INTERNATIONAL COURT OF JUSTICE
____________________________________________
TERRITORIAL AND MARITIME DISPUTE
(NICARAGUA v. COLOMBIA)
REJOINDER OF THE
REPUBLIC OF COLOMBIA
VOLUME I
18 JUNE 2010 TABLE OF CONTENTS
Chapter 1. INTRODUCTION
A. Overview...............................................................................................................1
B. Nicaragua’s Drastic Changes of Position .............................................................3
C. Nicaragua’s Refusal to Accept the Court’s Judgment on Preliminary
Objectio...s..........................................................................................................7
D. Nicaragua’s Repleaded Case on Sovereignty and Delimitation.........................10
S) 1 ( OVEREIGNTY OVER THE CAYS ................................................................10
M) 2 ( ARITIME DELIMITATION ........................................................................19
E. Structure of this Rejoinder..................................................................................23
PART ONE – COLOMBIA’S SOVEREIGNTY OVER THE CAYS
Chapter 2. THE ARTIFICIAL CHARACTER OF NICARAGUA’S
TERRITORIAC LLAIM
A. Introduction .........................................................................................................29
B. Nicaragua Ignores the Basis of Colombian Sovereignty over the Cays.............31
T) 1 ( HE OVERWHELMING CASE FOR COLOMBIAN SOVEREIGNTY OVER
THE CAYS .................................................................................................31
N) 2 ( ICARAGUA ’S COMPLETE FAILURE TO RESPOND TO KEY ISSUES
RAISED INC OLOMBIA ’S COUNTER -MEMORIAL ........................................41
C. Nicaragua’s Continued Reliance on a Groundless Uti Possidetis Claim ...........44
N) 1 ( ICARAGUA ’S CONTRADICTORY ARGUMENTS CONCERNING UTI
POSSIDETIS...............................................................................................45
T) 2 ( HE SUPPOSED “UNITY” OF THE CAYS AND THE M OSQUITO C OAST .........48
N) 3 ( ICARAGUA ’S ADJACENCY ARGUMENT ...................................................52
D. Nicaragua’s Attempt to Distort the Scope of the 1928/1930 Treaty ..................59
T) 1 ( HE OBJECT AND PURPOSE OF THE 1928/1930T REATY ............................59T) 2 ( HE “SAN A NDRÉS ARCHIPELAGO ”IN A RTICLE ICOVERS ALL THE
CAYS ........................................................................................................62
N) 3 ( ICARAGUA ’S ERRONEOUS INTERPRETATION OF A RTICLEI,PARA . 2
OF THET REATY ........................................................................................68
T) 4 ( HE LIMITED SCOPE OF THE “M OSQUITO COAST ” INA RTICLE IOF
THE TREATY .............................................................................................70
E. Nicaragua’s Conduct Compared with that of Colombia.....................................77
FC. onclus.........................................................................................................80
Chapter 3. QUITASUEÑO
AI. troduct.......................................................................................................83
B. The Issues as Presented in the Pleadings............................................................84
C. The Applicable Law............................................................................................88
D. Existence of Islands and Low-tide Elevations on Quitasueño and their Legal
Consequenc .....................................................................................................94
I ) 1 ( SLANDS AND LOW TIDE ELEVATIONS ON Q UITASUEÑO ...........................98
L) 2 ( EGAL CONSEQUENCES OF THESE FACTS ...............................................101
E. Quitasueño as a Unit.........................................................................................103
FC. onclusi.....................................................................................................109
PART TWO – MARITIME DELIMITATION
Chapter 4. NICARAGUA’S FUNDAMENTAL CHANGE OF POSITION
A. Nicaragua’s Abandonment of Its Single Maritime Boundary Claim................113
V) 1 ( INDICATION OF C OLOMBIA S POSITION ................................................114
T) 2 ( HE IRRELEVANCE OF GEOLOGY AND GEOMORPHOLOGY .......................118
N) 3 ( ICARAGUA ’S NEW CLAIM IS EVEN MORE EXTREME THAN THE
CLAIM ADVANCED IN ITS M EMORIAL ......................................................122 B. Nicaragua’s New Continental Shelf Claim Is Inadmissible: The Issue for
the Court Remains the Delimitation of a Single Maritime Boundary ..............122
C. Nicaragua’s New Continental Shelf Claim Has No Merit................................136
T) 1 ( HERE ARE NO AREAS OF EXTENDED CONTINENTAL SHELF IN THE
WESTERN CARIBBEAN ............................................................................136
A) 2 ( RTICLE 76 OF THE UNITED N ATIONS C ONVENTION .............................139
T) 3 ( HE OUTER LIMITS OF AN EXTENDED CONTINENTAL SHELF CLAIM
MUST BE SUBMITTED TO THE UNITED N ATIONS C OMMISSION ,
NOT THE COURT ,AND MUST BE BASED ON THE COMMISSION S
RECOMMENDATIONS ..............................................................................140
N) 4 ( ICARAGUA HAS NOT PROVED THE LIMITS OF ITS OWN
CONTINENTAL MARGIN AND THE OUTER LIMIT OF C OLOMBIA ’S
MARGIN FROM ITS MAINLAND COAST IS IRRELEVANT .............................144
E) 5 ( XTENDED CONTINENTAL SHELF CLAIMS DO NOT TRUMP 200 NAUTICAL
MILE ENTITLEMENTS ..............................................................................149
DC.onclusio.....................................................................................................156
Chapter 5. THE AREA OF DELIMITATION
A. The Delimitation Concerns the Area Lying between Nicaragua’s Coast and
Colombia’s San Andrés Archipelago................................................................160
T) 1 ( HIS IS NOT A CASE OF DELIMITATION BETWEEN MAINLAND COASTS .....160
C) 2 ( OLOMBIA ’S ISLANDS GENERATE THEIR OWN MARITIME
ENTITLEMENTS .......................................................................................168
T) 3 ( HE RELEVANT DELIMITATION AREA IS THE AREA BETWEEN THE
P ARTIES’RELEVANT COASTS .................................................................184
N) 4 ( ICARAGUA ’S INCONSISTENT POSITION WITH RESPECT TO ITS OWN
ISLANDS .................................................................................................189
B. The Position of Third States .............................................................................192
T) 1 ( HE NEED TO TAKE INTO ACCOUNT THE PRESENCE OF THIRD STATES ....192
(2) T HE PRESENCE OF THIRD STATES AND EXISTING DELIMITATION
AGREEMENTS BEARING ON THE IDENTIFICATION OF THE
DELIMITATION AREA ..............................................................................194 Chapter 6. APPLICATION OF THE PRINCIPLES AND RULES OF
DELIMITATION: ESTABLISHING THE PROVISIONAL
EQUIDISTANCE LINE AS THE FIRST STEP IN THE
DELIMITATION
AI. troduct.....................................................................................................197
B. Equidistance as the First Step...........................................................................200
L) 1 ( IBYA -M ALTA .......................................................................................200
G) 2 ( REENLAND -JAN M AYEN ......................................................................202
Q) 3 ( ATAR -B AHRAIN ...................................................................................205
C) 4 ( AMEROON -NIGERIA .............................................................................208
R) 5 ( OMANIA -UKRAINE ...............................................................................210
O) 6 ( THER PRECEDENTS ..............................................................................211
C) 7 ( ONCLUSIONS AS TO THE ESTABLISHMENT OF THE PROVISIONAL
EQUIDISTANCE LINE AS A FIRST STEP ......................................................212
C. Even Where the Plotting of a Provisional Equidistance Line Is Not Practical,
Equidistance Remains the Rule ........................................................................215
D. Colombia’s Delimitation Respects, and Is Consistent with, the Law...............218
EN. icaragu’sainlCdo...t.........................................................................228
F. Nicaragua’s Claims Ignore the Law .................................................................232
GC.onclusio.....................................................................................................233
Chapter 7. NICARAGUA’S ENCLAVE THEORY
AI. troduct.....................................................................................................235
B. Islands Have Never Been Enclaved in the Situation that Exists in the Present
Case ...............................................................................................................237
T) 1 ( HE BASIC GEOGRAPHIC FACTS ..............................................................237
T) 2 ( HIS SITUATION DISTINGUISHES THE PRESENT CASE FROM THE EXAMPLES
CITED BY NICARAGUA ............................................................................241 C. Small Islands Have Frequently Received Full Effect in Maritime
Delimitations .....................................................................................................254
S) 1 ( TATE PRACTICE GENERALLY ................................................................254
R) 2 ( EGIONAL PRACTICE IN THE SOUTHWEST CARIBBEAN ...........................267
D.onclusio......................................................................................................270
Chapter 8. REFLECTING THE RELEVANT CIRCUMSTANCES
A. troducti.....................................................................................................273
B. The Absence of Any Nicaraguan Presence in the Waters of the
San Andrés Archipelago...................................................................................275
C. The Relevance of the 82°W Meridian ..............................................................281
D. Resource and Security Factors..........................................................................290
R) 1 ( ESOURCE MANAGEMENT AND CONTROL ..............................................290
C) 2 ( OLOMBIA ’S UNDERTAKING OF SECURITY MEASURES ...........................297
E. Geographic Factors and Proportionality...........................................................306
F. Interests of Third States....................................................................................311
G.onclusio......................................................................................................314
PART THREE – OTHER MATTERS
Chapter 9. NICARAGUA’S REQUEST FOR A DECLARATION ..................319
SUMMARY ...............................................................................................................327
SUBMISSIONS ...........................................................................................................337
LIST OF APPENDICES, ANNEXES AND MAPS (VOLUME II) .......................339 INTERNATIONAL COURT OF JUSTICE
TERRITORIAL AND MARITIME DISPUTE
(NICARAGUA v. COLOMBIA)
REJOINDER OF THE REPUBLIC OF COLOMBIA
Chapter 1
INTRODUCTION
A. Overview
1.1. This Rejoinder is filed in accordance with the Court’s
Order of 18 December 2008. It responds to Nicaragua’Reply
of 18 September 2009 and focuses on issues that continue to
divide the Parties.
1.2. The Reply makes very little attempt to deal with
Colombia’s case on sovereignty over those components of the
Archipelago left open by the Court in its decision of 13
December 2007 (hereafter referred to collectively as “the cays”).
Chapter I of Nicaragua’s Reply spends only 33 pages on “The
Issue of Sovereignty” (as compared with 174 pages in Chapters
II-VII on maritime delimitation).
1.3. In consequence, many of the arguments, and many items
of evidence, presented by Colombia in thCounter-Memorial
1are simply not responded to in the Reply. For example in the
Counter-Memorial, Colombia set out in detail the array of
effectivités it has exercised over the Archipelago, including all
the cays, in the years since independence; and showed that
Nicaragua had by contrast done nothing whatever by way of the
exercise of State authority over any of the islands, individually
1
or collectively. Indeed, for long periods of time, throughout the
th 2
19 century up until 1913, and then in the years from 1928 to
3
1980, Nicaragua simply accepted Colombian sovereignty.
4
None of this does Nicaragua’s Reply contest or deny.
1.4. The Court can therefore proceed on the basis that, as
between the parties to this case, 5 only Colombia has ever
administered à titre de souverain any of the islands and related
features which are at stake, in the 200 years since its
independence; that this administration has been peaceful and
(for most of the time) uncontested, and that it has been widely
1
Colombia’s Counter-Memorial (hereafter CCM) CM, Chapters 2-3,
esp. pp. 88-146. The de scription of Colombia’s effectivités occupies more
space than the entire treatment of the sovereignty dispute in Nicaragua’s
Reply (hereafter NR).
2 Nicaragua’s first general claim to the Archipelago was made in
1913: see CCM, para. 6.6.
3 Nicaragua claimed Quitasueño, Roncad or and Serran a in 1972; its
claim to the whole Archipelago, based on th e “invalidity” of the 1928/1930
Treaty, only came in 1980: see CCM, paras. 6.7-6.8. For the variability of
4icaragua’s claim, see CCM, paras. 6.5-6.11.
For other examples of issues to which Nicaragua failed to respond,
see below, paras. 2.19, 2.22, 2.58.
5 There have been claims to individual features by third States, always
resolved in Colombia’s favour by treaty. See as to the United States
(Quitasueño, Roncador, Serrana), CCM , paras. 4.51-4.59; as to Honduras
(Serranilla), CCM, paras. 4.163-4.166.
2recognized by third States, including (for most of the time)
Nicaragua.
1.5. Territorial disputes normally involve some combination
of (1) original title; (2) effectivités; (3) recognition; (4)
sometimes a treaty is determinative (if it is a treaty allocating
territory or fixing a boundary, it will be presumed to resolve the
territorial or boundary problem completely and definitively 6);
and (5) a background factor, the maxim quieta non movere –
respect for long, uncontested and peaceful possession. It is a
feature of the present case that all five elements or factors
favour Colombia, while Nicaragua gains no support from any of
them. Instead, Nicaragua posits an untenable interpretation of
the 1928/1930 Treaty, disregarding its real scope as an
instrument recognizing Colombia’s sovereignty over the San
Andrés Archipelago, including all the islands to the east of the
82°W meridian, and settling definitively the territorial dispute
between the two States.
B. Nicaragua’s Drastic Changes of Position
1.6. A second feature of the Reply is equally obvious:
Nicaragua has completely recast its case both on sovereignty
and on delimitation. The case began as a claim (predicated on
the invalidity of the 1928/1930 Treaty) to the islands comprising
6 See Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment,
I.C.J. Reports 1994, p. 6, 23-24, para. 47, citing Interpretation of Article 3,
Paragraph 2, of the Treaty of L ausanne, Advisory Opini on, 1925, P.C.I.J.,
Series B, No .12, p. 20; Sovereignty over Certain Frontier Land
(Belgium/Netherlands), Judgment, I.C.J. Reports 1959, p. 209, 221-222.
3the San Andrés Archipelago (though Nicaragua omitted some
individual islands, which had to be added later, as an after-
thought ). There was also a claim to a single maritime boundary
drawn as an approximate median line between mainland coasts.
1.7. Ihe Reply the cases made on these two fronts have
completely changed. This is not the normal modulation of
argument which occurs in the course of pleading; it is a
complete transformation on both fronts. It may be illustrated by
comparing the positions taken by Nicaragua in its Application
with those taken in the Reply. For example:
x The Application claimed title on the basis of uti
possidetis, the Treaty of 1928/1930 being invalid. 9
x The Application treated all the cays as part of the San
Andrés Archipelago except Roncador, Quitasueño,
10
Serrana and Serranilla.
x The Application accepted the fundamental premise of
maritime delimitation, that land sovereignty is a
11
“condition precedent” to maritime delimitation.
x The Application sought a single maritime boundary,
including delimitation of the EEZ. 12
7 See CCM, paras. 6.9-6.10.
8 Nicaraguan Application, para. 2.
9 Nicaraguan Application, para. 4.
10
11 Nicaraguan Application, paras. 2, 8.
12 Nicaraguan Application, para. 3.
Nicaraguan Application, paras. 3, 4, 5, 8.
41.8. In each of these respects, Nicaragua’s Reply takes a
totally different, contradictory position.
x The Reply disavows reliance on uti possidetis (though
without formally abandoning it). 13 Instead, the question
is one of the interpretation of the Treaty of 1928/1930.
That Treaty is read – implausibly – as reserving to
Nicaragua not merely all islands west of the 82°W
meridian, which is what it was intended to do, but all
cays to the east of that meridian which are not proved to
14
be part of the Archipelago. It is also read – also
implausibly – as making a renvoi to the uti possidetis of
1810/1821, rather than as finally settling the dispute
between the parties over the Archipelago which broke
out in 1913. 15
x The Reply presumes that “[o]n the basis of the 1928
Treaty”, only the three islands of San Andrés,
Providencia and Santa Catalina are part of the
Archipelago; all other features are not unless otherwise
shown. Moreover, if not part of the Archipelago, the
cays belong to Nicaragua by virtue of its sovereignty
over the Mosquito Coast and “offshore maritime
features”. 16This is a remarkable interpretation of a
Treaty which (a) recognizes as Colombian “all the other
islands, islets and cays that form part of the said
13 NR, p. 8 (para. 21).
14 NR, p. 4 (para. 13).
15 NR, para. 1.15. Cf. NR, para. 1.64 (the time of independence is
said to be “the moment of determination of title”).
16 NR, p. 4 (para. 13), p. 5 (para. 14).
5 Archipelago”; (b) establishes the 82°W meridian as the
western limit of the Archipelago, by which was meant, in
the words of Nicaraguan Foreign Minister at the time,
“the geographical boundary between the archipelagos in
dispute”, 17and (c) does not name as Nicaraguan any
offshore features other than the Corn Islands.
x The Reply affirms Nicaraguan sovereignty over the cays
on the basis that they are on an asserted Nicaraguan
continental shelf. For Nicaragua now the shelf
dominates the land. 18
x The Reply denies that the Court should draw a single
maritime boundary, arguing instead for a continental
shelf delimitation based on alleged geomorphological
considerations in an area well within 200 nm of
Colombia’s mainland coasts and the coasts of its islands,
and well beyond 200 nm from Nicaragua. 19
1.9. These extraordinary twists and turns raise a question as
to the admissibility of Nicaragua’s new claims, especially to
outer continental shelf: this is dealt with in Chapter 4 of this
Rejoinder. For present purposes, however, Colombia merely
observes that the credibility of Nicaragua’s positions in the
Reply is surely affected by the confident manner in which it had
earlier affirmed quite different propositions.
17 See CCM, para. 5.45, citing CCM Annex 199.
18 NR, p. 6 (para. 16), para. 4.1.
19 NR, Chapter III.
6 C. NicaraguaR ’sefusal to Accept the Court’s
Judgment on Preliminary Objections
1.10. Not the least remarkable feature of the Reply is
Nicaragua’s effective refusal to accept the Court’s decision of
13 December 2007 on the Preliminary Objections.
1.11. The point is made in the following passage of the Reply:
“9. Nicaragua also understands that the
jurisdiction of the Court is only available on the
basis that the 1928 Treaty is valid. Nicaragua
accepts the decision of the Court and the
conditions under which jurisdiction has been
recognized and will accordingly adapt and adjust
her petitions and submissions within the limits
set in the 13 December 2007 Judgment.
10. Nicaragua’s acceptance of the conditions
under which jurisdiction has been recognized
does not imply that she has changed or
renounced her historical claim that the 1928
Treaty was imposed on Nicaragua and lacks any
legal or moral authority. To the full extent that it
is legally permissible in the present
circumstances, Nicaragua will continue to reserve
her position on all these issues.”0
1.12. What moral authority Nicaragua could possibly have
over a substantial Colombian population, inhabiting an
archipelago which has been peacefully administered as part of
Colombia for two centuries, it is impossible to understand. But
the Court is the judge of legal authority, not Nicaragua, and the
assertion that the 1928 Treaty lacks “any legal… authority” is
extraordinary, not to mention disrespectful to the Court. The
20 NR, p.3 (paras. 9-10).
7Court found that it lacked jurisdiction over Nicaragua’s claim
(as concerns San Andrés, Providencia and Santa Catalina)
because the Treaty settled the question of sovereignty over the
San Andrés Archipelago as a whole, and over the three named
islands, and was valid. This finding is res judicata, binding on
both parties.21 As the Court said:
“81. In light of all the foregoing, the Court finds
that the 1928 Treaty was valid and in force on the
date of the conclusion of the Pact of Bogotá in
1948, the date by reference to which the Court
must decide on the applicability of the provisions
of Article VI of the Pact of Bogotá setting out an
exception to the Court’s jurisdiction under
Article XXXI thereof.
…
88. The Court considers that it is clear on the
face of the text of Article I that the matter of
sovereignty over the islands of San Andrés,
Providencia and Santa Catalina has been settled
by the 1928 Treaty within the meaning of Article
VI of the Pact of Bogotá. In the Court’s view
there is no need to go further into the
interpretation of the Treaty to reach that
conclusion and there is nothing relating to this
issue that could be ascertained only on the
22
merits.”
21 Cf. Oil Platforms (Islamic Republic of Iran v. United States of
America), Preliminary Objection, Judgment, I. C.J. Reports 1996p. 803,
814-815 (paras. 28-32); Oil Platforms (Islamic Republic of Irv. United
States of America), Judgment, I.C.J. Reports 2003, p. 161, 178 (para. 31).
22 Emphasis added. The dissentie nts disagreed with the Court
deciding the issue at the stage of PreliminarObjections; none of them,
however, expressed doubt as to the outcome. See Judgment of 13 December
2007, Vice President Al-Khasawneh, para. 2; Judge Ranjeva, para 11; Judge
Abraham, para. 32. Cf. Judge Simma, p. 4.
81.13. As the Court held, the dispute concerning sovereignty
over the Archipelago, including the three named islands, was
settled as between Colombia and Nicaragua when the 1928/1930
Treaty came into force. There is no legal basis whatever for
Nicaragua to “continue to reserve her position on all these
23
issues.”
1.14. Indeed, it is inconsistent with good faith in the
settlement of disputes before the Court for a State party – more
especially a Claimant State – to reserve its alleged legal rights,
contrary to a decision of the Court binding on it, while calling
on the Court to grant it further relief. Yet that is precisely what
Nicaragua does here. It says:
“the 13 December 2007 Judgment determined
that the Court had no jurisdiction to consider the
dispute over the sovereignty over these features.
Hence, Nicaragua is proceeding in this case
within the limits of the jurisdiction granted by
the Court [sic]; that is, for the purposes of this
case those islands will be co24idered under the
sovereignty of Colombia.”
But the Court cannot delimit maritime areas on a hypothesis.
Nor can a Claimant State assert that it only accepts a decision,
on the basis of which it calls on the Court to act in its judicial
capacity, “for the purposes of this case”. When this case is over,
what will happen then?
23 NR, para. 10.
24
NR, para 2.12 (emphasis added). See also NR, para. 4.1 (“the
claims to sovereignty presently made in this Reply” (emphasis added); these
words imply that other claims to sovereignty may be made on other
occasions).
91.15. The point is highly material to the future of the
Archipelago. Figure NR-6-10 shows Nicaragua’s maximalist
maritime claim, which enclaves the islands and cays at 12 nm
for the larger ones and 3 nm for the rest. It will be seen that the
unity of the Archipelago is destroyed. And since Nicaragua’s
acceptance of Colombian sovereignty is only a deemed and
temporary acceptance (“for the purposes of this case those
islands will be considered under the sovereignty of
25
Colombia” ), how long will that situation last? After all,
Nicaragua now professes to believe – though the Court has
repeatedly denied it – that continental shelf rights determine
sovereignty over islands, and trump EEZ rights into the bargain!
D. Nicaragua’s Repleaded Case on Sovereignty and
Delimitation
1.16. As set out in the Reply, Nicaragua’s latest case is as
follows:
(1) S OVEREIGNTY OVER THE CAYS
1.17. Subject to various “reservations”, notably the reservation
26
of its original claim to the Archipelago, Nicaragua “adapt[s]”
that claim, transforming it into a claim to islands allegedly not
part of the Archipelago. Moreover, according to Nicaragua, the
onus of proof in this matter is on Colombia, despite Nicaragua’s
status as Applicant.
25 NR, para 2.12.
26 NR, para. 1.1
10 “13. On the basis of the 1928 Treaty, the
position of Nicaragua is that the recognition of
sovereignty over the Mosquito Coast includes all
the appurtenant rights of that Coast to its off-
shore maritime features. These maritime features
include all those not proven to be part of the ‘San
Andrés Archipelago’ which is recognized in that
Treaty to appertain to Colombia.” 27
1.18. But Nicaragua is a claimant to sovereignty over islands
long administered as part of Colombia (and never administered
by Nicaragua). As such, the onus of proof is squarely on it to
establish title. Actori incumbit probatio ; if Nicaragua claims
any individual feature, it has to make out its claim, something it
28
has wholly failed to do. It is a desperate argument to assert
that, unless Colombia can prove that the various islands were
part of the Archipelago in 1810, they were considered part of the
Mosquito Coast and thus Nicaraguan. It is also a non sequitur.
If the Islands were not definitively attributed to any State by the
uti possidetis principle, and if sovereignty was not finally
determined by the 1928/1930 Treaty – quod non , because of the
Treaty’s text itself and the limit of the 82°W meridian –, then
27 NR, p.4 (para. 13) (see also paras 1.39-1.44). Th e passage from
CCM, para. 1.9 cited by Nicaragua in support, does not say the same thing at
all. Following the Judgmen t of 13 December 2007, it is sufficient for
Colombian sovereignty that a feature was part of the Archipelago in 1930.
But it is not necessary: if (for the sake of argument) some feature was held
not to be part of the Archipelago, that does not mean that it is Nicaraguan.
28 Cf. Case concerning Pulp Mills on the River Uruguay (Argentina v.
Uruguay), Judgment of 20 April 2010, paras. 162-164.
11 29
sovereignty would be determined by the balance of effectivités.
In the present case, that balance is all one way.
1.19. Apart from considerations relating to the onus of proof,
Nicaragua’s adapted case is as follows:
(1) “[A]ll questions relating to the territorial dispute can be
resolved by reference to” the 1928/1930 Treaty; 30
questions of uti possidetis are “not relevant” 31; “the issue
is not whether Nicaragua or Colombia had the better title
over the territories in dispute at independence, since it
must be accepted… that each had a perfect title as from
32
the 1928 Treaty.”
(2) But by reference to the 1928/1930 Treaty, Nicaragua in
effect reintroduces the uti possidetis argument by the
back door:
“Since both Parties can lay claim to original
title over their respective areas based on the
uti possidetis iuris at the moment of
Independence, the consequence of the 1928
Treaty is that both parties can claim an
original or derived title based on the uti
possidetis iuris at the time of the
independence of Nicaragua in 1821 or at the
29 See Case concerning Territoria l and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras),
Judgment of 8 October 2007, paras. 161- 164. Nicaragua protests (NR, p. 8,
fn 13) that the Court’s obiter dictum in Nicaragua/Honduras “does not have
the effect of res iudicata”. Being between different parties obviously it could
not have that effect. It was nonetheless a considered statement, and it is
equally relevant here.
30 NR, para. 1.3.
31 NR, para. 1.3.
32 NR, para. 1.64.
12 time of33he independence of Colombia in
1810.”
Of course this is not at all what the Treaty says. The
intention was to definitively settle the dispute arising
from the Nicaraguan claim of 1913, not to leave
sovereignty over the various islands, islets and cays
indeterminate by reference to a criterion of the uti
possidetis of 1810 or 1821. The Treaty is clear on this,
34
as are the travaux. The Treaty – Nicaragua itself
accepts this – divided the five named features, all part of
Colombia according to the uti possidetis, two going to
Nicaragua (the Corn Islands), three to Colombia. The
82°W meridian was defined as the western limit of the
Archipelago and therefore, “ all the other islands, islets
and cays” to the east of that limit, belonging to and
administered by Colombia as part of the Archipelago,
were allocated to Colombia.
(3) In fact Nicaragua was perfectly aware of the extent of the
Archipelago. That was stated with precision in a Report
by Foreign Minister Holguín to the Colombian Congress
in 1896 (after the dispute with Nicaragua concerning the
33 NR, para. 1.15.
34 See CCM, paras. 5.38-5.58. For example, the Nicaraguan Minister
of Foreign Affairs is recorded as describing the 82°W meridian to the Senate,
the day before its approval of th e Treaty, as “the geographic limit between
the archipelagos in d ispute without which it could not be settled the matter
completely”: Nicaragua’s Memorial (hereafter NM), Annex 80, p. 259. The
passage is annexed to NM but is cited in neither NM nor NR. (Colombia’s
translation, at Annex 199 and cited in CCM para. 5.54 reads as follows: “the
geographical boundary between the ar chipelagos in dispute, without which
the question would not be completely defined.”)
13 Corn Islands had broken out), to which Nicaragua does
not respond. 35 It was equally summed up by the
Colombian Ambassador to Nicaragua, Esguerra, in a
letter of 27 November 1927, referring to his negotiations
with Nicaragua on the Treaty, to which, equally,
36
Nicaragua does not respond. Colombia’s peaceful
exercise of sovereignty and jurisdiction over all of the
Archipelago’s components was explicit and publicly
37
displayed.
(4) The distinction between the Archipelago and “the
Nicaraguan Mosquitia” – as well as the intent to “put[]
an end to the question pending between both Republics
regarding” the two – was repeatedly expressed in
Colombian and Nicaraguan official documents of the
time, among which are the following:
(a) in the Official Opinion of the Nicaraguan
Government on the End of the Dispute with
35
CCM, paras. 2.59-2.60, and CCM Annex 89: “Colombia has upheld,
upholds and will continue to uphold, until the end of time, that the islands of
the Archipelago of San Andrés, formed by three groups of islands that spread
from the coasts of Central America, facing Nicaragua, to the cay of Serranilla
between latitude 15°52 north and lo ngitude 80°20 west of the Greenwich
meridian, the first of these groups being formed by the islands of Providencia
and Santa Catalina and the cays of Roncador, Quitasueño, Serrana, Serranilla
and Bajo Nuevo; the islands of San Andrés and the cays of Alburquerque,
Courtown Bank and others of less im portance, forming the second; and the
islands of San Luis de Mangle, such as Mangle Grande, Mangle Chico and
the cays of Las Perlas forming the th ird, as well as the Mosquito Coast, are
36s property and belong to it by inheritance, under the uti possidetis of 1810.”
37 CCM, paras. 2.67-2.68 and CCM Annex 112.
See, for instance, Colombian Official Journals in CCM, Annexes 73,
75, 79-81, 86, 90, 93, 96 -97, 99, 100 and 110 (Guano Contracts and related
provisions). See also, e.g., CCM, Anne xes 72, 76, 85, 87, 89, 91-92, 94-95,
and 104-109.
14 Colombia, 22 September 1928; 38
(b) in the Nicaraguan Congressional Decree
approving the 1928/1930 Treaty, 6 March
39
1930;
(c) by the Nicaraguan Chamber of Deputies in
its resolution of 3 April 1930; 40
(d)in the fu ll powers from the Nicaraguan
President to the Nicaraguan Foreign Minister,
41
9 April 1930;
(e)In the 1930 Report to Congress by the
Nicaraguan Foreign Minister concerning the
42
1928/1930 Treaty.
(5) In any event, for the reasons stated in the Counter-
Memorial and developed further in Chapter 2, the uti
possidetis of 1810 supported the jurisdiction of the Vice-
Royalty of Santa Fe (New Granada), not that of
Guatemala – i.e. of Colombia, not Nicaragua. 43 The uti
possidetis of course related to the Archipelago as a
whole, not to individual cays. The uti possidetis
argument cannot be made to fit with Nicaragua’s
“adapted” case on sovereignty, which does concern
individual cays.
38 CCM, Annex 196.
39 Colombia’s Preliminary Objections (hereafter CPO), Annex 10.
40
41 CCM, para. 5.55, and CPO, Annex 10.
42 CCM, Annex 200.
43 CCM, Annex 201.
CCM, paras. 3.7-3.15.
15 (6) As to the three other named cays of the Archipelago in
Article I of the 1928 Treaty (i.e., Roncador, Quitasueño
and Serrana), Nicaragua makes the following points:
(a) The cays “do not form part of the San Andrés
Archipelago”; 44
(b) Article I did not involve a relinquishment of
claim by Nicaragua; 45
(c) if Colombia cannot prove the features were
part of the Archipelago, then they
“appertained to [the] coast”, in effect, an
46
argument from contiguity.
(7) None of these arguments will do, for reasons explained
in the Counter-Memorial and further in Chapter 2:
(a) the three features were expressed to be part
of the Archipelago as shown by numerous
documents cited in the Colombian Counter-
Memorial, e.g., by the prefect of the National
Territory of San Andrés in 1871, 47 by the
British Colonial Office in 1874, 48 by the
Governor of Jamaica in 1875, 49 by the
Prefecture of the Province of Providencia in
1890, by Foreign Minister Marco Fidel
44
45 NR, para. 1.88.
NR, paras. 1.90-1.91.
46 NR, para. 1.96.
47 CCM, para. 2.49.
48 CCM, para. 2.50.
49 CCM, para. 2.52.
50
CCM, para. 2.53.
16 51
Suarez in 1894, by Foreign Minister
52
Holguín in 1896, by the guano extraction
contracts approved by the National
53
Congress, and by the Colombian
Ambassador to Nicaragua, Esguerra, in
1927, among others. Colombia furnished
similar evidence with regard to the cays’
appurtenance to the Archipelago with regard
to the 20 thcentury prior to 1928 55 and from
the conclusion of the 1928 Treaty to date. 56
Moreover, the cays as part of the Archipelago
were consistently depicted as such on
57
Colombian maps and charts;
(b) Article I is not a relinquishment of a declared
claim because in 1928 there was no separate
Nicaraguan claim to the three features; rather
it is powerful evidence that Nicaragua
entertained no such claim; if it had done so,
Article I would have been worded
58
differently;
(c) arguments from mere contiguity or proximity
to the coast of features beyond the coastal
51 CCM, paras. 2.55 and 2.56.
52
53 CCM, para. 2.59.
54 CCM, para. 2.57.
CCM, para. 2.68.
55 CCM, paras. 2.62 to 2.70.
56 CCM, paras. 2.67 and ff.
57 See CCM, paras. 2.79-2.97, 3.117-3.125.
58 See CCM, paras. 4.36-4.47.
17 territorial sea, in the absence of effectivités,
have no validity. 59 In any event the three
features are not contiguous or proximate to
the Nicaraguan coast.
1.20. With regard to Quitasueño, Nicaragua has both
contradicted itself and is wrong on the facts. First, Nicaragua’s
pleadings in the present proceedings refer to Quitasueño as a
“bank” while in the 1928 Treaty it had referred to it as a “cay”,
in the same way as for Roncador and Serrana; secondly, it now
denies that it is being capable of appropriation, while in the
1928 Treaty it recognized that sovereignty was in fact in dispute
between Colombia and a third State. Likewise, the official
notification by Colombia to the Nicaraguan Government and
Congress of the 1928 Colombia-United States Agreement
referred to the features as “cays”, expressly mentioned that they
were part of the San Andrés Archipelago and was never
objected to by Nicaragua.
1.21. Asto in situ evidence on the characteristics of
Quitasueño, only Colombia has provided any. It submitted the
report on a survey conducted by its Navy in 2008 with its
Counter-Memorial. Given the position taken in the Reply,
Colombia has had it further verified by an expert report, finding
34 islands and 20 low-tide elevations on Quitasueño. 60
59
See CCM, para. 6.15, citing Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v.
60nduras), Judgment of 8 October 2007, p.25, para. 75.
See below, Chapter 3, and for the Smith Report see Appendix 1.
181.22. In fact Colombia has exercised its sovereignty and
jurisdiction over Quitasueño in the same public, peaceful and
uninterrupted manner as over the other islands and cays of the
Archipelago.
1.23. For these reasons, Nicaragua fails to mount a credible
case on sovereignty, in substitution for its claim to the whole
Archipelago, made in the Memorial and rejected by the Court in
limine. Moreover there is a striking contrast between the
suggestion that the onus of proving sovereignty belongs to the
Respondent State and the numerous arguments and documents
produced by Colombia in its Counter-Memorial to which
Nicaragua has failed to respond. Further examples will be
given, as relevant, in later Chapters of this Rejoinder, with
reference to the Counter-Memorial which remains, especially as
to territorial sovereignty, the definitive statement of Colombia’s
case.
1.24. In short, Nicaragua has failed to make out a coherent
alternative case for sovereignty over any of the cays – its
primary case having failed at the Preliminary Objections stage.
In essentials the case is reduced to one about maritime
delimitation between the Colombian islands and Nicaragua’s
relevant coasts.
(2) M ARITIME DELIMITATION
1.25. Turning to that maritime delimitation case, Nicaragua’s
Reply presents a new and fundamentally different claim than
19was the subject of its Application and Memorial and even as
presented in its Observations at the Preliminary Objections stage
of the case. In those pleadings, Nicaragua requested the Court
to delimit a single maritime boundary between the Parties based
on a mainland to mainland median line. Geology and
geomorphology were deemed by Nicaragua to be irrelevant. In
contrast, Nicaragua’s Reply has completely abandoned that
position – a position that Colombia’s Counter-Memorial showed
to be utterly untenable given that Nicaragua’s claimed median
line fell much more than 200 nautical miles from Nicaragua’s
coast in an area where Nicaragua has no legal entitlements.
Without any explanation for its change of position, the
Nicaraguan Reply now states that Nicaragua has “decided that
her request to the Court should be for a continental shelf
delimitation” 61– as if the scope of a case once submitted to the
Court could be unilaterally redefined by the Claimant
1.26. It is not simply that Nicaragua no longer seeks the
delimitation of a single maritime boundary from the Court that
distances Nicaragua’s Reply from its earlier submissions;
Nicaragua also asks the Court to accept the proposition that it
possesses extended continental shelf rights stretching well
beyond 200 miles from its coasts. This claim is advanced
despite the fact that Nicaragua has made no submission as
required by Article 76 of the 1982 Convention to the United
Nations Commission regarding such alleged rights and the
Commission has neither considered the matter nor issued any
61 NR, p.12, para. 26.
20recommendations relating thereto. Notwithstanding these
deficiencies, the Nicaraguan Reply now presents as the
centrepiece of its positive case a request to the Court to delimit
its extended continental shelf into areas well within 200 nm of
Colombia’s mainland coast.
1.27. But quite apart from formal considerations, including the
inadmissibility of a new outer continental shelf claim at this late
stage of the proceedings, Nicaragua’s new and exaggerated
claim suffers from insurmountable defects. Procedurally,
extended continental shelf claims fall to be submitted to and
considered by the Annex II Commission based on a full
submission. Nicaragua has not made such a submission.
Factually, the meagre information furnished by Nicaragua does
not begin to support any entitlement to outer continental shelf
rights. Legally, there are no areas of outer continental shelf in
this part of the Caribbean Sea because the areas concerned all lie
within 200 nautical miles of the ter ritory of other littoral States
bordering the region, including within 200 miles of Colombia’s
insular and mainland territory.
1.28. If Nicaragua’s original claim was artificial and
exaggerated, its new claim is even more so. The claim still falls
in areas where Nicaragua has no legal entitlement and is based
on a purported equal division alleged overlapping of physical
continental shelves that is at odds with the well established
principles and rules of international law governing maritime
delimitation.
211.29. In contrast, Colombia’s approach to delimitation has
been presented squarely within the established legal principles
of maritime delimitation as those principles have been
articulated by the Court and arbitral tribunals. Colombia has
shown that the area within which the maritime projections of the
Parties’ coasts meet and begin to overlap is situated in the area
lying between the islands comprising the San Andrés
Archipelago and Nicaragua’s coast taking into account the
actual and prospective rights of third States in the region.
Colombia has then applied the equidistance-relevant
circumstances rule to the delimitation of that area using clearly
identified basepoints on the coasts of each Party to construct the
provisional equidistance line.
1.30. At the second stage of the process, Colombia has then
taken into account the relevant circumstances characterizing the
case to assess whether those circumstances confirm the
equitableness of the provisional line or call for any adjustment.
In the light of the past conduct of the Parties and the relevance
of the 82°W meridian as the western limit of the San Andrés
Archipelago, Colombia demonstrates that an equidistance based
delimitation produces an equitable result.
1.31. Nicaragua’s claim does none of these things. Nicaragua
rejects the equidistance-relevant circumstances rule in favour of
an outer continental shelf claim which is procedurally
inadmissible, legally flawed and factually unsupported.
Nicaragua’s attempt to enclave islands which lie between 106
22(Alburquerque) and 266 (Bajo Nuevo) nautical miles from its
coast is unprecedented and unsustainable. Nicaragua ignores
the fact that Colombia has consistently exercised jurisdiction
throughout all the waters of the Archipelago. Nicaragua also
pays no attention to the presence of third States in the region or
the positions such States have taken regarding the legal
entitlements that Colombia’s islands are entitled to.
1.32. In short, the issues of maritime delimitation in this case
are not merely about resources: they raise vital issues both of
fidelity to the law and the future of people. As to the law, they
are about applying the well-established principles and rules
relating to maritime delimitation. As to the future, they are
about maintaining the traditional living space of a substantial,
long-established, Colombian community, as well as preserving
security in an essential area of the south-western Caribbean.
E. Structure of this Rejoinder
1.33. This Rejoinder consists of three Parts.
1.34. Part I deals with the remaining sovereignty issues. In
Chapter 2, Colombia demonstrates the overwhelming character
of its title and that it has exercised its sovereignty and
jurisdiction over the San Andrés Archipelago for two centuries
in contrast to the artificiality ofNicaragua’s territorial claim;
that that sovereignty was recognized by Nicaragua in the
1928/1930 Treaty. Chapter 3 then discusses Nicaragua’s
23assertion that Quitasueño is nothing but a submerged bank: this
claim is shown to be simply wrong as a matter of fact.
International law applies straightforward factual criteria in
distinguishing islands from low-tide elevations, and both from
submerged banks, and the facts in this case are further verified.
1.35. Part II deals with maritime delimitation. Chapter 4
addresses Nicaragua’s new and even more extreme continental
shelf boundary claim, discusses its (in)admissibility and outlines
the severe difficulties that claim faces. Chapter 5 identifies the
area for the delimitation as lying between Nicaragua’s
easternmost islands and cays, on the one hand, and the islands
and cays making up the San Andrés Archipelago, on the other.
On that basis, Chapter 6 deals with the first stage in a
delimitation, the drawing of a provisional equidistance line and
the factors relevant to its possible adjustment. Chapter 7 shows
the groundless nature of Nicaragua’s “enclave” theory. Finally,
Chapter 8 deals with the relevant circumstances characterizing
the case and shows that they confirm the equitable nature of
Colombia’s provisional equidistance line.
1.36. Part III (Chapter 9) deals briefly with another feature of
the Reply, Nicaragua’s unwarranted claim to be entitled to
damages for Colombia’s policing of its fisheries legislation to
62
the east of the 82°W meridian.
62 NR, pp. 235-238 (“Declaration”).
241.37. There follows the required summary of argument and
Colombia’s submissions. An expert report by Dr Robert W.
Smith, a note on Colombia’s official nautical charts,
documentary annexes and maps are attached in a separate
volume.
25 PART ONE
COLOMBIA’S SOVEREIGNTY OVER THE
CAYS Chapter 2
THE ARTIFICIAL CHARACTER OF NICARAGUA’S
TERRITORIAL CLAIM
A. Introduction
2.1. In its Reply, Nicaragua demonstrates an extraordinary
“flexibility” of argumentation with regard to its claim. In view
of the clear and internationally well-recognized Colombian
sovereignty, on the one hand, and on the other hand the
judgment of the Court of 13 December 2007 which rejected
Nicaragua’s argument concerning the invalidity of the
1928/1930 Treaty, Nicaragua has not hesitated to change the
positions it originally took in its Application and Memorial.
This holds true also with regard to the positions Nicaragua
adopted on similar matters in the case it brought against
63
Honduras. All this only serves to demonstrate the evident
artificiality of Nicaragua’s territorial claim.
2.2. In principle, Nicaragua now accepts the Colombian
position that there is no need to reopen the discussion on uti
possidetis juris since the 1928/1930 Treaty settled the question:
“In this section [which addresses what
Nicaragua’s Reply interprets to be the “Islands of
San Andrés”] the issue is not whether Nicaragua
or Colombia had the better title over the
territories in dispute at independence, since it
must be accepted in the framework of this
63 See below, para. 2.49.
29 proceeding that each had a perfect title as from
the 1928 Treaty.” 64
2.3. Unable to advance the slightest piece of evidence of even
a shadow of title or of effectivités over the cays, Nicaragua’s
Reply concentrates on attempting to demonstrate that the cays it
claims do not form part of the San Andrés Archipelago, and that
this has effects in terms of the 1928/1930 Treaty. The Applicant
asserts now an underlying presumption that if it cannot be
proven that the cays are part of the Archipelago, they are
automatically under Nicaraguan sovereignty by virtue of the
Treaty. To support this supposed presumption, Nicaragua now
advances the curious theory that its title to the cays derives from
the 1928/1930 Treaty, despite its having made the invalidity of
this Treaty the basis for its claim in 1980 and again of its
Application and Memorial before this Court.
2.4. Its alleged “title” purportedly derives from the
recognition by Colombia of Nicaraguan sovereignty over the
Mosquito Coast and from the alleged “appurtenance” of the cays
to that Coast. The arguments Nicaragua invokes to support this
claim are of a quasi-geographical character: the “proximity” of
the cays to the Nicaraguan coast, 65 and Nicaragua’s curious and
misguided “continental shelf” theory, according to which the
cays belong to it because of their location on “its”
64
NR, para. 1.64. See also, NR p. 4 para. 12. See CCM, paras. 6.19-
6532.
See NR, para. 1.51.
30 66
continental shelf.
2.5. Nicaragua has been decidedly selective in dealing with
Colombia’s arguments on sovereignty, and this Rejoinder will
only respond in detail to the points actually made. It is
necessary, however, to emphasise the significance of
Nicaragua’s silence on key points, and as to these, Colombia’s
unanswered case will be briefly summarised by way of reprise.
B. Nicaragua Ignores the Basis of Colombian
Sovereignty over the Cays
2.6. The arguments and evidence in support of Colombian
sovereignty over the cays were set out in Colombia’s Counter-
Memorial. For its part, the Court has already recognized
Colombian sovereignty over San Andrés, Providencia and Santa
Catalina. It has also confirmed the validity of the 1928/1930
Treaty according to which “all the other islands, islets and cays
that form part of the said Archipelago of San Andrés” belong to
Colombia. Nicaragua’s Reply did not rebut the Colombian case.
Indeed, it did not even address most key issues. This section
briefly recalls the overwhelming grounds supporting Colombian
sovereignty over the cays, and lists some of the issues Nicaragua
chose to leave unanswered in its Reply.
(1) T HE OVERWHELMING CASE FOR C OLOMBIAN
SOVEREIGNTY OVER THE CAYS
2.7. Since its independence, Colombia has been the only
66 See NR, para. 2.21.
31State which has exercised sovereignty over all the cays as part
of the same administrative unit, the San Andrés Archipelago.
2.8. The root of Colombian sovereignty over the San Andrés
Archipelago is the Royal Order of 1803, placing it under the
jurisdiction of the Viceroyalty of Santa Fe (New Granada),
which exercised that jurisdiction until the time of independence.
