) Fourth, the relevant non-geographic factors ⎯ which Mr. Bundy has discussed ⎯ operate very
much in favour of Colombia in our case. Those factors were either absent ⎯ security and
administration ⎯ or favoured Denmark ⎯ the established community, the access to the capelin
fishery.
12. Mr.Reichler seeks to distinguish Jan Mayen by reference to the fact that the area of
overlapping potential claims lies between the coast s of the Parties and does not include Jan Mayen
22
itself . But you did not in fact place any weight on th is circumstance. Mr. Reichler’s distinction
must imply that the area attributed to Jan Mayen would have been radically different ⎯ perhaps to
the point of enclaving ⎯ if the island had been located with in 200nm from the Greenland coast.
But there is no reason to think this, and the Judgment certainly does not say so. If une priorité à la
nicaraguenne was to be accorded by you, as claimed by Nicaragua ⎯ its continental shelf, its
maritime zone ⎯ if the same priority was to be acco rded by you to the mainland coast of
Greenland, it would have been reflected in the Judgment ⎯ for example, by giving Greenland all
20Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J.
Reports 1993, pp. 69-70, para. 71: “At this stage of its analysis, the Court thus considers that neither the median line nor
the 200-mile line calculated from the coasts of eastern Greenland in the rele vant area should be adopted as the boundary
of the continental shelf or of the fishery zone. It follows that the boundary line mu st be situated between these two lines
described above, and located in such a way that the solu tion obtained is justified by the special circumstances
contemplated by the 1958 Convention on the Continental Shelf, a nd equitable on the basis of the principles and rules of
customary international law.”
21
Ibid., p. 69, para. 70; p. 78, para. 88.
22CR 2012/14, pp. 48-49, para. 34 (Reichler). - 18 -
or most of the 200-mile zone. So, the Jan Mayen coast supports our position and not that of
Nicaragua.
13. Then there is Libya/Malta . There is a greater problem here in identifying the relevant
area given the funnelling effect of the Italian claims to the west a nd east. To judge the
proportionality of the adjustment on a purely bilate ral basis I have ignored the Italian carve-out ⎯
if I can call it that ⎯ and drawn lines from the relevant coast on Malta to the equivalent points on
the Libyan coast, at Rajs Ajdir and Ras Zarruk. The ratio of coastal facades is 1:8 in favour of
Libya. An equidistance line divides this area in a ratio of 1:2.8. You decided an adjustment was
called for, in view of the disparity of coastal lengths. But the adjustment was modest, producing an
area ratio of 1:3.49, not even halfway to what might be described as parity ⎯ that is, the same area
distribution as coastal ratio.
14. Mr.Reichler seeks to distinguish Libya/Malta by reference to the fact that the entity
whose zones were being determined was an independent State, not a dependent territory 23. But it is
difficult to see why that should make a difference, and the contrast between the autonomous
Greenlanders and the grant-dependent metropolitan scientists surviving on Jan Mayen certainly
made no impression on your Court in the latter case. Moreover, the need to make such a distinction
implies that something needs explaining away fro m a Nicaraguan point of view, which is certainly
true. If Nicaragua is right about the overwhelmi ng effects of metropolitan coasts vis-à-vis islands
at a distance, then the adjustment in favour of Libya should have been greater, possibly much
greater. But the adjustment in Jan Mayen was of the same order of magnitude, in a case where the
offshore island was a mere dependency. So Mr. Reichler’s confession that something requires
explaining from his point of view is right, but his avoidance device ⎯ the statehood of Malta ⎯
does not work.
The diplomatic practice
15. Mr. President, Members of the Court, as to the diplomatic practice, you have heard what
we have each had to say on this practice, which I know you will examine carefully. I need only
refer briefly to two cases. The first is the Australia-France treaty over New Caledonia.
23
CR 2012/14, p. 49, para. 37 (Reichler). - 19 -
Mr. Reichler referred to several small features on both sides which we re given effect and balanced
24
out, and in certain segments of this long boundary that is true . But he omits to acknowledge the
crucial role in the central sector of Middleton Reef, which I described the other day as little more
than a low-tide elevation, much less than the components of the Archipelago of San Andrés. At
high tide on Middleton Reef, only one cay on the reef is visible, at 1 m above sea level. The cay is
called The Sound and it measures 100m by 70m 25. The Australian authorities required
considerable persuasion to revise their earlier classification of Middleton Reef as a low-tide
elevation, but once established that the solitary cay was a full-fledged island and a sound basis for a
base point, they took up the cause of Middleton Reef with enthusiasm and success. The area is
now a Marine National Park.
16. The second case to which I should refer ⎯ because Mr. Reichler referred to it twice 26 ⎯
is the domestic Canadian decision in Nova Scotia/Newfoundland and Labrador 27. Mr. President, I
was a member of the panel in that case and thus have to be careful in commenting on it. It is true
that the panel gave zero effect to Sable Island. As the Tribunal held, given its remote location and
the very substantial disproportionate effect this small, unpopulated island would have on the
28
delimitation, it was given no effect and the equidistance line adjusted accordingly . The
circumstances of that case bear no resemblance to the present one.
17. Then I should say something briefly about the three “new” cases discussed by
29
Mr.Reichler late in his submissions on Tuesday . He referred to these as examples of bilateral
practice where States agreed to enclave or semi-enc lave islands within the territorial sea to prevent
them from having a disproportionate effect on the delimitation.
18. Now, in light of the fact that Mr.Reichl er clearly considers diplomatic practice to be a
“very shaky basis on which to base a maritime claim” 30, I was a little surprised that he exceeded his
24CR 2012/13, p. 62, para. 86 (Reichler).
25
See the article by V. Prescott, “The Uncertainties of Middleton and Elizabeth ReefIBRU Boundary and
Security Bulletin, Spring 1998, http://www.dur.ac.uk/resources/ibru/publications/full/bsb6-1_prescott.p….
26
CR 2012/10, p. 44, para. 47 (Reichler); CR 2012/14, p. 54, para. 55 (Reichler).
