Memorial of Nicaragua

INTERNATIONAL COURT OF JUSTICE DISPUTE CONCERNING THEQUESTION OF THE DELIMITATION OF THE CONTINENTAL SHELF BETWEENNICARAGUA AND COLOMBIA BEYOND 200NAUTICAL MILES FROM THE NICARAGUAN COAST (NICARAGUA V.COLOMBIA)MEMORIAL OF THE REPUBLIC OF NICARAGUA 28 September 2016

INTERNATIONAL COURT OF JUSTICE
DISPUTE CONCERNING THE
QUESTION OF THE DELIMITATION OF THE CONTINENTAL SHELF BETWEEN
NICARAGUA AND COLOMBIA BEYOND 200 NAUTICAL MILES FROM THE
NICARAGUAN COAST
(NICARAGUA V. COLOMBIA)
MEMORIAL
OF THE REPUBLIC OF NICARAGUA
28 September 2016

Table of Contents
CHAPTER 1. INTRODUCTION. . 1
A. History of the Dispute. . 2
1.
The 2001 Application and the 2007 and 2011 Judgments. . 2
2.
The 2012 Judgment and the limits on its scope. . . . . . . . . . . . . . . . . .................3
3.
The 2016 Judgment. . 10
4.
The role of the CLCS and its impact on maritime delimitation
issues. . 15
5.
Colombia’s rejection of Nicaragua’s entitlement. . 18
6.
Colombia’s rejection of the Judgment and the new Nicaraguan
Application.. . 18
B. The Task of the Court. . 21
CHAPTER 2. THE APPLICABLE LAW ON THE DELIMITATION OF THE
CONTINENTAL SHELF. . 25
A. The Source of the Applicable Law. . 25
B. The Content of the Applicable Law. . 26
C. The Method of Delimitation. . 40
CHAPTER 3. THE LEGAL FRAMEWORK. NICARAGUA’S CONTINENTAL SHELF ENTITLEMENT UNDER ARTICLE 76. TECHNICAL DESCRIPTION OF CONTINENTAL SHELF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......................................47
A. Summary of Nicaragua’s Submission to the CLCS. . . . . . . . . . . . . . . . ................47
1.
Data used in the Submission. . 48
2.
Technical Details of the Submission. . 50
B. Colombia’s Continental Shelf Entitlement. . 87
1.
Entitlement derived from the Colombian mainland. . 87
2.
Entitlement derived from the Colombian islands. . 88
C. Summary of continental shelf entitlement. . 89
i
CHAPTER 4. THE RELEVANT COASTS AND THE RELEVANT AREA. . 91
A. Introduction. . 91
B. The Determination of the Relevant Coasts. . 96
1.
Nicaragua’s relevant coast. . 96
2.
Colombia’s relevant coast. . 99
C. The Determination of the Relevant Area. . 106
1.
The Relevant Area is Located between the Relevant Mainland
Coasts of the Parties. . 106
2.
The Lateral Limits of the Relevant Area. . 117
D. Conclusions. . 123
CHAPTER 5. THE DELIMITATION OF THE CONTINENTAL SHELF
BEYOND 200 NM. . 125
A. The Identification of the Provisional Delimitation Line. . 125
B. Relevant Circumstances. . 135
C. The Disproportionality Test. . 139
SUBMISSIONS. . 145
CERTIFICATION. . 147
LIST OF ANNEXES. . 151
ii
LIST OF FIGURES
1.1 Overlapping Continental shelf Entitlements. . 6
1.2 Nicaragua’s Baselines and Base Points. . 23
3.1 Regional Tectonics of the SW Caribbean. . 52
3.2 Regional Geomorphology of the SW Caribbean. . 53
3.3 Regional Geomorphology of the SW Caribbean (perspective view). . 54
3.4 Components of the continental shelf and the provisions of article 76. . 55
3.5 Regional Base of Slope Zone. . 59
3.6 Regional bathymetric profile showing the submerged prolongation
of the Nicaraguan landmass to the Hess Escarpment. . 60
3.7 Bathymetric Profiles across the Kogi and Mono Rises. . 62
3.8 Nicaragua’s Eight Foot-of-Slope Points. . 65
3.9 Base of Slope Analysis for FOS-1. . 67
3.10 Foot of Slope Analysis for FOS-1. . 69
3.11 Base of Slope Analysis for FOS-5. . 72
3.12 Foot of Slope Analysis for FOS-5. . 74
3.13 Formula Line: FOS + 60M. . 77
3.14 Constraint Lines: 350M and 2500m + 100M. . 79
3.15 Construction of the Outer Limit of the Continental Shelf. . 81
3.16 The Outer Limit of the Continental Shelf . 83
3.17 The Outer Continental Shelf in the Relevant Area. . 85
3.18 Geomorphology of the Colombian Margin. . 88
3.19 Colombia’s Continental Shelf Entitlement. . 89
4.1 SW Caribbean: Regional Geography. . 92
4.2 Bilateral Agreements and Boundaries determined by the Court. . 94
4.3 Sketch Map 6 from the Court’s Judgment in Nicaragua v Colombia. . 98
4.4 Nicaragua’s Relevant Coast. . 99
4.5 Colombia’s Relevant Coast. . 101
4.6 Relevant Coast of San Andres and Providencia. . 105
4.7 The Relevant Area in Jan Mayen. . 112
4.8 The Relevant Area in Canada v France. . 113
4.9 The Relevant Area in Bangladesh v Myanmar. . 115
4.10 The Relevant Area in Bangladesh v India . 116
4.11 The Relevant Area. . 122
iii
5.1 The Provisional Mainland-mainland Delimitation Line. . 128
5.2 Serranilla and Bajo Nuevo Cays. . 132
5.3 Roncador and East-southeast Cays. . 133
5.4 Provisional Delimitation. . 134
5.5 Continental Shelf awarded to the Channel Islands in UK v France. . 137
5.6 Final Delimitation and Disproportionality Analysis. . 141
5.7 Final Delimitation. . 144
iv
CHAPTER 1
INTRODUCTION
1.1 This case is the continuation of the Application made by Nicaragua
concerning the delimitation of its continental shelf boundary with Colombia,
which resulted in the Court’s Judgment dated 19 November 2012.
1.2 The present case was instituted by Nicaragua’s Application dated 16
September 2013. It concerns the delimitation of the boundary between, on the one
hand, that part of the continental shelf of Nicaragua that lies beyond the 200-
nautical-mile limit from the baselines from which the breadth of the territorial sea
of Nicaragua is measured, and on the other hand, the continental shelf of
Colombia.
1.3 In its Application, Nicaragua requested the Court to:
(1) determine the precise course of the boundary of the continental shelf
between Nicaragua and Colombia in accordance with the principles and
rules of international law, and
(2) indicate the rights and duties of the two States in relation to the area of
overlapping claims and the use of its resources pending the precise
delimitation of the line of the boundary
1
These proceedings are the latest in the case arising from the group of related legal issues in the territorial and maritime dispute between Nicaragua and Colombia, which was first put before the Court in 2001.1A.Historyof the Dispute 1.The 2001 Application and the 2007 and 2011 Judgments1.4In its Application dated 6 December 2001, Nicaragua asked the Court (i) to declare that the Republic of Nicaragua has sovereignty over the islands of Providencia, San Andrés and Santa Catalina and all the appurtenant islands and keys, and also over the Roncador, Serrana, Serranilla and Quitasueño keys (in so far as they are capable of appropriation), and (2) in the light of those determinations of title, to determine the course of the single maritime boundary between the areas 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.1.5In July 2003, Colombia raised preliminary objections to the jurisdiction of the Court. Colombia argued inter aliathat there was no extant dispute, the matters in issue having been settled by a treaty concluded by Colombia and Nicaragua in 1928, and that the real purpose behind Nicaragua’s Application was maritime delimitation rather than the determination of sovereignty over the maritime features. 1SeeNicaragua’s Application Instituting Proceedings in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia), 6 December 2001. 2
1.6 On 13 December 2007, the Court delivered its Judgment in respect of
Colombia’s preliminary objections.2 It upheld in part Colombia’s first preliminary
objection, deciding that the 1928 treaty had settled the question of sovereignty
over the islands of San Andrés, Providencia and Santa Catalina in favour of
Colombia, but had not settled the question of sovereignty over the other maritime
features. The Court found that it had jurisdiction to adjudicate upon the dispute
concerning sovereignty over those other maritime features, and upon the dispute
concerning maritime delimitation. Colombia’s second preliminary objection was
rejected.
1.7 Having rejected, in its Judgments dated 4 May 2011, applications by Costa
Rica3 and Honduras4 to intervene in the proceedings, the Court proceeded to hear
the merits of the case.
2. The 2012 Judgment and the limits on its scope
1.8 The Court delivered its Judgment on the merits on 19 November 2012.5
The Court found that Colombia has sovereignty over the islands of Alburquerque,
Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla,6
and proceeded to determine the line of the single maritime boundary delimitating
the continental shelf and exclusive economic zones of Nicaragua and Colombia
out to the point where it reaches the 200-nautical-mile limit from the baselines
2 Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment,
I.C.J. Reports 2007, p.83.
3 Territorial and Maritime Dispute (Nicaragua v. Colombia), Application for Permission to
Intervene, Judgment, I.C.J. Reports 2011, p. 348.
4 Ibid. p. 420.
5 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012,
p. 624.
6 Ibid. para. 251(1).
3
from which the territorial sea of Nicaragua is measured,7and to draw a single maritime boundary enclaving Quitasueño and Serrana.81.9The Court rejected Nicaragua’s request for a declaration that Colombia was in violation of international law by preventing Nicaragua from having access to naturalresources east of the 82ndmeridian,9on the ground that prior to the Court’s decision the maritime boundary had not been settled and that the Judgment had not attributed to Nicaragua the whole of the area in respect of which Nicaragua sought the declaration.101.10It is the findings in sub-paragraphs (2) and (3) of the dispositifof the 2012 Judgment that are of most relevance for the present proceedings. Those sub-paragraphs read as follows:“(2) By fourteen votes to one, Findsadmissible the Republic of Nicaragua’s claim contained in its final submission I (3) requesting the Court to adjudge and declare that “[t]he appropriate form of delimitation, within the geographical and legal framework constituted by the mainland coasts of Nicaragua and Colombia, is a continental shelf boundary dividing by equal parts the overlapping entitlements to a continental shelf of both Parties”;(3) Unanimously, Findsthat it cannot uphold the Republic of Nicaragua’s claim contained in its final submission I (3)”. 7Ibid. para. 251(4).8Ibid. para 251(5).9Ibid. para 251(6).10Ibid. para 250.1.11Sub-4
1.11 Sub-paragraph (2) refers to the area of overlapping entitlements beyond
200 nautical miles from Nicaragua’s baselines. Nicaragua is entitled under Article
76(1) of the 1982 United Nations Convention on the Law of the Sea
(‘UNCLOS’)11 to a continental shelf extending beyond 200 nautical miles from its
baselines, out as far as the outer edge of the continental margin, as defined in
Article 76. The continental margin of Colombia does not reach 200 nautical miles
from its mainland baselines, but Colombia is entitled to a continental shelf
extending to 200 nautical miles.12
1.12 The entitlements of Nicaragua and Colombia overlap, as is depicted on
Sketch-map No.2 in the Court’s 2012 Judgment, reproduced here as Figure 1.1.
Nicaragua’s final submission I (3) 13 related to the delimitation of this area of
overlap.
11 Reproduced below, at paragraph 1.15.
12 Supranote 5, para. 105.
13 Ibid. para 17.
5
Figure 1.1Overlapping Continental shelf Entitlements1.13This Mercator Projection (12° 30' N)WGS 84RICACOSTANICARAGUAHONDURASIslandPANAMACOLOMBIAJOINTAREAREGIMERoncadorSan AndrésCARIBBEAN SEASanta CatalinaEast-Southeast CaysProvidencia/COLOMBIAPANAMAfor illustrative purposes only.This sketch-map has been preparedclaimed by NicaraguaSerranaColombia / JamaicaSerranillaOuter limit of the continental shelf as claimed by NicaraguaJAMAICAQuitasueñoCOLOMBIADelimitationLine of equal delimitation as claimed by NicaraguaSketch-map No. 2:200-nautical-mile limit from Colombian mainlandBajo Nuevo12-nautical-mile enclaves around Colombian islands3-nautical-mile enclaves if a feature is found to be ColombianHONDURASNICARAGUACOSTA RICACOLOMBIACaysAlburquerqueMiskitosCaysLittle CornIslandGreat CornCOSTARICAPANAMAFigure 1.1 Overlapping Continental Shelf EntitlementsSketch map 2 from Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, p 55
6
1.13 This overlap was put squarely before the Court in a revision of
Nicaragua’s initial claim. Colombia objected during the hearing that Nicaragua’s
continental shelf claim beyond 200 nautical miles was a new claim, not implicit in
Nicaragua’s Application or Memorial, and was for that reason inadmissible.14 The
Court was “not convinced by Colombia’s contentions that this revised claim
transforms the subject-matter of the dispute brought before the Court”, 15 and
decided that Nicaragua’s claim regarding the continental shelf beyond 200
nautical miles from its baselines was admissible. 16 Sub-paragraph (2) in the
dispositif gives effect to that decision.
1.14 The Court proceeded to consider Nicaragua’s claim in relation to the
continental shelf beyond 200 nautical miles.17 Nicaragua is a party to UNCLOS,
but Colombia is not. Accordingly, the Court applied customary international law,
but accepted that the provisions of UNCLOS Article 76(1) concerning the
definition of the continental shelf reflect customary international law.18
1.15 Article 76(1) reads as follows:
“The continental shelf of a coastal State comprises the seabed and subsoil
of the submarine areas that extend beyond its territorial sea throughout
the natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured where
the outer edge of the continental margin does not extend up to that
distance.”
14 Ibid. para 107.
15 Ibid. para 109.
16 Ibid. para 112.
17 Ibid. paras.113 – 131.
18 Ibid. para 118. The Court said that “it does not need to decide whether other provisions of
Article 76 of UNCLOS form part of customary international law.”
7
1.16UNCLOS provides for the establishment of the outer limit of the continental shelf of a coastal State party beyond 200 nautical miles. Article 76 paragraphs (7)–(10) read as follows:“7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude.8. Information on the limits of the continental shelf beyond 200nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under AnnexII on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.10. The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.”1.17Rule 45 of the Rules of Procedure of the Commission on the Limits of the Continental Shelf (‘the Commission’ or ‘CLCS’) requires that an UNCLOS State Party intending to establish the outer limits of its continental shelf beyond 8
200 nautical miles from its baselines should submit to the Commission particulars
of such limits along with supporting scientific and technical data, within 10 years
of the entry into force of the Convention for that State.19
1.18 That deadline proved unfeasible for some coastal States Parties, in
particular developing countries, and it was therefore decided by the States Parties
to UNCLOS that the obligation to submit data within 10 years
“may be satisfied by submitting to the Secretary-General preliminary
information indicative of the outer limits of the continental shelf beyond
200 nautical miles and a description of the status of preparation and
intended date of making a submission in accordance with the
requirements of article 76 of the Convention and with the Rules of
Procedure and the Scientific and Technical Guidelines of the
Commission on the Limits of the Continental Shelf.”20
1.19 At the date of the hearing in the Court, Nicaragua, relying upon that
decision by the UNCLOS States Parties, had satisfied its obligation under Article
4 of UNCLOS Annex II to submit particulars of the limits of its continental shelf
by filing preliminary information. Nicaragua’s full submission was provided to
the Commission later, on 24 June 2013.
1.20 Emphasising that Nicaragua had not at the time made the full filing that
was required before the Commission could make its recommendations under
19 Rules of Procedure of the Commission on the Limits of the
Continental Shelf , UN Doc. CLCS /40/Rev.1, 17 April 2008, <
http://www.un.org/Docs/journal/asp/ws.asp?m=CLCS/40/Rev.1 >, Rule 45. For a State Party for
which the Convention entered into force before 13 May 1999, the ten-year time period is taken to
have commenced on 13 May 1999, when the Commission adopted its Scientific and Technical
Guidelines: see UN Doc. SPLOS/72, 29 May 2001.
20 See UN Doc SPLOS/183, 20 June 2008, p. 2: < https://daccessods.
un.org/TMP/8691020.01190186.html >.
9
UNCLOS Article 76(8), Colombia argued before the Court that “Nicaragua’s purported rights to the extended continental shelf out to the outer edge of the continental margin beyond 200 nautical miles have never been recognized or even submitted to the Commission”; and it said that “therefore Nicaragua has not established any entitlement to an extended continental shelf.”211.21The Court held that “since Nicaragua, in the present proceedings, has not established that it has a continental margin that extends far enough to overlap with Colombia’s 200-nautical-mile entitlement to the continental shelf, measured from Colombia’s mainland coast, the Court is not in a position to delimit the continental shelf boundary between Nicaragua and Colombia, as requested by Nicaragua …”221.22Thus, while Nicaragua’s claimin respect of the continental shelf beyond 200 nautical miles was admissible, the Court did not actually rule upon it. The question of the maritime boundary in that area was left open. It is the question of the locationof that boundary that is now before the Court.3.The 2016 Judgment1.23Nicaragua filed its Application in the present case on 16 September 2013. As stated, two claims were presented in the Application:“Nicaragua requests the Court to adjudge and declare:21Supranote 5. para 122.22Ibid. para 129.10
First: The precise course of the maritime boundary between Nicaragua
and Colombia in the areas of the continental shelf which appertain to
each of them beyond the boundaries determined by the Court in its
Judgment of 19 November 2012.