Both titles and effectivités correspond to the former colonial
administrative entity from which Colombia emerged: the
Viceroyalty of Santa Fe (New Granada). Before the entry into
force of the 1928/1930 Treaty, Colombian effectivités
corresponded to the application of the uti possidetis juris
principle. Since the entry into force of the 1928/1930 Treaty,
the validity of which has already been recognized by the Court,
Colombia continued to exercise its sovereignty over all of the
67
Archipelago’s cays. But even without referring to title, the
continuous and peaceful exercise of Colombia’s sovereignty
over all cays and the absolute lack of Nicaraguan effectivités
over them would be enough to confer sovereignty on Colombia.
2.9. In view of Nicaragua’s silence with regard to most of the
factual and legal elements, there is no need to repeat what has
been said in the Counter-Memorial. It suffices to note that all
the cays have always been treated as part of the San Andrés
Archipelago. 68
67
Territorial and Maritime Dispute (Nic aragua v. Colombia),
68eliminary Objections, Judgment of 13 December 2007, p. 28, para. 88.
See CCM, paras. 2.32-2.98.
322.10. In this regard, the Loubet Award of 11 September 1900,
in which Colombia’s sovereignty over all the islands, cays, islets
and banks of the San Andrés Archipelago was confirmed,
should be recalled:
“Quant aux îles les plus éloignées du continent et
comprises entre la côte de Mosquitos et l’Isthme
de Panama, nommément: Mangle-Chico,
Mangle-Grande, Cayos-de-Albuquerque, San
Andrès, Santa-Catalina, Providencia, Escudo-de-
Veragua, ainsi que toutes autres îles, îlots et
bancs relevant de l’ancienne Province de
Cartagena, sous la dénomination de canton de
San-Andrès, il est entendu que le territoire de ces
îles, sans en excepter aucune, appartient aux
États-Unis de Colombie.” 69
2.11. It will be recalled that in 1900 Nicaragua lodged a
protest with the French President, claiming sovereignty over the
Islas Mangles (Corn Islands) and the islands, banks, cays, and
islets located between the 11th and 15th parallels latitude North,
70
and to the west of the 84°30’ Paris meridian. This meridian is
71
equivalent to 82°09’45” Greenwich meridian, a meridian very
close to the 82°W meridian that thirty years later, Nicaragua
69 Award Relating to the Boundary Dispute between Colombia and
Costa Rica, 11 September 1900, 28 UNRIAA p. 345. Emphasis added.
Translation by Colombia: “As to the Islands farthest from the Continent and
comprised between the Mosquito Coast and the Isthmus of Panama,
particularly Mangle Chico [Little Corn ], Mangle Grande [Great Corn], the
Cays of Alburquerque, San Andrés, Santa Catalina, Providencia, Escudo de
Veragua, as well as any other Islands, Islet s and banks that formerly
depended upon the former Province of Cartagena, under the name Canton of
San Andrés, it is understood that the territ ory of these islands, without any
exception, belongs to the United States of Colombia.”
70 Nicaraguan Note of 22 September 1900. See CCM, para. 4.114;
Vol. II, Annex 32.
71 CCM, Annex 218.
33would demand to have included as the western limit of the San
Andrés Archipelago. See Figure R-2.1 . The determination
made in the Loubet Award with regard to the islands, islets and
banks of the Archipelago was confirmed by the White Award in
1914, without any objection from Nicaragua. 72 The key point is
this: the claim made by Nicaragua in response to the Loubet
Award clearly excluded all of the islands, islets and banks which
are before the Court.
2.12. Equally, Nicaragua was unable to make any comment on
the description of the Archipelago made by the Colombian
Foreign Minister Jorge Holguín in his publicly available Report
to the Colombian Congress, at the time of the forcible
73
occupation of the Islas Mangles (Corn Islands) by Nicaragua.
Nicaragua’s Reply did not respond to this public and
comprehensive description of the Archipelago made by a
Colombian official having the capacity to engage Colombia at
the international level; a description that the Nicaraguan
authorities could not have ignored at the time they claimed the
Islas Mangles (Corn Islands). 74
2.13. Colombia’s Counter-Memorial also explained in detail
the negotiation process that ended in the conclusion and
ratification of the 1928/1930 Treaty, whereby Nicaragua
72 CCM, paras. 4.134-4.139.
73 CCM, Annex 89, 1896 Report to Congress by the Colombian
Foreign Minister. The description provided by Minister Holguín was
reproduced in CCM, para. 2.59 and above, at note 35. See also CCM paras.
2.60, 2.81, 2.82, and 6.20.
74 CCM, para. 6.20.
34recognized Colombia’s full and entire sovereignty over “all the
other islands, islets and cays that form part of the said
Archipelago”. 75 For its part, Colombia recognized Nicaragua’s
sovereignty over the Mosquito Coast, comprising the area
located between Cape Gracias a Dios and the San Juan River,
and over the Mangle Grande and Mangle Chico islands (Great
Corn Island and Little Corn Island), despite the fact that both the
Coast as well as those islands had been ascribed to the
Viceroyalty of Santa Fe (New Granada) in 1803. The cays now
claimed by Nicaragua not only had been under Colombia’s
jurisdiction for over a century at that time, without any objection
from Nicaragua; they had never been claimed individually by
that country.
2.14. The 1928/1930 Treaty stated that the cays of Roncador,
Quitasueño and Serrana (hereafter the “three features”) were in
dispute between Colombia and the United States of America,
and were on that ground excluded from the Treaty by Article I,
76
paragraph 2. This exclusion had nothing to do with any claim
by Nicaragua – indeed, in its context Article I, paragraph 2 is
decisive proof that there was no such claim. 77
2.15. In 1854, after United States citizens were discovered
conducting unauthorized guano extraction activities in the
Archipelago’s cays, the Governor of the Province of Cartagena
– from which the Archipelago was a dependency – issued a
75 CCM, paras. 5.3-5.14, and Annex 1.
76 See CCM, Chapter 4, Section B.
77 CCM, Annex 1, Article I; and see CCM, Chapter 5.
36decree banning those activities. From 1871 onwards, the
Colombian Congress authorized lease to Colombian and foreign
individuals for guano extraction and fishing around the cays of
Roncador, Quitasueño and Serrana. These events gave rise to a
protracted dispute between Colombia and the United States
concerning sovereignty over the three features. 78 By the Olaya-
Kellogg Agreement of April 1928, Colombia and the United
States, the two parties in the dispute, provided that the United
States would be allowed to install and maintain aids to
navigation, while Colombian vessels and nationals could
79
continue to carry on fishing activities in their maritime areas.
2.16. The Olaya-Kellogg Agreement was notified to the
Nicaraguan Government which communicated it to the
Congress during the process of approval of the 1928/1930
Treaty. There was no reaction at all from either the Nicaraguan
Government or the Congress to this clear assertion of
Colombian sovereignty over the three features.
2.17. Following the conclusion of the 1928 Treaty, in order to
prevent the possibility that the isla nds, islets and cays located
west of the 82°W meridian could be considered as part of the
San Andrés Archipelago, Nicaragua demanded – and Colombia
accepted – that both the Nicaraguan Congressional decree
approving the 1928 Treaty, as well as the 1930 Protocol of
Exchange of Ratifications, were to include the 82°W meridian
78
CCM, paras. 3.44-3.45, 3.47-3.71, 4.5-4.4 and Annexes 25, 72, 73,
79, 76, 77, 79, 80, 81, 82, 86, 90, 96, 97, 99, 100.
CCM, paras. 4.32-4.42.
37as the limit of the Archipelago. 80
2.18. In the Judgment of 13 December 2007, the Court
indicated that the inclusion of the 82°W meridian in the 1930
Protocol “…is more consistent with the contention that the
provision in the Protocol was intended to fix the western limit of
81
the San Andrés Archipelago”. Indeed the only plausible
implication of this provision of the Protocol is that the islands,
islets and cays located east of the 82°W meridian did not belong
to Nicaragua and that Nicaragua did not claim them, and that
those located to the west of that line did not belong to Colombia
and that Colombia did not claim them. Indeed, the common
sense question to ask is the following: how can cays located east
of that line be considered Nicaraguan?
2.19. In short, for over a century and a half Nicaragua did not
make any claim to the cays of Roncador, Quitasueño, Serrana,
Serranilla, Bajo Nuevo, Alburquerque and East-Southeast Cays.
If Nicaragua had harboured any such claims, it would have
acted accordingly and asserted that claim following its
independence. Yet it did nothing. Its silence is the more
marked on those occasions when protest or at least some
reaction was specifically called for. Such occasions include, for
example, the following:
x During the dispute between Colombia and the United
80
81 CCM, paras. 5.44-5.46.
Territorial and Maritime Dispute (Nic aragua v. Colombia) ,
Preliminary Objections, Judgment of 13 December 2007, p. 34, para. 115.
38 States of America over the cays of Roncador, Quitasueño
and Serrana, which began with the guano extraction
activities by United States citizens and which was
formalized in 1891. 82
x During the diplomatic exchanges between Colombia and
Great Britain between 1874 and 1927 over fishing
activities carried out in the vicinity of Quitasueño and
other Colombian cays by British subjects from the
Cayman Islands. Nicaragua’s silence is in complete
contrast with its attitude during its negotiations with
Great Britain between 1864 and 1916, in which it
protested against fishing activities carried out by British
subjects from the Cayman Islands in the vicinity of
islands and cays considered to be Nicaraguan because
they were “adjacent to the Mosquito Coast”.
Nicaragua’s claim was circumscribed to the Miskito and
Morrison cays, located twenty-four and forty-one miles
respectively from the Mosquito Coast. Nicaragua did
not make any claims about the cays located east of the
82°W meridian. 83
x During negotiations for the Treaty between Nicaragua
and Great Britain of 19 April 1905 (Treaty Altamirano-
Harrison), 84by which the former gained control of the
Mosquito Coast;
82 CCM, paras. 4.5-4.9.
83 CCM, paras. 4.103-4.108.
84 NM, para.1.101.
39 x During the fifteen years of negotiations between
Nicaragua and Colombia following Nicaragua’s first
claim to the San Andrés Archipelago in 1913, leading to
the 1928/1930 Treaty, notwithstanding the continuous
exercise of State authority by Colombia over all the cays.
x Upon conclusion of the Olaya-Kellogg Agreement
between Colombia and the United States of America in
April 1928, which was officially communicated by
Colombia to Nicaragua soon after the signature of the
Esguerra-Bárcenas Treaty of 1928.
x Between 1928 and 1972 when the Olaya-Kellogg
Agreement between Colombia and the United States of
America concerning the cays of Roncador, Quitasueño
and Serrana was enforced.
2.20. On each of these occasions Nicaragua remained silent.
These were clear situations in which “ qui tacet consentire
videtur si loqui debuisset ac potuisset ”.85 It was only in 1972
that Nicaragua first claimed some of the features comprising the
Archipelago; only in 1980 did it purport to disavow the
1928/1930 Treaty and claim the whole Archipelago.
2.21. In sum, given …
x Colombian sovereignty over all the cays based on the uti
possidetis of 1810 (both colonial title and effectivités);
85 Case concerning the Temple of Preah Vihear (Cambodia v.
Thailand), Merits, Judgment of 15 June 1962, I.C.J. Reports 1962, p. 23.
40 x postcolonial effectivités before the conclusion of the
1928/1930 Treaty;
x the terms of the 1928/1930 Treaty, notably the effect
given to the line of the 82°W meridian;
x continued and exclusive effectivités thereafter over all
features to the east of that meridian;
x recognition of Colombian sovereignty by other relevant
States;
x acquiescence by Nicaragua itself, in the period prior to
1972 (the three features) and 1980 (the whole
Archipelago),
Nicaragua’s late claim over the cays is groundless and
opportunistic.
(2) N ICARAGUA ’S COMPLETE FAILURE TO RESPOND TO KEY
ISSUES RAISED IN C OLOMBIA ’S COUNTER -M EMORIAL
2.22. Nicaragua’s Reply fails to address most of the arguments
and evidence set out in Colombia’s Counter-Memorial
concerning sovereignty over the cays. Some examples have
already been given. Others include:
x The 1896 Report to Congress by the Colombian Foreign
Minister Jorge Holguín, in which Minister Holguín
clearly defined the San Andrés Archipelago in a detailed
description as including all the cays now claimed by
41 86
Nicaragua. Despite its public character, Nicaragua did
87
not react to this report at the time it was issued, and
Nicaragua provides no explanation for its silence in its
Reply.
x The constant and coherent official presentation of all
th 88
cays as being Colombian since the 19 century;
x Activities carried out by Colombian authorities à titre de
th
souverain since the 19 century with regard to the cays.
In particular, Nicaragua’s Reply does not rebut the
following examples of exercises of sovereignty by
Colombia over the cays: (1) legislative and
administrative control, including the regulation of
89
fishing, the regulation of other economic exploitation,
90
including guano contracts, the regulation of
91 92
immigration, port captaincies, search and rescue
operations, foreign consuls, 94 and environmental
matters; 95 (2) law enforcement; 96 (3) naval patrol and
97 98
operations; (4) seismic/oil related research; (5)
86 CCM, Annex 89. See also CCM paras. 2.60, 2.81, 2.82, and 6.20.
87
88 CCM, para. 6.20.
CCM, paras. 2.33-2.85.
89 CCM, paras. 3.29-3.42.
90 CCM, paras. 3.43-3.71.
91 CCM, paras. 3.72-3.73.
92
93 CCM, paras. 3.74-3.75.
CCM, paras. 3.76-3.86.
94 CCM, paras. 3.87-3.88.
95 CCM, paras. 3.89-3.91.
96 CCM, paras. 3.92-3.94.
97
98 CCM, paras. 3.95-3.108.
CCM, paras. 3.109-3.116.
42 99 100
mapping surveys; (6) scientific research; and (7)
101
public works;
x The recognition of Colombian sovereignty over all of the
th th
cays, since the 19 and 20 centuries until the present
102
time by neighbouring States such as Panama, Costa
103 104 105
Rica, Honduras and Jamaica, with all of which
maritime delimitation agreements have been concluded;
x The recognition of Colombian sovereignty by other
States, including the United States, 106 Great Britain, 107
Sweden and Norway; 108 as well as that of the
international community as a whole, which has not
objected the effective and long-standing exercise of
actual authority and jurisdiction over the cays and the
appurtenant maritime areas by Colombian authorities.
x Official Nicaraguan cartography before 1980, which
cannot be reconciled with its present claim since it did
109
not include any of the cays it now purports to claim,
unlike Colombia’s cartography; 110
99
100 CCM, paras. 3.117-3.125.
CCM, paras. 3.126-3.131.
101 CCM, paras. 3.132-3.151.
102 CCM, paras. 4.134-4.147.
103 CCM, paras. 4.149-4.162.
104
105 CCM, paras. 4.163-4.167.
CCM, paras. 4.168-4.188.
106 CCM, paras. 4.48-4.77.
107 CCM, paras. 4.78-4.102.
108 CCM, paras. 4.14-4.21.
109
110 CCM, paras. 2.96-2.97.
CCM, paras. 2.79-2.95.
43 x The fact that not one of the more than 5000 maps in the
main map collections of the world that Colombia has
examined depicts the cays and maritime features east of
the 82°W meridian as belonging to or claimed by
111
Nicaragua;
and
x The elementary proposition that it is not the continental
shelf that determines territorial sovereignty over the
cays.112
The only proper inference to be drawn from this long list of
silences in the Nicaraguan Reply is that it has no good answers,
and that its sovereignty claims are without foundation.
C. Nicaragua’s Continued Reliance on a Groundless
Uti Possidetis Claim
2.23. Perhaps the main argument advanced in Nicaragua’s
Reply is that since the 1928/1930 Treaty only concerned San
Andrés, Providencia, Santa Catalina and the Islas Mangles
(Corn Islands), all of the remaining territory, even if it had
belonged to Colombia in the past (the Mosquito Coast and the
“appurtenant” islands offshore) would have passed to Nicaragua
113
by virtue of the 1928/1930 Treaty. This claim is in clear
contradiction with the wording of the Treaty itself, with
previous and subsequent practice – including the Loubet Award
–, with statements made by both Nicaraguan and Colombian
officials, and with the existing factual situation both before and
111
112 CCM, paras. 2.86 and 2.88.
CCM, paras. 6.33-6.37.
44 114
after the conclusion of the 1928/1930 Treaty.
(1) N ICARAGUA ’S CONTRADICTORY ARGUMENTS
CONCERNING UTI POSSIDETIS
2.24. On uti possidetis Nicaragua’s Reply is contradictory. On
the one hand it asserts that, in light of the Judgment of 13
December 2007, the Treaty of 1928/1930 settled all issues and
115
that uti possidetis juris is not relevant. On the other hand, it
insists that “any determination as to sovereignty […] has to be
effectuated on the basis of the colonial titles to which the Parties
116
succeeded at independence”.
2.25. With respect to the colonial title, Colombia has shown
that the colonial title along with the effectivités rested with
Colombia; with respect to the 1928/1930 Treaty, it specifically
addressed the territorial dispute and put an end to it. Nicaragua
first rejected the Treaty on the basis of its purported invalidity or
termination. Those arguments having been rejected, it now
attempts to render the content of this same Treaty meaningless
through an incredible interpretation.
2.26. In the first place, Nicaragua insists upon pure proximity
as the basis for its claim. This argument has already been
rejected by the Court in relation to features considerably closer
113 NR, para. 1.20.
114 CCM, paras. 5.60-5.61.
115 NR, paras. 1.3-1.4.
116 NR, para. 1.34.
45inshore. 117
2.27. Persevering in its contradictions, Nicaragua claims that
the matter of the Royal Order of 1803 is “irrelevant” and “no
longer at issue” in the case, yet at the same time persists in
118
invoking a wrong interpretation of the Royal Order of 1803.
It is noteworthy that Nicaragua chose to criticise by way of a
footnote the Court’s analysis of the Royal Order of 1803 in
Nicaragua v. Honduras:
“With all due respect, Nicaragua considers
particularly unfortunate the introduction of the
obiter dictum of the Court related to the Royal
Order of 20/30 November 1803 in a Judgment
concerning another issue where the Royal Order
was not relevant for deciding that case and at a
moment when the Court was precisely
deliberating on the question of the Preliminary
Objections raised by Colombia in this case. In
any event, whatever the appearances of
prejudgment this reference might have on the
present case, the position of Nicaragua is that this
obiter dict119does not have the effect of res
iudicata.”
2.28. Whether the Court’s statement is res judicata or not is
beside the point. The Court’s analysis in its Judgment of 8
October 2007 was both accurate and relevant for that case, as
well as this one. But Nicaragua repeats now the very arguments
the Court rejected in Nicaragua v. Honduras concerning
117 Case concerning territorial and maritime dispute between
Nicaragua and Honduras in the Cari bbean Sea (Nicaragua v. Honduras) ,
118gment of 8 October 2007, para. 161. See also CCM, para. 6.15.
119 NR, paras. 1.47-1.49, 1.65.
NR, p. 8, footnote 13.
46proximity and the attribution of islands to one or other of the
Spanish administrative units during colonial times.
2.29. In its Judgment of 8 October 2007, the Court had to
analyse which of the provinces of Honduras and Nicaragua, both
part of the Captaincy-General of Guatemala, administered the
insular territories in dispute. To this end, it had to determine the
historical period during which this exercise would have been
relevant. It is against this background that the Court determined
that
“the evidence presented in this case would seem
to suggest that the Captaincy-General of
Guatemala probably exercised jurisdiction over
the areas north and south of Cape Gracias a Dios
until 1803 when the Vice-Royalty of Santa Fé
gained control over the part of the Mosquito
Coast running south from Cape Gracias a Dios
by virtue of the Royal Decree of that year (see
also I.C.J. Pleadings, Arbitral Award Made by
the King of Spain on 23 December 1906
(Honduras v. Nicaragua), Vol. I, pp. 19-22).” 120
2.30. Nicaragua then raises what it calls a “common sense
question”, which it dismisses immediately: “[d]ue to the limits
of the jurisdiction in this case, that question will go
121
unanswered”. The so-called “common sense question” is
why, if Colombia’s colonial title were legally justified, would
Colombia be willing to enter into a Treaty which gave it less
120
Case Concerning Territorial and Maritime Dispute between
Nicaragua and Honduras in the Cari bbean Sea (Nicaragua v. Honduras) ,
121gment of 8 October 2007, para. 161.
NR, para. 24.
47 122
than the 1803 Royal Order? The answer is very simple: to put
an amicable end to a territorial dispute by giving up a title to
territory (the Mosquito Coast) over which it could not regularly
exercise its sovereignty, as neither could Spain before it. More
generally, agreements on territorial matters or boundaries
between States almost never reflect the entire aspirations of the
parties; they are invariably compromi ses. That is the common-
sense answer.
(2) T HE SUPPOSED “UNITY ” OF THE CAYS AND THE
M OSQUITO C OAST
2.31. In its Reply, 123Nicaragua claims that:
“On the basis of the 1928 Treaty, the position of
Nicaragua is that the recognition of sovereignty
over the Mosquito Coast includes all the
appurtenant rights of that Coast to its off-shore
maritime features. These maritime features
include all those not proven to be part of the ‘San
Andrés Archipelago’ which is recognized in that
Treaty to appertain to Colombia.” 124
2.32. This interpretation is contrary to the text and the spirit of
the Treaty. A review of the travaux préparatoires suffices to
confirm that at the time of the Treaty’s conclusion and approval,
Nicaragua was well aware of the fact that the Mosquito Coast
122 NR, para. 24.
123 NR, para. 1.44: “Thus is iontrovertible that all the islands off
Caribbean coast of Nicaragua at independe nce appertained to this coast. If
the Treaty of 1928 had not divide d between Nicaragua and Colombia title
over this territory (that is, attributed the coast to Nicaragua and certain
islands to Colombia) it would simly be a question of determining the
sovereign over whole territory including all the islands.”
124 NR, para. 13.
48was a separate entity, wholly independent from the San Andrés
Archipelago. 125
2.33. If, during colonial times, the Mosquito Coast and the
Islands of San Andrés had been considered a single geographic
unit, the Spanish King would not have needed to distinguish
between them or even mention the Islands of San Andrés, these
islands being a simple “appurtenance” to the Coast. 126 Governor
O’Neylle would have been appointed not only Governor of the
islands of San Andrés – which he was – but also of the
Mosquito Coast, which he was not. Finally, Nicaragua cannot
explain why Spain – which had a governor in San Andrés –
would choose not to place the cays under his authority, but
rather, would prefer to attach the cays to a distant coast over
which it did not have any actual control, indeed, no effective
authority at all.
2.34. The history of the Mosquito Coast also contradicts the
current Nicaraguan sovereignty claim on the basis of “unity” or
“appurtenance”. Neither the British Government, nor the
Miskito King, who were in effective control of the Mosquito
Coast during much of the 19th century, ever claimed that
Quitasueño, Roncador, Serrana, Serranilla, Bajo Nuevo,
Alburquerque and East-Southeast Cays were part of their
territory. No doubt, if the United Kingdom had considered them
to be appurtenances to the Mosquito Coast, it would have
125
126 See, e.g., CCM, Annexes 42, 45 and 46.
NR, para. 1.20.
49claimed them. On the contrary, while controlling the Mosquito
Coast, the British Government recognized Colombian
sovereignty over the cays now claimed by Nicaragua,
negotiating with the Colombian Governm ent matters related to
127
fishing in the vicinity of the cays. As has also been
demonstrated, the Loubet Award of 1900 distinguished between
the Mosquito Coast on the one hand – attributing the relevant
part of the Mosquito Coast to Costa Rica – and the islands in the
Caribbean on the other hand, in relation to which the Loubet
Award recognized Colombian sovereignty. 128
2.35. Moreover, the fixing of the 82°W meridian as the limit
of the Archipelago in the 1928/1930 Treaty also shows that
Nicaragua never considered that the cays and islands it now
claims could constitute a geographical unit with the Mosquito
Coast. 129
2.36. Following the conclusion of the 1928 Treaty, in the
Official Opinion of the Nicaraguan Government on the End of
the Dispute with Colombia, on 22 September 1928, the
distinction between the Archipelago and “the Nicaraguan
130
Mosquitia” is asserted in the clearest way. Nicaragua did not
produce this important document in its Memorial and remained
silent on it in its Reply.
127 See above, para. 2.19.
128 See above, para. 2.10.
129 Cf. NR, para. 13.
130 CCM, Annex 196.
502.37. But this distinction – subsequently confirmed by both
Parties in the preamble of the 1930 Protocol – is made
consistently in Nicaraguan documents of that period:
x In the Nicaraguan Congressional Decree of 6 March
1930 approving the 1928/1930 Treaty it is said that: “the
Treaty puts an end to the question pending between both
Republics regarding the Archipelago of San Andrés and
the Nicaraguan Mosquitia.” 131
x The Nicaraguan Chamber of Deputies in its resolution of
3 April 1930 uses the following: “put[] an end to the
question pending between both Republics regarding” the
132
two; this is another document which Nicaragua does
133
not quote in its Reply.
x The full powers from the Nicaraguan President to the
Nicaraguan Foreign Minister, 9 April 1930 has: “to put
an end to the question pending between both Republics
concerning the Archipelago of San Andrés and
Providencia and the Nicaraguan Mosquitia.” 134
x The 1930 Report to Congress by the Nicaraguan Foreign
Minister concerning the 1928/1930 Treaty has: “to put an
end to the question pending between both republics
131 CPO, Annex 10.
132 CCM, para. 5.55, and CPO, Annex 10.
133
The ratification is referred to in NR, paras. 1.9, 1.25, 7.1. NM, para.
2.101 refers to the approval as occurring on 6 March 1930, but this confuses
the decision of the Senate (which did occur on 6 March 1930: NM, Annex
19) and that of the Chamber of Deputies, which as stated occurred on 3 April
1930: CPO, Annex 10.
134 CCM, Annex 200.
51 concerning the Archipelago of San Andrés and
135
Providencia and the Nicaraguan Mosquitia”.
(3) N ICARAGUA ’S ADJACENCY ARGUMENT
2.38. In pursuit of a false adjacency, the Reply invokes a
purported nominal administrative division of the Spanish
American dominions established by the 1812 Constitution.
According to Nicaragua:
“The Constitution of Spain of 1812, which is the
last law of the Spanish Empire that provided for
territorial division in America, stipulated that the
area corresponding to the Captaincy General of
Guatemala included ‘all the adjacent islands on
the Pacific and the Atlantic’ ( todas las is136
adyacentes sobre el Pacífico y el Atlántico).”
2.39. First, the purpose of the relevant article of the 1812
Constitution (Article 10) was not to provide for a “territorial
division in America”. Rather, Article 10 contained a list of all
the territories in the world considered by Spain as under its
sovereignty, despite the fact that the American colonies were at
war with Spain in pursuit of their independence. Second,
irrespective of the content of this text –which is not exactly that
attributed to it by Nicaragua – the argument is groundless since
any Spanish decision subsequent to 1810, the year of the uti
possidetis juris for South America and Mexico, would not be
opposable to Colombia. In 1812, Spanish authority was no
135 CCM, para. 5.29, and Annex 201.
136 NR, para. 1.41.
52longer recognized by the independent authorities in the New
World.
2.40. Nicaragua’s Reply goes on to quote the Treaty between
Spain and Nicaragua of 25 July 1850, in which the former
recognized the independence of the latter. 137 It asserts that when
that treaty mentions the “territories situated between the Atlantic
Ocean and the Pacific, with its adjacent islands…”, Spain
implicitly recognized Nicaragua’s sovereignty over the islands
138
“off the Caribbean coast”. But moreover, it is absurd to assert
that Spain would have been in a position in 1850 to recognize
any Nicaraguan rights over islands and cays that were under
Colombia’s sovereignty. All the more so, considering that
Colombia and Spain would only establish diplomatic relations
in 1881, thirty years later.
2.41. In this Treaty, like other treaties of recognition with
former Spanish colonies concluded around this time, Spain was
not taking a position as to territorial disputes among its former
colonies. In no way can the reference to “adjacent islands” be
read as recognition by Spain of Nicaraguan sovereignty over the
islands and cays in question. The fact is that in 1850 Nicaragua
was neither in possession of, nor claimed sovereignty over, any
of the islands and cays forming part of the San Andrés
Archipelago. The situation of Colombia was exactly the
opposite, as it exercised its sovereignty over these islands and
137
138 NR, para. 1.43.
NR, para. 1.43.
53cays, and claimed them as its own since its independence.
2.42. Notably, Nicaragua now advances an argument that it
strongly rejected in the Territorial and Maritime Dispute
between Nicaragua and Honduras in the Caribbean Sea . In
response to Honduras’ allegation that the Treaty of Peace
concluded between Honduras and Spain had recognized
Honduran sovereignty over certain disputed cays, Nicaragua’s
interpretation of the peace treaties concluded between Spain and
both countries deserves full citation:
“It is also worth mentioning that the treaty of
recognition of the independence of Honduras
signed with Her Majesty, the Queen of Spain, in
Madrid on March 15, 1866, which extends
(article 1) to ‘the adjacent islands that lie along
its coasts,’ is very similar to language used
previously in the treaty acknowledging the
independence of Nicaragua (Madrid, 25 July
1850). Neither of these instruments makes
unambiguous reference to islands.” 139
The Court agreed with that Nicaraguan statement:
“The names of the adjacent islands pertaining to
Nicaragua were not specified in the [1850]
Treaty.” 140
It is the same argument advanced by Honduras, objected to by
Nicaragua and rejected by the Court, that Nicaragua now makes
against Colombia.
139
Emphasis added. Territorial and Ma ritime Dispute between
Nicaragua and Honduras in the Cari bbean Sea (Nicaragua v. Honduras) ,
140aragua’s Reply, 13 January 2003, para. 4.43.
Nicaragua v. Honduras , Judgment of 8 October 2007, p. 15, para.
34.
542.43. Further, in its case against Honduras, Nicaragua’s Reply
entirely disregarded the argument it advances in the present case
concerning the adjacency of the islands to the continent.
Nicaragua qualified the Honduras argument as “simply, wishful
141
thinking”.
2.44. Nicaragua’s recent thesis of “adjacency” is also
contradicted by its conduct. In the official Nicaraguan
cartography Colombia submitted with its Counter-Memorial,
only the cays and islets in the immediate vicinity of the coast
were presented as Nicaraguan. That depiction of “appurtenance”
did not extend to features located east of the Islas Mangles
(Corn Islands). Moreover, on Nicaragua’s official map of 1967,
arrows pointing east, placed near the right hand margin of the
map, expressly read “Islas San Andrés (Colombia)” “Islas La
142
Providencia (Colombia).” If Nicaragua had harboured any
claim over the cays it could have been simply indicated in a
similar manner.
2.45. In March 1890, when Nicaragua forcibly took over the
Islas Mangles (Corn Islands), its claim was limited to these
islands alone. A decree issued by the Nicaraguan Government
stated that “the jurisdiction that the municipal government of the
Mosquita Reserve has been exercising in the islands of the
Atlantic Coast, across from the territory of the Reserve” was
141
Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras) , Nicaragua’s Reply, 13
142uary 2003, para. 4.19, in fine.
CCM, Vol. III, Figure 2.34.
55“contrary to the full sovereignty and domain of the Republic in
said islands” (the Corn Islands) and that “consequently, from the
time of the publication of this decree only authorities of the
143
Republic may exercise jurisdiction in said islands”. No
mention is made of any other Nicaraguan claim or of
Nicaraguan jurisdiction over other islands and cays “of the
Atlantic Coast”. Nicaragua’s claim only concerned islands and
cays close to the continent.
2.46. In Nicaragua v. Honduras , the Court rejected the
sovereignty claim based on adjacency both with regard to
Honduras’ and Nicaragua’s coasts, the disputed cays lying
between 27 and 41 miles from the mainland:
“Notwithstanding the historical and continuing
importance of the uti possidetis juris principle, so
closely associated with Latin American
decolonization, it cannot in this case be said that
the application of this principle to these small
islands, located considerably offshore and not
obviously adjacent to the mainland coast of
Nicaragua or Honduras, would settle the issue of
144
sovereignty over them.”
2.47. This is a fortiori the case with regard to the cays which
are part of the San Andrés Archipelago, located as they are at
distances between 100 and 270 miles from the Nicaraguan coast
and having been since the early 19th century under Colombian
sovereignty and jurisdiction.
143
144 NM, p. 50, para. 1.100.
Case concerning Territorial and Maritime Dispute between
Nicaragua and Honduras in the Cari bbean Sea (Nicaragua v. Honduras) ,
Judgment of 8 October 2007, para. 163.
562.48. Nicaragua’s Reply now attempts to argue that the Court
adopted such a position simply because what was at issue there
were minor features in proximity to two different colonial
145
units. According to Nicaragua, the cays here by contrast
“were known and had been surveyed by the Spanish authorities
during the colonial period”: 146 “It would seem illogical that the
Spanish colonial Empire would have treated these small features
independently of the mainland coasts to which they were
naturally attached”. 147
2.49. But the fact is that the cays, known and surveyed by the
Spanish authorities as they were, were “located considerably
offshore and not obviously adjacent to the mainland coast”.
What is essential, and what Nicaragua persists in not addressing,
is that the cays here were at all relevant times administered by
authorities established on the main island of San Andrés, and
were considered to form part of the same territorial unit: the San
Andrés Archipelago. 148 No action was taken by Spain to attach
the cays to the Mosquito Coast, which in any event it was
unable to control.
2.50. To sum up, the inevitable conclusion is that the cays are
not adjacent to the Mosquito Coast. But even if they were this
could not produce the effect of attributing sovereignty to
Nicaragua.
145 NR, para. 1.37.
146 NR, para. 1.38.
147 NR, para. 1.39.
148 NR, paras. 12-24.
572.51. Nicaragua’s thesis of “appurtenance” or “proximity” of
the cays to a coast has been addressed on a number of occasions.
A cay or an island can be attached to a principal territory, on the
basis of proximity, when there is a certain distance between the
149
two which may range from under three hundred metres, to six
150
nautical miles. For islands situated within the territorial sea,
there may be a rebuttable presumption that those islands belong
to the coastal State. However, where islands are situated further
151
away there is no such presumption. Furthermore, in the
instant case, Colombia and Nicaragua fixed a limit – an
allocation line – to define, in a precise manner, what islands and
cays appertained to each of the two countries.
149 Land, Island and Maritime Frontier Dispute (El
Salvador/Honduras: Nicaragua intervening) , I.C.J. Reports 1992 , p. 570,
150a. 356.
Eritrea/Yemen, Award of the Arbitral Tribunal in the First Stage -
Territorial Sovereignty and Scope of the Dispute, Award of 9 October 1998 ,
p. 131, para. 467 (the Mohabbakah islands), p. 133, para. 476 (the Haycock
islands).
151 See Island of Palmas (Miangas) Award (1928) 2 RIAA 829, 854-
855: “it is impossible to show the existence of a rule of positive international
law to the effect that islands situated outside territorial waters should belong
to a State from the mere fact that its territory forms terra firma (nearest
continent or island of considerab le size)…The principle of contiguity, in
regard to islands, may not be out of place when it is a question of allotting
them to one State rather than another, either by agreement between the
Parties, or by a decision not necessarily based on law; but as a rule
establishing ipso iure the presumption of sovereignty in favour of a particular
State, this principle would be in conflict with what has been said as to
territorial sovereignty…”. See also: Eritrea/Yemen, Award of the Arbitral
Tribunal in the First Stage - Territori al Sovereignty and Scope of the
Dispute, Award of 9 October 1998, para. 474.
58 D. Nicaragua’s Attempt to Distort the Scope of the
1928/1930 Treaty
2.52. Nicaragua attempts to distort the scope of the 1928/1930
Treaty in order to support its claim of sovereignty. Three basic
points should be made.
(1) T HE OBJECT AND PURPOSE OF THE 1928/1930
T REATY
2.53. After 15 years of negotiations, Colombia and Nicaragua
concluded the Esguerra-Bárcenas Treaty of 1928 and the
Protocol of Exchange of Ratifications of 1930 in order to
resolve a complex dispute that had broken out at different times
between the parties: as to the Mosquito Coast in the mid-19th
century; as to the Corn Islands, in 1890; as to the San Andrés
Archipelago in 1913, when Nicaragua first claimed it as a
whole.
2.54. The object and the purpose of the Treaty was clearly
defined in the Preamble. As the Court recalled in its Judgment
of 13 December 2007:
“[i]n the Preamble of the Treaty, Colombia and
Nicaragua express their desire to put ‘an end 152
the territorial dispute pending between them’.”
The same idea was reiterated in the preamble of the 1930
Protocol of Exchange of Ratifications, the Parties similarly
specified that the Treaty was concluded “to put an end to the
152 Territorial and Maritime Dispute (Niaragua v. Colombia),
Preliminary Objections, Judgment of 13 December 2007, p. 23, para. 65.
59question pending between both Republics concerning the San
Andrés and Providencia Archipelago and the Nicaraguan
153
Mosquitia.”
2.55. Contemporary documents tell the same story. For
instance, when the Colombian Government submitted the 1928
Treaty to Congress for its approval, the Minister of Foreign
Affairs noted that “the settlement in question comes to dispel
any motive of divergence between the two countries”; 154he also
pointed out that the Treaty confirmed Colombia’s sovereignty
over the Archipelago and thus prevented any future claim by
Nicaragua and any future controversy. 155 In addition to the
examples of similar avowals by the Nicaraguan Government and
Congress recalled in paragraphs 2.36 and 2.37 above,
Nicaragua’s understanding of the definitive character and scope
of the settlement is also evidenced in the Congressional records
of the Treaty’s approval process:
x The records of the Nicaraguan Senate’s session where
the Report of the Study Commission recommending the
Treaty’s approval was read reflect that the Treaty
153 CCM, Annex 1.
154
Anales del Senado, Sesiones Ordinarias de 1928 [Annals of the
Senate, Ordinary Sessions of 1928], Nº 114, Bogotá, 20 September 1928, p.
155.
“This arrangement forever conso lidates the Republic’s situation in
the Archipelago of San Andrés and Providencia, erasing any pretension to the
contrary, and perpetually recognizing the sovereignty and right of full
domain for our country over that important section of the Republic.” Anales
del Senado, Sesiones Ordinarias de 1928 [Annals of the Senate, Ordinary
Sessions of 1928], N° 114, Bogotá, 20 September 1928, p. 713.
60 brought “to an end, the question pending between both
States”.156
x Further discussions in the Nicaraguan Senate on the
inclusion of the clause concerning the 82°W meridian in
the Protocol of Exchange of Ratifications, refer to that
limit as being “indispensable for the question to be at
once terminated forever”; 157 “a need for the future of
both nations, as it came to establish the geographical
boundary between the archipelagos in dispute, without
which the question would not be completely defined”; 158
and state that its “purpose was to establish a boundary
between the archipelagos which had been the reason for
the dispute” 159
Also noteworthy are the terms in which the Nicaraguan Foreign
Minister wrote to the Colombian Minister in Managua, on his
departure at the end of his tour of duty, on 7 May 1930:
“My Government is deeply satisfied, Mr.
Minister, with the peaceful and equitable solution
of our old territorial dispute with Colombia –
largely due to Your Excellency’s discreet and
160
able actions...”
2.56. The current Nicaraguan thesis is in plain contradiction
with this object and purpose. It implies that the 1928/1930
Treaty did not put an end to the territorial dispute existing
156
157 CCM, Annex 198.
158 CCM, Annex 199.
CCM, Annex 199.
159 CCM, Annex 199.
160 CCM, Annex 50.
61between the parties with regard to Alburquerque, East-Southeast
Cays, Roncador, Quitasueño, Serrana, Serranilla and Bajo
Nuevo. In other words, it is supposed that the parties – because
of a silent, purported claim kept secret by Nicaragua – decided
to keep alive a dispute over most of the features composing the
Archipelago. The maintenance of the Nicaraguan claim over
these features flies in the face the very object and purpose of the
Treaty.
(2) T HE “S AN A NDRÉS A RCHIPELAGO ”IN A RTICLE I
COVERS ALL THE CAYS
2.57. All the islands, islets and cays that Nicaragua now
claims before the Court are part of the San Andrés Archipelago
over which Colombia has exercised effective, peaceful and
uninterrupted sovereignty for two centuries. This is shown by
the historical evidence submitted by Colombia with its Counter-
Memorial, on which Nicaragua’s Reply is silent. This evidence
includes, among others, reports by high Colombian officials,
contracts for guano exploitation in the 19hcentury, official
reports and correspondence from governmental agencies and
officials of third countries.
2.58. Among the evidence submitted by Colombia and ignored
by Nicaragua in its Reply are exchanges such as the following:
x correspondence between the Governor of Jamaica and
the British Colonial Office in 1874, where Alburquerque,
62 Roncador, Serrana and Serranilla, among others, are
listed as part of the Archipelago; 161
x the records of the Colonial Office concerning the report
of Captain Erskine of the HMS Eclipse that mentions the
cays of Alburquerque, Roncador, Serrana and Serranilla
162
as part of the Colombian Archipelago;
x the correspondence between the Department of State of
the United States and Edward Alexander, a New York
lawyer, concerning guano deposits on the cays of
Roncador, Quitasueño, Serranilla and South West Cay,
in the Archipelago of San Andrés; 163
x the Reports to Congress by the Colombian Foreign
164
Ministers, Marco Fidel Suárez (1892 and 1894), on
guano exploitation in Roncador and Quitasueño,and
Jorge Holguín (1896), including as part of the
Archipelago the following: San Andrés, Alburquerque,
Courtown Bank, Providencia, Santa Catalina, Roncador,
165
Quitasueño, Serrana, Serranilla and Bajo Nuevo;
x the 1890 Note from the Prefect of the Province of
Providencia to the Secretary of Government at
Cartagena, enclosing affidavits from fishermen and
sailors attesting to the fact that the Cays of Roncador,
161 CCM, Annex 173.
162 Report submitted by Captai n Erskine to the Commodore, 26
163ember 1874, enclosure to CCM Annex 173.
164 CCM, Annex 189.
165 CCM, Annexes 85 and 87.
CCM, Annex 89.
63 Quitasueño and Serrana are part of the San Andrés
Archipelago; 166
x the communication addressed in 1927 by the Colombian
Minister in Managua, Manuel Esguerra to the Colombian
Minister in Washington, providing an account of the
negotiations that led to the conclusion of the 1928/1930
Treaty, and including the cays of Alburquerque,
Courtown, Roncador, Quitasueño, Serrana, Serranilla
and Bajo Nuevo as part of the San Andrés
Archipelago; 167
x the Colombian notification to the Government of
Nicaragua and, through the Government, to the
Congress, concerning the Olaya-Kellogg Agreement
concluded with the United States, at the time the
approval of the 1928 Treaty was being considered by the
Congress, asserting that the cays were part of the
168
Archipelago.
2.59. It is unnecessary to enumerate once again the vast
cartographic evidence, or the publications (sampled in the
Counter-Memorial, Appendix 2) on Colombian geography,
economy and history. This consistently reflected the established
notion that the San Andrés Archipelago was a group consisting
of the islands of San Andrés, Providencia and Santa Catalina as
well as numerous cays, including Roncador, Quitasueño,
166 Enclosure to CCM Annex 82.
167 CCM, Annex 112.
168 CCM, Annex 49.
64Serrana, Serranilla, Bajo Nuevo, Alburquerque and East-
Southeast.
2.60. Nicaragua’s Reply insists that the different cays are
detached and at quite a distance from one another, making it
impossible to consider them as forming part of the
Archipelago. 169 This not only fails to rebut the analysis made
by Colombia’s Counter-Memorial on this point, it does not
address the arguments in the Counter-Memorial at all.
Colombia respectfully refers the Court to the relevant
paragraphs of its Counter-Memorial. 170
2.61. Nicaragua distinguishes three groups of cays, arguing
that they are physically separate from one other and do not form
a uniform whole. 171 But it is quite normal that archipelagos
comprise different groups of islands. 172 With respect to the
“first group” of islands identified by Nicaragua (Alburquerque
and East-Southeast Cays), Nicaragua accepts “a certain
proximity and possible connection with the group of ‘islands of
San Andrés’”. 173 Nicaragua now contends for the first time, and
unashamedly for the purpose of claiming them, that this first
169
170 NR, paras. 1.74-1.75, 4.24.
CCM, paras. 6.13-6.16.
171 NR, para. 1.73.
172 For example, Chagos is an archipelago in the Indian Ocean
comprising sixty-five different islands which make up the island groups of
the Salomon Islands, Perros Banhos, Nelsons Island, Three Brothers, Danger
Island, the Egmont Islands and Die go Garcia; the Andaman archipelago in
the Bay of Bengal comprises two groups of islands: the Andaman Island
group and Nicobar Island group; an d the Philippines is an archipelago
comprising three major island groups of Luzon, Visayas and Mindanao and
173or sub-groups.
NR, para. 1.74.
65group of cays comprised in the past the Islas Mangles (Corn
Islands)!174 It suffices to note that (1) in the 1928/1930 Treaty,
Colombia recognized the sovereignty of Nicaragua over these
islands specifically by name and not as part of a larger group;
and (2) at no time from colonial times to the present day did
Spain or its successors ever treat Alburquerque and East-
Southeast Cays as a group with Mangle Grande and Mangle
Chico islands.
2.62. Nicaragua refers then to what it calls the “second group”
of cays: “Roncador and Serrana”. 175 Again, there is no attempt
in Nicaragua’s Reply to furnish any concrete evidence of a
purported Nicaraguan title. Nicaragua is obliged to recognize
that Colombia protested the inclusion of the cays of Roncador,
Quitasueño and Serrana in a list drawn up by the United States
Department of the Treasury, whereas Nicaragua did not. It
justifies this lack of protest on the ground that the Mosquito
Coast was “still in dispute and de facto controlled by Great
Britain”.176 But foreign control does not prevent a State from
lodging a protest. It was in Washington DC where Colombian
and Nicaraguan diplomats took cognizance of that list, and
could protest it if they chose. The absence of Nicaraguan
protest simply shows that it did not consider itself as claiming
Quitasueño, Serrana and Roncador at that time.
2.63. The “third group” of cays identified by Nicaragua
174
175 NR, para. 1.75.
176 NR, para. 1.76.
Ibid.