27
Newfoundland and Labrador/NovaScotia Arbitration (Second Phase) (2002) 128 ILR 425.
28Ibid., pp. 572-573, paras. 5.9-5.15.
29CR 2012/14, p. 62, para. 87 (Reichler).
30
Ibid., p. 60, para. 81 (Reichler). - 20 -
brief of attempting to distinguish the situa tions supporting Colombia and began “cherry
pick[ing]” 31of his own. And since he has accused me of “whipping through” 32 a large number of
maps, perhaps the Court will permit me to whip through a few more ⎯ that is to say, the three
counter-examples that Mr. Reichler mentioned and neglected to show you.
33
19. Before I begin this rather rapid tour ⎯ “Around the World in 80 Seconds” , as
Mr.Reichler would have it ⎯ I will perhaps ruin the surprise by telling you that each and every
example given by Mr. Reichler is irrelevant to the present situation. All of them concern situations
in which the two States concerned possessed adjacent or opposite coasts which defined the
delimited area, and with a minimum distance between them. Each was therefore a situation in
which a proposed median line was extant and in danger of undue distortion if the relevant islands
were given full effect. Neither of these factors applies here.
20. Let me start with Daiyina. The Court will clearly perceive the coast of Qatar towards the
western edge of the map, with the coast of Abu Dhabi ⎯ later the UAE ⎯ curving away to the
south-east and south in an “L” shape. Daiyina sits right in the crook of the Qatar-UAE elbow; to
give it full effect would be to distort considerab ly the path of the median line and encroach on
Qatar’s territorial sea impermissibly.
21. Let me now take you to the Adriatic S ea, and the island of Peragruz, backed by the
mainland coast of what is now Croatia. This one do es not sit in an elbow; it sits between toes. As
the Court can see, a grant of full effect in this instance would have caused Peragruz’s maritime
zone to impinge impermissibly on Italy’s territori al sea. Again, this example has nothing to do
with the current situation.
22. Now let us look at Pantelleria, Linosa and Lampudesa. We are again in an extremely
confined space. Particularly in the case of Pant elleria, the boundaries of the two territorial seas are
so close that their abutment produces friction. The coast of Sicily looms in the background. Again,
one can see the similarities with the Scillies and perhaps even St Pierre and Miquelon 34. But not
31
CR 2012/14, p. 62, para. 87 (Reichler).
32Ibid., p. 60, para. 81 (Reichler).
33Ibid.,. 1 (Reichler), pa. 1. Further: J. Verne, Le tour du monde en quatre-vingts jours
(Pierre-Jules Hetzel,1873).
34Delimitation of Maritime Areas between Canada and the French Republic (St Pierre and Miquelon) (1992)
95 ILR 645. - 21 -
this case, not Nicaragua/Colombia. The lad who repeatedly cried “wolf” keeps crying “enclave”,
and with as little foundation in our case, though he has twice the vocabulary.
23. So we return to our case, no doubt with some relief. As the Court can see, the maritime
situation with respect to Nicaragua and Colombia is completely different to any of the examples
provided by Mr.Reichler. In the first place, we observe the total lack of Colombia’s mainland
coast from the picture. We were under the im pression that Nicaragua had abandoned any claim
that Colombia’s mainland constituted a relevant coast for the purposes of EEZ delimitation. But
even if this were the case, even if it were releva nt, what would the result be? Providing the islands
with full effect would result in no encroachment whatever with Nicaragua’s territorial sea. And
Colombia’s mainland coast is so far away that it cannot affect the EEZ delimitation.
Conclusions
24. Mr. President, Members of the Court, I will return later this afternoon to summarize the
situation and thus will not attempt to do so now. It is sufficient to stress that the EEZ delimitation
here occurs between the opposite coasts of Nicar agua and the archipelago, that enclaving is
categorically excluded as a solution, notably by your jurisprudence, and ⎯ last but not least ⎯ that
Quitasueño is entitled to a territorial sea and contiguous zone.
Thank you, Mr. President, Members of the Court.
The PRESIDENT: Thank you, ProfessorCrawford. I understand now that it is the turn of
Mr. Bundy to continue the pleadings on behalf of Colombia. You have the floor, Sir.
Mr. BUNDY: Thank you, Mr. President, Members of the Court.
5. G EOGRAPHICAL FACTORS AND OTHER RELEVANT CIRCUMSTANCES
1. In this presentation ⎯ which I assure you will be briefer than my pleading this
morning ⎯ I will address a number of geographic factors and other relevant circumstances that are
of absolutely critical importance to Colombia and to the achievement of an equitable result in this
case. In undertaking this task, I intend to focus on issues that continue to divide the Parties. - 22 -
Colombia’s islands possess their full maritime entitlements
2. The first issue concerns Nicaragua’s assertion that, with the exception of the islands of
San Andrés, Santa Catalina and Providencia, all of Colombia’s other islands are mere “rocks”
within the meaning of Article 121(3) of the Conve ntion. ProfessorPellet was correct when he
noted that the jurisprudence, in general, has re frained from determining the juridical status of
35
islands . But in this case, the issue has become ve ry important precisely because of Nicaragua’s
attempt to deprive Colombia’s islands of their le gal entitlements, including not only to a territorial
sea and a contiguous zone which every island po ssesses at a bare minimum, but also to an
exclusive economic zone and a continental shelf.
3. The information that the Court has at its disposal, including photographs of the islands and
the extensive pattern of conduct relating to activities that have taken place on them and within their
waters, shows that these are not mere “rocks”. Rockall, for example, belonging to the United
Kingdom, is a rock. The Middle Rocks, which the Court will be familiar with from the
Malaysia/Singapore case, are rocks. These islands are not. That being the case, the question
whether they are capable of sustaining human hab itation or economic life does not even arise. All
islands, regardless of their size, possess the full suite of maritime entitlements that the law accords
them just like any other land territory if they ar e not “rocks”. Nicaragua’s confident assertions on
the nature of Colombia’s islands not only run against the views of all the other riparian States in the
region, they lack persuasion because Nicaragua has never actually set foot on any of these islands
at any time. There might be a little more credence to the argument if they had actually been there!