Second: The principles and rules of international law that determine the
rights and duties of two States in relation to the area of overlapping
continental shelf claims and the use of its resources, pending the
delimitation of the maritime boundary between them beyond 200 nautical
miles from Nicaragua’s coast.”
1.24 On 14 August 2013, Colombia raised five preliminary objections to the
jurisdiction of the Court. Objection (1) concerned the application of the Pact of
Bogotá ratione temporis. In objection (3)23 Colombia contended that the issues
raised in Nicaragua’s Application of 16 September 2013, had been explicitly
decided by the Court in its 2012 Judgment, which had created a res judicata and
accordingly precluded further consideration of the question by the Court. In
objection (4), Colombia argued that Nicaragua’s Application was an attempt to
appeal and revise the 2012 Judgment. Those three objections were rejected by the
Court.24
1.25 Colombia’s second preliminary objection concerned Nicaragua’s
submission that the Court has ‘continuing jurisdiction’ after its 2012 Judgment in
the Territorial and Maritime Dispute case. Colombia argued that unless the Court
expressly reserves its jurisdiction, which it did not do in that case, there is no basis
upon which it can exercise continuing jurisdiction after it has delivered its
23 This is the order in which the Court addressed the objections: see Judgment of 17 March 2016,
paragraph 17.
24 Judgment of 17 March 2016, paragraph 126.
11
judgment on the merits. The Court found in the present case that it has jurisdiction based on the Pact of Bogotá, and accordingly held that it was unnecessary to rule upon this second preliminary objection.251.26Colombia’s fifth preliminary objection was that Nicaragua’s First Request wasinadmissible because Nicaragua hadnot secured a recommendation from the Commission; and its Second Request wasinadmissible because if it were to be granted (as Nicaragua requested) at the same time as the First Request it would have no object, and that the Second Request wasa disguised request for provisional measures, and that there wasin any event no actual dispute between the Parties. 1.27The Court ruled that Nicaragua’s Second Request was inadmissible because it didnot relate to an actual dispute between the parties and didnot specify what exactly the Court wasbeing asked to decide.26Nicaragua is accordingly not pursuing its Second Request in these proceedings. 1.28The Court’s ruling in relation to Nicaragua’s First Request is of the utmost importance for the next phase of these proceedings. In order to explain its position, Nicaragua will set out its understanding of what the Court has decided in this respect, referring particularly to the Court’s reasoning in relation to Colombia’s third and fifth preliminary objections.1.29The Court began by explaining the scope of sub-paragraph 3 of the operative clause (paragraph 126) of its 2012 Judgment, in which the Court found that “it cannot uphold the Republic of Nicaragua’s claim” regarding its continental shelf beyond 200 nautical miles from its baselines. After a detailed 25Judgment of 17 March 2016, paragraph 94.26Judgment of 17 March 2016, paragraph 124.12
analysis of the Judgment the Court set out its conclusion. Its importance warrants
its quotation in extenso.
“[83.] … the Court did not take a decision on whether or not Nicaragua
had an entitlement to a continental shelf beyond 200 nautical miles from
its coast. That is confirmed by the language of paragraph 129 [sc., of the
2012 Judgment] itself. The first sentence of that paragraph states that
“Nicaragua, in the present proceedings, has not established that it has a
continental margin that extends far enough to overlap with Colombia’s
200-nautical-mile entitlement to the continental shelf, measured from
Colombia’s mainland coast”.
Not only does the reference to “the present proceedings” seem to
contemplate the possibility of future proceedings, but the Court there
speaks only of a continental margin which overlaps with the 200-
nautical-mile entitlement from the Colombian mainland. The Judgment
says nothing about the maritime areas located to the east of the line lying
200 nautical miles from the islands fringing the Nicaraguan coast,
beyond which the Court did not continue its delimitation exercise, and to
the west of the line lying 200 nautical miles from Colombia’s mainland.
Yet, the Court was, as regards these areas, faced with competing claims
by the Parties concerning the continental shelf: Nicaragua, on the one
hand, claimed an extended continental shelf in these areas, and
Colombia, on the other, maintained that it had rights in the same areas
generated by the islands over which it claimed sovereignty, and that the
Court indeed declared to be under its sovereignty.
13
84. It therefore follows that while the Court decided, in subparagraph 3 of the operative clause of the 2012 Judgment, that Nicaragua’s claim could not be upheld, it did so because the latter had yet to discharge its obligation, under paragraph 8 of Article 76 of UNCLOS, to deposit with the CLCS the information on the limits of its continental shelf beyond 200 nautical miles required by that provision and by Article 4 of Annex II of UNCLOS.85. The Court has clarified the content and scope of subparagraph 3 of the operative clause of the 2012 Judgment, taking into account the differing views expressed by the Parties on the subject. It has found that delimitation of the continental shelf beyond 200 nautical miles from the Nicaraguan coast was conditional on the submission by Nicaragua of information on the limits of its continental shelf beyond 200 nautical miles, provided for in paragraph 8 of Article 76 of UNCLOS, to the CLCS. The Court thus did not settle the question of delimitation in 2012 because it was not, at that time, in a position to do so. 86. The Court recalls that, in its Application, Nicaragua states that on 24June 2013 it provided the CLCS with “final” information. This statement has not been contested by Colombia.87. The Court accordingly considers that the condition imposed by it in its 2012 Judgment in order for it to be able to examine the claim of Nicaragua contained in final submission I(3) has been fulfilled in the present case”2727Judgment of 17 March 2016, paragraphs 83 –87.1.30Later 14
1.30 Later in its 2016 Judgment the Court reiterated that it had “held, in its
2012 Judgment, that Nicaragua had to submit such information [sc., as required
by UNCLOS Article 76(8)] as a prerequisite for the delimitation of the continental
shelf beyond 200 nautical miles by the Court.”28
4. The role of the CLCS and its impact on maritime delimitation issues
1.31 The Court considered in detail the scope of the Commission’s competence.
Noting that the Commission’s main role is to “[prevent] the continental shelf from
encroaching on the ‘Area and its resources’, which are ‘the common heritage of
mankind’ (UNCLOS Article 136)”,29 the Court said:
“110. Because the role of the CLCS relates only to the delineation of the
outer limits of the continental shelf, and not delimitation, Article 76 of
UNCLOS states in paragraph 10 that “[t]he provisions of this article are
without prejudice to the question of delimitation of the continental shelf
between States with opposite or adjacent coasts.
…
112. The procedure before the CLCS relates to the delineation of the
outer limits of the continental shelf, and hence to the determination of the
extent of the sea-bed under national jurisdiction. It is distinct from the
delimitation of the continental shelf, which is governed by Article 83 of
UNCLOS and effected by agreement between the States concerned, or by
recourse to dispute resolution procedures.”30
28 Judgment of 17 March 2016, paragraph 105.
29 Judgment of 17 March 2016, paragraph 109.
30 Judgment of 17 March 2016, paragraphs 110, 112.
15
1.32The Court acknowledged that “it is possible that the two operations [sc., delineation of the outer limit of the continental shelf, and delimitation of inter-State continental shelf boundaries] may impact upon one another”, but observed that the Commission “has … established procedures, in accordance with Annex II to UNCLOS, to ensure that its actions donot prejudice matters relating to delimitation.”311.33The Court’s conclusion on the role of the Commission in the context of delimitation disputes was clear:“The Court accordingly considers that, since the delimitation of the continental shelf beyond 200 nautical miles can be undertaken independently of a recommendation from the CLCS, the latter is not a prerequisite that needs to be satisfied by a State partyto UNCLOS before it can ask the Court to settle a dispute with another State over such a delimitation.”321.34The key points in these important passages from the 2016Judgment are, in Nicaragua’s submission, as follows:1.The area that lies east of the 200-nautical-mile limit measured from Nicaragua’s baselines, and (north)west of Colombia’s mainland has not been delimited.2.The reason that the boundary in that area has not been delimited is that Nicaragua had not (at that time) fulfilled the precondition under 31Judgment of 17 March 2016, paragraph 113.32Judgment of 17 March 2016, paragraph 114.16
UNCLOS Article 76(8) by filing its full submission with the
Commission.
3. The filing of the full submission to the Commission was a
procedural precondition to the delimitation of the boundary in that area.
4. That procedural precondition is now satisfied, and the obstacle to
the delimitation of this area by the Court has been removed. It is not
necessary for the Court to wait for the Commission to issue a
recommendation before it delimits this area.
5. The area that lies east of the 200-nautical-mile limit measured from
Nicaragua’s baselines, and within the 200-nautical-mile limit measured
from Colombia’s islands also has not been delimited.
6. The Court did not suggest that the principles applicable to the
delimitation of these undelimited areas are in any way different from the
principles that it has laid down in its case law in respect of other
continental shelf delimitation disputes that have come before it.
1.35 The way is thus now clear for Nicaragua to put before the Court the
evidence of its entitlement to continental shelf rights over the seabed beyond its
200 nautical mile limit, and insofar as that entitlement overlaps with an
entitlement of Colombia, for the Court to draw the boundary between the
continental shelves of Nicaragua and Colombia.
17
5.Colombia’s rejection of Nicaragua’s entitlement1.36Colombia does not accept that Nicaragua has any entitlement to continental shelf rights in respect of areas lying more than 200 nautical miles from Nicaragua’s baselines. In its Preliminary Objections, Colombia sought to draw a distinction between the continental shelf within 200 nautical miles of a coast, to which a coastal State is entitled ipso jure,33and the continental shelf beyond 200nautical miles and up to the edge of the continental margin, in respect of which there is “the potentiality of entitlement.”34No authority was cited for that distinction. UNCLOS Article 76 draws no such distinction between different parts of a continental shelf. Nothing in the Court’s 2012 or 2016 Judgments indicates that there is such a distinction.1.37Nicaragua has filed withthis Memorial 2 copiesof its full submission to the Commission, which contain all the scientific evidence on which it relies for its assertions concerning the geology and geomorphology of the relevant areas.356.Colombia’s rejection of the Judgment and the new Nicaraguan Application.1.38As the Court is aware, Colombia rejected the Court’s 2012 Judgment and denounced the Pact of Bogotá in response to the Court’s delimitation. 1.39On 27 November 2012, Colombia’s Minister of Foreign Affairs, María Ángela Holguín, stated: “The enemy is the Court which did not base its decision on the law, that Judgment is full of inadequacies and one reads it and cannot 33Preliminary Objections of the Republic of Colombia, August 2014, paragraph 7.6.34Preliminary Objections of the Republic of Colombia, August 2014, paragraph 7.7.35Seeletters from H.E. Carlos José Argüello Gómez to the Registrar of the ICJ, Ref: HOL-EMB-227, 28 September 2016.18
believe that the states parties that conform the Court elected those judges to
decide such an important Judgment”.36
1.40 The Foreign Minister followed this statement with a letter to the Secretary
General of the Organization of American States denouncing the Pact of Bogotá.
The letter reads in pertinent part:
“I have the honor to address Your Excellency pursuant to Article LVI of
the American Treaty on Pacific Settlement in order to give notice to the
General Secretariat of the Organization of American States, which you
head, as the successor to the Pan American Union, that the Republic of
Colombia denounces as of today the “American Treaty on Pacific
Settlement”, signed on April 30, 1948, whose instrument of ratification
was deposited by Colombia on November 6, 1968.”37
1.41 The following day, President Santos explained that Colombia’s decision to
denounce the Pact was in response to the Court’s decision on delimitation:
“I have decided that the highest national interests demand that the
territorial and maritime boundaries be fixed through treaties, as has been
the legal tradition of Colombia, and not through judgments rendered by
the International Court of Justice.
...
This is why yesterday Colombia denounced the Pact of Bogotá. Proper
notice was given to the Secretary General of the Organization of
36 “The Colombian Foreign Minister Calls The Hague an Enemy”, El Nuevo Herald, 28 November
2012 (NM, Annex 5) (“El enemigo es la Corte que no falló en derecho, ese fallo está lleno de
exabruptos, uno lo lee y no puede creer que los países que lo conforman hayan elegido esos jueces
para un fallo tan importante”.)
37 Letter from Colombia to Secretary General of the Organization of American States dated
27 November 2012 (GACIJ No.79357) (NM, Annex 1).
19
American States. ... Never again, never again will what happened through the International Court of Justice’s Judgment of 19 November happen to us again. ...The decision I have made obeys to a fundamental principle: the boundaries between states should be fixed by States themselves. Land borders and maritime boundaries between states should not be left to a Court, but rather must be fixed by States through treaties of mutual agreement”.381.42It was this repudiation by Colombia of the Court’s authority, coupled with its notice of withdrawal from the Court’s jurisdiction, that led to the filing of Nicaragua’s Application in this case on 16 September 2013. 1.43It has been reported that the Court’s 2016 Judgment in the present case was also repudiated by Colombia. According to media reports:“Colombia's President Juan Manuel Santos … declared that Colombia would take no further part in any proceedings at the ICJ in relation to the case. He also repeated Colombia's view that the ICJ's 2012 ruling was illegitimate and flawed, for which reason, he insisted, Colombia and Nicaragua should agree a bilateral treaty to resolve their territorial dispute. President Santos argued, ‘We are very clear that whatever the final result, our country's maritime limits can only be modified via an 38“Declaration of President Juan Manuel Santos on the denunciation of the Pact of Bogota”, 28November 2012 (NM, Annex 2) (http://wsp.presidencia.gov.co/Prensa/2012/Noviembre/Paginas/20121128_04.aspx). 20
international treaty’”39
1.44 The Court is able to proceed with the delimitation whether or not
Colombia refuses to participate in the proceedings. 40 Nicaragua hopes,
nonetheless, that Colombia will engage in good faith with the settlement of this
dispute by the Court.
B. The Task of the Court
1.45 Now that Nicaragua has made its full submission to the Commission and
satisfied the precondition for the exercise by the Court of its jurisdiction, the
obstacle to the completion by the Court of the continental shelf delimitation first
put before it in 2001 has been removed.
1.46 The task of the Court is the completion of the drawing of the continental
shelf boundary between Nicaragua and Colombia, in respect of those portions of
the boundary not already defined by the Court: i.e., the drawing of the boundary
in areas more than 200 nautical miles from Nicaragua’s coast.
1.47 As is explained in Chapter 5, the main focus for the delimitation exercise
is the area in which the continental shelf beyond 200 nautical miles generated by
the coast of Nicaragua overlaps with the 200 nautical miles continental shelf of
Colombia’s mainland coast. As Chapter 5 also indicates, the delimitation
involving the continental shelf of the islands of San Andrés, Providencia and
Santa Catalina is incidental to the mainland to mainland delimitation.
39 Colombia and Chile Signal Their Defiance of International Law, Telesur, 31 March 2016. <
http://www.telesurtv.net/english/opinion/Colombia-and-Chile-Signal-Their-Defiance-of-
International-Law-20160331-0024.html >
40 See Statute of the Court, Article 53.
21
1.48It was common ground between Nicaragua and Colombia in the proceedings leading to the 2012 Judgment that the provisions of UNCLOS concerning the baselines of a coastal State,its entitlement to maritime zones, the definition of the continental shelf in Article 76(1), and the provisions relating to the delimitation of the exclusive economic zone and the continental shelf reflect customary international law,41and are to be applied in this context. 1.49The boundary of Nicaragua’s 200 nautical mile exclusive economic zone is determined by three basepoints on the Nicaraguan coast. While Colombia has objected to Nicaragua’s straight baselines,42there does not appear to be any dispute concerning Nicaragua’s basepoints themselves; and the straight baselines connecting those basepoints are not relevant for the purposes of this delimitation.The three basepoints are depicted on Figure 1.3, andtheir coordinates are listed in Table 1.1.,below.Table 1.1 Coordinates of Nicaragua’s (Relevant) BasepointsLatitudeLongitudeName14° 32’ 41.4” N82° 34’ 20.0” WNee Reef14° 19’ 10.1” N82° 35’25.3” WLondon Reef12° 16’ 55.5” N82° 57° 54.0” WLittle Corn IslandCoordinates are referred to WGS8441Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012,p.624, paragraph 114.42Seethe letter from the Minister of Foreign Affairs of Colombia to the Secretary-General, Ref. S-GACIL-13-044275, 1 November 2013 ( NM, Annex 4), available at <http://www.un.org/depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOSIT/communicationsredeposit/mzn99_2013_col.pdf>Colombia also made a point in the letter concerning the non-opposability of the basepoints to States that are not parties to UNCLOS; but it did not object to the basepoints, in contrast to the basepoints.22
Figure 1.2 Nicaragua's Baselines and Base Points
StraightbaselineNicaragua 200MLittle Corn IslandNee ReefLondon Reef75°W80°W10°N15°NAlburquerqueCaysEast Southeast CaysSan AndrésProvidenciaQuitasueñoCaySerrana CayRoncador CaySerranillaBajo NuevoMiskitoCaysCornIslandsMonkey PtPunta CastillaPuerto LimonPunta MonaAlmiranteS CatalinaGolfo deMorrosquilloCartagenaBarranquillaCabo de la AgujaRiohachaC Graciasà DiosGolfo de los MosquitosCabo de la VeraPunta GallinasPunta FaroPunta de la GaritoPunta CanoasP San BlasColonPunta BarúNICARAGUACOLOMBIACOSTA RICAPANAMAVENEZUELA0100200 MFigure 1.2 Nicaragua’s Baselines and Base Points
23
1.50The remaining chapters of this Memorial set out Nicaragua’s case concerning the delimitation. Chapter 2 addresses the question of the applicable law and explains the legal principles that govern the delimitation. Chapter 3 presents the physical facts thatare relevant to the delimitation, explaining the geography and geomorphology of the area. Chapter 4 explains what are, in the analytical framework developed by the Court in its jurisprudence, the relevant coasts and the relevant area, with reference to which the delimitation is to be effected. Chapter 5 sets out Nicaragua’s submissions on the precise course of the maritime boundary. 24
CHAPTER 2
THE APPLICABLE LAW ON THE DELIMITATION OFTHE
CONTINENTAL SHELF
2.1 The purpose of the present Chapter is to identify the source (A.) and
content (B.) of the law applicable to the present dispute as well as the method of
delimitation to be followed (C.). This method will be developed and applied in
Chapter 5. In a nutshell, Nicaragua submits that the applicable law is customary
international law as reflected in Articles 76, 83 and 121 of UNCLOS and in the
case-law of international courts and tribunals.