66comprises Bajo Nuevo and Serranilla. Again, no attempt is
made to advance any actual basis of sovereignty over these cays,
located as they are at distances of over 200 nautical miles off the
Nicaraguan coast, closer as they are both to Jamaica and to other
Colombian territory. In fact, Nicaragua had never claimed these
cays before bringing its case to the Court – in the case of Bajo
Nuevo, before filing its Memorial. It neither objected the
Colombia-Jamaica Fishing Agreements in the 1980s nor the
177
Maritime Delimitation Treaty of 1993.
2.64. A new argument advanced in the Reply is that the
maritime features in dispute – with the exception of Quitasueño,
Roncador and Serrana – are not expressly mentioned by name in
the 1928/1930 Treaty. According to Nicaragua “[i]f they were
thought to be part of the ‘San Andrés Archipelago’ they would
naturally have been mentioned”. 178 This contention is
noteworthy for two reasons: (1) it implies – contrary to what
Nicaragua contends elsewhere – that Quitasueño, Roncador and
Serrana form part of the Archipelago; and (2) it ignores the
reason why these three cays were explicitly mentioned in the
second paragraph of Article I, namely, to exclude them from the
scope of the 1928/1930 Treaty since they were the object of a
dispute between Colombia and a third State. There was simply
no need to mention by name each of the other components of the
Archipelago, particularly when the 1928/1930 Treaty
177 CCM, paras.4.182-4.188.
178 NR, para. 16.
67established the western limit of the Archipelago at the 82°W
meridian.
(3) N ICARAGUA ’S ERRONEOUS INTERPRETATION OF
A RTICLE I,PARA . 2 OF THE T REATY
2.65. In the 1928/1930 Treaty, the second paragraph of Article
I deals with the special situation of three of the Archipelago’s
cays, Roncador, Quitasueño and Serrana: they “are not
considered to be included in this Treaty” on the basis that
sovereignty over them is in dispute between Colombia and the
United States”.
2.66. Nicaragua’s Reply, again, makes no attempt to furnish
any concrete evidence of a Nicaraguan title to Roncador,
Quitasueño and Serrana. 179 In Nicaragua’s view, the second
paragraph of Article I means that these three cays do not form
180
part of the Archipelago of San Andrés. But on the contrary,
the provision is only explicable on the basis that they are part of
the Archipelago: only on that basis was it necessary to put them
beyond the reach of the “recognition of sovereignty” provision
of Article I to which they would otherwise have been subject.
2.67. Article I also necessarily implies that Nicaragua itself
did not have any claim to sovereignty over the three cays.
Nicaragua accepted that sovereignty over them “is in dispute
between Colombia and the United States” – no mention of any
179 NR, para. 1.76.
180 NR, paras. 1.88-1.97.
68dispute involving any Nicaraguan claim or right. If Nicaragua
had had any claim to the three cays, it would surely at least have
mentioned it. There was no such mention – because there was
no such claim.
2.68. The text of the Colombian notification to the Nicaraguan
Government, and through it to the Nicaraguan Congress, of the
Olaya-Kellogg Agreement with the United States, prior to the
latter’s approval of the 1928 Treaty, states:
“…the Cays of Roncador, Quitasueño and
Serrana having been excluded from the Treaty of
24 March due to their being in dispute between
Colombia and the United States, the Government
of the latter, recognizing Colombia as owner and
sovereign of the Archipelago, of which those
cays are part, concluded with the Government of
Colombia, last April, an agreement…” 181
(Emphasis added)
Thus at the crucial time Nicaragua was expressly reminded that
Roncador, Quitasueño and Serrana formed part of the San
Andrés Archipelago. The Nicaraguan Congress and Government
not only did not object: the Colombian notification was
182
published in its Official Journal. Nicaragua never protested
the Olaya-Kellogg Agreement.
2.69. The fact that for over forty years Nicaragua did not voice
any reservations with regard to Colombia’s exercise of
181 CCM, Vol. II, Annex 49.
182
Transcribed in the Record of session XXIV of the Chamber of the
Senate of the Nicaraguan Congress, 21 January 1930.La Gaceta, Diario
Oficial, Año XXXIV, Managua, D.N., Nº 35, 11 February 1930, p. 273:
CCM, Annex 49.
69sovereignty and jurisdiction, not only over the cays of
Alburquerque, East-Southeast, Serranilla and Bajo Nuevo, but
also over Quitasueño, Serrana and Roncador – the latter
expressly mentioned in the 1928 Treaty – underscores the
artificiality of Nicaragua’s claim advanced in these proceedings.
(4) T HE LIMITED SCOPE OF THE “M OSQUITO COAST ”IN
A RTICLE IOF THE T REATY
2.70. Nicaragua’s Reply contends that every feature that does
not form part of the San Andrés Archipelago is Nicaraguan,
because these features are “appurtenances” to the Mosquito
Coast.183This is a pure petitio principii. If Nicaragua claims
sovereignty over these features, it must submit concrete
evidence in support of this claim. Not a single piece of evidence
has been furnished. Neither Article I of the 1928/1930 Treaty
nor the alleged “proximity” of the features to the Mosquito
Coast provides any legal basis for such a claim.
2.71. Leaving aside for a moment the fact that all the cays do
form part of the San Andrés Archipelago, the following
paragraphs will demonstrate that the two propositions on which
this Nicaraguan argument is premised have no basis.
(a) Nicaragua’s contention that everything not belonging
to the San Andrés Archipelago is appurtenant to the
Mosquito Coast
2.72. Article I of the 1928/1930 Treaty only recognizes
Nicaraguan sovereignty over “the Mosquito Coast between
183 NR, para. 1.20.
70Cape Gracias a Dios and the San Juan River, and over the
Mangle Grande and Mangle Chico Islands in the Atlantic Ocean
(Great Corn Island and Little Corn Island)”. Colombia’s
recognition of Nicaraguan sovereignty, with regard to islands,
was specifically “over the Mangle Grande and Mangle Chico
islands, in the Atlantic Ocean (Great Corn Island and Little Corn
Island)”. It said nothing about islands, islets and cays that were
“appurtenances” to the Mosquito Coast or to the Islas Mangles
(Corn Islands). This is in clear contrast with the wording
employed in the same Article I of the 1928 Treaty when
Nicaragua recognizes Colombian sovereignty “over the islands
of San Andrés, Providencia and Santa Catalina and all the other
islands, islets and cays that form part of the said Archipelago ”.
What Nicaragua proposes is that the terms of Article I stated in a
restrictive way be interpreted broad ly, while at the same time,
other terms contained in the same Article which are worded
broadly should be interpreted narrowly.
2.73. The only explanation given in Nicaragua’s Reply to
justify such an extraordinary interpretation of this treaty
provision is that “all features that are not proven to be part of the
‘San Andrés Archipelago’ of necessity are appurtenances of the
184
Mosquito Coast”. It may well be a matter “of necessity” for
Nicaragua to invoke such a last-ditch argument, but this does
not constitute a legal argument, nor is it evidence to be taken
into account for the purpose of these proceedings. It is for
Nicaragua to prove what this purported “necessity” would be
184 NR, para. 1.20.
71and what would be its scope.
2.74. Colombia showed in its Counter-Memorial that the
proximity/appurtenance argument has neither factual nor legal
basis. As a matter of fact, none of the islands of the
Archipelago can be considered as being in any way appurtenant
to the Mosquito Coast, situated as they are between 100 and 270
nautical miles away. As a matter of law, there is no such
presumption, certainly as to islands lying beyond the mainland
185
territorial sea.
2.75. A Chamber of the Court has had occasion to refer to a
notion similar to that of “appurtenance” when dealing with the
determination of sovereignty over islands, namely the notion of
“dependence”. The Chamber applied this notion to a small
island, considered to be a “dependence” of a larger island
(Meanguera with regard to Meanguerita):
“The small size of Meanguerita, its contiguity to
the larger island, and the fact that it is
uninhabited, allow its characterization as a
‘dependency’ of Meanguera, in the sense that the
Minquiers group was claimed to be a
‘dependency of the Channel Islands’ ( I.C.J.
Reports 1953, p. 71).” 186
2.76. The Minquiers case serves to further undermine
Nicaragua’s “appurtenance” theory. This group of minor
185
186 See CCM, paras. 6.13-6.15.
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras:
Nicaragua intervening), I.C.J. Reports 1992, p. 570, para. 356.
72features, even closer to the French island of Chausey than to
British territory, was considered a dependency of the Channel
Islands group, even though it was located not in the immediate
vicinity of the major islands of this group, on the basis of British
activities exercised à titre de souverain . 187 Indeed, the Court’s
Judgment in the Minquiers and Ecrehos case shows that
effectivités would prevail over the simple argument of contiguity
or adjacency. Clearly, the notion of “appurtenance” does not
assist Nicaragua.
(b) Nicaragua’s claim based on the cays’ location on
“its” continental shelf
2.77. Nicaragua maintains its claim concerning the cays on the
188
ground that they are located on “its” continental shelf. Given
the absence of any articulated argument in favour of this
position, its defects can be dealt with briskly.
2.78. The first defect is temporal. The continental shelf as a
juridical construction did not exist prior to 1945. It therefore
cannot sustain any alleged interpretation of the Spanish
administrative divisions during colonial times; nor is it relevant
to the appreciation of the factua l situation at the time of the
conclusion of the 1928/1930 Treaty. Moreover, given that there
were no terra nullius territories in America at the time of the
independence of the former Spanish colonies between 1810 and
187 The Minquiers and Ecrehos ca se (France/United Kingdom),I.C.J.
Reports 1953, p. 71.
188 NR, paras. 4.19, 6.9.
731821 – as Nicaragua has repeatedly acknowledged 189 – it cannot
be held that the alleged title over the cays and banks would be
based on a legal notion that would only take shape in
international law 150 years later.
2.79. Not only is the assertion that the islands and cays are
located on the “Nicaraguan continental shelf” anachronistic, it is
also legally untenable. The principle that “the land dominates
the sea” determines the relationship between land territory and
maritime spaces in international law. This principle was
recalled by the Court in Nicaragua v. Honduras as follows:
“On a number of occasions, the Court has
emphasized that ‘the land dominates the sea’
(North Sea Continental Shelf (Federal Republic
of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports
1969, p. 51, para. 96; Aegean Sea Continental
Shelf (Greece v. Turkey), Judgment, I.C.J.
Reports 1978, p. 36, para. 86; Maritime
Delimitation and Territorial Questions between
Qatar and Bahrain (Qatar v. Bahrain), Merits,
Judgment, I.C.J. Reports 2001, p. 97, para.
190
185).”
To say that land territory, including islands, belongs to a State
which claims adjacent maritime zones is to ignore basic
principle and to turn the law upside down.
189
190 NM, paras. 2.146, 2.178.
Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007,
p. 34, para. 113.
74 (c) The view that the 82°W meridian “maintained”
Nicaragua’s alleged sovereignty over cays to the east is
groundless
2.80. The recognition of Nicaraguan sovereignty in the 1928
Treaty did not extend to other islands and cays besides the Islas
Mangles (Corn Islands). In order to prevent the possibility that
other islands, islets and banks located west of the San Andrés
Archipelago might be claimed by Colombia, Nicaragua
demanded – and Colombia accepted – that both the Nicaraguan
Congressional decree approving the Treaty, as well as the
Protocol of Exchange of Ratifications, specify the 82°W
meridian as the western limit to the Archipelago.
2.81. It is not credible to assert that the intention of the parties
was thereby to fix an effective limit only for Colombia to the
191
west but not for Nicaragua to the east. Equally untenable is
the proposition that Nicaragua was free, at any time, to decide to
claim islands, islets and cays located to the east of that meridian
– features it had never claimed and over which Colombia had
uninterruptedly exercised its sovereignty and jurisdiction.
Neither the Colombian nor the Nicaraguan governments ever
considered that that was a possibility.
2.82. The debates in Nicaragua’s Congress show that the
82°W meridian was considered as a limit, and that the
Nicaraguan Government believed that such a limit was
indispensable to bring a definitive end to the dispute between
191 NR, para. 1.26.
75 192
the two States.
2.83. If indeed Nicaragua considered that it had sovereignty
over islands, islets and cays located to the east of the 82°W
meridian ( quod non ), such claims would surely have been
included (or at least preserved) in the 1928 Treaty. It is
similarly incomprehensible that no such mention of a claim of
sovereignty over the cays by Nicaragua was included in the
Protocol of Exchange of Ratifications in 1930, nor was such a
claim the subject of a treaty reservation, or any official
declaration issued by the Nicaraguan Government or the
Nicaraguan Congress.
2.84. This strange theory is even in contradiction with the
argument that the 82° W meridian is an “allocation line”, which
193
Nicaragua has also held before the Court, and as high
194
Nicaraguan officials have also long stated, according to
which, it had the effect of determining which islands, cays and
islets belonged to Colombia and to Nicaragua, respectively. In
fact, it is perfectly normal fo r delimitation treaties to provide
limits like the 82°W meridian contained in the 1928/1930 Treaty
in order to determine issues of sovereignty. As has been noted:
“It is not uncommon for treaties dealing with
cession or allocations of sovereignty over islands
or other territory to define the areas ceded or
192 CCM, Annexes 198 and 199; CPO, Annex 9, pp. 65-66.
193 NM, paras. 2.225-2.231, 2.237, 2.244; NWS, p. 3, paras. 5, 7, and
paras. 1.58, 1.60, 1.86; CR 2007/17, p. 17, para. 43; p. 19, para. 49; p. 58,
para. 11.
194 See e.g., NM, Annexes 31, 34, 35.
76 allocated between those states on the basis of
lines drawn at sea. The essential purpose of
those lines is to provide a convenient reference
for determining which islands and territo195s are
ceded as allocated to particular party.”
Obviously, if the 82°W meridian had indeed been an “allocation
line” as Nicaragua has asserted, its contention to the effect that
there were Nicaraguan islands and cays not only to the west, but
also to the east of that line, would totally nullify that argument.
2.85. The explanation of the scope of the 82° meridian was
clearly stated by the Nicaraguan Minister when he informed the
Senate about the Protocol negotiated with his Colombian
colleague. He referred to the line – indicating the Nicaraguan
position – as “the boundary in this dispute with Colombia”. Its
purpose was “to establish a boundary between the archipelagos
196
which had been the reason for the dispute”.
E. Nicaragua’s Conduct Compared with that of
Colombia
2.86. In support of its claim that all the maritime features not
proven to be part of the San Andrés Archipelago would
appertain to it by virtue of the recognition of sovereignty over
the Mosquito Coast in the 1928 Treaty, Nicaragua quotes
Colombia’s Counter-Memorial as follows:
195 B.H. Oxman, “Political, Strategi c, and Historical Considerations”,
in: J. Charney and L. Alexander, edsInternational Maritime Boundaries ,
Vol. I, ASIL/Martinus Nijhoff Publishe rs, Dordrecht/Boston/London, 1993,
p. 32. Also quoted in NM, para. 2.231.
196 See CCM, para. 5.54 and Annex 199.
77 “[T]he Court acknowledged that the whole
Archipelago belongs to Colombia. All that
Colombia needs to show at the merits stage is
197
that those cays do belong to the Archipelago.”
2.87. Despite the fact that the burden of proof is incumbent on
the Applicant, Colombia has amply proven the composition of
the San Andrés Archipelago. 198 In any case, the Nicaraguan
quotation is characteristically incomplete. The next sentence
reads:
“Additionally, Colombia will prove that these
cays have been administered by Colombia to the
exclusion of third States, in particular Nicaragua.
Either of these facts would be enough to sustain
Colombia’s sove199gnty: in fact both are true, as
will be seen.”
2.88. In its Counter-Memorial, Colombia provided an
extensive account of hundreds of effectivités carried out à titre
de souverain before and after the conclusion of the 1928/1930
Treaty, in a peaceful and uninterrupted manner over each and
every one of the cays that Nicaragua now claims. 200 Nicaragua
cannot show a single similar act in nearly 200 years of
republican existence. This is readily explained on the basis that
Nicaragua never considered, either before or after 1928, that it
had any rights over any of the cays.
197 NR, para. 13.
198 CCM, Chapter 2.
199 CCM, para. 1.9.
200 CCM, Chapter 3.
782.89. For instance, Colombian legislation has regulated the
territorial organization and administration of the San Andrés
Archipelago as Colombia’s own political and territorial structure
evolved; the Colombian Government has consistently regulated
fishing activities in the maritime areas appertaining to the San
Andrés Archipelago; Colombia has enforced its criminal and
civil legislation over the entire Archipelago; the Colombian
authorities have carried out surveillance and control activities
over the entire Archipelago; Colombia has conducted seismic
studies, surveys and extensive mapping and charting of the
Archipelago; the Colombian Navy has carried out search and
rescue operations and the Port Captaincy of San Andrés has
conducted investigations on the naval incidents occurred on the
cays and their appurtenant areas; Colombia has sought to
increase scientific knowledge of the San Andrés Archipelago
with a view to preserving and making sound use of its natural
wealth and improving the environment; the Autonomous
Corporation for the Sustainable Development of the
Archipelago (Coralina) was created in 1993 with a jurisdiction
comprising the entire territory of the Archipelago Department
and its appurtenant maritime areas; public works have been built
and maintained by the Colombian Government on the
Archipelago’s cays (including, among others, lighthouses,
quarters and facilities for Navy detachments, solar panels, water
collection wells, facilities for the use of the Navy infantry corps
and fishermen who visit the cays, and the installation of weather
201
and radio stations or antennae). The Navy infantry
201 CCM, Chapter 3.
79detachments deployed in most of the cays conduct missions
relating to fishing control, the preservation of the environment,
and the fight against drug trafficking and other illegal activities.
F. Conclusion
2.90. This Chapter has demonstrated the triviality of the
Nicaraguan territorial claim. After failing in its attempt to
reopen the discussion about Colombian sovereignty over the
San Andrés Archipelago as such, Nicaragua continues to pursue
its territorial claim by asserting that the cays do not form part of
the Archipelago. This is in clear contradiction with Nicaragua’s
previous conduct and with all of the evidence at the disposal of
the Court.
2.91. In particular:
(1) There is overwhelming proof of Colombian sovereignty
over all the cays, based on uti possidetis juris and
effectivités before the entry into force of the 1928/1930
Treaty, and on this conventional title and effectivités after
its entry into force. In contrast, Nicaragua is not able to
show any shadow either of title or effectivités.
(2) The 1928/1930 Treaty settled the entire territorial dispute
between Colombia and Nicaragua once and for all. This
includes all the cays that Nicaragua now claims.
(3) Nicaragua’s insistence upon the same arguments the
Court rejected in its 13 December 2007 Judgment, or
80 which were rendered unnecessary by it, such as
Nicaragua’s flawed interpretation and application of the
uti possidetis juris rule, are groundless;
(4) Nicaragua’s theory of the “appurtenance” of the cays to
the Mosquito Coast is untenable, both during and after
colonial times;
(5) The cays have been considered to constitute part of the
Archipelago and have been administered peacefully and
uninterruptedly by Colombia since independence;
(6) Nicaragua had never claimed the Archipelago’s cays
individually (it only claimed the Archipelago as a whole,
for the first time, in 1913) either before or after the
1928/1930 Treaty. It would be 40 years later that it
would first attempt to claim Roncador, Quitasueño and
Serrana; 71 years later that it would first attempt to claim
Serranilla; and some years later still that it would first
attempt to claim Alburquerque, East-Southeast and
finally Bajo Nuevo (in the Memorial).
(7) By reason of the 1928/1930 Treaty, where it expressly
acknowledged that sovereignty over the cays of
Roncador, Quitasueño and Serrana was in dispute
between Colombia and the United States of America,
Nicaragua precluded itself from making any claim over
them;
(8) During the Treaty’s approval process in the Nicaraguan
Congress, the Nicaraguan Government and Congress
81 were fully aware of the composition of the Archipelago,
including the cays of Roncador, Quitasueño and Serrana.
(9) The 82°W meridian line precludes Nicaragua from
making any claim of sovereignty to any feature to the
east of this line.
(10) In any event, the continuous and peaceful exercise of
State authority confers title on Colombia, confirmed by
the general recognition by third States and by
Nicaragua’s conduct itself.
82 Chapter 3
QUITASUEÑO
A. Introduction
3.1. The geographical location and history of Quitasueño as a
maritime feature was very fully set out in the Counter -
Memorial. 202 As was shown there, Quitasueño has been treated
throughout as the first and one of the most valuable of the
Archipelago’s features from a resource point of view. Moreover
the resource – the Quitasueño fishery – has been regulated and
th
managed by Colombia since the mid-19 century with the
express recognition or at least acquiescence of other States.
Quitasueño was identified in many early maps and charts—more
often than other elements of the Archipelago and appears in the
geographical descriptions and voyage chronicles of the
Caribbean area, even dating back to the colonial times before
the independence of both Colombia and Nicaragua. It has not
been treated as simply part of the high seas, but the fishery was,
and is, regulated by Colombia erga omnes. As such, it was a
recognized part of the Archipelago, recognized also by
Nicaragua in the 1928/1930 Treaty. (Quitasueño of course is
located wholly to the east of the 82°W meridian, recognized in
1930 as the western limit of the Archipelago.) This history
202 See CCM, paras. 2.25-2.29, 4.5-4.108.
83Nicaragua can hardly deny; but it seeks to negate it by treating
Quitasueño as a wholly submerged bank.
B. The Issues as Presented in the Pleadings
3.2. Despite the fact that Nicaragua had never considered that
Quitasueño was not capable of appropriation in sovereignty,
there is now a major difference between the Parties as to the
status of Quitasueño: according to Colombia it has the status of
a group of islands and other features as defined in the law of the
sea; for Nicaragua, on the other hand, it is a submerged bank; it
can have no maritime zones of its own, and is incapable of
appropriation. 203
3.3. In its Application, Nicaragua was more equivocal.
Sovereignty over “the Roncador, Serrana, Serranilla and
Quitasueño keys” was claimed subject to the proviso “(in so far
as they are capable of appropriation).” 204 This proviso was not
specific to Quitasueño. It may be noted that in 1972 when the
Nicaraguan Congress by a Formal Declaration claimed
sovereignty over the three features, Quitasueño, Roncador and
205
Serrana (but not Serranilla), it listed Quitasueño first and
206
likewise made no distinction as between the three features.
203
See NR, paras. 4.25-4.43.
204 Nicaraguan Application, para. 2.
205 Formal Declaration of 4 October 1972, NM, Vol. II, Annex 81.
206 The Formal Declaration is cited by the Court in its Preliminary
Objections, Judgment of 13 December 2007, para. 27.
84All were apparently capable of being claimed in sovereignty by
Nicaragua (as they had been by the United States). 207
3.4. In its Memorial, Nicaragua tried to avoid the
implications of the Formal Declaration, which was annexed but
not cited in the text. Although it asserted that “there are no
islands on this bank”, 208Nicaragua glossed over the fact that in
its own diplomatic practice it has treated all three features as
subject to its sovereignty and declined to draw any legal
distinction between them. 209 Moreover, in its Submissions it
was not nearly as categorical and chose to leave the door open to
its claim of sovereignty over Quitasueño:
“If the Court were to find that there are features
on the bank of Quitasueño that qualify as islands
under international law, the Court is requested to
find that sovereignty over such features rests with
Nicaragua.” 210
3.5. In its Counter-Memorial, Colombia addressed the status
of Quitasueño in detail, emphasising its constant, and vis-à-vis
Nicaragua exclusive, exercise of jurisdiction over Quitasueño
211
and its surrounding waters, and the non-exercise by
212
Nicaragua of any such authority. It also showed that
207 Unlike the Executive branch, whi ch by now did make a distinction:
see NM Annexes 34 and 35 (Nicaragua’s protests to US and Colombia of 7
Oct. 1972).
208 NM, para. 3.114; cf. NM, para. 2.187, 3.123.
209 See e.g., Nicaraguan Memorandum of 23 June 1971 (NM, Vol. II,
210ex 31).
211 NM, Submissions, (3), p. 265.
212 See Section D below.
CCM, para. 3.115.
85Quitasueño was always referred to as part of the Archipelago.
Notable examples were the Foreign Minister’s Reports to
213
Congress in 1892 and 1894, when reporting on the
Government’s actions in light of the guano exploitation
activities carried out by United States citizens:
“Certain merchants from the United States have
arrived at the cays of Roncador and Quitasueño,
in the Colombian Archipelago of Providencia,
and extracted, without the Government’s
permission, large quantities of the guano that lies
on those islets and that is one of the assets of the
Republic. Our Legation at Washington has
denounced these facts that violate the territory
and defraud the Nation from a source of riches
the exploit of which must be attended to as soon
as possible. That the islets are of Colombia’s
domain cannot be doubted, since they are part of
214
the Archipelago of Providencia…”
And the Report of Foreign Minister Holguin in 1896, 215who
referred to
“the islands of the Archipelago of San Andrés,
formed by three groups of islands … the first of
these groups being formed by the islands of
Providencia and Santa Catalina and the cays of
Roncador, Quitasueño, Serrana, Serranilla and
Bajo Nuevo...” 216
The same position was taken in other official statements, earlier
217
and later. In light of statements such as these, there cannot be
213
214 CCM, para, 2.55, Annexes 85 and 87.
CCM, para. 2.55, Annex 85.
215 CCM, Vol. II, Annex 89.
216 CCM, Vol. II, Annex 89.
217 See e.g., CCM, paras. 4.10 (1892),4.12 (1893), 4.17 -4.18 (1895),
4.21 (1914), 4.25 (1919).
86any doubt that it was considered part of the Archipelago prior to
the Treaty of 1928/1930. As to effectivités over Quitasueño,
likewise there can be no doubt: the record contains no indication
of any Nicaraguan act, whereas Colombia has long exercised
sovereignty and jurisdiction over it, in particular through the
regulation of fisheries and the administration and running of the
two lighthouses, without Nicaragua ever objecting or protesting
these activities. This long-standing position is discussed further
in Section D below.
3.6. The Counter-Memorial also recounted how the United
States claimed sovereignty over Roncador, Quitasueño and
Serrana, and how it was agreed that these features would be
excluded from the scope of the Treaty, on the ground that “both
Governments have claimed rights of sovereignty over these
cays”. 218 The Olaya-Kellogg Agreement was officially
communicated to Nicaragua by the Colombian Minister in
Managua prior to the approval of the 1928/1930 Treaty, without
219
occasioning comment or protest. Thus when Article I(2) of
the 1928/1930 Treaty provided that the three features were not
considered as included in that Treaty on the ground that
“sovereignty over [them] is in dispute between Colombia and
the United States of America”, and Nicaragua made no
observation, it was natural and obvious to conclude (1) that
Nicaragua itself had no claim to the three features; (2) that
without Article I(2), the three features would have been
218 Olaya-Kellogg Agreement, 10 Apr il 1928: CCM, Vol. II, Annex II,
preamble.
219 CCM, para. 4.42; Annex 49.
87considered as included in the Treaty; and (3) that “ el dominio”
or “sovereignty” 220 over the three features was an issue,
implying that they were capable of appropriation in sovereignty.
3.7. Colombia annexed to its Counter-Memorial a Navy
Study of September 2008, identifying a significant number of
high-tide elevations – i.e., islands – and even more low-tide
221
elevations, on Quitasueño.
3.8. In its Reply, Nicaragua did not address the Navy Study
on its merits. While repea ting its submission in the
alternative,222 it unequivocally denies that Quitasueño is capable
of appropriation in international law. 223
3.9. In this Chapter, Colombia will outline the settled
definition of an island in the international law of the sea
(Section C), then describe the facts of the geomorphology of the
area and the presence of numerous high tide elevations (Section
D), before turning to review the rather considerable legal history
of Quitasueño and its relevance to this dispute (Section E).
C. The Applicable Law
3.10. The modern consensus on islands as subjects of
sovereignty, and specifically on the definition of islands, is as
220 The French translation has “la possession”: CCM, para. 5.18.
221 CCM, Vol. II, Annex 171.
222 NR, p. 239, para. (2).
223 NR, paras. 4.27-4.43.
88set out in Article 10(1) of the 1958 Geneva Convention on the
Territorial Sea:
“Article 10
1. An island is a naturally formed area of
land, surrounded by water, which is above water
at high tide.
2. The territorial sea of an island is
measured in accordance with the provisions of
these articles.”
Article 10(1) is repeated verbatim in Article 121(1) of
UNCLOS. Article 121 as a whole reads:
“Article 121 Regime of islands
1. An island is a naturally formed area of
land, surrounded by water, which is above water
at high tide.
2. Except as provided for in paragraph 3, the
territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf of an
island are determined in accordance with the
provisions of this Convention applicable to other
land territory.
3. Rocks which cannot sustain human
habitation or economic life of their own shall
have no exclusive economic zone or continental
shelf.”
Article 10(1) has been cited by the Court as an undoubted rule
224
of customary international law. Colombia is a party to the
1958 Geneva Continental Shelf Convention, according to
Article 1(b) of which, an island is entitled to a continental shelf.
The definition of island is presumed to be that contained in
224 Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 40, at p. 99, para. 195.
89Article 10(1) of the 1958 Geneva Convention on the Territorial
225
Sea. Article 121(1) is subject to a qualification concerning
“rocks” in Article 121(3). The crucial point however is that
rocks are a kind of island; they meet the definition in Article
121(1) but, if they are unable to “sustain human habitation or
economic life of their own” they have no exclusive economic
zone or continental shelf. But it follows from the express
language of Article 121 that rocks, i.e., small features which are
above water at high tide, generate at least a territorial sea and a
contiguous zone, “determined in accordance with the provisions
of this Convention applicable to other land territory”.
3.11. In accordance with the position under customary
international law (and reflected in these treaty provisions), there
is no minimum size for an island; the only criteria are that the
feature in question must be (a) naturally formed, (b) surrounded
by water and (c) above water at high-tide. The position, which
began to be articulated in the work for the 1930 Hague
Codification Conference, is summarised by O’Connell in the
following terms:
“Provided that a feature corresponds with the
definition of an island, it generates a territorial
sea irrespective of its size or character. From
time to time suggestions have been made that
only islands capable of habitation ought to be
entitled to territorial waters, because the freedom
of the sea means freedom of utilization, and
useless restrictions on utilisation derogate from
225 DW Bowett, The Legal Regime of Islands in International Law ,
Oceana Publications, Dobs Ferry, New York / Sijtoff & Noordhoff,
Netherlands, 1979, p. 33.
90 that principle. It has been suggested that isolated
rocks serve no function in the economics of the
sea, nor any useful role in enabling a mariner to
denote where the territorial sea begins, unless it
is close to the coast. However, at the Third Law
of the Sea Conference the effort to distinguish
between features was confined to excluding from
the calculation of the EEZ or continental shelf,
but not from that of the territorial sea, rocks
which cannot sustain human habitation or
226
economic life of their own.”
3.12. The position adopted in 1958 was further consolidated
and definitively confirmed – as concerns the territorial sea and
the contiguous zone – in 1982. The interpretation which follows
from its express language is further confirmed, if confirmation is
227
needed, by the travaux of Article 121. Before settling on and
confirming the “automatic” language of Article 10(1) of the
1958 Geneva Convention, UNCLOS III considered most
possible alternatives, including:
x a minimum size requirement (Malta proposed 1 km ); 2 228
x a distinction between larger islands and “islets and small
islands, uninhabited and without economic life”, the
229
latter deprived of any maritime entitlement (Romania);
x the exclusion of any maritime entitlement for “rocks and
low-tide elevations” (Turkey); 230
226 DP O’Connell, The International Law of the Sea , ed., IA Shearer,
Oxford, OUP, 1982, Vol. I, p. 194.
227 These are usefully summarised in M Nordquist, ed., Virginia
228mentary, Kluwer, The Hague, 1995 Vol. III, 321-339.
229 Virginia Commentary, 328.
230 Virginia Commentary, 330.
Virginia Commentary, 333.
91 x the exclusion of non-adjacent rocks, except for safety
231
zones (14 African countries).
None of these proposals was adopted.
3.13. Whether a feature is above water at high-tide is quite
simply a matter of fact. In Qatar/Bahrain, a dispute arose over
the status of a small feature, Qit’at Jaradah, which the United
Kingdom in 1947 (consistently with its position at that time) had
not considered entitled to a territorial sea. The Court treated the
question of status as a pure question of fact, applying Article
10(1) of the Geneva Convention on the Territorial
Sea/UNCLOS Article 121(1):
“195. The Court recalls that the legal definition
of an island is ‘a naturally formed area of land,
surrounded by water, which is above water at
high-tide’ (1958 Convention on the Territorial
Sea and Contiguous Zone, Art. 10, para. 1; 1982
Convention on the Law of the Sea, Art. 121,
para. 1). The Court has carefully analysed the
evidence submitted by the Parties and weighed
the conclusions of the experts referred to above,
in particular the fact that the experts appointed by
Qatar did not themselves maintain that it was
scientifically proven that Qit’at Jaradah is a low-
tide elevation. On these bases, the Court
concludes that the maritime feature of Qit’at
Jaradah satisfies the above-mentioned criteria
and that it is an island which should as such be
taken into consideration for the drawing of the
equidistance line.” 232
231 Virginia Commentary, 330.
232 Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 40, at p. 99, para. 195.
92Having found that Qit’at Jaradah was an island and capable of
appropriation, the Court went on to deal, in turn, with the issue
of sovereignty over Qit’at Jaradah, 233 and with the issue of
delimitation of maritime zones relative to it. 234
3.14. Three points emerge from the Court’s handling of this
aspect of the case.
(1) Whether a feature qualifies as an island or a low-tide
elevation is a question of present-day fact. That some
other government may not have recognized that feature
as an island at some earlier point of time is not decisive,
or even particularly relevant. Nor is it decisive that the
feature in question “has never been reflected on nautical
235
charts as an island but always as a low-tide elevation”.
Expert evidence is admissible in determining the
question of fact.
(2) The Court accepted the categorical distinction between
an island (however small) and a low-tide elevation.
Sovereignty over islands is determined by the
international law of land territory (title and/or
effectivités). By contrast, sovereignty over low-tide
elevations is determined by the law of the sea, i.e., by
maritime delimitation. Thus in Qatar v Bahrain ,
sovereignty over a low-tide elevation, Fasht ad Dibl,
233 Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 40, at pp. 99-100, para.
197.
234 Ibid., pp. 104-109, para. 219.
235 Ibid., p. 99, para. 193.
93 236
located within Qatar’s territorial sea was with Qatar.
Likewise in Malaysia/Singapore, the status of South
Ledge, a low-tide elevation, was held to depend on the
maritime delimitation still to occur between Middle
Rocks and Pedra Branca/Pulau Batu Puteh. 237
(3) Even tiny features which qualify as islands “should as
such be taken into consideration for the drawing of the
equidistance line.” How much weight they are given in
the delimitation process depends on the circumstances, a
238
matter discussed in Chapter 6.
3.15. In the present case the feature in issue, Quitasueño, is not
a low-tide elevation but includes numerous high-tide elevations
or islands as defined in Article 10(1) of the Territorial Sea
Convention/Article 121(1) of UNCLOS. This will now be
demonstrated in fact, and relevant consequences drawn.
D. Existence of Islands and Low-tide Elevations on
Quitasueño and their Legal Consequences
3.16. In its Counter-Memorial, Colombia presented the results
of a survey of Quitasueño carried out by the Colombian
236
Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, Merits, Judgment, I.C.J. Reports 2001, pp. 101-102, paras. 204-206.
237 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks
and South Ledge (Malaysia/Singapo re), Judgment of 23 May 2008, paras.
297-299, esp. para. 299: “the Court concludes that for the reasons explained
above, sovereignty over South Ledge, as a low-tide elevation, belongs to the
State in the territorial waters of which it is located.”
238 See below, paras. 6.35, 6.41-6.43, 6.63-6.70.
94Navy. 239 This demonstrated the presence on Quitasueño of at
least 8 high-tide elevations, plus many more low-tide
elevations. 240
3.17. In its Reply, Nicaragua gives three reasons for
dismissing the Navy Report: first , that it is “belated”; 241
secondly , that it contradicts earlier surveys: it “cannot change
the conclusions on the status of Quitasueño as it appears from
information and the practice of the Parties spanning almost two
centuries”, 242 and thirdly, that “the technical report prepared by
the Colombian Navy in September 2008 confirms that there are
not even small cays on Quitasueño”. 243
3.18. As to the first reason, the Navy Report was produced in
the Counter-Memorial, which was the first opportunity
Colombia had to do so. By contrast the expert report which the
Court relied on in Qatar-Bahrain was produced in its third
written pleading on the merits. 244 The time to produce evidence
of a claim is in the pleadings, up to and including the Rejoinder.
3.19. Secondly, it is not the case that earlier surveys ignored
the presence of at least some high-tide elevations. The
239 CCM, Vol. II, Annex 171, “Study on Quitasueño and
Alburquerque”, prepared by the Colombian Navy, September 2008.
240 See CCM, para. 8,21 and Figure 2.8, Vol. III, p. 15.
241 See NR, para. 4.34.
242 See NR, para. 4.34.
243
244 See NR, para. 4.35.
See Case concerning Maritime Delimitation and Territorial
Questions between Qatar and Bahrain , Merits, Bahraini Reply, 30 May
1999, Annex 13.
95Chamberlain letter of 1926 245was based on “what is believed to
be the only detailed examination of this extensive reef ever
made by a properly equipped surveying vessel, together with the
results of a running survey performed quite recently by another
of His Majesty’s ships”. Foreign Secretary Chamberlain
referred to “a small, solitary and quite uninhabitable rock” as
“normally visible above the surface of the sea”: this high-tide
elevation, according to British views at the time, was not
246
entitled to a territorial sea because it was uninhabitable. But
this is not the position under modern international law, which
considers as an island any high-tide elevation, irrespective of
247
size, as the Court confirmed in Qatar/Bahrain. The same
point can be made as to earlier, more cursory surveys.
3.20. In light of Nicaragua’s continued denial of the facts,
Colombia has commissioned a further expert report, by Dr
248
Robert W Smith, which is annexed to this Rejoinder. Dr
Smith served from 1975-2006 in the Office of the Geographer,
United States Department of State. He is a well-known
authority on the law of the sea, notably on technical aspects of
maritime delimitation. He was editor and main author of the
245 Analysed in CCM, para. 4.99; for the letter of 7 July 1926 see CCM,
Vol. II, Annex 47.
246 See CJ Colombos, The International Law of the Sea , 6thed.,
Longmans, London, 1967, p. 122. In this tradition, rocks, even if above
water at high-tide, were equated with low-tide elevations rather than islands:
247d., 125.
248 See above, paras. 3.13, 3.14.
RW Smith, “Mapping the Islands of Quitasueño (Colombia). Their
Baselines, Territorial Sea, and Contig uous Zone”, February 2010, Appendix
1 (hereafter also referred to as Smith Report).
96State Department’s publication, Limits in the Seas . His
curriculum vitae is Annex 1 to the Report.
3.21. Dr Smith was asked to express an independent opinion
on the following questions: “(1) what features exist, particularly
islands and low-tide elevations, on Quitasueño, and (2) how the
principles of the law of the sea may apply to determining
249
maritime jurisdiction from their baselines.” He spent 3 days
surveying Quitasueño in November 2009 with logistical support
from the Colombian Navy. Full details are provided in the
Report; his conclusions are summarised below. It is sufficient
for the moment to say that they fully confirm the presence of
islands on Quitasueño.
3.22. The two missions of 2008 and 2009 are the only two
surveys of Quitasueño which combine modern techniques (GPS
readers, aerial survey, accurate tide tables, etc.) with precise
250
information as to the requirements of the applicable law. On
technical questions of fact such as this, there is every reason to
prefer more recent to older processes – as, again, this Court did
in Qatar-Bahrain (where earlier opinions were also negative). 251
3.23. Thirdly , it is not the case that the Colombian Navy
Report “confirms that there are not even small cays on
Quitasueño”, 252 if by “cays” is meant islands within the meaning
249 Smith Report, para. 1.1.
250 See above, para. 3.16.
251 See above, paras. 3.13-3.14.
252 See NR, para. 4.35.
97of Article 10(1) of the Territorial Sea Convention. Evidently the
description of something as a cay is not decisive. Under
international law, the relevant criterion is that of Article 10(1),
repeated in UNCLOS Article 121(2). By that criterion,
Quitasueño is the site of several islands, as the 2008 and 2009
Reports show, and as will now be described in more detail by
reference to the Smith Report.
(1) I SLANDS AND LOW -TIDE ELEVATIONS ON Q UITASUEÑO
3.24. In response to the first question Dr Smith identified 54
features as low-tide elevations or high-tide elevations (i.e.
islands); each of them was measured and photographed. For 22
of them, he and his team were able to land: others were
measured from a boat, due to coral formations or wave
conditions. 253 He concluded that 34 of the 54 features are high-
tide elevations, i.e. “islands in accordance with international
law”; 254the other 20 are low-tide elevations. Of the 34 islands,
he was able to land on 19, thus assuring precision of
255
measurement. The result is shown in Figure 7 to Dr Smith’s
Report and in Figure 3.1 to this Rejoinder.
3.25. The total number of legally relevant features is not
precise. In many cases, closely related features were treated as
one (e.g. QS 9, QS 11, QS 13, QS 16, QS 27, QS 35, QS 38,
QS 39). 256 Some could not be approached closely due to wave
253 Smith Report, para. 2.3.
254 Smith Report, para. 3.2.
255 Smith Report, para. 3.2.
256 Smith Report, para. 3.2.
98conditions, thus measurements were more approximate (e.g.
QS 46, QS 50, QS 54). When in doubt, features were classified
257
as low-tide elevations. Dr Smith comments:
“due to the danger of navigating close to the
breaking waves at the eastern reef, as evidenced
by the several wrecked ships that clearly are
visible at different locations along the reef, on
site measurements were not possible. Visual
inspection from our boat about 50+ meters from
this area caused us to firmly believe that many
features were at or slightly above tidal datum all
along the reef. To me, the Quitasueño reef is
similar in nature to many others throughout the
world and to those used when discussing reefs as
258
legal baselines.”
3.26. There is a high level of concordance between the 24
points identified in the Navy Report of 2008 259 and points
identified by Dr Smith. 260 The reason why Dr Smith identified
30 more features is explained by the greater time taken and the
attempt to be comprehensive. But as Dr Smith explains, it was
not in the end possible to be completely comprehensive, given
wave conditions and the nature of this very large coral bank
with so many individual features above water at some or all
tides.
257 Smith Report, para. 2.6.
258
259 Smith Report, para. 2.7.
CCM, Vol. II, Annex 171, “Study on Quitasueño and
260urquerque,” prepared by the Colombian Navy, September 2008.
Annex 5 to the Smith Report contains the survey data, including the
coordinates for the 54 f eatures. 23 points are common to the 2 Reports and
have identical or virtually identical coordinates. On e point, Q4, is on the
Navy’s list but not on the Smith list. Dr Smith’s poi nt QS27 (Smith Report,
p.18) identifies as one point positions which the Navy classified as two (Q12
and Q13).
100 (2) L EGAL CONSEQUENCES OF THESE FACTS
3.27. The question is, then, how to characterize Quitasueño in
light of these facts. That it is not globally a mere low-tide
elevation is clear. Nor, contrary to the position taken by
Nicaragua, is it a submerged bank, if by this phrase Nicaragua
means totally submerged.
3.28. One option is simply to treat it as a collection of at least
34 islands, each of which is entitled, at least, to a territorial sea
and continuous zone in accordance with the rules identified
above. It should be noted that the low tide elevations identified
by Dr Smith are all close to other features which qualify as
islands. Thus the reason all 54 features can be used is that the
low-tide elevations are all well within 12 nm of the islands.
“[T]he furthest any of the low-tide elevations is
from lan261s QS 44 which is only 1.62 miles from
QS 45.”
Figure 3.2 illustrates the territorial sea and contiguous zone
generated by these features.
3.29. There is a further possibility, still within the context of
territorial sea and contiguous zone, by reference to fringing
reefs. These are the subject of special provision in Article 6 of
UNCLOS which states:
“In the case of islands situated on atolls or of
islands having fringing reefs, the baseline for
measuring the breadth of the territorial sea is the
261 Smith Report, para. 6.5.
101 seaward low-water line of the reef, as shown by
the appropriate symbol on charts officially
recognized by the coastal State.”
There is such a reef on Quitasueño. 262
3.30. There is also one low-tide elevation on which a
lighthouse is located (QS1), which could under Article 7(4) be
used to initiate a system of straight baselines in conjunction with
the fringing eastern reef and the outer islands.
3.31. Thus there is no reason to believe that the application of
the international law rules concerning delimitation would
produce any different result if Quitasueño was subjected to
standard processes applicable to a collection of islands, or to a
regime of straight baselines.
E. Quitasueño as a Unit
3.32. In the Channel Islands arbitration, the question arose as
to the status of the Eddystone rock, a feature more than 12 nm
263
off-shore on which was built a famous Lighthouse. There
was some doubt whether the Lighthouse had been constructed
on an island or a low-tide elevation. Moreover the case arose
for decision in 1977, half-way through UNCLOS III, at a time
when the eventual settlement of Article 121 was still contested.
The Court of Arbitration, without deciding whether the feature
262
263 Smith Report, para. 4.9.
Arbitration Award relating to the Continental Shelf boundary in the
Western Channel approaches (France, United Kingdom), Court of
Arbitration, 30 June 1977, 54 ILR 6.
103was an island or a low-tide elevation, held that it could be used
as a basepoint for continental shelf delimitation. In particular,
despite earlier British practice to the contrary (pursuant to the
then-British thesis reflected in the Chamberlain letter of
264
1926 ), Great Britain in its modern practice had consistently
treated it as an island, and France had “acknowledged the
relevance of the Eddystone as a basepoint” in 1964-5. 265
3.33. For present purposes the case is significant in several
ways:
(1) What matters is the “contemporary” practice of the
claimant State, measured against the current definition of
an island. In other words, what is its status at the time
the delimitation is performed?
(2) Even if the Eddystone was only a rock, the way it had
been treated by other States was sufficient to justify its
use as a continental shelf basepoint.