4. The evidence on record ⎯ and there is a great deal of it ⎯ shows that all of the islands
have been the subject of considerable human a nd economic activities from the nineteenth century
to the present. That degree of attention would no t have been paid to these features if they were
mere “rocks”.
5. I realize that Professor Pellet mocks these activities; he calls the effectivités that I
recounted in the first round speech as “paper effectivités”. And he laughs at the notion of
36
harvesting coconuts on Quitasueño .
35
CR 2012/15, p. 46, para. 27 (Pellet).
36CR 2012/15, p. 40, para. 14 (Pellet). - 23 -
6. Apart from what my colleague, Professor Kohen, has already discussed, I would actually
invite my good friend on the other side to read the documentary evidence before making such
claims. The lease for coconuts that I referred to in the first round, for example, related to a specific
Annex 77 that was put on the screen; it was for a permit to harvest coconuts from a coconut grove
on the Alburquerque Cays, not Quitasueño. The document in question clearly shows that. The
licensee paid good money for that permit ⎯ 1,001 pesos ⎯ which was a large sum in 1915. He
obviously considered that the economic value of the products on the islands was worth it.
7. With respect to Roncador, Colombia’s Annex78 shows that the individual whose
company was mining guano from the island had “settle d on” the island, and that there was a house
and workers there. Those are the words used in the contemporaneous document. People were
living on the island. Similarly, a report from th e archipelago’s Prefect to the Government at
Cartagena in 1890 referred to the fact that, for ove r half of the year, Roncador was “continuously
inhabited by a large part of the population of these Islands, that goes there with the purpose of
37
fishing for tortoiseshell, fishing that constitutes one of the main riches of this region” . That same
document explained that Roncador, Alburquerque , Serrana and Quitasueño contained “valuable
guano deposits”, and that Alburquerque ⎯ not Quitasueño ⎯ had coconut plantations. A further
report in 1894 about the islands of the archipelago indicated that the leases issued for Roncador and
Quitasueño were likely to provide the Treasury with what was termed in the document a
“somewhat considerable income” 38. And in 1913, as I mentioned last week, Germany appointed a
Vice-Consul to Cartagena whose jurisdiction included Roncador. Vice-Consuls are not usually
appointed for “rocks”.
8. As for Serrana, the evidence shows that ag ents for the trading company that was engaged
there in economic activities and guano produc tion had again “settled on” the islands 3. Those are
the words that you find in the contempor aneous documentation. These activities were
economically valuable. One report indicates th at the licensee on Serrana had made a guarantee
37
CMC, Vol. II-A, Ann. 82.
38
CMC, Vol. II-A, Ann. 87.
3Ibid., Ann. 78. - 24 -
40
payment of 2,000pesos at 1893 values to ensure compliance with the contract . Another report
sent from the British Colonial Office to the Gove rnor of Jamaica estimated that the amount of
guano shipped from Serrana over a two-year period w as 1,500 tons, and that there appeared to be a
41
large supply on the island . And permits for exploiting guano on Roncador, Quitasueño,
Serranilla and Alburquerque in 1915 require d a 4,000peso bond to be furnished ⎯ which was a
42
small fortune at that time .
9. The economic importance of Serranilla and Bajo Nuevo also dates back to the early
twentieth century, when it was clear that both Jam aican and Colombian fishermen considered the
islands to be critical for their subsistence. Th at reality prompted British authorities to remind
fishermen in 1924 that fishing around the islands of the archipelago was forbidden without licences
issued by the Government of Colombia 43.
10. Serranilla’s and Bajo Nuevo’s economic importance continues up to today. The
1981 Fishing Agreement between Colombia and Jamaica allowed, as I said, three dozen fishermen
44
to stay on Serranilla and two dozen on Bajo Nuevo . The 1984 Fishing Agreement recorded the
fact that both islands allowed ha bitation and could sustain the life of Jamaican fishermen living
there 45. I would suggest that Jamaica, whose nationals were actually staying on two islands, was in
a far better position to know whether they could su stain human habitation or economic life than is
Nicaragua, which has never set foot on the islands.
The position of third States
11. Third States such as Jamaica, Panama and Costa Rica have never considered Colombia’s
islands to be mere “rocks” incapable of generating continental sh elf and exclusive economic zone
entitlements. The delimitation agreements Colombia signed with all three States bear this out, as I
went through in some detail last week. They accorded the islands equidistance treatment, and all of
them recognized that Colombia possessed ma ritime rights, exclusive economic zone and
40CMC, Vol. II-A, Ann. 86.
41
Ibid., Ann. 173, pp. 632-633.
42
Ibid., Ann. 97.
43Ibid., Anns. 185, 186 and 194.
44Ibid., Ann. 7.
45CMC, Vol. II-A, Ann. 9. - 25 -
continental shelf rights on its side of the boundary line. Nicaragua did not attempt to respond to
this point in its rebuttal.
12. Instead, on Tuesday afternoon, Professor Lowe said the following: “as the Agent for
Nicaragua said, Nicaragua is not asking the Court to disturb delimitations that have already been
effected” 46. Now that was a quite extraordinary st atement given that Professor Lowe then
proceeded to destroy, piece-by-piece, any bounda ry relationship between Colombia and Panama,
Colombia and Costa Rica, and Colombia and Jama ica in the central part of the sea when he
embarked on his exposition of Nicaragua’s claims.
13. Under Professor Lowe’s hourglass theory of Nicaragua’s claims, all of the areas lying to
the east of Nicaragua’s so-called 200-mile en titlement from its coast, and beyond 200nm from
Colombia’s mainland coast, would now be transformed, like the wave of a magician’s wand, into
high seas. As if that was not enough, Colombia’s maritime rights over all of the other areas lying
east of its islands would fall within Nicaragua’s fall-back position up to 200miles from its coast.