A. The Source of the Applicable Law
2.2 The issue of the source of the law applicable between the Parties has been
already discussed and decided in the case concerning Territorial and Maritime
Dispute (Nicaragua v. Colombia). The legal situation of the Parties has not
changed since the Judgment of 19 November 2012. Accordingly, the Court’s
findings are applicable mutatis mutandis in the present case.
2.3 Nicaragua is a Party to the 1982 UNCLOS, which it signed on 9 December
1984 and ratified on 3 May 2000. 43 In accordance with Article 308(2) of
UNCLOS, the Convention entered into force for Nicaragua on 2 June 2000.44 For
its part, Colombia is a Party to the 1958 Geneva Convention on the Continental
Shelf – to which Nicaragua is not a Party – but not to UNCLOS. Consequently, as
the Court noted in its 2012 Judgment, “since Colombia is not a party to UNCLOS,
only customary international law may apply in respect to the maritime
43 http://www.un.org/Depts/los/reference_files/status2010.pdf
44 Article 308(2) provides that “[f]or each State ratifying or acceding to this Convention after the
deposit of the sixtieth instrument of ratification or accession, the Convention shall enter into force
on the thirtieth day following the deposit of its instrument of ratification or accession […]”.
25
delimitation requested by Nicaragua.”45Both Parties agreed with that conclusion.462.4Since the Judgment of 19 November 2012, Nicaragua has not denounced the 1982 UNCLOS and Colombia hasnot signed, let alone ratified,it. Therefore, like in the Territorial and Maritime Dispute, “the law applicable in the [present] case, which is between a State party to UNCLOS (Nicaragua) and a non-party State (Colombia), iscustomary international law.”47B. The Content of the Applicable Law2.5In the 2012 Judgment, the Court explained that it“considersthat the definition of the continental shelf set out in Article 76, paragraph 1, of UNCLOS forms part of customary international law.”48The Court also noted that“[t]he Parties are also agreed that several of the most important provisions of UNCLOS reflect customary international law. In particular, they agree that the provisions of Articles 74 and 83, on the delimitation of the exclusive economic zone and the continental shelf, and Article 121, on the legal régime of islands, are to be considered declaratory of customary international law.”4945I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.Colombia), Reports 2012, p. 666, para. 114. See also, ibid., para. 118 and pp. 673-674, paras. 137-139. Seealso Judgment, 17 March 2016, Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v.Colombia),para. 78.46Ibid. Seealso the Counter-Memorial of Colombia in the case concerning Territorial and Maritime Dispute (Nicaragua v.Colombia), 11 November 2008, Vol. I, pp. 305-306, paras. 3-4and the Reply of Nicaragua in that same case, 18 September 2009, Vol. I, pp. 63-64, paras. 2.4-2.5.47Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v.Colombia).48I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.Colombia), Reports 2012, p. 666, para. 118.49Ibid., pp. 673-674, para. 138.2.6Article 26
2.6 Article 74 is irrelevant in the present case since it deals with the
delimitation of the economic exclusive zone, a task that has been completed by
the Court in its 2012 Judgment.50
2.7 Article 76 concerns the “Definition of the continental shelf”. It reads as
follows:
“1. The continental shelf of a coastal State comprises the seabed and
subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer edge
of the continental margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured where
the outer edge of the continental margin does not extend up to that
distance.
2. The continental shelf of a coastal State shall not extend beyond the
limits provided for in paragraphs 4 to 6.
3. The continental margin comprises the submerged prolongation of the
land mass of the coastal State, and consists of the seabed and subsoil of
the shelf, the slope and the rise. It does not include the deep ocean floor
with its oceanic ridges or the subsoil thereof.
4. (a) For the purposes of this Convention, the coastal State shall
establish the outer edge of the continental margin wherever the margin
extends beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured, by either:
(i) a line delineated in accordance with paragraph 7 by reference to the
outermost fixed points at each of which the thickness of sedimentary
rocks is at least 1 per cent of the shortest distance from such point to the
foot of the continental slope; or
(ii) a line delineated in accordance with paragraph 7 by reference to fixed
points not more than 60 nautical miles from the foot of the continental
slope.
50 Colombia does not comply with this decision – but this is not the subject-matter of the present
case.
27
(b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base.5. The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4(a)(i) and(ii), either shall not exceed 350nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100nautical miles from the 2,500metre isobath, which is a line connecting the depth of 2,500metres.6. Notwithstanding the provisions of paragraph5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350nautical miles from the baselines from which thebreadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60nautical miles in length, connecting fixed points, defined bycoordinates of latitude and longitude.8. Information on the limits of the continental shelf beyond 200nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under AnnexII on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continentalshelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, includinggeodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.10. The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.”28
2.8 In its 2012 Judgment, the Court acknowledged the customary character of
paragraph 1 of Article 76, but considered that “it d[id] not need to decide whether
other provisions of Article 76 of UNCLOS form part of customary international
law.”51
2.9 At the end of the oral hearings on the Merits in the Territorial and
Maritime Dispute (Nicaragua v. Colombia) case, Judge Bennouna asked the
Parties whether
“the rules laid down in Article 76 of the 1982 United Nations Convention
on the Law of the Sea concerning the determination of the outer limit of
the continental shelf beyond 200 nautical miles [can] today be considered
as rules of customary international law?”52
2.10 It is convenient to fully reproduce Nicaragua’s answer, which reflects its
views in some detail as to the law applicable to the delineation of the continental
shelf:
“Factual background
1. Nicaragua considers that the definition of the continental shelf set out
in Article 76 (1) - (7) of the 1982 United Nations Convention on the Law
of the Sea ('UNCLOS' or 'the Convention') has the status of a rule of
customary international law, and not only of a rule of treaty law.
Nicaragua holds this view for the following reasons:
2. The automatic appurtenance of the continental shelf was established by
the Court in the North Sea Continental Shelf cases.53 The Court said:
‘19. ... the doctrine of the just and equitable share appears to be
wholly at variance with what the Court entertains no doubt is the
most fundamental of all the rules of law relating to the continental
shelf, enshrined in Article 2 of the 1958 Geneva Convention,
though quite independent of it, namely that the rights of the coastal
State in respect of the area of continental shelf that constitutes a
51 I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Reports 2012, p. 666, para. 118.
52 CR 2012/17, 4 May 2012, p. 37.
53 Note 1: “ICJ Reports 1969, p. 3.”
29
natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right.’543. The Court explicated this principle, painting out that the greater proximity of an area of seabed to one State rather than another had no necessary connection with the entitlement to that area,55and explaining that:‘43. More fundamental than the notion of proximity appears to be the principle-constantly relied upon by all the Parties of the natural prolongation or continuation of the land territory or domain, or land sovereignty of the coastal State, into and under the high seas, via the bed of its territorial sea which is under the full sovereignty of that State. There are various ways of formulating this principle, but the underlying idea, namely of an extension of something already possessed, is the same, and it isthis idea of extension which is, in the Court’s opinion, determinant. Submarine areas do not really appertain to the coastal State because –or not only because –they are near it. They are near it of course; but this would not suffice to confer title, any more than, according to a well-established principle of law recognized by both sides in the present case, mere proximity confers per se title to land territory. What confers the ipso juretitle which international law attributes to the coastal State in respect of its continental shelf, is the fact that the submarine areas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion, –in the sense that, although covered with water, they are a prolongation or continuation of that territory, an extension of it under the sea. From this it would follow that whenever a given submarine area does not constitute a natural –or the most natural –extension of the land territory of a coastal State, even though that area may be closer to it than it is to the territory of any other State, it cannot be regarded as appertaining to that State; –or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarine area concerned is to be regarded as a natural extension, even if it is less close to it.’5654Note 2: “idem, p. 3, at paragraph 19.”55Note 3: “idem, p. 3, at paragraphs 39-42.”56Note 4: “idem, p. 3, at paragraph 43.”30
4. The doctrine of automatic appurtenance supposes that there is a
determinable area to which the doctrine applies. That area was defined by
the Court in terms of the natural prolongation of the State’s land territory
under the sea. That concept was regarded by the Court as a rule of
customary international law reflected or crystallized in Articles 1-3 of the
1958 Convention on the Continental Shelf.57
5. The Third United Nations Conference on the Law of the Sea (‘the
Conference’) took up the concept of ‘natural prolongation’ as one of two
bases for the definition of the continental shelf, the other being a distance
criterion. Developments in the Conference are summarized in volume II
of the Virginia Commentary, at pp. 825-899.
6. The key points that are evident from the record of the Conference are:
i. the limits of the continental shelf were regarded as insufficiently
precisely defined in 1969;58
ii. the Conference devoted sustained and focused effort to the task of
defining the limits of the continental shelf;59
iii. throughout its work the Conference distinguished between, on the one
hand, the continental shelf or ‘natural prolongation’ or ‘continental
margin’ or ‘continental shelf, slope and rise’, which is under national
jurisdiction, and on the other hand the deep sea-bed beyond national
jurisdiction;60
iv. the terms ‘natural prolongation’ and ‘continental margin’ and
‘continental shelf, slope and rise’ were used without any clear distinction
being drawn between them to describe the ‘physical’ submarine area over
which national jurisdiction exists (as opposed to the area defined by
distance from the shore).
v. In 1975, seven years before the Conference adopted its final text, it
was proposed by the USA that the limits of the continental margin should
57 Note 5: “idem, p. 3, at paragraph 63.”
58 Note 6: “See UNGA resolution 2754A (XXIV), 15 December 1969.”
59 Note 7: “Virginia Commentary, paragraphs VI.6-VI.14, 76.1-76.17.”
60 Note 8: “idem.”
31
be defined by either (a) a formula linked to the nature of the seabed sedimentary rocks, or (b) fixed points not more than 60 nm from the foot of the continental slope;61and in 1976 that approach was given clear and detailed definition in a draft Article proposed by Ireland.62vi. the alternative definitions in the Art. 76 (4) were intended to enable States to choose the ‘foot-of-slope (‘FOS’) +60 nm’ line in definition (b) if they wished, for example where the geological data necessary for the geological definition (a) were not available;63vii. the Article 76 (4) alternative definitions were included by consensus in subsequent drafts of the Convention, and the final text was adopted in 1982 by a vote of 130 to 4 with 17 abstentions.7. The ‘FOS + 60nm’ definition, which is the applicable part of the definition in the present case, was included (along with the alternative ‘thickness of sedimentary rocks’ definition) in the UNCLOS as Article 76(4)(a)(ii). In 1982, 119 delegations (including Colombia) signed the Convention. As of 10 May 2012, 162 States or entities are Parties to the Convention. Legal argument8. The purpose of Article 76, particularly paragraphs (4)-(7), is to limit64and give greater precision to the definition of the continental shelf appertaining to each coastal State.9. It is universally accepted that each coastal State has an entitlement to continental shelf rights over the natural prolongation of its land territory to the outer edge of its continental margin, and there is in State practice no other definition of the continental margin that contradicts or competes with the definition set out in Article 76 paragraphs (4)-(7).10. State practice shows that this definition, and no other, is generally supported. The website of the UN Department for Ocean Affairs and the Law of the Sea carries the legislation of 151 States.65Of those 151 States, approximately 90 have legislation relevant to the continental shelf 61Note 9: “Virginia Commentary, p.848, paragraph 76.6.”62Note 10: “idem, p. 852, paragraph 76.7.”63Note 11: “idem, pp. 855-857, paragraph 76.8-76.10.”64Note 12: “SeeIreland's comments introducing the Irish proposal at the Conference: Virginia Commentary, pp. 855-856, paragraph 76.9.”65Note 13: “http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/index.htm.”32
and its outer limits: the approximation is necessary because some
references to the continental shelf are oblique, and some laws are not
readily available.
11. Of those 90 or so States, some 6 merely provide for delimitation of
their continental shelf on the basis of agreements with neighbouring
States (eg Croatia, Bulgaria, Estonia). It appears that approximately 50 of
the remaining States adopt in their domestic law a definition of the
continental shelf that is in line with 76(1) UNCLOS, referring to a
continental margin; some go further in defining that margin in line with
76(3) UNCLOS; some refer to the provisions of Art 76 UNCLOS in
general terms; and at least 3, including a State that has neither signed nor
ratified the UNCLOS (Ecuador), refer to further detailed criteria under
the provisions of Article 76 (5)-(6).
12. A further 19 States adhere to the ‘200m isobath + exploitability’
criterion used in Article 1 of the 1958 Continental Shelf Convention or
simply to an exploitability criterion; but 17 of those have signed or
ratified UNCLOS, and some or all of them may either have adopted
legislation to implement UNCLOS domestically, or have a legal system
which gives direct effect to treaties. Further, 8 of the 19 have made
submissions to the CLCS.
13. A further 16 States limit their assertions of jurisdiction over the
continental shelf to 200 nm. But 14 of those have signed or ratified
UNCLOS, and some or all of them may either have adopted legislation to
implement UNCLOS domestically, or have a legal system which gives
direct effect to treaties. Further, 7 of the 16 have made submissions to the
CLCS.
14. The conclusion is that more than 80 States of the 90 that have
continental shelf legislation appear to accept the definition in Article 76
(4) - (7) either explicitly in their laws or implicitly by their acceptance of
the UNCLOS.
15. Finally, of all remaining States that have no (published) legislation on
the continental shelf, 28 have made submissions to the CLCS, which
indicates their acceptance of the provisions in Article 76 (4)-(7).
16. Even non-Parties to UNCLOS have explicitly accepted this
definition. For example, in 1987 the USA stated that:
33
‘... the proper definition and means of delimitation in international law are reflected in Article 76 of the 1982 United Nations Convention on the Law of the Sea. The United States has exercised and shall continue to exercise jurisdiction over its continental shelf in accordance with and to the full extent permitted by international law as reflected in Article 76, paragraphs (1), (2) and (3). At such time in the future that it is determined desirable to delimit the outer limit of the continental shelf of the United States beyond two hundred nautical miles from the baseline from which the territorial sea is measured, such delimitation shall be carried out in accordance with paragraphs (4), (5), (6) and (7).’66It will be noted that the USA does not consider compliance with Article 76(8) to be necessary in this context.17. The implementation of article 76 has been the subject of the annual United Nations General Assembly Resolutions on oceans and law of the sea. The Resolutions underline the significance of article 76 for the international community at large. The Resolution of December 2011 observes among others:‘Noting the importance of the delineation of the outer limits of the continental shelf beyond 200 nautical miles and that it is in the broader interest of the international community that coastal States with a continental shelf beyond 200 nautical miles submit information on the outer limits of the continental shelf beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf ("the Commission"), and welcoming the submissions to the Commission by a considerable number of States Parties on the outer limits of their continental Shelf beyond 200 nautical miles, that the Commission has continued to fulfil its role, including of making recommendations to coastal States, and that the summaries of recommendations are being made publicly available.’6718. Further, non-UNCLOS-Party States also have a role in the work of the Commission: they are informed of submissions and have the right to comment upon them.68The following States have availed themselves of 66Note 14: “J. Ashley Roach and Robert W. Smith, United States Responses to Excessive Maritime Claims, (2nd ed., 1996), pp. 201-202.”67Note 15: “UNGA Resolution A/RES/66/231 adopted on 24 December 2011 (available at http://daccess-ddsny.un.org/doc/UNDOC/GEN/Nl l/472/68/PDF/Nl 147268.pdf?OpenElement).” The last of these resolutions was adopted on 23 December 2015 (Res. 70/235 -http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/70/235).68Note 16: “Rule 50 of the Rules of Procedure of the CLCS specifies that: “The Secretary-General shall, through the appropriate channels, promptly notify the Commission and all States Members of the United Nations, including States Parties to theConvention, of the receipt of the submission, 34
the possibility to submit comments, while not being a Party to the
Convention: Canada (on the Submission of the Russian Federation);
Denmark (on the Submission of the Russian Federation); Peru (on the
Preliminary Information submitted by Chile); Timor-Leste (on the
submission of Australia); the United States (on the submissions of
Argentina, Australia, Brazil, Cuba, Japan and the Russian Federation)
and Venezuela (on the submissions of Barbados and Guyana). All
indications point to the conclusion that the States Parties, non-Party
States and the Commission consider that Article 76 paragraphs (4)-(7)
are entirely consistent with customary international law.
19. The very wide ratification of UNCLOS, with the result that Article 76
paragraphs (4)-(7) became binding for States Parties as a matter of treaty
law, “does not mean that they cease to exist and to apply as principles of
customary law, even as regards countries that are parties” 69 to the
UNCLOS.
20. When a State claims to establish or invoke a specific legal institution,
such as a continental shelf or EEZ or contiguous zone, it must be
presumed to do so in the terms in which that institution is established and
/ or generally understood in international law. A fortiori, when customary
international law automatically attributes a continental shelf to a State, it
necessarily does so within the meaning that customary international law
gives to the concept of the continental shelf.