3.34. In the case of Quitasueño, there have been no
negotiations between Nicaragua and Colombia over maritime
delimitation, so that aspect of the decision on this point is
irrelevant. But until recently, Nicaragua itself had treated
Quitasueño as capable of appropriation in sovereignty, and
Colombia’s own practice has been consistent. Nicaragua now
can only sustain the contrary proposition by a factual
264
265 Above, paragraph 3.19.
54 ILR 6, para.140.
104misrepresentation, viz., that Quitasueño is entirely underwater, a
“submerged bank”.
3.35. State practice concerning Quitasueño was described in
the Counter-Memorial. To recall:
(1) Quitasueño is a single, large bank, with a fringing reef
and many high-tide and low-tide elevations. 266
(2) Both before and after 1928, Colombia has always
considered it as part of the Archipelago. 267
(3) Prior to 1980 it was never shown as Nicaraguan on
268
Nicaraguan official maps. By contrast it was shown as
Colombian on many maps, including maps current at the
269
time of the 1928/1930 Treaty.
(4) Colombia regulated fishing around Quitasueño, by issue
of permits, under strict regulations and measures to
ensure the conservation of resources, etc., and no other
270
State did so.
(5) Colombia has conducted operations relating to the
control of unauthorized fishing, search and rescue work,
patrolling and anti-narcotics interdiction operations in
and around Quitasueño. .271
266
CCM, paras. 2.25-2.29.
267 CCM, paras. 2.68-2.72.
268 See CCM, paras. 2.96-2.97.
269 See CCM, paras. 275-2.85.
270 See CCM, paras. 3.32-3.42, 3.106.
271
See e.g., CCM, paras. 3.81.
105 (6)Colombia has enacted environmental legislation
extending to Quitasueño. 272
(7) Colombia has operated and maintained lighthouses and
other navigational aids on Quitasueño. 273
3.36. The controversy with the United States over the three
features was also rec ounted in detail in the Counter-Memorial.
Again, to summarise:
(1) The United States was aware from the 19 thcentury
onwards that Colombia considered Quitasueño part of
the Archipelago and claimed it as such.
(2) During the course of the dispute, the United States made
no relevant distinction between Quitasueño and the other
cays; all were the subject of its claim to sovereignty.
(3) The United States was on record internally as doubting
the validity of its own claim and as ready to concede to
Colombia if pressed.
(4) It was only in 1971 that the United States, for the first
time since 1856, considered that Quitasueño was
different and that it was not capable of appropriation in
sovereignty, despite the fact that the United States had
long purported to grant guano extraction concessions to
its citizens. These concessions were objected to and
protested by Colombia that, in turn, continued to exercise
its jurisdiction over it. Despite that suggestion by the
272
273 See e.g., CCM, paras. 3.89.
See e.g., CCM, paras. 3.133-3.154.
106 United States, Colombia’s position that it was capable of
appropriation never wavered. 274 Functionally, the effect
of the United States change of position was to encourage
Colombia to concede more by way of access to United
States’ fishing vessels.
(5) Colombia having done so, in practice the United States
has accepted the continuing exercise of Colombian
authority over the waters around Quitasueño, as well as
its operation of the lighthouse ownership of which was
transferred to it “in perpetuity” in 1972. As recalled in
the Counter-Memorial, that lighthouse was later replaced
by the Colombian Navy, that subsequently also installed
another lighthouse in the southern end of Quitasueño. 275
(6) In particular, in 1981, shortly after the ratification of the
1972 Agreement, the United States acknowledged
“Colombia’s incontestable de facto presence and
enforcement activities in the area, over a long period of
276
time”.
(7) In 1983 was concluded the Colombia-United States
Exchange of Notes on the implementation of fishing
rights in the areas adjacent to the three cays, 277including
274 See, e.g., NM, Annex 33b, Colombia’s note in the 1972 Exchange
of Notes concerning the status of Quitasueño, annexed to the 1972 Vazquez-
Saccio Treaty. The US Note is at NM Annex 33a.
275
276 CCM, para. 2.29.
US Aide Memoire of 16 July 1981, CCM Annex 60; cited and
277lysed CCM, para. 4.58(3).
CCM, Annex 8. It is noteworthy that the 1983 Exchange of Notes
was registered with the UN Secretary-General and as such, appears in the
UNTS (2015 UNTS 3) and the US treaty series: 35 UST 3105, TIAS 10842.
107 Quitasueño, pursuant to which Colombia and the United
States have held meetings to agree on bans and other
278
preservation measures; and United States-vessels
continue to notify and obtain permits from Colombia
279
when they intend to fish in the areas of the cays.
There was no protest or Nicaraguan reaction in this
regard.
3.37. This practice, of which the foregoing are examples, is
incontrovertible evidence of long-standing Colombian interest
and presence, and of Nicaraguan absence and disinterest, in
Quitasueño. But it goes further than that: it goes to the status of
Quitasueño as an entity in itself. The Quitasueño fishery has
been regulated and managed by Colombia with the express
recognition or at least acquiescence of other States. Quitasueño
has never been treated as simply part of the high seas, not even
by the United Kingdom (despite the Chamberlain letter). Even
the exchanges with the United Kingdom originated in the turtle
fishing activities in Quitasueño of British subjects from the
Cayman Islands, facilitated by its reef formations and features.
As for Nicaragua, it was in large part silent. The Nicaraguan
assertion of coerced exclusion from natural resources actively
claimed by it is contrary to all the evidence and is entirely
without foundation.
278
279 CCM, paras. 4.62-4.77, Annexes 11, 12, 13, 15, 16.
CCM, Annexes 11, 12, 13, 15, 16.
1083.38. In international law, State practice, especially consistent
practice over time, is of high value. A State which silently
acquiesced in the exercise of authority by another State should
not be permitted subsequently to claim the territory concerned
on a wholly different and new hypothesis. It must be stressed
that the status of Quitasueño (as of the other two features) vis-à-
vis Nicaragua was settled – at the latest – by 1928. It cannot
have been determined by reference to a continental shelf
doctrine which had its origins in 1945 and was only definitively
accepted by States as a whole in 1958.
F. Conclusions
3.39. For these reasons:
(1) Quitasueño is a group of islands, low-tide elevations
with a fringing reef constituting distinctive and
substantial maritime feature and as such is capable of
appropriation in international law.
(2) As with the other cays it appertains to Colombia.
(3) Quitasueño is entitled to the full range of maritime
zones.
109 PART TWO
MARITIME DELIMITATION Chapter 4
NICARAGUA’S FUNDAMENTAL CHANGE OF
POSITION
A. Nicaragua’s Abandonment of Its Single Maritime
Boundary Claim
4.1. Nicaragua’s Application introducing the proceedings
before the Court requested the Court to determine the single
maritime boundary (continental shelf and EEZ) between the two
countries. That this represented Nicaragua’s considered position
with respect to delimitation was confirmed in Nicaragua’s
Memorial where Nicaragua repeatedly emphasized that it was
seeking the determination of a single maritime boundary which
Nicaragua argued should be based on a median line between the
mainland coasts of the Parties. As was stated at paragraph 3.28
of the Memorial:
“In accordance with the provisions of the Law of
the Sea Convention and, in so far as relevant, the
principles of general international law, Nicaragua
claims a single maritime boundary based upon
the median line dividing the areas where the
coastal projections of Nicaragua and Colombia
converge and overlap.” 280
4.2. Nicaragua has now radically changed its position. It has
abandoned its request for the Court to delimit a single maritime
boundary based on a mainland-to-mainland median line; it has
280 NM, para. 3.28; and see NM, pa. 24, 3.3, 3.37, 3. 44, 3.49-3.50,
3.137-3.141, and Submissions para. (9).
113discarded its reliance on geography in favour of an outer
continental shelf claim based exclusively on geology and
geomorphology; and it has introduced a brand new claim to
divide equally what is alleged to be the overlapping physical
continental shelves of the Parties’ mainland coasts. None of this
has any validity in fact or in law.
(1) V INDICATION OF COLOMBIA ’S POSITION
4.3. Colombia’s Counter-Memorial addressed the case that
Nicaragua had advanced in its Application and Memorial. In
that pleading, Colombia demonstrated that Nicaragua’s
approach was fundamentally misguided given that Nicaragua’s
single maritime boundary claim fell within an area where
Nicaragua had no legal entitlement. This was because the
mainland coasts of the Parties are more than 400nautical miles
apart, and Nicaragua’s claimed median line boundary was thus
situated more than 200nautical miles from the mainland coast
and baselines of Nicaragua. As Colombia pointed out, there are
no areas subject to the delimitation of a single maritime
boundary (including of the water-column or EEZ) where one
State has no legal entitlement.81The position was illustrated on
Figure.1 to Colombia’s Counter-Memorial which is
reproduced for convenience here as Figure R-4.1.
4.4. In a quite cavalier manner, Nicaragua now (and
belatedly) admits that what Colombia sa id is correct – namely,
that there can be no single maritime boundary involving an EEZ
281 CCM, paras. 7.8-7.16.
114delimitation between the mainland coasts of the Parties because
they are separated by a distance of more than 400 nautical miles.
In the words of the Nicaraguan Reply:
“There is no need for a delimitation of exclusive
economic zones claimed respectively by
Nicaragua and Colombia because the mainland
coasts of the two States are separated by a
distance of more than 400 nautical miles.” 282
4.5. This remarkable volte face is only partly correct.
Nicaragua is right in agreeing with Colombia that there can be
no delimitation of a single maritime boundary between the
mainland coasts of the Parties because of the distances involved.
That is precisely why Colombia has underlined the fact that its
mainland coast has no relevance to the delimitation. But there
most certainly is still a need for the delimitation of the single
maritime boundary, including the EEZ, between the truly
relevant coasts of the Parties – the coasts of the Colombian
islands comprising the San Andrés Archipelago and the opposite
coast of Nicaragua.
4.6. Notwithstanding this, the Nicaraguan Reply now
advances a totally new and even more exaggerated claim to the
effect that the Court should only delimit the Parties’ respective
continental shelves, not a single maritime boundary. Nicaragua
maintains that the Court’s Judgment on jurisdiction provoked
her to review her general position and to undertake a more
detailed analysis of the delimitation including additional
282 NR, para. 1 to p. 59 and para. 2.10.
116geological and hydrographic studies, and hence now to move to
283
claim only a continental shelf boundary. However, the
Court’s Judgment on jurisdiction had no bearing at all on this
and provides no justification for Nicaragua’s change of position.
4.7. As will be demonstrated, this new claim is untenable and
inadmissible. Moreover, Nicaragua’s assertion that a continental
shelf delimitation will completely delimit the areas belonging to
the Parties and “in this respect it will be the only pertinent or
single maritime boundary affecting the Parties” is unintelligible
and misconceived. 284 What Nicaragua is now seeking from the
Court is (i) no delimitation of the exclusive economic zone or
column of water, rather (ii) recognition of a claim to extended
continental shelf rights under Article 76 of the 1982 Convention
- a position that is incompatible with the fact that Colombia is
not a Party to the Convention and that there are no areas of outer
continental shelf in this part of the western Caribbean Sea, and
the ambit of which would in any event fall to be submitted to
and considered by the United Nations Commission on the
Limits of the Continental shelf, not the Court; (iii) a
determination of Colombia’s own physical continental shelf
extending from its mainland (but ignoring the continental shelf
entitlements of its islands) which is irrelevant given the
existence of Colombia’s 200 nautical mile continental shelf and
EEZ entitlements as a matter of law; and (iv) a delimitation
283 NR, para. 25.
284 NR, para. 26.
117based on a division of allegedly overlapping physical
continental shelves. None of this has any merit.
(2) T HE IRRELEVANCE OF GEOLOGY AND GEOMORPHOLOGY
4.8. Despite Nicaragua’s new-found reliance on geology and
geomorphology to support alleged rights to an outer continental
shelf at Colombia’s expense, it is worth recalling what
Nicaragua had to say about geology and geomorphology in its
Memorial. The relevant passage reads as follows:
“The position of the Government of Nicaragua is
that geological and geomorphological factors
have no relevance for the delimitation of a single
maritime boundary within the delimitation area.
As demonstrated by the pertinent graphics, the
parties have overlapping legal interests within the
delimitation area, and it is legally appropriate that
these should be div285d by means of an
equidistance line.”
4.9. That was the sum total of Nicaragua’s submissions on
what its Memorial characterized as “The Relevance of Geology
and Geomorphology”. Notwithstanding this, in its Reply
Nicaragua accuses Colombia of “having no adequate
appreciation either of the geomorphology of the seabed in the
delimitation area or of the law relating to entitlement to shelf
areas”.286
285 NM, para. 3.58.
286 NR, para. 3.15.
1184.10. This is an extraordinary argument. Not only does it
ignore the fact that it was the Nicaraguan Memorial that
emphasized the irrelevance of geology and geomorphology; it
also fails to appreciate that Nicaragua’s previous position was
that geographical factors were predominant for delimitation. As
Nicaragua rightly noted in its Memorial: “The judicial
authorities always insist that the choice of the pertinent method
of delimitation ‘is essentially dependent on geography’”. 287
Colombia did not address the geomorphology of the seabed or
the law of entitlement to extended continental shelf rights in its
Counter-Memorial because they were not raised in Nicaragua’s
Application or its Memorial and they are irrelevant to the case.
4.11. Nicaragua’s new continental shelf claim now falls well
within 200nautical miles of Colombia’s coasts, including the
coasts of both its islands and its mainland. This can be seen on
Figure R-4.2 which is based on Figure 3.10 to the Nicaraguan
Reply. However, the Court has made it clear that, under the
distance formula encapsulated in the 1982 Convention and
reflected in customary international law, a State has a legal
entitlement to maritime rights out to a distance of 200 nautical
miles from its coast regardless of the geology or geomorphology
of the continental shelf. As the Court observed in its Judgment
in the Libya-Malta case:
“The Court however considers that since the
development of the law enables a State to claim
that the continental shelf appertaining to it
287 NM, para. 3.14.
119 extends up to as far as 200miles 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 concerned,
since, at least in so far as those areas are situated
at a distance of under 200miles 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
characteristic288f those areas are completely
immaterial.”
And the Court added:
“Neither is there any reason why a factor which
has no part to play in the establishment of title
should be taken into account as a relevant
circumstance for the purposes of delimitation.” 289
4.12. Given that Nicaragua’s new claim rests entirely on these
kinds of geological and geomorphological factors and falls
within 200nautical miles of Colombia’s coasts, it is legally
irrelevant and provides no basis for delimitation in the present
case.
288
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
289orts 1985, p. 35, para. 39.
Ibid., p. 35, para. 40.
121(3) N ICARAGUA ’S NEW CLAIM IS EVEN MORE EXTREME THAN
THE CLAIM ADVANCED IN ITS M EMORIAL
4.13. There is a further striking aspect of Nicaragua’s new
position which results from its continental shelf claim. While
Nicaragua did not provide the co-ordinates of its mainland-to-
mainland equidistance line in its Memorial, a comparison
between Figure1 to the Nicaraguan Memorial and Figure3-11
of the Reply shows that Nicaragua is now claiming a boundary
much further to the east ( i.e., towards the mainland Colombian
coast) than was claimed in the Memorial. This can be seen on
Figure R-4.3. This new, more aggressive, claim is some 100
nautical miles closer to Colombia’s mainland coast than
Nicaragua’s previous claim and results in Nicaragua claiming a
large additional expanse (over 53,000 km²) over and above what
it had previously claimed.
4.14. Neither claim has any legitimacy and both are hugely
inflated. Nonetheless, the introduction at the Reply stage of the
proceedings of an even more extreme claim highlights the
artificial and arbitrary approach to delimitation adopted by
Nicaragua and casts serious doubts on the credibility of
Nicaragua’s claims in general.
B. Nicaragua’s New Continental Shelf Claim Is
Inadmissible: The Issue for the Court Remains the
Delimitation of a Single Maritime Boundary
4.15. Article 40, paragraph 1, of the Court’s Statute provides,
that in a case brought by application, “the subject of the dispute”
122shall be indicated. Article 38, paragraph 1, of the Rules of
Court follows up on this by providing that, when proceedings
before the Court are instituted by means of an application
pursuant to Article 40 of the Statute, “the application shall
indicate the party making it, the State against which the claim is
brought, and the subject of the dispute” . Paragraph 2 of Article
38 of the Rules further provides that the application “shall also
specify the precise nature of the claim , together with a succinct
statement of the facts and grounds on which the claim is
290
based.”
4.16. In so far as the issue of maritime boundaries is
concerned, Nicaragua’s Application made it clear that Nicaragua
considered the subject of the dispute was the delimitation of a
single maritime boundary. This was reflected in Nicaragua’s
Application as follows:
“Second, in the light of the determinations
concerning title requested above, the Court is
asked further to determine the course of the
single maritime boundary between the area of
continental shelf and exclusive economic zone
appertaining respectively to Nicaragua and
Colombia, in accordance with equitable
principles and relevant circumstances recognized
by general international law as applicable to such
a delimitation of a single maritime boundary.” 291
290
291 Emphasis added.
Nicaraguan Application, para. 8.
1244.17. Nicaragua’s request for a single maritime boundary was
292
repeated several times in its Memorial. Nicaragua further
indicated that the type of delim itation requested in the present
proceedings “is essentially the same as that requested in the Gulf
of Maine case and the applicable law is similar.” 293 The Gulf of
Maine case, it will be recalled, involved the delimitation of a
single maritime boundary extending only to a distance of 200
nautical miles from the coasts of the Parties. The Nicaraguan
Memorial also specified the precise nature of its claim in its last
submission as follows:
“the appropriate form of delimitation, within the
geographical and legal framework constituted by
the mainland coasts of Nicaragua and Colombia,
is a single maritime boundary in the form of a
294
median line between these mainland coasts.”
4.18. The Court has noted that “[t]here is no doubt that it is for
the Applicant, in its Application, to present to the Court the
dispute with which it wishes to seise the Court and to set out the
claims which it is submitting to it.” 295 As pointed out above,
however, the subject of the dispute presented by Nicaragua in its
Application, and the nature of its claim, has completely changed
in the Nicaraguan Reply. No longer does Nicaragua request the
delimitation of a single maritime boundary – a proposition
which it had previously identified as the “central question” in its
292 See note 280 above.
293 NM, para. 3.8.
294 NM, Submissions, para. 9.
295 Fisheries Jurisdiction (Spain v. Cana da), Jurisdiction of the Court,
Judgment, I.C.J. 1998, p. 447, para. 29.
125Memorial 296 – and no longer does Nicaragua claim that that the
“appropriate form of delimitation” should be a mainland-to-
mainland median line. Nicaragua also abandons its earlier
position that “geological and geomorphological factors have no
relevance for the delimitation of a single maritime boundary
within the delimitation area.” 297
4.19. Instead, Nicaragua’s Reply advances a much more
exaggerated claim that the Court should determine a continental
shelf boundary between the two Parties arrived at exclusively on
the basis of geological and geomorphological factors.
Nicaragua nowhere explains why it has so fundamentally
changed its claim or why it could not have made such a claim in
its Application if the delimitation of the outer continental shelf
had been its real intention. What is clear is that the Reply has
gone far beyond the limits of the claim set out in the Nicaraguan
Application, and has now submitted a dispute which is
fundamentally different in character from the subject-matter of
the original dispute.
4.20. The Court (and its predecessor) has held on a number of
occasions that a new claim which changes the subject of the
dispute originally submitted is inadmissible. As the Permanent
Court of International Justice observed in its Order of 4
February 1933 in the case concerning the Prince von Pless
Administration (Preliminary Objection) -
296 NM, para. 3.37.
297 NM, para. 3.58
126 “under Article 40 of the Statute, it is the
Application which sets out the subject of the
dispute, and the Case, though it may elucidate the
terms of the Application, must not go beyo298the
limits of the claim as set out therein....”
4.21. This principle was further elaborated by the Court in its
Judgment on the preliminary objections in the Phosphate Lands
in Nauru case. There, the Court upheld a preliminary objection
introduced by Australia that a new claim raised by Nauru
relating to the overseas assets of the British Phosphate
Commission not mentioned in its Application was
inadmissible. 299 In upholding this objection, the Court cited the
reasoning of the Permanent Court in its Judgment in the case
concerning the Société Commerciale de Belgique where the
Permanent Court held:
“It is to be observed that the liberty accorded to
the parties to amend their submissions up to the
end of the oral proceedings must be construed
reasonably and without infringing the terms of
Article 40 of the Statute and Article 32,
paragraph 2, of the Rules [now Article 38 (1) of
the Rules] which provide that the Application
must indicate the subject of the dispute....”
The Permanent Court then continued –
“it is clear that the Court cannot, in principle,
allow a dispute brought before it by application
to be transformed by amendments in the
298 P.C.I.J., Series A/B, No. 52, p. 14.
299 Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 267, paras. 70-71.
127 submissions into another dispute which is
different in character.”300
4.22. That is precisely what Nicaragua has done in its Reply.
The entire character of the dispute originally submitted by
Nicaragua has changed from a case concerning the delimitation
of a single maritime boundary based on a mainland-to-mainland
median line where geology and geomorphology had no role to
play into a dispute over Nicaragua’s entitlement to an extended
continental shelf beyond 200 nautical miles from its baselines
and a request for the delimitation of the continental shelves of
the Parties based exclusively on geological and
geomorphological factors.
4.23. Although Nicaragua does not advance such a position in
its Reply, to the extent it may subsequently try to argue that
there is a link between the original claim made in the
Application and the new claim advanced in the Reply in so far as
both could be said to relate to maritime delimitation, such an
argument would be erroneous. The Court has clearly stated that
for a claim to be held to have been, as a matter of substance,
included in the original claim –
“it is not sufficient that there should be links
between them of a general nature. An additional
claim must have been implicit in the Application
.... or must arise ‘directly out of the question
300 Société Commerciale de Belgique, Judgment, 1939, P.C.I.J., Series
A/B, No. 78, p. 173.
128 which is the subject matter of the
Application’“. 301
4.24. There is nothing implicit about Nicaragua’s new
continental shelf claim in the Application or, indeed, in the
Nicaraguan Memorial. Moreover, the question of Nicaragua’s
entitlement to an extended continental shelf, and the
delimitation of that shelf based on geological and
geomorphological factors cannot be said to arise directly out of
the question that was the subject-matter of the Application,
which was the delimitation of a single maritime boundary based
solely on geographical factors.
4.25. Even at the jurisdictional objections stage of the case,
Nicaragua continued to emphasize that the subject-matter of the
dispute was the delimitation of a single maritime boundary.
This was expressed very clearly in Nicaragua’s Written
Statement dated 24 January 2004 responding to Colombia’s
preliminary objections. At paragraph 3.41 of that pleading, and
after citing the Prince von Pless, Phosphate Lands in Nauru and
Société Commerciale de Belgique cases referred to above,
Nicaragua stated the following:
“In view of both the context of the Application
itself and the clarification made in the Memorial,
it will be apparent:
301 Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgme nt, I.C.J. Reports 1992, p. 266, para. 67,
citing Temple of Preah Vihear, Mer its, I.C.J. Reports 1962p. 36 and
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits,
I.C.J. Reports 1974, p. 203, para. 72.
129 - that the subject-matter of the dispute is
the determination of a single maritime
boundary between the areas of continental
shelf and exclusive economic zones
appertaining respectively to Colombia and
Nicaragua.”
4.26. The position could not be clearer. The subject-matter of
the dispute before the Court is the delimitation of a single
maritime boundary not, under Nicaragua’s new claim, whether it
is entitled to an outer continental shelf and the delimitation of
that shelf with the physical continental shelf of Colombia. To
apply the Court’s words from its Judgment on the preliminary
objections in the Nauru case to Nicaragua’s new claim, if the
Court “had to entertain such a dispute on the merits, the subject
of the dispute on which it would ultimately have to pass would
be necessarily distinct from the subject of the dispute originally
302
submitted to it in the Application.”
4.27. This can be seen by considering a host of questions that
Nicaragua’s new claim gives rise to that do not arise out of, or
bear any relation to, Nicaragua’s original claim and which
present issues that more properly fall within the purview of the
United Nations Commission. These include, but are not limited
to:
x whether there is any scope for extended continental shelf
claims in this part of the Caribbean (which there is not);
302 Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, p. 266, para. 68.
130x the question whether Nicaragua has any entitlement at all
to an extended continental sh elf in the area, particularly
in circumstances where the claim has not been submitted
to, let alone considered by, the United Nations
Commission on the Limits of its Continental Shelf;
x whether Nicaragua has satisfied the appurtenance test for
claiming an extended continental shelf;
x whether the location and scientific validity of the foot-of-
the-slope points that Nicaragua posits for determining
the extent of its own and Colombia’s continental shelves
have an established scientific basis;
x the relevance and sufficiency of the bathymetric and
geomorphological profiles that Nicaragua has submitted
in support of its extended continental shelf claim;
x the issue of plate boundaries and plate tectonics raised in
the Reply;
x the relevance and validity of thickness of sediment
calculations and the calculation of outer continental shelf
limits for both Parties based on the Hedburg formula and
the “Irish” test;
x and the relevance, or more accurately lack thereof, of
positing a geological limit to the continental shelf off
Colombia’s mainland coast when that coast, as well as
the coasts of Colombia’s islands, generate automatic
continental shelf and EEZ entitlements extending to a
distance of 200 nautical miles regardless of the
131 geological and geomorphological characteristics of the
sea-bed and subsoil.
4.28. All of these matters are wholly extraneous to the original
claim and would lead the Court into areas not even remotely
contemplated in the Application or in Nicaragua’s Memorial (or
even in its pleadings on the jurisdictional objections). Their
consideration would result in a basic and fundamental
transformation of the subject-matter of the dispute originally
submitted in the Application and hitherto addressed by the
Parties (and by the Court at the jurisdictional phase).
4.29. In this respect, it is worth recalling that in the Costa
Rica-Nicaragua case, Nicaragua itself argued that a claim
advanced by Costa Rica relating to subsistence fishing along the
San Juan River not raised in Costa Rica’s Application was
inadmissible because the claim did not arise “directly out of the
question which is the subject-matter of that Application”. 303
Unlike in this case, however, the actions giving rise to the new
claim of Costa Rica only arose after the institution of the
proceedings, and the claim was thus raised by Costa Rica in its
Memorial. Nicaragua did not raise an admissibility objection in
its Counter-Memorial, but rather addressed the claim on its
merits. It was only in the Rejoinder that Nicaragua argued that
the claim was not admissible.
303
Rejoinder of Nicaragua in the Dispute Regarding Navigational and
Related Rights (Costa Rica v. Nicaragua), para. 6.30 quoting Fisheries
Jurisdiction (Fed eral Republic of Germany v. Iceland), Merits,
Judgment, ICJ Reports 1974, p. 203, para. 72.
1324.30. In the light of these factors, the Court did not accept
Nicaragua’s objection to admissibility. The Court also observed
that there was a sufficiently close connection between the claim
relating to subsistence fishing and the Application because
Costa Rica, in addition to invoking the relevant treaty, had also
invoked “other applicable rules and principles of international
304
law” in its Application. In contrast, and as already shown, the
facts of the present case are very different.
4.31. What is more, Nicaragua’s position on the applicable law
has also changed as a result of its new claim. In its Application
and Memorial, Nicaragua stressed that the applicable law in the
case comprises “principles of general international law” and that
“these principles include the principles of maritime delimitation
305
relating to cases involving single maritime boundaries”. To
the extent that Nicaragua no longer claims a single maritime
boundary, its view of the applicable law is now primarily based
on the interpretation and application of Article 76 of the Law of
the Sea Convention relating to rights to the outer continental
shelf and a division of that shelf based on natural
prolongation. 306 This is yet another element of Nicaragua’s new
claim which is removed from the position it adopted in its
Application and which underscores the fundamentally changed
nature of the subject-matter of the dispute now advanced by
304 Case concerning the Dispute Regardi ng Navigational and Related
Rights (Costa Rica v. Nicaragua), Judgment of 13 July 2009, paras. 134-139.
305 NM, para. 3.37.
306 NR, paras. 3.29 and ff.
133Nicaragua as compared with the dispute it originally submitted
to the Court in its Application and Memorial.
4.32. These considerations also distinguish Nicaragua’s new
claim in this case from the issue that the Court was confronted
with in the Nicaragua-Honduras case where, in its submissions
during the oral hearings, Nicaragua requested the Court to
decide the question of sovereignty over the islands and cays
within the area in dispute.
4.33. The Court ruled that this request was admissible (a
matter which Honduras had not contested) because the claim
relating to sovereignty over the islands in the area in dispute was
“inherent in the original claim relating to the maritime
delimitation between Nicaragua and Honduras in the Caribbean
Sea.” 307 As the Court explained:
“To draw a single maritime boundary line in an
area of the Caribbean Sea where a number of
islands and rocks are located the Court would
have to consider what influence these maritime
features might have on the course of that line. To
plot that line the Court would first have to
determine which State has sovereignty over the
islands and rocks in the disputed area. The Court
is bound to do so whether or not a formal claim
has been made in this respect. Thus, the claim
relating to sovereignty is implicit in and arises
directly out of the question which is the subject-
matter of Nicaragua’s Application, namely the
delimitation of the disputed areas of the territorial
307 Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007,
p. 35, para. 115.
134 sea, continental shelf and exclusive economic
zone.” 308
4.34. In contrast, Nicaragua’s new continental shelf claim in
this case is in no way “implicit in” the question that was the
subject-matter of Nicaragua’s Application and does not “arise
out of” that question. The request for a single maritime
boundary based on geographical factors submitted in the
Application and the Memorial did not depend on a
determination of the legitimacy of extended continental shelf
rights under Article 76 of the 1982 Convention. Nor did the
dispute presented in the Application hinge on the identification
of the limits and division of the Parties’ alleged natural
prolongations defined on geological and geomorphological
grounds. These are matters that are related solely to
Nicaragua’s new claim, but which had nothing to do with the
subject-matter of the single maritime boundary dispute
originally submitted to the Court.
4.35. In these circumstances, Nicaragua’s new extended
continental shelf claim, as well as its request for the Court to
delimit the continental shelf boundary between the Parties, is
inadmissible. The subject-matter of the case introduced in the
Application over which the Court has jurisdiction remains the
delimitation of a single maritime boundary between the Parties.
That was the issue that Nicaragua consented to address in its
308 Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007,
p. 35, para. 114.
135Application and Memorial, and it is the case that Colombia
responded to in its Counter-Memorial. There are no grounds for
now changing the entire basis of the case.
C. Nicaragua’s New Continental Shelf Claim Has
No Merit
4.36. While Colombia’s principal position is that Nicaragua’s
new claims to extended continental shelf rights and a
delimitation of the continental shelf based on those claims are
inadmissible, Colombia will demonstrate in this section that the
claim raised in Nicaragua’s Reply is without merit in any event,
it being recalled that Colombia’s Counter-Memorial already
demonstrated the invalidity of Nicaragua’s original single
maritime boundary claim.
(1) T HERE ARE NO AREAS OF EX TENDED CONTINENTAL
SHELF IN THE WESTERN CARIBBEAN
4.37. As Figure R-4.4 shows, there are no areas of outer
continental shelf within this part of the Caribbean Sea given that
there are no maritime areas that lie more than 200 nautical miles
from the nearest land territory of the riparian States. Indeed,
prior to the filing of Nicaragua’s Reply, no State in the region
(including Nicaragua) had ever suggested that an extended
continental shelf exists in this part of the Caribbean. This can
be seen on Figure R-4.5. It follows that there are no areas of
extended continental shelf in this region and no basis for
Nicaragua’s outer continental shelf claim which, apart from
being factually and procedurally deficient, is legally irrelevant
136to questions of both entitlement and delimitation in this dispute.
t
(2) A RTICLE 76 OF THE U NITED N ATIONS C ONVENTION
4.38. Nicaragua purports to base its extended continental shelf
claim on Article76 of the 1982 Convention. Colombia has
previously pointed out that it is not a party to the Convention
and that Article76 is thus not binding on it as a matter of
conventional law.
4.39. Despite the fact that Colombia is not a party to the 1982
Convention, Nicaragua’s Reply argues that Colombia has
accepted that Article76 is reflective of customary international
law.309 This misrepresents what Colombia said about the
applicable law in its Counter-Memorial. There, Colombia
indicated only that the relevant provisions of the Convention
dealing with baselines and a State’s entitlement to maritime
areas, and specifically the delimitation provisions of Articles 74
and 83, reflected well-established principles of customary
international law.10 Colombia made no mention of extended
continental shelf rights under Article76, and no such rights
were at issue at the time given that Nicaragua had not yet
invented its outer continental shelf claim.
309 NR, para. 2.5.
310 CCM, Part III, Introduction, p. 306, para. 4.
139(3) T HE OUTER LIMITS OF AN EXTENDED CONT INENTAL SHELF
CLAIM MUST BE SUBMITTED TO THE U NITED N ATIONS
C OMMISSION ,NOT THE C OURT ,AND MUST BE BASED ON
THE COMMISSION S RECOMMENDATIONS
4.40. Nicaragua assumes that it has extended continental shelf
rights out to the edge of its margin beyond 200 nautical miles -
indeed, it says that this is a “simple truth” notwithstanding the
fact that its claim trespasses onto areas falling within
200nautical miles of Colombia’s coast (not to mention the
coasts of other States in the region).Actually, the “simple
truth” is that Nicaragua did not even think to mention such
rights in its Application or itMemorial. Moreover, those
purported rights have never been recognized or submitted to the
United Nations Commission, let alone accepted or made subject
to the Commission’s recommendations, despite the fact that
Nicaragua is a party to the 1982 Convention and is bound by
such procedures.
4.41. Article 76(8) of the 1982 Convention provides that:
x Information on the limits of the continental shelf beyond
200 nautical miles from the baseline “shall” be submitted
by the coastal State to the Commission on the Limits of
the Continental Shelf set up under Annex II to the
Convention.
x The Commission “shall” make recommendations to the
coastal State on matters related to the establishment of
such outer limits.
311 NR, para. 2.20.
140 x Limits of the shelf established by the coastal State “on
the basis of” these recommendations shall be final and
binding. 312
4.42. Article76, coupled with the Commission’s Rules of
Procedure, makes it mandatory for a coastal State to make an
extended continental shelf submission to the Commission, for
the Commission to make recommendations on that submission,
and for the coastal State then to e stablish the outer limits of its
shelf “on the basis of” the Commission’s recommendations.
Rule45 stipulates that the coastal State “ shall” submit
particulars of its claims to the Commission. Nicaragua cannot
be deemed to have established any rights to an extended
continental shelf unless and until these steps are followed, and
the Commission will not even examine such claims unless the
relevant parties consent.
4.43. On 7 April 2010, Nicaragua submitted what it called
“Preliminary Information” on its outer continental shelf to the
313
Commission on the Limits of the Continental Shelf.
Curiously, that document was dated August 2009, before the
Nicaragua Reply was filed. But it was not filed with the Reply
and, as noted above, it was only received by the Commission on
7 April 2010.
312 Moreover, Article 76(10) pr ovides that the pr ovisions of Article 76
313 without prejudice to questions of delimitation.
The document may be found at:
http://www.un.org//depts/los/clcs_new/submissions_files/preliminary/nic…
liminaryinformation2010.pdf (last visited 5 June 2010).
1414.44. Nicaragua recognizes that the Preliminary Information it
has sent to the Commission shall not be considered by the
Commission until Nicaragua makes a full submission complying
with the requirements of Article 76 of the 1982 Convention, the
Commission’s Rules of Procedure and its Scientific and
Technical Guidelines. 314 Nicaragua has made no such
submission; in fact, it is not even certain that it will ever do so.
Nicaragua expressly states in its Preliminary Information that it
“intends to consider the further implementation of article 76 for
the area of the southwestern part of the Caribbean Sea which is
the subject of this submission of preliminary information after
the International Court of Justice will have rendered its
judgment on the merits in the case concerning the Territorial and
Maritime Dispute (Nicaragua v. Colombia).” 315
4.45. It follows that Nicaragua, which by its own admission
has not yet made such a submission to the Commission
complying with Article 76, or had it subject to the
Commission’s recommendations, has not established any
entitlement to extended continental shelf rights, let alone to
rights which encroach on Colombia’s 200-mile continental shelf
and EEZ entitlements which exist as a matter of law. That being
the case, Nicaragua cannot merely assume that it possesses such
rights in this case or ask the Court to do the Commission’s job
based on rudimentary and incomplete technical information.
314
315 Preliminary Information of Nicaragua to the CLCS, para. 5.
Preliminary Information of Nicaragua to the CLCS, para. 27.
1424.46. In this connection, it is worth recalling what the Court
had to say about delimitation beyond 200 miles in its Judgment
in the Nicaragua-Honduras case. The relevant passage was
316
cited in Colombia’s Counter-Memorial, but has been ignored
by Nicaragua in its Reply. The fact that Nicaragua was a party
to that case makes Nicaragua’s silence on the matter even more
surprising. To recall the Court’s words:
“It should also be noted in this regard that in no
case may the line be interpreted as extending
more than 200nautical miles from the baselines
from which the breadth of the territorial sea is
measured; any claim of continental shelf rights
beyond 200miles must be in accordance with
Article 76 of UNCLOS and received by the
Commission on the Limits of the Continental
317
Shelf established thereunder”.
4.47. It should also be borne in mind that the Commission will
not consider any extended continental shelf submissions unless
neighbouring States with potential claims in the area consent.
Thus, if a neighbouring State does not give its consent, the
Commission will take no action with the result that a State
(including Nicaragua) will not have established extended
continental shelf limits that are final and binding (recalling that
such limits, in any event, are without prejudice to questions of
delimitation and would not be binding on Colombia in any
event).
316
317 CCM, para. 7.18.
Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007,
p. 90, para. 319.
143(4) N ICARAGUA HAS NOT PROVED THE LIMITS OF ITS OWN
CONTINENTAL MARGIN AND THE OUTER LIMIT OF
C OLOMBIA ’S MARGIN FROM ITS MAINLAND COAST
IS IRRELEVANT
4.48. Nicaragua’s new continental shelf boundary claim is
based on what it alleges is an equal division of overlapping
geological continental margins.318 This methodology involves a
number of basic fallacies in addition to the other shortcomings
which have been discussed.
4.49. First, Nicaragua’s delimitation line presupposes that
Nicaragua has established the outer limits of an extended
continental shelf beyond 200nautical miles from its baselines.
Legally, as explained above, Nicaragua has no recognized or
accepted extended continental shelf rights in the area. Even the
Nicaraguan Reply concedes that a description of the status of
preparation and intended date of making a full submission to the
319
Commission are still to be provided. Factually, Nicaragua
has not proved its case despite the fact that Nicaragua purports
to base the identification of its continental margin on publicly
available sources. Significantly, none of this information is
annexed to Nicaragua’s Reply and the sources referenced at
paragraph3.37 of the Nicaraguan Reply cannot be readily
accessed and are not, as Nicaragua asserts, “freely and widely
available”. If they were so, why has Nicaragua not furnished
them?
318
319 NR, para. 3.46.
NR, para. 3.38.
1444.50. What Nicaragua does submit with its Reply are three thin
annexes (Annexes 16-18, Vol. II) which would not begin to
satisfy the requirements of a submission made to the United
Nations Commission.
4.51. Annex 16 is a list of 70 co-ordinates purporting to define
the outer limits of Nicaragua’s continental shelf. Absolutely no
information is given to justify the number or choice of these
coordinates and why they were selected to the exclusion of
others.
4.52. Annex 17 contains a similar list of co-ordinates said to
define the outer limits of Colombia’s continental shelf. In
addition to suffering the same lack of explanation as is the case
for the co-ordinates of Nicaragua’s shelf, the table is
meaningless because all of the points listed fall closer than 200
nautical miles to Colombia’s mainland coast or to the coasts of
its islands. Colombia has continental shelf rights extending 200
miles from its coasts ipso facto and ab initio without any
limitation dictated by the purported limits of its physical
continental shelf. To posit a physical limit to Colombia’s
continental shelf extending from its mainland (and Nicaragua
pays no attention to the fact that Colombia’s islands also
generate a continental shelf) is without object.
4.53. Annex 1 to Annex 18 of the Nicaraguan Reply is labelled
“Preliminary Technical Description of the Outer Limits of the
Nicaraguan Continental Shelf”. The information and figures
145provided therein are virtually identical to what Nicaragua has
filed as Preliminary Information with the Commission. Even
taken at face value, the information provided is incapable of
demonstrating any outer continental shelf entitlement, and the
material does not comprise the technical data that Nicaragua
envisages eventually submitting to the United Nations
Commission - hence, the reason for Nicaragua labelling its
annex as “Preliminary Technical Description” only. As
Nicaragua acknowledges in its Preliminary Information, “some
of the data and the profiles described below do not satisfy the
exacting standards required by the CLCS for a full submission,
320
as detailed in the Commission’s Guidelines”.
4.54. The tentative manner in which the data set out in this
Annex is presented is revealing. With respect to Nicaragua’s
choice of five foot-of-the-slope points from which it measures
the outer limits of its outer continental shelf, Annex 1 states:
“Four of these are based on the data derived from
the marine trackline database GEODAS [which
is not provided] and are in principle suitable 321
inclusion in a full submission to the CLCS.”
4.55. Quite apart from the fact that Nicaragua qualifies its
description by noting that four of the points are only “in
principle” suitable, the fifth point is casually dropped from
discussion. The Annex then goes on to state:
320
321 Preliminary Information of Nicaragua to the CLCS, para. 21.
NR, Annex 1 to Annex 18, p. 61. Emphasis added.
146 “there are issues with the data quality in a few
areas [which ones?], especially navigation [what
does this mean?] and the final submission to the
CLCS will evaluate the data quality and present
new data where necessary [no evaluation has
been presented in this case]. The picks presented
in this submission of preliminary information
should be treated as indicative only.” 322
As frankly admitted in Nicaragua’s Preliminary Information,
“Nicaragua intends to acquire additional survey data in order to
complete the information to be submitted to the Commission in
accordance with article 76 of the Convention”. 323 Thisagain
demonstrates that the technical material submitted by Nicaragua
in the present case is incapable of supporting a claim to outer
continental shelf rights.
4.56. Nicaragua’s approach to the issue is truly remarkable. In
effect, Nicaragua is not only asking the Court to substitute itself
for the Commission, it is also requesting the Court to endorse its
outer continental shelf claim based on incomplete, unannexed
and “indicative” materials that would never be acceptable to the
Commission. Nicaragua admits that some of the data is either
of questionable quality or only “in principle” suitable, and no
evaluation of this data is presented at all.
4.57. Second, Nicaragua also gratuitously posits where it says
the outer limit of Colombia’s continental margin lies. 324 This is
322
323 NR, Annex 1 to Annex 18, p. 61.
324 Preliminary Information of Nicaragua to the CLCS, para. 24.
NR, paras. 3.24-3.28.
147a necessary pre-condition for the establishment of Nicaragua’s
delimitation line which is said to be based on an equal division
of the overlapping margins of the Parties. However, any
identification of the limits of Colombia’s continental margin is
completely irrelevant. As can be seen from Figure3-10 to the
Nicaraguan Reply, Nicaragua places the “continental shelf
limits” of Colombia in an area which lies well within
200nautical miles of Colombia’s mainland coast, and which
also takes no account of Colombia’s islands which also generate
200 nautical mile continental shelf and EEZ entitlements in their
own right regardless of the geology and geomorphology.
4.58. As the Court so clearly stated in its Judgment in the
Libya-Malta case, the geological or geophysical characteristics
of the continental shelf within 200nautical miles of a State’s
coast are completely immaterial to issues of entitlement and
325
delimitation. Colombia has a legal entitlement to continental
shelf and EEZ rights extending to 200nautical miles from its
mainland coasts and its islands whatever the geological or
geomorphological characteristics of the area. Consequently,
there is no basis for delimitation in this case to be based on a so-
called equal division of overlapping continental margins.
4.59. Third, Nicaragua even goes so far as to argue that its
outer continental shelf rights should take precedence over
Colombia’s EEZ rights. Nicaragua’s Reply recognizes that its
325 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p. 35, paras. 39 and 40.
148outer continental shelf claim lies within 200 nautical miles of
Colombia’s coast and that “the final section of the continental
shelf of Nicaragua is subjacent to the exclusive economic zone
326
of Colombia”. However, this does not stop Nicaragua from
arguing that there is no reason why Nicaragua should renounce
her rights to the areas of continental margin of her natural
prolongation which are subjacent to Colombia’s EEZ. In a
passage which is remarkable for its economy of reasoning and
vagueness, Nicaragua then asserts: “A more legally cogent
approach would involve the determination of a single boundary
line of equal division within the areas of overlap of the
respective continental margins.” 327 By this means, Nicaragua
appears to present the astonishing argument that Colombia’s
EEZ should be limited (and delimited) by reference to
geological and geomorphological factors arguably related to
outer continental shelf claims that have nothing to do with a
State’s right to the EEZ or column of water. The argument is
utterly untenable.
(5) E XTENDED CONTINENTAL SHELF CLAIMS DO NOT
TRUMP 200 NAUTICAL MILE ENTITLEMENTS
4.60. For the same reasons, Nicaragua’s unproven claim to an
extended continental shelf does not, and cannot, take precedence
over the existing legal 200nautical mile entitlements of
Colombia measured from its mainland and insular territory.
Colombia has an existing legal entitlement to a continental shelf
326
327 NR, para. 3.47.
NR, para. 3.49.
149and EEZ extending to a distance of 200nautical miles from its
coasts.
4.61. State practice demonstrates that States have been careful
to limit their extended continental shelf claims submitted to the
United Nations Commission to areas that lie beyond
200nautical miles from the nearest territory of another State
precisely because 200 nautical mile entitlements exist as a
matter of law.
4.62. In the northern Pacific Ocean, for example, Japan’s
Submission to the Commission on the Limits of the Continental
Shelf typifies this practice. Japan’s submission covers seven
different regions. The southernmost region (the Southern
Kyushu-Palau ridge Region), in which Japan claims extended
continental shelf rights based on the natural prolongation along
a ridge extending from Oki-no-Tori Shima Island, encompasses
a zone that is limited to areas that lie more than 200 nautical
miles from the nearest territory of the Republic of Palau and of
the Federated States of Micronesia, thus avoiding any trespass
into the 200 nautical mile areas appertaining to those States
(Figure R-4.6).
4.63. Japan has exercised similar restraint with respect to the
other outer continental shelf areas it claims as well. Thus, in
both the Minami-lo To Island region and the Ogasawara region,
Japan’s claim does not cross over into areas lying within 200
nautical miles of territory belonging to the United States.