And all of Colombia’s maritime rights in those areas would be eliminated, except for 3-mile or
12-mile enclaves. There go all of the delimitation agreements with Panama, Costa Rica and
Jamaica, that those countries signed with Colombia! Those countries will be astonished if they are
informed that they have no maritime boundary re lationship with Colombia in this area any more,
particularly when it is recalled that Nicaragua has never held or exercised any rights over these
areas, or co-operated with those countries in the management and conservation of the living
resources situated there. If that is not considered “disturbing” delimitations that have already been
effected, then I shudder to think what is.
14. Nicaragua professes to want an equitable solution. But there is nothing equitable about
destroying the boundary relations that third States have with Colombia. If Nicaragua’s statement
that it is not asking the Court to disturb existin g delimitations is sincere, Colombia’s boundary
agreements and boundary relationships with other States bordering the region should be fully
respected.
46
CR 2012/15, p. 27, para. 58 (Lowe). - 26 -
15. No one ⎯ no one that is except for Nicaragua during these hearings ⎯ considers that
this part of the Caribbean is either high seas or an area over which Colombia is somehow
dispossessed of its EEZ and continental shelf rights. The boundary agreemen ts with neighbouring
States were all single maritime boundaries delimiting not simply the continental shelf, but also the
column of water.
16. The same holds true for the international community. There is not a shred of evidence
that any State considers there to be high seas in th is part of the Caribbean, or that Colombia does
not have continental shelf and exclusive economic zone rights over all the areas lying east of the
islands of Quitasueño, Santa Catalina, Provide ncia, San Andrés and Alburquerque on Colombia’s
side of its boundary agreements with third States.
17. Last week, I pointed out that Colombia had issued vessels flying the flag of at least
12countries, including even Nicaragua, to fish in the waters of the San Andrés Archipelago, and
that there are numerous documents on the record that show this point 47. That necessarily
presupposed that Colombia po ssessed exclusive economic zone rights throughout the area.
Colombia has exercised its jurisdiction and fulfille d its duties in these waters. Nicaragua has not
even attempted, either in its first round or its second round, to rebut any of the evidence that we
have put on the record to this effect. And no other State has questioned it.
The importance of the waters of the San Andrés Archipelago
to Colombia
18. On Tuesday morning, it was alleged on the Nicaraguan side that the sea areas in this part
of the Caribbean are “a morass of crime origina ting largely in Colombia, with important bases in
48
San Andrés and Providencia” . Now that rather intemperate accusation was lacking in any
evidence to back it up ⎯ which I have to say is a character trait of many of Nicaragua’s assertions.
Nicaragua apparently thinks that if Colombia is the queen of the Caribbean, Nicaragua is its
guardian angel. Neither is correct.
19. The important point for purposes of this case is that Colombia has been acting
responsibly to maintain security in the region in co-operation with other States, contrary to
47
CR 2012/13, p. 26, para. 24 (Bundy).
4CR 2012/14, p. 12, para. 10 (Argüello Gomez). - 27 -
Nicaragua’s allegations and its ow n lack of similar conduct. Those actions are, as are the other
conduct I have referred to, fully documented.
20. Security interests are of vital interest to Colombia. That is one of the reasons why
Colombia has shown that it has not only implemented and enforced its customs, fiscal, immigration
and solitary laws in the contiguous zones around each of the islands, but has also exercised
jurisdiction throughout its entire exclusive economic zone. I discussed last week, numerous
elements of Colombia’s conduct in this regard. I will not come back to them because Nicaragua
remained silent, despite the fact that it stressed in its own Memorial that international tribunals
have always given firm recognition to the relevan ce of security considerations to an assessment of
49
the equitable character of a delimitation .
21. Mr. President, Members of the Court, as Co lombia’s Agent recalled this morning, there
are 80,000people that live in the San Andrés Archip elago, and they, and their forbearers, have
always been heavily dependent on the sea ⎯ you can see that from the record. That is a
consequence of the geography of the area. To deprive Colombia, and the inhabitants of the
archipelago, of their long-standing rights that international law provides over the maritime spaces
appertaining to those islands, would have catastrophic consequences. That cannot be equitable.
22. It is appropriate, in this connection, to recall that under Article59 of the
1982Convention, in cases where the Law of the Sea Convention does not attribute rights or
jurisdiction to the coastal State within the EEZ, and a conflict arises with another State, that
conflict should be resolved on the basis of equity, an d in the light of all the relevant circumstances,
taking into account the respective importance of the interests involved to the parties as well as to
the international community as a whole.
23. Colombia has shown that its exercise of jurisdiction in the waters of the San Andrés
Archipelago has been carried out in accordance with international la w, that the interests involved
are of paramount importance to it and to the people living in the archipelago, and that it has taken
the interests and co-operated with the interna tional community by ente ring into co-operative
49
MN, para. 3.69. - 28 -
arrangements relating to security matters as well as the conservation of the living resources of the
area. No State other than Nicaragua questions that.
24. Instead of addressing these kinds of matters, Nicaragua has tried to shift the focus by
repeatedly stating that its mainland coast is the dominant feature on this side of the sea. While
Nicaragua has played with the length of that coast ⎯ as ProfessorCrawford explained ⎯ it has
actually provided the Court with absolutely no information about its coastal geography. Not a
single town or village on the mainland coast has been identified. No effort has been made to show
that the inhabitants of the mainland coast have any economic or other dependence on sea areas
situated beyond the Corn Islands in the south and the Miskitos Cays in the north. Virtually no
evidence exists as to Nicaragua’s exercise of juri sdiction anywhere, let alone to the east of the
82nddegree meridian. And no evidence has been produced suggesting that Nicaragua has been
concerned with conservation, resource management or security issues within the waters of the
archipelago.
25. On Tuesday afternoon, Professor Pellet so mewhat grudgingly seemed to accept that the
82°meridian might have some relevance, although negligible he said, as a relevant circumstance
for delimitation purposes. But he argued that it could only be a one-way street ⎯ blocking
50
Colombia from claiming areas lying to the west of that line .