21. The definition in Article 76 is the only definition that has general
support in international law. There is no indication that States have
sought to create any alternative or competing definition of the continental
shelf.”70
and make public the executive summary including all charts and coordinates referred to in
paragraph 9.1.4 of the Guidelines and contained in that summary, upon completion of the
translation of the executive summary referred to in rule 47, paragraph 3.” (emphasis added)
According to the modus operandi of the Commission, a State in presenting its submission shall
comment on “any note verbale from other States regarding the data reflected in the executive
summary including all charts and coordinates as made public by the Secretary-General in
accordance with rule 50”: CLCS Rules, Annex III, section II.2(a)(v).”
69 Note 17: “Nicaragua v United States of America, ICJ Reports 1984, p. 392, paragraph 73.”
70 “Written reply of the Republic of Nicaragua to the question put by Judge Bennouna at the public
sitting held on the afternoon of 4 May 2012”, 11 May 2012 (http://www.icjcij.
org/docket/files/124/17752.pdf).
35
2.11To summarize, Nicaragua submits that Article 76, as a whole, is customary,thus therules it contains are legally binding on non-Party States as well as on Parties to the UNCLOS.2.12For its part, Article 83 of UNCLOS concerns the “Delimitation of the continental shelf between States with opposite or adjacent coasts”.71“1. The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.3. Pending agreement as provided for in paragraph 1, the States concerned, in a spirit of understanding and cooperation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.4. Where there is an agreement in force between the States concerned, questions relating to the delimitation of the continental shelf shall be determined in accordance with the provisions of that agreement.”2.13The Court acknowledged for the first time the customary status of the rules embodied in Article 83 in the Jan Mayencase. In its 1993 Judgment, the Court stated that:“That statement of an ‘equitable solution’ as the aim of any delimitation process reflects the requirements of customary law as regards the delimitation both of continental shelf and of exclusive economic zones.”7271I.C.J., Judgment, 19 November 2012, Territorial and MaritimeDispute (Nicaragua v.Colombia), Reports 2012, p. 673, para. 138.72I.C.J., Judgment, 14 June 1993, Maritime Delimitation in the Area between Greenland and Jan Mayen, Reports 1993, p. 59, para. 48.2.14The 36
2.14 The Court confirmed this position in its two most recent Judgments
concerning the delimitation of the continental shelf. 73 In its 2012 Judgment in
Nicaragua v. Colombia, the Court recalled that it
“has recognized that the principles of maritime delimitation enshrined in
Articles 74 and 83 reflect customary international law (Maritime
Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 91, paras.
167 et seq.).”74
2.15 Similarly, in the Peru v. Chile case, where Peru was not a Party to
UNCLOS, the Court applied the principles embodied in Article 83 of the
UNCLOS to the delimitation of the continental shelf because it “reflect[s]
customary international law.”75
2.16 Therefore, the law applicable to the delimitation of the continental shelf in
the present case is customary international law as enshrined in Article 83,
paragraph 1, of UNCLOS.
2.17 The principles embodied in Article 121 of UNCLOS are also to be applied
in the present case insofar as some maritime features have a role to play in the
delimitation.76 It reads as follows:
“1. An island is a naturally formed area of land, surrounded by water,
which is above water at high tide.
73 I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Reports 2012, p. 674, para. 139 and Judgment, 27 January 2014, Maritime Dispute
(Peru v. Chile), Reports 2014, p. 65, para. 179.
74 I.C.J., Judgment, 19 November 2012, id., p. 674, para. 139.
75 I.C.J., Judgment, 27 January 2014, Maritime Dispute (Peru v. Chile), Reports 2014, p. 65,
para. 179.
76 See paras. 3.79-3.80 and para.4.18.
37
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.”2.18As the Court noted in its 2012 Judgment, in Qatar v. Bahrain,“it treated the legal definition of an island embodied in Article 121, paragraph 1, as part of customary international law[77][…]. It reached the same conclusion as regards Article 121, paragraph 2[78][…]. The Judgment in the Qatar v. Bahraincase did not specifically address paragraph 3 of Article 121...”792.19In the 2012 Judgment, the Court further observed“thatthe entitlement to maritime rights accorded to an island by the provisions of paragraph 2 is expressly limited by reference to the provisions of paragraph 3. By denying an exclusive economic zone and a continental shelf to rocks which cannot sustain humanhabitation or economic life of their own, paragraph 3 provides an essential link between the long‑established principle that ‘islands, regardless of their size, ... enjoy the same status, and therefore generate the same maritime rights, as other land territory’ (ibid.[referring to Qatar v. Bahrain])and the more extensive maritime entitlements recognized in UNCLOS and which the Court has found to have become part of customary international law. The Court therefore considers that the legal régimeof islands set out in UNCLOS Article 121 forms an indivisible régime, all 77ICJ, Judgment, 16 March 2001, Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits,I.C.J. Reports 2001, p. 91, para. 167 and p. 99, para. 195.78Ibid., p. 97, para. 185.79I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.Colombia), Reports 2012, p. 674, para. 139.38
of which (as Colombia and Nicaragua recognize) has the status of
customary international law.”80
2.20 The remaining (and crucial) question is whether or not Article 83 and
Article 121 of UNCLOS are equally applicable to the delimitation of the
continental shelf within and beyond 200 nautical miles.
2.21 In its 2006 Award, the Arbitral Tribunal in the Barbados/Trinidad and
Tobago case made clear that “there is in law only a single ‘continental shelf’
rather than an inner continental shelf and a separate extended or outer continental
shelf.” 81 The ITLOS shares this position. In its 2012 Judgment in the
Bangladesh/Myanmar case, the Tribunal explained that Article 76(1) of
UNCLOS, which reflects customary international law82, “embodies the concept of
a single continental shelf.”83 Indeed, Article 76(1) provides that:
“The continental shelf of a coastal State comprises the seabed and subsoil
of the submarine areas that extend beyond its territorial sea throughout
the natural prolongation of its land territory to the outer edge of the
continental margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured where
the outer edge of the continental margin does not extend up to that
distance.”
80 I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Reports 2012, p. 674, para. 139.
81 Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the
delimitation of the exclusive economic zone and the continental shelf between them, Award,
11 April 2006, R.I.A.A., Vol. XXVII, pp. 208-209, para. 213.
82 I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Reports 2012, p. 666, para. 118.
83 ITLOS, Judgment, 14 March 2012, Dispute concerning delimitation of the maritime boundary
between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), para. 361. See
also Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, Award, 7 July
2014, para. 177.
39
2.22Article 83 of UNCLOS, the text of which is reproduced at paragraph 2.12above, confirms the unity of the continental shelf. Asthe ITLOS noted in its 2012 Judgment in Bangladesh/Myanmar,“article 83 of the Convention addresses the delimitation of the continental shelf between States with opposite or adjacent coasts without any limitation as to area. It contains no reference to the limits set forth in article 76, paragraph 1, of the Convention.”84It logically concluded that “Article 83 applies equally to the delimitation of the continental shelf both within and beyond 200 nm.”85The Arbitral Tribunal in the Bangladesh v. Indiacase reached the same conclusion in its 7 July 2014 Award. 862.23In the absence of a distinction between two parts of the continental shelf, one inner, lyingwithin 200 nautical miles, and one outer, lyingbeyond 200nautical miles, there must be no distinction in the applicable law. Therefore, in the present case, as in the Bay of Bengal cases,“the law applicable to the delimitation of the continental shelf beyond 200 nm is article 83 of the Convention, which provides that the delimitation ‘shall be effected by agreement on the basis of international law, as referred to in article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution’.”87C. The Method of Delimitation2.24As is apparent from the text of Article 83(1) of UNCLOS, this provision“sets a goal to be achieved, but is silent as to the method to be followed to achieve it. It restricts itself to setting a standard, and it is left to States 84ITLOS, Judgment, 14 March 2012, Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmarin the Bay of Bengal (Bangladesh/Myanmar), para. 454 –emphasis added.85Ibid.86Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India,Award, 7 July 2014, paras. 438 and 456.87Ibid, para. 438.40
themselves, or to the courts, to endow this standard with specific
content.”88
2.25 The I.C.J. and other courts and tribunals have fulfilled this task. Their
jurisprudence constitutes an “acquis judiciaire […which] should be read into
articles 74 and 83.”89 The ITLOS aptly summarized the role of the jurisprudence
of the last 30 years:
“226. International courts and tribunals have developed a body of case
law on maritime delimitation which has reduced the elements of
subjectivity and uncertainty in the determination of maritime boundaries
and in the choice of methods employed to that end.
[…]
228. Over time, the absence of a settled method of delimitation prompted
increased interest in enhancing the objectivity and predictability of the
process. The varied geographic situations addressed in the early cases
nevertheless confirmed that, even if the pendulum had swung too far
away from the objective precision of equidistance, the use of
equidistance alone could not ensure an equitable solution in each and
every case. A method of delimitation suitable for general use would need
to combine its constraints on subjectivity with the flexibility necessary to
accommodate circumstances in a particular case that are relevant to
maritime delimitation.”90
2.26 This “standard method”91 has been “adopted by international courts and
tribunals in the majority of the delimitation cases that have come before them”,92
88 I.C.J., Judgment, 2 June 1985, Continental Shelf (Libyan Arab Jamahiriya/Malta), Reports
1985, pp. 30-31, para. 28. See also ITLOS, Judgment, 14 March 2012, Dispute concerning
delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal
(Bangladesh/Myanmar), para. 225.
89 Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, Award, 7 July
2014, para. 339.
90 ITLOS, Judgment, 14 March 2012, Dispute concerning delimitation of the maritime boundary
between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), paras. 226, 228-
229 and 235.
91 I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Reports 2012, p, 698, para. 199.
92 ITLOS, Judgment, 14 March 2012, Dispute concerning delimitation of the maritime boundary
between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), para. 235.
41
including in the first Nicaraguav.Colombiacase, in which the Courtapplied it to the delimitationof thecontinental shelf up to 200 nautical miles. In its 2012 Judgment, the Court described the method as follows:“190. The Court has made clear on a number of occasions that the methodology which it will normally employ when called upon to effect a delimitation between overlapping continental shelf […] entitlements involves proceeding in three stages (ContinentalShelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 46, para. 60; Maritime Delimitation in the Black Sea (Romania v.Ukraine), Judgment, I.C.J. Reports 2009, p. 101, paras. 115-116).191. In the first stage, the Court establishes a provisional delimitation line between territories (including the island territories) of the Parties. In doing so it will use methods that are geometrically objective and appropriate for the geography of the area. This task will consist of the construction of an equidistance line, where the relevant coasts are adjacent, or a median line between the two coasts, where the relevant coasts are opposite, unless in either case there are compelling reasons as a result of which the establishment of such a line is not feasible(see Territorialand Maritime Delimitation between Nicaragua and Honduras inthe Caribbean Sea (Nicaragua v.Honduras), Judgment, I.C.J. Reports2007 (II), p. 745, para. 281) […].192. In the second stage, the Court considers whether there are any relevant circumstances which may call for an adjustment or shifting of the provisional equidistance/median line so as to achieve an equitable result. If it concludes that such circumstances are present, it establishes a different boundary which usually entails such adjustment or shifting of the equidistance/median line as is necessary to take account of those circumstances (Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment,I.C.J. Reports 1985, p. 47, para. 63; Maritime Delimitation in the BlackSea (Romania v.Ukraine), Judgment, I.C.J. Reports 2009, pp. 102‑103, paras. 119‑121). Where the relevant circumstances so require, the Court may also employ other techniques, such as the construction of an enclave around isolated islands, in order to achieve an equitable result.193. In the third and final stage, the Court conducts a disproportionality test in which it assesses whether the effect of the line, as adjusted or 42
shifted, is that the Parties’ respective shares of the relevant area are
markedly disproportionate to their respective relevant coasts.”93
2.27 The preference for this method can easily be explained:
- first, it ensures a reasonable measure of transparency and
predictability for the Parties; and
- second, it provides enough flexibility for various relevant factors
to be taken into consideration in the delimitation process, in order to
achieve an equitable result as required by Article 83(1) of UNCLOS.
2.28 The standard method was applied by the ITLOS in the Dispute concerning
delimitation of the maritime boundary between Bangladesh and Myanmar in the
Bay of Bengal (Bangladesh/Myanmar)94 and by the Annex VII Arbitral Tribunal
in the Bay of Bengal Maritime Boundary Arbitration between Bangladesh and
India.95
2.29 The Bay of Bengal cases are of particular relevance since they are the only
cases in which the continental shelf beyond 200 nautical miles has been delimited
by an international court or arbitral tribunal. In both cases, these tribunals applied
the same method within and beyond 200 nautical miles.96
2.30 In the Bangladesh/Myanmar, the ITLOS found that
93 Ibid., pp. 695-696, paras. 190-193 – emphasis added.
94 ITLOS, Judgment, 14 March 2012, Dispute concerning delimitation of the maritime boundary
between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), para. 239.
95 Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, Award, 7 July
2014, para. 345.
96 See ITLOS, Judgment, 14 March 2012, Dispute concerning delimitation of the maritime
boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), para.
455 and Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, Award, 7
July 2014, para. 438.
43
“thedelimitation method to be employed in the present case for the continental shelf beyond 200 nautical miles should not differ from that within 200 nm […].”97The Tribunal justified its decision as follows:“This method is rooted in the recognition that sovereignty over the land territory is the basis for the sovereign rights and jurisdiction of the coastal State with respect to both the exclusive economic zone and the continental shelf. This should be distinguished from the question of the object and extent of those rights, be it the nature of the areas to which those rights apply or the maximum seaward limits specified in articles 57 and 76 of the Convention.”982.31Notably, the arbitral tribunal in the Bangladesh v. Indiacase did not even explain why it applied the same method to the delimitation of the continental shelf within and beyond 200 nautical miles. The Tribunal simply noted that:“The Parties also agree that the law applicable to the delimitation of the continental shelf beyond 200 nm is article 83 of the Convention, which provides that the delimitation ‘shall be effected by agreement on the basis of international law, as referred to in article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution’.”992.32In the present case, there is no reason that could justify a departure from this settled case-law and Nicaragua calls upon the Courtto apply its now-standard and well settled method to delimit the respective continental shelf of the Parties.2.33As will be demonstrated in Chapter 5 below, there is an overlap between Nicaragua’s potential continental shelf entitlement beyond 200 nm from its mainland coast and Colombia’s potential continental shelf entitlement emanating from its mainland coast. By application of the now-standard method, the first step 97ITLOS, Judgment, 14 March 2012, Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmarin the Bay of Bengal (Bangladesh/Myanmar), paras. 454-455.98Ibid.99Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India,Award, 7 July 2014, para. 438.44
in the delimitation process is to draw a provisional equidistance line dividing the
area of overlapping continental shelf entitlement. The provisional equidistance
line proposed by Nicaragua follows this guideline. Then, in line with the standard
method, once the provisional line settled, in accordance with the standard-method,
the Court should then consider “whether there are any relevant circumstances
which may call for an adjustment or shifting” of the provisional line and apply the
test of non-disproportionality.100
100 Ibid., p. 696, paras. 192-193.
45
46
CHAPTER 3
THE LEGAL FRAMEWORK. NICARAGUA’S CONTINENTAL SHELF
ENTITLEMENT UNDER ARTICLE 76. TECHNICAL DESCRIPTION OF
CONTINENTAL SHELF
47
Chapter (pages 47 to 90) not reproduced
CHAPTER 4
THE RELEVANT COASTS AND THE RELEVANT AREA
A. Introduction
4.1 The general geographical framework for the delimitation of the continental
shelf beyond 200 nautical miles of Nicaragua and the continental shelf of
Colombia is the southwestern part of the Caribbean Sea. The coasts of Nicaragua,
Costa Rica, Panama, Colombia, and Jamaica surround this part of the Caribbean
Sea. In addition, there are a number of small offshore islands of Colombia,
including San Andrés and Providencia, that are located in the southwestern part of
the Caribbean Sea (see Figure 4.1.).
91
Figure 4.1SW Caribbean: Regional Geography4.2Costa 75°W80°W10°N15°NAlburquerqueCaysEast Southeast CaysSan AndrésProvidenciaQuitasueñoCaySerrana CayRoncador CaySerranillaBajo NuevoMiskitoCaysCornIslandsMonkey PtPunta CastillaPuerto LimonPunta MonaAlmirantePuntadePerlaS CatalinaGolfo deMorrosquilloCartagenaBarranquillaCabo de la AgujaRiohachaC Graciasà DiosGolfo de los MosquitosCabo de la VeraPunta GallinasPunta de la CruzPunta FaroPunta de la GaritoPunta CanoasP San BlasColonPunta BarúNICARAGUACOLOMBIACOSTA RICAPANAMAVENEZUELA0100200 MFigure 4.1 SW Caribbean: Regional GeographyCARIBBEAN SEA
92
4.2 Costa Rica, Panama and Jamaica have defined the extent of their maritime
zones in the southwestern part of the Caribbean Sea through bilateral agreements
each of them has concluded with Colombia (see Figure 4.2.).111 These agreements
are res inter alios for Nicaragua. This notwithstanding, in accordance with the
jurisprudence of this Court,112 these agreements are relevant for determining the
relevant area for the delimitation of the continental shelf beyond 200 nautical
miles of Nicaragua and the continental shelf of Colombia.
111 Treaty on Delimitation of Marine and Submarine Areas and Maritime Cooperation between the
Republic of Colombia and the Republic of Costa Rica of 17 March 1977; Treaty on Maritime
Delimitation between the Republic of Colombia and Jamaica of 12 November 1993 (1776 UNTS
27); Treaty on the Delimitation of Marine and Submarine Areas and Related Matters between the
Republic of Colombia and the Republic of Panama of 20 November 1976 (1074 UNTS 221).