1504.65. New Zealand has followed the same practice and has
avoided introducing outer continental shelf claims that lie within
200 nautical miles of another State. Thus, in the southern region
claimed by New Zealand, the claim ends at the 200 nautical mile
entitlement of Australia’s Macquarie Island as shown on Figure
R-4.8. In the northern region, New Zealand’s claim avoids
trespassing on the 200 nautical mile entitlements of Fiji and
Tonga. 329
4.66. The practice of Sri Lanka with respect to its outer
continental shelf claim in the Indian Ocean is the same. In its
2009 submission to the Commission on the Limits of the
Continental Shelf, Sri Lanka noted that its extended continental
shelf claim was situated exclusively seaward of the 200 nautical
330
mile limits of neighbouring coastal States. The position is
illustrated in Figure R-4.9 where the outer continental shelf
claim of Sri Lanka clearly does not trespass on the 200 mile
entitlements of other states.
4.67. In the eastern Atlantic Ocean, France, Ireland, Spain and
the United Kingdom have made a joint submission to the
Commission with respect to extended continental shelf rights in
the area of the Bay of Biscay and the Celtic Sea. These claims
329 Available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nzl06/nzl_exec_su
m.pdf?bcsi_scan_8896DBBFDB1B0269=0&bcsi_scan_filename=nzl_exec_s
330pdf (last visited 5 June 2010).
Available at:
http://www.un.org/depts/los/clcs_new/submissions_files/submission_lka_4…
2009.htm (last visited 5 June 2010).
153Polygon, Mexico reserved the right to make a second
submission at a later date. Significantly, the parameters of the
Eastern Polygon are delineated by the 200 nautical mile legal
entitlements of Mexico, the United States and Cuba
demonstrating Mexico’s intention not to claim outer continental
shelf rights within areas subject to the sovereign rights of other
332
States.
4.69. It is evident that the practice of those States which do
claim extended continental shelf rights runs counter to the
proposition advanced by Nicaragua that there is no priority
when extended continental shelf claims trespass into areas
falling within 200nautical miles of another State. Contrary to
Nicaragua’s new claim, States have taken care to tailor their
extended continental shelf claims so as not to trespass onto areas
lying within 200 nautical miles of another State.
D. Conclusions
4.70. Nicaragua now concedes that what Colombia said in its
Counter-Memorial is correct - namely, that there can be no
single maritime boundary based on a mainland-to-mainland
median line in this case because of distances involved. As for
Nicaragua’s outer continental shelf claim and its request that the
Court only delimit the Parties’ continental shelf, this is an
entirely new claim advanced for the first time in the Reply. The
332 Available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/mex07/part_i_exec
utive_summary.pdf (last visited 5 June 2010).
156claim is fundamentally incompatible with Nicaragua’s previous
request for the delimitation of a single maritime boundary.
Given that the subject-matter of the new claim does not arise out
of the claim advanced in the Application, it is inadmissible.
4.71. The new continental shelf claim also lacks any merit.
Nicaragua has neither demonstrated nor established any
entitlement to outer continental shelf rights, and no such rights
exist in this part of the Caribbean. Moreover, there is no basis
for effecting a continental shelf delimitation based on the
physical characteristics of the shelf when the area claimed by
Nicaragua falls within 200 nautical miles of Colombia’s
mainland and insular territory.
4.72. Having abandoned its previous claim for a single
maritime boundary based on a mainland-to-mainland median
line – a claim which the Colombian Counter-Memorial showed
was unsustainable – Nicaragua is leftwith no positive delimitation
claim once its new outer continental shelf claim is dismissed, as
Colombia submits it must be. Notwithstanding Nicaragua’s
fundamental change of position, the dispute to be decided by the
Court, remains the delimitation of a single maritime boundary.
As will be discussed in the next chapter, that delimitation falls
to be established in the area lying between the San Andrés
Archipelago and the Nicaraguan coast.
157 Chapter 5
THE AREA OF DELIMITATION
5.1. This Chapter addresses the area within which the
delimitation of the single maritime boundary falls to be carried
out.
5.2. Section A first demonstrates that the mainland coast of
Colombia is irrelevant to the delimitation because of its location
more than 400 nautical miles from Nicaragua’s coast beyond the
area of concern. It then goes on to discuss the maritime
entitlements generated by Colombia’s islands forming the San
Andrés Archipelago. Based on the area where the legal
entitlements projecting from the Parties’ truly relevant coasts
meet, Section A shows that the delimitation area lies between
the coasts of the Parties that stand in an opposite relationship to
each other – i.e., the area situated between the westernmost
chain of Colombia’s islands (San Andrés, Providencia, Santa
Catalina, Alburquerque and Quitasueño) and the opposite
Nicaraguan coast. With respect to Nicaragua’s own islands,
Nicaragua has taken a contradictory position in its pleadings, a
point that will also be brought out in this section.
5.3. Section B then turns to the presence of third States and
third State delimitations in the region. These elements
constitute relevant circumstances to be taken into account in
159identifying the delimitation area relevant to the case. As will be
discussed in Chapter 8, they are also relevant in assessing what
neighbouring States have considered an equitable delimitation to
be in situations where their coasts face Colombia’s islands.
A. The Delimitation Concerns the Area Lying between
Nicaragua’s Coast and Colombia’s San Andrés
Archipelago
(1) T HIS IS NOT A CASE OF DELIMITATION BETWEEN
MAINLAND COASTS
5.4. Colombia demonstrated in its Counter-Memorial that its
mainland coast is not a relevant coast for the delimitation of a
single maritime boundary because it lies well over 400nautical
miles from the nearest Nicaraguan territory. Nicaragua now
accepts that point. However, Nicaragua persists in trying to
keep the Colombian mainland coast in play by introducing a
request for a continental shelf delimitation based on an “equal
division” of the natural prolongations of the Colombian and
Nicaraguan mainland coasts. In the words of the Nicaraguan
Reply:
“Nicaragua’s request has been limited in this
Reply to a continental shelf delimitation since
this is the only area where the entitlements of the
Parties emanating from their mainland coasts
meet and overlap and has need of a
delimitation”.333
333 NR, para. 5.1.
1605.5. It is this new claim alone, according to the Nicaraguan
Reply, that renders both of the Parties’ mainland coasts “relevant
coasts”. In other words, the only way for Nicaragua to plead for
the relevance of Colombia’s mainland coast is to assert that the
delimitation must now be based on dividing the natural
prolongations of the Parties, not on the establishment of a single
maritime boundary. The convoluted logic of this proposition is
expressed in the following way:
“In fact, as Nicaragua has shown, the only area in
this case that requires a delimitation is where the
Parties’ continental shelf entitlements overlap, so
the only relevant coasts are the two mainland
coasts.”334
5.6. However, Colombia’s mainland coast is also completely
irrelevant to Nicaragua’s continental shelf claim. This is
because Nicaragua has not demonstrated any legal entitlement to
continental shelf rights situated more than 200nautical miles
from its coast, there are no areas of outer continental shelf in
this part of the Caribbean, and natural prolongation is irrelevant
to Colombia’s 200 nautical mile entitlements measured from its
mainland and its islands. It is unnecessary, therefore, to
consider any issue of natural prolongation from Colombia’s
mainland coast, and that coast still has no role to play in the
present delimitation dispute.
5.7. This basic geographic fact – the lack of relevance of
Colombia’s mainland coast – distinguishes this case from other
334 NR, para. 6.27.
161cases on which Nicaragua relies in an attempt to enclave
Colombia’s islands in what Nicaragua calls its own continental
shelf.
5.8. For example, the Nicaraguan Reply argues that the
present case is similar to the delimitation concerning the
Channel Islands in the Anglo-French Arbitration where the
islands were enclaved. 335 As can readily be shown, however,
the two situations are not at all analogous.
5.9. The delimitation between France and the United
Kingdom in the English Channel involved primarily a
delimitation between broadly equivalent mainland coasts which
lay between 18 and 100 miles apart. The result was a mainland-
to-mainland equidistance boundary except for the treatment of
the Channel Islands. In the present case, the maritime boundary
does not fall to be delimited betwee n the mainland coasts of the
Parties given that those coasts are too far apart, but rather
between the islands comprising Colombia’s San Andrés
Archipelago and Nicaragua’s opposite coast.
5.10. It is evident that the position and location of the San
Andrés Archipelago is in no way comparable to that of the
Channel Islands. The latter were a relatively compact group
situated on the “wrong” side of the mainland-to-mainland
median line boundary just a few miles off the French mainland
coast. In fact, the distance between the Channel Islands and the
335 NR, paras. 5.18-5.25.
162French mainland coast was so restricted that it involved the
delimitation of the territorial sea between them for which the
Court of Arbitration had no jurisdiction. Moreover, the Channel
Islands were immediately surrounded on three sides by French
mainland territory. The Channel Islands were thus enclaved as
special or relevant circumstances that were unique to the
particular geographic situation.
5.11. The San Andrés Archipelago, on the other hand, is
located over 100 nautical miles from the mainland coast of
Nicaragua even at its nearest point, and the Archipelago also lies
opposite to a series of Nicaraguan islands. Unlike the Channel
Islands, Colombia’s islands are not situated in close proximity
to the Nicaraguan mainland. Indeed, they would have to be
closer to the Nicaraguan coast than Nicaragua’s own islands,
such as the Islas Mangles (Corn Islands), even to begin to
resemble the geographic relationship between the Channel
Islands and the French coast. Nor are they surrounded on three
sides by Nicaraguan mainland territory. And they are not
located on the “wrong” side of any mainland-to-mainland
median line because such a line does not exist in this case due to
the irrelevance of Colombia’s mainland coast.
5.12. It was the fact that the Channel Islands lay on the
“wrong” side of the median line that was the main reason for
enclaving the islands in the Anglo-French Arbitration. As the
Court of Arbitration observed, if the Channel Islands were
permitted to divert the course of the mid-Channel median line, a
163distortion of the boundary would result which would be creative
336
of inequity. This element does not exist in this case due to
the absence of any mainland-to-mainland median line, and
because Colombia’s string of islands stand on their own right
with their own legal entitlements. As the Court of Arbitration
emphasized, the case it was presented with -
“is quite different from that of small islands on
the right side of or close to the median line, and it
is also quite different from the case where
numerous islands stretch out one after337other
long distances from the mainland. ”
5.13. It is not surprising, therefore, that the Nicaraguan Reply
is obliged to concede that, “in certain respects the situations are
338
not exactly comparable.” What is puzzling, on the other
hand, is that just three paragraphs later in its Reply, Nicaragua
contradicts itself by asserting that “the situation of the three
islands [San Andrés, Providencia and Santa Catalina] in the
present case is entirely similar.” 339 As has been shown, it is not.
5.14. Nicaragua also cites the 1971 Italy-Tunisia Agreement as
an example of State practice where islands have been enclaved
(actually only partially enclaved). In its customarily ambitious
way, Nicaragua asserts that this situation is also “remarkably
similar” to the delimitation it proposes between itself and
336 Case concerning the Delimitation of Continental Shelf between the
United Kingdom of Great Britain and No rthern Ireland, and the French
Republic, Decision of 20 June 1977, 18 RIAA 94, para. 199.
337 Ibid.
338 NR, para. 5.18.
339 NR, para. 5.21.
164Colombia, a proposition that cannot even remotely be
sustained. 340
5.15. Once again, the dominant feature of the Italy-Tunisia
agreement was that the delimitation was based on a median line
boundary between the coasts of Sicily and Tunisia including the
341
small islands lying just off those coasts. The coasts of
Tunisia and Sicily are only about 75 miles apart. The four
Italian islands that were partially enclaved actually straddled the
median line - hence the reason why they were partially enclaved
with no Tunisian maritime areas extending beyond them.
5.16. In contrast, there is no mainland-to-mainland median
line in this case. Even Nicaragua has abandoned its previous
argument that such a line is relevant given that it now admits
that its single maritime boundary claim is untenable, and
Nicaragua’s new “division of natural prolongations” theory also
does not depend on any mainland-to-mainland median line.
5.17. Nicaragua also neglects to draw attention to the northern
two-thirds of the delimitation agreed between Italy and Tunisia.
There, the delimitation was an equidistance boundary between
small islands lying on both sides of the line. If anything,
therefore, this aspect of the Italy-Tunisia example supports
Colombia’s case which is also based on an equidistance line
340 NR, para. 6.116.
341
This is evident from Article I of the Agreement which states that the
boundary “shall be the median line” with the exception of four small Italian
islands which straddle that line. J. Ch arney and L. Al exander, eds.,
International Maritime Boundaries, Vol. II, p. 1621.
165drawn between its own islands and the islands belonging to
Nicaragua on the other side.
5.18. The plain fact is that Colombia’s islands do not straddle,
or lie on the “wrong side” of, any median line. Rather, the
islands stand on their own right with all the maritime
entitlements that international law accords to coastal territory
projected out to a distance of 200 nautical miles.
5.19. Nicaragua’s Reply purports to find it strange that
Colombia’s mainland coast has gone missing. Nicaragua
hypothesizes that this may be the first instance of a Party
seeking to ignore its coast.342
5.20. Colombia has fully explained the reasons why its
mainland coast has no role to play in the present delimitation
and why Nicaragua’s attempts to inject that coast into the
equation are erroneous and contrived. This does not mean that
Colombia is in any way reticent about its mainland coast. To
the contrary, that coast was treated a relevant coast in
Colombia’s maritime boundary agreements with Panama,
Jamaica, the Dominican Republic and Haiti. But the Colombian
mainland coast is not a relevant coast vis-à-vis Nicaragua, and
that is why it is not discussed by Colombia.
342 NR, para. 2.17.
1665.21. Curiously, Nicaragua now asserts that it is Colombia that
343
is seeking only an exclusive economic zone delimitation.
This is wrong on two counts. First, Colombia has presented its
case for the delimitation of a single maritime boundary, not
simply the delimitation of the Parties’ exclusive economic
zones. Second, a single maritime boundary is precisely what
Nicaragua itself was requesting in its Application and in its
Memorial, and even in its written submissions during the
preliminary objections stage of the case.
5.22. Given that Nicaragua has abandoned its mainland-to-
mainland single maritime boundary claim, and has failed to
establish any outer continental shelf entitlements by which it
seeks to put Colombia’s mainland coast into play, the
conclusion must be that Colombia’s mainland coast remains
irrelevant to the present delimitation because of its distance
from the Nicaraguan coast.
5.23. The relevant coasts of Colombia for purposes of this case
are those associated with its islands comprising the San Andrés
Archipelago. As the next section will show, those islands
generate maritime entitlements of their own, and (as Chapter 6
will demonstrate) they also provide relevant basepoints for
plotting the delimitation line vis-à-vis the opposite Nicaraguan
coast.
343 NR, para. 6.45.
167 (2) C OLOMBIA ’S ISLANDS GENERATE THEIR OWN
MARITIME ENTITLEMENTS
5.24. Under international law, Colom bia’s islands generate
maritime rights and entitlements extending out to a distance of
200nautical miles from their baselines in exactly the same
manner as other land territory. This is made clear by Article
121(2) of the 1982 Convention which provides that:
“Except as provided for in paragraph 3, the
territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf of an
island are determined in accordance with the
provisions of this Convention applicable to other
land territory.”
5.25. Nicaragua admits that the islands of San Andrés,
Providencia and Santa Catalina are full-fledged islands that are
entitled to generate continental shelf and exclusive economic
344
zone rights of their own. This cannot be questioned. All
three islands are populated and the islands host important
political, economic and social institutions. The photographs of
San Andrés, including its principal city, Providencia and Santa
Catalina, reproduced at Figures R-5.1d and 5.1e hereto, speak
for themselves. Clearly, islands such as these are entitled to the
full suite of maritime entitlements recognized by international
law.
5.26. With respect to the other islands comprising the
Archipelago, however, Nicaragua asserts that they are “rocks”
344 NR, para. 5.3.
168under Article 121(3) of the 1982 Convention with no human
habitation or economic life of their own. 345 This is no more than
a bald assertion with no facts to back it up. At several places in
the Nicaraguan Reply, it is asserted that Chapter IV of the Reply
shows that “there can be no doubt that the cays located on
Roncador and Bajo Nuevo as well as the other small features
claimed by Colombia in the area are at most rocks in the sense
346
of Article 121(3) of the 1982 Law of the Sea Convention”.
But if one turns to Chapter IV of the Reply, no such showing is
made. All that chapter addresses is Serranilla, Bajo Nuevo and
347
Quitasueño. Nothing at all is said with respect to
Alburquerque, Serrana, Roncador or the East-Southeast Cays.
5.27. A mere glance at the photographs that Colombia
included in its Counter-Memorial shows unequivocally that the
islands not dealt with in Nicaragua’s Reply - Alburquerque,
Serrana, Roncador, and the East-Southeast Cays - cannot
possibly be considered to be mere “rocks”.
5.28. The Alburquerque Cays are heavily vegetated with
coconut trees, rubber trees and bushes as can be seen on Figure
R-5.1a. There is a well-presented coral formation around them
along with a colourful and varied presence of sea species. The
islands are home to an active tourist presence, there is a
345 NR, para. 5.3.
346 NR, para. 5.17; and see also para. 6.29.
347 NR, paras. 4.9-4.14 for Serranilla and Bajo Nuevo, and paras. 4.25 -
4.43 for Quitasueño.
171Colombian Marine detachment located the re as well as weather
and radio stations. 348
5.29. Serrana is a longer atoll as the photograph attached in
Figure R-5.1a also shows. The island is full of vegetation.
Fresh water is present, a variety of installations manned by
Colombian personnel are stationed there, and the islands are
frequented by fishermen. The islands also have a historical
economic importance given that guano was exported from them.
All of this was described in the Colombian Counter-
349
Memorial. None of it is addressed by Nicaragua. Again, a
glance at the photograph is sufficient to show that Serrana
cannot possibly be characterized as a “rock”.
5.30. The same can be said about Roncador. Once again, as
the photograph of the island included on Figure R-5.1b reveals,
the island is vegetated, and there are facilities on it including a
lighthouse, solar panels, communication installations and a
heliport, along with a detachment of the Colombian Marine
Infantry. The island is also used by small industrial fishing
vessels.350 It is not a “rock” and Nicaragua has not shown
otherwise.
5.31. The East-Southeast Cays are also not rocks as the
photographs of them clearly reveal. Coconut trees and other
foliage is present on the islands, fishermen for whom there are
348 CCM, paras. 2.15-2.17.
349 CCM, paras. 2.22-2.24 and Annex 120.
350 CCM, para. 2.21.
173shelters use them, there is a well for fresh water, the Colombian
Marine Infantry is present, and there is a weather station,
351
lighthouse and radio station.
5.32. The same can be said about Serranilla and Bajo Nuevo.
The largest of the Serranilla Cays (Beacon Cay) has trees and
vegetation as shown on the photographs included in Figure R-
352
5.1c. There is a lighthouse operated by Colombian personnel,
a detachment of the Colombian Marine Infantry which controls
fishing and illicit drug-trafficking activities in the area stationed
there, weather and radio stations and landing facilities for small
aircraft.353
5.33. Bajo Nuevo consists of three cays on one of which is
situated a light structure operated by the Colombian Navy. This
can be seen on the photograph included on Figure 2.10 to
Colombia’s Counter-Memorial reproduced in Figure R-5.1c. In
addition, Serranilla and Bajo Nuevo are both frequented by
354
Jamaican fishermen who have been and continue to be
allowed to fish in their waters under permits issued by Colombia
and pursuant to Colombian fishing regulations.
5.34. Each of these islands generates territorial sea, contiguous
zone, continental shelf and column of water entitlements based
on the distance formula projected in a 360° direction. The
351
CCM, Figure 2.5 and paras. 2.18-2.20.
352 See also, CCM, Figure 2.9
353 CCM, para. 2.30.
354 CCM, para. 2.31 and CCM, paras. 4. 169-4.185 including Annexes
63 and 64.
175Nicaraguan Reply attempts to critic ize Colombia’s nautical
355
charts relating to some of these islands. These criticisms are
unwarranted as the technical explanation contained in Appendix
356
2 demonstrates.
5.35. With respect to Quitasueño, Colombia’s Counter-
Memorial contained a Navy Report demonstrating that there
were several features within the Quitasueño bank which qualify
as islands because they are above water at high tide. Apart from
these features, Quitasueño as a whole is a substantial feature
covering a large area, with numerous low-tide elevations and a
fringing reef on the east, which can be used as part of
Quitasueño’s baselines. Quitasueño has been, and continues to
be, an active fishing area of considerable economic importance
357
regulated by Colombia. There is a 1983 Fishing Agreement
and subsequent conservation measures agreed between
Colombia and the United States relating to the Quitasueño
area.358
5.36. As discussed in Chapter 3, Colombia is furnishing with
this Rejoinder an expert report prepared by a former senior
official with the Office of the Geographer of the State
Department of the United States, Dr Robert W Smith. That
report demonstrates that there are as many as 34 individual
features within the bank that qualify as islands. The Smith
355 NR, paras. 4.10-4.13.
356 Appendix 2: Colombia’s Official Nautical Charting of the San
Andrés Archipelago.
357 CCM, paras 2.25-2.29.
358 CCM, paras. 4.62-4.77.
177report also shows that there are at least 20 low-tide elevations
situated on Quitasueño well within 12 nautical miles of the
359
island features that are above water at high tide. Moreover,
the islands within Quitasueño possess a fringing reef which, as
reflected in Article6 of the Law of the Sea Convention, is able
to constitute the baseline of Quitasueño from which its maritime
entitlements are measured. As Figure R-5.2 shows, when the
actual baseline of Quitasueño is taken into account, Quitasueño
is actually a substantial feature. The area situated within
Quitasueño’s baselines is some 83 km².
5.37. Figure R-5.3 illustrates the 200 nautical mile maritime
entitlements generated by the radial projection of Colombia’s
islands in accordance with the distance principle without
prejudice to the question of delimitation. These islands are
entitled to the maritime areas that appertain to them in
conformity with general international law.
5.38. While Nicaragua pays lip service to the principle that
islands possess maritime entitlements in their own right, 360its
recognition of this reality is entirely ephemeral. Nicaragua’s
appreciation of the legal and geographic context in which the
need for delimitation arises is tainted by a self-centered view
that only its mainland coast and islands generate continental
shelf entitlements and that Colombia’s islands should be
359
Appendix 1: Expert Report by Dr. Robert Smith “Mapping the
Islands of Quitasueño (Colombia) – Their Baselines, Territorial Sea, and
360tiguous Zone”.
NR, para. 5.12.
178virtually ignored by means of according them no more than
three- and twelve-mile enclaves within Nicaragua’s continental
shelf.
5.39. Examples of this approach are littered throughout the
Nicaraguan Reply. Thus, one finds statements such as the
following which place the myopic nature of Nicaragua’s
position in sharp focus.
“The islands of San Andrés and Providencia are
not only sited on the natural prolongation of the
mainland territory of Nicaragua that reaches
beyond 300 nautical miles in this area, but are
also well within her 200-nautical-mile exclusive
economic zon361ased on the distance
principle.”
And again:
“As shown in (Figures 1.2, 3.2 and 3.7) the
various island features form part of the natural
prolongation of Nicaragua.” 362
And still again:
“The islands and other maritime features claimed
by Colombia are located on the continental shelf
of Nicaragua and approximately 200 nautical
miles distant from the area where the continental
shelf of Colombia terminates.” 363
361 NR, para. 5.4.
362 NR, para. 3.63. Elsewhere, Nicaragua asserts that it is only the
“natural prolongation of the main land territory of bo th Parties” that meets
and overlaps giving rise to the need for delimitation. NR, para. 3.2.
363 NR, para. 5.27.
1815.40. This line of argument is based on the fundamental
misconception that Colombia’s islands somehow fall, like
unwelcome intruders, exclusively on Nicaragua’s continental
shelf or within its EEZ. It also ignores the fact that the distance
principle applies equally to Colombia’s islands. Thus, the
reality of the situation is very different from what Nicaragua
seeks to portray. Colombia’s islands have their own legal
entitlements to continental shelf and column of water rights just
as any other land territory. This is recognized by Article 121(2)
of the 1982 Convention and customary international law. But
for the presence of Nicaragua’s is lands and its mainland coast,
Colombia’s islands would actually generate even larger
maritime spaces to the west out to a distance of 200 nautical
miles. It is thus no more accurate to say that Colombia’s islands
are situated on Nicaragua’s continental shelf and within its EEZ
than to say that Nicaragua’s island s and part of its mainland
territory are situated on the continental shelf and within the EEZ
of Colombia.
5.41. In arriving at an equitable delimitation, it is axiomatic
that geography must not be refashioned. This precept has
formed a cornerstone of the Court’s jurisprudence ever since the
North Sea cases were decided. There, the Court articulated the
following basic principle:
“Equity does not necessarily imply equality.
There can never be any question of completely
refashioning nature, and equity does not require
that a State without access to the sea should be
allotted an area of continental shelf, any more
182 than there could be a question of rendering the
situation of a State with an extensive coastline
similar to that of a State with a restricted
coastline. Equality is to be reckoned within the
same plane, and it is not such natural 364qualities
as these that equity could remedy.”
5.42. The same point was made by the Court in its Judgment
in the Libya-Malta case where the Court referred to:
“The principle that there is to be no refashioning
geography, or compensating for the inequalities
of nature.” 365
5.43. Political and natural geography are what they are, and
the existence of particular geographic configurations in an area
to be delimited is neither equitable nor inequitable. As the
Chamber in the Gulf of Maine case recalled:
“The facts of geography are not the product of
human action amenable to positive or negative
judgment, but the result of natural phenomena, so
that they can only be taken as they are.” 366
5.44. By its very nature, de limitation between States with
opposite coasts situated less than 400 nautical miles apart, as is
the case between Colombia’s islands and Nicaragua’s relevant
coast, entails some degree of curtailment of the legal
entitlements that each State would otherwise enjoy if the other
364 North Sea Continental Shelf Cases, Judgment, I.C.J. Reports 1969,
pp. 49-50, para. 91.
365 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p. 39, para. 46.
366 Delimitation of the Maritime Boundary in the Gulf of Maine Area,
Judgment, I.C.J. Reports 1984, p. 271, para. 37.
183State did not exist. This is due to the actual geographic facts of
the area to be delimited. What the Arbitration Tribunal said in
the Guinea-Guinea Bissau Maritime Delimitation case with
respect to States with adjacent coasts applies equally to States
with opposite coasts; namely that:
“Whatever method of delimitation is chosen, the
likelihood is that both will lose certain maritime
areas which are unquestionably situated opposite
and in the vicinity of their coasts. This is the cut-
off effect.”67
(3) T HE RELEVANT DELIMITATION AREA IS THE AREA BETWEEN
THE P ARTIES ’RELEVANT COASTS
5.45. In the present case, given the irrelevance of Colombia’s
mainland coast, the geographic facts dictate that the delimitation
falls to be established between the string of Colombian islands
which make up the San Andrés Archipelago, on the one hand,
and the coast of Nicaragua facing the Archipelago, on the other.
In particular, the islands of San Andrés, Providencia, Santa
Catalina, Alburquerque and Quitasueño lie directly opposite
Nicaragua’s own islands and thus must be taken into account.
The maritime projections from both Parties’ coasts necessarily
meet and begin to overlap in the area lying between the
westernmost islands of the Archipelago and Nicaragua’s coast.
This is the relevant area for delimitation purposes in this case. It
is illustrated on Figure R-5.4.
367 Guinea-Guinea Bissau Maritime Delimitation, 77 I.L.R. 636, at p.
681, para. 103.
1845.46. Figure 6-8 to Nicaragua’s Reply presents a distorted
depiction of the relevant area described by Colombia by limiting
that area to a zone lying between Colombia’s westernmost
islands and Nicaragua’s islands. This is not what Figure R-5.4
shows, which is a reproduction of a figure previously produced
in Colombia’s Counter-Memorial (Figure 8.1). Nicaragua fails
to appreciate that the relevant area is not dependent solely on the
basepoints on the islands that dictate the course of the
provisional equidistance line. Rather, the relevant area is the
maritime area between Colombia’s westernmost islands and
Nicaragua’s coast. As noted above, the eastward projection of
Nicaragua’s coasts and the western projection of the coasts of
Colombia’s islands meet within this area.
5.47. On the other hand, as can be seen from Figure 3-1 to
Nicaragua’s Memorial, Nicaragua also posits a much more
ambitious relevant area that extends far to the east of
Colombia’s islands and stretches right up to the mainland coasts
of Colombia and Panama. Even Nicaragua’s rebuttal position,
which is based on a hypothetical EEZ entitlement extending 200
nautical miles from its own islands, is portrayed in such a
manner as to swallow up Colombia’s islands (with the exception
of Bajo Nuevo) and cut in front of the mainland coasts of Costa
Rica and Panama. This can be seen very clearly on Figure 4-5
to the Nicaraguan Reply.
1865.48. However, the maritime areas lying east of the Islands of
San Andrés, Providencia, Santa Catalina, Alburquerque and
Quitasueño have nothing to do with Nicaragua.
5.49. Figure R-5.5, shows that this central part of the western
Caribbean Sea is bordered by the San Andrés Archipelago on
the north, northwest and west, by Panama (and, to a lesser
extent, Costa Rica) on the south, and by the Colombian
mainland coast to the east. Nicaragua has no coast directly
abutting this area, and has never displayed any presence in it.
Nicaragua cannot even produce its own nautical charts of the
area or the islands situated therein. Moreover, it was only in
1967, almost 40 years after the 1928/1930 Treaty was
concluded, that Nicaragua began to show any interest in
licensing petroleum activities. However, a ll of these activities
were situated on or near the 82°W meridian and in the vicinity
of Quitasueño and all were protested by Colombia. 368 They
never extended into areas lying south or east of the Archipelago
which Nicaragua now claims.
5.50. Colombia has a delimited boundary with Panama in the
southern reaches of this area which can be seen on Figure R-
5.5. Significantly, Nicaragua never protested this agreement –
369
further evidence of its lack of interest in the area. Allofthe
maritime areas within this central sea region lie much closer to
the territory of Colombia than they do to Nicaragua. In fact, all
368 CCM, Annexes 54-59.
369 See CCM, para. 8.40.
187of the maritime areas lying east of San Andrés, Providencia and
Santa Catalina, and south of the 13°N parallel of latitude (which
passes between San Andrés Island and Providencia) lie closer to
Panama and, for the most part, to Costa Rica than they do to
Nicaragua. Nicaragua’s “relevant area” clearly trespasses on
areas where it has no coastal presence, but where the rights and
interests not simply of Colombia, but also of third States, are
directly involved. This point has been brought home by Costa
Rica’s Application to Intervene.
5.51. This is an additional reason why the relevant area to be
delimited between Colombia and Nicaragua only concerns the
area falling between the westernmost islands of the San Andrés
Archipelago and the opposite Nicaraguan coasts. It is in this
area that the maritime projections of the coasts of the Parties
meet without trespassing on the actual or potential rights of third
States. Reduced to its essentials, the present case is a case of
delimitation between opposite coasts which face each other
across this area.
(4) N ICARAGUA ’S INCONSISTENT POSITION WITH RESPECT
TO ITS OWN ISLANDS
5.52. Turning to Nicaragua’s own islands lying within the
relevant area, Nicaragua’s pleadings have adopted a strikingly
inconsistent position. Nicaragua’s Memorial contained almost
no information regarding its coastal geography including the
characteristics of its islands. The position expressed in
Nicaragua’s Memorial was that the boundary should be
189delimited on the basis of a mainland-to-mainland equidistance
line with Nicaragua’s islands having no role to play or providing
any basepoints for that line. In short, Nicaragua conceded its
islands to be irrelevant.
5.53. Even Nicaragua’s new extended continental shelf claim
takes no account of its islands. As previously noted, that claim
is based on a division of allegedly overlapping continental
margins.
5.54. Elsewhere in the Reply, however, Nicaragua suddenly
discovers its islands. Thus, Chapter IV of the Reply contains a
section (Section III) labelled “Nicaragua’s Undisputed Islands
and Maritime Features”. There, the argument is made that the
Islas Mangles (Corn Islands) and Miskito Cays are an integral
part of the Nicaraguan mainland coast and that, in all other
respects, they are comparable to the Islands of San Andrés and
Providencia. 370
5.55. Nicaragua’s islands are not an integral part of its
mainland coast: indeed, Nicaragua itself ignored them for
purposes of its original mainland-to-mainland median line
claim, and it continues to ignore them for purposes of its
continental shelf claim. Nicaragua acknowledges that the more
important of these islands - the Islas Mangles (Corn Islands) -
are located some 26 nautical miles from the mainland coast,
370 NR, para. 4.24.
190which means that the territor ial seas of the islands and the
371
mainland do not even overlap.
5.56. The population of the Islas Mangles (Corn Islands) is
estimated by Nicaragua to be in the range of 7,400. No statistics
are given for the Miskito Cays. This pales in comparison to the
population of Colombia’s islands which totals some 70,000
372
inhabitants.
5.57. As noted above, this does not prevent Nicaragua from
advancing an equally untenable position pursuant to which
Nicaragua contends that, if its continental shelf claim is not
accepted, Colombia’s islands should be enclaved within
Nicaragua’s hypothetical 200-nautical mile exclusive economic
zone. 373 As illustrated on Figure 4-5 to Nicaragua’s Reply, this
“Potential EEZ Entitlement” is actually measured from
Nicaragua’s islands. Thus, Nicaragua has no hesitation in
according its islands a full 200nautical mile reach for purposes
of its rebuttal position, but it ignores the fact that Colombia’s
much more important islands are entitled to the same maritime
rights.
371 NR, para. 4.17.
372 NR, para. 4.17; CCM, para. 2.1.
373 NR, para. 6.3.
191 B. The Position of Third States
(1) T HE NEED TO TAKE INTO ACCOUNT THE PRESENCE OF
THIRD S TATES
5.58. The Court has always been sensitive to the actual or
potential rights of third States bordering the area to be delimited.
This is particularly the case in semi-enclosed seas where third
States are almost inevitably present, as is the case here. In
deciding delimitation disputes, the Court has thus been careful
not to trespass onto areas within which third States have
potential rights, and such areas have been excluded from the
area to be delimited.
5.59. In the Tunisia-Libya case, for example, the Court
refrained from identifying the end-point of the delimitation to
avoid any prejudice to third States. As the Court held:
“The extension of this line northeastwards is a
matter falling outside the jurisdiction of the Court
in the present case, as it will depend on the
delimitation to be agreed with third States.”74
Similarly, in the Libya-Malta case, the Court also avoided
prolonging the delimitation line into areas claimed by a third
State (Italy). While not pronouncing itself on the validity of
Italy’s claims, the Court observed:
“The present decision must, as then
foreshadowed, be limited in geographical scope
374 Continental Shelf (Tunisia/Libyan Arab Ja mahiriya), Judgment,
I.C.J. Reports 1982, p. 94, para. 133(C)(3).
192 so as to leave the claims of Italy unaffected, that
is to say that the decision of the Court must be
confined to the area in which, as the Court has
been informed by Italy, that State has no claims
375
to continental shelf rights.”
5.60. In the Cameroon-Nigeria case, the Court exercised
similar caution. After noting that “in particular in the case of
maritime delimitation where the maritime areas of several States
are involved, the protection afforded by Article 59 of the Statute
376
may not always be sufficient”, the Court added:
“It follows that, in fixing the maritime boundary
between Cameroon and Nigeria, the Court must
ensure that it does not adopt any position which
might affect the rights of Equatorial Guinea and
Sao Tome and Principe.” 377
5.61. More recently, in the Romania-Ukraine case, the Court
was also careful not to extend either the relevant area or the
delimitation line into areas where third States had claims. After
indicating that “the relevant area may include certain maritime
spaces and exclude others which are not germane to the case in
hand, “ the Court stated:
“The Court notes that the delimitation will occur
within the enclosed Black Sea, with Romania
being both adjacent to, and opposite Ukraine, and
with Bulgaria and Turkey lying to the south. It
375 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p. 26, para. 21.
376 Ibid.
377 Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guine a intervening), Judgment, I.C.J.
Reports 2002, p. 421, para. 238.
193 will stay north of any areas where third party
378
interests could become involved.”
5.62. There are compelling reasons in this case for the Court to
take similar account of the presence of third States in the region
in determining the delimitation area, and to exercise comparable
restraint. The area to be delimited between Colombia’s islands
and Nicaragua does not exist in a vacuum. To the south, Costa
Rica and Panama front this part of the Caribbean; in the north,
Jamaica and Honduras have interests.
(2) T HE PRESENCE OF THIRD S TATES AND EXISTING
DELIMITATION AGREEMENTS BEARING ON THE
IDENTIFICATION OF THE DELIMITATION AREA
5.63. Colombia’s Counter-Memorial set out in detail the
existing delimitation agreements which have an impact on, and
must be borne in mind in identifying, the area to be delimited
379
between Colombia and Nicaragua. The boundaries resulting
from these agreements are shown on Figure R-5.5 above.
5.64. For its part, Nicaragua’s Memorial acknowledged that:
“The only consistent principle to emerge from
the case law is the principle that the Court lacks
competence to make determinations which may
affect the claims of third States”.
Nicaragua then added:
378
Case concerning Maritime Delimitation in the Black Sea (Romania
379Ukraine), Judgment of 3 February 2009, p. 36, para. 112.
CCM, paras. 8.33-8.56.
194 “It must be obvious that such an inhibition does
not involve a recognition by the Court of the
legal validity of the third State claims.”380
5.65. Regrettably, Nicaragua has failed to heed this principle.
Nicaragua’s Memorial advanced a delimitation area that
encroached not only onto areas that could be of potential interest
to Costa Rica, Jamaica and even Honduras to the north and west
beyond the territorial sea of Serranilla Cay, it also extended the
delimitation area right up to Panama’s coast.
5.66. As for the Nicaragua Reply, it totally ignores the
presence of third States and of actual or potential third State
entitlements that are relevant to identifying the area to be
delimited. Nicaragua proceeds on the assumption that the
present delimitation is to take place in geographic isolation with
no account being taken of third States in the region.
5.67. Nicaragua’s disregard for the maritime rights of
neighbouring States is illustrated by Figure3-1 to its Reply,
which is labelled “The Delimitation Area according to
Nicaragua”. Once again, that figure shows that Nicaragua views
the relevant area as extending right up to the coast of Panama in
the east, within a relatively short distance (much closer than
200nautical miles) of the coasts of Panama and Costa Rica in
the south, and into areas in the vicinity of Serranilla and Bajo
Nuevo in the north in which Jamaica has legal entitlements
pursuant to a joint regime agreed with Colombia and where
380 NM, para. 3.92.
195Honduras also has interests pursuant to its 1986 Treaty with
Colombia.
5.68. Even if the delimitation agreements concluded between
Colombia and third States are not binding on Nicaragua per se,
neither do those agreements confer any rights on Nicaragua. As
the Application to Intervene submitted by Costa Rica illustrates,
such third States have potential maritime entitlements in the
same general area extending, as against Colombia, out to the
limits of their bilateral arrangements or, as against Nicaragua,
extending out to a distance of 200nautical miles from their
coasts.
5.69. The Court should avoid delimiting any areas between
Colombia and Nicaragua that potentially prejudice or trespass
onto these rights. Colombia has taken this factor into account as
a relevant circumstance in putting forward what it views as the
appropriate delimitation area – an area that lies between the
relevant, opposite coasts of the Parties where third States are not
present – and in claiming an equidistance-based boundary the
end points of which are specifically left open subject to third
States’ interests and claims. Nicaragua has not.
196 Chapter 6
APPLICATION OF THE PRINCIPLES AND RULES
OF DELIMITATION: ESTABLISHING THE
PROVISIONAL EQUIDISTANCE LINE AS THE
FIRST STEP IN THE DELIMITATION
A. Introduction
6.1. Maritime delimitation is a legal process involving the
application of what are now well-settled principles and rules of
law. As the Court noted in the Libya-Malta case:
“The justice of which equity is an emanation, is
not abstract justice but justice according to the
rule of law; which is to say that its application
should display consistency and a degree of
predictability; even though it looks with
particularity to the peculiar circumstances of an
instant case, it also looks beyond it to principles
of more general application.”81
6.2. One of the major contributions to the law of maritime
delimitation has been the articulation by the Court of the precept
that the “equidistance/special circumstances” rule applicable to
territorial sea delimitation is virtually synonymous with the
“equitable principles/relevant circumstances” rule that the Court
had earlier identified as applying to the delimitation of the
continental shelf and the column of water.
367 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p. 39, para. 45.
1976.3. While each case must be assessed on its own facts,
consistency and predictability have been considerably enhanced
by the evolution of a consistent line of jurisprudence emanating
from the Court, and from arbitral tribunals, holding that
maritime delimitation involves essentially a two-step process.
x First, it is necessary to calculate a provisional
equidistance line plotted from the appropriate basepoints
on the coasts of the respective parties.
x Second, the relevant circumstances characterizing the
delimitation area are then assessed in order to determine
whether they justify the adjustment of the provisional
equidistance line in order to produce an equitable result.
6.4. The delimitation methodology set out in Colombia’s
Counter-Memorial respects these principles. Colombia plotted
the provisional equidistance line between the relevant coasts of
the Parties using the nearest basepoints on the Parties’
respective coasts that face each other, and then examined
whether there were any circumstances warranting a modification
of that line.82
6.5. Nicaragua’s Memorial appeared to accept the same basic
methodology, although it advanced a wholly irrelevant
mainland-to-mainland median line as the first step in arriving at
382
CCM, Chapter 9.
198its single maritime boundary claim. Nonetheless, as a matter of
principle, the Nicaraguan Memorial recognized that:
“According to the jurisprudence of the Court,
such an equidistance line is to be considered
provisional in the sense that it is subject to a
process of adjustment resulting from any relevant
circumstances.” 383
6.6. Nicaragua’s whole approach, as well as its appreciation
of the law, has changed with the filing of its Reply. This is due
to the introduction of a brand new continental shelf claim based
on the geology and geomorphological of the continental margin
rather than on the relevant geographical context. The
Nicaraguan Reply thus states that:
“The position of Nicaragua, as explained in
Chapter III above, is that in a delimitation of the
continental shelf, such as has been requested by
Nicaragua, where the distance principle is not
involved but only the natural prolongation of the
land territory, the question of a provisional
equidistance line has no role to play.” 384
6.7. This position is far removed from the law of maritime
delimitation and runs counter to the rules that now exist
governing how the delimitation process should operate. There
is no reason, nor any need, for the Court to depart from its well-
developed practice with regard to delimitation in this case.
Nicaragua’ case is like a throw-back in time to much earlier
383
384 NM, para. 3.51.
NR, para. 6.49 (emphasis added).
199cases in which the Parties argued geology and geomorphology
at length to no avail. It has no place in the present case.
B. Equidistance as the First Step
6.8. In its Counter-Memorial, Colombia rehearsed the large
body of jurisprudence that exists supporting the principle that
maritime delimitation involves the two-step process mentioned
above. Colombia pointed out that as early as the North Sea
cases, the Court recognized that there was much less difficulty
in applying a median line boundary between opposite States. 385
As the Court indicated -
“a median line divides equally between the two
opposite countries areas that can be regarded as
being the natural prolongation of the territory of
each of them.” 386
6.9. Since that time, the law has developed with even greater
clarity. Given Nicaragua’s apparent reliance on this
jurisprudence to support its argument that there is no scope for
plotting an equidistance line as the first step in this case, it is
necessary to review the relevant precedents once more.
(1) L IBYA -M ALTA
6.10. In 1985, when the Libya-Malta case was decided, the
Court had no hesitation in starting with the median line between
385
North Sea Continental Sh elf, Judgment, I.C.J. Reports 1969, p. 36,
386a. 57.
Ibid., p. 37, para. 58.
200Libya and Malta as the provisional delimitation line despite the
fact that Malta was a group of islands. That line was then
adjusted somewhat to the north to take into account the relevant
geographical circumstances characterizing the case.
6.11. Nicaragua’s Reply argues that the Libya-Malta case
“confirms that the establishment of a provisional equidistance
line in any case is not a mechanical process.” It then cites a
passage from the Court’s Judgment for the proposition that,
even as a preliminary step, the Court did not accept that the
387
equidistance method is one that “must be used.”
6.12. In making this argument, Nicaragua overlooks the fact
that, later in the same Judgment, the Court went on to state that:
“It will first make a provisional delimitation
using a criterion and a method both of which are
clearly destined to play an 388ortant role in
producing a final result.”
6.13. The criterion or method in question, as to which the
Court said it had little doubt, was linked to the distance formula
relating to the extent of a State’s title to maritime areas in order
to arrive in the first place at a provisional result which was
“consistent with the concepts underlying the attribution of legal
389
title.”
387 NR, para. 6.63.
388 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p. 46, para. 60.
389 Ibid., pp. 46-47, para. 61.
2016.14. The method being referred to by the Court in this
context was the median line. Accordingly, the Court carried out
the delimitation between Libya and Malta in two stages: first, it
identified the median line; second, it adjusted that line to take
into account the relevant geographic circumstances. The result
is depicted on Figure R-6.1.
(2) G REENLAND -JAN M AYEN
6.15. The Court adopted a similar approach in the Jan Mayen
case, another case involving a small island – in this instance,
with a temporary population of just 25 scientists – facing the
much longer coast of Greenland. As for the mainland coast of
Norway, it was ignored because it was too far away, just as the
mainland coast of Colombia is too far away in this case. The
Court therefore started with a provisional median line between
Jan Mayen and Greenland which gave full effect to Jan Mayen.
As the Court noted:
“It is of course this prima facie equitable
character which constitutes the reason why the
equidistance method, endorsed by Article 6 of
the 1958 Convention, has played an important
role in the practice of States. The application of
that method to delimitations between opposite
coasts produces, in most geographical
390
circumstances, an equitable result.”
390
Maritime Delimitation in the Areatween Greenland and Jan
Mayen, Judgment, I.C.J. Reports 1993, p. 67, para. 65.
2026.16. It is true that the Court then adjusted this line at the
second stage of the process in order to take account of the
relevant circumstances of the case. For present purposes,
however, the important point is that the Court started with an
equidistance line as the first step.