26. That line of argument ignores the facts. What all of Nicaragua’s counsel have avoided
discussing like the plague is that, with respect to a period of almost 40years ⎯ that is between
1930 when the Protocol was signed providing for the 82° meridian and the late 1960s ⎯ Nicaragua
has been unable to produce a single piece of evidence showing that it exercised maritime
jurisdiction east of the 82°meridian, or that it even had the intention to do so, or that during this
period it protested Colombia’s activities. There is nothing on the other side of the Bar for this
40-year period. Nothing. That was not due to any Colombian gun boats; it was because of
Nicaragua’s complete disinterest in these maritime areas which it now so avaricely claims.
Nicaragua’s fishing grounds, to the extent they were important, at that time and as they remain
today, were located a very short distance off their mainland coast, primarily around the Corn
50
CR 2012/15, pp. 46-47, para. 28 (Pellet). - 29 -
Islands, Miskitos Cays and the small islets lying in between. I pointed this out last week. It was
not responded to or rebutted. Nicaragua ach ieved what it wanted in the 1930 Protocol ⎯ a
recognition of its sovereignty over the Miskitos Cays lying west of the 82° meridian and then it did
nothing east of that meridian for another 40 years.
27. In contrast, Colombia has demonstrated that, not only has it administered the archipelago
and the islands as a unit for decades, for scores, for over a hundred years, but also that it has
exercised its maritime jurisdiction in all the waters in between.
The relevant area
28. The only limited area where there has been a semblance of competing activities by the
Parties in more recent times is in the far north-west corner of the relevant area close to the
82° meridian.
29. The map on the screen was shown to you by Professor Kohen last week. Based on the
diplomatic record on file, it shows in green the location where Colombia interdicted vessels
considered to be operating within its jurisdiction, and in red the naval interdictions carried out by
Nicaragua. You can see that they are confined to an area lying broadly west of Quitasueño near the
82°meridian. There is no evidence anywhere of any Nicaraguan presence ever to the south, let
alone the east.
30. Nicaragua has told you that it issued oil licences at the end of the 1960s. Curiously, it
has not provided any details of these activities su ch as contracts or concession maps. From the
diplomatic correspondence that is on record, though, it is possible to establish three facts relating to
those permits. First, they were also located in th is far north-western corner of the relevant area;
second, they were very short-lived; apparently th ey were only preliminary permits that were not
renewed or followed up on; and third, they were promptly protested by Colombia 51.
31. Now, Colombia also carried petroleum activities in this area, mainly related to seismic
projects carried out by a French company in conj unction with Colombia’s national oil company,
52
and an American company, again working in co-operation with the Colombian company . The
51
CMC, para. 3.116. See also, Vol. II-A, Anns. 54-59.
5CMC, paras. 3.109-3.110, 3.113. - 30 -
areas of those operations can be seen on the screen. This was also in our Counter-Memorial. They
included Quitasueño, a zone lying to the north of Quitasueño, and areas around Serrana as well as
around Serranilla. Significantly, these activities were not protested by Nicaragua.
32. These facts, I suggest, reinforce the point th at the truly relevant area in this case within
which the delimitation should fall, lies between Colombia’s westernmost islands and Nicaragua’s
coasts. That is where the limits of each Party’s territory are located; it is where any incidents that
occurred were situated; it is the area within which the 82° meridian is located that was respected
by Nicaragua for almost four decades; and it is where the maritime entitlements of the Parties
converge and begin to overlap.
33. Last week I observed that there is not a si ngle judicial or arbitral case where islands that
lie as far away from the coast of another State as Colombia’s islands do with respect to Nicaragua
have been enclaved. Nicaragua has not been able to rebut that proposition.
34. Today I will go further. There is not a single example of State practice where islands in a
similar situation have been enclaved. Professor Crawford responded to Mr.Reichler’s attempt to
use the Italy/Yugoslavia, Italy/Tunisia and Qata r/United Arab Emirates boundary agreements as
53
evidence to the contrary . You saw them on the screen. They all involved islands that straddled a
mainland-to-mainland median line where the coast s of the mainlands were much, much closer
together than 400 nm. And even then, the islands were not fully enclaved, they had partial enclaves
around them.
35. The practice of this Court, as well as arbitral tribunals, has been to treat the relevant area
within which the delimitation is to be effected as the area that lies between the relevant coasts of
the parties. In the present case, that is the area th at is depicted on the screen. Neither the relevant
coasts nor the relevant area concern Colombia’s mainland coast, for reasons that we fully explained
last week. Moreover, the relevant circumstances that I canvassed last week, an d returned to in this
pleading, confirm that it simply would not be equitable to extend the area, let alone the delimitation
line, any further to the east.
53
CR 2012/14, p. 62, para. 87 (Reichler). - 31 -
36. Mr.President, that concludes my presentation. I once again thank the Court for its
attention, and would ask if Professor Crawford could be given the floor. Thank you very much.
The PRESIDENT: Thank you very much, Mr. Bundy and I call again, for the last time in the
course of these proceedings, on Professor Crawford. You have the floor, Sir.
Mr. CRAWFORD:
6. CONCLUDING POINTS
1. Thank you Mr.President. I am conscious that this is the last afternoon of the old
courtroom. I vividly remember my first appearance in this room in 1991, against Professor Pellet.
Plus ça change, plus c’ést la même chose . Mr.President, Members of the Court, in these final
remarks I will briefly establish three propositions, deal incidentally with two Nicaraguan graphics
flashed on the screen on Tuesday, and summarize our unchanged delimitation case.
Mid-ocean islands cannot be equated to mainland coasts without refashioning geography
2. My first proposition is that mid-ocean islands cannot be equated to mainland coasts
without refashioning geography. This is particularly true where, as here and as in Jan Mayen, there
is a substantial amount of maritime space available by reason of the distance of the features
concerned from the coast.