112 See further below paragraphs 4.19 and following.
93
Figure 4.2 Bilateral Agreements and Boundaries determined by the Court ColombiaColombiaPanamaColombiaColombiaPanamaCosta RicaCosta RicaPanamaJamaicaColombiaNicaraguaCOLCOLNicaraguaColombiaJOINTREGIMEAREA(Col/Jam)ColombiaHaitiColombiaDominican RepublicJoint ZoneCOLCOLICJ JudgmentICJ JudgmentNicaraguaHondurasNicaragua 200M75°W80°W10°N15°NAlburquerqueCaysEast Southeast CaysSan AndrésProvidenciaQuitasueñoCaySerrana CayRoncador CaySerranillaBajo NuevoMiskitoCaysCornIslandsMonkey PtPunta CastillaPuerto LimonPunta MonaAlmirantePuntadePerlaS CatalinaGolfo deMorrosquilloCartagenaBarranquillaCabo de la AgujaRiohachaC Graciasà DiosGolfo de los MosquitosCabo de la VeraPunta GallinasPunta de la CruzPunta FaroPunta de la GaritoPunta CanoasP San BlasColonPunta BarúNICARAGUACOLOMBIACOSTA RICAPANAMAVENEZUELACARIBBEAN SEA0100200 MFigure 4.2 Bilateral Agreements and Boundaries determined by the Court75755755555°°°WWWWJudgments of the CourtBilateral agreementsJoint zones
94
4.3 The maritime boundaries between Nicaragua and Colombia within 200
nautical miles of the baselines from which the breadth of the territorial sea of
Nicaragua is measured have been determined by the Judgment of the Court of 19
November 2012 in Territorial and Maritime Dispute (Nicaragua v. Colombia),
except for the maritime boundary between Nicaragua and the Colombian cays on
the banks of Serranilla and Bajo Nuevo. This latter issue is further considered
below at paragraph 4.39.
4.4 This Chapter will first consider the coasts of Nicaragua and Colombia that
are relevant for the delimitation of the continental shelf beyond 200 nautical miles
of Nicaragua and the continental shelf of Colombia. For Nicaragua, this concerns
its mainland coast and fringing islands. In the case of Colombia, this concerns (1)
the Colombian mainland coast and fringing islands; and (2) the Colombian islands
of San Andrés, and Providencia and Santa Catalina and the small cays scattered
throughout the Western Caribbean, including the cays of Albuquerque, Bajo
Nuevo, East‑ Southeast Cays, Roncador, Serranilla and Serrana.
4.5 A second part of the Chapter will consider the relevant area for the
delimitation of the continental shelf beyond 200 nautical miles of Nicaragua and
the continental shelf of Colombia. As will be explained below, the relevant area
includes the entire area between the mainland coasts of Nicaragua and Colombia,
in which the Colombian islands of San Andrés, and Providencia and Santa
Catalina and the smaller cays of Albuquerque, Bajo Nuevo, East‑ Southeast Cays,
Roncador, Serranilla and Serrana are located.
4.6 A final section of the chapter summarizes its main conclusions.
95
B.The Determination of the Relevant Coasts4.7The Court’s approach to determining the relevant coasts for the delimitation of maritime boundaries between neighboring States is well-established. As the Court pointed out in Territorial and Maritime Dispute (Nicaragua v. Colombia), the relevant coasts of the Parties are “those coasts the projections of which overlap, because the task of delimitation consists in resolving the overlapping claims by drawing a line of separation between the maritime areas concerned”.113Apart from the purpose of determining what constitute the overlapping claims of the Parties to maritime zones, the relevant coasts need to be determined to allow checking whether there exists any disproportionality “in the ratios of the coastal length of each State and the maritime areas falling either side of the delimitation line”.114In what is now the Court’s standard approach to delimitation, this proportionality test is the third stage of the delimitation exercise.1.Nicaragua’s relevant coast4.8The Court has considered the relevant coasts of Nicaragua and Colombia in connection with the delimitation of the maritime boundaries between Nicaragua and Colombia in Territorial and Maritime Dispute (Nicaragua v. Colombia).115As far as Nicaragua’s relevant coast was concerned, the Court concluded that:the relevant Nicaraguan coast is the whole coast which projects into the area of overlapping potential entitlements […]. With the exception of the 113Territorial and Maritime Dispute (Nicaraguav. Colombia), Judgment of 19 November 2012, I.C.J. Reports 2012, p. 674, para. 141.114Ibid., p. 675, para. 141, quoting the Judgment of the Court in the Maritime Delimitation in the Black Sea (Romania v. Ukraine)case.115Territorial and Maritime Dispute (Nicaraguav. Colombia), Judgment of 19 November 2012, I.C.J. Reports 2012, pp. 675-680, paras 143-154.96
short stretch of coast near Punta de Perlas, which faces due south and thus
does not project into the area of overlapping potential entitlements, the
relevant coast is, therefore, the entire mainland coast of Nicaragua (see
sketch-map No. 6, p. 681). Taking the general direction of this coast, its
length is approximately 531 km.116
Sketch-map No. 6 included in the Court’s Judgment is included as Figure 4.3. in
this Memorial. The coastal length of 531 kilometers corresponds to a
measurement of Nicaragua’s relevant coast along its natural configuration. If this
relevant coast is measured along a straight line, it measures 454 kilometers (see
Figure 4.4.).
116 Ibid, p. 678, para. 145.
97
Figure 4.3 Sketch Map 6 from the Court's Judgment in Nicaragua v ColombiaFigure COSTARICAPANAMAWGS 84Mercator Projection (12° 30' N)Colombia / JamaicaAREAREGIMENICARAGUAHONDURASCOLOMBIASketch-map No. 6:The relevant coastsboxed areas, are not to the same scale.This sketch-map has been preparedThe enlargements of the islands, shown in thefor illustrative purposes only.COLOMBIAPANAMACOSTA RICAEast-Southeast CaysPANAMACaysAlburquerqueSerranillaJOINTQuitasueñoSerranaRoncadorGreat CornIslandas identified by the CourtHONDURASNICARAGUACOSTA RICAde PerlasPuntaRocaLittle CornIslandProvidencia/Santa CatalinaSan AndrésTyraCayNed ThomasCaysEdinburghOutline of a bankReefMuertoCayNicaragua's relevant coastColombia's relevant coastMiskitos-81-Figure 4.3Sketch-map No 6 from the Court’s Judgmemt in Nicaragua v Colombia
98
Figure 4.4 Nicaragua's Relevant Coast
4.9 Nicaragua submits that its relevant coast for the delimitation of its
continental shelf beyond 200 nautical miles and Colombia’s continental shelf is
the relevant Nicaraguan coast that the Court identified in its Judgment of 19
November 2012 in Territorial and Maritime Dispute (Nicaragua v. Colombia).
As can be appreciated from Figure 4.4., the entire coast of Nicaragua as identified
by the Court projects east, up to the outer limit of Nicaragua’s continental shelf
beyond 200 nautical miles, which overlaps with the 200-nautical-mile continental
shelf of Colombia’s mainland coast and the continental shelf of the islands of San
Andrés and Providencia.
2. Colombia’s relevant coast
4.10 Colombia’s relevant coast is constituted by a part of its mainland coast and
the coasts of the Colombian islands of San Andrés, and Providencia and Santa
Catalina and the smaller cays scattered throughout the Western Caribbean.
(straight line)`531 km(natural configuration)75°W80°W10°N15°NAlburquerqueCaysEast Southeast CaysSan AndrésProvidenciaQuitasueñoCaySerrana CayRoncador CaySerranillaBajo NuevoMiskitoCaysCornIslandsMonkey PtPunta CastillaPuerto LimonPunta MonaAlmirantePuntadePerlaS CatalinaGolfo deMorrosquilloCartagenaBarranquillaCabo de la AgujaRiohachaC Graciasà DiosGolfo de los MosquitosCabo de la VeraPunta GallinasPunta de la CruzPunta FaroPunta de la GaritoPunta CanoasP San BlasColonPunta BarúNICARAGUACOLOMBIACOSTA RICAPANAMAVENEZUELA0100200 MFigure 4.4 Nicaragua’s Relevant Coast
99
4.11Nicaragua considers that only a part of Colombia’s mainland coast is part of Colombia’s relevant coast. This is explained by the fact that not all of Colombia’s mainland coast projects into the area of overlapping potential entitlements. This concerns the following segments of Colombia’s mainland coast. First, Colombia’s mainland coast to the south and west of Punta Baru up to Colombia’s land boundary with Panama projects in the direction of Colombia’s maritime boundary with Panama, and not in the directionof the area of overlapping entitlements between Nicaragua and Colombia. The first part of this coast, between Punta Baru and the Golfo de Morrosquillo, projects seaward in an almost westerly direction, while the area of overlapping entitlements is locatedto the northwest of this stretch of coast (see Figure 4.5). The Colombian coast to the south of the Golfo de Morrosquillo projects seaward in a north-western direction up to the maritime boundary between Colombia and Panama (see Figure 4.5). A second segment of Colombia’s mainland coast that is not part of its relevant coast is located to the east of Cabo de la Vera. This part of Colombia’s mainland coast projects seaward into an area that is to the east of the area of overlapping entitlements (see Figure 4.5).100
Figure 4.5 Colombia's Relevant Coast
HondurasNicaraguaColombiaColombiaPanamaColombiaColombiaPanamaCosta RicaCosta RicaPanamaJamaicaColombiaNicaraguaCOLCOLNicaraguaColombiaJOINTREGIMEAREA(Col/Jam)ColombiaHaitiColombiaDominican RepublicJoint ZoneCOLCOL454 km531 km(natural configuration)453 km(straight line)475 km(natural configuration)75°W80°W10°N15°NAlburquerqueCaysEast Southeast CaysSan AndrésProvidenciaQuitasueñoCaySerrana CayRoncador CaySerranillaBajo NuevoMiskitoCaysCornIslandsMonkey PtPunta CastillaPuerto LimonPunta MonaAlmirantePuntadePerlaS CatalinaGolfo deMorrosquilloCartagenaBarranquillaCabo de la AgujaRiohachaC Graciasà DiosGolfo de los MosquitosCabo de la VeraPunta GallinasPunta de la CruzPunta FaroPunta de la GaritoPunta CanoasP San BlasColonPunta BarúNICARAGUACOLOMBIACOSTA RICAPANAMAVENEZUELA0100200 MFigure 4.5 Colombia’s Relevant Mainland Coast
101
4.12The relevant mainland coast of Colombia is therefore located between Punta Baru and Cabo de la Vera (see Figure 4.5). The seaward projection of this coast extends into the area of overlappingentitlements. However, if this coast is compared tothe mainlandcoast of Nicaragua, the Court’s Judgment on the merits in Territorial and Maritime Dispute (Nicaraguav.Colombia)indicates that two segments of this coast should not be includedin Colombia’s relevant coast. As was observed above, the Court in its 2012 Judgment in Territorial and Maritime Dispute (Nicaraguav.Colombia) held that a “short stretch of coast near Punta de Perlas, which faces due south and thus does not project into the area of overlapping potential entitlements,” was not part of Nicaragua’s relevant coast.117If Colombia’s coast between Punta Baru and Cabo de la Vera is assessed in the light of this observation, it is apparent that the stretch of coast south of Cabo de la Aguja running due south and facing due west similarly does not extend into the area of overlapping entitlements. Second, a section of the Colombian mainland coast east of Cabo de la Aguja extends seaward in a northward direction to the east of the area of overlapping entitlements.4.13The relevant coast of Colombia between Punta Baru and Cabo de la Vera, excluding the stretches of coast identified above that face due west and due north, measured along its natural configuration measures 475kilometers. Nicaragua considers that in the present case, due to the sinuosities and irregularity of the Colombian mainland coast, it is proper to determine the length of that relevant coast not by measuring it along its natural configuration, but by measuring it along a straight line. Measured along a straight line, the relevant mainland coast of Colombia is 453kilometers.117Territorial and Maritime Dispute (Nicaraguav. Colombia), Judgment of 19 November 2012, I.C.J. Reports 2012, pp. 678, para. 145.4.14Apart 102
4.14 Apart from Colombia’s mainland coast, the coasts of its offshore islands in
the Western Caribbean form part of its relevant coast for the delimitation of
Nicaragua’s continental shelf beyond 200 nautical miles and Colombia’s
continental shelf. The Court in Territorial and Maritime Dispute (Nicaragua v.
Colombia) determined the relevant coast of these islands in connection with the
delimitation between the Parties of the area within 200 nautical miles from the
baselines from which the breadth of the territorial sea of Nicaragua is
measured.118 The Court in its 2012 Judgment in Territorial and Maritime Dispute
(Nicaragua v. Colombia) concluded that, first, the entire coastlines of the islands
of San Andrés, Providencia and Santa Catalina had to be taken into account in
determining their relevant coasts. The Court estimated that the total length of
these relevant coasts as 58 kilometers.119 Second, the Court considered that the
coasts of the cays of Albuquerque Cays, East‑ Southeast Cays, Roncador and
Serrana had to be considered to be a part of the relevant coast for the purposes of
that case. The Court’s Judgment indicates that these coasts measure seven
kilometers, giving a total length of the relevant coast of all the islands of
approximately 65 kilometers.120
4.15 Nicaragua considers that the relevant coast of Colombia’s islands as
determined by the Court in Territorial and Maritime Dispute (Nicaragua v.
Colombia) also is part of the relevant coast of Colombia for effecting the thirdstage
proportionality test in the present case. This is so even though not all of
these coasts are projecting seawards into the area of overlapping continental shelf
entitlements beyond the 200-nautical-mile limit of Nicaragua. As a matter of fact,
the western coasts of the islands are facing away from that area. However, as
stated in Chapter 1 and further explained below at paragraphs 4.28 and following,
118 Territorial and Maritime Dispute (Nicaragua v. Colombia) case Judgment of 19 November
2012, I.C.J. Reports 2012, pp. 679-680, paras 146-152.
119 Ibid, p. 680, para. 151.
120 Ibid., para. 152.
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the delimitation the Court is required to effect in the present case is a continuation of the delimitation of the maritime boundaries between Nicaragua and Colombia that were already delimited in part by the Court in its 2012 Judgment in Territorial and Maritime Dispute (Nicaraguav.Colombia). To assess whether the delimitation the Court will effect in the present case leads to an equitable solution, it is appropriate to consider how the delimitations effected by the Court in 2012 and in the present case divide the totality of the relevant area between the parties and how that ratio compares to the ratio between the lengths of the relevant coasts. This requires taking into account the relevant coasts for the delimitation of the maritime boundary between the parties within and beyond 200 nautical miles of their coasts. 4.16In its 2012 Judgment in Territorial and Maritime Dispute (Nicaraguav. Colombia), the Court did not delimit the maritime boundary between Nicaragua and the cays on the banks of Bajo Nuevo and Serranilla. Nicaragua is now requesting the Court to also delimit that maritime boundary.121Consequently, the coasts of these cays also form part of the relevant coast of Colombia. When the length of the coasts of these cays is determinedin accordance with the methodology used by the Court in its 2012 Judgment, they measure 2kilometers. The length of the relevant coasts of all of Colombia’s mid-sea islands thus is 67kilometers.4.17While the entire coast of Colombia’s islands is part of the relevant coast for purposes of the third-stage proportionality test, this entire coast is not the relevant coast for other aspects of the delimitation process the Court is required to carry out. In particular, in considering appropriate methodsfor the delimitation of the continental shelf beyond 200 nautical miles of Nicaragua and the continental shelf of Colombia, only the east-facing coasts of San Andrés and Providencia 121See further below at paragraph 4.39.104
constitute the relevant coasts. This is explained by the fact that the area where
Nicaragua’s continental shelf beyond 200 nautical miles overlaps with the
continental shelf entitlement of Colombia’s islands and Colombia’s mainland is
situated only to the east of the Colombian islands. The length of these coasts of
the islands along their natural configuration measures approximately 27
kilometers (San Andrés 20 km; Providencia and Santa Catalina 7 km) (see Figure
4.6). The length of the relevant coasts of the islands measured along a straight line
representing the general direction of these coasts on this basis is approximately 20
kilometers (San Andrés 13 km; Providencia and Santa Catalina 7 km) (see Figure
4.6).
Figure 4.6 Relevant Coast of San Andres and Providencia
Extract from Nic v Col I, Col Memorial Figure 2.2Extract from Nic v Col I, Col Memorial Figure 2.3Figure 4.6 Relevant Coasts of San Andrés and for the Second Stage of the Delimitation Process13 km(straight line)20 km(natural configuration)7 km(straight line)7 km(natural configuration)Extract from Nic v Col I, Col Memorial Figure 2.2Extract from Nic v Col I, Col Memorial Figure 2.3Figure 4.6 Relevant Coasts of San Andrés and Providencia for the Second Stage of the Delimitation Process13 km(straight line)20 km(natural configuration)7 km(straight line)7 km(natural configuration)
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4.18Second, the relevant coast for considering appropriate methods of delimitation for the continental shelf beyond the 200-nautical-mile limit of Nicaragua does not include the coasts of Albuquerque Cays, Bajo Nuevo, East‑Southeast Cays, Roncador, Serrana andSerranilla, even though they are part of the relevant coasts for the third-stage proportionality test. They are part of the relevant coast for the third-stage test because these islands are located in the relevant area and their territorial sea entitlement forms part of the relevant area. However, as was submitted by Nicaragua in its pleadings in Territorial and Maritime Dispute (Nicaraguav.Colombia), these islands do not have a continental shelf and exclusive economic zone, as they are rocks under the terms of Article 121(3) of the United Nations Convention on the Law of the Sea.122As a consequence, their coasts are not relevant to the delimitation of Nicaragua’s continental shelf beyond 200 nautical miles and Colombia’s continental shelf. C.The Determination of the Relevant Area4.19This section first explains that the relevant area is the entire area located between the relevant mainland coasts of the Parties. A subsequent sub-section discusses the lateral limits of the relevant area.1.The Relevant Area is Located between the Relevant Mainland Coasts of the Parties4.20The Court has defined the relevant maritime area as comprising “that part of the maritime space in which the potential entitlements of the parties overlap.”123The Court has also indicated that in areas where the interests of third 122Seee.g. CR2012/14, pp. 31-32, paras 4-6123Territorial and Maritime Dispute (Nicaraguav. Colombia)case, Judgment of 19 November 2012, I.C.J. Reports 2012, p. 683, para. 159.106
States become involved those interests may impact on the definition of the
relevant maritime area.124
4.21 The present case is concerned with the delimitation of the continental shelf
beyond 200 nautical miles of Nicaragua and the continental shelf of Colombia. In
that light, it is first of all necessary to determine the extent of the continental shelf
of Nicaragua and Colombia, as this allows determining the area of potential
overlapping entitlements.