6.17. Nicaragua asserts that the case “substantially hinged
around a very special circumstance” – the Capelin fisheries,
which the Court “attempted to distribute in the most equitable
fashion” – and that in the present case there are no resources of
this kind necessitating anything like the same kind of
solution.391
6.18. Three points may be made in response. First, the Court
adjusted the median line in only one of the three delimitation
zones it had identified in order to take into account access to the
fish resources. In the other two zones, fish were not an issue
and did not influence the course of the boundary. Second, this
element in no way detracts from the fact that, as a matter of
principle, the Court considered that the median line between the
island and the mainland was the appropriate starting point for
delimitation. Third, under Nicaragua’s alternative theory –
pursuant to which it argues that it should receive a full 200-mile
entitlement subject only to the enclaving of Colombia’s islands
– Greenland should have received its full 200-nautical mile
entitlement too. Clearly, this did not happen, notwithstanding
391 NR, para. 5.26 (1).
204the fact that according Greenland a full 200 nautical mile
continental shelf and fishing zone would not have reached up to
Jan Mayen’s 12-mile territorial sea. Thus, it makes no
difference that the opposite coasts of the Parties in this case are
“insufficiently far apart” for Nicaragua to enjoy a full 200-mile
extension of maritime rights. Colombia’s opposite coasts of its
islands do not enjoy such rights towards Nicaragua either, and
neither did the mainland coast of Greenland even though it was
located more than 200 nautical miles from Jan Mayen. The
resulting delimitation line actually accorded to Jan Mayen the
equivalent of roughly a three-quarters equidistance effect
despite its small size as can be seen on Figure R-6.2.
(3) Q ATAR -B AHRAIN
6.19. In the Qatar-Bahrain case, the Court articulated a
principle which has since became an integral part of the law of
maritime delimitation. This was the principle that the
“equidistance/special circumstances rule” is closely related to
the “equitable principles/relevant circumstances rule” in cases of
maritime delimitation. In the words of the Judgment:
“The Court further notes that the equidistance/special
circumstances rule, which is applicable in
particular to the delimitation of the territorial sea,
and the equitable principles/relevant circumstances
rule, as it has been developed since 1958 in case-
law and State practice with regard to the
delimitation of the continental shelf and the
205 exclusive economic zone, are closely
interrelated.” 392
6.20. On the basis of that principle, the Court once again
employed the equidistance method as the starting point for the
delimitation of a single maritime boundary, as the Nicaraguan
393
Reply acknowledges.
6.21. Nicaragua attempts to distinguish the case by arguing
that the geographic context in Qatar-Bahrain is “plainly
different” from the present case, and that the Court in the former
case did not use a tiny feature known as the Fasht al Jarim for
purposes of plotting the equidistance line. 394
6.22. Each case obviously presents its own set of geographic
and other circumstances and is, in this sense, unique. But that
does not detract from the force of the statement of principle the
Court laid down in Qatar-Bahrain: namely, that the
“equidistance/specialrc ciumstances” and “equitable p nrciiples/relevant
circumstances”rulesarecloselyrelated. It is the assimilation of
these two rules that provides the underlying predicate for using
an equidistance or median line as the first step in delimitation.
392
Maritime Delimitation and Territorial Questions between Qatar and
393rain, Merits, Judgment, I.C.J. Reports 2001, p. 111, para. 231.
394 NR, para. 6.64.
Ibid., para. 6.65. It should be recalle d, however, that the Court did
give full effect to the small Qatari island of Janan despite the fact that it faced
a significantly longer stretch of coast of Bahrain.
207 (4) C AMEROON -N IGERIA
6.23. The Nicaraguan Reply then takes aim at the Cameroon-
Nigeria case. It argues that the similarity between the two rules
referred to above “does not prove a presumption in favour of the
395
equidistance method.” The Reply then goes on to assert:
“To the contrary, it only highlights the fact that
mention of equidistance was carefully avoided
when dealing with the delim396tion of the more
extensive maritime areas.”
6.24. If, by this statement, Nicaragua is referring to the
difference in language appearing in Article 15 of the 1982
Convention (dealing with the delimitation of the territorial sea)
and Articles 74(1) and 83(1) (dealing with the delimitation of
the exclusive economic zone and the continental shelf), then it is
precisely on this point that the Court has effectively held that
both formulae lead to the application of the same delimitation
methodology. As the Court explained in Cameroon-Nigeria:
“The Court has on various occasions made it
clear what the applicable criteria, principles and
rules of delimitation are when a line covering
several zones of coincident jurisdictions is to be
determined. They are expressed in the so-called
equitable principles/relevant circumstances method.
This method, which is very similar to the
equidistance/special circumstances method applicable
in delimitation of the territorial sea, involves first
drawing an equidistance line, then considering
whether there are factors calling for the
395
396 NR, para. 6.66.
Ibid.
208 adjustment or shifting of that line in order to
achieve an “equitable result”. 397
6.25. In other words, the Court clearly did consider that there
was a presumption in favour of equidistance, at least as a first
step in the process. By positing the equidistance line as the
provisional line, subject to a second step whereby the relevant
circumstances are considered in order to determine whether they
justify an adjustment to the equidistance line, the Court was able
to reflect equitable principles while at the same time providing a
degree of consistency and predictability to the process that
recourse to equidistance produces.
6.26. The advantages of employing equidistance in this
manner have been cogently summarized by Professor Weil. He
writes:
“To the simplicity and objectivity of the method
must be added the fact that, even though it does
not always lead to an equitable result in itself, it
does produce a line which is prima facie
equitable. A method which divides the
overlapping areas more or less equally respects,
prima facie, the equal right of the two countries
to a certain physical area of maritime jurisdiction
and thus, again prima facie , avoids an
unreasonable encroachment of one State upon the
other. A line of equidistance is especially to be
recommended as a starting point in that it lends
itself particularly well to any adjustments which
397
Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v. Nigeria: Equatorial Guine a intervening), Judgment, I.C.J.
Reports 2002, p. 441, para. 288.
209 may prove necessary in order to meet the
requirement of an equitable result”. 398
(5) R OMANIA -U KRAINE
6.27. Notwithstanding the precedents discussed above,
Nicaragua argues that Colombia’s error lies in assuming that
equidistance always has to form the starting point for
delimitation. In support of this proposition, the Nicaragua Reply
cites the Romania-Ukraine case. Nicaragua maintains that, in
that case, the Court did not start with the establishment of a
“provisional equidistance line”, but rather it established only “ a
provisional delimitation line , using methods that are
geometrically objective and also appropriate for the geography
399
of the area in which the delimitation is to take place”.
6.28. What Nicaragua fails to point out, however, is that in the
same paragraph of the Court’s Judgment from which it cites, the
Court went on to state:
“So far as opposite coasts are concerned, the
provisional line will consist of a median line
400
between the two coasts.”
In another passage omitted by Nicaragua, the Court then added:
398
P. Weil, The Law of Maritime Delimitation - Reflectio(Grotius
399lications, Cambridge, 1989), p. 206.
NR, para. 6.68 (emphasis in Nicaragua’s version), citing tCase
Concerning Maritime Delimita tion in the Black Sea (Romania v. Ukraine),
400gment of 3 February 2009, p. 37, para. 116.
Case Concerning Maritime Delimitation in the Black Sea (Romania
v. Ukraine), Judgment of 3 February 2009, p. 37, para. 116. (emphasis
added).
210 “In keeping with its settled jurisprudence on
maritime delimitation, the first stage of the
Court’s approach is to establish the provisional
equidistance line.”
And it continued:
“At this initial stage of the construction of the
provisional equidistance line the Court is not yet
concerned with any relevant circumstances that
may obtain and the line is plotted on strictly
geometrical criteria on the basis of objective
data.”401
6.29. Once again, therefore, the Court unequivocally endorsed
the two-step process for delimitation, the first step of which is
the plotting of the provisional equidistance line in keeping with
what the Court termed its “settled jurisprudence”.
(6) O THER P RECEDENTS
6.30. Arbitral tribunals, including those recently established
pursuant to AnnexVII of the 1982 Convention, have followed
the Court’s lead. For example, the Tribunal in the Barbados-
Trinidad and Tobago case, which involved a delimitation
between islands, referred to the governing rule in the following
way:
“The determination of the line of delimitation
thus normally follows a two-step approach. First,
a provisional line of equidistance is posited as a
hypothesis and a practical starting point. While a
401
Case Concerning Maritime Delimitation in the Black Sea (Romania
v. Ukraine), Judgment of 3 February 2009, p. 37, para. 118.
211 convenient starting point, equidistance alone will
in many circumstances not ensure an equitable
result in the light of the peculiarities of each
specific case. The second step accordingly
requires the examination of this provisional line
in the light of relevant circumstances, which are
case specific, so as to determine whether it is
necessary to adjust the provisional equidistance
line in order to achieve an equitable result… This
approach is usually referred to as the
402
‘equidistance/relevant circumstances’ principle.”
6.31. The Tribunal in the Guyana-Suriname arbitration
adopted a similar approach. The Tribunal explained the position
is its Award as follows:
“The case law of the International Court of
Justice and arbitral jurisprudence as well as State
practice are at one in holding that the delimitation
process should, in appropriate cases, begin by
positing a provisional equidistance line which
may be adjusted in light of relevant
circumstan403 in order to achieve an equitable
solution.”
(7) C ONCLUSIONS AS TO THE ESTABLISHMENT OF THE
PROVISIONAL EQUIDISTANCE LINE AS A FIRST STEP
6.32. The equidistance-relevant circumstances rule in question
applies equally to delimitations between States with adjacent or
quasi-adjacent coasts (as in the Qatar-Bahrain, Cameroon-
Nigeria, Romania-Ukraine and Guyana-Suriname cases ), as
402 Award in the Matter of an Arbitration between Barbados and the
Republic of Trinidad and Tobago, 11 April 2006, para. 242.
403
Award in the Matter of an Arbitration between Guyana and
Suriname, 17 September 2007, para. 342.
212well as to delimitations between States with opposite coasts
(Libya-Malta, Denmark-Norway with respect to delimitation
between Jan Mayen and Greenland, Romania-Ukraine,
Barbados-Trinidad and Tobago). If anything, equidistance is an
even more appropriate starting point for opposite coasts
delimitation - precisely the situation that exists in the present
case. As the Court noted in its Judgment in Libya-Malta (citing
with approval from the North Sea cases):
“The Court has itself noted that the equitable
nature of the equidistance method is particularly
pronounced in cases where delimitation has to be 404
effected between States with opposite coasts.”
To which the Court added:
“It is clear that, in these circumstances, the
tracing of a median line between those coasts, by
way of a provisional step in a process to be
continued by other operations, is the most
judicious manner of proceeding with a view to
the even405l achievement of an equitable
result.”
6.33. In view of the overwhelming weight of the precedents, it
is astonishing to find the Nicaraguan Reply asserting the
contrary. According to Nicaragua:
“In the light of the jurisprudence of the Court and
international tribunals, Nicaragua finds that the
conclusion of the Counter-Memorial that the
basic rule of maritime delimitation law as a first
404
Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
405orts 1985, p. 47, para. 62.
Ibid.
213 step requires the plotting of an equidistance line
is not correct.”406
6.34. It is the Nicaraguan Reply that is in error. The “settled
jurisprudence” clearly points to the existence of such a rule. As
discussed above, the identification of an equidistance line as a
first step in the delimitation process has consistently been used
in cases involving opposite States ever since Libya-Malta, and
also more recently in cases involving adjacent or quasi-adjacent
coasts.
6.35. Nicaragua next argues that an equidistance line as a
starting point “could have merit” where the area to be delimited
407
is between two opposite and similar coasts. But the case law
makes no such distinctions. The provisional equidistance line is
clearly not limited to situations where the coasts of the Parties
are opposite and similar. It has been used in situations where a
small island (or islands) face a significantly longer mainland
coast, as in the Libya-Malta and Jan Mayen cases, as well as in
delimitations between islands which are different in size, as in
the Barbados-Trinidad and Tobago arbitration. To the extent
that coastal lengths may be considered to constitute a relevant
circumstance calling for some adjustment to be made to the
provisional line, this can be, and has been, accommodated at the
second stage of the process - the relevant circumstances stage.
406
407 NR, para. 6.69.
NR, para. 6.72.
214That is precisely how the matter was dealt with in all three of
the cases mentioned above.
6.36. In the present case, there is no reason for the Court to
depart from its well-established practice. The plotting of an
equidistance line based on geometrical criteria and objective
data is a straightforward task. It can readily be carried out using
basepoints situated on the relevant opposite coasts of the Parties
as Colombia has done.
C. Even Where the Plotting of a Provisional Equidistance
Line Is Not Practical, Equidistance Remains the Rule
6.37. There may be exceptional geographic situations where
the plotting of the provisional equidistance line is not practical
due to the lack of appropriate basepoints from which to plot
such a line. The Nicaragua-Honduras case is one such
example. There, the land boundary between the Parties met the
sea in a delta region formed by the River Coco at a point where
the general direction of the coast changed radically. As the
Court noted, “[a]ll deltas are by definition geographical
accidents of an unstable nature and suffer changes in size and
form in relatively short periods of time.” 408
6.38. In Nicaragua-Honduras, Nicaragua itself explained that,
because of the particular characteristics of the area where the
408
Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007,
p. 14, para. 32.
215land boundary intersected with the coast, “the technical method
409
of equidistance is not feasible.” For its part, the Court
observed that “neither Party has as its main argument a call for a
provisional equidistance line as the most suitable method of
410
delimitation.” The Court then went on to observe that the
geographical and geomorphological difficulties resulting from
the characteristics of the land boundary terminus -
“are further exacerbated by the absence of viable
basepoints claimed or accepted by the Parties
411
themselves at Cape Gracias a Dios.”
As the Court then explained:
“Given the set of circumstances in the current
case it is impossible for the Court to identify base
points and construct a provisional equidistance
line for the single maritime boundary delimiting
maritime areas off the Parties’ mainland
coasts.” 412
6.39. It was for these reasons that the Court concluded that the
equidistance method was not practical, and it adopted a coastal
bisector instead. Yet the bisector method is essentially no more
than a simplified version of equidistance based on coastal fronts
instead of specific basepoints. Nonetheless, the Court went on
409 Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007,
41027, para. 84.
411 Ibid., p. 75, para. 275.
412 Ibid., p. 75, para. 278.
Ibid., p. 76, para. 280.
216to emphasize that, “ at the same time equidistance remains the
general rule.” 413
6.40. Similar problems for the construction of a provisional
equidistance line do not exist in this case. Both Parties have
coasts that front the area to be delimited, and the selection of the
basepoints on those coasts from which to plot the equidistance
line can be identified based on objective data, as Colombia has
done. 414 Given that “equidistance remains the general rule,” that
rule can be readily applied in the present case.
6.41. Neither the size of Colombia’s islands nor the
characteristics of Nicaragua’s coast including its offshore
islands makes any difference at this initial stage of the process.
Application of the equidistance method as the first step in the
delimitation exercise has been used without any difficulty even
in situations involving islands facing mainland coasts both in the
case precedents and frequently even as the final boundary in
State practice, as will be discussed in Chapter 7.
6.42. As already recalled, in the Libya-Malta case equidistance
was applied as the first step notwithstanding the fact that the
basepoints on one of the party’s coast lay on an island (Malta)
while the other party (Libya) had a much longer mainland coast.
413 Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007,
p. 77, para. 281 (emphasis added).
414 See CCM, paras. 9.19-9.31 and Figure 9.2 thereto.
217Even though that provisional line was subsequently adjusted to
take into account the relevant circumstances (the difference in
coastal lengths), Malta, which consisted of a compact group of
islands as opposed to the long string of Colombian islands
comprising the San Andrés Archipelago, still received
substantially more than half-effect in the final delimitation.
6.43. Equidistance also formed the starting point in the
Denmark-Norway delimitation between Jan Mayen and
Greenland. Despite Jan Mayen’s small size and very limited
human presence, it still received the equivalent of about a three-
quarters equidistance effect in Zone 1 of the delimitation, and an
even greater effect in Zones 2 and 3.
6.44. In neither case was equidistance abandoned, as
Nicaragua argues it should be here.
D. Colombia’s Delimitation Respects, and Is Consistent
with, the Law
6.45. Colombia’s delimitation position set out in its Counter-
Memorial fully respects the principles alluded to above. After
reviewing the applicable principles and rules of international
law, Chapter9 of Colombia’s Counter-Memorial set out the
criteria for plotting the provisional equidistance line as the first
step in the delimitation. Colombia then identified the relevant
basepoints on both Parties’ coasts from which the equidistance
line should be calculated, and depicted the resulting course of
218that line on Figure 9.2 to the Counter-Memorial which is
reproduced here as Figure R-6.3.
6.46. On the Colombian side, basepoints are to be found on the
Alburquerque Cays, San Andrés Island, Providencia Island,
Santa Catalina Island and Quitasueño. On the Nicaraguan side,
the nearest basepoints are situated on the Islas Mangles (Corn
Islands), Roca Tyra, the Miskitos Cays and Edinburgh Reef.
Colombia selected these basepoints because, consistent with
what the Court said in the Qatar-Bahrain case (which formula
was cited with approval in the Court’s Judgment in Cameroon-
Nigeria and which was also employed by the Tribunal in the
Guyana-Suriname arbitration):
“The equidistance line is the line every point of
which is equidistant from the nearest points on
the baselines from which the breadth of the
territorial seas of each of the two States is
measured.” 415
6.47. Nicaragua complains that in this case an equidistance
line should not be applied because the mainland coasts of the
Parties are more than 400 nautical miles apart, and that such a
line of delimitation of the exclusive economic zone “does not lie
between them and no purpose would be served by using an
415
Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 94, para. 177. And see
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria: Equatorial Guinea intervening), Judgment I.C.J. Reports 2002, p.
442, para. 290. And, for similar treatment of basepoints, see In the matter of
an Arbitration between Guyana an d Suriname, Award dated 17 September
2007, p. 113, para. 352.
219equidistance line as a starting point for any such
416
delimitation.” This argument is a complete non-sequitur.
6.48. Of course, in its Memorial Nicaragua did consider that
an equidistance line was relevant – albeit the wrong
equidistance line using the irrelevant mainland coast of
Colombia – for purposes of advancing a mainland-to-mainland
median line claim. But just because Colombia’s mainland coast
is too far away, and thus not relevant, does not mean that an
equidistance line should be abandoned or cannot be established
between the truly relevant coasts of the Parties – the coasts of
the western San Andrés Archipelago island group and the
opposite Nicaraguan coast.
6.49. The Nicaraguan Reply also accuses Colombia of
“arbitrarily” placing an equidistance line be tween what it calls
“minor features”. 417 But Colombia’s methodology is in no way
arbitrary: it is based on the normal way an equidistance line is
plotted – that is, calculated from the nearest basepoints on the
baselines of the Parties from which they measure their territorial
seas. The basepoints selected by Colombia lie on actual land
territory or on low-tide elevations f alling within the territorial
sea of islands comprising the San Andrés Archipelago. They
are a direct function of natural and political geography, it being
recalled that geography is not to be refashioned in any event.
Moreover, Colombia’s islands are not “minor features”. They
416
417 NR, para. 6.58.
NR, para. 6.58.
221form part of a substantial political unit having important social,
economic and security components, and a population of over
70,000.
6.50. As previously noted, Nicaragua also hypothesizes that an
equidistance line could only have merit as a starting point if it
lies between two opposite and similar coasts. 418 Colombia has
already shown that this argument runs counter to the case law as
well as to State practice. But Nicaragua does not stop there. It
then goes on assert that:
“In the present case, and under the scenario put
forward by Colombia, the exercise is indefensible
since there is no Colombian coast opposite
419
Nicaragua’s...”
Nicaragua also disputes that the islands of San Andrés and
Providencia could be said collectively to constitute a “coast”. 420
The Nicaraguan Reply then asserts in the same vein that “it is
appropriate to disregard all basepoints on islands and cays
claimed by Colombia in establishing the provisional line”, as
well as the basepoints on its own insular features. 421 Based on
these false premises, Nicaragua argues in favour of enclaves
around Colombia’s islands as its version of “provisional
lines”.422
418 NR, para. 6.72.
419 Ibid.
420 Ibid.
421 NR, para. 6.78.
422
NR, para. 6.82.
2226.51. This is refashioning geography taken to an extreme:
islands having a vibrant social, economic and political life with
over 70,000 inhabitants, and supporting important fishing
activities around each of them, cannot be said to have no coast
and no basepoints. It is self-evident that, as a matter of legal
entitlement, these islands have the same rights to a territorial
sea, contiguous zone, continental shelf and exclusive economic
zone as any other land territory. Those entitlements are
measured from basepoints on the coasts of each of the islands.
Contrary to Nicaragua’s assertion that its enclave lines are
“geometrically objective” and take due account of the projection
of Nicaragua’s coast, 423 enclaves are in no way appropriate and
take no account of the legitimate maritime entitlements
generated by the islands. Moreover, they have never been used
in similar geographic circumstances, as Chapter 7 will show.
Why, it might be asked, are islands such as Jan Mayen, Malta
and Barbados, not to mention the examples of State practice
referred to in the next chapter, entitled to such rights while
Colombia’s islands are not?
6.52. Notwithstanding these realities, the Nicaraguan Reply
attempts to use the Court’s treatm ent of Serpents’ Island in the
Romania-Ukraine as support for its argument that Colombia’s
islands should be ignored for purposes of drawing an
equidistance line here. In referring to Romania-Ukraine, the
Reply asserts:
423 NR, para. 6.83.
223 “In that case, the Court established an
equidistance line, which however, did not take
into account certain points along the coasts of the
two parties, including Serpents’ Island of
424
Ukraine.”
6.53. The reason why basepoints on Serpents’ Island were not
used for equidistance purposes in Romania-Ukraine was due to
the fact that the delimitation in that case took place in an entirely
different geographic context from that which exists in this case.
6.54. The dominant factor in Romania-Ukraine influencing the
delimitation was the presence of the mainland coasts of the
Parties which stood in both an opposite and adjacent
relationship to each other with the opposite mainland coasts
separated by a distance of only some 200 nautical miles.
Serpents’ Island lay about 20 nautical miles off the Ukrainian
coast and was thus not considered to be one of a cluster of fringe
islands constituting the “coast” of Ukraine. 425
6.55. Given that Serpents’ Island was not deemed to form part
of the mainland coastal configuration, it was not used to provide
426
basepoints for equidistance purposes. Moreover, the Court
also observed that any maritime entitlements of Serpents’ Island
could not project further than the entitlements generated by
Ukraine’s mainland coast because of the southern limit of the
424 NR, para. 6.57.
425 Maritime Delimitation in the Black Sea (Romania v. Ukraine),
Judgment of 3 February 2009, p. 45, para. 149.
426 Ibid., p. 56, para. 186.
224relevant area which stopped where the presence of third States
came to play. It thereby followed that any possible entitlements
generated by the island were “fully subsumed by the
entitlements generated by the western and eastern mainland
427
coasts of Ukraine itself.”
6.56. The same considerations do not apply here. The location
of Colombia’s islands is such that their maritime entitlements
that project towards the west – i.e., towards Nicaragua – are not
subsumed by the entitlements generated by Colombia’s
mainland coast. Colombia’s mainland coast is not relevant due
to its remoteness. Colombia’s islands, on the other hand,
generate their own maritime entitlements. This being the case,
there is no reason why basepoints located on those islands
should not be used for purposes of plotting the provisional
equidistance line.
6.57. Nicaragua also cites the example of the tiny rock of Fifla
which was not used in order to establish the provisional
equidistance line in the Libya-Malta case. 428 Once again,
however, the situation was not analogous to the present case.
6.58. It was not disputed in Libya-Malta that Fifla was a rock.
It was referred to as such in the Court’s Judgment (“the
427 Maritime Delimitation in the Black Sea (Romania v. Ukraine),
428gment of 3 February 2009, p. 56, para. 187.
NR, para. 6.77.
225 429
uninhabited rock of Fifla”), and it was actually used by the
British Navy for target practice during the Second World War.
As such, it had no entitlement beyond a territorial sea (or, at
most, a contiguous zone) in any event. Moreover, Fifla lay less
than three miles off the coast of the mainland of Malta, well
within the territorial sea of the latter. Given its proximity to the
main coast of Malta, it was precisely the kind of minor coastal
feature the distorting effect of which could be eliminated by
using the coast of the main island of Malta instead. The result
was still the use of equidistance between a small island on the
one hand and a longer mainland coast on the other as the first
step in the exercise.
6.59. Nicaragua also refers to the fact that the “very small
island” of Qit’at Jaradah was disregarded for purposes of
430
drawing the equidistance line in the Qatar-Bahrain case. But,
once again, the geographic context of that case was very
different from the present case.
6.60. Qit’at Jaradah was no more than an uninhabited and tiny
sand spit, without any vegetation, a very small part of which
(measuring a mere 12 metres by 4 metres) was above water at
high tide.431 Earlier British Admiralty charts had depicted it as a
low-tide elevation, although the Court found it to be an island
429 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p. 20, para. 15.
430 NR, para. 6.75.
431 Maritime Delimitation and Territorial Questions between Qatar and
Bahrain, Merits, Judgment, I.C.J. Reports 2001, p. 99, para. 197.
226based on an expert report filed by Bahrain in the case. As an
“insignificant maritime feature” lying close to the Parties coasts,
it was thus not used as a basepoint for equidistance purposes,
and the delimitation line passed between Qit’at Jaradah and
Fasht ad Dibal, the latter of which was a low-tide elevation
situated within Qatar’s territorial sea. 432
6.61. Nicaragua then refers to the fact that the Tunisian island
of Djerba had no effect on the delimitation between Tunisia and
Libya. 433 However, as Nicaragua itself recognizes, the Court
did not adopt an equidistance line in that case between the
adjacent coasts of the Parties, and neither party had in fact
argued in favour of equidistance. The delimitation line in the
first sector was based on other overriding factors such as the
conduct of the parties in granting petroleum licenses, the
perpendicular from the general direction of the coast and the
fishing practices of the Parties’ colonial predecessors. 434
6.62. It follows that none of the examples that Nicaragua
seeks to rely on detract from the well-established principle – the
“settled jurisprudence” – that the first step in the delimitation
should be the establishment of the provisional equidistance line.
Nicaragua’s contention that it is appropriate to disregard all
basepoints on Colombia’s islands and cays has no support in the
432
Maritime Delimitation and Territorial Questions between Qatar and
433rain, Merits, Judgment, I.C.J. Reports 2001, pp. 104-108, paras. 219-220.
NR, para. 6.79.
434 Continental Shelf (T unisia/Libyan Arab Jamahiriya) Judgment,
I.C.J. Reports 1982, pp. 85-86, para. 121.
227law given the independent maritime entitlements of those
435
islands. If a coast radiates out in all directions for entitlement
purposes when it stands alone, there is no reason for it to cease
to do so when it meets the projection of the coast of another
State. Here, the projection fr om the coasts of Colombia’s
islands meets the projection from Nicaragua’s coasts in the area
between the westernmost of Colombia’s islands and Nicaragua.
Colombia has thus fully followed the methodology endorsed by
the Court and arbitral tribunals in constructing an equidistance
line as the first step in this area.
E. Nicaragua’s Mainland Coast
6.63. Nicaragua complains that Colombia’s provisional
equidistance line only takes into account Nicaragua’s islands as
providing basepoints but ignores Nicaragua’s mainland coast.
As the Nicaraguan Reply asserts: “Colombia errs by ignoring
Nicaragua’s mainland coast in the construction of her
436
provisional equidistance line.”
6.64. As previously explained, Colombia has adopted the
principle articulated in the Qatar-Bahrain and Cameroon-
Nigeria cases, as well as in the Guyana-Suriname arbitration,
according to which it has used the nearest basepoints on the
Parties’ coasts from which the breadth of their respective
territorial seas is measured for plotting the line. Given that
435
436 NR, para. 6.79.
NR, para. 6.7; and see NR, para. 6.31.
228Nicaragua itself claims that its islands form an integral part of
its mainland coast, Colombia’s methodology is sound.
6.65. It is perfectly possible, however, to construct an
equidistance line between Colom bia’s islands (recalling that
even Nicaragua admits that at least the islands of San Andrés,
Providencia and Santa Catalina “constitute relevant coast[s]” 437)
and Nicaragua’s mainland coast without taking account of
Nicaragua’s islands.
6.66. The result of using Nicaragua’s mainland coast for the
purpose of constructing a provisional equidistance line is
illustrated on Figure R-6.4. As can be seen, this has the effect
of shifting the equidistance line westwards.
6.67. Consistent with the Court’s approach in both the Libya-
Malta and Jan Mayen cases, the question would then arise
whether that equidistance line should be adjusted to take into
account the relevant circumstances characterizing the
delimitation area of which the coastal geography of the Parties,
including Nicaragua’s mainland coast, may be one such
element. This is a matter that is addressed in greater detail in
Chapter 8 where the relevant circumstances are addressed.
6.68. For present purposes, it may be noted that if this islands-
to-mainland equidistance line, as illustrated in Figure R-6.4 ,
437 NR, para. 6.30.
229was shifted so as to accord Colomb ia’s islands a three-quarter
effect – as was more or less the practical result in both the
Libya-Malta and Jan Mayen cases – the resulting line would lie
in broadly the same area as Colombia’s equidistance line that
uses Nicaragua’s islands as basepoints. In any event, there is
certainly no justification for according Nicaragua’s islands a
greater equidistance effect than Colombia’s islands.
6.69. The foregoing discussion shows that there is nothing
“arbitrary” or inappropriate about Colombia’s methodology.
The establishment of the provisional equidistance line produces
a line that is prima facie equitable as the starting point for the
delimitation. That line can then be assessed in the light of all
the relevant circumstances which, in this case, include the past
conduct of the Parties evidencing where they have exercised
maritime jurisdiction, the significance of the 82°W meridian,
security and stability considerations, traditional access to the
fishing resources of the area, the presence of third States and
coastal geography.
6.70. All of these factors should be balanced up in the
equation for purposes of achieving an equitable result. Should,
for example, the Court consider that some adjustment of an
islands-to-mainland median line is warranted to take into
account Nicaragua’s mainland coast while at the same time
respecting the other relevant circumstances, this can readily be
achieved using the same methodology that the Court has
231adopted in the past without departing from the basic two-step
process that the Court has identified as a general rule applicable
to maritime delimitation.
F. Nicaragua’s Claims Ignore the Law
6.71. In contrast, Nicaragua completely ignores the well
developed principles of maritime delimitation. Nicaragua has
conceded that its mainland-to-mainland single maritime
boundary is not tenable and has abandoned that position. Its
new continental shelf claim (equal division of overlapping
continental margins) is not grounded on coastal geography,
takes no account of the “equidistance/special circumstances” or
“equitable principles/relevant circumstances” rule, and does not
follow the two-step approach to delimitation by first plotting the
provisional equidistance line, and then considering whether
there are any relevant circumstances calling for the shifting of
that line.
6.72. To compound its errors, the Nicaraguan Reply makes no
mention of the relevant basepoints which should control the
course of the equidistance line, although it criticizes Colombia’s
choice of basepoints. Nicaragua simply bases itself on geology
and geomorphology. This is frankly admitted in the Nicaraguan
Reply when it states:
“The position of Nicaragua, as explained in
Chapter III above, is that in a delimitation of the
continental shelf, such as has been requested
232 [belatedly] by Nicaragua, where the distance
principle is not involved but only the natural
prolongation of the land territory, the question of
the provisional equidistance line has no role to
play.” 438
6.73. Equally untenable is Nicaragua’s assertion that “it has to
be questioned whether there could be an equidistance line in the
present case which might serve as a starting point that is
‘appropriate for the geography of the area in which the
delimitation is to take place’.” 439 In this case, the equidistance
line - whether an islands-to-islands equidistance line or an
islands-to-mainland equidistance line - can readily be identified
based on objective geographic criteria as the first step in the
delimitation exercise.
G. Conclusions
6.74. As has been demonstrated, it is entirely appropriate and
consistent with the law, including the jurisprudence dealing with
delimitations involving islands, for the equidistance line to be
posited as the provisional line.
6.75. Nicaragua itself had argued in its Memorial that the
median line between the Parties’ coasts was the appropriate
starting point, although it mistakenly used the Colombian
mainland coast as a relevant coast for this purpose when that
438
439 NR, para. 6.49.
NR, para. 6.58.
233coast is not germane. Just because Nicaragua now admits that
the mainland coasts of the Parties are too far apart, it does not
follow that “no purpose would be served by using an
equidistance line as a starting point for any such
delimitation”. 440
6.76. Contrary to Nicaragua’s assertion, Colombia’s
equidistance line is not “arbitrarily-placed”, 441but is based on
clearly identified basepoints on the opposite and relevant coasts
of the Parties. Nor does Nicaragua’s argument that there is no
Colombian coast opposite Nic aragua’s reflect the actual
442
geography of the area. As has been seen, Nicaragua assumes
that for a provisional equidistance line to be applied, there must
443
be “two opposite and similar coasts ”. This argument is
clearly wrong, and the Court has had no problem in establishing
the provisional equidistance line in cases such as Jan Mayen and
Libya-Malta where the relevant coasts of the Parties were
dissimilar. In the present case, Colombia’s provisional
equidistance line has been established between the islands of
both Parties. As has been noted, however, it is also possible to
draw a provisional equidistance line between Colombia’s
islands and Nicaragua’s mainland coast. In either case, the
equidistance line methodology can be readily applied.
440
441 NR, para. 6.58.
NR, para. 6.51.
442 NR, para. 6.72.
443 Ibid., (Emphasis added).
234 Chapter 7
NICARAGUA’S ENCLAVE THEORY
A. Introduction
7.1. The initial position adopted by Nicaragua in this case
centered around its contention that a single maritime boundary
should be delimited between the mainland coasts of the Parties.
As for Colombia’s islands, the Nicaraguan Memorial argued
that they should be enclaved by either three-mile or twelve-mile
limits. Nicaragua justified its approach using the erroneous
argument that “the relationship between the mainland coasts of
Nicaragua and the islands cannot be characterized as merely
444
opposite”, and that “the San Andrés Group does not form part
of the coastal front of Colombia.”445
7.2. While the single maritime boundary claim has been
abandoned in favour of a new continental shelf claim, Nicaragua
still maintains that Colombia’s islands should be enclaved
within Nicaragua’s continental shelf. Nicaragua complains in
this respect that Colombia disputes that Nicaragua should enjoy
at least a 200nautical mile limit regardless of the presence of
444
445 NM, para. 3.11.
Ibid., section heading at p. 239.
235the islands, which Nicaragua contends should not “block” its
446
entitlement. This is mere question begging.
7.3. As Chapter 5 demonstrated, Nicaragua’s argument
ignores the fact that, under international law, Colombia’s islands
both individually and collectively also possess coasts that
generate their own independent entitlements to continental shelf
and column of water rights. Thus, Colombia’s islands do
possess a coastal front and they do lie opposite Nicaragua’s
coast. It proves nothing for Nicaragua to assert that Colombia’s
islands should be enclaved within Nicaragua’s own continental
shelf since, as a matter of legal right, entitlement to continental
shelf rights (as well as column of water rights) does not
exclusively rest in Nicaragua, but in Colombia as well.
Consequently, the entire premise from which Nicaragua starts is
fundamentally misplaced.
7.4. The Nicaraguan Reply also advances two fall-back
positions in response to Colombia’s equidistance based
delimitation methodology. The first is that, even if the present
delimitation is limited to a single maritime boundary lying
within 200nautical miles and not a continental shelf boundary,
the resulting boundary should still enclave Colombia’s islands
as was the case with respect to the Channel Islands in the Anglo-
447
French arbitration. The second is that, even if Colombia’s
islands are not to be fully enclaved, then just two of those
446
447 NR, para. 6.12.
NR, para. 6.3.
236islands (San Andrés Island and Providencia) should receive no
more than a thin sliver of maritime area corresponding to their
“coastal front” extending eastwards out to a distance of
200nautical miles, as was accorded to the islands of St. Pierre
and Miquelon in the Canada-France arbitration. 448
7.5. The gist of Nicaragua’s argument, repeated at several
places in the Reply, boils down to the contention that
Colombia’s islands should not be allowed to act as an
“impenetrable wall” against the natural prolongation or
projection of Nicaragua’s coasts, particularly its mainland
coast.449
7.6. None of these contentions has any merit and, as
Colombia will show, the solutions adopted in the cases on which
Nicaragua relies for enclaves or partial enclaves took place in
geographic circumstances that bear no relation to the present
case.
B. Islands Have Never Been Enclaved in the Situation
that Exists in the Present Case
(1) T HE BASIC GEOGRAPHIC FACTS
7.7. Apart from its legal shortcomings, Nicaragua’s enclave
position ignores the relevant geography of the area. As has been
shown, the San Andrés Archipelago comprises a large number
448
449 NR, para. 6.90 and Figure 6-11 thereto.
NR, paras. 6.5, 6.10 and 6.12, and Chapter VI(II) generally.
237of islands having their own legal entitlements and extending
northeast to southwest over a considerable distance. The islands
constitute an important geographic, economic, political and
social unit within Colombia, with three of the islands having a
significant population and almost all of the islands
accommodating manned installations and other facilities.
7.8. It follows that the present delimitation does not concern
a compact group of islands located in close proximity to another
State such that their territorial seas overlap or the mainland coast
is “blocked” beyond being accorded a very small area of
territorial sea if islands are not enclaved. San Andrés Island and
Alburquerque are both roughly 100miles from the Nicaraguan
mainland coast. Providencia and Santa Catalina are even further
away (some 121nautical miles). Quitasueño is a large feature
comprising some 34 individual islands and 20 low-tide
elevations as confirmed by the Smith Report. Quitasueño as a
whole is situated some 115 miles from Nicaragua’s coast.
Serrana Cay and Roncador are 165 and 186 miles respectively
from the Nicaraguan mainland coast, Serranilla is 196 miles
away and Bajo Nuevo is 266 nautical miles away.
7.9. As can be seen on Figure R-7.1, Providencia and Santa
Catalina (together with Low Cay) lie in close proximity to each
other with the result that the territorial seas of each overlap.
Providencia and San Andrés Island lie only about 47nautical
miles apart along a broad north-northeast to south-southeast
238axis. If 24-mile contiguous zones are posited for these islands,
the result is that these zones also meet and overlap due to their
proximity.
7.10. Alburquerque is located about 20nautical miles south-
southwest of San Andrés Island and about 25nautical miles
from East-Southeast Cays. The nearness of these three sets of
islands to each other is such that their territorial seas also meet
and overlap. The southern edge of Quitasueño lies about 37
nautical miles north of Low Cay, which is situated just north of
Santa Catalina. Once again, the 24-mile contiguous zones of
these features would meet and overlap because of the relatively
short distance between them. Quitasueño also lies less than
45nautical miles from Serrana, and Serrana lies only some
45nautical miles from Roncador. Contrary to the impression
Nicaragua tries to convey, therefore, these are not islands that
are widely dispersed or separated by long distances. Not only
do their continental shelf and EEZ entitlements overlap with
each other, so also do 24-mile belts equivalent to their
contiguous zones.
7.11. Given the irrelevance of Colombia’s mainland coast, the
delimitation by necessity falls to be established between the
westernmost islands of the Archipelago and Nicaragua’s coast,
as Colombia has shown in Chapters 5 and 6. For its part, the
provisional equidistance line does not even come close to
infringing on Nicaragua’s territorial sea or its contiguous zone.
240In fact, Nicaragua only enacted legislation providing for a
contiguous zone in March 2002 after it had initiated these
proceedings. 450
(2) T HIS SITUATION DISTINGUISHES THE PRESENT CASE
FROM THE EXAMPLES CITED BY N ICARAGUA
(i) The Anglo-French Arbitration
7.12. The only example that Nicaragua can cite where islands
have been fully enclaved concerns the Channel Islands in the
Anglo-French Arbitration. Not surprisingly, therefore, the
Nicaraguan Reply cites this example for its proposition that
islands should not “block” the frontal projection of a longer,
opposite mainland coast. 451
7.13. In making this argument Nicaragua again asserts that
Colombia’s islands are “on the wrong side” of the median
452
line. However, Colombia has already shown that this
argument presupposes the existence and relevance of a
mainland-to-mainland median line between the Parties which is
simply not the case given that those coasts are more than
400nautical miles apart. Colombia’s islands are also not
situated close to the Nicaraguan mainland. Unlike the case with
the Channel Islands off the coast of France, the territorial seas of
Colombia’s islands do not meet and overlap with the territorial
450 NM, Annex 67.
451 NR, para. 5.18.
452 NR, para. 5.21.
241sea of either Nicaragua’s own islands or its mainland coast. Nor
are Colombia’s islands surrounded on three sides by Nicaragua
mainland territory. In fact, Colombia’s islands face third States
to the north and south, and, to the east, they face Colombia’s
mainland coast, not Nicaragua.
(ii) Greenland-JaM nayen
7.14. The next precedent cited by Nicaragua is the Denmark-
Norway case involving the delimitation between Greenland and
the island of Jan Mayen. Contrary to Nicaragua’s fall-back
position, according to which Nicaragua should receive a full
200-nautical mile EEZ and continental shelf subject only to
Colombia’s islands being enclaved, the mainland coast of
Greenland was not accorded a full 200nautical miles in the
Court’s Judgment. As the Court explained:
“Nor do the circumstances require the Court to
uphold the claim of Denmark that the boundary
line should be drawn 200 miles from the
baselines on the coast of eastern Greenland, i.e., a
delimitation giving Denmark maximum
extension of its claim to continental shelf and
fishery zone.”
In a passage that is particularly re levant to the present case, the
Court then elaborated on its reasoning as follows:
“The coast of Jan Mayen, no less than that of
eastern Greenland, generates potential title to the
maritime areas recognized by customary law, i.e.,
in principle up to a limit of 200 miles from its
baselines. To attribute to Norway merely the
residual area left over after giving full effect to
242 the eastern coast of Greenland would run wholly
counter to the rights of Jan Mayen and also to the
453
demands of equity.”
7.15. In the final analysis, as noted in Chapter6, Jan Mayen
received more or less a “three-quarters effect” equidistance line,
and Greenland was accorded maritim e areas that extended
significantly less than 200nautical miles from its coast. 454
While Nicaragua tries to distinguish this case by arguing that the
main coast of Norway was irrelevant to that case, 455 the same
reasoning applies here; Colombia’s mainland coast is also
irrelevant to the present delimitation.
(iii) Libya-Malta (Italy’s Claims)
7.16. Nicaragua then refers to the treatment of Malta in the
Libya-Malta case – and to Italy’s claims which extended south
of Malta – to support the proposition that the entitlement of
Sicily was not blocked by the presence of Malta, but rather
456
extended south of that island.
7.17. Several points can be made in response to show that this
example is of no assistance to Nicaragua’s enclave theory.
453
Maritime Delimitation in the Area be tween Greenland and Jan
454en, Judgment, I.C.J. Reports 1993, p. 69, para. 70.
455 See para. 6.18 above.
456 NR, para. 5.26 (1).
NR, para. 6.13.
2437.18. First, Italy’s claims advanced during the oral hearings on
its request to intervene in the Libya-Malta case did not seek to
enclave Malta. They extended well to the east and west of
Malta leaving a gap of some 70 nautical miles (much wider than
Malta’s coastal front) to be delimited exclusively between Libya
and Malta as is illustrated on Figure R-7.2. If similar “gaps”
were accorded to Colombia’s islan ds, there would be no room
for Nicaragua to claim maritime areas to the north, south or east
of the islands.
7.19. Second, the Court in no way endorsed the legitimacy of
Italy’s claims which neither Malta nor Libya accepted. It
simply took note of them, , and refrained from delimiting areas
where a third State had indicated it had claims as part of its
customary practice of avoiding the delimitation of areas where
third States may have interests.
7.20. Third, under Nicaragua’s thesis, Libya should have been
entitled to a delimitation according to it a full 200-nautical mile
continental shelf by virtue of having a longer mainland coast.
This is what Nicaragua argues it is entitled to under its fall-back
position in this case. Clearly, however, such a proposition was
not accepted by the Court, which made only a relatively modest
(18 nautical miles) adjustment to the Libya-Malta median line to
take account of differences in coastal lengths.
244 (iv) France-Canad Aarbitration
7.21. Nicaragua next relies on the France-Canada Arbitration
for its alternative proposition that, at most, Colombia’s islands
should only receive a thin corridor of maritime entitlements
beyond three and twelve mile enclaves projecting to the east and
corresponding to the lengths of the east-facing coastal fronts of
San Andrés Island and Providencia. 457 This argument, which is
illustrated on Figure6-11 to Nicaragua’s Reply, is entirely
spurious and misrepresents the solution adopted by the Court of
Arbitration in the France-Canada case.
7.22. Even in the France-Canada arbitration, where the
geographic circumstances were much different than those that
exist in this case by virtue of the fact that the French islands
stood in a relationship of adjacency with the coast of
Newfoundland because of their proximity, the Court of
Arbitration accorded an additional twelve nautical miles around
most of the seaward side of St. Pierre and Miquelon from the
limit of their territorial seas - or a 24-nautical mile maritime belt
of EEZ corresponding to the contiguous zone - in addition to the
200-nautical mile projection of their coastal front seaward. As
the Court of Arbitration explained:
“A reasonable and equitable solution for the
western sector would be to grant to Saint Pierre
and Miquelon an additional twelve nautical miles
from the limit of its territorial sea, for its
457 NR, para. 6.90.
246 exclusive economic zone. That area will have
the extent of the contiguous zone referred to in
Article 33 of the 1982 Convention on the Law of
the Sea, which grants to the coastal State
jurisdiction to prevent infringement of its
customs, fiscal, immigration or sanitary
regulations.” 458
7.23. Notwithstanding this, Nicaragua asserts that the France-
Canada situation is “geographically similar” to the present
459
case. However, the geographic circumstances of the two
cases are in fact very different, and they lend no support for a
similar solution being adopted in this case.
7.24. The islands of St. Pierre and Miquelon were separated
from the Canadian coast of Newfoundland by a mere 10 nautical
miles. There was thus no room for the French islands to
“project” towards the Canadian coast beyond a median line
delimiting the territorial seas between those coasts. It was for
this reason that the Court of Arbitration observed: “the
460
prevailing and overall relationships is one of adjacency”, a
designation which hardly fits the relationship between
Colombia’s islands and Nicaragua. Even the nearest of
Colombia’s islands are more than ten times farther away from
458
Case concerning Delimitation of Maritime Areas between Canada
and the French Republic (St. Pierre and Miquelon), 1992, 31 I.L.M., p.1170,
para. 69.