3. This proposition follows from what I have already said today about the jurisprudence, and
earlier in these proceedings about the State practice. I stress that we are not concerned in this case
with the Qita’t al Jaradehs and Middleton Reefs of the world, tiny formations which obstruct
delimitations between other coasts. But even such formations ⎯ especially offshore formations ⎯
are frequently used as components of larger settle ments, as with the Australian-French Treaty over
New Caledonia. The public position of the United States ⎯ conscientiously adopted and adhered
to with some consistency ⎯ is that small islands count. And by small I mean very small ⎯ Aves
Island in the Caribbean, Swains Island in the Pacifi c and dozens of others. This practice cannot be
ignored.
4. But although counsel for Nicaragua, by infe rence, treat the Archipelago of San Andrés as
a pathological formation, this is absolutely not th e case. The key islands of this archipelago bear - 32 -
the weight of this delimitation. Never, as Mr. B undy has just remarked, has a substantial territorial
community at a significant distance from a continental coast been encl aved, treated for EEZ
delimitation purposes as zeroes, as non-existent.
5. I stress that this is a function of entitlement, not discretion. Article 10 (1) of the Geneva
Convention of 1958, Article 121(1) and (2) of the 1982 Convention, reflect deliberate, clear
choices of the international community of Stat es as a whole. Doubts have sometimes been
expressed, this is true, as to Article 121 (3) ⎯ but those doubts show only the general significance
in terms of delimitation which attaches to very small features. In any event, the three named
islands here are not Article 121(3) rocks ⎯ Nicaragua does not suggest otherwise ⎯ but nor are
Roncador, Serrana, Serranilla or Alburquerque. They have maritime entitlements which Nicaragua
seeks to denigrate by 3-mile enclaves, in an overtly discriminatory manner. You will recall what I
said on that account in relation to Roncador. The inherent and at some level irreducibly ad hoc
character of maritime delimitation should not be employed to deny these legal entitlements.
Irrelevance of geomorphology within 200 nm of any coast
6. My second proposition is that in an area within 200 nm from eligible coasts there can as a
matter of law be no continental shelf beyond 200 nm of any other State.
7. You will recall last week that I showed you a graphic that demonstrated what I called the
“Lowe Paradox”. Here it is again.
8. As I said, the Lowe Paradox is that, accordi ng to his view of the practice of delimitation,
where the distance between two States is less than 400 miles, then the Libya/Malta 54dictum applies
and geomorphology is irrelevant, whereas if the distance between the two States exceeds
400nautical miles then geomorphology wins the day and the continental shelf keeps going and
going ⎯ even if it runs well into the other State’s EEZ. Put another way, the further away the
coast from the edge of the continental shelf, the greater the distance ascribed to that prolongation of
the shelf. Absence, makes the shelf grow longer.
54
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 13. - 33 -
9. Well, on Wednesday, Professor Lowe attempted to resolve his paradox. He stated that the
position taken by this Court in Libya/Malta was applicable only where the distance between the
two States is less than 200 miles ⎯ not, as I stated, 400 miles. As Libya and Malta were 185 miles
apart, he continued, and as each State was entitled to a 200nm EEZ, it followed that
geomorphology was irrelevant. To give effect to the natural prolongati on would have made a
55
nonsense of UNCLOS Article76 . Thus, says Professor Lowe, as the mainland coasts of
Nicaragua and Colombia are more than 200 nm apart, Nicaragua’s continental shelf can keep going
56
for as long as it likes : quod erat demonstrandum.
10. Well, not quite. Let us see what precisely what you said in Libya/Malta (it’s a slightly
long quotation, but it is important):
“The Court however considers that since the development of the law enables a
State to claim that the continental shelf appertaining to it extends up to as far as
200 miles from its coast, whatever the geological characteristics of the corresponding
sea-bed and subsoil, there is no reason to ascribe any role to geological or geophysical
factors within that distance either in verifying the legal title of the States concerned or
in proceeding to a delimitation as between their claims. This is especially clear where
verification of the validity of title is concerne d, since, at least in so far as those areas
are situated at a distance of under 200 miles from the coasts in question, title depends
solely on the distance from the coasts of th e claimant States of any areas of sea-bed
claimed by way of continental shelf, and the geological or geomorphological
characteristics of those areas are completely immaterial.” ( Continental Shelf (Libyan
Arab Jamahiriya/Malta), I.C.J. Reports 1985, Judgment, p. 35, para. 39.)
12. I stress ⎯ your words are unequivocal ⎯ in relation to “areas . . . situated at a distance
of under 200 miles from the coasts in question”
“title depends solely on the distance from the coasts of the claimant States of any areas
of sea-bed claimed by way of continental shelf, and the geological or
geomorphological characteristics of those areas are completely immaterial”.
You did not say 100 miles, you said 200 miles, and th is dictum applies, of course, to each coastal
State separately, to each 200-nautical mile belt of the EEZ.
13. So what does this mean? It means th at each State has an entitlement to a 200-mile
continental shelf congruent with its entitlement to an EEZ of a similar distance and irrespective of
55
CR 2012/15, pp. 23-4, paras. 36-7 (Lowe).
5Ibid., pp. 24-5, paras. 41-4 (Lowe). - 34 -
the geomorphology of the underlying sea-bed. ProfessorLowe is mistaken: Libya/Malta ’s
pronouncement as to the irrelevance of geomorphology does not apply where the coasts are within
200 nm of each other: it applies within 200 nm of any coast, irrespective of whether the EEZ abuts
the high seas or another continental shelf. Of course, where EEZs overlap, delimitation both of the
EEZ and the continental shelf must occur ⎯ but if the natural prolongation of another State’s
continental shelf beyond 200nm intrudes into a nother State’s shelf entitlement as defined by the
width of its EEZ then the former must give way to the latter.
13. According to Professor Lowe, UNCLOS Article 76 has a different function; it leads to a
contest when the natural prolongation of one shelf meets the EEZ-generated entitlement of another.
He therefore continues to state that Nicaragua is potentially entitled to a portion of Colombia’s
continental shelf as generated from Nicaragua’s mainland coast! Not satisfied with having
deprived Colombia’s islands of their rightful maritime zones, Nicaragua wishes to lay claim to
Colombia’s maritime continental shelf entitlement: again, it wants not only honey, but condensed
milk as well!