4.22 As is set in Chapter 3 of this Memorial, Nicaragua has determined the
outer limits of its continental shelf in accordance with Article 76 of the United
Nations Convention on the Law of the Sea. The outer limits of Nicaragua as
submitted to the Commission on the Limits of the Continental Shelf determine the
seaward extent of Nicaragua’s continental shelf entitlement (see Figure 3.16).
4.23 Colombia is not a party to the United Nations Convention on the Law of
the Sea and is not required to identify the exact extent of its continental shelf in
accordance with the procedures contained in Article 76 of the Convention.
Scientific data in the public domain on the geomorphology of the seabed do,
however, make the factual position clear beyond any possible doubt. As far as the
continental shelf of Colombia’s mainland is concerned, there is no possibility
whatever that the outer edge of the continental margin along Colombia’s mainland
extends at any point to a distance of 200 nautical miles from the baselines from
which the breadth of Colombia’s territorial sea is measured.125 As a consequence,
the outer limit of the continental shelf of Colombia’s mainland coast is defined by
the distance limit of 200 nautical miles in accordance with customary
124 Ibid.; Maritime Delimitation in the Black Sea (Romania v. Ukraine) case, Judgment, I.C.J.
Reports 2009, p. 100, para. 114.
125 See Chapter 3 of this Memorial at paragraphs 3.77 and 3.78.
107
international law as reflected in Article 76, paragraph 1, of the Convention. This continental shelf overlaps with the continental shelf of Nicaragua.4.24As far as Colombia’s islands of San Andrés and Providencia are concerned, Nicaragua observes that Colombia has made the following statement: In accordance with customary international law, the Republic of Colombia’s continental shelf comprises the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to thatdistance. Also in accordance with customary international law, the Republic of Colombia’s islands, regardless of their size, enjoy the same maritime rights as the country’s other land territory.1264.25Nicaragua considers that this Colombian statement implies that Colombia holds that the islands of San Andrés and Providencia have a potential continental shelf entitlement beyond 200 nautical miles to the outer edge of the continental margin. Nicaragua recognizes that San Andrés and Providencia have such a potential entitlement.127The islands of San Andrés and Providenciaare located on the same continental margin as Nicaragua’s mainland and its fringing islands. This implies that the outer edge of the continental margin of Nicaragua and of the continental margin of the islands of San Andrés and Providencia are identical. However, as is discussed in Chapter 5 of the Memorial, as a result of the 2012 126Note S-DM-13-014681 of 22 April 2013 (Annex to the note verbaledated 29 April 2013 from the Permanent Mission of Colombia to the United Nations addressed to the Secretary-General; UN Doc. A/67//852 of 2 May 2013) (seeNM, Annex 3).127Nicaragua does not agree with Colombia that “Colombia’s islands, regardless of their size, enjoy the same maritime rights as the country’s other land territory”. As explained above at para. 4.18, Nicaragua considers that all of Colombia’s mid-sea islands in the Western Caribbean except for San Andrés and Providencia and Santa Catalina are rocks under Article 121(3) of the United Nations Convention on the Law of the Sea, which reflects customary international law.108
Judgment, the continental shelf of the islands of San Andrés and Providencia
should not extend east of the 200-nautical-mile limit of Nicaragua’s exclusive
economic zone.128
4.26 Colombia has not submitted information to the CLCS on the outer limits of
its continental shelf beyond 200 nautical in accordance with Article 76 of the
Convention, which it would be required to do if it were to become a party to the
Convention. However, Nicaragua considers that the absence of a submission to
the CLCS by Colombia in the present case does not prevent the Court from
delimiting the continental shelf between Nicaragua and Colombia. As the
submission of Nicaragua to the CLCS indicates, the outer limit of Nicaragua’s
continental shelf overlaps with the 200-nautical-mile continental shelf of
Colombia’s mainland coast. As a consequence, information on the exact location
of the outer limits of the continental shelf of San Andrés and Providencia will not
change the area of overlap between the continental shelf of Nicaragua and
Colombia, as that outer limit will be located within 200 nautical miles of
Colombia’s mainland coast and thus is overlapped by a Colombian entitlement to
a continental shelf based upon distance from Colombia’s mainland coast in any
event.
4.27 The present case is concerned with the delimitation of Nicaragua’s
continental shelf beyond 200 nautical miles and Colombia’s continental shelf. The
area of overlapping potential continental shelf entitlements is located between the
200-nautical-mile limit of Nicaragua and the outer limits of Nicaragua’s
continental shelf beyond 200 nautical miles as contained in Nicaragua’s
submission to the CLCS. The area of overlapping entitlements only comprises a
part of the maritime area between the relevant mainland coasts of the Parties.
Nicaragua holds that the relevant area includes the entire maritime areas between
128 See para. 5.19-5.20 below.
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the relevant mainland coasts of the parties, and not only the area of overlapping entitlements.4.28Nicaragua submits that its definition of the relevant area is in accordance with the object and purpose of the third-stage proportionality test, which is to ascertain whether the delimitation that is being considered leads to an equitable result.129Taking into account the whole maritime area between the relevant coasts of the Parties allows determining whether the overall outcome of the delimitation effected by the Court leads to an equitable result. That approach is also in accordance with the consideration that the present delimitation is a continuation ofthe delimitation the Court effected through its 2012 Judgment in Territorial and Maritime Dispute (Nicaraguav.Colombia). To the contrary, were the Court only to consider the area of overlapping continental shelf entitlements beyond 200 nautical miles from the coast of Nicaragua, the Court would not be looking at how the maritime boundary divides the maritime areas between the relevant coasts of the parties, but only at how one specific part of that maritime area would be divided between the parties. A specific division of that smaller area might seem to be equitable on the basis of the third-stage proportionality test, but does not inform the Court whether the overall result of the delimitation is equitable. The latter can only be determined by considering how the maritime boundary resulting from the second stage of the delimitation divides the entirety of the maritime zones lying between the relevant coasts of the parties. 4.29Nicaragua’s approach to the definition of the relevant area is in accordance with the fundamental notion of delimitation law that the land dominates the sea. As the Court observed in Maritime Delimitation in the Black Sea (Romania v.Ukraine): “The title of a State to the continental shelf and to the exclusive 129Maritime Delimitation in the Black Sea (Romania v. Ukraine) case, Judgment, I.C.J. Reports 2009, p. 100, para. 111.110
economic zone is based on the principle that the land dominates the sea through
the projection of the coasts or the coastal fronts”.130 As this observation indicates,
the seaward projections from the coast start at the coast. Disregarding a maritime
area directly in front of the relevant coasts of the parties would sever the link
between the relevant coasts and the relevant area, which would be contrary to the
principle that the land dominates the sea through the projection of the coasts.
4.30 The practice of the Court and other courts and tribunals confirms that the
law requires taking into account the entire maritime area between the relevant
coasts of the parties as the relevant area, including those parts of that area that do
not overlap with the maritime zones of the other party.
4.31 In the Jan Mayen case, the Court defined the relevant area as the area lying
between the relevant coasts of Greenland and the island of Jan Mayen.131 That
case was concerned with the delimitation of the 200-nautical-mile zones of
Denmark and Norway. The relevant area in that case included both (1) areas of
overlapping entitlements; and (2) areas between the coasts of Greenland or Jan
Mayen that are only within 200 nautical miles of one of the parties. This is
illustrated by Sketch-map No. 1 included in the Judgment, which is reproduced as
Figure 4.7 in this Memorial. The relevant area is bounded by the lines between
points A-E-F-B-C-D-G-H-A. The fact that the relevant maritime area does not
equal the area of overlapping claims/entitlements is explicitly confirmed by the
Judgment of the Court in Jan Mayen, which distinguishes between these two
areas.132
130 Maritime Delimitation in the Black Sea (Romania v. Ukraine) case, Judgment, I.C.J. Reports
2009, p. 89, para. 77.
131 Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment of 14 June
1993, I.C.J. Reports 1993, p. 47. para. 20.
132 Maritime Delimitation in the Area between Greenland and Jan Mayen, Judgment of 14 June
1993, I.C.J. Reports 1993, p. 47. paras 19-20 and pp. 69-70, paras 71-72.
111
Figure 4.7 The Relevant Area in Jan Mayen4.32In the Case concerning the Delimitation of Maritime Areas between Canada and France, the arbitral tribunal delimited the 200-nautical-mile zones of the parties. The arbitral tribunal defined the relevant area in paragraph 93 of its award.133The relevant area included areas adjacent to the relevant coast of 133Case concerning the Delimitation of Maritime Areas between Canada and France, award of 10 June 1992, U.N.R.I.A.A. Vol. XXI, pp. 296-297.Figure 4.7 The Relevant Area in Jan MayenSketch map 1 from the Court’s Judgment, page 45.Colour added for emphasisArea beyond Jan Mayen’s200M entitlementArea beyond Greenland’s200M entitlementArea of overlapping200M entitlements
112
Canada that are beyond 200 nautical miles of the coasts of the French islands of
Saint Pierre and Miquelon. In other words, the relevant area included maritime
areas that are not part of the areas of overlapping entitlements. These areas are
identified in Figure 4.8 of this Memorial, which depicts the relevant area defined
by the arbitral tribunal in the Case concerning the Delimitation of Maritime Areas
between Canada and France and that part of the relevant area in which there are
no overlapping entitlements of the parties.
Figure 4.8 The Relevant Area in Canada v France
4.33 In Bangladesh/Myanmar, the International Tribunal for the Law of the Sea
delimited the territorial sea, the exclusive economic zone, and the continental
shelf within and beyond 200 nautical miles of the parties. Nicaragua considers this
case and Bangladesh v. India, which is discussed further below, particularly
instructive because they are, to date, the only cases to delimit the continental shelf
RELEVANTAREA200M St P & M200M Canada200M Canada200M Cape Breton I60°W55°W44°N48°NCANADACANADAFRANCE Cape RayNova ScotiaSt PierreMiquelonGULF OFST LAWRENCESable IslandCabot StraitCape CansoCape RaceBurin PeninsulaFortuneBayPlacentia BayScatarie IMoney PtRamea ICape Breton I Newfoundland050100150MFigure 4.8 The Relevant Area in Canada v France200MCanaRelevant area beyondFrance’s 200M entitlementiava Scotiaiae CansoCapapeeapRelevant area beyondFrance’s 200M entitlement
113
beyond 200 nautical miles. As a final step in its delimitation of the maritime boundary in Bangladesh/Myanmar, the Tribunal defined the relevant area, in order to allow it to carry out the third-stage proportionality test. The Tribunal observedthat the parties disagreedon two points in relation to the relevant area: its southern and northwestern parts.134In respect of the southern part of the relevant area, the Tribunal observedthat:it has already found that the segment of Myanmar’s coast that runs from Bhiff Cape to Cape Negrais is to be included in the calculation of the relevant coast. Therefore, the southern maritime area extending to Cape Negrais must be includedin the calculation of the relevant area for the purpose of the test of disproportionality.1354.34It may be observed that this southern part of the relevant area is beyond 200 nautical miles from the coast of Bangladesh and is not a part of the continental shelf of Bangladesh beyond 200 nautical miles in relation to which Bangladesh hadsubmitted information to the CLCS (see Figure 4.9).134Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal Bangladesh/Myanmar, Judgment of 14 March 2012, para. 490.135Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal Bangladesh/Myanmar, Judgment of 14 March 2012, para. 491 (emphasis provided).114
Figure 4.9 The Relevant Area in Bangladesh v Myanmar
4.35 In relation to the extent of the northwestern part of the relevant area, on
which the parties also disagreed, the Tribunal considered that, “for the purpose of
determining any disproportionality in respect of areas allocated to the Parties, the
relevant area should include maritime areas subject to overlapping entitlements
of the Parties to the present case”.136 This approach to defining the relevant area
indicates that the Tribunal considered that the area of overlapping entitlements
136 Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar
in the Bay of Bengal Bangladesh/Myanmar, Judgment of 14 March 2012, para. 493 (emphasis
provided).
200M Bangladesh200MMyanmar050100 M90°E94°E20°N16°N92°E18°N22°NMyanmarIndia(1987)OUTERCONTINENTALSHELFINDIABANGLADESHMYANMARBhiff CapeCapeNegraisPreparis IsCoco IsKutubdia IsSt Martin’sIslandBoronga PtCheduba IMeghnaEstuaryGanges-BrahmaputraDeltaARAKANCOASTMayu PtMandabaria IsRELEVANTAREAFigure 4.9 The Relevant Area in Bangladesh v MyanmarNeRelevant area beyond 200M from Bangladesh butwithin 200M of Myanmar
115
should be part of the relevant maritime area, but that the relevant area is not necessarily limited to the area of overlapping entitlements.4.36The arbitral tribunal in Bangladesh v. Indiatook a similar approach to the definition of the relevant area. The southwestern part of the relevant area is beyond 200 nautical miles from the coast of Bangladesh and is not a part of the continental shelf of Bangladesh beyond 200 nautical miles in relation to which Bangladesh hadsubmitted information to the CLCS.137This southwestern part of the relevant area is identified in Figure 4.10below.Figure 4.10TheRelevant Area in Bangladesh v India4.37The approach of the International Tribunal for the Law of the Sea in Bangladesh/Myanmarand the arbitral tribunal in Bangladesh v. India to the relevant area and the third-stage proportionality test is also pertinenttothe present 137In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 7 July 2014, paras, 309 and 310.lineIndia 200MBangladesh 200M0100200 M20°N16°N84°E92°EMyanmarIndia(1987)OUTERCONTINENTALSHELFMYANMARINDIABANGLADESHMyanmar(ITLOS 2012)BangladeshSandy PtDevi PtSt Martin’s IslandCapeNegraisCheduba IFigure 4.10 The Relevant Area in Bangladesh v IndiaRELEVANTAREA(IT(TRelevant area beyond 200M from Bangladesh butwithin 200M of IndiaPreparis IsCoco IsRelevant area within200M of Bangladesh butbeyond 200M of India
116
case for another reason. The Tribunal and the arbitral tribunal delimited the
maritime boundary between the parties in three separate stages. First, the
territorial sea, then the continental shelf and exclusive economic zone within
200 nautical miles, and, finally, the continental shelf beyond 200 nautical miles.
However, in carrying out the third-stage proportionality test, the Tribunal and the
arbitral tribunal did not apply this test to each of the three separate parts of the
maritime boundary they had established, but applied the test to the entire relevant
area, which covers the territorial sea, the continental shelf and exclusive economic
zone within 200 nautical miles, and the continental shelf beyond 200 nautical
miles. This approach reconfirms that the third-stage proportionality test is
intended to check whether the overall outcome of a delimitation is equitable. In
the present case, this requires applying the proportionality test to determine
whether the boundary established by the Court in 2012 and the boundary it is
requested to establish in the present case, viewed together, achieve an equitable
solution.