459 NR, para. 6.21.
460 Case concerning Delimitation of Maritime Areas between Canada
and the French Republic (St. Pierre and Miquelon), 1992, 31 I.L.M., p. 1162,
para. 35.
247Nicaragua’s mainland coast than were St. Pierre and Miquelon
from Newfoundland.
7.25. Geographically, as can be seen from Figure R-7.3, the
coast of the Burin Peninsula on Newfoundland extended as far
out to sea as the larger of the two French islands, Miquelon, and
almost as far as the smaller island of St. Pierre. It was natural,
therefore, for that peninsula not to be “blocked” by the islands
because of its “adjacent” relationship. This is in sharp contrast
with the present case where the coast of Nicaragua is over 100
nautical miles away from the nearest coasts of Colombia’s
islands and is therefore not an “adjacent” coast nor similarly
“blocked”.
7.26. In the France-Canada arbitration, it was also significant
that Canada possessed coasts belonging to Nova Scotia to the
west and southwest of the French islands which lay within 60
nautical miles of the Newfoundland coast. Canada had adopted
a closing line between Cape Breton (Nova Scotia) to the
southwest tip of Newfoundland which the Court of Arbitration
recognized represented Canada’s coastlines lying inside the Gulf
of St. Lawrence that were “in direct opposition” to St. Pierre and
Miquelon. 461 In effect, therefore, Canada’s coasts surrounded
461
Case concerning Delimitation of Maritime Areas between Canada
and the French Republic (St. Pierre and Miquelon), 1992, 31 I.L.M., p. 1161,
para. 29.
248the islands of St. Pierre and Miquelon on three sides as is also
462
evident with reference to Figure R-7.3.
7.27. This situation does not even remotely exist in the present
case where Colombia’s islands stretch over a long distance well
off the Nicaraguan coast, and where third States lying to the
north and south of Colombia’s islands have recognized that
those islands are entitled to full effect in maritime delimitation
agreements concluded with Colombia.
7.28. There are accordingly no grounds for Nicaragua’s
attempt to graft the St. Pierre and Miquelon solution onto the
present case. The geographic situations bear no relationship to
each other.
7.29. Moreover, even if ( quod non ) one were to draw 24-
nautical mile belts around Colombia’s islands that lie directly
opposite Nicaragua (San Andrés, Providencia, Santa Catalina,
Low Cay, Alburquerque and Quitasueño), those belts would
overlap with each other and there would be no gaps in between.
This is shown on Figure R-7.1 above. In fact, the westernmost
islands comprising the San Andrés Archipelago are more than
twice as far from Nicaragua’s coast than they are from each
other, and Serrana and Roncador are three times farther away
from Nicaragua than they are from each other. Thus, even if the
462
Case concerning Delimitation of Maritime Areas between Canada
and the French Republic (St. Pierre and Miquelon), 1992, 31 I.L.M., p. 1160,
para. 22.
250approach adopted by the Court of Arbitration was applied in the
present case where the geographic facts do not justify such an
approach, there would still be no room for enclaving
Colombia’s islands since, from north to south, Colombia’s
islands are not separated by distances exceeding 48 nautical
miles.
(v) Dubai-Sharjah (Abu Musa)
7.30. The Nicaraguan Reply also refers to the treatment of the
island of Abu Musa in the Dubai-Sharjah arbitration to support
the contention that Colombia’s islands should be enclaved.
Once again, Nicaragua fails to appreciate the different
geographic and political context which characterized that case,
although it does acknowledge that San Andrés Island is more
than twice as large as Abu Musa and that Providencia is about
one and one-half times as large - a difference which Nicaragua
curiously asserts is “not much of a difference”.463
7.31. The Dubai-Sharjah case involved primarily a
delimitation between the adjacent coasts of two Emirates
forming part of the United Arab Emirates. The presence of Abu
Musa off the coast of Sharjah affected only part of the boundary.
Sovereignty over Abu Musa was (and still is) disputed between
Iran and Sharjah, whose mainland coasts lie opposite each other
across the Gulf. As the Charney and Alexander study on
International Maritime Boundaries notes:
463 NR, para. 6.103.
251 “The boundary dispute before the tribunal
involved the adjacent boundary between Dubai
and Sharjah and not the opposite boundary
between the United Arab Emirates and Iran.
Nevertheless, the tribunal found that because the
island is located at a point approximately
equidistant from the opposite coastlines the only
equitable solution was to enclave it and otherwise
to disregard it in the maritime boundary
delimitation.” 464
7.32. The present context is obviously different. This
delimitation does not involve adjacent coasts, and Colombia’s
mainland coast is not a relevant coast. Colombia’s islands also
lie over 100 nautical miles from Nicaragua’s mainland coast,
which contrasts with the situatio n of Abu Musa which is
situated just 35 miles from Sharjah and 43 miles from Iran. Abu
Musa’s size is just 4 square miles, and it has a population of
465
about 800 persons. Both of these figures are much smaller
than the corresponding figures for Colombia’s islands that face
Nicaragua.
7.33. Given the fact that Abu Musa more or less straddled a
median line between the opposite mainland coasts of the
Emirates and Iran, the tribunal’s delimitation did not fully
enclave the island. Rather, the 12-mile arc of territorial sea
accorded to Abu Musa extended less than one-quarter of the
464 J. Charney and L. Alexander eds., International Maritime
Boundaries, Vol. III, p. 2385.
465
Dubai-Sharjah Border Arbitration of 19 October 1981 , 91 ILR 543
at pp. 663 and 668.
252way around the island, and the entitlements of Dubai did not
extend beyond, or seaward of, the island. This can be contrasted
to the total enclaves that Nicaragua asserts in this case.
7.34. It was the particular geographic characteristics of the
case which led Abu Musa to be partially enclaved in the Dubai-
Sharjah arbitration. As Charney and Alexander explain:
“This solution was similar to those adopted in
maritime boundary agreements concluded for
other situations in the Persian Gulf. They
involved other small islands that intersected the
equidistant line: the islands of Al-Arabiya and
Farsi in the Saudi Arabian-Iran Agreement....
and Dayinah in the Abu Dhabi-Qatar
agreement....” 466
7.35. In short, Nicaragua is unable to cite any precedent
involving comparable geographic situations to support its thesis
that Colombia’s islands should be enclaved. Nicaragua’s claim
rests on a false premise - that the islands are situated on
Nicaragua’s continental shelf - when the islands generate their
own legal entitlements. The islands do not sit immediately off
Nicaragua’s coast such that they give rise to a territorial sea
delimitation or a “blocking” of that coast, as was the case with
respect to the Channel Islands and St. Pierre and Miquelon. Not
only do the continental shelf and EEZ entitlements of
Colombia’s islands overlap with each other, so also do their
466
J. Charney and L. Alexander eds., International Maritime
Boundaries, Vol. III, at p. 2385, citing the Dubai-Sharjah Award, 91 ILR at
p. 677.
253entitlements to a contiguous zone overlap and stretch over
considerable distances. Colombia’s islands are thus readily
distinguishable from situations where a compact group of
islands lies just a few miles off another State’s coast.
C. Small Islands Have Frequently Received Full
Effect in Maritime Delimitations
(1) S TATE PRACTICE GENERALLY
7.36. Colombia’s Counter-Memorial set out a number of
examples of State practice where islands have received a full
equidistance effect when they faced either opposite mainland
coasts or other islands lying off a mainland coast. 467 While
Nicaragua’s Reply attempts to distinguish some of these
examples, this section will show that Nicaragua’s arguments are
untenable, and that there are numerous examples of State
practice where relatively small islands have received full effect
when situated opposite longer, mainland coasts.
(i) India-Maldives
7.37. The first example cited in Colombia’s Counter-
Memorial was the delimitation between India and the Maldives
pursuant to which the relevant Maldive islands received full
equidistance treatment in the southern sector of the delimitation
467 CCM, paras. 9.47-9.55.
254despite the fact that they lay opposite a much longer, continental
468
coast of India. This can be seen on Figure R-7.4.
7.38. Nicaragua argues that the Maldives do not bear any
resemblance to the San Andrés Archipelago because the
Maldives are a “tightly knit group of islands”. 469 This is not
borne out by the geographic facts, including the nature of the
atolls that provided basepoints on the Maldives side for the
equidistance boundary.
7.39. The Maldive atolls are almost all less than two metres
above water – indeed, the Maldives is the lowest lying country
in the world – and most of the islands have fringing coral reefs
and sandbars, and can be walked across in just ten minutes.
Many of the small islands situated within the atolls are
uninhabited. Less than one-third of one percent of the area
covered by the Maldives is actual land territory (a total of 115
square miles stretching over some 500 miles). Notwithstanding
this, the boundary between the northernmost of the Maldives
and the mainland coast of India was still agreed to be the median
line.
(ii) Australia-NeC waledonia
7.40. The Nicaraguan Reply concedes that the delimitation
between Australia and New Caledonia is mostly effected
468
469 CCM, para. 9.47.
NR, para. 6.118.
255between a number of small islands. Nonetheless, the Reply goes
on to assert that the mainland coasts of both States were treated
470
broadly equally in the boundary agreement.
7.41. This assertion is misleading. The mainland coast of
Australia and the main island of New Caledonia are separated
by well over 400 nautical miles (actually some 600 nautical
miles) as can be seen on Figure R-7.5. Those coasts played no
role in the delimitation because of the distances involved, just as
the mainland coast of Colombia has no role to play here. As
Article 1 of the delimitation agreement makes clear, the
boundary was delimited between a number of small French and
Australian islands situated between the two main coasts, not
471
between those coasts themselves. As Charney and
Alexander’s study concludes:
“Thus, the usual geographic factors such as
coastal configuration, concavities, or the general
direction of the coasts were not the question 472
the delimitation of the instant boundary.”
(iii) India-Thailand
7.42. The Nicaraguan Reply has no answer to this example of
State practice other than to assert (without any demonstration)
470
471 NR, para. 6.119.
J. Charney and L. Alexander eds., International Maritime
Boundaries, Vol. I, p. 911. The Charney and Alexander study notes that the
single maritime boundary was “based mostly on equidistance”, and that it
“runs between a series of small islands or reefs on both sides”Ibid., pp.
906-907.
472 Ibid., p. 907.
257that “the geography of that delimitation again bears little
resemblance to the present case.” Notwithstanding this
contention, Nicaragua admits that the delimitation line, which
was based on equidistance, lies between the Nicobar Islands of
India, on the one hand, and certain islands of Thailand, on the
other, despite the fact that, as illustrated by Figure R-7.6 ,
behind the Thai islands lay the mainland coast of Thailand
473
which was not taken into account in the delimitation.
7.43. This is precisely Colombia’s point. Notwithstanding the
fact that there was a mainland Thai coast behind its islands
which faced islands belonging to another State (just as there is a
mainland Nicaraguan coast behind its own islands which face
Colombia’s islands), the delimitation still followed an
equidistance line between the two sets of islands. Colombia’s
methodology does the same thing.
(iv) AveIsland
7.44. The Nicaraguan Reply devotes more space to trying to
distinguish the treatment that Aves Island received in both the
United States (Puerto Rico and U.S. Virgin Islands)-Venezuela
(Aves) and France (Martinique and Guadeloupe)-Venezuela
474
agreements. Yet Nicaragua has no answer to the plain fact
that, in both agreements, the small island of Aves did receive
full equidistance treatment. Moreover, Nicaragua’s assertion
473
474 NR, para. 6.120.
NR, paras. 6.121-6.125.
259that, “there can be no doubt that giving full weight to the small
cay of Aves vis-à-vis the large islands of Guadeloupe and
Dominica [ sic] would not have been the outcome of a
delimitation effected by a third party”, is no more than pure
475
speculation. Clearly, the States concerned considered that
they were achieving an equitable result.
7.45. In addition to these agreements, there are a considerable
number of other examples of State practice discussed below that
show small islands being accorded full equidistance effect in
situations where they face longer mainland coasts, as well as in
cases where they lie between two mainland coasts that are
separated by less than 400 nautical miles.
(v) Sao Tome and Principe-Equatorial Guinea/Gabon
7.46. Sao Tome and Principe has entered into maritime
boundary agreements with both Equatorial Guinea and Gabon.
The delimitations in question are illustrated on Figure R-7.7.
476
Both were based on equidistance/median line principles.
7.47. In the Sao Tome and Principe/Equatorial Guinea
agreement, the small island of Principe was not enclaved, but
rather received full equidistance effect vis-à-vis both the longer
mainland coast of Equatorial Guinea and the coast of the large
475 NR, para. 6.125.
476 See, International Maritime Boundaries, Vol. IV, p. 2647 for the
1999 Sao Tome and Principe/Equatorial Guinea Agreement, and Vol. V, p.
3683 for the 2001 Sao Tome and Principe/Gabon Agreement.
261island of Bioko. This was in spite of the fact that the distance
between the islands of Sao Tome and Principe and the territory
of Equatorial Guinea was much less than 200 nautical miles. 477
7.48. In the Sao Tome and Principe/Gabon agreement, the
boundary is also an equidistance line between the islands of Sao
Tome and Principe and the long mainland coast of Gabon. Once
again, neither island was enclaved, as Nicaragua argues should
be the case for Colombia’s islands, despite the fact that both Sao
Tome and Principe lie less than 200 nautical miles off the
Gabonese coast.
(vi) CapVeerde-Senegal/Mauritania
7.49. The maritime boundaries between the Cape Verde
Islands and the opposite mainland coasts of Senegal and
Mauritania are both based on equidistance as referred to in the
relevant treaties.478 In fact, as Figure R-7.8 shows, which is
based on the map appearing in International Maritime
Boundaries, if anything the Cape Verde islands received more
than full equidistance in the delimitation with Mauritania. 479
477
In the southern sector of the boundary, the delimitation was also a
median line between the island of Sao Tome and the small Equatorial Guinea
island of Annobon.
478 See, International Maritime Boundaries, Vol. III, p. 2287 for the
1993 Agreement between Cape Verde and Senegal, and Vol. V, p. 3702 for
the 2003 Agreement between Cape Verde and Mauritania.
479 Ibid., Vol. V, p. 3701.
263 (vii) Dominican Republic-United Kingdom (Turks &
Caicos Islands)
7.50. Most of this agreement concerned the maritime area
lying between the very small Turks Islands and the much longer
coast of the Dominican Republic as can be seen on Figure R-
7.9. Despite the fact that the distance separating the relevant
coasts of the parties was less than 100 nautical miles, the
boundary neither enclaved the Turks Islands, nor “wrapped
around” those islands as Nicaragua argues should be the case for
Colombia’s islands under its fall-back position. The
delimitation line departed very marginally from a strict
equidistance line, but otherwise accorded the Turks and Caicos
extensive maritime projections to the north, east and south (on
the west, the islands faced Great Inagua Island belonging to the
480
Bahamas).
(viii) Indonesia-Malaysia (Straits of Malacca)
7.51. In this example of State practice, illustrated on Figure
R-7.10, the delimitation did fall primarily between the opposite
and broadly equivalent mainland coasts of Malaysia and
Sumatra which lay less than 400 nautical miles apart. However,
two small Malaysian islands (Palak and Jurak) situated well off
the Malaysian coast were accorded a full equidistance treatment
480 J. Charney and L. Alexander eds., International Maritime
Boundaries, Vol. III, pp. 2235-2241.
265for purposes of the boundary line, and were not enclaved or
481
even partially enclaved.
(2) R EGIONAL PRACTICE IN THE SOUTHWEST C ARIBBEAN
7.52. The Colombian Counter-Memorial also reviewed in
some detail a number of delimitation agreements concluded by
all of the other riparian States bordering the southwest
Caribbean Sea. These include agreements that Colombia has
signed with Panama, Costa Rica, Jamaica, Honduras, Haiti and
the Dominican Republic. Only the agreement with Costa Rica
has not been ratified by Costa Rica’s Legislative Assembly.
However, as Colombia pointed out in its Counter-Memorial,
and as is confirmed in Costa Rica’s Application to Intervene,
both Parties have complied with the Agreement in good faith for
482
some 33 years.
7.53. These agreements were premised not only on the fact
that Colombia was sovereign over al l the islands at issue in this
case, but also on the belief that Colombia’s islands were by and
481 J. Charney and L. Alexander eds., International Maritime
482ndaries, Vol. I, p. 1021.
CR, Vol. II, Annexes 1-3: Diplomatic Note DM 14082-2000 from
the Minister of Foreign Affairs of lombia to the Minister of Foreign
Affairs of Costa Rica, 29 May 2000 (An nex 1); Diplomatic Note DM 073-
2000 from the Minister of Foreign Affai rs of Costa Rica to the Minister of
Foreign Affairs of Colombia, 29 May 2 000 (Annex 2); Report to Congress
by the Minister of Foreign Affairs of Costa Rica, 2000-2001 (Annex 3). See
also, Costa Rica’s Application to Intervene, p. 1; CCM, para. 8.41 and CCM
Annex 17.
267large entitled to receive full equidistance treatment for
delimitation purposes. 483
7.54. Nicaragua’s Reply exhibits an acute sensitivity to these
agreements which Nicaragua asserts “form part of her
[Colombia’s] policy to hem in Nicaragua’s maritime zones by
484
the 82°W meridian”. Nicaragua also contends that State
practice is not relevant for the delimitation of maritime
boundaries with another State that is not a party to those
485
bilateral agreements. The first part of this argument is
erroneous; the second misunderstands the relevance of the
agreements in question.
7.55. As for the contention that Colombia’s boundary
agreements with its neighbours form part of a policy to hem
Nicaragua in by the 82°W median, the fact of the matter is that
none of the agreements with either Panama, Costa Rica or
Jamaica have anything to do with the 82°W meridian and that
meridian is not mentioned in the agreements. Nicaragua also
ignores the fact that these agreements were not simply the
product of Colombia’s initiatives; they also involved the
considered position of the other riparian States with respect to
what constituted an equitable boundary in the geographic
circumstances characterizing this part of the Caribbean.
483 See e.g., CR, Vol. II, Annex 3; CCM, Chapter 4, Section F, and
paras. 8.34-8.56.
484 NR, para. 7.27.
485 NR, para. 7.28.
2687.56. The 1976 Colombia-Panama agreement covers areas
lying exclusively to the south and east of the islands of
Alburquerque, San Andrés, East-Southeast Cays, Providencia
and Roncador. The westernmost point on the boundary line lies
on the 81°15’W meridian, not the 82°W meridian.
7.57. It is telling that Nicaragua never protested this
agreement. This is entirely consistent with Nicaragua’s total
lack of interest in areas lying to the east of the islands mentioned
above until it initiated these proceedings. Now, of course, it
claims extended continental shelf rights over the very areas
covered by the Colombia-Panama agreement. Where, it might
be asked, was Nicaragua during the 25 years between the date
when the Colombia-Panama agreement was concluded and the
filing of Nicaragua’s Application?
7.58. The 1977 Colombia-Costa Rica delimitation agreement,
which has been fully respected by both Colombia and Costa
Rica, also has nothing to do with the 82°W meridian. Once
again, the agreement in question makes no mention of that
meridian, and the westernmost segment of the boundary actually
486
extends along the 82°14’W meridian which is further west.
7.59. As for the 1993 agreement between Colombia and
Jamaica, a mere glance at the map reveals that it only concerns
areas lying in the vicinity of the Serranilla Cays and Bajo Nuevo
486
See, CCM, paras. 4.152-4.153, Annex 5 and Figure 4.3; CR Figure
R-5.5.
269– including the establishment of a Joint Regime Area – far away
from the 82°W meridian or from Nicaragua.
7.60. In fact, the only bilateral agreement that makes mention
of the 82°W meridian is the Colombia-Honduras agreement
where that meridian forms the western endpoint of the line.
However, there are also two other segments of that agreement
covering areas north of the 15°N parallel that lie to the west and
southwest of Serranilla and also to its north.
7.61. As for Nicaragua’s argument that these agreements are
not relevant because it is not a party to them, this misses the
point. Regardless of the fact that Nicaragua is not a party, the
agreements in question comprise a body of regional State
practice evidencing the fact that the other States in the region do
not subscribe to Nicaragua’s enclave theory and that for the
most part, Colombia’s islands have been accorded full effect.
D. Conclusions
7.62. When considered along with the other examples of State
practice that have been discussed above, what stands out is the
fact that Nicaragua cannot cite a single example of State practice
where islands have been enclaved in the way that Nicaragua
now argues that Colombia’s islands should be here. Moreover,
the jurisprudence that Nicaragua cites in the form of the France-
Canada and Anglo-French arbitrations relates to geographic
270circumstances that are vastly different from the relevant
geographic facts in this case.
7.63. In contrast, Colombia has shown that even small islands
have often been accorded a full equidistance effect. This is
evident by State practice generally and in this part of the
Caribbean in particular. Moreover, in cases such as Jan Mayen
and Libya-Malta, islands have been accorded a significant
equidistance effect that bears no relation to Nicaragua’s novel
enclave theory.
271 Chapter 8
REFLECTING THE RELEVANT
CIRCUMSTANCES
A. Introduction
8.1. In Chapter 6, Colombia canvassed the legal authorities
which stand for the principle that maritime delimitation involves
a two-step process: first, plotting the provisional equidistance
line; second, consideration of the relevant circumstances to
assess whether they justify an adjustment being made to the
provisional line. Having set out Colombia’s position on the
appropriate methodology and criteria for establishing the
provisional equidistance line in Chapter 6, Colombia will now
turn to the relevant circum stances in order to ascertain whether
such circumstances confirm the equitable nature of Colombia’s
provisional line or warrant some degree of shifting of that line.
8.2. Before doing so, it is necessary to offer some comments
on Nicaragua’s approach to the notion of relevant circumstances
in order to place the Parties’ divergent positions on this issue in
perspective.
8.3. It is remarkable in this respect, that the new continental
shelf claim advanced in Nicaragua’s Reply makes no mention of
the role that relevant circumstances play in the case. Chapter III
273of the Reply, in which Nicaragua sets out its positive case under
the heading “The Delimitation of the Continental Shelf Area”,
does not include a single reference to relevant circumstances. In
fact, Nicaragua’s continental shelf claim does not even refer to
the first step in the process – the establishment of the
provisional equidistance line – let alone the second step.
8.4. For Nicaragua, the only factors that are relevant concern
the location of the outer limits of Nicaragua’s putative extended
continental shelf rights based on Article 76 of the 1982 Law of
the Sea Convention, and the limits of Colombia’s physical
continental shelf lying off its mainland coast. According to
Nicaragua, nothing else matters other than the equal division of
these alleged overlapping continental margins. In short,
Nicaragua’s case rests on geology and nothing but geology. As
discussed in Chapter 4, such an approach bears no relation to the
law of maritime delimitation. Nor does it reflect the maritime
entitlements (both continental shelf and EEZ) that Colombia’s
islands give rise to in their own right, the presence and interests
of third States in the region or the other relevant circumstances
characterizing the area that are discussed in this Chapter.
8.5. The only place where Nicaragua purports to address the
“relevant circumstances” is in Chapter 6 of the Reply where
Nicaragua takes issue with Colombia’s delimitation line. 487
There, Nicaragua’s contends that there are no relevant
487 NR, para. 6.84 and paras. 6.131-6.146.
274circumstances that justify an adjustment being made to its so-
called “provisional lines” which are actually no more than its
three- and twelve-mile enclaves around Colombia’s islands.
Not only are these “provisional lines” incompatible with the
legal precepts discussed earlie r in this Rejoinder, they fail to
take into account the relevant conduct of the Parties, the
geographic circumstances that characterize the area and the way
in which third States in the region have recognized the legal
entitlements generated by Colombia’s islands in bilateral
delimitation agreements.
B. The Absence of Any Nicaraguan Presence in the
Waters of the San Andrés Archipelago
8.6. Nicaragua cannot point to any presence at any time
either on Colombia’s islands at issue in the present case, or
within the maritime areas ly ing between those islands.
Moreover, Nicaragua has not produced any evidence that it
sought to exercise jurisdiction over the waters lying within the
San Andrés Archipelago or to act in a constructive manner by
enacting fish conservation or anti-pollution measures, or in
undertaking security operations to interdict drug trafficking in
this area.
8.7. In short, whatever Nicaraguan maritime activities of an
official nature that exist in th e delimitation area are limited to
isolated episodes of relatively recent vintage that either fall
close to the 82°W meridian or, for a short period at the end of
275the 1960’s and early 1970’s, were located around Quitasueño
when Nicaragua issued oil exploration permits in that area all of
488
which were promptly protested by Colombia. As to areas
lying further east – for example, east of the islands of San
Andrés, Providencia, Santa Catalina, Alburquerque and
Quitasueño or between those islands – there is nothing; no
evidence of any Nicaraguan State activities of any kind either
with respect to resource management, conservation measures or
maintenance of safety and security.
8.8. In contrast, not only has Colombia acted à titre de
souverain with respect to each of the islands of the
489
Archipelago, it has also been the sole Party to regulate
fishing, implement conservation measures, operate lighthouses
and beacons, carry out naval patrols, interdict drug trafficking,
publish maritime charts, engage in marine scientific research,
and otherwise exercise jurisdiction over all the waters lying
within Colombia’s exclusive economic zone between the islands
comprising the San Andrés Archipelago - that is, from Bajo
Nuevo in the northeast, to Alburquerque in the southwest.
8.9. While this was fully documented in the Colombian
Counter-Memorial, the relevant facts may be summarized as
follows:
x Appendix 7 to Volume II-B of the Counter-Memorial
488
489 See CCM, Annexes 54-59.
See para. 1.4 and Chapter 2, above, in particular, paras. 2.22, 2.88-
2.89.
276 tabulates 163 individual naval operations that Colombia
has carried in the waters of the San Andrés Archipelago
which include routine patrols as well as drug interdiction
operations carried out by Colombian naval forces and in
conjunction with third States.
x Appendix 5 to Volume II-B lists 91 instances where
Colombia has licensed fishing vessels for operations in
the waters of the San Andrés Archipelago. These
include numerous vessels flying the flag of Nicaragua, as
well as those flagged by the United States, the United
Kingdom, Russia, Honduras, Jamaica, Belize,
Venezuela, the Dominican Republic, Cayman Islands
490
and Panama.
x Various scientific surveys have also been commissioned
by Colombia throughout the waters lying between the
islands comprising the Archipelago. These include
geodetic controls, hydrographic surveys and
geomorphological, oceanographic, meteorological and
chemical studies of the waters and the seabed for
491
purposes of protecting the living resources of the area.
490
Also tabulated in Appendix 6 to Volume II-B of the Colombian
Counter-Memorial are arrangements made with US vessels for fishing
around Quitasueño, Serrana and Roncador. For examples of fishing permits
granted by the Colombian authorities, see also, e.g., CCM Annexes 147, 148,
150, 153, 156, 169, and, in particular, Annexes 163, 166, 167, 168
concerning Nicaraguan fishing vessels.
491 CCM, Appendices 10 and 12, Vol. II-B.
277 x Colombia has also listed in its Counter-Memorial all the
nautical charts it has issued for the islands and the waters
of the Archipelago. 492
8.10. Nicaragua is clearly conscious of its total absence from
any of the waters lying within the San Andrés Archipelago and
thus tries to excuse its lack of presence in this area on the
grounds that, while effectivités can have a role to play in cases
involving territorial disputes, such roles “have not been
493
generally accepted in cases of maritime delimitation.”
8.11. In considering this argument, it must be recalled that, as
early as the 1969 North Sea cases, the Court stated the
following:
“[T]here is no legal limit to the considerations
which States may take account of for the purpose
of making sure that they apply equitable
procedures, and more often than not it is the
balancing-up of all such considerations that will
produce the result rather than reliance on one to
the exclusion of others. The problem of the
relative weight to be accorded to different
considerations naturally varie494ith the
circumstances of the case.”
492 CCM, Appendix 11, Vol. II-B.
493 NR, para. 7.17.
494 North Sea Continental Sh elf, Judgment, I.C.J. Reports 1969, p. 50,
para. 23.
2788.12. In the Tunisia-Libya case, the Court also adverted to the
principle that: “Historic titles must enjoy respect and be
495
preserved as they have always been by long usage.”
8.13. As the Court pointed out, the notion of historic rights or
historic waters did clearly apply in a maritime context even
though distinct legal regimes govern the question of historic
rights as opposed to continental shelf rights under customary
international law. In the Court’s words:
“The first régime is based on acquisition and
occupation, while the second is based on the 496
existence of rights ‘ipso facto and ab initio’.”
8.14. Colombia has effectively exercised jurisdiction over all
of the waters lying within the San Andrés Archipelago for a
considerable period of time. Colombia has been the only State
to carry out economic and regulatory activities in these waters in
an open and transparent manner, and vessels of numerous other
States, including a number of ships flying the Nicaraguan flag,
have recognized Colombia’s jurisdiction in this area by applying
for and being granted fishing permits.
8.15. The Nicaraguan Reply labours under the mistaken
impression that Colombia is relying on this state of affairs for
the identification of specific line of delimitation. Nicaragua
495 Continental Shelf (Tunisia/Libyan Arab Ja mahiriya), Judgment,
I.C.J. Reports 1982, p. 73, para. 100.
496
Ibid., p. 74, para. 100. Of course, occupation is a form of
effectivités.
279consequently argues that there is no “tacit agreement” with
respect to any particular line in the manner addressed in the
Court’s judgment in the Nicaragua-Honduras case, and that no
line – such as the 82°W meridian – has been recognized in
497
practice.
8.16. The relevance of the 82°W meridian will be discussed in
the next section. For present purposes, it must be recalled that
Colombia does not rely on the absence of any Nicaraguan
presence in the waters lying between Colombia’s islands or on
Colombia’s exercise of jurisdiction in these waters for purposes
of establishing a particular delimitation line. Colombia’s
delimitation line is based on application of the equidistance-
relevant circumstances rule. However, it is also axiomatic that
maritime delimitation involves the application of equitable
principles and that the overall aim of delimitation is to achieve
an equitable result. It is entirely appropriate to test the
delimitation claims put forward by the Parties by reference to
the touchstone of equity (applied infra legem) and in the light of
all the relevant circumstances, including the conduct of the
Parties with respect to the areas in dispute in fields such as
resource management, control of contraband and marine
scientific research.
8.17. Nicaragua’s continental shelf claim, as well as its fall-
back position calling for a delimitation line that accords
497 NR, paras. 7.14-7.15.
280Nicaragua a full 200-nautical mile exclusive economic zone,
both fall within an area where Nicaragua has never had any
presence of any kind. A delimitation line that amputates areas
where Colombia has a long-standing track record of exercising
jurisdiction in a constructive manner, but where Nicaragua can
show nothing, cannot be said to accord with equitable principles
or to produce an equitable result that will contribute to the
maintenance of peace and stability in the region.
C. The Relevance of the 82°W Meridian
8.18. The Nicaraguan Reply argues that Colombia fails to take
into account the Court’s Judgment on the Preliminary
Objections in so far as the relevance of the 82°W meridian is
concerned. 498 Of course, Colombia’s Counter-Memorial had
already indicated that it was mindful of the Court’s finding that:
“115. The Court considers that, contrary to
Colombia’s claims, the terms of the Protocol...
[are] more consistent with the contention that the
provision in the Protocol was intended to fix the
western limit of the San Andrés Archipelago at
nd 499
the 82 meridian.”
That is why Colombia has formulated its claim both in its
Counter-Memorial and in this Rejoinder by reference to
customary international law and the two-step delimitation
process discussed earlier. As Colombia has also pointed out,
498 NR, Chapter VII.
499
Territorial and Maritime Dispute (Nic aragua v. Colombia),
Preliminary Objections, Judgment of 13 December 2007, p. 34, para. 115.
281however, this does not preclude the 82°W meridian from
constituting a relevant circumstance to be considered at the
second stage of the delimitation exercise in order to achieve an
500
equitable result.
8.19. Notwithstanding this, the Nicaraguan Reply continues to
take aim at a false target by accusing Colombia of “using the
82°W meridian at each possible stage of the process of
establishing the maritime border between the Parties, when its
only real purpose was circumscribing the extent of the
501
Archipelago.”
8.20. This is a distortion of Colombia’s position. Unlike
Nicaragua, following the Court’s Judgment, Colombia based its
position on the equidistance-re levant circumstances rule in
conformity with well-established principles of international law.
The plotting of the equidistance line obviously has nothing to do
with any particular meridian of longitude, but rather is based on
objective criteria – namely, the relevant basepoints on the
Parties’ opposite coasts. Nor, as Colombia explained in its
Counter-Memorial, does the provisional line require any
adjustment in the light of the relevant circumstances. Rather,
the relevant circumstances (including the significance of the
82°W meridian as the western limit of the San Andrés
Archipelago and as the limit to the areas in which the Parties’
500
501 CCM, paras. 9.60-9.64.
NR, para. 7.8.
282exercised their respective jurisdiction) confirm the equitable
nature of the provisional equidistance line.
8.21. For evident reasons, the equidistance line does not
coincide with the 82°W meridian since the former is a function
of basepoints located on the Parties’ coasts while the latter is a
line of longitude. The course of the equidistance line can be
seen on Figure R-8.1 facing this page. The southern three-
quarters of the line lies somewhat to the west of the 82°W
meridian because it is controlled by basepoints on San Andrés
Island, Providencia, Santa Catalina and Alburquerque, on the
one hand, and the Islas Mangles (Corn Islands) and Roca Tyra,
on the other. The northern part of the line actually falls
somewhat to the east of that meridian as a result of the
basepoints on each Party’s coasts. This is no more than the
product of nature and the relevant coastal geography of the
Parties which are the key elements in the establishment of any
equidistance line.
8.22. Given that Colombia’s position has been formulated by
reference to established legal principles, Nicaragua’s
intemperate characterization of that position as “preposterous” is
out place.502
nd
8.23. Having wrongly criticized Colombia for “using the 82
meridian at each possible stage of the process”, Nicaragua also
502
NR, p. 15, para. 33.
283contradicts itself by complaining that, by its “newly fashioned”
median line, “Colombia seeks to acquire more maritime space
than she had ever claimed before, including in her earlier
pleadings before this Court.” 503 Apparently, Colombia is
damned when she relies on the 82°W meridian and damned
when she does not.
8.24. The fact of the matter is that the position expressed in
Colombia’s Counter-Memorial respects the delimitation
methodology articulated by the Court and by arbitral tribunals,
while Nicaragua’s position does not. It ill-behooves Nicaragua
to complain that Colombia is now claiming more when
Nicaragua itself – and, unlike Colombia, without the slightest
justification based on the Court’s Judgment on the Preliminary
Objections – has introduced a brand new continental shelf claim
that had never seen the light of day before the filing of its Reply
(and which still has not seen the light of day as far as the United
Nations Commission is concerned), and which lies 100 nautical
miles to the east of Nicaragua’s already exaggerated, original
single maritime boundary claim.
8.25. With respect to the role of the 82°W meridian as a
relevant circumstance to be taken into account at the second
stage of the delimitation process, this revolves around two main
factors.
503 NR, para. 6.8.
2858.26. The first is based on the premise that, while not effecting
a general delimitation between the Parties, the 82°W meridian
does fix the western limit of the San Andrés Archipelago as the
504
Court held in its Judgment on the Preliminary Objections.
505
This is a proposition with which Nicaragua agrees. That
being the case, it is entirely natural that the delimitation should
fall generally between the western limit of the Archipelago as
defined in the 1928/1930 Treaty, on the one hand, and
Nicaragua’s territory, on the other. This is what the
equidistance line achieves; it f alls between the limits of the
territory of both States.
8.27. The fact that the 82°W meridian lies in the same general
area as the equidistance line – i.e., between the relevant and
opposite coasts of the Parties – confirms the overall
equitableness of the equidistance line as the appropriate
delimitation. What would not be compatible with the
1928/1930 Treaty would be a delimitation line lying to the east
of Colombia’s islands that results in Nicaragua having sovereign
rights within areas that fall inside the limits of Colombia’s
Archipelago and between its islands. This is a matter that the
Nicaraguan Reply fails to grapple with.
8.28. The second relevant factor concerns the manner in which
the Parties have exercised their sovereign rights in the area
504 Territorial and Maritime Dispute (Nic aragua v. Colombia),
505liminary Objections, Judgment of 13 December 2007, p. 34, para. 115.
NR, para. 7.3.
286based on their control and interdiction of fishing vessels and in
taking other lawful measures relating to safety and security.
8.29. Nicaragua’s pleadings tell an incomplete and thus
distorted story when it comes to this issue. Nicaragua argues
that Colombia has imposed the 82°W meridian as a limit by
506
force. The Reply goes so far as to append a separate section
requesting the Court to declare that Colombia is not acting in
accordance with its obligations under international law in this
respect. 507 The unfounded nature of Nicaragua’s request for a
“Declaration” will be addressed in Chapter 9 below. For present
purposes, it is necessary to correct the one-sided version of
events that Nicaragua has presented.
8.30. While the Nicaraguan Reply asserts that “the Colombian
military forces have imposed unlawful restrictions on
nd
Nicaragua’s exercise of her own sovereignty east of the 82
508
meridian”, it fails to point out that its own forces have also
intercepted and detained Colombian vesse ls within the same
area to the west of Quitasueño. There are five such incidents
recorded in the annexes which Nicaragua filed with its
509
Memorial. Each of these was protested by Colombia. But the
significant aspect of this element of the conduct of the Parties is
506
507 NR, para. 7.26.
508 NR, p. 237, para. 8.
509 NR, para. 7.16.
NM, Annexes 49-50, 53, 55 (referring to two incidents) and 57.
287that all of these incidents occurred either on the 82°W meridian
or within a few miles of it.
8.31. Figure R-8.2 depicts in red the locations where
Nicaragua has intercepted or detained Colombian vessels
operating in the area, and in green locations where Colombia
has stopped private vessels fishing in contravention of
Colombian law. It can be seen that all of these incidents have
occurred on or close to the 82°W meridian in the northeastern
part of the relevant area between Quitasueño and the opposite
Nicaraguan islands.
8.32. Nicaragua never carried out any naval patrols or engaged
in monitoring foreign vessels east of San Andrés Island,
Providencia or Quitasueño or south of Alburquerque and East-
Southeast Cays. This is consistent with Nicaragua’s total
absence from this area. Instead, its concerns have centered
precisely around the 82°W meridian. As for Colombia’s
practice, since there were no Nicaraguan flagged vessels ever
operating east of the islands without having received a
Colombian permit, interdiction activities of the Colombian
Navy have also taken place in areas lying between the 82°W
meridian and Quitasueño, as can be seen on the map.
8.33. The picture that emerges is that the only area which, as a
practical matter, has given rise to disputes between the Parties is
the area lying between the north-westernmost of Colombia’s
288islands and Nicaragua along or next to the 82°W meridian. In
addition to constituting the western limit of the San Andrés
Archipelago, the 82°W meridian is also a relevant circumstance
in so far as it confirms where the genuine area of dispute lies in
which the delimitation falls to be established - the area between
the Parties’ relevant coasts. This is where the equidistance line
lies.
D. Resource and Security Factors
(1) R ESOURCE MANAGEMENT AND CONTROL
8.34. Nicaragua acknowledges that “since the North Sea
Continental Shelf cases, it has been recognized that the
incidence of natural resources in the disputed area may
510
constitute a relevant circumstance affecting a delimitation.”
With the adoption of the regime of the exclusive economic zone,
preservation of the living resources situated within the EEZ has
become more important, and a coastal State now possesses
sovereign rights not only to explore and exploit the natural
resources in the EEZ, but also the right – and, indeed, the
obligation – to conserve and manage those resources.
8.35. The waters of the San Andrés Archipelago lying east of
the 82°W meridian host a fragile ecosystem where the over-
fishing of certain species is a major concern. Unlike Nicaragua,
Colombia has taken a number of concrete steps, both by itself
510 NM, para. 3.60.
290and in conjunction with other States, to preserve and protect the
living resources of these waters. These measures are
documented in Colombia’s Counter-Memorial. Since they have
been ignored in Nicaragua’s Reply, it is appropriate to
summarize them here if only to underscore the fact that
Colombia has been, and continues to be, the sole Party in this
case that is effectively managing the living resources of the area.
8.36. In the first place, Colombia’s delimitation agreements
with its neighbours emphasize the importance placed by the
parties to those agreements on the preservation of the ecosystem
of this part of the Caribbean. For example, the 1976 Agreement
between Colombia and Panama, records -
“The adoption of satisfactory measures for the
preservation, conservation and exploitation of the
existing resources in those waters and the
prevention, control and elimination of pollution
511
therein to be in their mutual interest.”
8.37. The 1977 Agreement between Colombia and Costa Rica
evidences a similar concern. No less than four articles (Articles
III, IV, V and VI) set out the Parties’ agreement to coordinate
and co-operate in enacting preservation measures relating to
species that migrate beyond their respective jurisdictions and to
control pollution and exchange scientific research. 512
511
512 CCM, Annex 4, p. 27.
CCM, Annex 5, pp. 32-33.
2918.38. With respect to States outside of the region, on
8September 1972 Colombia and the United States concluded a
treaty pursuant to which the United States renounced any claims
513
to sovereignty over Quitasueño, Roncador, and Serrana. By
Article 3 of the Treaty, United States’ nationals and vessels
were granted the right to continue to fish in the waters of
Quitasueño, Roncador and Serrana, subject to reasonable
conservation measures applied by the Government of Colombia
in accordance with an Exchange of Notes of the same date. 514
The parties also agreed to exchange views periodically on the
desirability of bilateral or mu ltilateral action of a conservation
515
nature.
8.39. In implementation of this agreement, on 24 October and
6 December 1983, Colombia and the United States conducted a
further Exchange of Notes, where by they agreed that the latter
would provide annually to Colombia a list of U.S. fishing
vessels which intended to fish in the areas covered by the 1972
Agreement. 516 Such vessels were required to report their arrival
in and departure from such areas to Colombian authorities and
to provide a statement regarding the quantity and species of their
catch.
513
514 CCM, paras. 4.52-4.56 and Annex 3.
CCM, Annex 3, pp. 18-20.
515 CCM, Annex 3, pp. 18-20.
516 CCM, Annex 8.
2928.40. Further consultations on conservation measures took
place between the signatories to the 1972 Treaty in January
1987 resulting in the issuance of a Joint Statement on
23January 1987. The Joint Statement voiced concern over the
depletion of certain species, particularly conch, in the waters
around Quitasueño, and agreed on a temporary ban on the taking
of conch within the area described in paragraph 5 of the 1983
517
Exchange of Notes relating to Quitasueño.
8.41. Those actions were followed on 6 October 1989 by the
adoption of Agreed Minutes pursuant to which the Colombia
and the United States agreed to continue the temporary ban on
conch fishing around Quitasueño, to adopt a three month closed
season (from 1 July through 30 September of each year) for
conch fishing in the waters adjacent to Roncador and Serrana,
and to prohibit the capturing of spiny lobsters of less than a
specified size. A ban on factory vessels operating in the treaty
518
waters was also agreed.
8.42. Further regulations were adopted by the Colombian
Ministry of Agriculture in 1990. These extended the fishing ban
for conch in the area of Quitasueño between the 14° to 14°40’N
latitudes and the 81° to 81°30’W longitudes. With respect to the
rest of the area of the San Andrés Archipelago, the regulations
imposed a closed season on conch fishing generally during the
months of July through September as well as a ban on the
517
518 CCM, Annex 11.
CCM, Annexes 12 and 13.
293possession of conch weighing less than 225 grams. A size
limitation was also placed on the capture of spiny lobsters
throughout the Archipelago, and a restriction imposed on the
use of certain kinds of dive equipment and nets, and on fishing
operations carried out by factory ships. 519
8.43. Pursuant to an Agreed Minutes between Colombia and
the United States dated 18 May 1994, the United States
authorized the Navy and Coastguard of Colombia to board U.S.
vessels to verify compliance with conservation regulations, in
exercise of its jurisdiction with respect to fishing in the San
Andrés Archipelago. This was confirmed by a Diplomatic Note
dated 6 August 1996. 520 The parties also agreed to create an ad
hoc scientific group to discuss data relating to fishing activities
reported by the delegations of both countries and to develop an
action plan for evaluating the fishing resources of the area and
521
problems threatening their sustainable development.
8.44. Colombia also entered into fishing agreements with
Jamaica in 1981 and 1984 under which Jamaican fishing vessels
were accorded the right to undertake fishing activities in areas
around the Serranilla Cays and Bajo Nuevo. The agreements
specified the particular species of fish that such vessels were
authorized to catch, the size of vessels that were allowed to fish
and the maximum annual catch that was permitted. They also
519 CCM, Annex 151.
520 CCM, Annex 68.
521 CCM, Annex 15.
294obligated crew members of Jamaican vessels to obtain
identification cards issued by the Colombian Consulate in
Jamaica. 522
8.45. Colombia and Jamaica also agreed a Joint Regime Area
in their 1993 Maritime Delimitation Treaty as depicted on
Figure R-5.5 at page 188. Amongst other things, the 1993
Agreement provided that the parties would adopt measures
relating to marine scientific research, the protection and
preservation of the marine environment and conservation of the
living resources within the Joint Regime Area. 523
8.46. The evidence thus shows that Colombia has consistently
exercised sovereign rights over the management and
conservation of the living resources located within its exclusive
economic zone in the waters of the San Andrés Archipelago.
For its part, Nicaragua has produced no evidence that it engaged
in any similar activities in maritime areas lying east of the 82°W
meridian, or between Colombia’s islands, despite the fact that,
as a party to the 1982 Convention on the Law of the Sea,
Nicaragua was under an obligation to: (i) determine the
allowable catch of the living resources within areas claimed to
form part of its EEZ (Article 61(1)), (ii) ensure through proper
conservation and management the maintenance of those living
522 CCM, Annexes 7 and 9, in pa rticular Articles III and VIII(d)
thereof; also, second para. in preamble of Annex 9 in reference to two-year
renewal in 1982 of the 1981 Agreem ent, pursuant to Art. XIV. See also,
CCM Annexes 63 and 64.
523 CCM, Annex 14.
295resources so that they were not endangered by over-exploitation
(Article 61(2), and (iii) promote the optimum utilization of such
resources (Article 62).
8.47. In its Reply, Nicaragua attempts to excuse its inaction by
asserting that Nicaragua was under “special constraints” in
524
furnishing the Court with information on these matters. To
this end, Nicaragua argues that it has been unable to explore the
area and thus to be able to provide the Court with a full study of
the resources in question. 525 However, this does not excuse
Nicaragua’s inaction because, if it had considered it had rights
over that area, it should have at least issued relevant legal and
administrative regulations.
8.48. At the State level, there is no evidence Nicaragua ever
attempted to carry out any m arine scientific research in the
maritime areas it now claims. Nor did Nicaragua produce any
laws or regulations dealing with the protection of the living
resources situated therein. There are no grounds for blaming
this inactivity and lack of interest on Colombia. In short,
Nicaragua complains that its rights have been infringed, but
unlike Colombia it never sought to implement such rights in
practice and it never respected the obligations it was putatively
under to conserve and manage the resources of the areas which
it now asserts should form part of its exclusive economic zone.
524
525 NR, para. 6.136.
NR, para. 6.138.
2968.49. Nicaragua also overlooks the documentary evidence that
Colombia has produced showing that Nicaraguan flagged
vessels have frequently applied for and been granted permits by
Colombia to fish in the waters of the San Andrés Archipelago
subject to complying with Colombia’s conservation measures.
Annexes 139, 140, 163, 166, 167, 168 and 169 to Colombia’s
Counter-Memorial contain specific permits granted to
Nicaraguan flagged vessels to this effect.
(2) C OLOMBIA ’S UNDERTAKING OF SECURITY MEASURES
8.50. With respect to Colombia’s undertaking of security
operations throughout the waters lying within the San Andrés
Archipelago, Nicaragua’s Reply raises two arguments. The first
is that Colombia has introduced “no evidence to support her
526
assertions”. The second is that, since the waters beyond the
territorial sea in the exclusive economic zone are not a zone of
sovereignty, Colombia has no right to exercise general “police”
powers or to interdict contraband unrelated to specific economic
rights she might enjoy in such areas. 527 The first argument is
simply wrong. The second mischaracterizes the relevant legal
context within which Colombia’s activities have taken place.
8.51. As for the questions of evidence, the Counter-Memorial
contains numerous documentary annexes attesting to
Colombia’s implementation of security measures in the waters
526
527 NR, para. 6.141.
NR, para. 6.142.
297of the Archipelago both with respect to controlling illegal
fishing and in connection with the interdiction of drug-running
and the transport of other contraband. 528 The former activity is
critical to the conservation and management of the living
resources in the area, as was discussed in the previous section.
The latter is of central importance not only to Colombia but to
the international community at large in the light of the fact that
this part of the Caribbean has been a route for illegal drug-
smuggling.
8.52. As noted above, Appendix 7 to Volume II-B of
Colombia’s Counter-Memorial contains a descriptive list of
some 163 individual naval operations that Colombia has
undertaken within the maritime areas falling within the San
Andrés Archipelago. These activities range from routine patrols
relating to surveillance duties, to fighting contraband and drug-
trafficking, controlling illegal fishing and generally exercising
sovereignty and sovereign rights over the islands and the
adjacent waters. Many of these were carried out unilaterally by
Colombia’s Naval forces; others were performed as part of
exercises carried out with other States, particularly the United
States.
8.53. With respect to joint Colombian-United States
operations, it will be recalled that, pursuant to the 1983
Agreement between those two States, the United States granted
528
See, e.g., CCM, Annexes 130- 132, 165, 209-214; Vol. II-B,
Appendices 7 and 8.
298to Colombian authorities the right to board United States
flagged vessels fishing in the areas covered by the 1972 Treaty
for purposes of inspecting the vessels’ documentation granting it
permission to fish in the area concerned. With the subsequent
increase in drug trafficking in the area, Colombia and the United
States expanded their joint interdiction efforts in 1997 by
529
concluding an Agreement to Suppress Illicit Traffic by Sea.
8.54. The 1997 Agreement applied to waters lying beyond the
territorial sea of any State and provided, in relevant part, that
each party would authorize the other party, on request, to board
and search one of its flagged vessels when either party had
reasonable grounds to suspect that the targeted vessel was
involved in illicit drug-trafficking. As such, the Agreement was
consistent with the obligations and goals set out in the 1988
United Nations Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances to which Colombia is a
party and which is referred to in the Preamble of the 1997
Agreement. The Agreement also noted the parties’ agreement to
develop and share tactical information in order to track suspect
vessels or aircraft.
8.55. As the documentary annexes furnished by Colombia (but
ignored by Nicaragua) demonstrate, Colombia and the United
States have cooperated closely in implementing this Agreement
within the waters of the San Andrés Archipelago. For example,
529
Annex 4: 1997 Agreement to Suppress Illicit Traffic by Sea between
Colombia and the United States.
299Annex 165 to the Counter-Memorial contains an Operational
Order from the Colombian Navy Command for San Andrés and
the western bank of Quitasueño for purposes of detecting ships
engaged in illegal fishing activities, drug-trafficking, arms
trafficking and smuggling. The Order specifically instructed
those conducting the operation to apply the provisions of the
1997 Agreement with the United States. 530
8.56. The list of Colombian Naval operations included in
Appendix 7 to the Counter-Memorial records seven different
occasions where Colombian naval vessels collaborated with
their United States counterparts in drug interdiction activities
531
within the Archipelago’s waters. In addition, there are
numerous other listings relating to Colombian anti-narcotics
532
missions carried out without third party assistance. The
location of these operations show that they were carried out both
to the east and west of the main islands of San Andrés,
Providencia and Santa Catalina and to the south of Quitasueño.
8.57. Colombia has also engaged in numerous search and
rescue missions carried out by its naval forces in waters now
claimed by Nicaragua but where Nicaragua can show no similar
530
531 CCM, Annex 165, p. 576.
Both before and after th e 1997 Agreement, see the entries for
17/01/1986 (p. 195), 18/04/1995 (p. 212), 30/05/1998 (p. 229), 28/08/1998
(p; 230), 09/09/1998 (p. 231), 23/09/1998 (p. 231) and 13/01/1999 (p. 234) to
Appendix 7 to the CCM.
532 See relevant entries in CCM Ap pendix 7, pp. 199, 202-203, 207,
210, 212-213, 215-216, 218, 221-222, 227-228, 230-232, 234 and 237-239.
300conduct. Reference may be made to the following specific
examples:
x Search and rescue operations in August 1969 relating to
533
a towboat located southwest of Alburquerque;
x Investigation of a steamship which ran aground on a
534
shoal in the vicinity of Serrana in September 1971;
x Search and rescue in the vicinity of San Andrés Island in
June 1979 of a number of Nicaraguan vessels coming
535
from Nicaragua with refugees onboard;
x Search and rescue in September 1982 of a Nicaraguan
flagged vessel near Providencia; 536
x Search and rescue of a motorboat drifting near
Alburquerque in July 1983; 537
x Search and rescue of a sailboat near Quitasueño in June
538
1986;
x Assistance in October 1988 to the crew of a motorboat
apparently stolen by two Nicaraguan crewmembers to
escape that country, subsequently escorted to the 82°W
539
meridian by Colombian forces;
533
CAC135.
534CAC136.
535 CCM, Appendix 7, p. 185.
536 CCM, Appendix 7, p. 193.
537
538CAC145.
539CAC146.
CAC149.
301 x Assistance in August 1990 to a Nicaraguan flagged
vessel in distress west of Alburquerque; 540
x Search and rescue and logistical support in February
1991 between various of the Colombian islands; 541
x Search and rescue operations in April 1992 for a
motorboat which had declared an emergency at a
position about 150 nautical miles southwest of San
Andrés Island; 542
x Search and rescue operations carried out in July 1993
with respect to a motorboat south of San Andrés Island
and west of the East-Southeast Cays; 543
x Search and rescue operations carried out at Quitasueño in
544
June 1994;
x Search and rescue operations in the general area of the
545
Cays of the Archipelago in December 1994;
x Support to a vessel with motor problems around
546
Quitasueño in August 1997;
x Rescue of Honduran fishermen near Serranilla in
547
October 1997;
540CAC15,2.
541
542 CCM, Appendix 7, p. 203.
CAC15,5.
543CAC15,8.
544 CCM, Appendix 7, p. 209.
545 CCM, Appendix 7, p. 210.
546
547 CCM, Appendix 7, p. 222.
CCM, Appendix 7, p. 225.
302 x Various search and rescue operations carried out with
respect to Panamanian and Colombian flagged vessels in
December 1998 and January 1999 around and west of
Quitasueño; 548
549
x Aid to a vessel in the area of Quitasueño in May 1999;
and
x Rescue of a Honduran vessel that had caught fire in the
vicinity of Serrana in September 1999. 550
8.58. These incidents show a consistent presence of
Colombian naval forces in the waters of the Archipelago falling
to the east of the provisional equidistance line and east of the
82°W meridian and attest to their contribution to security and
safety in the region. Suffice it to note that Nicaragua cannot
point to a single competing activity undertaken in furtherance of
security in the same area.
8.59. Legally, Nicaragua’s assertion that Colombia has no
right to exercise general police powers to interdict contraband
unrelated to the specific economic rights she might enjoy in the
area is inconsistent with the position it took in its Memorial and
incorrect as a matter of law.
548
CCM, Appendix 7, p. 232-233.
549 CCM, Appendix 7, p. 235.
550 CCM, Appendix 7, p. 236.
3038.60. While Nicaragua’s Reply now tries to downplay the
relevance of security interests, it should be recalled that the
Nicaraguan Memorial took a different view. As stated in the
Memorial:
“International tribunals have given firm
recognition to the relevance of security
considerations to the assessmen551f the equitable
character of the delimitation.”
8.61. Under international law, as refl ected in Article 62 of the
1982 Convention, a coastal State is entitled to enact laws and
regulations not only dealing with licensing of fishermen, fixing
quotas of catch, regulating fishing seasons and the age and size
of particular species that may be caught and other such rights,
but also to implement enforcement procedures. Unlike
Nicaragua, this is precisely what Colombia has done.
8.62. The management and conservation of the living
resources of the exclusive economic zone has an obvious
economic importance, but economic considerations and security
interests are closely interrelated. Many of the inhabitants of the
San Andrés Archipelago depend on fishing for their livelihoods.
Failure of others to respect regulations that Colombian
fishermen themselves are subject to risks friction in the area and
maritime incidents. Colombia has taken positive steps to
control this situation as is evidenced by the fact that it has not
551 NM, para. 3.69.
304experienced any serious incidents with its other neighbours in
the region.
8.63. A coastal State also has the right not simply to exercise
sovereignty over its territorial sea, but also to prevent
infringement of its customs, fiscal, immigration and security
laws and to punish infringement with its laws and regulations
within a distance of 24 nautical miles of its baselines
corresponding to a contiguous zone. Unlike the EEZ, there is no
obligation for a State to proclaim a contiguous zone or to
publish charts indicating its limits.
8.64. Consistent with Article 17 of the 1988 United Nations
Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances, States are also encouraged to co-
operate in agreeing arrangements to board and search vessels
flagged by another State suspected of illicit drug trafficking.
The 1997 Agreement between Colombia and the United States
is precisely such an agreement which has been actively
implemented in the waters around the San Andrés Archipelago
lying beyond the territorial sea of Colombia’s islands.
8.65. Nicaragua also overlooks the fact that intelligence
sharing and the tracking of vessels or aircraft suspected of being
involved in illegal activities is also an important security and
policing matter. Such actions are not limited to areas over
which a State exercises sovereignty, and Colombia has actively
305engaged in such operations within the San Andrés Archipelago
in order to safeguard its essential security interests.
E. Geographic Factors and Proportionality
8.66. The provisional equidistance line lies midway between
the westernmost of Colombia’s islands and Nicaragua’s
easternmost islands as illustrated on Figure R-8.3. It fully
respects the conduct of the Parties as described in the previous
sections. The question next arises whether, when considering
the other factors discussed above, there are any geographic
circumstances that militate in favour of an adjustment being
made to this line in order to produce an equitable result, bearing
in mind that it is not the purpose of maritime delimitation to
refashion geography or to render alike what nature has created
differently.
8.67. Colombia does not consider that any adjustment is
required either on geographic or other grounds. From north to
south, the islands of Quitasueño, Santa Catalina, Providencia,
San Andrés and Alburquerque form a long chain. Those islands
are in turn “backed up” by Serrana, Roncador, Serranilla, Bajo
Nuevo and the East-Southeast Cays which lie to their east and
northeast. All of these islands generate maritime entitlements
under international law.
8.68. Figure R-8.3 shows that, quite apart from continental
shelf and exclusive economic zone entitlements, even the
306minimum entitlements of Colombia’s islands to a territorial sea
and 24-mile contiguous zone meet and overlap. Serrana and
Roncador lie behind Colombia’s western islands, and their 24-
mile belts (not to mention their 200-mile EEZ and continental
shelf entitlements) also overlap with each other and, in the case
of Serrana, with that of Quitasueño. In addition, the territorial
seas and contiguous zone entitlements of Alburquerque, San
Andrés and East-Southeast Cays meet and overlap, as can be
seen on the figure.
8.69. Nicaragua complains that the alignment of Colombia’s
islands along a north- south axis “exacerbates the inequitable
nature of Colombia’s equidistance line.” 552 If anything, the
opposite is the case. This alignment, when coupled with the
proximity of Colombia’s islands to each other and the activities
that Colombia has engaged in with respect to resource
management, conservation, safety and security, reinforces the
equitable nature of adopting an equidistance-based boundary.
Some nine sets of basepoints that are situated on several of
Colombia’s islands control the co urse of the line. A similar
number of basepoints are located on Nicaragua’s islands. 553
This is far more than can occur with mainland coasts, as was
illustrated in the Romania-Ukraine case where just two or three
552 NR section heading at p. 206; para. 6.127.
553
The relevant basepoints can be seen on Figure 9.2 to Colombia’s
Counter-Memorial. Also CR, Figures R-6.3 and R-8.3.
308sets of basepoints on the Parties ’ respective coasts actually the
554
course of the entire equidistance line.
8.70. While Nicaragua’s mainland coast does not provide any
basepoints for the equidistance line because of the presence of
the Islas Mangles (Corn Islands), Roca Tyra, the Miskitos Cays
and Edinburgh Reef lying off that coast, it has already been
shown on Figure R-6.4 at page 230 that an equidistance line
drawn between Colombia’s islands and Nicaragua’s mainland
coast lies considerably to the west of the islands-to-islands
equidistance line. It follows that Colombia’s line accords to
Nicaragua more substantial maritime areas within the relevant
area than would an equidistance line using the Nicaraguan
mainland coast instead. It also follows that the maritime areas
appertaining to Nicaragua under Colombia’s equidistance line
are more extensive than those appertaining to Colombia within
the delimitation area between the relevant coasts of the Parties.
8.71. Even if it was considered appropriate – quod non – to
make some adjustment to an islands-to-mainland equidistance
line to take account of disparities in coastal lengths, Colombia
has shown that a modified equidistance line giving Colombia’s
islands roughly the same effect as Jan Mayen received vis-à-vis
Greenland or that Malta received vis-à-vis Libya would fall in
the same general area as Colombia’s equidistance line.
554
Nicaragua’s argument that the relation of Colombia’s islands to each
other is “similar” to the relation of Se rpent’s Island to the mainland coast of
Ukraine is absurd, as has been shown at paras. 6.52-6.56 above.
3098.72. The Court has made it clear that maritime delimitation is
not an exercise in distributive justice or in drawing lines
according to “nice calculations of proportionality”. 555 I
situations where the rights of third States come into play along
the perimeter of the area to be delimited, the Court has also
shied away from applying proportionality because, to borrow
the Court’s words -
“there is the probability that future delimitations
with third States would overthrow not only the
figures for shelf areas used as a basis for
556
calculations but also the ratios arrived at.”
8.73. Nicaragua accepts that “proportionality as such cannot
produce a delimitation.” 557 Nicaragua also has no interest in
applying a proportionality test (or perhaps more accurately, a
disproportionality test) to its own continental shelf claim for the
obvious reason that such a claim, in addition to its other legal
defects, is grossly disproportionate. Neverthele ss, the Nicaraguan
Replystates:
“In this general context, it would be particularly
bizarre if a factor related to coasts and coastal
lengths (as Colombia recognizes in the Counter-
Memorial) were to be used ab extra to impose a
limit upon continental shelf entitlement as
represented in the concepts of the continental
margin and of the outer limits of the shelf as
555 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p. 40 para. 46 and p. 45, para. 58.
556 Ibid., p. 53, para. 74.
557 NR, para. 3.57.
310 defined in Art558e 76 of the 1982 Law of the Sea
Convention.”
8.74. What Nicaragua fails to appreciate is that its own claims
and enclave proposals artificially impose a completely
unjustified limit on the entitlements of all of Colombia’s islands.
There is nothing equitable about such an approach particularly
when considered in the light of the activities Colombia has
engaged in throughout the waters of the Archipelago with
respect to resource management, security and safety.
8.75. In contrast, Colombia’s method reflects the legal
principles governing maritime delimitation as well as the
relevant circumstances. The equidistance line between the
relevant opposite coasts of the Pa rties affords to Nicaragua a
greater maritime area between those coasts than it does to
Colombia while, at the same time, delimiting the area by means
of a line that is constituted by reference to where the projections
from each Party’s coasts meet. An equidistance line in this case
thus does produce an equitable result.
F. The Interests of Third States
8.76. Colombia has addressed the relevance of the actual or
potential interests of third States in the region in Chapter 5 in
connection with the identification of the relevant area.
Colombia is sensitive to the fact that delimitation in the present
558 NR, para. 3.61.
311case should not prejudice such interests. It was for this reason
that Colombia did not specify any end-points for its delimitation
line in its Counter-Memorial, but rather placed arrows on the
north and south of its equidistance line to show that the terminal
points of any delimitation depend on the rights of third States. It
also explains why Colombia has no objection to Costa Rica’s
intervention in the case.
8.77. As the Counter-Memorial explained, Colombia has
concluded delimitation agreements with Panama, Costa Rica,
Jamaica and Honduras. The agreement with Costa Rica has not
been ratified by Costa Rica, but Costa Rica has made it clear
that it complies with the provisions set out in the agreement. 559
Colombia does not claim any maritime areas against third States
beyond the limits of the boundaries set out in those agreements.
8.78. In the north, Colombia’s equidistance line does not
impact on the boundary the Court delimited between Nicaragua
and Honduras. Areas lying to the south of that line, however,
are able to be delimited between Colombia and Nicaragua. In
the south, Colombia also placed an arrow on its equidistance
line. As Colombia noted: “There is a question how far the
median line should be prolonged to the south given the potential
interests of third States in the region”. It is clear, therefore, that
Colombia has taken the actual or potential rights that third
States may have into account. As previously pointed out,
559
See, CCM paras. 4.155-4.162 and Annexes 17, 18, 67, 69; CR
Annexes 1-3; and, Costa Rica’s Application to Intervene, para. 12.
312moreover, the delimitation treaties concluded between Colombia
and its neighbours are important relevant circumstances both for
identifying the delimitation area and for arriving at an equitable
result.
8.79. The delimitation practice of Colombia and third States in
this part of the Caribbean Sea also shows that Costa Rica,
Panama, Jamaica and Honduras have all concluded boundary
treaties with Colombia that presuppose that the islands in
question belong to Colombia and that, for the most part, they are
entitled to full, or substantially full, equidistance effect for
purposes of achieving equitable delimitations. 560 All of those
agreements are consistent with Colombia’s delimitation
methodology in this case; none of them supports Nicaragua’s
enclave theory.
8.80. It is also apparent that no other States in the region
consider that there are any areas of outer continental shelf
beyond 200 nautical miles from their territory in the region, and
none have made extended continental shelf submissions to the
United Nations Commission. This is another element of
regional State practice which is fundamentally at odds with
Nicaragua’s new outer continental shelf claim.
8.81. The delimitation agreements between Colombia and
other States have played an important role in contributing to the
560 See paras. 7.55-7.63 above and CCM, paras. 8.33-8.56, 9.65-9.70.
313maintenance of peace and stability and in fostering cooperation
in the fields of resource conservation and the fight against
pollution in the region. As a result of these agreements, there
have been no maritime incidents involving Colombia and its
other neighbours in this part of the Caribbean.
8.82. Nicaragua’s claims, on the other hand, completely ignore
the interests of third States. The delimitation area posited by
Nicaragua cuts right across the coasts of Panama and Costa Rica
in the south and impinges on areas relevant to Jamaica in the
north. With its new continental shelf claim, Nicaragua claims
areas that lie much closer to third States, as well as to
Colombian territory, than they do to Nicaragua and in which
Nicaragua has never displayed any official presence or taken
any conservation or security enhancing measures. Nicaragua’s
approach to delimitation is plainly misconceived both with
respect to the area that it advances as the “delimitation area” and
with respect to its claim lines. There is, in short, nothing
equitable about Nicaragua’s claim which, amongst its other
shortcomings, fails to take account of the presence of third
States as a relevant circumstance.
G. Conclusions
8.83. The provisional equidistance line that Colombia has put
forward in Chapter 6 produces a result that is prima facie
equitable. An assessment of the relevant circumstances
characterizing the area confirms the equitable nature of that line.
3148.84. Unlike Nicaragua’s exaggerating claims and its enclave
theory, the equidistance line respects the conduct of the Parties
in relation to the management and preservation of the resources
of the area as well the essential security interests that Colombia
has been active in protecting. It lies in the same general area as
the 82°W meridian, which constitutes the western limit of the
San Andrés Archipelago and which also broadly represents the
easternmost limit of State a ctivities that Nicaragua has carried
out in the area. The equidistance line also respects the interests
of third States in the region.
8.85. For these reasons, Colombia does not consider that any
adjustment of the provisional equidistance line is called for in
order to achieve an equitable result in this case.
315 PART THREE
OTHER MATTERS Chapter 9
NICARAGUA’S REQUEST FOR A
DECLARATION
9.1. Part III of Nicaragua’s Reply, entitled “Declaration”,
sketches a claim for a generic declaration that Nicaragua is
561
entitled to damages. This entitlement is said to arise from
what Nicaragua variously describes as Colombia’s enforcement
562
of the maritime boundary around the 82° meridian, “a
blockade against Nicaragua’s access to the natural resources
nd 563
located east of the 82 meridian,” and the “illicit[] use[] by
Colombia for her unjust enrichment and to the detriment of
Nicaragua … [of] over 100,000 square kilometres of maritime
564
spaces.”
9.2. This claim by Nicaragua lacks any basis. Since 1930,
when the 1928/1930 Treaty entered into force, Colombia has
strictly complied with it. The Treaty clearly set out the 82°W
meridian as a limit and Colombia depicted it as such since the
first map it issued in 1931 (which Nicaragua did not protest or
565
object to). Colombia exercised its jurisdiction in a peaceful
manner, and in conformity with international law, up to that
limit. This exercise of jurisdiction by Colombia was not
561 NR, pp. 235-238.
562 NR, p. 236, para. 3.
563 NR, p. 236, para. 5.
564
565 NR, p. 237, para. 6.
See CPO, Vol. III, Maps 4 and 4 bis, and CCM, Vol. III, Figures
2.12 and 2.13.
319challenged by Nicaragua until 1967, 37 years after the Treaty
was concluded.
9.3. While the Court in 2007 held that the 1928/1930 Treaty
did not “effect a general delimitation of the maritime spaces
566
between Colombia and Nicaragua;” it also held that the
relevant provision in the 1930 Protocol was “intended to fix the
western limit of the San Andrés Archipelago at the 82 nd
meridian.” 567 That being so, there can be no basis for any claim
of Colombian responsibility for conduct carried out in good
faith within the limits of an Archipelago long administered by it
as an entity, and now once again acknowledged to appertain to
it.
9.4. Nicaragua has limited the exercise of jurisdiction to the
west of the 82°W meridian, pursuant to the 1928/1930 Treaty,
except for a few incidents that elicited Colombia’s timely
protests. It never made a determinate claim to a maritime
boundary to the east of the 82°W meridian, until it made its
untenable claim to an all-purpose line, ignoring the Archipelago,
in the Memorial. (That claim it no longer sustains.) By contrast
there is necessarily an equidistance line between points of the
parties’ respective coasts, and its course is for the most part even
further west than the 82°W meridian.
566 Territorial and Maritime Dispute (Nicaragua v. Colombia)
Preliminary Objections, Judgment of 13 December 2007, p. 35, para. 116.
567 Ibid., p. 34, para. 115.
3209.5. In addition to its being based on a wrong premise,
Nicaragua’s claim lacks an essential element. No specification
of damages is attempted for any of these alleged wrongs.
Indeed it is not clear that Nicaragua appreciates that its three
claims are quite different one from the other.
9.6. The use or misuse of the law of State responsibility in
the case of boundary disputes has already been a matter for
consideration by the Court, both in land and maritime cases.
Two examples may be given.
9.7. In Cameroon v Nigeria, the Court was faced with claims
for unspecified damages by Cameroon for boundary incidents
and occupation of disputed areas by Nigeria, as well as with a
Nigerian counter-claim for damages against Cameroon. The
568
Court found the counterclaim admissible, but summarily and
unanimously dismissed both the responsibility claims and the
counterclaim on the ground that they had not been sufficiently
substantiated. 569 The Court evidently, and rightly, set a high
standard of proof of State responsibility in boundary cases.
9.8. Ihe Fisheries Jurisdiction case (Federal Republic of
Germany v Iceland), the Federal Republic of Germany sought a
declaration that it was entitled to damages for Iceland’s
568 Land and Maritime Boundary between Cameroon and Nigeria,
Order of 30 June 1999, I.C.J. Reports 1999, p. 983.
569 See e.g. Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria: Equatori al Guinea intervening), Judgment,
I.C.J. Reports 2002, p. 303, 452-3.
321harassment of Federal Republic of Germany-registered fishing
vessels and crews. The Court refused the declaration in the
following words:
“76. The documents before the Court do not
however contain in every case an indication in a
concrete form of the damages for which
compensation is required or an estimation of the
amount of those damages. Nor do they furnish
evidence concerning such amounts. In order to
award compensation the Court can only act with
reference to a concrete submission as to the
existence and the amount of each head of
damage. Such an award must be based on
precise grounds and detailed evidence concerning
those acts which have been committed, taking
into account al1 relevant facts of each incident
and their consequences in the circumstances of
the case. It is only after receiving evidence on
these matters that the Court can satisfy itself that
each concrete claim is well founded in fact and in
570
law.”
The Court declined to make “an all-embracing finding of
liability which would cover matters as to which it has only
571
limited information and slender evidence”.
9.9. If the Court had “only limited information” as to
damages in that case, in the present case it has none. Moreover
the Federal Republic of Germany had sought and obtained
provisional measures expressly enjoining the enforcement of the
570
See e.g. Fisheries Jurisdiction (Federal Republic of Germany v.
Iceland), Merits, Judgment, I.C.J. Reports 1974 , p. 175, 203-205, paras. 71-
571
Ibid., p. 205, para. 76.
32250 nm fisheries zone. 572 Further, Iceland’s conduct in defence
of its putative fisheries zone contravened a status quo agreement
between the parties and was probably wrongful independently of
the opposability of maritime zones.
9.10. Under these circumstances, there is no basis whatever for
a finding of Colombian responsibility with respect to fisheries
enforcement, still less is there any basis for Nicaragua’s absurd
“unjust enrichment” claim. Where two States disagree as to a
maritime boundary, it is counterfactual, and would be highly
counterproductive, to treat the eventual adjudicated boundary as
having existed “from the beginning” and to award damages to
the winning party in a given sector for earlier use of the disputed
resources by the other party in that sector. Even less, when the
party that has been enforcing its maritime and fisheries
jurisdiction has done so, in good faith, on the basis of a treaty-
fixed limit to its territory.
9.11. The question-begging character of Nicaragua’s claim for
a declaration can be seen from the way it is formulated:
“Colombia is not acting in accordance with her
obligations under international law by preventing
and otherwise hindering Nicaragua from
accessing and disposing of her natural resources
to the east of the 82nd meridian.” 573
In truth, Colombia has peacefully exercised maritime and
572 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland),
Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972, p. 30.
573 NR, p. 237, para. 8.
323fisheries jurisdiction over the waters of the Archipelago up to
the 82°meridian, the western limit of the Archipelago.
9.12. It should be noted that incidents only began to arise in
the area as of 1967 when Nicaragua for the first time sought to
carry out activities to the east of the limit of the San Andrés
Archipelago, as fixed by the 1930 Protocol, by granting oil
exploration permits east of the 82°W meridian in the vicinity of
Quitasueño.
9.13. For their part, all the hydrocarbon exploration activities
or fishing by Colombian vessels or vessels affiliated to
Colombian companies, have scrupulously observed the 82°W
meridian.
9.14. As pointed out in Chapter 8, for the most part,
Nicaraguan-flagged vessels have respected or complied with
Colombian laws and regulations by seeking (and being granted)
permits to fish east of the 82°W meridian. When Nicaraguan
vessels have occasionally been detected carrying out fishing
activities in areas located to the east of the 82°W meridian
without permits, Colombian authorities have abided by the
regulations and procedures in force for that type of situation.
See further Figure R-8.2. at page 289.
9.15. For these factual and legal reasons, as well as because of
its extreme vagueness and indeterminacy, Nicaragua’s request
324for a declaration should be dismissed. Pending the resolution of
the dispute over maritime delimitation, neither party is
internationally responsible simply for maintaining a claim –
whether or not that claim is vindicated in the result. 574
574 Cf. Judge ad hoc Gaja’s comment in the jurisdictional phase of the
present case: “the adoption by Colombia of a wide interpretation of the scope
of the 1928 Treaty as including maritime delimitation, even if incorrect,
cannot conceivably constitute a material breach [of that Treaty]”.
325 SUMMARY
Colombia’s sovereignty over the cays
1. The Archipelago of San Andrés is formed by the islands
of San Andrés, Providencia and Santa Catalina; the cays of
Roncador, Quitasueño, Serrana, Serranilla, Bajo Nuevo,
Alburquerque, and the group of cays of the East-Southeast,
together with appurtenant features.
2. The islands and cays of the Archipelago were considered
as a group during the colonial and post-colonial periods. The
islands of San Andrés, Providencia, Santa Catalina, Mangle
Grande (Great Corn) and Mangle Chico (Little Corn); the cays
of Roncador, Quitasueño, Serrana, Serranilla, Bajo Nuevo,
Alburquerque, East-Southeast and other adjacent islets, cays and
shoals were traditionally considered as an archipelago and were
geographically, politically, economically and historically
interrelated.
3. Pursuant to the 1803 Royal Order the San Andrés
Archipelago was an integral part of the Viceroyalty of Santa Fe
(New Granada). Colombia, the successor State, exercised
sovereignty over all the islands, islets and cays of the
Archipelago, including Roncador, Quitasueño, Serrana,
Serranilla, Bajo Nuevo, East-Southeast and Alburquerque. This
situation was recognized by third States, including Nicaragua, in
particular in its response to the Loubet Award. The only
327exception was the Nicaraguan claim to the Islas Mangles (Corn
575
Islands).
4. In the 1928/1930 Treaty, Nicaragua expressly
recognized “the full and entire sovereignty of the Republic of
Colombia over the islands of San Andrés, Providencia, Santa
Catalina and all the other islands, islets and cays that form part
of the said Archipelago of San Andrés”. For its part, Colombia
recognized Nicaraguan sovereignty over the Mosquito Coast
and the Islas Mangles (Corn Islands). That Treaty, which is still
in force, resolved the question of sovereignty as between the
Parties as to all maritime features in the Caribbean Sea, likewise
576
to the west and the east of the 82qW meridian.
5. The 82°W meridian limit was included in the 1930
Protocol at Nicaragua’s insistence, and with a view to protecting
itself against potential claims by Colombia to islets and cays off
the Nicaraguan coast and to the west of the meridian, including
the Miskito cays. The 82 qW meridian was conceived by the
signatories of the Protocol as a general limit between Colombia
and Nicaragua.
6. Although the 1928/1930 Treaty stated that the cays of
Roncador, Quitasueño and Serrana were in dispute between
Colombia and the United States, that fact bore no relation to any
claim or entitlement of Nicaragua. Colombia and the United
575
576 See CCM, paras. 4.114-4.133; above, paras. 2.10-2.11, 2.45.
See CCM, Chapter 5; above, paras. 2.53-2.69.
328States agreed on a regime for the three cays by the Olaya-
Kellogg Agreement of 10 April 1928, the terms of which were
officially communicated by Colombia to Nicaragua well before
the ratification of the 1928/1930 Treaty. Nicaragua made no
reaction, treated the dispute as settled by the 1928/1930 Treaty,
and for at least 40 years made no claim to any part of the
Archipelago.
7. Between 1969 and 2003, Nicaragua purported to claim
progressively different parts of the Archipelago. Its general
claim to the Archipelago as a whole has already been rejected
by the Court, and its serial claims to specific features are
entirely lacking in legal or historical support. In the absence of
any indicia of title or the slightest measure of effectivités, it
argues that the cays were appurtenant to the Mosquito Coast
(unless proved by Colombia to belong to the Archipelago). But
(a) this claim is inconsistent with the 1928/1930 Treaty; (b) it is
contradicted by all the available evidence; (c) it ignores
Nicaragua’s onus to substantiate its claims. Its second argument
– its claim that the cays are located on the “Nicaraguan”
continental shelf – besides being factually inaccurate and
temporally challenged (the continental shelf doctrine came far
too late to affect sovereignty over the islands) ignores the
fundamental premise that “the land dominates the sea” and not
vice-versa.
3298. The 1972 Treaty between the United States and
Colombia concerning the status of Roncador, Quitasueño and
Serrana replaced the Olaya-Kellogg Agreement of 1928.
Although the United States and Colombia put on record
diverging views over the status of Quitasueño, there was no
disagreement as to which government had actual authority over
these three cays and the surrounding waters. The subsequent
practice shows a clear and continuous acceptance by the United
States, as well as by third States including those in the
immediate region, of Colombia’s authority in the area, including
577
the waters around Quitasueño.
9. Despite Nicaragua’s characterisation of Quitasueño as a
“submerged bank”, it contains a number of islands, as that term
is defined in Article 10(1) of the 1958 Convention on the
Territorial Sea and the Contiguous Zone and in Article 121(1) of
the UNCLOS, which reflect customary international law. This
is confirmed by a further expert report by Dr Robert Smith
annexed to this Rejoinder. In any ev ent, Quitasueño as a group
of islands and low-tide elevations with a fringing reef
constituting distinctive and substantial maritime feature and as
such is capable of approp riation in international law. This has
been recognized by the 1928 Treaty. It is also capable of
generating, as a minimum, a territorial sea and contiguous zone,
and of acting as an EEZ/continental shelf basepoint. 578
577 See CCM, paras. 4.51-4.77; above, paras. 3.35-3.36.
578
See e.g., CCM, paras. 4.58(2), 4.97-4.102 ; above, Chapter 3, paras.
5.35-5.36, and for the Smith Report see Appendix 1.
33010. In short, Nicaragua has failed to make out a coherent
alternative case for sovereignty over any of the cays – its
primary case (its claim to the Archipelago as a whole) having
failed at the Preliminary Objections stage. In essentials the case
is reduced to one about maritime delimitation between the
Colombian islands and cays and Nicaragua’s easternmost
islands and cays.
The maritime boundary
11. As to the maritime boundary, in its Memorial Nicaragua
proposed a mainland-to-mainland median line which did not
effect a delimitation between the relevant coasts of the Parties
and which fell in an area where Nicaragua has no legal
entitlement.
12. Tacitly conceding this, Nicaragua’s Reply presents a new
and fundamentally different claim. Without any explanation for
its change of position, the Nicaraguan Reply now states that
Nicaragua has “decided that her request to the Court should be
579
for a continental shelf delimitation” – as if the scope of a case
once submitted to the Court could be unilaterally redefined by
the Applicant.
13. Nicaragua asks the Court to accept the proposition that it
possesses extended continental shelf rights stretching well
beyond 200 miles from its coasts. This claim is advanced
579 NR, p.12, para. 26.
331despite the facts that (a) nowhere in the western Caribbean is
there any continental shelf beyond 200 nm from the nearest
coasts; (b) even if there were any such areas, Nicaragua has
made no submission to the United Nations Annex II
Commission regarding such alleged rights; (3) the Commission
has neither considered the matter nor issued any
recommendations relating to it; (4) Nicaragua’s maritime claim
intrudes well into the area of the EEZ appurtenant to Colombia’s
(longer) mainland coast, yet Nicaragua offers no explanation for
how its alleged seabed rights could coexist with Colombia’s
unquestionable EEZ rights to the water column and seabed or
supersede Colombia’s entitlement to a 200 nautical mile
continental shelf from its territory.
14. Quite apart from formal considerations, including the
inadmissibility of a new outer continental shelf claim at this late
stage of the proceedings, Nicaragua’s new and exaggerated
claim suffers from insurmountable defects. Procedurally,
extended continental shelf claims fall to be submitted to and
considered by the Annex II Commission based on a full
submission. Nicaragua has not made such a submission.
Factually, the meagre information furnished by Nicaragua does
not begin to support any entitlement to outer continental shelf
rights. Legally, there are no areas of outer continental shelf in
this part of the Caribbean Sea because the areas concerned all lie
within 200 nautical miles of the ter ritory of other littoral States
bordering the region, including within the overlapping 200-
332nautical miles zones of Colombia’s insular and mainland
territory.
15. Nicaragua’s new claim, like its old abandoned one, falls
in areas where Nicaragua has no legal entitlement and is based
on a purported equal division alleged overlapping of physical
continental shelves that is at odds with the well established
principles and rules of international law governing maritime
delimitation reflected in the equidistance-relevant circumstances
rule.
16. As to delimitation around the Archipelago, Nicaragua
proposes that Colombia’s islands be enclaved at 3 or 12 nautical
miles, lest they act as an “impenetrable wall” against the natural
prolongation or projection of Nicaragua’s coasts, particularly its
580
mainland coast. But distant offshore islands such as these
(100-270 nautical miles away from Nicaragua’s mainland coast)
have never been enclaved either by international courts and
tribunals or in State practice. The Channel Islands decision of
1976, on which Nicaragua primarily relies, is utterly
581
incomparable.
17. In contrast, Colombia’s approach to delimitation has
been presented squarely within the established legal principles
of maritime delimitation as those principles have been
articulated by the Court and arbitral tribunals. Colombia has
580
581 NR, paras. 6.5, 6.10 and 6.12, and Chapter VI(II) generally.
See CCM, paras. 7.35-7.57; above, Chapter 7.
333shown that the area within which the maritime projections of the
Parties’ coasts meet and begin to overlap is situated in the area
lying between the islands comprising the San Andrés
Archipelago and Nicaragua’s coast – including islands – taking
into account the actual and prospective rights of third States in
the region. Colombia has then applied the equidistance-relevant
circumstances rule to the delimitation of that area using clearly
identified basepoints on the coasts of each Party to construct the
provisional equidistance line.
18. At the second stage of the pro cess, Colombia has taken
into account the relevant circumstances characterizing the case
to assess whether those circumstances confirm the equitableness
of the provisional line or call for any adjustment. In the light of
the past conduct of the Parties and the relevance of the 82°W
meridian as the western limit of the San Andrés Archipelago,
Colombia shows that an equidistance based delimitation
produces an equitable result.
19. Nicaragua’s claim neither accords with the modern
international law of maritime delimitation nor does it produce an
equitable result. Nicaragua rejects the equidistance-relevant
circumstances rule in favour of an outer continental shelf claim
which is procedurally inadmissible, legally flawed and factually
unsupported. Nicaragua’s attempt to enclave islands which lie
between 106 (Alburquerque) and 266 (Bajo Nuevo) nautical
miles from its coast is unprecedented and unsustainable.
334Nicaragua ignores the fact that Colombia has consistently
exercised jurisdiction throughout all the waters of the
Archipelago. Nicaragua also pays no attention to the presence
of third States in the region or the positions such States have
taken regarding the legal entitlements of Colombia’s islands are
entitled. Given the geographic facts, and taking into account the
conduct of the Parties and the relevance of the 82°W meridian
as a relevant circumstance, a median line (in fact drawn from
Nicaragua’s offshore islands as well as the islands and cays of
the Archipelago: see Figure R-8.3 at page 307) cannot be said
to produce a disproportionate result calling for any adjustment.
Such a line respects the legal methodology for delimitation
articulated by the Court in its jurisprudence and accords to each
Party appropriate and substantial maritime areas generated by its
relevant coasts and baselines. 582
Conclusion
20. This case is essentially about maritime delimitation. But
the issues of maritime delimitation in this case are not merely
about resources: they raise vital issues both of fidelity to the law
and the future of people. As to the law, they are about applying
the well-established principles and rules relating to maritime
delimitation. As to the future, they are about maintaining the
traditional living space of a substantial, long-established,
Colombian community, as well as preserving security in an
essential area of the south-western Caribbean.
582 See CCM, Chapters 8-9; above, Chapters 6, 8.
335 SUBMISSIONS
For the reasons set out in theCounter-Memorialand developed further in
this Rejoinder, 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 Colombia has sovereignty over all the maritime 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.
(b) That the delimitation of the exclusive economic 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 stfe Parties is measured, as
depicted on Figure 9.2 of theCounter-Memoria,land reproduced as
Figure R-8.3of this Rejoinder.
(c) That Nicaragua’s request for a Declaration (NR, pp. 240-1) is rejected.
Colombia reserves the right to supplement or amend the present
submissions.
JULIO L ONDOÑO PAREDES
Agent of Colombia
The Hague, 18 June 2010
337 VOLUME II: LIST OF APPENDICES, ANNEXES AND MAPS
APPENDICES
Appendix 1 Expert Report by Dr. Robert Smith “Mapping the Islands of
Quita(Beñoirbis, Territorial Sea, and
Contiguous Zone”, February 2010.
Appendix 2 Colombia’s Official Nautical Charting of the San Andrés
Archipelago.
ANNEXES
Annex 1 Diplomatic Note DM 14082-2000 from the Minister of Foreign
Affairs of Colombia to the Minister of Foreign Affairs of Costa Rica,
200y.9
Annex 2 Diplomatic Note DM 073-2000 from the Minister of Foreign Affairs
of Costa Rica to the Minister of Foreign Affairs of Colombia, 29
200a0.
Annex 3 Report to Congress by the Minister of Foreign Affairs of Costa Rica,
2000-2001.
Annex 4 1997 Agreement to Suppress Illicit Traffic by Sea between Colombia
and the United States of America.
MAPS
I. FIGURE IN CHAPTER 2
R-2.1 Islands Claimed by Nicaragua in its 1900 Note with regard to the
AwarLdoubet
339 II. FIGURES IN CHAPTER 3
R-3.1 Quitasueño - Islands and Low Tide Elevations Identified During Site
Visit by Doctor Smith
R-3.2 Quitasueño - 12 M Territorial Sea Limits
(Measured From All 54 Identified Features and the Fringing Reef)
III. FIGURES IN CHAPTER 4
R-4.1 Nicaragua’s Maritime Claim Divides an Area where It has No
Maritime
Entitlement
R-4.2 Nicaragua’s Encroachment on Colombia’s 200 M Entitlements
R-4.3 Nicaragua’s Claims: One More Extreme than the Other
R-4.4 200 M Maritime EntitlementsCompletely Overlap In the
Caribbeeaern
R-4.5 Continental Shelf Areas Identified In Submissions to the UN,
as of 10 June 2009
R-4.6 Japan’s Extended Continental Shelf Claim in the Southern Kyushu-
Palau
RegionRidge
R-4.7 New Caledonia’s Extended Continental Shelf Claim in the Loyalty
Ridge
& Lord Howe Rise Regions
R-4.8 New Zealand’s Extended Continental Shelf Claim Does Not
Trespass into the
200 M EEZ Entitlements of Neighboring States
R-4.9 Sri Lanka’s Extended Continenta l Shelf Claim Does Not Trespass
into the
200 M EEZ Entitlements of Neighboring States
340R-4.10 France, United Kingdom, Spain, & Ireland’s Extended Continental
Shelf Claim in the Celtic Sea & Bay of Biscay Area
IV. FIGURES IN CHAPTER 5
R-5.1a Alburquerque Cays / Serrana Cay
R-5.1b Roncador Cay / East-Southeast Cays
R-5.1c Serranilla Cay / Bajo Nuevo Cay
R-5.1dAnSanés
R-5.1e San Andrés & Providencia
R-5.2 Quitasueño Cay - Landsat V Image
R-5.3 200 M Maritime Entitlements of Colombia’s Islands
R-5.4 Relevant Area between the San Andrés Archipelago and Nicaragua
R-5.5 Central Portion of the Western Caribbean Sea
V. FIGURES IN CHAPTER 6
R-6.1 Libya – Malta
ICJ Continental Shelf Boundary Judgment: 1985
R-6.2 Greenland / Jan Mayen
ICJ Continental Shelf Boundary Judgment: 1993
R-6.3 TheMedianLine
R-6.4 The Median Line If Nicaragua’s Islands are Ignored
341VI. FIGURES IN CHAPTER 7
R-7.1 Proximity of the Islands in the San Andrés Archipelago
R-7.2 Libya – Malta
JudgJ19ent:
R-7.3 Canada – France
ArbitAa1oar2:
R-7.4 India – Maldives
BounAdgarem9ent:
R-7.5 FA rnstealia
BounAdgarement:
1983
R-7.6 India – Thailand
BounAdgarement:
1978
R-7.7 São Tomé & Príncipe
BounAdgare/ ents
EquaGtoraea:
G2a001:
R-7.8 Cape Verde – Mauritania: 2003
Cape Verde – Senegal: 1993
BounAdgarements
R-7.9 Dominican Republic – United Kingdom
BounAdgarem9ent:
R-7.10 Indonesia – Malaysia (Strait Of Malacca Area)
ContinSgrlem9ent:
VII. FIGURES IN CHAPTER 8
R-8.1 Comparison of the Median Line to the 82° W Longitude Line
342R-8.2 Colombian and Nicaraguan Naval Interdictions
R-8.3 Colombia’s Median Line Proposal
343
Rejoinder of Colombia