14. I note that not only does my proposition follow directly from what you said in
Libya/Malta, it is also supported by a substantial volume of State practice, including abstention by
almost all States in making outer continental shelf claims within 200nm of another State’s coast.
Mr. Bundy took you to this practice in the first r ound. From Nicaragua “answer came there none”.
Any other conclusion would have at least two harmful side-effects. First, it will increase conflicts
between States, resource conflicts which can be particularly aggravated. Secondly, it will mean
that this Court will have to spend long future hours listening to the likes of me prating on plate
tectonics and sea-bed morphology, those rocks of ages conscripted to the solution ⎯ or I should
say, the further confusion ⎯ of maritime boundary disputes. I wish you well of the technical
morass into which you would then get. - 35 -
Need for a solution which is overall equitable
15. Mr.President, Members of the Court, my third proposition is that the objective of
Articles74 and 83 of the 1982 Convention ⎯ “to achieve an equitable solution” ⎯ applies
severally to EEZ and continental shelf but also jointly where both an EEZ and continental shelf are
claimed. It accordingly applies to outer continental shelf claims, including ⎯ if I am wrong as to
my second proposition ⎯ claims to outer continental shelf w ithin 200nm of another State. The
overall solution of the delimitation as a whole must be equitable.
16. The third proposition might better be called a “meta-proposition”. It is a point as to the
character of maritime delimitation itself ⎯ and, more particularly, about the kind of outcome that
the process is intended to achieve. This Court h as been asked to undertak e a delimitation across
multiple maritime zones, and principally in rela tion to the EEZ and the continental shelf of
Colombia and its islands in the Caribbean Sea. The applicable law in this respect is codified within
Articles 74 and 83 of the 1982 Convention. Both of these provisions require the Court to apply
international law so as to achieve an “equitable solution” 57. Though not a party to the Convention,
Colombia has the benefit and burden of these two Articles. They apply to all delimitations,
including those of continental shelf beyond 200nm, and they apply to such delimitations without
segmentation. No distinct equities arise suddenly at 200 nm from the coast: and what I have just
said responds in a supplementary way to the question by Judge Bennouna.
17. Equity within international law is, of c ourse, an amorphous concept and I will not repeat
what you have said on that subject in Libya/Malta and in other cases. But it is not a concept that is
entirely without form: it is not entirely a matter of discretion.
18. The various passages in Tunisia/Libya and Libya/Malta and so on tell us that equity is the
end result of the application of legal process against a background of legal entitlement to the zone
in question. Thus, although Articles74 and 83 separate out the legal acts to be performed by the
Court in the process of delimitation, they call for an equitable solution overall and in fact. It is not
57
UNCLOS, Arts. 74 (1), 83 (1). - 36 -
sufficient in the event of conflict to adopt what one considers the most equitable delimitation of the
continental shelf if the delimitation of the EEZ suffe rs as a result: rather, the Court should balance
these processes so as to produce the greatest net equi ty possible on the facts. The germ of this
notion may be seen in the North Sea Continental Shelf cases, where the Court said:
“In fact, there is no legal limit to the considerations which States may take
account of for the purpose of making sure they apply equitable procedures, and more
often than not it is the bala ncing-up of all such considerations that will produce this
result rather than reliance on one to the exclusion of all others. The problem of the
relevant weight to be accorded to different considerations naturally varies with the
circumstances of the case.” ( North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands), I.C.J. Reports 1969,
p. 50, para. 93.)
19. All this is inconsistent with the image of overweening the right projected by Nicaragua
as the singular projection for 500miles of its coas ts, of its continental shelf, neglecting and
nullifying all other coasts in the region.
Nicaragua’s subliminal images
20. Mr. President Members of the Court, on Tuesday Mr. Reichler flashed before your eyes
two graphics which did not manage to find their wa y into the judges’ fold ers. It was almost
subliminal. But those of you with strong visual memories will recall them, and anyway they could
do with more analysis than Mr. Reichler allowed himself time for.
21. Here is the first of them: Provis ional Delimitation Line Dividing the Area of
Overlapping Entitlements: PR2-13. You will notice that Providencia, Santa Catalina and
San Andrés appear in the Nicaraguan EEZ. This must be an error since they are, like all islands,
entitled to a 12-mile territorial sea, as well as to thei r own EEZ and continental shelf. This is even
less than zero. Mr.Reichler said that this a pproximate condition of equality of the area of
58
overlapping entitlements was inequitable . We entirely agree with his conclusion but not at all
with his reasons. It is inequitable, amongst other reasons, because the delimitation line is on the
wrong side of the archipelago. It is divisive of the archipelago. But Nicaragua’s reason for
dismissing it ⎯ the area ratio of approximately 1:1 ⎯ is not itself inequitable, given all that I have
said about the effect of mid-ocean islands.
58
CR 2012/14, p. 58, para. 73 (Reichler). - 37 -
22. This is the second of Mr.Reichler’s gr aphics, entitled “Half-Effect to San Andrés and
59
Providencia”. It shows what purports to be a half-effect line of the three named islands . No
explanation was given as to how precisely this ha lf-effect line was calculated, and there are certain
errors: above all, no proper e ffect is given to other Colombian islands which are not rocks under
Article 121 (3) of the 1982 Convention. Moreover, it gets the coastal ratio wrong for the reasons I
have explained.
23. But solely for the Court’ s information, I should indicate how in our view a half-effect
line should be drawn.
24. I show first the island-to-island equidistan ce line, which is our claim line. You are by
now familiar with it.
25. Then, exclusively for the purposes of argument we ignore Quitasueño in drawing the
provisional EEZ equidistance line. This involves an adjustment as shown on the screen now.
26. Then, the islands generating the line are given half-effect, including Serranilla, Serrana in
the north and Alburquerque in the south. The dog-leg in the north is due to Serranilla, but these are
substantial island features which in your words “shoul d as such be taken into consideration for the
drawing of the equidistance line” 60. In the area of Quitasueño, the line follows the western arc of
the 12-mile territorial sea.