2. The Lateral Limits of the Relevant Area
4.38 As a final step, the lateral limits of the relevant area remain to be
determined. In this respect, Nicaragua observes that the Court in its 2012
Judgment determined the lateral limits of the relevant area between Nicaragua’s
mainland coast and the 200-nautical-mile limit of Nicaragua. In the north, the
lateral limit of the relevant area first followed the maritime boundary between
Nicaragua and Honduras that the Court had established through its 2007 Judgment
in Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras) and then the Joint Regime Area
established by the 1993 Treaty between Colombia and Jamaica. In the south, the
lateral limit of the relevant area first followed a hypothetical equidistance line
117
between Nicaragua and Costa Rica and then the boundaries established by treaties between Colombia and Costa Rica,and between Colombia and Panama1384.39Nicaragua considers that the definition of the relevant area contained in the Court’s 2012 Judgment remains pertinent to the definition of the relevant area for the present case, with one exception. Nicaragua considers that the relevant area should include the territorial sea around Serranilla and Bajo Nuevo. These areas of territorial sea are excluded from the Joint Regime Area established by the 1993 Treaty between Colombia and Jamaica and are recognized as being part of the territory of Colombia. Before further explaining Nicaragua’s position on this point, it is worth recalling what the Court said about the exclusion of the Joint Regime Area and the territorial sea around Serranilla and Bajo Nuevo in its 2012 Judgment:although the Colombia-Jamaica “Joint Regime Area” is an area in which Colombia and Jamaica have agreed upon shared development, rather than delimitation, the Court considers that it has to be treated as falling outside the relevant area. The Court notes that more than half of the “Joint Regime Area” (as well as the island of Bajo Nuevo and the waters within a 12-nautical-mile radius thereof) is located more than 200 nautical miles from Nicaragua and thus could not constitute part of the relevant area in anyevent. It also recalls that neither Colombia, nor (at least in most of its pleadings) Nicaragua, contended that it should be included in the relevant area. Although the island of Serranilla and the waters within a 12-nautical-mile radius of the island areexcluded from the “Joint Regime Area”, the Court considers that they also fall outside the relevant area for the purposes of the present case, in view of potential Jamaican entitlements and the fact that neither Party contended otherwise.139138Territorial and Maritime Dispute (Nicaraguav. Colombia)case Judgment of 19 November 2012, I.C.J. Reports 2012, p. 686, paras 164 and 165.139Territorial and Maritime Dispute (Nicaraguav. Colombia)case Judgment of 19 November 2012, I.C.J. Reports 2012, p. 685-686, para. 163.4.40A 118
4.40 A number of points are to be noted about the Court’s observations on the
Joint Regime Area and the territorial sea around Bajo Nuevo and Serranilla. The
Court distinguishes the Join Regime Area from areas that have been attributed to
third states through a delimitation agreement with one of the parties. While in the
latter case the area beyond the boundary will not be included in the relevant
maritime area, the Court’s pronouncement indicates that this is not necessarily the
case for a joint regime area. Rather, the Court in its 2012 Judgment provides a
number of practical reasons why the Joint Regime Area and the territorial sea
around Bajo Nuevo and Serranilla should be excluded from the relevant area. As
the Court observes, part of the Joint Regime Area and the territorial sea of Bajo
Nuevo are located beyond 200 nautical miles from the baselines of Nicaragua and
as a consequence in any event could not be included in the relevant area. The
situation obviously is different in the present case, which is concerned with the
delimitation of the continental shelf beyond 200 nautical miles from Nicaragua’s
baselines. Both the Joint Regime Area and the territorial sea around Serranilla and
Bajo Nuevo are within the outer limit of Nicaragua’s continental shelf beyond 200
nautical miles.
4.41 Neither party in the Territorial and Maritime Dispute (Nicaragua v.
Colombia) argued that the Joint Regime Area and the territorial sea around
Serranilla and Bajo Nuevo should be included in the relevant maritime area.
Following the 2012 Judgment and the developments relating to the Judgment,140
Nicaragua has concluded that it is appropriate that the status of the maritime
entitlements around Serranilla and Bajo Nuevo should be resolved to the fullest
extent possible. In this respect, Nicaragua is mindful of the Court’s observation in
its 2012 Judgment concerning Jamaica’s potential entitlements.
140 See further Memorial of Nicaragua in Alleged Violations of Sovereign Rights and Maritime
Spaces in the Caribbean Sea (Nicaragua v. Colombia).
119
4.42Nicaragua considers that the Court is in a position to address the following issues in relation to the maritime entitlements of Serranilla and BajoNuevo. First, the Court is in a position to determine the entitlement of the cays on Serranilla and Bajo Nuevo to a territorial sea, continental shelf and exclusive economic zone. Serranilla and Bajo Nuevo are under the sovereignty of Colombia and the determination of their capacity to generate maritime zones is a matter that is in dispute between Nicaragua and Colombia, and a decision on this matter does not require the participation of Jamaica in the present proceedings. While Nicaragua acknowledges thatthe cays on Serranilla and Bajo Nuevo are islands in the sense of Article 121(1) of the United Nations Convention on the Law of the Sea, and as such are entitled to a territorial sea, Nicaragua submits that all these cays are rocks in the sense of Article121(3) of the Convention.141As such, they are not entitled to an exclusive economic zone and continental shelf. On the basis of this finding it can be concluded that the maritime boundary between Nicaragua and Colombia in this area can only be constituted by the 12-nautical-mile arc measured from the low-water line along the cays. These findings on the maritime entitlements of the cays on Bajo Nuevo and Serranilla imply that Colombia’s rights in the Joint Regime Area, beyond the territorial sea of the cays, cannot be derived from those maritime entitlements, but can only stem from the specific regime set up by the 1993 Agreement between Colombia and Jamaica.4.43In view of the fact that Nicaragua is requesting the Court to determine the maritime entitlements of the cays on Bajo Nuevo and Serranilla and their maritime boundary vis-à-visNicaragua, Nicaragua considers that it is appropriate to take their 12-nautical-mile territorial sea into account in determining the extent of the relevant area for the delimitation involving Nicaragua and Colombia.141Seefurther paragraph 4.18above.120
4.44 The Court in its 2012 Judgment determined that the relevant area extended
up to the 200-nautical-mile limit of Nicaragua, as the Court was only delimiting
the maritime boundary between Nicaragua and Colombia up to that limit. In the
current case, the relevant area extends beyond that limit, up to the mainland coast
of Colombia. The lateral limits of this part of the relevant area are thus constituted
by two straight lines perpendicular to the eastern- and westernmost points of
Colombia’s relevant coast. The two perpendiculars extend to their point of
intersection with the outer limit of Nicaragua’s continental shelf beyond 200
nautical miles. From those points, the lateral limits of the relevant area follow the
maritime boundaries of Colombia with Panama and Jamaica respectively. The
relevant area is depicted in Figure 4.11 below.
121
Figure 4.11The Relevant AreaD.75°W80°W10°N15°NAlburquerqueCaysEast Southeast CaysSan AndrésProvidenciaQuitasueñoCaySerrana CayRoncador CaySerranillaBajo NuevoMiskitoCaysCornIslandsMonkey PtPunta CastillaPuerto LimonPunta MonaAlmirantePuntadePerlaS CatalinaGolfo deMorrosquilloCartagenaBarranquillaCabo de la AgujaRiohachaC Graciasà DiosGolfo de los MosquitosCabo de la VeraPunta GallinasPunta de la CruzPunta FaroPunta de la GaritoPunta CanoasP San BlasColonPunta BarúNICARAGUACOLOMBIACOSTA RICAPANAMAVENEZUELA0100200 MFigure 4.11 The Relevant Area
122
D. Conclusions
4.45 The relevant coast of Nicaragua is its entire mainland coast, save a part of
that coast south of Punta de Perlas (see Figure 4.4). This coast faces the area of
overlapping claims and generates Nicaragua’s continental shelf entitlement in the
area of overlapping claims. Measured along its natural configuration, the length of
this coast is approximately 531 km. Measured along a straight line it is 454
kilometers.
4.46 The relevant coast of Colombia is constituted by its mainland coast
between Punta Baru and Cabo de la Vera, excluding two stretches of coast that are
not facing the area of overlapping entitlements, and the coasts of Colombia’s
islands of San Andres and Providencia and the cays of Albuquerque, Bajo Nuevo,
East‑ Southeast Cays, Roncador, Serranilla and Serrana. Colombia’s mainland
coast measured along its natural configuration is 475 kilometers. Measured along
a straight line, the relevant mainland coast of Colombia is 453 kilometers.
Nicaragua considers that in the present case, due to the sinuosities and irregularity
of the Colombian mainland coast, it is proper to determine the length of that
relevant coast by the latter method. The relevant coast of Colombia’s islands for
the third-stage proportionality test measures 67 kilometers.
4.47 While the entire coast of Colombia’s islands is part of the relevant coast
for purposes of the third-stage proportionality test, this is not the relevant coast for
other aspects of the delimitation process the Court is requested to carry out. In
particular, in considering appropriate methods for the delimitation of the
continental shelf beyond 200 nautical miles of Nicaragua and the continental shelf
of Colombia, only the east-facing coasts of San Andrés and Providencia and Santa
Catalina constitute the relevant coasts of Colombia’s islands. Along its natural
123
configuration, this coastmeasures 27kilometers. Measured along straight lines this coast measures 20kilometers.4.48The Court is in a position to address two issues in relation to the maritime zones of the cays in the banks of Serranilla and Bajo Nuevo. First, the Court is in a position to determine the entitlement of the cays on Serranilla and Bajo Nuevo to a territorial sea, continental shelf and exclusive economic zone. Nicaragua submits that all these cays are rocks in the sense of Article 121(3) of the United Nations Convention on the Law of the Sea and that, as such, they are not entitled to an exclusive economic zone and continental shelf. Second, on the basis of this finding it can be concluded that the maritime boundary between Nicaragua and Colombia in this area can only be the 12-nautical-mile arc measured from the low-water line along the cays. These findings on the maritime entitlements of the cays on Bajo Nuevo and Serranilla imply that Colombia’s rights inthe Joint Regime Area,beyond the territorial sea of the cays,cannot be derived from those maritime entitlements, but can only stem from the specific regime set up by the 1993 Agreement between Colombia and Jamaica. 4.49The relevant area for the delimitation of the continental shelf beyond 200 nautical miles of Nicaragua and the continental shelf of Colombia is formed by the area between the mainland coasts of the Parties. The lateral limits of the relevant area in large part are defined by maritime boundaries between Colombia and third States. The relevant area is depicted in Figure 4.11.124
CHAPTER 5
THE DELIMITATION OF THE CONTINENTAL SHELF BEYOND
200 NM
5.1 This Chapter sets out Nicaragua’s claim in respect of the delimitation of
the continental shelf beyond 200 nm.
5.2 For the reasons explained in Chapter 1, this claim must be viewed in
conjunction with Nicaragua’s claims in the prior proceeding and in light of the
Court’s 2012 Judgment. Determining what constitutes an equitable solution for
the delimitation beyond 200 nm from Nicaragua’s coast is not a question that can
be answered in isolation.
5.3 With that in mind and in line with the three-step methodology employed
by the Court, Section I of this Chapter deals with the identification of a
provisional delimitation line appropriate to the geographical circumstances of this
case. Section II addresses the issue of relevant circumstances and shows that
there are no reasons that might warrant an adjustment to the provisional
delimitation line described in Section I. Finally, Section III addresses the
disproportionality test and demonstrates that Nicaragua’s proposed delimitation
plainly yields an equitable solution.
A. The Identification of the Provisional Delimitation Line
5.4 Nicaragua showed in Chapter 4 that, viewed against the backdrop of the
Court’s 2012 Judgment, the relevant area comprises the entirety of the maritime
areas lying between Nicaragua’s coast and Colombia’s mainland coast, but
125
excluding areas in which the interests of third States may be implicated.142That area is depicted in Figure 4.11.5.5Figure 4.11reveals an obvious truth: the land territories that dominate the relevant area are the two Parties’ mainland coasts. The principal issue that remains for determination by the Court is therefore the delimitation between (a) Nicaragua’s continental shelf beyond 200 nm and (b) the 200 nm continental shelf of Colombia’s mainland. 5.6Colombia’s San Andrés and Providencia/Santa Catalina islands also generate continental shelf entitlements that overlap with those of Nicaragua but the Court has, in its 2012 Judgment, already effectively delimited the continental shelf of these small, mid-sea islands by allocating them areas that achieve an equitable solution.143The areas the Court previously allocated to Colombia’s islands in the 2012Judgment are more than enough to satisfy the requirements of customary international law, as reflected in Article 83(1) of UNCLOS.5.7Nicaragua will therefore focus in the first instance on the delimitation between the respective continental shelf entitlements generated by the Parties’ mainland coasts. Secondarily, and as an incident to this primary delimitation, Nicaragua will address the boundary of Nicaragua’s continental shelf vis-à-vis San Andrés and Providencia.5.8Nicaragua considers that the appropriate first step is, in the words of the Black Seacase, to “establish a provisional delimitation line, using methods that 142SeeChapter 4 above.143SeeSketch –map No. 11: Course of the maritime boundary, p.714, I.C.J. Reports 2012, p. 624.126
are geometrically objective and also appropriate for the geography of the area in
which the delimitation is to take place”144
5.9 The critical threshold question is therefore what constitutes the appropriate
provisional delimitation line that uses “methods that are geometrically objective
and also appropriate for the geography of the area”?
5.10 To answer this question, account must be taken of the two central
characteristics that distinguish the geography of the area in which the delimitation
is to take place: (a) the dominance of the Parties’ mainland coastal projections;
and (b) the fact that Nicaragua’s entitlement in the continental shelf beyond 200
nm overlaps with the 200 nm shelf entitlement of Colombia’s mainland.
5.11 In its 2012 Judgment, the Court observed that:
“the task of delimitation consists in resolving the overlapping
claims by drawing a line of separation between the maritime areas
concerned.”145
5.12 Accordingly, Nicaragua considers that the appropriate provisional
delimitation line is an equidistance line that divides the area of overlap between
Nicaragua’s continental shelf beyond 200 nm and Colombia’s continental shelf
within 200 nm of its mainland. This line is depicted in Figure 5.1, and has been
drawn so that it is equidistant from the nearest points on the outer limits of the
Parties’ respective continental shelf entitlements.
144 Black Sea, para. 116.
145 Territorial and Maritime Dispute (Nicaragua v. Colombia) case Judgment of 19 November
2012, I.C.J. Reports 2012, p. 674, para. 141.
127
Figure 5.1The Provisional Mainland-mainland Delimitation Line5.13In Colombia mainland 200MNicaragua’s outer continental shelf limitLine of equal division75°W80°W10°N15°NAlburquerqueCaysEast Southeast CaysSan AndrésProvidenciaQuitasueñoCaySerrana CayRoncador CaySerranillaBajo NuevoMiskitoCaysCornIslandsMonkey PtPunta CastillaPuerto LimonPunta MonaAlmirantePuntadePerlaS CatalinaGolfo deMorrosquilloCartagenaBarranquillaCabo de la AgujaRiohachaC Graciasà DiosGolfo de los MosquitosCabo de la VeraPunta GallinasPunta de la CruzPunta FaroPunta de la GaritoPunta CanoasP San BlasColonPunta BarúNICARAGUACOLOMBIACOSTA RICAPANAMAVENEZUELA0100200 MFigure 5.1 The Provisional Mainland–Mainland Delimitation Line
128
5.13 In addition to its geometric objectivity, this line has the advantage of
according Nicaragua’s entitlement in the continental shelf beyond 200 nm equal
treatment with Colombia’s juridical shelf entitlement to 200 nm. Consistent with
Article 76 of UNCLOS, it does not give a priori precedence to either Nicaragua’s
‘natural prolongation’ entitlement or Colombia’s distance-based entitlement.
5.14 As discussed in Chapter 2, there is, in law, only a single continental
shelf.146 Neither the Convention nor customary international law afford any basis
for according primacy to one coastal State’s shelf entitlement within 200 nm over
another coastal States’ continental shelf entitlement beyond that distance.
5.15 Article 76(1)—which the Court has specifically held constitutes part of
customary law147—provides:
“The continental shelf of a coastal State comprises the sea-bed
and subsoil of the submarine areas that extend beyond its
territorial sea [either (1)] throughout the natural prolongation of
its land territory to the outer edge of the continental margin, or
[(2)] to a distance of 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured where the
outer edge of the continental margin does not extend up to that
distance.”
5.16 There are thus two distinct but co-equal criteria for determining the limits
of coastal States’ entitlement to the continental shelf: (a) the natural prolongation
criterion and (b) the distance criterion. Nothing in the text of Article 76 accords
priority to one over the other.
5.17 Article 83, which governs the delimitation of the continental shelf,
likewise draws no distinction between shelf areas within and beyond 200 nm. It
146 See para. 2.21 above.
147 Nicaragua v. Honduras, para. 118 (“The Court considers that the definition of the continental
shelf set out in Article 76, paragraph 1, of UNCLOS forms part of customary international law”).
129
simply requires that any delimitation result in an equitable solution, without regard to basis of the relevant coastal States’ entitlements. 5.18There being no basis for according de jureprecedence to one Party’s shelf entitlement over another, Nicaragua’s proposed provisional delimitation line gives effect to the:“criterionlong held to be as equitable as it is simple, namely that in principle, while having regard to the special circumstances of the case, one should aim at an equal division of areas where the maritime projections of the coasts of the States ... converge and overlap.”1485.19With respect to the incidental issue of Colombia’s islands of San Andrés and Providencia/Santa Catalina, Nicaragua considers that the delimitation should not accord the islands a continental shelf beyond Nicaragua’s 200 nm limit. In the 2012 Judgment, the Court accorded Colombia’s islands very substantial continental shelf rights, extending along a 82 nm-wide corridor out as far as the 200 nm limit measured from Nicaragua’s baselines. That limit lies some 124 and 112 nm east of the islands of San Andrés and Providencia, respectively. The total maritime space already accorded to these islands, together with the territorial sea enclaves around Quitasueño and Serrana Cay, measures fully 48,750 sq km in area1495.20Considering that Colombia’s rights in this area emanate from what the Court itself has described as “a few small islands which are many nautical miles apart,”150no further enlargement of the continental shelf of San Andrés and Providencia is necessary; it should not extend east of Nicaragua’s 200 nm limit.148Nicaragua v. Honduras, para. 287 (quoting Gulf of Maine, para. 195)149The measurement excluding the territorial sea enclaves around Quitasueño and Serrana Cay is 42,836 sq km.150Nicaragua v. Colombia, para. 215.5.21Finally, 130
5.21 Finally, as discussed in Chapter 4, one issue left undetermined by the
Court in its 2012 Judgment relates to the maritime boundary vis-à-vis Colombia’s
Serranilla Cay and Bajo Nuevo.151 For the reasons explained, Nicaragua considers
it appropriate for the Court now to delimit the maritime boundary between
Nicaragua and Colombia in the vicinity of these two features. That boundary
should plainly be defined by a 12-nm territorial sea enclave drawn around each of
Serranilla and Bajo Nuevo, as these features are rocks as defined in article 121(3) of
the Convention.
5.22 Figure 5.2 is a reproduction of photographs of Serranilla and Bajo Nuevo
taken from Colombia’s Rejoinder in the Territorial and Maritime Dispute
(Nicaragua v. Colombia) 152 The two features are comparable to Roncador and
East-Southeast Cays, as Figure 5.3—consisting of photos also taken from
Colombia’s Rejoinder in the earlier case153—makes clear. They are certainly no
more significant and no more capable of sustaining human habitation or economic
life, than either Roncador or East-Southeast Cays.
151 See para. 4.16 above.
152 See Colombia’s Rejoinder p.176.
153 See Colombia’s Rejoinder p.174.
131
Figure 5.2Serranilla and Bajo Nuevo CaysFigure from Colombia’s Counter Memorial in Territorial and Maritime Dispute (Nicaragua v Colombia) Figures 2.9 and 2.10Figure 5.2 Serranilla and Bajo Nuevo Cays
132
Figure 5.3 Roncador and East-southeast Cays
Figure 5.3 Roncador and East-Southeast CaysReproduced from Colombia’s Counter Memorial in Territorial and Maritime Dispute (Nicaragua v Colombia) Figures 2.5 and 2.6
133
5.23The provisional delimitation of the continental shelf between Nicaragua and Colombia in the relevant area as described above is depicted in Figure 5.4.Figure 5.4Provisional DelimitationB.HondurasNicaraguaColombiaColombiaPanamaColombiaColombiaPanamaCosta RicaCosta RicaPanamaJamaicaColombiaNicaraguaCOLCOLNicaraguaColombiaJOINTREGIMEAREA(Col/Jam)75°W80°W10°N15°NAlburquerqueCaysEast Southeast CaysSan AndrésProvidenciaQuitasueñoCaySerrana CayRoncador CaySerranillaBajo NuevoCornIslandsPunta del MonoPunta CastilloPuerto LimonPuntaCahuitPunta MonaAlmirantePuntadePerlaS CatalinaGolfo deMorrosquilloCartagenaBarranquillaCabo de la AgujaRiohachaC Graciasà DiosGolfo de los MosquitosCabo de la VeraPunta GallinasPunta de la CruzPunta FaroPunta de la GaritoPunta CanoasP San BlasColonPunta BarúMiskitoCaysLondon ReefNICARAGUACOLOMBIACOSTA RICAPANAMA0100200 MFigure 5.4 Provisional Delimitation
134
B. Relevant Circumstances
5.24 Having identified the provisional delimitation line, the next question is
whether there are any relevant circumstances that justify an adjustment to or
shifting of that line. The answer is plainly “no”. There is no substantial disparity
in the length of the Parties’ relevant coasts, or unfair cut-off effect or any other
circumstance that might render the provisional delimitation line described above
inequitable.
5.25 Any putative cut-off resulting for the provisional delimitation line is
shared out equitably between the Parties. To be sure, Colombia is prevented from
extending its continental shelf out to the full extent of its 200 nm entitlement from
its mainland. But Nicaragua too is equally prevented from reaching the full extent
of its continental shelf entitlement, as defined by the outer limits of its continental
shelf beyond 200 nm.
5.26 The Court in the Black Sea case observed that “the line of delimitation
should allow the coasts of the Parties to produce their effects in terms of maritime
entitlements in a reasonable and mutually balanced way.” 154 The provisional
delimitation line satisfies this requirement.
5.27 Neither is there any cut-off in the region of Colombia’s islands that might
raise concerns about the equity of limiting those islands to the rights the Court
accorded them in its 2012 Judgment.
5.28 As stated, these small, widely separated islands have already been given
rights in the continental shelf encompassing an area of 48,750 sq km. Adding
territorial sea enclaves around Serranilla and Bajo Nuevo increases the figure to
154 Black Sea, para. 201.
135
51,850 sq km. This is much more than adequate. In assessing the equity of this result, it is useful to compare it to that achieved in thetwo most nearly analogous cases in the jurisprudence: the St. Pierre and Miqueloncase and the Channel Islandsarbitration. 5.29San Andrés and Providencia (including Santa Catalina) together measure just 51 sq km in area. Even including Colombia’s Alburquerque Cays, East‑Southeast Cays, Roncador, Serrana, Serranilla and Bajo Nuevo to in this measurement adds only 2 sq km, for a total of 53 sq km of land territory. The resulting ratio of sea to land areas is nearly 1,000:1. 5.30In comparison, St. Pierre and Miquelon together cover an area of 236 sq km, more than four times larger than Colombia’s insular possessions in the Caribbean. Yet, in the final result in that case, the French islands were accorded maritime rights over an area measuring just 12,402 sqkm, roughly one-quarter of that accorded to San Andrés and Providencia. The sea to land ratio was 53:1, more than 18 times lessthan in the case of Colombia’s islands.5.31The comparison with the Channel Islands arbitration is even more stark. The land area of the Channel Islands is 205 sq km. Yet, in its Award, the Court of Arbitration decided that an equitable solution entailed giving them maritime rights over an area measuring just 6,017 sq km. The resulting sea to land ratio was 29:1, more than 30 times lessthan in the case of Colombia’s small, mid-sea islands.5.32Nicaragua observes further that the maritime rights of the Channel Islands were limited to 12 nm in the northwest where they faced toward the U.K. and away from France. The Court of Arbitration came to this result even though the 12 nm enclave around the islands was separated from the mainland-to-mainland equidistance line that otherwise defined the Parties’ continental shelf boundary by just 7.5 nm at its closest point. This is shown in Figure 5.5.136
Figure 5.5 Continental Shelf awarded to the Channel Islands in UK v France
5.33 An analogous result is entirely appropriate in this case. Confining the
maritime rights of San Andrés and Providencia in the east to Nicaragua’s 200 nm
limit is more than equitable.
5.34 The most basic precept of maritime delimitation, first articulated by the
Court in the North Sea cases and repeated in virtually every adjudicated
delimitation since, is that “the land dominates the sea.”155 States acquire rights to
maritime areas as a result of the projection of their land territory seaward. 156
Equally fundamental is the principle that shorter coasts should generate smaller
areas of maritime rights. 157
155 I.C.J Reports 1969, p.52, para. 96.
156 See Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports
2009, p. 89, para. 77. North Sea Continental Shelf (Federal Republic of Germany/Denmark ;
Federal Republic of Germany/Netherlands) cases, “the land is the legal source of the power which
a State may exercise over territorial extensions to seaward” (Judgment, I.C.J. Reports 1969, p. 51,
para. 96). Similarly, in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, the Court
observed that “the coast of the territory of the State is the decisive factor for title to submarine
areas adjacent to it” (Application for Permission to Intervene, Judgment, I.C.J. Reports 1982, p.
61, para. 73).
157 I.C.J. Reports 1969, p.50, para 91,
12M6°E 4°2°50°49°NMaritime area awardedto Channel Islands12M continental shelfenclaveMedian lineMedian lineABCD ED1D2XX3X2X1D4D3X4YFGHIJKLF1MAwardAward02550 MUNITED KINGDOMFRANCEGuernseyJerseyCHANNELISEddystoneRockIsle ofWightScillyIslesIsland ofUshantENGLISHCHANNELCELTIC SEAGuethenbrasPointeGalaiteATLANTIC OCEANAlderneySarkNormandyBrittanyFigure 5.5 Continental Shelf awarded to the Channel Islands in UK v France
137
5.35Here, Colombia’s 53 sq km of land territory already dominates a huge portion of the western Caribbean Sea. These “few small islands which are many nautical miles apart”158warrant no more of the continental shelf than they have already been given; they already “enjoy reasonable entitlements in the areas into which [they] project.”159Adopting any other approach and giving them an additional portion of the continental shelf would be inequitable to Nicaragua.5.36As to the issue of the comparative coastal lengths, Nicaragua observes that the relevant coasts of the two States are roughly equal in length. As discussed in Chapter 4, Nicaragua’s mainland coast measures approximately 531 km along its natural configuration and 454 km when measured by means of a straight line that eliminates all sinuosities.160For its part, Colombia relevant mainland coast is 475 km in length measured alongits natural configuration and 453km usinga straight line. The ratio is thus very nearly 1:1.Even if Colombia’s islands areincluded as part of its relevant coast, the result does not change appreciably.1615.37Given the approximate equality of the Parties’ relevant coastal lengths,there is no issue of a disparity that might warrant an adjustment to the provisional delimitation line. In this respect, Nicaragua observes that in the Black Seacase, the Court concluded that the disparity in coastal length between Ukraine and Romania, which was 2.8:1 in favor of Ukraine, was not sufficient to constitute a relevant circumstance.162A fortiori, neither is themuch smaller difference in this case.158Nicaragua v. Colombia, para. 215.159Nicaragua v. Colombia, para. 216.160Seepara. 4.8 and figure 4.4 above. See also Nicaragua v. Colombia, para. 145.161As was set-out in paragraph 4.17 above only the east-facing coasts of San Andrés and Providencia and Santa Catalina constitute the relevant coasts for the second stage of the delimitation process . The length of these coasts of these islands along their natural configuration measures approximately 27 kilometres and measured along a straight line approximately 20 kilometres.162Black Sea, paras. 168, 215.5.38Thus, 138
5.38 Thus, there are no relevant circumstances that might justify the expansion
of the area already allocated to Colombia’s islands by the Court in its 2012
Judgment.
C. The Disproportionality Test
5.39 The third and final step of the delimitation process requires the Court to
consider whether the delimitation line determined by application of the first two
steps “lead[s] to any significant disproportionality by reference to the respective
coastal lengths and the apportionment of areas that ensue.”163
5.40 It is well-established that the purpose of this exercise:
“is not to attempt to achieve even an approximate correlation between the
ratio of the lengths of the Parties’ relevant coasts and the ratio of their
respective shares of the relevant area. It is, rather to ensure that there is
not a disproportion so gross as to ‘taint’ the result and render it
inequitable.”164
It is equally well-established that comparing the relevant coast ratio with
the relevant area ratio “remains in each case a matter for the Court’s
appreciation, which it will exercise by reference to the overall geography
of the area.”165
5.41 Dividing the relevant area by means of Nicaragua’s proposed delimitation
results in an allocation of 229,500 sq km of continental shelf to Nicaragua and
233,600 sq km to Colombia, including its mid-sea islands. 166 The ratio is, for
practical purposes, 1:1. Given the approximate equality in the length of the
Parties’ relevant coasts, Nicaragua’s proposed delimitation creates no
163 Black Sea, para. 210.
164 Nicaragua v. Colombia, para. 242.
165 Black Sea, para. 213.
166 This figure includes the territorial sea enclaves around Serranilla and Bajo Nuevo.
139
disproportion at all, let alone a disproportion that might taint the result and render it inequitable.The detailed results of the disproportionality analysis are presented in Figure 5.6.Nicaragua’sproposed delimitation therefore easily passes the disproportionality test and achieves the equitable solution the law requires.140
Figure 5.6 Final Delimitation and Disproportionality Analysis
HondurasNicaraguaColombiaColombiaPanamaColombiaColombiaPanamaCosta RicaCosta RicaPanamaJamaicaColombiaNicaraguaCOLCOLNicaraguaColombiaJOINTREGIMEAREA(Col/Jam)67 km (all the cays)453 km(straight lines)454 km(straight lines)12345678ABC75°W80°W10°N15°NAlburquerqueCaysEast Southeast CaysSan AndrésProvidenciaQuitasueñoCaySerrana CayRoncador CaySerranillaBajo NuevoCornIslandsPunta del MonoPunta CastilloPuerto LimonPuntaCahuitPunta MonaAlmirantePuntadePerlaS CatalinaGolfo deMorrosquilloCartagenaBarranquillaCabo de la AgujaRiohachaC Graciasà DiosGolfo de los MosquitosCabo de la VeraPunta GallinasPunta de la CruzPunta FaroPunta de la GaritoPunta CanoasPunta BarúMiskitoCaysLondon ReefNICARAGUACOLOMBIACOSTA RICAPANAMA0100200 MPANAMACoastsColombia = 453 km (520 km with islands)Nicaragua = 454 kmCoastal ratio = 1:1.0 (1:1.1 with islands)AreasColombia = 233,600 km2 (including enclaves)Nicaragua = 229,500 km2Area ratio = 1:1.0Figure 5.6 Final Delimitation and Disproportionality Analysis
141
5.42Accordingly, the continental shelf boundary between Nicaragua and Colombia in the area beyond 200 nm from Nicaragua’s coast but within 200 nm of Colombia’s mainland consists of geodesic lines connecting the turning points listed in Table 5.1(all coordinates are referred to WGS 84).Table 5.1PointLatitudeLongitude114° 43’ 20.6” N74° 34’ 49.1” W214° 21’ 53.4” N75° 15’ 39.3” W313° 59’ 29.8” N 76° 5’ 15.6” W413° 51’ 26.0” N 76° 21’ 57.1” W513° 46’ 6.1” N 76° 35’ 44.9” W613° 42’ 31.1” N 76° 41’-20.33” W712° 41’ 56.9” N 77° 32’ 27.4” W812° 15’ 38.3” N 77° 47’ 56.3” W5.43As to the continental shelf limits of San Andrés and Providencia, those follow the 200 nm limit measured from Nicaragua’s territorial sea baseline. Two 200 nm arcs define the delimitation line respectively measured from the following points on the low-water line of Nicaragua’s London Reef in the north and Little Corn Island in the south:London Reef14° 19’ 10.1” N 82° 35’ 25.3” WLittle Corn Island12° 16’ 31.9” N 82° 58’ 15.8” W5.44The resultant line consists of 200 nm arcs joining the points listed in Table 5.2(PointsA and B are those indicated by the Court in its 2012 Judgment as being the end points onthe lines drawn to indicate the northern and southern 142
limits of the maritime area attributed to Colombia by virtue of its mid-sea islands;
point C is where those 200 nm arcs intersect.167):
Table 5.2
Point Latitude Longitude
A 13° 46’ 35.7” N 79° 12’ 23.1” W
C 12° 42’ 24.1” N 79° 34’ 4.7” W
B 12° 24’ 9.4” N 79° 34’ 4.7” W
5.45 Finally, the 12-nm territorial sea enclaves around Serranilla and Bajo
Nuevo are measured as 12 nm arcs centred on the points 15° 47’ 50”N, 79° 51’
20”W, and 15° 51’ 00”N, 78° 38’ 00”W respectively. All coordinates are referred
to WGS84.
5.46 The resulting delimitation, labelled with all relevant points, is depicted in
Figure 5.7.
167 At the time of the 2012 Judgment, Nicaragua had not adopted legislation identifying the base
lines from which the breadth of the territorial sea should be measured. It was therefore not possible
for the Court to define the location of Points A and B with precision. Nicaragua has since enacted
legislation identifying its base lines. The coordinates for Points A and B in the table above have
been determined on the basis of those baselines.
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Figure 5.7Final DelimitationSUBMISSIONSFor WHondurasNicaraguaColombiaColombiaPanamaColombiaColombiaPanamaCosta RicaCosta RicaPanamaJamaicaColombiaNicaraguaCOLCOLNicaraguaColombiaJOINTREGIMEAREA(Col/Jam)12345678ABC75°W80°W10°N15°NAlburquerqueCaysEast Southeast CaysSan AndrésProvidenciaQuitasueñoCaySerrana CayRoncador CaySerranillaBajo NuevoCornIslandsPunta del MonoPunta CastilloPuerto LimonPuntaCahuitPunta MonaAlmirantePuntadePerlaS CatalinaGolfo deMorrosquilloCartagenaBarranquillaCabo de la AgujaRiohachaC Graciasà DiosGolfo de los MosquitosCabo de la VeraPunta GallinasPunta de la CruzPunta FaroPunta de la GaritoPunta CanoasP San BlasColonPunta BarúMiskitoCaysLondon ReefNICARAGUACOLOMBIACOSTA RICAPANAMA0100200 MFigure 5.7 Final Delimitation
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SUBMISSIONS
For the reasons given in the present Memorial, the Republic of Nicaragua requests
the Court to adjudge and declare that:
1. The maritime boundary between Nicaragua and Colombia in the areas of the
continental shelf which appertain to each of them beyond the boundary
determined by the Court in its Judgment of 19 November 2012, follows geodetic
lines connecting the points with the following co-ordinates:
Point Latitude Longitude
1 14° 43’ 20.6” N 74° 34’ 49.1” W
2 14° 21’ 53.4” N 75° 15’ 39.3” W
3 13° 59’ 29.8” N 76° 5’ 15.6” W
4 13° 51’ 26.0” N 76° 21’ 57.1” W
5 13° 46’ 6.1” N 76° 35’ 44.9” W
6 13° 42’ 31.1” N 76° 41’-20.33” W
7 12° 41’ 56.9” N 77° 32’ 27.4” W
8 12° 15’ 38.3” N 77° 47’ 56.3” W
2. The islands of San Andrés and Providencia are entitled to a continental shelf up
to a line consisting of 200 nm arcs from the baselines from which the territorial
sea of Nicaragua is measured connecting the points with the following coordinates:
Point Latitude Longitude
A 13° 46’ 35.7” N 79° 12’ 23.1” W
C 12° 42’ 24.1” N 79° 34’ 4.7” W
B 12° 24’ 9.4” N 79° 34’ 4.7” W
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3. Serranilla and Bajo Nuevo are enclaved and granted a territorial sea of twelve nautical miles.All coordinates are referred to WGS84.The Hague, 28 September 2016Carlos J. Argüello-GómezAgent of the Republic of NicaraguaCERTIFICATIONI 146
CERTIFICATION
I have the honour to certify that this Memorial and the documents annexed are
true copies and conform to the original documents and that the translations into
English made by the Republic of Nicaragua are accurate translations.
The Hague, 28 September 2016.
Carlos J. Argüello-Gómez
Agent of the Republic of Nicaragua
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