27. The result is a half-effect equidistance line now shown. One would note that it respects
the unity of the archipelago. It is shown, as I have said, strictly for the information of the Court. It
is in no sense put forward as a delimitation line, but simply to correct a potentially misleading
impression given by Nicaragua.
Conclusions
28. Mr. President, Members of the Court, after all you have heard, I can summarize the
Colombian delimitation case succinctly in seven propositions. All these are based on the premise
of Colombian sovereignty over all the cays ⎯ a matter hardly contested on Tuesday.
59
CR 2012/14, p. 59, para. 78 (Reichler).
6Maritime Delimitation and Territorial Questions betwee n Qatar and Bahrain, Merits, Judgment, I.C.J.
Reports 2001, p. 99, para. 195; cited CR 2012/12, pp. 27-28, para. 5 (Crawford). - 38 -
(1) Islands, including cays and rocks, as defined in Article 121 of the 1982 Convention, are entitled
to a 12-mile territorial sea. This is subject to delimitation especially as concerns overlapping
territorial sea entitlements. But as a general ma tter this territorial sea entitlement of 12miles
trumps opposing EEZ claims ⎯ sovereignty trumps sovereign ri ghts. My reference last week
to Bangladesh/Myanmar in support of this proposition met with no response or rebuttal from
Nicaragua.
(2) Outer continental shelf claims terminate by op eration of law within 200miles of an eligible
coast of another State.
(3) Nicaragua’s outer continental shelf claim in the present case is anyway inadmissible.
(4) The islands of San Andrés, Providencia and Santa Catalina, just like the other islands that form
part of the archipelago generate EEZ and c ontinental shelf entitlements in all directions
including towards the east.
(5) The delimitation is in the circumstances reduced to a claim to a single maritime boundary
between the opposite coasts of Nicaragua and the archipelago.
(6) As is now irrevocably the standard method, a provisional equidistance line should first be
drawn.
(7)Account should be taken of all relevant ci rcumstances: in our submission the relevant
circumstances produce the result that the provisional equidistance line should be confirmed as
the single maritime boundary between the territory of the Parties.
Mr.President, Members of the Court, that concludes this submission. Thank you for your
attention. Mr. President, would you now call on the Colombian Agent to conclude our case.
The PRESIDENT: Thank you very much, Sir, and I give the floor to His Excellency
AmbassadorJulio Londoño Parades, Agent for Colombia, to present final submissions from the
Government of Colombia. You have the floor, Sir. - 39 -
Mr. LONDOÑO PAREDES:
3. FINAL SUBMISSIONS
1. Thank you, Mr.President, Members of the Court. Mr.President, I will now proceed to
read Colombia’s final submissions:
Final submissions
In accordance with Article60 of the Rules of Court, for the reasons set out in Colombia’s
written and oral pleadings, taking into account the Judgment on Preliminary Objections and
rejecting any contrary submissions of Nicaragua , Colombia requests the Court to adjudge and
declare:
(a)That Nicaragua’s new continental shelf cl aim is inadmissible and that, consequently,
Nicaragua’s Submission I (3) is rejected.
(b) That Colombia has sovereignty over all the mariti me features in dispute between the Parties:
Alburquerque, East-Southeast, Roncador, Serrana, Quitasueño, Serranilla and Bajo Nuevo, and
all their appurtenant features, which form part of the Archipelago of San Andrés.
(c)That the delimitation of the exclusive econom ic zone and the continental shelf between
Nicaragua and Colombia is to be effected by a single maritime boundary, being 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 Parties ismeasured, as depicted on the map attached to
these submissions.
(d) That Nicaragua’s written Submission II is rejected.
2. Mr.President, a signed copy of the written text of our final submissions has been
communicated to the Court today.
3. On behalf of my Government and the me mbers of our delegation, I wish to express our
deepest appreciation to you, and to each of the di stinguished judges for the kind attention given to
our presentation. Allow me as well to convey our gratitude to the Court’s Registry and to the
interpreters.
Thank you, Mr. President and distinguished judges.- 40 - - 41 -
The PRESIDENT: Thank you very much, Excellency. The Court takes note of the final
submissions which you have now read on behalf of the Republic of Colombia. Before closing, I
shall give the floor to JudgeBennouna who has a question for the Parties. MonsieurBennouna,
vous avez la parole.
M. le juge BENNOUNA: Je vous remercie, Mons ieur le président. Ma question s’adresse
aux deux Parties. Elle est la suivante: Les règles posées à l’article76 de la convention des
NationsUnies de 1982 sur le droit de la mer, pour la détermination de la limite extérieure du
plateau continental au-delà des 200milles mari ns, peuvent-elles être considérées aujourd’hui
comme ayant le caractère de règles de droit intern ational coutumier ? Je v ous remercie, Monsieur
le président.
Le PRESIDENT : Merci, Monsieur le juge.
The written text of this question will be sent to the Parties as soon as possible. The Parties
are invited to provide their written replies to th e question no later than Friday 11May2012. In
accordance with Article 72 of the Rules of Court, any comments which a Party may wish to make
on any written reply by the other Party must be submitted not later than on Friday 18 May 2012.
This brings us to the end of the oral proceed ings. I should like to thank the Agents, counsel
and advocates for their statements.
In accordance with the practice, I shall request the Agents of the Parties to remain at the
Court’s disposal to provide any additional info rmation it may require. With this proviso, I now
declare closed the oral proceedings in the case concerning the Territorial and Maritime Dispute
(Nicaragua v. Colombia).
The Court will now retire for deliberation. The Agents of the Parties will be advised in due
course of the date on which the Court will deliver its Judgment. As the Court has no other business
before it today, the sitting is closed.
The Court rose at 4.35 p.m.
___________
Public sitting held on Friday 4 May 2012, at 3.10 p.m., at the Peace Palace, President Tomka presiding, in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia)