Counter-Memorial of Colombia

INTERNATIONAL COURT OF JUSTICE _____________________________________________ QUESTION OF THE DELIMITATION OF THE CONTINENTAL SHELF BETWEEN NICARAGUA AND COLOMBIA BEYOND 200 NAUTICAL MILES FROM THE NICARAGUAN COAST (NICARAGUA v. COLOMBIA) COUNTER-MEMORIAL OF THE REPUBLIC OF COLOMBIA VOLUME I 28 September 2017

TABLE OF CONTENTS
Chapter 1
INTRODUCTION. 1
A. The Present Case in Context.. 2
(1) History of the Proceedings. 2
(2) Key Issues Underlying the Case. 5
(3) The Caribbean as a Semi-Enclosed Sea and the San
A andrés Archipelago. 9
B. The Case of Colombia. 11
C. The Unsettling Implications of Nicaragua’s Claim. 16
(1) nullification of 200-Nautical-Mile Entitlements
by OCS Claims. 16
(2) usurpation of the Responsibilities of the CLCS . 22
(3) nicaragua’s Non-Recognition of the Maritime
E entitlements of Islands. 24
D. The Unsubstantiated Premises Underlying Nicaragua’s Case. 25
E. The Structure of this Counter-Memorial. 27
Chapter 2
APPLICABLE LAW AND BURDEN OF PROOF. 31
A. Introduction. 31
B. The OCS is a Non-Customary Internal UNCLOS Regime. 35
(1) the Privilege of Acquiring an OCS is Granted in
R return for Revenue-Sharing. 36
(2) the Realization of an OCS Claim Requires a
Prior Determination by the CLCS , an UNCLOS
I institution. 40
(3) in any Case, Nicaragua cannot rely on Article 76
of UNCLOS vis-à-vis Colombia . 42
C. Nicaragua has Not Respected the Procedure by which it Must
Prove that the Area Beyond 200 Nautical Miles is its OCS. 46
(1) the Conventional Procedure. 46
(2) nicaragua’s Claim and the Court’s Position with
R regard to the Conventional Procedure. 48
D. The Establishment of a Line of Delineation is the Exclusive
Prerogative of the CLCS, not the Court. 60
E. Conclusion. 67
iii
Chapter 3
A STATE’S ENTITLEMENT TO A 200-NAUTICAL-MILE EEZ
WITH ITS ATTENDANT CONTINENTAL SHELF PREVAILS
OVER ANOTHER STATE’S COMPETING OCS CLAIM. . . . . . . . . . 73
A. Background. 73
B. The Travaux Préparatoires of UNCLOS Confirm that the
EEZ of One State, with its Attendant Continental Shelf,
Prevails Over the OCS Claim of Another State. 76
(1) the Universalization and Central Importance of
the 200-Nautical-Mile Limit. 78
(2) distinction Between the EEZ and the OCS . 83
(3) the OCS , where Proved, was Intended to Infringe
S solely Upon the Common Heritage of Mankind. 88
(4) the EEZ with its Attendant Continental Shelf of
I islands and Mainland Prevails over the OCS
C claim of Another State. 95
(5) summary Conclusions - The Analysis of the Travaux
Préparatoires Confirms that the 200-nautical-mile
EEZ eez and Continental Shelf Entitlements of One
S state Prevail over the OCS Claim of Another
S state. 98
C. The Preponderance of State Practice Confirms that the
Entitlement of One State to an EEZ with its Attendant
Continental Shelf, Prevails over the OCS Claim of Another
State. 99
(1) state Practice Within 200 Nautical Miles from
the Baselines. 101
(2) state Practice in OCS Delimitation. 110
(3) gray Areas in State Practice. 116
(4) summary Conclusions – State Practice. 131
D. State Practice in CLCS Submissions. 132
E. The OCS in Doctrine. 144
(1) natural Prolongation is not the Source of Title
within 200 Nautical Miles from a State’s Baselines. 146
(2) supp ort for a Single Delimitation Line and
A avoidance of Gray Areas. 154
(3) Summary Conclusion on Doctrine. 159
F. Conclusion. 160
iv
Chapter 4
COLOMBIA’S MAINLAND AND ISLANDS EEZ WITH ITS ATTENDANT CONTINENTAL SHELF EXTENDS TO ITS FULL ENTITLEMENT OF 200 NAUTICAL MILES. 163
A. Introduction. 163
B. Colombia’s Mainland and Islands Generate and are Entitled
Ipso Jure to EEZs, Including their Attendant Continental
Shelves of 200 Nautical Miles. 165
C. The EEZ and Attendant Continental Shelf of Colombia’s
Mainland . 168
D. The EEZ and Attendant Continental Shelf of Colombia’s
Islands. 170
(1) the EEZ and Attendant Continental Shelf of
S san Andrés, Providencia and Santa Catalina. 170
(2) the EEZ and Attendant Continental Shelf of
C colombia’s Other Islands. 175
E. Conclusion . 286
Chapter 5
A REQUISITE OF EEZ AND OCS IS THAT THEY BE CONTIGUOUS TO THE TERRA FIRMA THAT GENERATES
THEM. 289
A. Introduction . 289
B. Nicaragua’s OCS Claim Disregards International Law
because Maritime Entitlements should be Contiguous to
the Coastline that Generates them. 290
(1) the Land Dominates the Sea . 291
(2) the State Practice of Avoiding the Fragmentation
and Balkanization of the Oceans. 294
(3) nicaragua’s OCS Claim is not Contiguous to its
B baselines and thus Must be Rejected. 300
(4) the Ipso Jure Titles of Colombia’s Islands Prevent
N nicaragua from Establishing a Continuous and
C contiguous Title Beyond 200 Nautical Miles
from its Coast . 302
C. Conclusion. 305
v
Chapter 6
THE RIGHTS OF THIRD STATES WOULD BE DIRECTLY AFFECTED BY NICARAGUA’S OCS CLAIM IN THE
SEMI-ENCLOSED CARIBBEAN SEA. 307
A. Introduction. 307
B. The Court, as a Matter of Principle, does not Draw Maritime
Boundaries that Encroach into Areas where Third States have
Legal Interests. 310
C. Nicaragua Cannot Invoke Maritime Delimitation Treaties to
which it is not a Party in Order to Confine the Legal Interests
of the Parties to those Agreements. 313
D. Any Delimitation Beyond 200 Nautical Miles from the
Nicaraguan Coast would Inevitably Encroach into Areas
where Third States have Legal Interests vis-à-vis Nicaragua. 318
E. Conclusion. 322
Chapter 7
NICARAGUA’S FAILURE TO DEMONSTRATE THAT THE NATURAL PROLONGATION OF ITS LAND TERRITORY EXTENDS BEYOND 200 NAUTICAL MILES FROM ITS COAST . 325
A. Introduction. 325
B. The Continental Shelf as the Natural Prolongation of the
Land Territory. 333
C. Nicaragua’s Natural Prolongation of Its Land Territory does
not Extend Beyond 200 Nautical Miles. 337
(1) nicaragua’s Previous Description of the Alleged
N natural Prolongation of its Land Territory. 338
(2) geological Discontinuities of the Alleged Natural
Prolongation of Nicaragua’s Land Territory. 351
(a) The Lack of Geological Continuity Between
the Upper Nicaraguan Rise and the Lower
Nicaraguan Rise. 355
(b) The Natural Prolongation of Nicaragua’s
Land Territory Terminates at the Pedro
Bank Escarpment . 358
(c) Examples of Similar and Contrasting
Factual Situations which Support
Colombia’s Position. 365
vi
(3) geomorph ological Discontinuity Interrupting
the Natural Prolongation of Nicaragua’s Land
T territory. 369
(a) The Lack of Geomorphologic Continuity
Between the Upper Nicaraguan Rise and
the Lower Nicaraguan Rise . 369
(b) Nicaragua’s Attempt to Gloss Over the
Discontinuities . 380
D. Conclusion. 386
Chapter 8
SUMMARY AND CONCLUSIONS. 389
SUBMMISIONS. 399
APPENDIX. 401
LIST OF ANNEXES AND FIGURES. 447
vii
viii
Chapter 1
INTRODUCTION
1 1 Colombia is submitting this Counter-Memorial pursuant
to the Court’s Order dated 28 April 2016, fixing 28 September
2017 as the time-limit for its filing
1 2 As Colombia will show, Nicaragua’s contention that the
Court should delimit the continental shelf beyond 200 nautical
miles from Nicaragua’s coast on the basis of a median line
between Colombia’s 200-nautical-mile entitlement from its
mainland coast (ignoring completely Colombia’s islands) and
the outer limits of Nicaragua’s putative outer continental shelf
(OCS) is ill-conceived and factually and legally unfounded It is
also prejudicial to Colombia, to regional States in the Caribbean
and to the international community at large Accordingly, the
Court should not proceed to any further delimitation of the
continental shelf beyond the delimitation it already carried out in
its 2012 Judgment in the Territorial and Maritime Dispute case 1
1 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Judgment, I.C.J. Reports 2012, p. 624 (hereinafter “Territorial and Maritime
Dispute” and “2012 Judgment”, respectively).
1
A. The Present Case in Context (1) HISTORY OF THE PROCEEDINGS 1 3 Nicaragua instituted proceedings against Colombia in 2001. The case lasted 11 years, culminating in the Court’s Judgment of 19 November 2012 During the first eight years of the case, Nicaragua asked the Court to delimit a single maritime boundary comprising the continental shelf and Exclusive Economic Zone (EEZ) which, by definition, could not extend more than 200 nautical miles from Nicaragua’s coast. Nicaragua’s considered position at that time was as follows: “The position of the Government of Nicaragua is that geological and geomorphological factors have no relevance for the delimitation of a single maritime boundary within the delimitation area.”2 1 4 It was only in 2009, with Nicaragua’s last written pleading, that Nicaragua radically changed its claim by requesting the Court no longer to delimit a single maritime boundary between the two countries, but the continental shelf supposedly lying beyond Nicaragua’s 200-nautical-mile limit Contrary to its original position, that claim was based entirely on geology and geomorphology The Parties fully argued that claim, with Colombia demonstrating that it was legally and factually untenable 2 Territorial and Maritime Dispute, Memorial of Nicaragua, pp 215-216, para 3 58 2
1 5 In its 2012 Judgment, the Court ruled that Nicaragua had
not established any entitlement to a continental shelf extending
more than 200 nautical miles from its coast 3 Accordingly, in the
operative part of its Judgment, the Court decided that it could
not uphold Nicaragua’s relevant submission. The Court
therefore delimited the single maritime boundary between the
Parties, which had been Nicaragua’s original request, out to a
distance of 200 nautical miles from Nicaragua’s coast. In
Colombia’s view, this should have been a full and final
delimitation
1 6 In June 2013, thirteen years after it had become a Party
to the United Nations Convention on the Law of the Sea
(UNCLOS or the Convention), Nicaragua filed a submission to
the Commission on the Limits of the Continental Shelf (CLCS
or the Commission) 4 This submission was strongly objected by
Colombia, Costa Rica, Panama and Jamaica 5
3 2012 Judgment, p 669, para 129
4 Republic of Nicaragua, Central America, Submission to the
Commission on the Limits of the Continental Shelf, pursuant to Article 76,
paragraph 8 of the United Nations Convention on the Law of the Sea, 1982,
June 2013 (Submission of Nicaragua)
5 Note S-DM13-014681 dated 22 April 2013 from the Ministry of
Foreign Affairs of Colombia (Annex 19); Note S-DM-13-035351 dated 24
September 2013 from the Ministry of Foreign Affairs of Colombia (Annex
20); Note Verbale dated 5 February 2014 (Annex 21); Note MCRONU-438-
2013 dated 15 July 2013 from the Permanent Mission of Costa Rica to the
United Nations (Annex 22); Letter dated 20 January 2014 from the
Permanent Representative of Costa Rica to the United Nations (Annex 23);
Note DGPE/DG/665/22013 dated 30 September 2013 from the Ministry of
Foreign Affairs of Panama (Annex 24); Note DGPE/FRONT/082/14 dated 3
February 2014 from the Ministry of Foreign Affairs of Panama (Annex 25);
Note LOS/15 dated 12 September 2013 from the Permanent Mission of
Jamaica to the United Nations (Annex 26) In addition, the Governments of
Colombia, Costa Rica and Panama objected jointly to Nicaragua’s
3
1 7 Given the semi-enclosed nature of the Caribbean Sea, none of the other 22 Caribbean States considers that there are any areas of OCS in the Caribbean, and none has filed submissions with the CLCS to that end To date, the Commission has taken no action with respect to Nicaragua’s submission Therefore, the current position before the CLCS is not materially different from that which existed when the Court rendered its 2012 Judgment 1 8 On 16 September 2013, Nicaragua filed an Application Instituting Proceedings in the present case Because Colombia considered that the Court lacked jurisdiction to entertain Nicaragua’s claim, it filed Preliminary Objections. In one of those Preliminary Objections Colombia held that the res judicata principle prevented the Court from re-opening the dispute and entering into an analysis of the possibility to proceed to a second delimitation beyond 200 nautical miles 1 9 While the majority of the Court did not accept Colombia’s contention, eight judges considered that this dispute could not be re-opened, because if Colombia were forced to appear again before the Court and argue about an issue already decided in the 2012 Judgment, the ne bis in idem principle would be disregarded 6 Colombia continues to believe this is the Submission: Joint Communication dated 23 September 2013 (Annex 27) and Joint Communication dated 5 February 2014 (Annex 28) 6 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Judgment of 17 March 2016 (2016 Judgment) See also Joint Dissenting Opinion of Vice- 4
and deems that there is no room for a second delimitation
Nevertheless, Colombia has considered necessary to present its
arguments in order to demonstrate that there can be no further
delimitation of the continental shelf as between itself and
Nicaragua
(2) KEY ISSUES UNDERLYING THE CASE
1 10 In its Memorial, Nicaragua asserts that “(t)his 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”.7 This is incorrect
1 11 It is also significant that the Court has labelled this case
“Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 nautical miles from the
Nicaraguan Coast”.8 This underscores the fact that the case is
not at all about the delimitation of a putative continental shelf
beyond 200 nautical miles from Nicaragua’s coast, as Nicaragua
President Yusuf, Judges Cançado Trindade, Xue, Gaja, Bhandari, Robinson
and Judge ad hoc Brower
7 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
(Memorial of Nicaragua), p 1, para 1 1
8 Emphasis added. It is the first time that this is done in the Court’s
practice In none of the previous cases concerning maritime delimitations it
has dealt with has the title of the case been preceded by the words “Question
of…”.
5
puts it in its Application,9 and the continental shelf of Colombia It is really about the “Question” whether such delimitation is at all feasible 1 12 There are serious legal, factual and policy issues underlying that “question”, the response to which strongly militates against the Court proceeding to any further maritime delimitation between Nicaragua and Colombia These include the following: • Customary international law, as attested in the overwhelming practice of States, as well as the object and purpose of UNCLOS – including its travaux préparatoires – demonstrate that the ipso jure entitlements of coastal States to a 200-nautical-mile continental shelf, as an integral part of the EEZ regime, prevail over any putative outer continental shelf that another State may claim beyond 200 nautical miles from its baselines Nicaragua is claiming continental shelf areas that fall wholly within the ipso jure 200-nautical-mile entitlements of Colombia’s islands and mainland, not to mention the 200-nautical-mile notional 9 In its Application, Nicaragua asserts that “(t)he dispute concerns the delimitation of the boundaries between, on the one hand, the continental shelf of Nicaragua 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”. Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v Colombia), Application Instituting Proceedings, filed in the Registry of the Court on 16 September 2013 (Application), p 2, para 2 6
entitlements of third States As a result, the Court is
faced with whether a Nicaraguan claim that flaunts these
principles can be entertained
• Under international law islands enjoy the same maritime
entitlements as other land territories. All of Colombia’s
islands forming the Archipelago of San Andrés,
Providencia and Santa Catalina (the San Andrés
Archipelago or the Archipelago) are clearly not “rocks”,
and therefore possess the full suite of maritime
entitlements accorded to other land territory The Court
is thus faced with the question whether Nicaragua’s OCS
claim, which ignores the continental shelf entitlements
generated by Colombia’s islands, as part of their ipso
jure 200-nautical-mile EEZ regime, runs counter to the
ordinary meaning of Article 121 of UNCLOS, customary
rules governing the matter and the weight of State
practice
• The maritime entitlements to the east of the Colombian
islands merge and overlap with the maritime entitlements
generated by Colombia’s mainland. According to what
the Court found in its 2012 decision, the islands of San
Andrés, Providencia and Santa Catalina lie at
approximately 380 nautical miles from the Colombian
mainland, the island of Roncador at 320 nautical miles,
the islands of Bajo Nuevo and Serrana at 360 nautical
7
miles and the island of Serranilla at 400 nautical miles 10 As a consequence, it can be easily appreciated that the projections of Colombia’s EEZ with its attendant continental shelf, whether from its mainland or islands, preclude Nicaragua from sustaining any OCS claim which inevitably encroaches upon the 200-nautical-mile ipso jure entitlements from Colombia • States Parties to UNCLOS can only lawfully establish the outer limits of their continental margin beyond 200 nautical miles based on the prior recommendations of the CLCS. Since Nicaragua’s delimitation claim requests the Court to delimit the area between the alleged outer limits of its margin and Colombia’s 200-nautical-mile entitlement drawn from its mainland, it is necessarily asking the Court first to delineate the outer limits of the margin – a task that is expressly reserved to the CLCS The question therefore arises whether, in the light of the institutional division of responsibilities in the United Nations system, it is at all appropriate for the Court to undertake such a task, effectively allowing a State Party to UNCLOS to bypass the requirements of Article 76 of UNCLOS and the CLCS rules and procedures 10 2012 Judgment, p 638, para 22 and pp 640-641, para 24 All of these Colombian Islands are located in the San Andrés Archipelago The maritime entitlements of the islands of Alburquerque Cays, East-Southeast Cays and Quitasueño are not discussed in this pleading insofar as they are located in the western sector of the Archipelago Due to their geographical location, the 200 nautical miles entitlements projecting from these three islands would in any event entirely overlap with the entitlements appertaining to the islands of San Andrés, Providencia and Santa Catalina 8
• The CLCS is a specialized body comprised of 21
scientific experts all well-versed in the fields of geology,
geomorphology and hydrography It has established
rigorous scientific criteria that must be met by any State
seeking to substantiate an outer continental shelf
submission and establish the outer limits of the margin
The question thus arises whether a judicial body such as
the Court is in a position to substitute itself for the
CLCS
• The Court has been careful not to prejudice third States
in delimitation-related cases Colombia fully respects and
complies with the boundary treaties it has signed in the
Caribbean Sea with, inter alia, Panama, Jamaica, Haiti
and the Dominican Republic In this case, however,
Nicaragua’s OCS claim and the delimitation line it
advances trespass on areas that fall within 200 nautical
miles of third States, thus prejudicing the legal interests
of such States
(3) THE CARIBBEAN AS A SEMI-ENCLOSED SEA AND THE SAN
ANDRÉS ARCHIPELAGO
1 13 The Caribbean is a classic example of a semi-enclosed
sea, as are, inter alia, the Black Sea, the Mediterranean Sea, the
Baltic Sea, the North Sea and the Arctic Ocean 11 It is also of
11 M H Nordquist, S N Nandan and S Rosenne (eds ), United
Nations Convention on the Law of the Sea 1982. A commentary, The
Hague/London/Boston, Center for Oceans Law and Policy - University of
9
the utmost environmental importance, both regionally and globally 12 With the purpose of preserving the environment and maintaining the delicate ecosystem equilibrium in the region, Colombia has adopted a series of protection measures in the San Andrés Archipelago, as will be further elaborated.13 These measures have been adopted in order to protect the environment and inhabitants of the Archipelago, as well as future generations and the sustainability of the region as a whole Virginia School of Law / Martinus Nijhoff, (Virginia Commentary), Vol III, 1995, p 348; B. Vukas, “Enclosed and semi-enclosed sea”, Revue Iranienne des Relations Internationales / Center for International Studies, Tehran University, 1973, Spring, Nos 11-12, pp 184, 187-188; L M Alexander, “Regionalism and the Law of the Sea: The Case of Semi-enclosed Seas”, Ocean Development and International Law, 1974, Vol 2, pp 155, 158-159; E Guhl, B M Ratter, G Sandner, et al, Conflictos territoriales en el espacio marítimo del Caribe: trasfondo de intereses, características y principios de solución, 1997, in passim; N. A. Hu, “Semi-enclosed Troubled Waters: A new thinking on the application of the 1982 UNCLOS Article 123 to the South China Sea”, Ocean Development and International Law, Vol 41, 2010, p. 289; M. H. Loja, “Who owns the oil that traverses a boundary on the continental shelf in an enclosed sea? Seeking answers in natural law through Grotius and Selden”, Leiden Journal of International Law, Vol 27, 2014, pp 908-909; D. Freestone and C. Schofield, “The Caribbean Sea and Gulf of Mexico”, in D. R. Rothwell, A. G. Oude Elferink, et al (eds ), The Oxford Handbook of the Law of the Sea, Oxford University Press, 2015, p 673; United Nations Economic Commission for Latin America and the Caribbean, “Major issues in the management of enclosed or semi-enclosed seas, with particular reference to the Caribbean Sea”, UN Doc. LC/CAR/L.24, 2004, p. 2, available at: http://www cepal org/publicaciones/xml/1/20811/L0024 pdf (last visited 17 Sep 2017); United Nations, Report of the Secretary-General, Programme performance of the United Nations for the biennium 2004-2005, 20 April 2006, UN Doc A/61/64, available at: https://documents-dds- ny un org/doc/UNDOC/GEN/N06/275/24/PDF/N0627524 pdf?OpenElement (last visited 17 Sep 2017); Proposed Work Programme for the Caribbean Sea Commision, UN Doc LC/CAR/L 121, 4 June 2007, available at: http://repositorio cepal org/bitstream/handle/11362/27639/1/LCcarL121_en pdf (last visited 17 Sep 2017); see also Continental Shelf (Libyan Arab Jamahiriya/Malta) Judgment, I.C.J. Reports 1985, Separate Opinion of Judges Ruda, Bedjaoui and Jiménez de Aréchaga, p 78, para 7 12 United Nations General Assembly, Resolution 63/214, 19 December 2008, “Towards the sustainable development of the Caribbean Sea for present and future generations”. 13 See Chapter 4 infra 10
B. The Case of Colombia
1 14 For a number of reasons – legal, factual, and
procedural – Colombia’s position with respect to the “Question”
of the delimitation of the continental shelf beyond 200 nautical
miles from the Nicaraguan coast is that:
(i) Nicaragua has not demonstrated and cannot demonstrate
that it has a natural prolongation of its land territory
which extends up to and beyond 200 nautical miles from
its coast Therefore, Nicaragua has no entitlement to an
OCS
(ii) Nicaragua’s alleged OCS cannot encroach upon
Colombia’s entitlements to an ipso jure EEZ with its
attendant continental shelf
(iii) Based on the aforesaid, there is nothing to be delimited
1 15 Indeed, with its claim Nicaragua seeks to re-write the
Law of the Sea relating to OCS claims to the prejudice of
Colombia and other States in semi-enclosed sea settings such as
the Caribbean, to reorder the regime relating to the continental
shelf that exists under UNCLOS, and to evade the burden of
proof it would bear were it properly before the CLCS To
endorse Nicaragua’s claim in such circumstances would have
highly unsettling implications for States throughout the world
11
1 16 Nicaragua has not proven that it has an OCS Nicaragua must demonstrate that the OCS areas it claims constitute the contiguous and uninterrupted natural prolongation of its landmass into and under the sea towards Colombia By relying on geomorphologic profiles that deliberately avoid the area in question, by extending its projection into the seabed in a dog-legged manner from Honduran territory towards Jamaica (not Colombia), and by failing to take into account the geological and geomorphological discontinuities that interrupt the physical continental shelf long before the Hess Escarpment is reached, Nicaragua has presented a distorted picture of the scientific facts 1 17 Nicaragua also ignores the presence of several major discontinuities west and north of the San Andrés Archipelago Indeed, a series of deep troughs, escarpment and fracture zone features represent examples of fundamental discontinuities in the physical continental shelf that truncate any natural prolongation from Nicaragua before the 200-nautical-mile limit is reached These include a deep trench (the Providencia Trough) that lies between Nicaragua’s mainland coast and Colombia’s islands, extending to depths of over 2,500 metres, and a major fracture zone (the Pedro Bank Escarpment), stretching to the north Colombia is including with this Counter-Memorial a scientific report produced by Dr Lindsay Parson, a widely recognized expert in the field of continental shelf claims, 12
and Mr Peter Croker, former Chairman of the CLCS14 This
report details the relevant geology and geomorphology of the
region and exposes the flaws in Nicaragua’s thesis.
1 18 As to the law, the OCS regime is a conventional regime
that is not opposable to Colombia Moreover, Nicaragua must
respect its obligations under a treaty that is binding on her The
negotiating history of UNCLOS makes it clear that, when the
regime of the OCS was agreed, States did not consider that
continental shelf claims beyond 200 nautical miles should
encroach on, let alone prevail over or “trump”, another State’s
ipso jure 200-nautical-mile entitlement to an EEZ, which
includes an entitlement to its attendant continental shelf,
whether that entitlement is generated by a mainland coast or by
islands This principle is reflected in subsequent State practice,
which shows that the overwhelming majority of States claiming
an OCS consciously avoid claiming areas falling within 200
nautical miles of the mainland or insular territory of another
State In fact, States Parties to UNCLOS which make
submissions to the CLCS, routinely stop their OCS claims when
they reach the 200-nautical-mile limit of another State with
opposite coasts 15 Nicaragua’s claim in this case is plainly
14 Dr Parson is the Managing Director of Maritime Zone Solutions Ltd
He is the Technical Lead and permanent member of the United Kingdom’s
delegation to the CLCS, and was the UK member of the Legal and Technical
Commission of the International Seabed Authority between 2001 and 2006
Mr Croker is a former member of the CLCS who served on the Commission
for three terms (1997-2012), and was Chairman of the Commission from
2002 to 2007
15 States that have stopped their OCS claims at the 200-nautical-mile
limit of another State include Bahamas, Barbados, Canada, the Cook Islands,
13
incompatible with this principle and this, in and of itself, is a reason why that claim should be rejected 1 19 Nicaragua’s contentions in the case against Colombia also seek to do away with the principle of international law according to which islands have the same maritime entitlements as other land territory and are inconsistent with the way Nicaragua treats its own small islands and reefs 1 20 With respect to the first point, Nicaragua’s claim would deprive the Colombian islands comprising the San Andrés Archipelago from their ipso jure entitlement to a 200-nautical- mile EEZ with its attendant continental shelf However, as Colombia will demonstrate in this Counter-Memorial, no OCS claim by one State may encroach upon another State’s entitlement to an EEZ with its attendant continental shelf The Court has already recognized that the islands of San Andrés, Providencia and Santa Catalina have an entitlement to an EEZ with its attendant continental shelf that extends up to 200 nautical miles in each direction, specifically east of Nicaragua’s 200-nautical-mile range 16 Colombia will demonstrate that all its islands in the area enjoy the same entitlements and that this is entirely consistent with State practice Federated States of Micronesia, Fiji, France, Gabon, Iceland, India, Japan, Kiribati, Maldives, Mozambique, Myanmar, New Zealand, Norway, Palau, Pakistan, Papua-New Guinea, Spain, Solomon Islands, Sri Lanka, Tonga, Tanzania, United Kingdom and Yemen, among many others See further Annex 50 16 2012 Judgment, p 686, para 168 and pp 691-692, para 180 14
1 21 Moreover, any OCS grant to Nicaragua would run
counter to the established international practice that the
maritime titles of a State must be contiguous to its baselines;
nowhere in its Memorial has Nicaragua established that it
possesses a contiguous maritime title extending from its coast up
to its 200-nautical-mile range and, from there, to any part of
what it considers to be its OCS
1 22 As for the second point, Nicaragua measures its
continental shelf entitlement from a few scattered reefs situated
well off its northern coast and from Little Corn Island in the
south 17 While these tiny features, some of which are not even
islands, are claimed to be entitled to an OCS located well
beyond Nicaragua’s 200-nautical-mile limit, Nicaragua would
amputate the 200-nautical-mile entitlements generated by
Colombia’s islands. This is entirely self-serving and is
illustrative of the one-sided nature of Nicaragua’s case
1 23 Procedurally, Nicaragua’s claims fail to comply with the
requirement incumbent on all State Parties to UNCLOS to
obtain a recommendation of the CLCS after passing an intensive
vetting process that meets the Commission’s stringent scientific
methodologies On two occasions, the Court has emphasized
that “any claim of continental shelf rights beyond 200 miles (by
a State Party to UNCLOS) must be in accordance with Article
76 of UNCLOS and reviewed by the Commission on the Limits
17 See Memorial of Nicaragua, Figure 1 2, p 23
15
of the Continental Shelf established thereunder”.18 Moreover, the Court has also noted that the fact that Colombia is not a Party to UNCLOS “does not relieve Nicaragua of its obligations under Article 76 of that Convention”.19 Merely lodging a submission with the CLCS does not satisfy those requirements; nor does it prove the existence of OCS entitlements 20 C. The Unsettling Implications of Nicaragua’s Claim 1 24 There are additional reasons why the Court should decline to proceed to any further maritime delimitation between Colombia and Nicaragua Indeed, in the unlikely eventuality that Nicaragua’s claim to an OCS is accepted, such a decision would have alarming repercussions for all States in the Caribbean region as well as for the international community as a whole Three reasons in particular should be mentioned: (1) NULLIFICATION OF 200-NAUTICAL-MILE ENTITLEMENTS BY OCS CLAIMS 1 25 As noted above, no other riparian State in the Caribbean Sea has ever claimed that it is entitled to continental shelf rights 18 2012 Judgment, p 669, para 126, citing Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p 759, para 319 (Nicaragua v. Honduras) 19 2012 Judgment, p 669, para 126 20 This is the consistent position of doctrinal writings See B Kunoy, “The Delimitation of an Indicative Area of Overlapping Entitlement to the Outer Continental Shelf”, British Yearbook of International Law, Vol 83, 2013, pp. 61, 77; M. Lando, “Delimiting the Continental Shelf beyond 200 nautical miles at the International Court of Justice: the Nicaragua v Colombia cases”, Chinese Journal of International Law, Vol 16, 2017, p 154 16
beyond 200 nautical miles from its coast therein This regional
practice stems from the recognition that there are no maritime
areas in a semi-enclosed sea such as the Caribbean that are more
than 200 nautical miles from the nearest land territory As Costa
Rica underscored during the recent oral proceedings in the Costa
Rica v. Nicaragua delimitation case:
“Nicaragua has twice raised the issue of the
continental shelf beyond 200 nautical miles
Costa Rica does not request a delimitation of this
zone because all of the areas of continental shelf
in the Caribbean Sea lie within 200 nautical miles
of the coast of one or more Caribbean State
Therefore Costa Rica finds it inappropriate to
make such a claim in the confined geography of
the region.”21
Noticeably, Nicaragua chose to leave this contention
unanswered 22
1 26 In these circumstances, it is understandable that, with the
exception of Nicaragua, which only made a submission in 2013
after its cases concerning maritime delimitation with Honduras
and Colombia were finished, no other Caribbean State has made
an OCS submission to the CLCS relating to areas within the
21 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean
(Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla
Portillos (Costa Rica v. Nicaragua), Public Sitting 10 July 2017, CR
2017/14, p 11, para 3(c) (Lathrop)
22 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean
(Costa Rica v Nicaragua) and Land Boundary in the Northern Part of Isla
Portillos (Costa Rica v. Nicaragua), Public Sitting 13 July 2017, CR
2017/15, p 47, para 35 (Reichler)
17
Caribbean Sea 23 Nicaragua’s submission was strongly objected to by all its neighbouring States 1 27 Nicaragua’s OCS claim not only extends far inside the 200-nautical-mile entitlements of Colombia’s mainland and islands, it also extends within 200 nautical miles of the coasts of Panama, Jamaica and Haiti Hence, Nicaragua’s claim encroaches into areas where third States may have legal interests in a manner that is prejudicial to them Furthermore, it should be noted that Colombia is respectful of the maritime boundaries established in treaties signed with neighbouring States, whereby marine and submarine areas have been delimited within each State’s 200-nautical-mile ipso jure entitlements 1 28 Were such a claim to be countenanced by the Court, it would have serious consequences for the region by jeopardizing existing agreements and giving rise to heightened tensions amongst the riparian States and a whole series of new disputes This would be a regrettable development for the relations between the Caribbean States and for the Court in its role as the principal judicial organ of the United Nations 1 29 The adverse implications of Nicaragua’s outer continental shelf claim are not limited to the immediate region; they have world-wide implications of the most disturbing kind 23 Other Caribbean States that have presented submissions before the CLCS are Bahamas, Barbados, Costa Rica, Guyana, France (French Guyana and Antilles), Surinam and Trinidad and Tobago These submissions refer either to the Atlantic Ocean or to the Pacific Ocean None of them refers to the Caribbean Sea 18
1 30 Many coastal States have claimed OCS rights based on
the regime of Article 76 of UNCLOS, and have made
submissions to the CLCS, as they are obliged to do if they are
parties to UNCLOS The overwhelming majority of such States
have exercised restraint in making their submissions by ensuring
that they do not claim areas of OCS that encroach upon the 200-
nautical-mile entitlements of other States In other words, State
practice attests to the fact that States do not interpret Article 76
as providing a legal basis for OCS claims from its baselines –
whether situated on mainland territory or islands – within
another State’s ipso jure 200-nautical-mile EEZ with its
attendant continental shelf
1 31 Acceptance of Nicaragua’s OCS claim would have
disturbing effects over the orderly management of the seas, not
only the Caribbean but other closed or semi-enclosed seas, and
other regions around the world Additionally, State practice
confirms that insular features such as those of Colombia are
accorded full maritime entitlements Were the Court to entertain
Nicaragua’s claim, the entitlements of such features all around
the globe would be called into question, which would be
profoundly unsettling 24
1 32 Should the Court countenance this claim, it would also
be sending a message to States that they are free to claim an
OCS within the 200-nautical-mile entitlements of other States –
a development that would be contrary to international law and
24 See Chapter 4 infra
19
bound to provoke numerous disputes where none existed before Moreover, there is no guarantee that such claims would be limited to maritime areas where the coasts of two States are more than 400 nautical miles apart If excessive OCS claims based on geology and geomorphology can encroach upon ipso jure 200-nautical-mile entitlements, there would be nothing to prevent States bordering closed or semi-enclosed seas from making such geological and geomorphological OCS claims beyond their 200-nautical-mile limits which would dramatically amputate the entitlements of other riparian States This would also have the effect of running counter to the Court’s ruling in its 1985 Judgment in the Libya/Malta case that “there is no reason to ascribe any role to geological and geophysical factors within that distance (200 nautical miles) either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims”.25 1 33 In short, contrary to Nicaragua’s contention in its Memorial,26 there is a legal distinction between continental shelf rights that exist within 200 nautical miles of the baselines from which the breadth of a State’s territorial sea is measured, as an integral part of the EEZ regime, and the claim of a coastal State to a continental shelf extending beyond 200 nautical miles The former need not be proved; they exist as a matter of law In contrast, OCS claims not only have to be proved on geological and geomorphological grounds; their outer limits must be based 25 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p 35, para 39 (Libya/Malta) 26 Memorial of Nicaragua, p 18, para 1 36 20
on recommendations received from a United Nations scientific
body, the CLCS 27
1 34 In the current case, Nicaragua has failed to prove that it
has a continuous continental shelf extending through and
beyond 200 nautical miles from its baselines; failed to show
how such a claim that encroaches on the 200-nautical-mile
entitlements of other States is compatible with customary
international law or UNCLOS and failed to have its natural
prolongation verified and its outer limits reviewed and
confirmed scientifically by the CLCS The mere fact that
Nicaragua made a submission to the CLCS in June 2013 after
the Court rendered its Judgment in 2012 does not change the
situation that existed as of the date of the Judgment and proves
nothing This leads to the next problem with the Nicaraguan
claim
27 2012 Judgment, Dissenting Opinion of Judge Owada, p 725,
para 14
21
(2) USURPATION OF THE RESPONSIBILITIES OF THE CLCS 1 35 Apart from not being based on the natural prolongation of its land territory into and under the sea, Nicaragua’s OCS claim against Colombia also has the effect of compelling the Court to usurp the role of the CLCS in the establishment of the outer limits of the continental shelf under UNCLOS This is contrary to explicit treaty commitments and would undermine the international institutional divisions of responsibility 1 36 The task of reviewing the claims of a State Party to UNCLOS (such as Nicaragua) concerning the outer limits of the continental shelf, and making recommendations on the basis of which the coastal State can establish such limits, is the exclusive prerogative of the CLCS under Article 76, paragraph 8, of UNCLOS Nicaragua would dispense with the CLCS, which is comprised of technical scientific experts specifically experienced in the field, and replace it with the Court This is inconsistent with the provisions of UNCLOS, which embody the package deal upon which OCS claims were legitimized, and at odds with the institutional division of responsibility State Parties to UNCLOS should not be allowed to circumvent its provisions and carefully designed procedures by asking another body to determine their outer limits; this modus operandi would undermine the raison d'être behind the safeguards the State Parties prescribed to avoid excessive maritime claims 22
1 37 Moreover, unlike in the Bay of Bengal cases, where
delimitations were carried without a need to determine the
precise outer limit of the OCS, the present case does not allow
for such a scenario The distinguishing factors include that, in
this case: (i) the Respondent State is not a Party to UNCLOS
and has persistently objected to the OCS regime provided
therein; (ii) it concerns States with opposite coasts in a region
where there are no areas beyond 200 nautical miles from the
nearest land territory; (iii) Nicaragua’s delimitation claim does
depend on the prior identification of the outer limits of its
alleged OCS, a task reserved to the CLCS; (iv) unlike the Bay of
Bengal, the Caribbean Sea does not pose a “unique situation”
regarding the existence of a continental shelf beyond 200
nautical miles; (v) the scientific facts are heavily contested and
there is decisive scientific evidence which disproves
Nicaragua’s case; and (vi) the Applicant’s OCS claim is also
contested by many other States in the region and attempts to
trespass upon their ipso jure 200-nautical-mile EEZ with their
attendant continental shelves The particular circumstances of
this case thus make it completely inappropriate for the Court to
substitute itself for the CLCS and proceed with a delimitation
23
(3) NICARAGUA’S NON-RECOGNITION OF THE MARITIME ENTITLEMENTS OF ISLANDS 1 38 Nicaragua’s contentions also have unsettling implications for other States that have legitimate claims to 200-nautical-mile entitlements from their islands As observed above, States that claim OCS rights invariably refrain from claiming such rights within 200 nautical miles of land territories, including islands belonging to another State or States Acceptance of Nicaragua’s claim made against Colombia would be contrary to State practice, undermine the prudent restraint that States have hitherto shown in this respect, and sow the seeds of disruption and disputes 1 39 It is one thing to give small islands a reduced effect for the delimitation of a single maritime boundary when the areas being delimited fall less than 200 nautical miles from the territory of both States It is quite another matter, however, to ignore the entitlements of islands to their 200-nautical-mile EEZ with its attendant continental shelf, when the neighbouring State lies more than 200 nautical miles from that zone However, that is precisely what Nicaragua seeks to achieve in the present case before the Court, despite the fact that it measures its own entitlement from a series of small reefs that lie a considerable distance off its mainland coast 1 40 Nicaragua thus adopts a double standard: it accords to its own tiny features full 200-nautical-mile and OCS rights, while ignoring the 200-nautical-mile entitlements generated by 24
Colombia’s islands. Yet State practice shows that islands having
characteristics similar to those of Colombia are recognized as
having 200-nautical-mile entitlements Acceptance of
Nicaragua’s argument that Colombia’s islands are not entitled to
an EEZ with its attendant continental shelf would not be
consistent with the manner in which States interpret their rights
under international law Moreover, an OCS claim based upon
geology and geomorphology, is not considered a source of title
within 200 nautical miles from another State’s baselines, nor can
it prevail over the ipso jure entitlements of that State, regardless
of whether those 200-nautical-mile entitlements are generated
by mainland or island territory
D. The Unsubstantiated Premises Underlying Nicaragua’s
Case
1 41 Nicaragua’s case is based upon a series of cumulative
factual and legal meritless premises which it has not seriously
addressed, much less proven, including:
(i) That the OCS regime is part of customary international
law and opposable to Colombia
(ii) That it has substantiated its OCS claim, including, but
not limited to the fact that there is an uninterrupted and
continuous natural prolongation of its land territory up to
and beyond 200 nautical miles from its coast
25
(iii) That it falls within the Court’s judicial function, modus operandi and institutional capacity to delineate the outer edge of its claimed continental margin, which is required in the circumstances of the present case before any delimitation can be carried out (iv) That, under customary international law, Colombia’s islands comprising the San Andrés Archipelago are not islands with ipso jure entitlement to a 200-nautical-mile EEZ with its attendant continental shelf (v) That, under customary international law, its claim to an OCS can encroach upon Colombia’s mainland and island ipso jure entitlement to a 200-nautical-mile EEZ with its attendant continental shelf, and over third States’ notional entitlements of the same nature (vi) That it has a contiguous maritime title extending from its baselines up to any area which it claims as its OCS, without the need to “leapfrog” or “tunnel-under” the entitlements of Colombia’s islands or notional entitlements of third States 1 42 For the reasons set forth in this Counter-Memorial, it will be seen that Nicaragua has failed to prove these premises The conclusion can be no other that there is no room for a delimitation of the continental shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan coast 26
E. The Structure of this Counter-Memorial
1 43 In the chapters that follow, Colombia will develop its
position in more detail with respect to Nicaragua’s claims.
Chapter 2 discusses the applicable law in the case, which is
customary international law, and shows that the OCS regime
does not constitute part of customary international law and is
thus not opposable to Colombia It also shows how the Parties
have different burdens by virtue of the fact that Nicaragua is a
Party to UNCLOS while Colombia is not This chapter then
turns to the conventional law applicable to Nicaragua
(UNCLOS), and the procedures it must follow, with respect to
the way it must prove, with scientific rigour, that the area which
it claims legally and factually constitutes an outer continental
shelf It also explains why the Court should not arrogate for
itself the functions of the CLCS as that would run counter to its
judicial function
Chapter 3 addresses the legal distinction between a State’s ipso
jure entitlement to a 200-nautical-mile EEZ, with its attendant
continental shelf, and a continental shelf beyond 200 nautical
miles, and then explains why ipso jure 200-nautical-mile
entitlements prevail over OCS claims As will be shown, unlike
in the Bay of Bengal cases, which took place in a wholly
different legal and geographical context, there is no scope for
the creation of any “gray areas” in a semi-enclosed sea such as
the Caribbean
27
Chapter 4 demonstrates that, in addition to its mainland, Colombia’s islands are full-fledged islands that generate an ipso jure 200-nautical-mile EEZ entitlement with its attendant continental shelf, in the same manner as any other land territory These entitlements exclude any OCS claim advanced by Nicaragua Chapter 5 then shows that, in order to exist, OCS rights must be contiguous to the 200-nautical-mile maritime title generated from the State’s baselines. OCS rights cannot leapfrog over or tunnel under the ipso jure maritime entitlements of other States, resurfacing on the other side; the natural prolongation – along with the corresponding title – must extend, uninterrupted, up to and beyond the State’s 200-nautical-mile range It will also be demonstrated that Nicaragua may not use the maritime entitlements of other States to manoeuvre itself toward an otherwise unreachable OCS claim Chapter 6 explains how both Nicaragua’s outer continental shelf submission and its delimitation claim in this case prejudice the interests of third States in a manner that runs against the Statute of the Court and its jurisprudence Chapter 7 turns to the facts underlying Nicaragua’s outer continental shelf claim As Colombia will show, Nicaragua failed to prove that it has a natural prolongation of its land territory that extends beyond 200 nautical miles from its coast vis-à-vis Colombia and that it overlaps with Colombia’s 200 nautical miles entitlements both from its mainland and its 28
islands To the contrary, there are fundamental discontinuities
and disruptions that interrupt any natural prolongation well
before areas beyond 200 nautical miles from Nicaragua’s coast
are reached This Chapter is to be read in conjunction with the
scientific report presented as Appendix 1 to this Counter-
Memorial
Chapter 8 presents a summary of Colombia’s case and the
conclusions to be drawn from the specific factual and legal
considerations characterizing the case – namely that for various
reasons, the Court should not engage in any delimitation of the
continental shelf beyond 200 nautical miles from Nicaragua’s
coast
Colombia’s Submissions then follow.
29
30
Chapter 2
APPLICABLE LAW AND BURDEN OF PROOF
A. Introduction
2 1 This case is unusual in that different laws and procedures
apply to the Applicant and its Application, on the one hand, and
to the Respondent and its defence, on the other Both Parties are
bound by the res judicata components of the Court’s 2012
Judgment: for example, the Court’s holding that the Colombian
islands of San Andrés, Providencia and Santa Catalina are
entitled to their respective EEZ, which, of course, comprises its
continental shelf to 200 nautical miles in each direction,
including east of Nicaragua’s 200-nautical-mile range 28 Beyond
such res judicata items, their respective applicable law and
corresponding burdens of proof diverge on certain issues
2 2 The Applicant is a Party to UNCLOS and purports to
rely on certain treaty-based rights which that Convention
affords; proof of those rights is subject to the rules and
procedures prescribed in and under the authority of the CLCS
and UNCLOS
2 3 By contrast, the Respondent is not a Party to UNCLOS
and is only subject, in these proceedings, to customary
international law
28 2012 Judgment, pp 686-688, para 168 and p 692, para 180
31
2 4 As a result, the Parties’ corresponding burdens of proof vary. Nicaragua’s respective law and burdens may be further specified as follows: First, Nicaragua must establish that the OCS regime is part of customary international law and that it is, in spite of Colombia’s objections, opposable to Colombia. This is a matter which falls to be decided by reference to international law, the provisions and legislative history of UNCLOS and subsequent State practice Second, Nicaragua, by requesting the Court to delineate the outer limits of its OCS in accordance with Article 76 of UNCLOS as part of its continental shelf boundary claim beyond 200 nautical miles from its coast,29 must establish that the Court can arrogate and properly discharge the functions of the CLCS This is a matter which falls to be decided by reference to international law and a comparative analysis of the law and rules of the CLCS Third, Nicaragua must establish that the matter falls within the Court’s judicial function and its unique modus operandi and that the Court has the institutional capacity to settle this question This is a matter which falls to be decided by reference to international law, the precedents of the Court and its prudential wisdom 29 Memorial of Nicaragua, p 90, para 3 84. Nicaragua’s purported line of delineation is represented at p 85, Figure 3 17 of its Memorial 32
Fourth, Nicaragua must establish that it has substantiated
its claim to an OCS, including, but not limited to the fact that
there is a continuous and uninterrupted natural prolongation
extending up to and beyond 200 nautical miles from its coast
towards Colombia This is a matter of fact which falls to be
decided by application of the rigorous scientific methods and
criteria of the CLCS inasmuch as Nicaragua is Party to
UNCLOS, by reference to geological and geomorphological
data, and under relevant customary international law
Fifth, Nicaragua must establish that, under customary
international law, one State’s claim to an OCS prevails over
another State’s entitlement to a 200-nautical-mile EEZ with its
attendant continental shelf This is a matter which falls to be
decided by reference to the text, legislative history and doctrinal
writings illuminating UNCLOS as well as by reference to
customary international law, including conforming State
practice
Sixth, Nicaragua must demonstrate its sole title to a
contiguous submarine space extending from its coast up to any
area which it claims as OCS It must also demonstrate that one
State’s natural prolongation claim may utilize the maritime
zones of other States as transit zones in which to manoeuvre
itself to encroach upon yet another State’s maritime zones which
lay beyond These matters fall to be decided by customary
international law, State practice and geographical data
33
Seventh, Nicaragua must demonstrate that its claims do not impinge on the notional rights of third States in the Caribbean Sea This is a matter which falls to be decided in accordance with international law, geographical data, the Statute of the Court and judicial practice 2 5 The divergence of applicable laws and burdens of proof thus has an important implication for the laws the Court must apply and the procedures it must follow in this case In the present Chapter, Colombia will focus on the fact that, since the OCS regime of UNCLOS, both in its substantive and procedural aspects, does not constitute customary international law, it does not apply to Colombia as a non-Party, and it cannot prejudice Colombia’s customary entitlement to an ipso jure 200-nautical-mile EEZ with its attendant continental shelf (B) It will also focus on the fact that Nicaragua has not respected the procedure by which it must prove that the area beyond 200 nautical miles constitutes the natural prolongation of its land territory (C) Moreover, Nicaragua’s case requires the delineation of its alleged continental shelf beyond 200 nautical miles as a preliminary step for a delimitation In doing so, the Court would perforce arrogate for itself, and fulfil, while upholding the same rigorous scientific standard, the role of the CLCS, which is contrary to its judicial function and expertise (D) 2 6 The subsequent Chapters will establish that Nicaragua utterly fails to fulfil its burden of proving each and every one of the legal and factual requirements of its case 34
B. The OCS is a Non-Customary Internal UNCLOS
Regime
2 7 Colombia, though not a Party to UNCLOS, considers
that the provisions of UNCLOS which affirm the coastal State’s
ipso jure entitlement to a 200-nautical-mile EEZ, including the
rights to the resources of both the water column and the
continental shelf,30 are congruent with customary international
law,31 a proposition generally acknowledged and judicially
confirmed 32 Because for Nicaragua, as a Party to UNCLOS, that
law is conventional, both Colombia and Nicaragua converge on
the substance of the law for this matter, albeit from different
sources
2 8 Indeed, in ruling on Nicaragua’s similar submission in
2012, the Court has already recognised as customary the
entitlement of the Colombian islands of San Andrés,
Providencia and Santa Catalina to an EEZ with its attendant
continental shelf radiating in every direction, specifically east of
Nicaragua’s 200-nautical-mile range 33 Under customary
international law, the coastal State’s entitlement extends up to
200 nautical miles or until it encounters another State’s 200-
nautical-mile entitlement 34
30 UNCLOS, Articles 55-57
31 See 2012 Judgment, p 666, para 114
32 Libya/Malta, p 33, para 34
33 See 2012 Judgment, p 686, para 168
34 See Chapter 3 infra.
35
2 9 In contrast, the OCS is not an entitlement per se, but a contingent UNCLOS right which only vests in a claiming State Party upon its fulfilment of the procedural and data requirements of the CLCS, a Convention-based institutional procedure 35 As Colombia will establish in this section, the OCS regime does not share the customary character of the EEZ with its attendant continental shelf; the OCS regime, a part of UNCLOS, is quintessentially conventional law The regime requires wide-shelf coastal States Parties, to interact with an independent scientific and technical body with the objective of obtaining a recommendation; it also requires revenue-sharing, in essence a royalty, to be paid to the other States Parties to UNCLOS, not to non-Parties (1); the realisation of a State Party’s claim to an OCS is contingent on a determination and the prior recommendations by the CLCS, an exclusively UNCLOS institution (2); and, in any case, neither Nicaragua, nor the Court, can rely on Article 76, specially paragraph 4 therein, vis-à-vis Colombia (3) (1) THE PRIVILEGE OF ACQUIRING AN OCS IS GRANTED IN RETURN FOR REVENUE-SHARING 2 10 As will be elaborated in Chapter 3, recognition of an OCS claim in accordance with UNCLOS, upon proof of its existence, was granted to wide-shelf States in return for revenue-sharing under Article 82: a royalty to be paid by the wide-shelf States to the other States Parties in return for the right 35 See Annex 49 36
to exploit the resources that would have otherwise remained part
of the Area and the Common Heritage of Mankind Hence the
observation that
“(t)o rely on the entitlement to a continental shelf
in article 76 without making payments under
article 82 would be seen by many States as a
violation of the ‘deal’ on which articles 76 and 82
are based”.36
2 11 At the final Plenary Meeting on December 10, 1982, the
President of the Conference, Ambassador Tommy Koh, stated
that:
“Even in the case of article 76, on the continental
shelf, the article contains new law in that it has
expanded the concept of the continental shelf to
include the continental slope and the continental
rise This concession to the broad-margin States
was in return for their agreement to revenuesharing
on the continental shelf beyond 200
miles It is therefore my view that a State which is
not a party to this Convention cannot invoke the
benefits of article 76.”37
36 J Mossop, The Continental Shelf Beyond 200 Nautical Miles: Rights
and Responsibilities, Oxford University Press, 2016, p 86 (available at the
Peace Palace Library)
37 Third United Nations Conference on the Law of the Sea (UNCLOS
III), Official Records, Vol XVII, 193rd Plenary Meeting, para 48, UN Doc
A/CONF 62/SR 193 (UNCLOS III, Official Records), available at:
http://legal un org/docs/?path= /diplomaticconferences/1973_los (last visited
17 Sep 2017) (emphasis added) See B M Magnússon, The Continental
Shelf Beyond 200 Nautical Miles: Delineation, Delimitation and Dispute
Settlement, Brill Nijhoff, 2015, pp. 85-86 (available at the Peace Palace
Library)
37
2 12 Article 82 of UNCLOS stipulates that the revenue-sharing would be distributed to States Parties Since a non-Party State is unable to claim the benefits of Article 76, non-Party States may not be subjected to any part of the OCS regime, including any potential encroachment on their ipso jure 200- nautical-mile entitlements, by an OCS claim based upon Article 76: pacta tertiis nec nocent nec posseder prosunt. Moreover, this part of UNCLOS was negotiated as a package deal 38 Professor Orrego Vicuña has explained: “The opinion that has the greatest support among writers is that the package deal as a whole, as such, cannot in any way be assimilated to an opinio juris, that is, be identified with the formation of a rule of customary law, since the latter will be formed in accordance with its own mechanisms principally founded in national practice The treaty can contribute to this process, but is not the process in itself It follows that the package deal is not ‘generalizable’ as a rule of customary law and the only way in which it could prevail over parallel custom-forming process would be for it to be regarded as an exception to the function and normal capacity of multilateral conventions in influencing the formation of rules of customary law”.39 2 13 With the passage of time and extensive State practice, “parts or provisions of a treaty can always become customary law following an independent legal process that does not depend 38 See Virginia Commentary, Vol II, 1993, pp 486, 854 39 F Orrego Vicuña, The Exclusive Economic Zone: Regime and Legal Nature under International Law, Cambridge University Press, 1989, p 253 (available at the Peace Palace Library) 38
on the package deal”.40 This has occurred in the case of the EEZ,
a transformation confirmed by the Court 41 In contrast, however,
as it relates to the specific case of the OCS, the relevant
provisions of UNCLOS and their legislative history, as will be
explained in Chapter 3, demonstrate that the potential for OCS
exploitation was granted to wide-shelf States as part of a
package deal in return for revenue-sharing with other States
Parties Since it is implausible to argue that revenue-sharing, or
any other form of royalty payment, may become customary and
apply to non-Parties, this package deal could not become
customary because this critical component was explicitly
confined to Parties to UNCLOS 42
2 14 Orrego Vicuña considers another possible implication for
the interpretation of a package deal in international law:
“There is also a second opinion with respect to
the meaning of the package deal, in the point of
view of which this concept alters the normal
relations between treaty and custom, making the
provisions of the former indivisible and hindering
the selectiveness of its application, which in turn
impede a third party from benefiting from given
isolated provisions by means of customary law”.43
40 F Orrego Vicuña, footnote 39 supra, p 253
41 F Orrego Vicuña, footnote 39 supra, p 253 See also Libya/Malta,
p 33, para 34
42 W. T. Burke, “Customary Law as Reflected in the LOS Convention:
A Slippery Formula”, in J P Craven, et al (eds ), The International
Implications of Extended Maritime Jurisdiction in the Pacific, Law of the Sea
Institute, William S Richardson School of Law, University of Hawaii, 1989,
pp 402, 405 (Annex 43)
43 W T Burke, footnote 42 supra, p 254; F Orrego Vicuña,
footnote 39 supra
39
2 15 This approach is similar to the one taken at the final Plenary Meeting by the President of the Conference, who rejected any right of third States to invoke the benefits of Article 76 44 This approach also imports that, since the OCS is a package deal, it does not constitute customary international law and cannot be opposable to a non-Party State such as Colombia 2 16 Whichever approach to the relationship between package deals and customary international law is taken, the OCS regime does not constitute part of customary international law since the package deal in which it originated and which is its raison d’être, is confined to States Parties to UNCLOS (2) THE REALIZATION OF AN OCS CLAIM REQUIRES A PRIOR DETERMINATION BY THE CLCS, AN UNCLOS INSTITUTION 2 17 A wide-margin coastal State’s claim to have its OCS recognized is subject to the provisions of Article 76, paragraphs 4-9, which are purely conventional rules and cannot be considered to reflect customary international law 45 2 18 Article 76 (8) requires a coastal State to submit information on the outer limit of its claimed OCS to the CLCS, an internal UNCLOS commission It may, depending on the adequacy of the information, make recommendations on the 44 See UNCLOS III, Official Records, footnote 37 supra. 45 Ø Jensen, The Commission on the Limits of the Continental Shelf: Law and Legitimacy, Brill, 2014, pp 1-2 (available at the Peace Palace Library) See also 2012 Judgment, Declaration of Judge ad hoc Mensah, p 763, para 3 and p 765, para 8; 2016 Judgment, Declaration of Judge Robinson, para 11 40
limits of the OCS The limits established on the basis of the
CLCS’ recommendations are final and binding 46
2 19 UNCLOS thus requires every State Party claiming an
OCS to submit information to the CLCS, an independent panel
of scientific experts that decides upon the claim based on
scientific evidence 47 The CLCS was an integral part of the
package deal which created the OCS; not only would wide-shelf
States be subject to revenue-sharing for any OCS, but any
determination of the existence and outer limits of an OCS was to
be established with “the greatest possible degree of precision”,
based upon recommendations of an independent scientific
committee, the CLCS, which was an “essential component” of
the compromise 48
2 20 As recalled by Professor Tullio Treves, the definition of
the OCS retained in UNCLOS, favouring coastal States which
purport to have entitlements beyond 200 nautical miles, is the
fruit of a carefully constructed compromise including: (i) the
recognition to all coastal States of an entitlement to a 200-
nautical-mile continental shelf, as a minimum; (ii) the
establishment of maximum outer limits; (iii) the impossibility
for a coastal State to establish the outer limits of its OCS absent
prior review and recommendations by the CLCS; and (iv) the
obligation for the coastal State to pay a royalty with respect to
46 UNCLOS, Article 76 (8)
47 Ø Jensen, footnote 45 supra, p 39
48 Ø Jensen, footnote 45 supra, pp 24-25, 43-44 See also B M
Magnússon, footnote 37 supra, p 51; J Mossop, footnote 36 supra, p 71
41
the economic exploitation of the continental shelf beyond 200 nautical miles 49 2 21 The CLCS does not operate with regard to non-Party States and no non-Party State has ever made a submission 50 Ambassador Koh, it will be recalled, explained that a non-Party State may not “invoke the benefits of article 76”.51 As a non-Party cannot enjoy the benefits, it cannot be subject to an internal obligation and scrutiny by an internal scientific committee Therefore, since the second critical component of the OCS package-deal regime may not apply to non-Party States, the OCS regime does not constitute customary international law and may not prejudice their rights (3) IN ANY CASE, NICARAGUA CANNOT RELY ON ARTICLE 76 OF UNCLOS VIS-À-VIS COLOMBIA 2 22 In addition to the reasons set forth above, Colombia submits that the Court should reject Nicaragua’s contention that it can rely on Article 76, and specially paragraph 4 of UNCLOS vis-à-vis Colombia, either as a matter of applicable law or for interpretative purposes 49 T Treves, « Codification du droit international et pratique des États dans le droit de la mer », Collected Courses of the Hague Academy of International Law, 1990, Vol 223, pp 90-91 (available at the Peace Palace Library) 50 See B M. Magnússon, footnote 37 supra, p 84 But see T Treves, footnote 49 supra, p 83, referencing the opinion of T Clingan who suggested that non-party States should be allowed to submit data to the CLCS 51 UNCLOS III, Official Record, footnote 37 supra, p 48 42
2 23 Article 76 (4) (a) gives a choice to State Parties to base
their claimed continental margin by applying either the Gardiner
formula or the Hedberg formula, or a combination of both Both
formulae depend on calculation of distance from the foot of the
continental slope The Hedberg formula is the easiest way, since
it substitutes accurate scientific data with the determination of
points at an arbitrary distance criterion of 60 nautical miles from
the foot of slope These points define an artificial limit to the
physical rise, even if it does not exist, and thus the outer edge of
the continental margin
2 24 This formula is typical of a conventional agreement by
which State Parties consent to alleviate their respective burdens
of proof with respect to certain facts that can be hard to
demonstrate Moreover, it is not of a fundamentally normcreating
character and lacks the necessary practice and opinio
juris
2 25 Professor William T Burke summarized the legal
situation with characteristic precision:
“This particular situation seems to be an
especially unappealing one for insisting on the
status of the convention principles as customary
law The appearance, or perhaps it is better stated
as the odor, of picking and choosing is unusually
strong in this vicinity The agreement on the
broad margin provisions rested not only on the
trade-off of revenue sharing beyond 200 miles,
but also on the acceptance of an elaborate,
especially created third-party decision procedure
43
designed to discourage easy claims and to assure that such claims as might be made were founded on a solid basis of scientific data regarding the critical characteristics of the area that justified the claim To take the position now that the Article 76 provisions on the foot of the slope and the depth of the sediment are a matter of customary law appears to dispense with the aforementioned safeguards as if they are insignificant It is impossible to argue plausibly that the requirement for sharing revenue from operations beyond 200 miles is established customary international law – no one in the world would believe that And it is perfectly obvious that Article 76(8) and the contents of Annex II on the Commission on the Limits of the Continental Shelf are not found in general practice of states But if these are not also customary law, and the other paragraphs of Article 76 are customary law, then there can be no assurance founded in international procedures that coastal states’ claims beyond 200 miles have any substance to them other than air.”52 Nor is this situation likely to evolve over time: “(g)iven that both article 76(8) and article 82 contain references to institutions created by the LOSC and to processes embedded within the LOSC regime, this may be an obstacle to them ever becoming customary international law.”53 2 26 A State is subject to customary international law and those international obligations it has taken upon itself Colombia 52 W T Burke, footnote 42 supra, p 405 53 J Mossop, footnote 36 supra, p 88 44
was an active participant in the Conference and signed the
Convention when it was adopted; the fact that it has elected not
to become a Party to UNCLOS shows that it intentionally
refused to assume any UNCLOS obligations that are not
customary international law While, as a matter of law,
Nicaragua is subject to all UNCLOS provisions, including those
that concern the OCS and EEZ, Colombia is only subject to
those provisions of UNCLOS that reflect customary
international law, in particular, in this case, the EEZ with its
attendant continental shelf provisions It is not subject to the
OCS regime As Colombia has not ratified UNCLOS, the OCS
regime is not opposable to it. Colombia’s objection to any
portion of the OCS regime as customary, and thus as applicable
to itself, has been public and persistent 54
2 27 Consequently, Nicaragua’s arguments regarding the
existence and extent of its purported OCS based on the
“Hedberg formula” (or “Gardiner formula”, for that matter)
must be rejected 55
2 28 Also, because Colombia is not subject to the OCS
regime, its provisions may not prejudice its rights, including, but
54 Territorial and Maritime Dispute, Public Sitting 4 May 2012, CR
2012/16, pp 43-45, paras 39-50 (Bundy) Colombia has stated its position in
this regard through statements of the President of the Republic and the
Ministry of Foreign Affairs
55 See e.g. Memorial of Nicaragua, p 76, paras 3 58-3 60; p 82, para
3 66; p 86, para 3 72 Quite apart from the fact that Nicaragua cannot rely
on the conventional formulae to prove the extent of its purported OCS vis-àvis
Colombia, Colombia will demonstrate that Nicaragua has not proved that
it has any title to an OCS (See Chapter 7 infra)
45
not limited to, the customary right to a 200-nautical-mile EEZ with its attendant continental shelf, radiating in all directions from its mainland and insular territories 56 C. Nicaragua has not Respected the Procedure by which it Must Prove that the Area Beyond 200 Nautical Miles is its OCS 2 29 In this section, Colombia will first briefly recall the requirements established by UNCLOS with respect to the conventional procedure which must be followed by State Parties to UNCLOS to establish the existence and extension of an OCS (1) Colombia will also demonstrate that, contrary to what Nicaragua asserts, the Court did not hold in its jurisdictional decision of 2016 that the circumstances of the instant case permit it to proceed to a delimitation in the absence of recommendations from the CLCS It will be shown that the particular circumstances of the present case require prior recommendations from the CLCS as a decisive element of proof, and that the procedure in order to provide such a proof has not been duly completed (2) (1) THE CONVENTIONAL PROCEDURE 2 30 Colombia is not a Party to UNCLOS, but Nicaragua is The legal situation in such a context with respect to Nicaragua’s procedural obligations has been made clear by the Court: 56 2012 Judgment, p 686, para 168 46
“the fact that Colombia is not a party to
UNCLOS ‘does not relieve Nicaragua of its
obligations under Article 76 of that
Convention’”.57
2 31 In other words, in addition to the customary law
requirements regarding the existence of a continuous and
uninterrupted natural prolongation towards Colombia,
Nicaragua must also respect “its obligations under Article 76” of
UNCLOS in order to be able to prove its claim to an OCS
2 32 Regarding the latter, Article 76, paragraph 8, of
UNCLOS constitutes the sole means available for State Parties
to UNCLOS to determine the existence of an area as OCS and
the delineation of its outer limits The State so claiming has to
provide the requisite information to the CLCS After reviewing
this information, in case the Commission finds it probative, it
makes “recommendations” on the basis of which the claimant
State can establish the outer limits of its continental shelf
2 33 The prerogatives of the CLCS are a critical component of
the compromise package-deal which legitimized the OCS regime
under UNCLOS 58 As a consequence, no State can establish the
limits of its outer continental shelf except on the basis of the
prior recommendations of the CLCS As a matter of fact, the
CLCS has not yet made any recommendations with respect to
Nicaragua’s submission, and therefore has not validated the
accuracy and sufficiency of its technical arguments
57 2012 Judgment, p 669, paras 126-127; 2016 Judgment, para 81
58 See Section B supra
47
2 34 This has been reiterated by the Court, which, in the cases concerning the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) and Territorial and Maritime Dispute, stated: “any claim of continental shelf rights beyond 200 miles must be in accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf established thereunder.”59 (2) NICARAGUA’S CLAIM AND THE COURT’S POSITION WITH REGARD TO THE CONVENTIONAL PROCEDURE 2 35 Nicaragua contends that it must be concluded from the 2016 Judgment that “(i)t is not necessary for the Court to wait for the Commission to issue a recommendation before it delimits this area.”60 But, as evidenced below, Nicaragua’s interpretation of the 2016 Judgment is superficial and incorrect 2 36 As recalled by the Court, Colombia’s fifth preliminary objection raised the question: “whether a recommendation made by the CLCS pursuant to Article 76, paragraph 8, of UNCLOS, is a prerequisite in order for the Court to be able to entertain the Application filed by Nicaragua in 2013.”61 59 Nicaragua v. Honduras, p 759, para 319; 2012 Judgment, pp 668-669, para 126 60 Memorial of Nicaragua, p 17, para 1 34 61 2016 Judgment, para 106 48
2 37 It is important to recall that when the Court addressed
this question, Nicaragua had not yet filed its Memorial The
Application filed by Nicaragua in 2013 was the sole element
which the Court had at its disposal While the Application was
for its part unclear as to what Nicaragua’s legal argument would
be, in its Memorial, Nicaragua attempts to prove the existence
and limit of the outer edge of the continental shelf beyond 200
nautical miles by merely referring to its submission to the
CLCS On the basis of this submission,62 Nicaragua asks the
Court to rule that:
“the outer limit of Nicaragua’s continental shelf,
delineated in accordance with Article 76,
overlaps with the continental shelf limit
measured from the Colombian mainland, and
with that measured from the Colombian islands
of San Andrés and Providencia.”63
2 38 Thus, the line marking Nicaragua’s alleged OCS is the
line of delineation of its outer limit. Furthermore, Nicaragua’s
thesis on what it calls the “provisional delimitation line”,64
which is central to its whole case, refers exclusively to the
purported line of delineation 65 Moreover, the specific
geographical circumstances of this case, namely the fact that the
coasts of the States involved are opposite, necessarily requires
the delineation of the outer limit of the continental margin; that
62 Memorial of Nicaragua, pp 47-87
63 Memorial of Nicaragua, p 90, para 3 84 (emphasis added)
Nicaragua’s purported line of delineation is represented at p. 85, Figure 3.17
of its Memorial
64 Memorial of Nicaragua, p 127, para 5 12
65 Memorial of Nicaragua, p 128, Figure 5 1
49
is, the terminus of Nicaragua’s alleged OCS All of the above would require the Court to assume the role of the CLCS in determining the outer limits of Nicaragua’s claimed OCS 2 39 Judge Donoghue’s opinion in Territorial and Maritime Dispute is apposite in that “Nicaragua’s proposed delimitation methodology blurs the usual distinction between delimitation of a maritime boundary and delineation of the outer limits of the continental shelf, because it requires delineation as an initial step in delimitation.”66 2 40 In the instant case, the Court decided the question of its jurisdiction on the sole basis of the Application In doing so, it recalled the following general points: (i) “the role of the CLCS relates only to the delineation of the outer limits of the continental shelf, and not the delimitation”.67 (ii) In view of the technical complexity of determining the outer edge of the continental margin and the outer limits of the continental shelf, the function of the CLCS is “to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical 66 2012 Judgment, Separate Opinion of Judge Donoghue, p 757, para 23 67 2016 Judgment, para 110 50
miles, and to make recommendations in accordance with
Article 76” 68
(iii) The procedure of delineation is distinct from that of
delimitation 69
2 41 It follows from the above that the 2016 Judgment, which
was rendered without the Court knowing what Nicaragua’s
precise claim would be and, therefore, what were the actual
circumstances of the case, only held in principle that since
delimitation and delineation are two different procedures, and
since delimitation can be made in certain circumstances in the
absence of delineation, the recommendations of the CLCS are
not necessarily a pre-condition for the admissibility of an
Application like the one lodged in 2013 by Nicaragua
2 42 Developing this notion, in its subsequent Judgment of 3
February 2017 in the case concerning the Maritime Delimitation
in the Indian Ocean (Somalia v. Kenya), the Court observed that
whether a delimitation can be carried out absent a
recommendation of the CLCS depends on the circumstances It
stated:
“A lack of certainty regarding the outer limits of
the continental shelf (…) does not, however,
necessarily prevent either the States concerned or
the Court from undertaking the delimitation of
the boundary in appropriate circumstances
68 2016 Judgment, para 111
69 2016 Judgment, para 112
51
before the CLCS has made its recommendations.”70 2 43 One of the circumstances that require the prior recommendation from the CLCS before a delimitation can be carried out is where the claimed boundary line depends on the prior identification of the outer limits of the continental shelf In his Declaration appended to the 2016 Judgment in the Preliminary Objections phase of this case, Judge Gaja explained the problem as follows: “There may be cases where a delimitation involving an extended continental shelf could be effected without difficulty by the Court or an international tribunal pending the delineation of the outer limits of the continental shelf One such case arguably concerned the delimitation between Bangladesh and Myanmar, where the International Tribunal for the Law of the Sea found that it could make the delimitation by tracing a line with an arrow (…) However, in most instances the delineation of the outer limits should come first, because it would otherwise be difficult to pursue the ‘equitable solution’ required by Article 83 of UNCLOS.”71 2 44 This is precisely the situation here As noted above, Nicaragua’s case relies on a prior delineation of the outer limit of its purported OCS claim, which is the sole prerogative of the CLCS under UNCLOS 70 Maritime Delimitation in the Indian Ocean (Somalia v. Kenya), Preliminary Objections, I.C.J. Judgment of 3 February 2017, para 94 (Somalia v. Kenya) (emphasis added). 71 2016 Judgment, Declaration of Judge Gaja 52
2 45 Because Nicaragua’s delimitation claim depends on the
prior identification of the outer limits of its alleged OCS, the
present case is clearly distinguishable from the two cases
concerning the Bay of Bengal In both of those cases, which
involved delimitation between States with adjacent coasts and
where the existence of an OCS was not only unopposed by the
Parties, but also scientifically uncontested, the circumstances
were such that the delimitation of the continental shelf beyond
200 nautical miles could be adjudicated despite the absence of a
prior verification by the CLCS and the absence of
recommendations on the basis of which outer limits could be
delineated In other words, the tribunals in those cases were
never called upon to usurp the responsibilities of the CLCS in
vetting and approving the outer limits of the Parties’ OCS
claims in order to effectuate the delimitation
2 46 In Bangladesh/Myanmar, ITLOS explained:
“444. (…) the Bay of Bengal presents a unique
situation, as acknowledged in the course of
negotiations at the Third United Nations
Conference on the Law of the Sea. (…) the
experts’ reports presented by Bangladesh during
the proceedings (…) were not challenged by
Myanmar. (…)
445. (…) in their submissions to the Commission,
both Parties included data indicating that their
entitlement to the continental margin extending
beyond 200 nm (…) based to a great extent on
the thickness of sedimentary rocks pursuant to
53
the formula contained in article 76, paragraph 4(a)(i), of the Convention 446 In view of uncontested scientific evidence regarding the unique nature of the Bay of Bengal and information submitted during the proceedings, the Tribunal is satisfied that there is a continuous and substantial layer of sedimentary rocks extending from Myanmar’s coast to the area beyond 200 nm.”72 The Tribunal added that, in this particular case, the delimitation would be: “without prejudice to the establishment of the outer limits of the continental shelf in accordance with article 76, paragraph 8, of the Convention.”73 2 47 Similarly, in Bangladesh v India, the Annex VII tribunal held that: “(i)n the present case both Parties have put forward claims to the continental shelf beyond 200 nm where they overlap Both Parties agree that they have entitlements, and neither Party denies that there is a continental shelf beyond 200 nm in the Bay of Bengal”,74 and “the decision of an international court or tribunal delimiting the lateral boundary of the continental 72 Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, p 129-130, paras 444-446 (Bangladesh/Myanmar) 73 Bangladesh/Myanmar, p 103, para 394 74 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India), Award of 7 July 2014, p 21, para 78 (Bangladesh v India) 54
shelf beyond 200 nm is without prejudice to the
delineation of the outer limits of that shelf ”75
2 48 As noted above, both Bay of Bengal cases involved
circumstances that are vastly different from the present case,
including:
(i) All three of the States Parties to those cases were also
Parties to UNCLOS Unlike in the present case, there
was no question of opposing a conventional legal regime
to a State that was not a Party to the treaty establishing
that regime
(ii) The existence of an OCS in the area being delimited in
the Bay of Bengal was uncontested In the case of
Nicaragua’s submission, it has been strongly contested
before the CLCS by no less than four States, namely
Colombia, Costa Rica, Jamaica, and Panama 76
(iii) Unlike in the Bay of Bengal, no State in the Caribbean
region ever made OCS claims in the Caribbean Sea
Nicaragua’s case thus runs counter to this consistent and
uniform regional practice 77
(iv) As will be shown by Colombia in Chapter 7 below,
decisive public record scientific evidence disproves
75 Bangladesh v India, p 22, para 80
76 See Annexes 19 to 28
77 See para 1 26 and footnote 22 supra
55
Nicaragua’s technical arguments regarding the alleged existence of a natural prolongation from its land territory beyond 200 nautical miles towards Colombia This markedly differs from the Bangladesh/Myanmar where ITLOS stated that: “Notwithstanding the overlapping areas indicated in the submissions of the Parties to the Commission, the Tribunal would have been hesitant to proceed with the delimitation of the area beyond 200 nm had it concluded that there was significant uncertainty as to the existence of a continental margin in the area in question.”78 (v) Unlike the Bay of Bengal, the Caribbean Sea does not pose a “unique situation” regarding the existence of a continental shelf beyond 200 nautical miles; nor was this acknowledged in the course of the negotiations at the Third United Nations Conference on the Law of the Sea 79 (vi) Contrary to the case of the Caribbean Sea, where there are no maritime areas situated more than 200 nautical miles from the nearest land territory, and there are no 78 Bangladesh/Myanmar, p 115, para 443 79 Bangladesh/Myanmar, p 115, para 444; The Final Act of the Third United Nations Conference on the Law of the Sea, Annex II, “Statement of understanding concerning a specific method to be used in establishing the outer edge of the continental margin”, available at: http://www un org/depts/los/clcs_new/documents/final_act_annex_two htm (last visited 17 Sep 2017) 56
overlapping 200-nautical-mile entitlements between the
opposite coasts of Nicaragua and Colombia in this
region, in the Bay of Bengal there were overlapping 200-
nautical-mile entitlements between the Parties and their
OCS claims extended into the open sea and did not
encroach solely on the 200-nautical-mile entitlements of
other States
(vii) The Bay of Bengal cases involved delimitation between
adjacent States where the delimitation could be
effectuated without the need to establish the outer limits
of the continental margin ITLOS simply fixed the line of
delimitation in the area within 200 nautical miles, and
decided that this line could be continued in the same
direction beyond 200 nautical miles “until it reaches the
area where the rights of third States may be affected ”80
The Annex VII Tribunal followed the same reasoning 81
2 49 In the present case, which involves States with opposite
coasts, it is not possible to proceed with the delimitation leaving
unanswered the question of delineation of the outer limit of
Nicaragua’s alleged OCS For the Court to make a ruling on
delimitation – even assuming, arguendo, that an OCS claim may
encroach upon another State’s ipso jure 200-nautical-mile EEZ,
with its attendant continental shelf (quod non) as will be
explained in Chapter 3 below, it would require a prior
determination of the full extent of Nicaragua’s entitlement, i.e.
80 Bangladesh/Myanmar, pp 118-119, para 462
81 Bangladesh v India, p 165, para 509 (3)
57
an authoritative, scientifically verified, recommendation from the CLCS regarding the delineation of the outer limit of its alleged continental shelf 2 50 Finally, regarding the 2016 Preliminary Objections Judgment, it is worth emphasising that all that the Court decided was that a State can ask it to effect a delimitation of the OCS, not that such delimitation might in all circumstances be carried out without prior recommendations of the CLCS Nor did the Court decide that it can proceed to the delimitation requested in the current case, since at the time it was not fully informed of the circumstances of the case, including the precise nature of Nicaragua’s claim. In the words of ITLOS: “(…) the determination of whether an international court or tribunal should exercise its jurisdiction depends on the procedural and substantive circumstances of each case.”82 2 51 Furthermore, the Court certainly did not decide, neither in 2012 nor in 2016, that the mere lodging of a submission with the CLCS should be understood as it being fully compliant with the requirements of the CLCS, nor that such a submission proves the existence and extent of Nicaragua’s alleged natural prolongation up to a line of delineation established in accordance with the procedures set out in Article 76 of UNCLOS Submissions are nothing but submissions that need to be vetted and verified scientifically by the CLCS; they cannot be 82 Bangladesh/Myanmar, p 101, para 384 58
taken at face value and as dispositive – as Nicaragua wishes the
Court to do
2 52 As observed by Judge Bhandari in his Separate Opinion
to the 2016 Judgment,
“there is no proof on record in these proceedings
that Nicaragua has in fact furnished complete and
sufficient information and documentation to the
CLCS to issue its recommendation Thus the
possibility remains that at a future time the CLCS
could request Nicaragua to supply additional or
complementary evidence in support of its claim
Were this to be the case, the entire premise of the
majority’s conclusion that Nicaragua has now
fully and faithfully complied with its obligations
for receiving a CLCS recommendation would
fail.”83
2 53 In its 2016 jurisdictional decision, the Court was satisfied
that Nicaragua had provided the CLCS with its submission, but
it had simply no information with respect to the other
conditions, and could therefore not decide whether the
circumstances of the case were such that they permitted a
delimitation, even if legally warranted (quod non), absent the
prior recommendation of the CLCS
2 54 In its Memorial, Nicaragua stated what are the
circumstances of its claim, which seeks a delimitation between
the outer limits of its alleged outer continental shelf and
Colombia’s 200-nautical-mile EEZ, with its attendant
83 2016 Judgment, Separate Opinion of Judge Bhandari, para 5
59
continental shelf It is on the basis of these circumstances that the Court is now in a position to ascertain if it can proceed to the requested delimitation Even without taking account of the other failings in Nicaragua’s case, the conclusion at the very outset can be no other than that it cannot D. The Establishment of a Line of Delineation is the Exclusive Prerogative of the CLCS, not the Court 2 55 As observed in the previous section, Nicaragua has not followed the required conventional procedure, and it has not secured a recommendation by the CLCS Rather, Nicaragua requests the Court to replace the CLCS regarding the verification of the extension of its natural prolongation beyond 200 nautical miles and the delineation of the outer limit of its purported OCS Colombia considers that it would not be appropriate for the Court to assume this task, which is the exclusive prerogative of the CLCS, and that such a task would run counter to the Court’s judicial function. 2 56 Given the conventional functions, composition, and expertise of the CLCS,84 the Court and tribunals have recognized its special competences 84 Pursuant to Article 2 of Annex II to UNCLOS, the CLCS consists of 21 experts in geophysics, hydrography or geology Members of the Commission are elected by States Parties to UNCLOS for five years and can be re-elected The composition of the Commission is based on geographic representation As set forth in Article 3 of Annex II, the functions of the Commission are in particular to consider the data and other material submitted by coastal States concerning the outer limits of the continental shelf in areas where those limits extend beyond 200 nautical miles, and to make recommendations in accordance with Article 76 of UNCLOS, particularly with respect to the outer limits The limits established by a State on the basis of the CLCS’ recommendation are final and binding. 60
2 57 In Bangladesh/Myanmar, ITLOS stated as follows:
“376. There is a clear distinction between the
delimitation of the continental shelf under article
83 and the delineation of its outer limits under
article 76 Under the latter article, the
Commission is assigned the function of making
recommendations to coastal States on matters
relating to the establishment of the outer limits of
the continental shelf, but it does so without
prejudice to delimitation of maritime
boundaries.”85
2 58 The Arbitral Tribunal in Bangladesh v. India took a
similar line:
“80. (…) Whilst the function of settling disputes
with respect to the delimitation of maritime
boundaries between adjacent or opposite States is
entrusted to the dispute settlement procedures
under Part XV of the Convention, the CLCS
plays an indispensable role in the delineation of
the continental shelf beyond 200 nm On the one
hand, the recommendations of the CLCS ‘shall
not prejudice matters relating to delimitation of
boundaries’, (Convention, Annex III, art 9), and
on the other hand, the decision of an international
court or tribunal delimiting the lateral boundary
of the continental shelf beyond 200 nm is without
prejudice to the delineation of the outer limits of
that shelf In short, the mandates of these bodies
complement one another.”86
85 Bangladesh/Myanmar, p 99, para 376
86 Bangladesh v India, p 22, para 80
61
2 59 For its part, in its 2016 Judgment on the Preliminary Objections in this case, the Court confirmed that “(t)he 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 seabed 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.”87 2 60 And, more recently, in Somalia v. Kenya, the Court reiterated that: “As the Court has recently observed, ‘the role of the CLCS relates only to the delineation of the outer limits of the continental shelf, and not delimitation’ (…) The two tasks are distinct” 88 2 61 The law is therefore clear: delineation, which is distinct from delimitation, is a scientific matter for the CLCS, not the Court Nicaragua purports to ignore this institutional division of responsibilities and the policies which compel it by requesting the Court to act in lieu et place of the CLCS 2 62 Were the Court to assume a role which is reserved to the CLCS, it would be required to examine scientifically the data and information adduced by Nicaragua, and assess their relevance and accuracy It would also be required to apply 87 2016 Judgment, para 112 88 Somalia v Kenya, para 67 62
scientific methods and standards higher and more exacting than
the mere preponderance of evidence based upon a balance of
probabilities
2 63 Given that the process before the CLCS is different from
judicial proceedings, Nicaragua would have to prove to the
Court that its OCS claim meets a level of scientific certainty at
least as high as the one that would have been applied by the
CLCS
2 64 It would not be Colombia’s role to disprove Nicaragua’s
OCS claim – although in Chapter 7 infra Colombia shows that,
on the record, Nicaragua has failed to sustain its claim; rather, it
is Nicaragua which has the burden to prove that it has an OCS
based upon the scientific evidence at least as robust as the CLCS
would have required In this regard, the Court has made clear
that it is the duty of a party asserting certain facts to establish the
existence of those facts As noted by Judge Donoghue in her
Separate Opinion in the Territorial and Maritime Dispute case,
it was
“Nicaragua’s responsibility to prove to the Court
the existence and extent of any entitlement to
continental shelf beyond 200 nautical miles of its
coast, it was not incumbent on Colombia to offer
a competing understanding of the geological and
geomorphological facts or to propose an
alternative set of geographic co-ordinates setting
forth the outer limits of Nicaragua’s continental
shelf.”89
89 2012 Judgment, Separate Opinion of Judge Donoghue, p 754, para
10 See also Application of the Interim Accord of 13 September 1995 (the
63
2 65 In other words, it would not be enough for Nicaragua to prove that it is more likely than not that it has an OCS, or that it is more likely that the outer limit of the OCS is here rather than there The task of the Court would not be to find which litigant State brings the most convincing arguments; it would have to determine whether the requisite scientific data has been adduced and if such data leads to scientifically certain results 2 66 Should the Court proceed in the instant case on the basis of its own findings on the question of the existence and the location of the outer limits of the OCS, as Nicaragua requests it to, it would put at jeopardy both its authority and credibility, as well as the integrity of its judicial function and the coherence of international jurisprudence 2 67 Since the two institutions do not share the same expertise or modus operandi, a discrepancy between the Court’s findings and the Commission’s recommendations could readily arise. Indeed, since the CLCS is not bound to respect the findings of the Court on the matters that are, under UNCLOS, assigned to its exclusive competence, it could adopt a contradictory position, in this or other cases, based on its own technical assessment of the scientific data former Yugoslav Republic of Macedonia v Greece), Judgment, I.C.J. Reports 2011 (II), p 668, para 72; Maritime Delimitation in the Black Sea (Romania v Ukraine), Judgment, I.C.J. Reports 2009, p 86, para 68 (Black Sea) 64
2 68 Such a situation would risk weakening the authority of
the Court, whose judgment could appear to be based on
technically erroneous findings While judgments of the Court
are, under Article 60 of the Statute, “final and without appeal”, a
non-appealable judgment based on findings of facts that are
inaccurate would have the effect of undermining the quality of
the judgment Conversely, the Court, by a judgment based on
faulty scientific analysis, could create a precedent, which could
be followed by the Court or other tribunals, or even pleaded
before the CLCS
2 69 With respect to the Court’s judicial function, the Court
emphasized in the Northern Cameroons case, and later restated
in the Frontier Dispute case, that
“even if the Court, when seised, finds that it has
jurisdiction, the Court is not compelled in every
case to exercise that jurisdiction There are
inherent limitations on the exercise of the judicial
function which the Court, as a court of justice,
can never ignore There may thus be an
incompatibility between the desires of an
applicant, or, indeed, of both parties to a case, on
the one hand, and on the other hand the duty of
the Court to maintain its judicial character The
Court itself, and not the parties, must be the
guardian of the Court’s judicial integrity.”90
2 70 In the Free Zones case, the Permanent Court alluded to
the same problem, when stating that:
90 Northern Cameroons (Cameroon v. United Kingdom), Preliminary
Objections, Judgment, I.C.J. Reports 1963, pp 29-30; Frontier Dispute
(Burkina Faso/Niger), Judgment, I.C.J. Reports 2013, p 69, para 45
65
“After mature consideration, the Court maintains its opinion that it would be incompatible with the Statute, and with its position as a Court of Justice, to give a judgment which would be dependent for its validity on the subsequent approval of the Parties.”91 Or, one might add, on the subsequent decision of another institution 2 71 In order to verify the accuracy of Nicaragua’s submission in the instant case the Court would be required to conduct an intricate scientific analysis, following a process that is essentially collaborative and not adversarial at all, i.e. an interactive process allowing a two-way flow of information between the CLCS and the State seeking a recommendation What Nicaragua requests the Court to do is to issue a judgment that could be contradicted by subsequent recommendations of the CLCS 92 This situation would be clearly inconsistent with the finality and binding effect of the Court’s decisions. Furthermore, none of the above would be compatible with the Court’s integrity as a judicial organ 91 Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p 161 92 As anticipated by Judge Donoghue, this would be one of the “legal and institutional difficulties” that could emerge in the future: “(…) the Court’s conclusions regarding the location of the outer limits, in a judgment that is binding on the parties, might differ from recommendations that later emerge from the Commission” (2012 Judgment, Separate Opinion of Judge Donoghue, p 756, para 18; p 757, para 23) See also 2016 Judgment, Declaration of Judge Bhandari, para 8 66
2 72 Moreover, even in the event that the Court were to
decide to arrogate for itself the role of the CLCS and assume the
duties assigned to the latter, the process that would have to be
followed is a rigorous one Colombia has attached to the present
Counter-Memorial a description of the detailed scientific
standards and procedures that the Court would be obliged to
follow in order to replicate the process before the CLCS, and the
standard of proof that Nicaragua would be held to 93 As will
become evident, the CLCS’ procedure and standard of proof are
not within the modus operandi of the Court and exceed the
Court’s scientific expertise
2 73 For these reasons, in the absence of corroborated
scientific proof that Nicaragua has an outer continental shelf
extending up to the line of delineation on which its case rests,
the Court should reject Nicaragua’s claim and refrain from
proceeding to any delimitation
E. Conclusion
2 74 As Colombia has demonstrated, the OCS regime is a
conventional regime which is confined to UNCLOS Parties If a
claim is proved, the CLCS makes a recommendation, on the
basis of which the State establishes the outer limits of its
continental shelf and they then become final and binding The
State’s OCS is recognised in return for a royalty payment for the
93 See Annex 49
67
benefit of States Parties which do not have wide shelves As a conventional regime, this process is subject to the decision-making of an independent UNCLOS body As an internal UNCLOS regime, the OCS regime does not constitute customary international law94 and therefore it is not opposable to Colombia 2 75 UNCLOS is an integral package, in which “it is not possible for a State to pick what it likes and to disregard what it does not like.”95 If, as Ambassador Koh stated, the “rights and obligations go hand in hand and it is not permissible to claim rights under the Convention without being willing to shoulder the corresponding obligations”,96 the converse must also be respected Since Colombia, as a non-Party State, cannot claim any benefits under the OCS sections of UNCLOS, it may not be subjected to its corresponding obligations 97 2 76 Moreover, since Colombia is only subject to customary international law in this matter, Colombia’s defence must also be examined based solely upon customary international law and not UNCLOS The divergence of laws in this case means that while Nicaragua must prove any OCS claim based upon the provisions of UNCLOS and customary law, Colombia only has 94 On the position of the United States, a non-Party, see J Mossop, footnote 36 supra, pp 82, 84-86 This position has been criticized as unreasonable and self-interest motivated by Professor W T Burke, see footnote 42 supra 95 UNCLOS III, Official Records, footnote 37 supra, p 47 96 UNCLOS III, Official Records, footnote 37 supra, p 47 97 W T Burke, footnote 42 supra, pp 402, 405; see also J Mossop, footnote 36 supra, p 84 68
to prove that under the latter, an OCS claim (which, Colombia
submits, Nicaragua’s data fails to prove) may not, in any event,
encroach upon another State’s customary 200-nautical-mile EEZ
with its attendant continental shelf ipso jure entitlement
2 77 As Colombia will establish in Chapter 7 infra, Nicaragua
has not proved the existence and extent of the OCS it asks the
Court to uphold While the Court has expressly recalled that a
State Party to UNCLOS is required to respect and follow
UNCLOS procedures, Nicaragua has not done so Contrary to
what Nicaragua contends, the Court did not decide in 2016 that
it can proceed with the delimitation sought by Nicaragua It only
decided that it has jurisdiction over the “Question” of the
delimitation beyond 200 nautical miles from Nicaragua’s coast.
The circumstances of the case as they appear after the Memorial
show that Nicaragua relies on the determination of a line
delineating the outer limits of its putative OCS – a determination
which is under the exclusive prerogative of the CLCS As this is
not a situation of coastal adjacency where the scientific evidence
is uncontested, the Court is not in a position to uphold or take
for granted the line of delineation argued by Nicaragua Absent
this line of delineation, there is simply no case for another
judicial delimitation of continental shelf areas between
Nicaragua and Colombia
2 78 If, quod non, the Court were disposed to assume the role
of the CLCS, despite the fact that it is not specifically equipped
to assume this function, it would have to adopt a procedure and
69
standards at least as rigorous as those employed by the CLCS The rigorous scientific methodology, heavy burden of proof and high degree of scrutiny that Nicaragua’s claim would have had to withstand under the CLCS procedure cannot be evaded simply by transferring the issue from the CLCS to the Court, as if the Court were the “soft-law window” for the Law of the Sea The Court would have to submit Nicaragua’s claim to the same burden of proof and rigorous scientific scrutiny as the CLCS As demonstrated in Annex 49, this task is not within the judicial function, scientific expertise or modus operandi of the Court 2 79 In this regard, it is to be noted that Nicaragua’s evidentiary case is for all intents and purposes frozen In its Memorial, filed on 28 September 2016, Nicaragua chose to present as the sole evidence supporting its OCS claim the 2013 Submission already made to the CLCS It did not update it in any way and did not include any supplementary material whatsoever Thus, both organs (the CLCS and the Court) have now before them an identical claim said to be supported with the same elements of proof Were Nicaragua to attempt submitting to the Court additional information concerning this aspect of the case, Nicaragua would necessarily be modifying its Submission outside the established procedure and thus distancing itself from the request it already put before the CLCS 2 80 Whether the Court has the facilities and resources to perform a function for which the drafters of UNCLOS designed and empowered the CLCS and, if so, whether exercising those 70
powers would be compatible with the Court’s judicial function,
is problematic The answer to the first question must be sought
in the text and the object and purpose of UNCLOS The answer
to the second question must be sought in the prudential wisdom
of the Court
2 81 Colombia respectfully submits that the answer to both of
these questions is no However, should the Court reject
Colombia’s submission and establish that it is within its judicial
function to determine the scientific accuracy of Nicaragua’s
OCS claim, the Court would face the impossible task of having
to apply standards that are at least as rigorous as those of the
CLCS and verify, with at least the same degree of scientific
scrutiny that the CLCS must apply,98 that Nicaragua has a
continental shelf extending beyond 200 nautical miles towards
Colombia (and assuming that an OCS claim can even encroach
on another State’s EEZ with its attendant continental shelf, quod
non) Moreover, this would have to be done without the
expertise of the CLCS and its capacity to ask Nicaragua for
specific new evidence to try to overcome the deficiencies in its
Submission, all of which would be contrary to the Court’s
judicial function
2 82 Colombia has also demonstrated that, in any event,
Nicaragua cannot rely, as a matter of proof of the extent of its
purported continental margin, on Article 76 (4) of UNCLOS visà-
vis Colombia
98 For elaboration see Annex 49
71
2 83 Lastly but not less importantly, Nicaragua must demonstrate that it has a continuous uninterrupted natural prolongation that extends up to and beyond 200 nautical miles towards Colombia, as required by customary international law Again, as shown in Chapter 7, Nicaragua fails to make said demonstration 72
Chapter 3
A STATE’S ENTITLEMENT TO A 200-NAUTICALMILE
EEZ WITH ITS ATTENDANT CONTINENTAL
SHELF PREVAILS OVER ANOTHER
STATE’S COMPETING OCS CLAIM
A. Background
3 1 The Third Conference on the Law of Sea introduced a
new concept to international law: the EEZ Now customary
international law, it appertains to a coastal State regardless of
whether or not it is Party to UNCLOS In its EEZ, a coastal
State enjoys ipso jure exclusive jurisdiction over specified rights
in the water column and the seabed and subsoil Within 200
nautical miles from the coastal State’s baselines there is, in
effect, one national regime composed of the territorial sea and
the EEZ, with its attendant continental shelf With respect to the
EEZ, the Court held in 1985, in Libya/Malta:
“Although there can be a continental shelf where
there is no exclusive economic zone, there cannot
be an exclusive economic zone without a
corresponding continental shelf.”99
That continental shelf, which is incorporated in the EEZ, to
which the Court refers, appertains to the coastal State and its
islands;100 it continues to its statutory limit of 200 nautical miles
99 Libya/Malta, p 33, para 34
100 It will be recalled that the Court held in 2012 that Colombia’s
islands are entitled to an EEZ, meaning that the EEZ is customary
73
or until it encounters another State’s EEZ with its attendant continental shelf 101 3 2 This was not merely a judicial invention As will be shown, the UNCLOS legislative history confirms it in multiple places 102 By contrast, a State claiming an OCS must prove what it contends by means of prescribed criteria of geology and geomorphology 103 3 3 Once an OCS claim has been proved, the rights the State acquires in that shelf might seem to be the same as those which pertain to a coastal State in the continental shelf of its EEZ, as a comparison of the texts of UNCLOS Articles 77 and 56 might, at first glance, suggest But there is a significant difference The rights which a coastal State enjoys in the EEZ with its attendant continental shelf are exclusive and unqualified, whereas the rights which a wide-shelf State may secure in the OCS are subject to a 7% levy for the international community; this levy or royalty is an acknowledgement that, unlike the EEZ with its attendant continental shelf, whose origin is as an entitlement of the coastal State, an OCS is a tolerated infringement on the Common Heritage of Mankind international law and not dependent on being a Party to UNCLOS See 2012 Judgment, p 666, paras 114-118 and pp 686-687, para 168 101 UNCLOS, Article 57 102 UNCLOS III, Official Records, Vol I – XVII, 21st Plenary Meeting, UN Doc A/CONF 62/SR 21, para 6 (Costa Rica) 103 UNCLOS, Article 76; see also Chapter 2 supra 74
3 4 In its reapplication to the Court of the claim which was
rejected in 2012, Nicaragua seeks to deny Colombia its
entitlement to an EEZ with its attendant continental shelf by
claiming that Nicaragua’s alleged OCS (whose insufficiency
Colombia demonstrates later in this Counter-Memorial)104 takes
precedence over the EEZ with its attendant continental shelf
entitlement of Colombia’s mainland and the islands comprising
the San Andrés Archipelago
3 5 In this Chapter, Colombia will show that, in accordance
with both UNCLOS, which binds Nicaragua, and customary
international law, which applies to both Parties, any coastal
State’s entitlement to a 200-nautical-mile EEZ with its attendant
continental shelf, encompassing the waters superjacent to the
seabed, as well as the seabed and its subsoil,105 prevails over
another State’s claim to extend its putative OCS into the same
area There are three principal reasons for this: (1) while the
200-nautical-mile EEZ with its attendant continental shelf is an
ipso jure entitlement of coastal States, which pertains to them on
the basis of the distance criterion, any OCS claim must be
proven by the coastal State with reference to geological and
geomorphological criteria;106 (2) OCS claims were never
intended to encroach upon another State’s ipso jure entitlement
to an EEZ with its attendant continental shelf, but only upon the
International Area, which is the Common Heritage of Mankind;
104 See Chapter 7 infra
105 UNCLOS, Article 56 (1) (a)
106 See 2016 Judgment, Separate Opinion of Judge Greenwood,
para 18
75
and (3) the economic rights assigned in the 200-nautical-mile EEZ with its attendant continental shelf are sovereign rights fully and exclusively exercised by the coastal State, whereas the OCS is a grant to a wide-shelf State in exchange for revenue-sharing with the other States Parties Colombia will also demonstrate that the customary international law regime applies equally to EEZ with its attendant continental shelf generated by islands and mainland 3 6 This Chapter will prove that this is compelled by customary international law as well as by UNCLOS, the latter through an exhaustive canvassing of the legislative history of UNCLOS III, in which the concepts of the EEZ and the OCS were forged; by a survey of preponderant subsequent State practice; and by the near unanimity of doctrine Colombia will establish that not only would no other interpretation of customary and conventional international law finds support in the legislative history and State practice, but also no other would be reasonable, equitable or just B. The Travaux Préparatoires of UNCLOS Confirm that the EEZ of One State, with its Attendant Continental Shelf, Prevails Over the OCS Claim of Another State 3 7 For clarity, the UNCLOS travaux will be treated in five sections The first will demonstrate the primacy which was assigned to the EEZ, with its attendant 200-nautical-mile 76
continental shelf, as “the keystone” of the new regime.107 The
second section will show that the negotiating Parties were
clearly distinguishing between the OCS and the EEZ: the EEZ
with its attendant continental shelf pertained to a coastal State as
of right, while the OCS was contingent on the proof of
prescribed geological and geomorphological facts The third
section will confirm that the OCS of one State, rather than
encroach upon the EEZ with its attendant continental shelf of
another, was intended only to infringe upon the international
Area Moreover, if a claim was proved through an internal
scientific process, the permission to encroach was only to be
granted in return for revenue-sharing with the other States
Parties The fourth section will prove that the OCS of one State
was not to infringe upon the 200-nautical-mile zone of another
State The fifth section will show that this UNCLOS regime was
to extend equally to the EEZ with its attendant continental shelf
of mainland and islands
107 UNCLOS III, Official Records, Vol III, Documents of the
Conference, First and Second Sessions, Statement by the Chairman of the
Second Committee at its 46th Meeting, UN Doc A/CONF 62/C 2/L 86, p
243
77
(1) THE UNIVERSALIZATION AND CENTRAL IMPORTANCE OF THE 200-NAUTICAL-MILE LIMIT 3 8 By the 5th meeting of the Second Committee of the Law of the Sea Conference in 1974, three proposals with respect to extended coastal State jurisdiction were in play: (i) no more than 12 nautical miles of territorial sea; (ii) 12 nautical miles of territorial sea, plus an EEZ up to 200 nautical miles; and (iii) the extension of the territorial sea up to 200 nautical miles 108 3 9 The third proposal preceded the negotiations, having originated in claims by several States, including Peru, Brazil and Chile, to a territorial sea extending to a 200-nautical-mile limit 109 The first proposal did not long survive, but the third proposal for a 200-nautical-mile territorial sea continued to receive support 110 The second proposal, calling for a territorial 108 UNCLOS III, Official Records, Vol II, Summary Records of Meetings of the First, Second and Third Committees, Second Committee, Second Session, 5th Meeting, UN Doc A/CONF 62/C 2/SR 5, para 59 (Tunisia) 109 The concept of a 200-nautical-mile zone originated in Latin America See Santiago Declaration on the Maritime Zones, 18 August 1952, available at: https://treaties un org/doc/Publication/UNTS/Volume%201006/volume-1006-I-14758-English pdf (last visited 17 Sep 2017) See also Montevideo Declaration on the Law of the Sea, 8 May 1970, available at: https://iea uoregon edu/treaty-text/1970-montevideodeclarationlawofseaentxt (last visited 17 Sep 2017); Virginia Commentary, Vol II, 1993, p 494; UNCLOS III, Official Records, 48th Plenary Meeting, paras 38-45 (Inter-American Juridical Committee of the Organization of American States); Ibid , Second Committee Meetings, 16th Meeting, UN Doc A/CONF 62/C 2/SR 16, para 32 (Peru); Ibid., 5th Meeting, UN Doc A/CONF 62/C 2/SR 5, paras 2-3 (Brazil); United States Department of State, Limits in the Seas (Limits in the Seas), No 112, available at: https://www state gov/e/oes/ocns/opa/c16065 htm (last visited 17 Sep 2017) 110 Brazil: Draft articles containing basic provisions on the question of the maximum breadth of the territorial sea and other modalities or 78
sea of 12 nautical miles plus an EEZ up to 200 nautical miles,
took shape as a compromise solution:111 the coastal State would
be entitled to extend its jurisdiction to the outer limit of 200
nautical miles, not as its sovereign territorial sea, but rather as an
area in which the State would exercise specified sovereign rights
in the water column, seabed and subsoil subject to various
limitations
3 10 As the concept of a coastal State’s entitlement to
jurisdiction up to 200 nautical miles began to gather support and
then to win universal acceptance,112 the negotiations shifted from
the distance criterion to a focus on the coastal State’s rights
within the zone 113 This zone, which would become the EEZ,
was immensely important to coastal States, especially
developing ones 114 The EEZ, together with the Common
combinations of legal regimes of coastal State sovereignty, jurisdiction or
specialized competence, SC II/L 25, reproduced in R Platzöder, Third United
Nations Conference on the Law of the Sea: Documents (UNCLOS
Documents), Vol V, 1984, p 85; Ibid , Draft articles for inclusion in a
convention on the law of the sea: working paper submitted by the delegations
of Ecuador, Panama and Peru, SC II/L 27 and Corr 1-2, Vol V, p 88; see
also Ibid , Ecuador: Draft articles on the nature and characteristics of the
territorial sea, UN Doc A/CONF 62/C 2/L 88, Article 6, Vol V, p 196;
Ibid , Uruguay: Draft articles on the territorial sea, SC II/L 24, Vol V, pp
91-92; UNCLOS III, Official Documents, Second Committee Meetings, 3rd
Meeting, UN Doc A/CONF 62/C 2/SR 3, paras 8-15 (Madagascar); Ibid.,
46th Meeting, UN Doc A/CONF 62/C 2/SR 46, para 30 (Guinea); Ibid.,
135th Plenary Meeting, UN Doc A/CONF 62/SR 135, para 1 (Ecuador)
111 See Virginia Commentary, Vol II, p 550
112 Virginia Commentary, Vol II, pp 548-550; see also UNCLOS III,
Official Documents, Second Committee Meetings, 5th Meeting, UN Doc
A/CONF 62/C 2/SR 5, para 5 (Brazil)
113 See e.g. UNCLOS III, Official Documents, Second Committee
Meetings, 5th Meeting, UN Doc A/CONF 62/C 2/SR 5, para 40 (El
Salvador)
114 See e.g., UNCLOS III, Official Documents, Second Committee
Meetings, 19th Meeting, UN Doc A/CONF 62/C 2/SR 19, para 52 (Iceland);
79
Heritage of Mankind, was depicted by Canada as one of “the two main pillars on which the regime of the seas should be based”.115 It received more support than any other issue and, in time, reached the level of “‘consensus’ or ‘near consensus’”.116 3 11 In the negotiations, Colombia was one of the States that expressly shared this conception of the EEZ During the 29th Meeting, Colombia emphasized the importance of the EEZ and considered it to be “an irreversible trend in the new law of the sea, since it was the only formula that reconciled the interests of the coastal States with those of the international community.”117 Nor was Colombia alone; any attempt to diminish the coastal State’s rights within the EEZ was stoutly opposed by coastal States, especially developing ones 118 China, too, submitted that Ibid , 23rd Plenary Meeting, UN Doc A/CONF 62/SR 23, para 57 (Argentina); Ibid., 21st Plenary Meeting, UN Doc A/CONF 62/SR 21, para 15 (Brazil); Ibid., 25th Plenary Meeting, UN Doc A/CONF 62/SR 25, para 69 (Western Samoa); Ibid., 26th Plenary Meeting, UN Doc A/CONF 62/SR 26, para 94 (Organization of African Unity); Ibid., 30th Plenary Meeting, UN Doc A/CONF 62/SR 30, para 14 (Chile); Ibid., 31st Plenary Meeting, UN Doc A/CONF 62/SR 31, paras 22-24 (Ecuador); Ibid., 45th Plenary Meeting, UN Doc A/CONF 62/SR 45 para 7 (Mexico); Ibid., 189th Plenary Meeting, UN Doc A/CONF 62/SR 189, para 18 (Chile); Ibid., 187th Plenary Meeting, UN Doc A/CONF 62/SR 187, para 20 (Brazil); Ibid., 138th Plenary Meeting, UN Doc A/CONF 62/SR 187, para 113 (Philippines) 115 UNCLOS III, Official Documents, 27th Plenary Meeting, UN Doc A/CONF 62/SR 27, para 13 (Canada) 116 UNCLOS III, Official Documents, Second Committee Meetings, 24th Meeting, UN Doc A/CONF 62/C 2/SR 24, para 64 (India); see also Ibid , 35th Plenary Meeting, A/CONF 62/SR 35, para 35 (Panama); Limits in the Seas, No 112 117 UNCLOS III, Official Documents, Second Committee Meetings, 29th Meeting, UN Doc A/CONF 62/C 2/SR 29, para 16 (Colombia) 118 See e.g. Ibid , Second Committee Meetings, 25th Meeting, UN Doc A/CONF 62/C 2/SR 25, para 27 (Ivory Coast); Ibid., 46th Meeting, UN Doc A/CONF 62/C 2/SR 46, para 30 (Guinea); Ibid , 24th meeting, UN Doc A/CONF 62/C 2/SR 24, para 7 (China) 80
the 200-nautical-mile limit for the coastal State’s jurisdiction
“had become the essence of the new law of the sea” and was
intended to protect the State’s “sovereignty, independence and
resources”, either through the EEZ or a territorial sea with
limitations 119
3 12 The EEZ was, thus, a compromise solution: reducing the
original demands for a 200-nautical-mile territorial sea, to a
200-nautical-mile zone of functional and resources-based
jurisdiction Like the territorial sea, it pertained to the coastal
State as of right, but unlike the territorial sea, it only afforded
specified sovereign rights to the coastal State
3 13 The fact that the EEZ appertained to the coastal State as
of right, was recognized by many States during the Plenary
Meetings of the Conference 120 For instance, Egypt stressed the
importance of the proposition that any State has a right to
establish the EEZ:
“The development of the ideas of an exclusive
economic zone and a patrimonial sea was a major
contribution to the new law of the sea The
119 UNCLOS III, Official Documents, Second Committee Meetings,
48th Meeting, UN Doc A/CONF 62/C 2/SR 48, paras 30, 32 (China)
120 Ibid , 21st Plenary Meeting, UN Doc A/CONF 62/SR 21, para 10
(Costa Rica); Ibid., para 54 (Barbados); Ibid., 31st Plenary Meeting, UN Doc
A/CONF 62/SR 31, para 60 (Yemen); Ibid., 33rd Plenary Meeting, UN Doc
A/CONF 62/SR 33, para 74 (Libyan Arab Republic); Ibid., para 55
(Liberia); Ibid., 34th Plenary Meeting, UN Doc A/CONF 62/SR 33, para 36
(United Arab Emirates); Ibid., 35th Plenary Meeting, UN Doc
A/CONF 62/SR 35, para 49 (Pakistan); Ibid., 40th Plenary Meeting, UN Doc
A/CONF 62/SR 40, para 18 (Guinea-Bissau); Ibid., 187th Plenary Meeting,
UN Doc A/CONF 62/SR 187, para 18 (Brazil)
81
drawbacks inherent in the regime of the continental shelf as laid down in the Geneva Convention had been overcome The combination of the criteria of depth and exploitability in the Geneva Convention had been harshly criticized and widely disregarded: the depth criterion depended on geographic features and led to great discrepancies, while the criterion of exploitability fluctuated according to technological progress and thus favoured the developed nations over the developing ones Accordingly, everyone should recognize the right of coastal States to establish an exclusive economic zone beyond the territorial sea. Throughout the zone, States should exercise permanent sovereign rights over the exploration and exploitation of the natural resources of the sea-bed and the subsoil thereof and the superjacent waters...” 121 3 14 Similarly, the Organization of African Unity stated during the 26th Plenary Meeting that: “In order to end the continually increasing imbalance between developed and developing countries, the Organization of African Unity believed that it was indispensable to recognize that all coastal States had the right to establish, beyond their territorial sea, an exclusive economic zone, whose breadth should not exceed 200 nautical miles, in which they would exercise permanent sovereignty over all the biological and mineral riches without unduly prejudicing other legitimate uses of the sea.”122 121 UNCLOS III, Official Documents, 23rd Plenary Meeting, UN Doc A/CONF 62/SR 23, para 67 (Egypt) (emphasis added) 122 UNCLOS III, Official Documents, 26th Plenary Meeting, UN Doc A/CONF 62/SR 26, para 94 (Organization of African Unity) (emphasis added) 82
(2) DISTINCTION BETWEEN THE EEZ AND THE OCS
3 15 Nicaragua’s proposed interpretation of the juridical
“unity”123 of the continental shelf within and beyond the 200-
nautical-mile limit is not supported by the legislative history
The negotiating States distinguished between the continental
shelf within 200 nautical miles and the shelf beyond that
distance The latter, the OCS, was considered supplemental to
the entitlement ipso jure to the EEZ rather than its juridical
equal; and geological and geomorphological considerations,
which were prerequisites to an OCS claim, were considered
then, as they are now, to be irrelevant to the coastal State’s
entitlement to an EEZ with its attendant continental shelf within
the 200-nautical-mile limit
3 16 The legislative history demonstrates that the extent of the
continental shelf “to a distance of 200 nautical miles from the
baselines”124 was intended to be read in conjunction with the
EEZ’s limit of 200 nautical miles.125 The definition of the
continental shelf in Article 76 (1) dropped the specific reference
to the EEZ only in 1981 126
123 Memorial of Nicaragua, p 40, paras 2 22-2 23
124 UNCLOS, Article 76
125 UNCLOS, Article 57; see also Libya/Malta, pp 33, 35,
paras 34, 39
126 According to the Virginia Commentary, the words “exclusive
economic zone” were only removed from the text in 1981, see Virginia
Commentary, Vol II, p. 872 This was probably due to the fact that Part V
was dedicated to the EEZ and it would have been redundant in Part VI See
Ibid , p 510
83
3 17 The negotiating parties, including the US and the USSR, considered the OCS, where it existed, to lie beyond the 200-nautical-mile EEZ 127 Any OCS rights were considered different and supplemental to an EEZ with its attendant continental shelf entitlement Indeed, the concept of the continental shelf itself was considered by many to be superfluous within the 200 nautical miles, as it was absorbed by the concept of the EEZ 128 The Spanish delegate stated: “the economic or national zone was complemented by the traditional idea of continental shelf Within the national zone, there would be a single regime for both renewable and non-renewable resources The continental shelf would no longer be operative within the economic zone, and outside that zone it would come within a residual category Such a solution 127 See UNCLOS Documents, Informal Suggestion by the USSR, Part VI, Article 76, C 2 Informal Meeting/14, 27 April 27 1978, Vol V, p 20 See also Ibid , United States of America: draft articles for a chapter on the economic zone and the continental shelf, UN Doc A/CONF 62/C 2/L 47, Article 22(2), Vol V, pp 165, 167; Ibid , Proposal by Austria, Article 63 bis (ISNT II) (April 28, 1976), Vol IV, 323; Ibid , Proposal by the Netherlands, Article 82 (ICNT), 17 April 1979, Vol IV, 516; Ibid , Proposal by the Federal Republic of Germany, Article 76 and Annex II (ICNT/Rev 2) 5 August 1980, Vol IV, 527; UNCLOS III, Official Documents, Second Committee Meetings, 17th Meeting, UN Doc A/CONF 62/C 2/SR 17, para 3 (Finland); Ibid , para 32 (Spain); Ibid , 116th Plenary Meeting, UN Doc A/CONF 62/SR 116, para 51 (USSR); Ibid., para 63 (United States) (differentiating between the regime of scientific research within the EEZ and in the OCS beyond it); Ibid , 164th Plenary Meeting, UN Doc A/CONF 62/SR 164, para 158 (Algeria); Ibid , 128th Plenary Meeting, UN Doc A/CONF 62/SR 128, para 167 (Kenya) 128 See e.g. UNCLOS III, Official Documents, Second Committee Meetings, 17th Meeting, UN Doc A/CONF 62/C 2/SR 17, para 3 (Finland); Ibid., 28th Plenary Meeting, , UN Doc A/CONF 62/SR 28, para 52 (Congo); Ibid., UN Doc A/CONF 62/SR 35, 35th Plenary Meeting, para 21 (Switzerland); Ibid., 37th Plenary meeting, UN Doc A/CONF 62/SR 37, para 56 (Malta); Ibid., 40th Plenary Meeting, UN Doc A/CONF 62/SR 40, para 28 (Guinea-Bissau) 84
would cover the rights of States with an extensive
shelf”.129
3 18 Thus, the legislative history shows that Nicaragua’s
contention is wrong It was the EEZ with its attendant
continental shelf within the 200 nautical miles distance, rather
than the continental shelf within and beyond that distance,
which was considered the unified regime and constituted the
coastal State’s entitlement by right. This is consistent with the
agreement that geological and geomorphological features were
deemed irrelevant within 200 nautical miles from the baselines
3 19 Although several proposals included geological and
geomorphological factors as relevant for EEZ delimitation,130
these proposals were rejected by the Conference Geological and
geomorphological references still appeared in some of these
129 UNCLOS III, Official Documents, Second Committee Meetings,
17th Meeting, UN Doc A/CONF 62/C 2/SR 17, para 32 (Spain) (the Spanish
representative based his position upon Nicaragua’s draft articles and a
proposal by Colombia, Mexico and Venezuela There was no rebuttal by
Nicaragua )
130 See UNCLOS Documents, Proposal by Morocco, Article 14, 62 and
71 (RSNT II), 17 June 1977, Vol IV, p 390; Ibid , Turkey: Draft articles on
delineation between adjacent and opposite States, UN Doc
A/CONF 62/C 2/L 34, Vol V, 156; Ibid , Gambia, et al: Draft articles on the
exclusive economic zone, UN Doc A/CONF 62/C 2/L 82, Article 8, Vol IV,
pp 184, 185; Ibid , Kenya and Tunisia: Draft articles on the delimitation of
the continental shelf or the exclusive economic zone, UN Doc
A/CONF 62/C 2/L 28, Vol V, p 148; during the 29th Meeting of the Second
Committee, Burma, referencing no country but itself, stated that according to
its opinion, the proper delimitation “in situations where the application of the
equidistance rule would result in the economic zone of one State overlapping
the natural prolongation of another State, the natural prolongation principle
should be determinant for the purpose of delimiting the sea-bed boundary”
UNCLOS III, Official Documents, Second Committee Meetings, 29th
Meeting, UN Doc A/CONF 62/C 2/SR 29, para 7 (Burma) Burma’s
proposal seems to have been an outlier; no other State appears to have agreed
with it
85
proposals, probably because the delimitation of the EEZ and the continental shelf were negotiated together and the proposals still referenced both regimes 131 Most States considered such factors to be utterly irrelevant within 200 nautical miles from the baselines;132 their absence is manifest in the delimitation article 131 See Virginia Commentary, Vol II, p 492; many of the proposals to the effect that geological or geomorphological considerations would apply to the delimitation of the exclusive economic zone were joined to proposals which concerned the delimitation of both the exclusive economic zone and the continental shelf See also, UNCLOS Documents, Proposal: Delimitation of Marine Spaces between States, Article 2, 2 May 1975, Vol IV, p 231; Ibid., Proposal by Morocco, Article 14, 62 and 71 (RSNT II) 17 June 1977, Vol IV, pp 390, 391 (both of the articles for the delimitation of the exclusive economic zone and continental shelf are identical and presented in the same proposal); Ibid , Netherlands: Draft article on delimitation between States with opposing or adjacent coasts, UN Doc A/CONF 62/C 2/L 14, Vol V, 133-4; Ibid , Kenya and Tunisia: Draft articles on the delimitation of the continental shelf or the exclusive economic zone, UN Doc A/CONF 62/C 2/L 28, Vol V, p 148; Ibid , France: Draft articles on the delimitation of the continental shelf or the exclusive economic zone, UN Doc A/CONF 62/C 2/L 74, Vol V, p 181; Ibid , Algeria, et al , Articles 62 and 71 (RSNT II), Vol IV, p 468; Ibid , Spain, Articles 62 and 71 (RSNT II), Vol IV, p 467 132 See Virginia Commentary, Vol II, pp 841, 874; UNCLOS Documents, Informal Suggestion by the USSR, Part VI, Article 76, C 2 Informal Meeting/14, 27 April 1978, Vol V, 21; Ibid , Canada, Article 62 (RSNT II), Vol IV, p 467; Ibid , Spain, Articles 62 and 71 (RSNT II), Vol IV, p 467; Ibid , Algeria, et al , Articles 62 and 71 (RSNT II), Vol IV, p 468; Ibid , Netherlands: draft article on delimitation between States with opposite or adjacent coasts, UN Doc A/CONF 62/C 2/L 14, Vol V, pp 133-4; Ibid , Romania: draft articles on delimitation of marine and ocean space between adjacent and opposing neighbouring States and various aspects involved, UN Doc A/CONF 62/C 2/L 18, Vol V, pp 138-9; Ibid , Greece: draft articles on the continental shelf, UN Doc A/CONF 62/C 2/L 25, Vol V, p 145; Ibid , Japan: revised draft article on the continental shelf, UN Doc A/CONF 62/C 2/L 31/Rev 1, Vol V, p 154; Ibid , Greece: draft article on the exclusive economic zone beyond the territorial sea, UN Doc A/CONF 62/C 2/L 32, Vol V, p 154; Ibid , Ireland: draft article on delimitation of area of continental shelf between neighbouring States, UN Doc A/CONF 62/C 2/L 43, Vol V, p 163; Ibid , France: draft articles on the delimitation of the continental shelf or the exclusive economic zone, UN Doc A/CONF 62/C 2/L 74, Vol V, p 181; UNCLOS III, Official Records, Second Committee Meetings, 20th Meeting, UN Doc A/CONF 62/C 2/SR 20, paras 60-61 (Federal Republic of Germany) 86
for the EEZ133 and the decision of the ICJ in Libya/Malta ratified
this “development”: the Court ruled that geological and
geomorphological considerations are immaterial and are not a
source of title whenever the delimited area is within 200 nautical
miles from the baselines:
“The Court however considers that since the
development of the law enables a State to claim
that the continental shelf appertaining to it
extends up to as far as 200 miles from its coast,
whatever the geological characteristics of the
corresponding sea-bed and subsoil, there is no
reason to ascribe any role to geological or
geophysical factors within that distance either in
verifying the legal title of the States concerned or
in proceeding to a delimitation as between their
claims This is especially clear where verification
of the validity of title is concerned, since, at least
in so far as those areas are situated at a distance
of under 200 miles from the coasts in question,
title depends solely on the distance from the
coasts of the claimant States of any areas of seabed
claimed by way of continental shelf, and the
geological or geomorphological characteristics of
those areas are completely immaterial.”134
3 20 The implications of the Court’s dictum are important
Since geological and geomorphological features do not
constitute a source of title and are irrelevant and “completely
immaterial” for the delimitation of the EEZ and the continental
shelf within 200 nautical miles, an OCS claim, based upon
geological and geomorphological criteria with the burden of
proof on the State claiming the OCS, may not encroach upon
133 UNCLOS, Article 74
134 Libya/Malta, p 35, para 39
87
another State’s EEZ with its attendant continental shelf, which pertain to the latter ipso jure 3 21 The Court repeated this dictum in the 2012 Judgment when it ruled that “(i)t has repeatedly made clear that geological and geomorphological considerations are not relevant to the delimitation of overlapping entitlements within 200 nautical miles of the coasts of States”.135 This is, in the most literal sense, a jurisprudence constante Despite this, Nicaragua has brought up, again, its OCS claim, based upon geology and geomorphology, within 200 nautical miles of Colombia’s mainland and insular territories, this time to the east (3) THE OCS, WHERE PROVED, WAS INTENDED TO INFRINGE SOLELY UPON THE COMMON HERITAGE OF MANKIND 3 22 Many negotiating States considered that, in principle, the 200-nautical-mile EEZ with its attendant continental shelf was a sufficient grant to a coastal State and that, as such, it constituted the maximum tolerable infringement upon the international maritime area which was to be reserved for the common heritage of mankind or the Area 136 They proposed to abolish the concept of the continental shelf entirely, thus limiting the extent of the coastal State’s jurisdiction to the 200-nautical-mile 135 2012 Judgment, p 703, para. 214 136 Several States considered that the regime of the EEZ was in itself an infringement upon the common heritage of mankind See UNCLOS Documents, Vol V, pp 342, 334 and 359 It should be noted that several delegations wanted the revenue-sharing to apply to the EEZ also; see Ibid , Vol IV, pp 52, 53, 160 and 239 88
limit 137 This point, which is sometimes overlooked, arises
clearly in the legislative history and is important to an
understanding of the final regime which UNCLOS established
The 200-nautical-mile limit, since it applied ipso jure to every
coastal State and did not discriminate in favour of States that
were lucky enough to have wide shelves, was considered, as
Jamaica’s representative put it, to
“facilitate a more equitable sharing of the
resources of the seas among the peoples of the
world… (and) be more consistent with the
principle of the common heritage of mankind
(which) (m)any delegations felt that (…) by
virtue of general recognition, had become part
of customary international law.”138
3 23 One must bear in mind, as noted earlier, that many States
137 Virginia Commentary, Vol II, p 844; UNCLOS III, Official
Records, Second Committee Meetings, 16th Meeting, UN Doc
A/CONF 62/C 2/SR 16, para 31 (Paraguay); Ibid., 17th Meeting, UN Doc
A/CONF 62/C 2/SR 17, para 1 (Zaire); Ibid., para 24 (Japan); Ibid., 18th
Meeting, UN Doc A/CONF 62/C 2/SR 18, para 34 (Uganda); Ibid., para 78
(Egypt); Ibid., 19th Meeting, UN Doc A/CONF 62/C 2/SR 19, para 4
(Romania); Ibid., paras 21-23 (Switzerland); Ibid., para 20 (Denmark);
Ibid., 20th Meeting, UN Doc A/CONF 62/C 2/SR 20, para 39 (Lebanon);
Ibid., para 33-35 (Tunisia); Ibid., para 61 (Federal Republic of Germany);
Ibid., para 102 (Panama); Ibid., para 104 (Malta); Ibid., UN Doc
A/CONF 62/C 2/SR 20, paras 91-93 (Jamaica); Ibid., 27th Meeting, UN Doc
A/CONF 62/C 2/SR 27, para 18 (Khmer Republic); Ibid., para 65
(Afghanistan); Ibid., paras 54, 58 (Haiti); Ibid., 28th Meeting, UN Doc
A/CONF 62/C 2/SR 28, para 64 (Lebanon); Ibid., 33rd Meeting, UN Doc
A/CONF 62/C 2/SR 33 para 13 (Kenya); Ibid., 44th Meeting, UN Doc
A/CONF 62/C 2/SR 44, para 10 (Tanzania); UNCLOS Documents, Group of
Land-locked and Geographically Disadvantaged States, Draft Principles of
the Group of Land-locked and Geographically Disadvantaged States, Geneva
Session 1975, Vol IV, pp 238-239; Ibid , Japan: revised draft articled on the
continental shelf, UN Doc A/CONF 62/C 2/L 31/Rev 1, Vol V, p 154
138 UNCLOS III, Official Documents, Second Committee Meetings,
20th Meeting, UN Doc A/CONF 62/C 2/SR 20, para 91-2 (Jamaica)
89
considered that the acceptance of the OCS would be unjust, excessive and “would make a mockery of the principle of the common heritage of mankind”.139 3 24 Some other States argued that the coastal State should be entitled, exclusively, to exploit the resources of the continental shelf up to the continental margin, regardless of any criteria 140 Some of them even objected to the very idea of the revenue-sharing compromise 141 The record shows that this radical position was rejected by the Conference 142 3 25 The resulting compromise was a quid pro quo:143 the 139 UNCLOS III, Official Documents, 20th Meeting, UN Doc A/CONF 62/C 2/SR 20, para 104 (Malta); see also Ibid , pp 1-2 (Gambia); Ibid , 18th Meeting, UN Doc A/CONF 62/C 2/SR 18, para 32 (Singapore); Ibid , 19th Meeting, UN Doc A/CONF 62/C 2/SR 19, para 22 (Switzerland); Ibid , 23rd Meeting, UN Doc A/CONF 62/C 2/SR 23, p 23 (Liberia); Ibid , 35th Meeting, UN Doc A/CONF 62/C 2/SR 35, para 9 (Liberia) 140 UNCLOS III, Official Documents, Second Committee Meetings, 20th Meeting, UN Doc A/CONF 62/C 2/SR 20, para 10 (El Salvador); Ibid., 19th Meeting, UN Doc A/CONF 62/C 2/SR 19, para 29 (Ecuador); UNCLOS Documents, Sri Lanka, Aide Memoire, Vol IV, p 514 (Sri Lanka’s position might be attributed to its special circumstances vis-à-vis the Irish formula) 141 UNCLOS Documents, Iran: draft article on the continental shelf, UN Doc A/CONF 62/C 2/L 84, Vol V, p 189; UNCLOS III, Official Documents, Second Committee Meetings, 20th Meeting, UN Doc A/CONF 62/C 2/SR 32, para 59 (Iran); see Ibid., 44th Meeting, UN Doc A/CONF 62/C 2/SR 44, para 1 (Iran); Ibid., 33rd Meeting, UN Doc A/CONF 62/C 2/SR 32, para 24 (India) 142 See e.g. UNCLOS Documents, Informal Suggestion by the USSR, Part VI, Article 76, C 2 Informal Meeting/14, 27 April 1978, Vol V, p 20-1 (The Soviet Union stressed that it was important to distinguish where the jurisdiction of the coastal State ended and the Area constituting the common heritage of mankind began) 143 The Virginia Commentary points out that: “As the conference proceeded, it became increasingly clear that there was a close link between acceptance of coastal State jurisdiction over the resources of the continental shelf and a system of revenue-sharing with respect to the exploitation of the 90
land-locked, geographically disadvantaged and narrow-shelf
States agreed to grant the wide-shelf States the opportunity, if
proven under the strict scrutiny of an independent professional
commission composed of scientists, to exploit the resources that
would have otherwise belonged to the common heritage of
mankind, in return for revenue-sharing with the international
community 144 The mechanism in Article 82 stipulated the
revenue-sharing condition for OCS exploitation, precisely
because the OCS was considered to infringe upon the common
heritage of mankind 145 The revenue-sharing mechanism was
considered especially important, as Ghana put it, in order that
“the international community obtained some benefit from the
exploitation of what would otherwise have fallen within the
international zone”.146
3 26 The point bears emphasizing: the opposition to the OCS
continental shelf beyond 200 miles.” Virginia Commentary, Vol II, p at 486;
see also Ibid , p 854 (citing the report of the Chairman of the Second
Committee to the Plenary)
144 UNCLOS, Article 82 See Chapter 2 supra; Virginia Commentary,
Vol II, pp. 831, 834, 932; UNCLOS III, Official Documents, 94th Plenary
Meeting, UN Doc A/CONF 62/SR 94, Chairman of the Second Committee,
para 16 (Venezuela); Ibid , 100th Plenary Meeting, UN Doc
A/CONF 62/SR 100, Chairman of the Second Committee, para 9
(Venezuela); Ibid., 103rd Plenary Meeting, UN Doc A/CONF 62/SR 103,
para 9 (Canada); Ibid., 139th Plenary Meeting, UN Doc
A/CONF 62/SR 139, para 172 (Syrian Arab Republic); Ibid., at 103rd
Plenary Meeting, UN Doc A/CONF 62/SR 103, para 22 (USSR)
145 UNCLOS III, Official Documents, Second Committee Meetings,
41st Meeting, UN Doc A/CONF 62/C 2/SR 41, para 20 (United States);
UNCLOS Documents, Proposal by the Netherlands, Article 82 (ICNT) (April
17, 1979), Vol V, p 516
146 UNCLOS III, Official Documents, Second Committee Meetings,
41st Meeting, UN Doc A/CONF 62/C 2/SR 20, para 65 (Ghana) (emphasis
added) See also, Ibid , 127th Plenary Meeting, UN Doc A/CONF 62/SR 127,
para 5 (Yugoslavia); Ibid., 116th Plenary Meeting, UN Doc
A/CONF 62/SR 116, para 39 (Canada)
91
was because it had the potential to allow a State to cut deeply into the Area whose resources had been declared to be the common heritage of mankind Hence, the revenue-sharing compromise was considered by many of these opposing States as reasonable 147 If the OCS had also been intended to be capable of encroaching upon another State’s EEZ with its attendant continental shelf, it would have been opposed on this basis; a promise of contingent revenue-sharing would have been perceived as a derisory exchange for a State’s full entitlement to all the revenues from the economic exploitation of its EEZ 3 27 Moreover, it bears repeating that this compromise was an equitable solution to the conflicting interests that collided at the conference The travaux demonstrate how the OCS regime and the EEZ regime were, together, designed to accommodate the distinct interests of two groups of States While the OCS granted wide-shelf States the opportunity to reap financial benefits through resource exploitation if they could prove their claim to “their” extended shelf, the EEZ with its attendant continental shelf regime “stemmed (…) (from) the need to safeguard State 147 Jamaica, a country which opposed the OCS based upon its infringement upon the common heritage of mankind, viewed the revenue sharing as a reasonable compromise See UNCLOS III, Official Documents, Second Committee Meetings, 20th Meeting, UN Doc A/CONF 62/C 2/SR 20, para 97 (Jamaica); see also Ibid , 102nd Plenary Meeting, UN Doc A/CONF 62/SR 102, para 47 (Jamaica); Ibid., 38th Plenary Meeting, UN Doc A/CONF 62/SR 102, para 28 (United States); Ibid., 100th Plenary Meeting, UN Doc A/CONF 62/SR 102, Chairman of the Second Committee, para 9 (Venezuela); Ibid., 105th Plenary Meeting, UN Doc A/CONF 62/SR 105, para 28 (United States); Ibid., 103rd Plenary Meeting, UN Doc A/CONF 62/SR 103, para 62 (United Kingdom); Ibid., 116th Plenary Meeting, UN Doc A/CONF 62/SR 103, para 39 (Canada); Ibid., at 116th Plenary Meeting, UN Doc A/CONF 62/SR 116, para 54-57 (Yugoslavia); Ibid., para 69 (Mauritius) 92
sovereignty (and) defend maritime rights within a 200-nauticalmile
zone.”148 A critical part of the compromise was that the
grant to wide-shelf States could not encroach upon other coastal
States’ 200-nautical-mile entitlements with their exclusive
rights
3 28 What may, at first glance, seem to be an outlier position
on the subject was voiced by Peru during the 16th Meeting of
the Second Committee: even if the continental shelf extends
beyond 200 nautical miles, “(n)o country had stronger claims
than the coastal State over any part of its continental shelf, since
the shelf constituted a natural and indivisible part of its national
territory”.149 That was reasonable and even prescient with respect
to what became the OCS regime, but surely was not intended to
relate to the EEZ entitlement Recall that Peru was one of the
first countries to declare a territorial sea of 200 nautical miles,
and it would have been inconceivable that Peru, as a supporter
of a 200-nautical-mile territorial sea,150 would concede that
another State’s OCS, might infringe upon and trump its 200-
nautical-mile territorial sea, a fortiori, its EEZ 151
148 UNCLOS III, Official Documents, Second Committee Meetings,
48th Meeting, UN Doc A/CONF 62/C 2/SR 48, paras 30, 32 (China)
149 UNCLOS III, Official Documents, 16th Meeting, UN Doc
A/CONF 62/C 2/SR 16, para 33 (Peru)
150 By the end of the Conference, Peru had returned to the majority
view During the 37th Meeting of the Plenary, Peru put forth its position that a
coastal State should be entitled to extend its sovereignty to a 200-nauticalmile
zone for protecting vital interest Peru then stated that the supporters of a
200-nautical-mile EEZ shared a similar view for the protection of similar
interests See UNCLOS III, Official Documents, 37th Plenary Meeting, UN
Doc A/CONF 62/SR 37, para 43-45 (Peru)
151 The proposition that the EEZ was perceived as similar to the
territorial sea can be demonstrated by the Statement of the Lebanese
93
3 29 When one tracks the dynamics of the negotiations through the legislative history, it becomes clear that the geographically disadvantaged and narrow-shelf States could not allow the wide-shelf States to infringe upon their part of the compromise, the EEZ That could hardly be a surprise No reasonable negotiator would relinquish the right to exploit and receive 100% of the revenue from the seabed and subsoil of its EEZ, in exchange for a tiny fraction of 7% paid by another State for OCS exploitation to – and to be shared with – the other States Parties. That point was made by Romania’s bitter observation that the revenue-sharing was de facto almost meaningless and did not even “compensate the large losses suffered by the international community as a whole”, due to the OCS’s infringement upon the International Area 152 3 30 In the same sense, Pakistan stated that: “It would (…) be prepared to give sympathetic consideration to other proposals based on geomorphological considerations (for the OCS) representative, referring to the Latin American States: “His delegation therefore thought that the position of the Latin American States which were advocating a 200-mile territorial sea and that of States which were claiming a 200-mile economic zone were very close to one another The arguments of the former were at least clear-cut and frank, but those of the latter were not, since the economic zone would in reality be nothing other than an enlarged territorial sea”. UNCLOS III, Official Documents, Second Committee Meetings, 28th Meeting, UN Doc A/CONF 62/C 2/SR 28, para 63 (Lebanon) 152 UNCLOS III, Official Documents, Statement by the delegation of Romania, para 7, UN Doc A/CONF 62/WS/2, 2 April 1980, available at http://legal un org/docs/?path= /diplomaticconferences/1973_los/docs/english/vol_13/a_conf62_ws_2 pdf&lang=E (last visited 17 Sep 2017) See also Ibid , 188th Plenary Meeting, UN Doc A/CONF 62/SR 188, para 173 (Paraguay) 94
so long as they did not cause prejudice to the
rights and jurisdiction of the continental coast
states which the concept of the economic zone or
patrimonial sea sought to establish”.153
3 31 Thus, the travaux evidence the contemporaneous
understanding that the OCS was intended to infringe only upon
the area that would otherwise belong to the common heritage of
mankind, subject to strict scientific scrutiny,154 in exchange for
revenue-sharing, but not to infringe upon the EEZ with its
attendant continental shelf entitlement of any State
(4) THE EEZ WITH ITS ATTENDANT CONTINENTAL SHELF OF
ISLANDS AND MAINLAND PREVAILS OVER THE
OCS CLAIM OF ANOTHER STATE
3 32 The travaux demonstrate that the 200-nautical-mile EEZ
with its attendant continental shelf was to prevail over any OCS
claim purporting to encroach upon it, whether the coastal State’s
entitlement extended from mainland or islands The entitlement
of islands to the same maritime zones as mainland was debated
in the negotiations Some States wanted to diminish the
entitlements of islands to an EEZ and possible OCS, but, rather
than based on principle, this seemed due to concern for their
specific circumstances 155 The position that islands, radiating in
153 UNCLOS III, Official Documents, Second Committee Meetings,
18th Meeting, UN Doc A/CONF 62/C 2/SR 18, para 74 (Pakistan) (emphasis
added)
154 See Chapter 2 supra
155 UNCLOS Documents, Algeria, Iraq, Ireland, Libyan Arab
Jamahiriya, Madagascar, Nicaragua, Romania, Turkey, and United Republic
of Cameroon: draft paragraph on the regime of islands, UN Doc
A/CONF 62/C 2/L 96, 11 Jul 1977, Vol V, p 203; Ibid , Turkey: draft
articles on the regime of islands, UN Doc A/CONF 62/C 2/L 55 Article 3(2),
95
all directions, were entitled to the same maritime entitlements as mainland was widely supported 156 3 33 On this point, Nicaragua was an outlier at the Conference In an effort to deny the insular territories of other States their rights to an EEZ and, possibly, an OCS, Nicaragua proposed that any islands belonging to a State, which lie further than 400 nautical miles from the State’s mainland, would be denied any maritime zones vis-à-vis another State 157 That proposal was not adopted, but Nicaragua, apparently never loath to try again, attempts to resuscitate it, once more, before the Court in the present proceedings, by claiming that the Archipelago should not be entitled in a delimitation to any maritime zones that “extend east of Nicaragua’s 200 nm limit”.158 3 34 Many States opposed the proposals that were intended to Vol V, p 173; Ibid , Algeria, Iraq, Libyan Arab Jamahiriya, Madagascar, Nicaragua, Romania, Turkey, United Republic of Cameroon and Yemen, Article 128 (RSNT II), Vol IV, p 483; UNCLOS III, Official Documents, Second Committee Meetings, 29th Meeting, UN Doc A/CONF 62/C 2/SR 29, para 8 (Burma) 156 See UNCLOS Documents, Proposals on the Regime of Islands (April 28, 1975), Vol IV, p 221; see also Ibid., Proposal by the Libyan Arab Republic, Article 132 (ISNT II), Vol IV, p 347; Ibid., Greece: draft article, UN Doc A/CONF 62/C 2/L 22, Article 9, Vol V, pp 143, 144; Ibid., Greece: draft articles in the continental shelf, UN Doc A/CONF 62/C 2/L 25, Article 2, Vol V, p 145; UNCLOS III, Official Documents, Second Committee Meetings, 20th Meeting, UN Doc A/CONF 62/C 2/SR 20, para 24 (Denmark); Ibid., para 43 (Cyprus); Ibid., 24th Meeting, UN Doc A/CONF 62/C 2/SR 20, para 27 (Ghana); Ibid., para 37 (West Samoa); Ibid., 36th Meeting, UN Doc A/CONF 62/C 2/SR 36, para 35 (Fiji); Ibid , 189th Plenary Meeting, UN Doc A/CONF 62/SR 188, para 67 (Cyprus) 157 UNCLOS III, Official Documents, Second Committee Meetings, 39th Meeting, UN Doc A/CONF 62/C 2/SR 39, para 56-57 (Nicaragua) 158 Memorial of Nicaragua, p 130, para 5 20 96
diminish the entitlements of islands 159 The representative of
Trinidad and Tobago went even further and stressed that
“islands should be given more favourable treatment than
continental land masses with respect to their jurisdiction over
ocean space”.160 The delegate from New Zealand stressed that
there was “no logical reason to distinguish between sovereign
rights appertaining to islands and sovereign rights appertaining
to other land territory”.161 And the delegate from Peru submitted
that a similar “zone of 200 nautical miles (which) (…) extend(s)
in every direction from any island or group of islands” is the
only “logical and just” solution.162
3 35 What Nicaragua could not achieve diplomatically, it now
tries, by its unilateral application, to achieve judicially
Nicaragua’s special pleading to the effect that the San Andrés
Archipelago should not be entitled in a delimitation to any
maritime zones that “extend east of Nicaragua’s 200 nm
limit”,163 should be rejected, as it was by the Court’s ruling in
2012, which recognized the entitlement of San Andrés,
159 UNCLOS III, Official Documents, Second Committee Meetings,
39th Meeting, UN Doc A/CONF 62/C 2/SR 39, para 78 (Greece); Ibid., 40th
Meeting, UN Doc A/CONF 62/C 2/SR 40, para 6-7 (France) Ibid., para 39
(UK); Ibid., 45th Meeting, UN Doc A/CONF 62/C 2/SR 45, para 8 (Italy);
UNCLOS Documents, Uruguay: draft article on the regime of islands, UN
Doc A/CONF 62/C 2/L 75, Vol V, p 182
160 UNCLOS III, Official Documents, Second Committee Meetings,
39th Meeting, UN Doc A/CONF 62/C 2/SR 39, para 45 (Trinidad and
Tobago)
161 UNCLOS III, Official Documents, 38th Meeting, UN Doc
A/CONF 62/C 2/SR 39, para 70 (New Zealand)
162 UNCLOS III, Official Documents, 37th Meeting, UN Doc
A/CONF 62/C 2/SR 37, para 23 (Peru) (According to Peru, Chile and
Ecuador also supported this proposition)
163 Memorial of Nicaragua, p 130, para 5 20
97
Providencia and Santa Catalina in every direction, specifically to the east 164 (5) SUMMARY CONCLUSIONS - THE ANALYSIS OF THE TRAVAUX PRÉPARATOIRES CONFIRMS THAT THE 200-NAUTICAL-MILE EEZ AND CONTINENTAL SHELF ENTITLEMENTS OF ONE STATE PREVAIL OVER THE OCS CLAIM OF ANOTHER STATE 3 36 The UNCLOS legislative history confirms that the intention of the Conference was that an OCS claim of one State may not encroach upon an entitlement of another State to an EEZ with its attendant continental shelf The option to prove an OCS claim was granted to wide-shelf States, enabling them to exploit the resources of an area which would have otherwise belonged to the common heritage of mankind, but not to encroach on another State’s ipso jure EEZ with its attendant continental shelf 3 37 The regime of the EEZ with its attendant continental shelf thus trumps any other State’s OCS claim which purports to be based upon geological and geomorphological criteria, for these criteria are irrelevant to the delimitation of the EEZ with its attendant continental shelf within 200 nautical miles from the coast The travaux demonstrate that this conclusion is applicable to an EEZ with its attendant continental shelf generated in every direction from islands as well as mainland 164 It will be recalled that the Court held in 2012 that Colombia’s islands are entitled to a customary EEZ with its attendant continental shelf in every direction See 2012 Judgment, p 166, para 118 and pp 686-687, para 168 98
3 38 In the Caribbean Sea, there are no maritime spaces which
are beyond 200 nautical miles from the nearest land territory of
any coastal State 165 That is clearly the case of Nicaragua’s
alleged OCS, which encroaches within the 200 nautical miles of
Colombia and other States in the area it claims
C. The Preponderance of State Practice Confirms that the
Entitlement of One State to an EEZ with its Attendant
Continental Shelf, Prevails over the OCS Claim
of Another State
3 39 Given that a survey of any area of human activity will
contain clusters of practice along with outliers, the survey of
State practice of delimitation with respect to the relation
between EEZ and OCS166 is all the more striking in its clear
preponderance: the bulk of State practice confirms that when
States conclude maritime boundary agreements, the OCS of one
State has not been allowed to encroach upon another State’s ipso
165 See R A Kinzie III, “Caribbean Contributions to Coral Reef
Science”, Oceanographic History: the Pacific and Beyond, K R Benson and
P F Rehbock (eds ), University of Washington Press, 2002, pp 450, 451
(Annex 44); J E Knowles et al., “Establishing a marine conservation
baseline for the insular Caribbean”, Marine Policy, Vol 60, 2015, pp 84,
87; A Singh, Governance in the Caribbean Sea: Implications for Sustainable
Development, United Nations - Nippon Foundation Fellowship Programme,
Research Paper, 2008, available at
http://www un org/depts/los/nippon/unnff_programme_home/fellows_pages/f
ellows_papers/singh_0809_guyana pdf (last visited 17 Sep 2017); C
Carleton, “Maritime Delimitation on Complex Island Situations: A Case
Study on the Caribbean Sea”, Maritime Delimitation, R Lagoni and
D Vignes (eds ), Nijhoff, Vol. 153, 2006, pp 167-168
166 A comprehensive record and analysis of delimitation practice may
be found in J Charney and L Alexander (eds ), International Maritime
Boundaries, Vol I – Vol VII, 1993-2016 (International Maritime
Boundaries)
99
jure 200-nautical-mile entitlements Thus, practice confirms the text of UNCLOS and its legislative history, as shown in the preceding sections, and also serves as a confirmation of the customary status of this regime 3 40 For clarity of exposition, the relevant material will be treated in three parts: First, State practice within 200 nautical miles from baselines Second, State practice with respect to delimitations in which OCS claims are involved Third, the rare deviations from the preponderant practice, which have created so-called Gray Areas (areas where the OCS of one State encroaches upon the 200-nautical-mile zone of another State) In the following section, Colombia will demonstrate that in their submissions to the CLCS, States did not consider that their potential OCS claims were capable of encroaching upon another State’s EEZ with its attendant continental shelf 3 41 Together, the review of State practice will show that within 200 nautical miles from their baselines, the geological and geomorphological considerations – which are relevant to OCS claims – do not affect the delimitation practice of most States States refrain from encroaching upon the 200-nautical-mile EEZ with its attendant continental shelf of other States when advancing OCS claims; Gray Areas, rare anomalies in State practice, stem from the need for minor boundary corrections due to idiosyncratic geographic, rather than geological or geomorphological circumstances in the area or from a special arrangement, arrived at by the States concerned 100
incorporating their respective gains and offsets Overall, Gray
Areas are complicated outcomes which States wisely tend to
avoid
(1) STATE PRACTICE WITHIN 200 NAUTICAL MILES FROM THE
BASELINES
3 42 Preponderant maritime delimitation practice has been to
delimit the area within the 200-nautical-mile limit separately,
leaving any supplemental OCS delimitation to future
negotiations 167 Even in circumstances where geological or
geomorphological features existed, the parties usually
disregarded them within the 200-nautical-mile areas and used
either a negotiated formula or modified equidistance line 168 In
167 See e.g International Maritime Boundaries, Vol IV, Oman-
Pakistan, Rep 6-17, p 2809; Ibid., Denmark (Faroe Islands)-United
Kingdom, Rep 9-23, p 2956; Ibid., Vol VI, France (Wallis and Futuna)-
New Zealand (Tokelau), Rep 5-30, p 4339; Ibid., Vol I, Mexico-United
States, Rep 1-5, p 427; Ibid., Vol VI, Federated States of Micronesia-Palau,
Rep 5-31, p 4348; Ibid , Vol VI, Mauritius-Seychelles, Rep 6-22, p 4391;
Ibid , Vol VI, Denmark (Greenland)-Norway (Svalbard), Rep 9-25, p 4513;
Ibid , Vol VII, Cook Islands-New Zealand (Tokelau), Rep 5-43, p 4973
168 See e.g International Maritime Boundaries, Vol I, Colombia-
Dominican Republic, Rep 2-2, p 477; Ibid , Vol I, Colombia-Honduras,
Rep 2-4, p 503; Ibid , Vol I, Cuba-Haiti, Rep 2-7, p 551; Ibid , Vol I,
Cuba-Mexico, Rep 2-8, p 565; Ibid , Vol I, France (Martinique)-Saint
Lucia, Rep 2-10, p 591; Ibid , Vol I, France (Guadeloupe and Martinique)-
Venezuela, Rep 2-11, p 603; Ibid , Vol I, Trinidad and Tobago-Venezuela,
Rep 2-13(2), p 655; Ibid , Vol I, Trinidad and Tobago-Venezuela, Rep 2-
13(3), p 675; Ibid , Vol I, United States (Puerto Rico and the Virgin
Islands)-Venezuela, Rep 2-14, p 691; Ibid , Vol I, Dominica-France
(Guadeloupe and Martinique), Rep 2-15, p 705; Ibid , Vol I, Argentina-
Uruguay, Rep 3-2, p 757; Ibid , Vol I, Australia-France (New Caledonia),
Rep 5-1, p 905 (equidistance was used for the area within and beyond the
200-nautical-mile EEZ); Ibid , Vol I, Australia-Solomon Islands, Rep 5-4,
p 977; Ibid , Vol II, Australia (Heard/McDonald Islands)-France (Kerguelen
Islands), Rep 6-1, p 1185 (equidistance was used within and beyond the
EEZ); Ibid , Vol II, India-Maldives, Rep 6-8, p 1389; Ibid , Vol II, India-
Thailand, Rep 6-11, p 1433; Ibid , Vol II, Italy-Tunisia, Rep 8-6, p 1611;
101
the rare instances when historic, environmental or economic circumstances were taken into consideration with the delimitation of the EEZ, their effect, together with geographical features, only led to an adjustment of the boundary line 169 After UNCLOS was signed, geology and geomorphology seldom played a part in delimitation within 200 nautical miles 170 An instructive example of this practice can be found in the delimitation between Denmark and Norway Although significant geological and geomorphological features were present, the Parties did not take Ibid , Vol III, Colombia-Jamaica, Rep 2-18, p 2179; Ibid , Vol III, Cuba-Jamaica, p 2205; Ibid , Vol III, Dominican Republic-United Kingdom (Turks and Caicos Islands), Rep 2-22, p 2235; Ibid , Vol III, Cape Verde-Senegal, Rep 4-8, p 2279; Ibid , Vol III, Papua New Guinea-Solomon Islands, Rep 5-16(2), p 2323; Ibid , Vol III, Denmark-Netherlands, Rep 9-18, p 2497; Ibid , Vol III, Finland-Sweden (Bogskär Area), Rep 10-13, p 2540; Ibid , Vol IV, United States-Mexico, Rep 1-5(2), p 2621 (equidistance was used to delimit the area both within and beyond the 200-nautical-mile zone) (in the Rev 1-5, Vol I, it was stated that there were no relevant geological or geomorphological features that could have offset the equidistance line, this report only deals with the OCS); Ibid , Vol IV, Oman-Pakistan, Rep 6-17, p 2809; Ibid , Vol IV, Bulgaria-Turkey, Rep 8-13, p 2871; Ibid , Vol IV, Belgium-Netherlands, Rep 9-21, p 2921; Ibid , Vol IV, Denmark (Greenland)-Iceland, Rep 9-22, p 2942; Ibid , Vol V, Cameron-Nigeria, Rep 4-1 (add 2), p 3605; Ibid , Vol VI, Mauritius-Seychelles, Rep 6-22, p 4391; Ibid , Vol VI, Denmark (Greenland)-Norway (Svalbard), Rep 9-25, p 4513 ; Ibid , Vol VII, Bahamas-Cuba, Rep 2-23, p 4721 (because the area was comprised by overlapping EEZs and territorial sea, OCS claims had no effect on the delimitation); Ibid , Vol VII, Kenya-Tanzania, Rep 4-5(2), p 4781; Ibid , at Vol VII, Cook Islands-New Zealand (Tokelau), Rep 5-43, p 4973 169 See B H Oxman, “Political, Strategic and Historic Considerations”, International Maritime Boundaries, Vol I, p 3; see also B Kwiatkowska, “Economic and Environmental Considerations”, Ibid , p 75 170 See i.e International Maritime Boundaries, Vol I, Argentina-Chile, Rep 3-1, pp 719, 723; Ibid., Vol IV, Australia-Indonesia, Rep 6-2(6), p 269; Ibid., Vol VII, Grenada-Trinidad and Tobago, Rep 2-31, p 4705; see also Ibid., D. H. Anderson, “Developments in Maritime Boundary Law and Practice”, Vol V, p 3214 102
103
account of them for purposes of the delimitation within 200 nautical miles from their baselines 171 3 43 Another instructive example is the delimitation in the Black Sea between Bulgaria and Turkey within 200 nautical miles from their respective baselines The natural prolongation of the shelf from the countries along the western coast of the Black Sea is greater than the prolongation from the countries along the eastern coast of the Black Sea; nonetheless, geological and geomorphological considerations were disregarded in favour of an equidistance line 172 171 International Maritime Boundaries, Vol VI, Denmark (Greenland)-Norway (Svalbard), Rep 9-25, pp 4513, 4524 172 International Maritime Boundaries, Vol IV, Bulgaria-Turkey, Rep 8-13, pp 2871, 2874 104
105
3 44 In the Faroe Islands delimitation between the United Kingdom and Denmark, geological and geomorphological features within 200 nautical miles were disregarded and a modified equidistance technique was applied 173 Professor Jonathan Charney and Robert Smith, the former Geographer of the U S State Department, comment that: “From a geomorphological point of view, the Faroe Islands are divided from Scotland by the Faroe-Shetland Channel, but this feature does not represent a major break in the continental shelf Moreover, as the Channel lies within the 200 n.m. limits of the two sides, geomorphology would not have had a role to play in the delimitation”.174 173 International Maritime Boundaries, Vol IV, Denmark (Faroe Islands)-United Kingdom, Rep 9-23, p 2956 174 International Maritime Boundaries, Vol IV, Denmark (Faroe Islands)-United Kingdom, Rep 9-23, p 2964 (emphasis added) 106
107
3 45 The delimitation agreement between the Federated States of Micronesia and the Republic of Palau is especially instructive of the relationship between EEZ and OCS in State practice 175 The parties delimited the area within 200 nautical miles from their coastlines based on equidistance, disregarding potential geological or geomorphological considerations However, since the parties were aware of the existence of such features in the area and there was a possibility of a future submission to the CLCS,176 they stipulated in their treaty that “no Party shall claim an extended continental shelf that intrudes into the Exclusive Economic Zone (…) of the other party”.177 3 46 Ambassador David Colson, Deputy Assistant Secretary of State for Oceans and Fisheries Affairs from the U S , and Dr Smith conclude that: “Care has been taken to ensure that Exclusive Economic Zone rights take precedence over those related to the continental shelf beyond 200 n m from relevant baselines and to avoid any potential 175 International Maritime Boundaries, Vol VI, Micronesia-Palau, Rep 5-31, p 4348 176 International Maritime Boundaries, Vol VI, Micronesia-Palau, Rep 5-31, p 4350; CLCS, Submission by Palau, available at: http://www un org/depts/los/clcs_new/submissions_files/submission_plw_41_2009 htm (last visited 17 Sep. 2017). It should be noted that Palau’s 2009 submission to the CLCS indicates that its shelf beyond 200 nautical miles extends into Micronesia’s 200-nautical-mile zone Nevertheless, Micronesia has made no comment to the CLCS concerning Palau’s submission. Micronesia’s silence may be entirely understandable, as Article 2 (3) of their delimitation treaty ensures that the EEZ take precedent over any OCS claim, relieving it of the necessity of protesting 177 International Maritime Boundaries, Vol VI, Micronesia-Palau, Rep 5-31, p 4358 108
109
overlap between Exclusive Economic Zone and outer continental shelf rights”.178 (2) STATE PRACTICE IN OCS DELIMITATION 3 47 The preponderance of State practice in OCS delimitation has been that OCS claims do not encroach upon another State’s 200-nautical-mile entitlement 179 The OCS delimitation between Denmark (Greenland) and Iceland is an instructive example of this practice The pertinent issue in this inquiry is not the final delimitation line (which rests between their respective outer limits), but the outer limits claimed by the States; Iceland’s outer limit was capped, not by the edge of its continental margin, but by Greenland’s 200-nautical-mile entitlement 180 This indicates that Iceland did not consider that it had an OCS claim within Greenland’s 200-nautical-mile zone 178 International Maritime Boundaries, Vol VI, Micronesia-Palau, Rep 5-31, p 4354 179 Until today the treaties which delimited the OCS are: International Maritime Boundaries, Vol VII, Denmark (Greenland)-Iceland, Rep 9-22 (2), p 5259; Ibid , Vol V, Australia-New Zealand, Rep 5-26, p 3759; Ibid , Vol I, Australia-France (New Caledonia), Rep 5-1, p 905 (the Parties delimited the entire area including beyond the 200-nautical-mile distance using the equidistance method); Ibid., Vol I, Trinidad and Tobago-Venezuela, Rep 2-13(3), p 675; Ibid , Vol I, Australia-Solomon Islands, Rep 5-4, p 977 (the delimitation used equidistance and began beyond the 200 miles of each State); Ibid , Vol II, Australia (Heard/McDonald Islands)-France (Kerguelen Islands), Rep 6-1, p 1185 (equidistance was used when the line extended beyond their respective 200-nautical-mile zones); Ibid , Vol VI, Denmark (Faroe Islands)-Iceland-Norway, Rep 9-26, p 4532; Ibid , Vol VI, Barbados-France (Guadeloupe and Martinique), Rep 2-30, p 4223; Ibid , Vol I, Argentina-Uruguay, Rep 3-2, p 757 180 See map in International Maritime Boundaries, Vol VII, Denmark (Greenland)-Iceland, Rep 9-22 (2), pp 5259, 5268 110
111
3 48 Similarly, in the OCS delimitation between Denmark, Norway and Iceland, no OCS claim encroached upon another States’ 200-nautical-mile zone; instead, a modified equidistance line was used, without regard to geology and geomorphology 181 Their OCS delimitation began at their respective 200-nautical-mile entitlements 181 International Maritime Boundaries, Vol VI, Denmark (Faroe Islands)-Iceland-Norway, Rep 9-26, p 4532 112
113
3 49 The Australia-New Zealand 2004 agreement (in force since 2006)182 exemplifies delimitation practice with respect to the EEZ of one State’s islands and another State’s OCS.183 Australia and New Zealand delimited the entire area between their coasts extending over 1,200 nautical miles and including the OCS from both mainland and islands 184 The official map published by the parties demonstrates their respective EEZ and OCS entitlements:185 182 International Maritime Boundaries, Vol V, Australia-New Zealand, Rep 5-26, p 3759 183 International Maritime Boundaries, Vol V, Australia-New Zealand, Rep 5-26, p 3759 184 International Maritime Boundaries, Vol V, Australia-New Zealand, Rep 5-26, p 3759 185 Land Information New Zealand, “Exclusive Economic Zone & continental shelf boundaries between New Zealand & Australia”, available at http://www linz govt nz/sea/nautical-information/maritime-boundaries/exclusive-economic-zone-continental-shelf-boundaries-between-new-zealand-australia (last visited 17 Sep 2017) See also International Maritime Boundaries, Vol V, Australia-New Zealand, Rep 5-26, p 3767 114
115
3 50 As the map shows, all landmasses, including islands, received their complete 200-nautical-mile EEZ with its attendant continental shelf entitlements in every direction, and any delimitation between these zones was effected using equidistance, without regard to geology or geomorphology 3 51 The maritime boundary (red line) dividing the OCS entitlements of both States shows that geology and geomorphology were ignored within the EEZ, and no OCS claim encroaches upon the respective 200-nautical-mile zones In the delimitation, islands were accorded the same EEZ rights as mainland; no OCS claim encroaches upon their 200-nautical-mile zone radiating in all directions 186 It is noteworthy that the south-western segment of the northern maritime border follows the 350-nautical-mile arc of Lord Howe Island, giving the island not only its full EEZ with its attendant continental shelf, but also a significant portion of its OCS (3) GRAY AREAS IN STATE PRACTICE 3 52 In practice, the creation of a Gray Area has been used as an adjustment technique to accommodate incompatible EEZ entitlements, especially when one State’s full EEZ entitlement would cause a “cut-off” of an adjacent or opposite State. A review of International Maritime Boundaries shows that Gray 186 See V. Prescott and G. Triggs, “Islands and Rocks and their Role in Maritime Delimitation”, International Maritime Boundaries, Vol V, pp 3245, 3255; see also C. Yacouba and D. McRae, “The Legal Regime of Maritime Boundary Agreements”, International Maritime Boundaries, Vol. V, pp 3281, 3289 116
Areas are uncommon in State practice In the few instances in
which they were created, their function was to address minor
anomalies, caused by extreme geographical circumstances and,
of critical importance to this inquiry, not due to claims based on
geology or geomorphology The analysis of the cases where
Gray Areas were created demonstrates that the special
circumstances for their creation do not obtain in the Caribbean
Sea, with which this case is concerned In State practice, Gray
Areas manifest a general pattern: (1) they are a response to
geography and not geomorphology; (2) they are created on a
small segment of the delimited area; and (3) they are usually
responses to the undesirable consequences of the delimitation
line that emerges from the application of the law that would
normally apply One of the reasons why Gray Areas are so
infrequent is that they generate significant enduring practical
complications, by separating the rights to exploit the seabed and
the superjacent waters 187 Thus, it is not surprising that States
have proved averse to creating Gray Areas The delimitation
between the Russian Federation and Norway in the Barents Sea
serves to illustrate why
3 53 After 40 years of maritime dispute,188 Norway and the
Russian Federation delimited the entire area within and beyond
200 nautical miles from their respective coastlines 189 The
delimitation treaty was a package deal based upon coastal length
187 See D H Anderson, “Developments in Maritime Boundary Law
and Practice”, International Maritime Boundaries, Vol V, p 3214
188 B M Magnússon, footnote 37 supra, pp 85-86
189 International Maritime Boundaries, Vol VII, Norway-Russian
Federation, Rep 9-6 (3), p 5167
117
and relevant circumstances 190 The delimitation line was intended not only to achieve an equitable solution but also to divide “the overall disputed area in two parts of approximately (the) same size”.191 The delimitation line in the south, created a Gray Area of around 3,400 sq km; as part of the package, Norway transferred all water column rights to Russia,192 which averted separating the water column from the seabed 190 International Maritime Boundaries, Vol VII, Norway-Russian Federation, Rep 9-6 (3), pp 5183-5185 191 Norway-Russian Federation, Joint Statement on maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean, available at: https://www regjeringen no/globalassets/upload/ud/vedlegg/folkerett/030427_english_4 pdf (last visited 17 Sep 2017); see also B M Magnússon, footnote 37 supra, p 202 192 International Maritime Boundaries, Vol VII, Norway-Russian Federation, Rep 9-6 (3), pp 5181-5182 118
119
3 54 Another example of States averting Gray Areas is provided by the United Kingdom and Ireland Because the initial 1988 delimitation of the continental shelf between them had not used equidistance, when the parties proceeded in 2011 to delimit their respective EEZs, two small areas laid beyond 200 nautical miles from the Irish baselines but within the UK’s 200-nautical-mile space Since a single delimitation line was used, Ireland transferred the rights to the small Gray Areas to the United Kingdom An area of similar size was transferred by the UK to Ireland in 2013 193 193 International Maritime Boundaries, Vol VII, Ireland-United Kingdom, Rep 9-5 (3), pp 5152-5153 120
121
3 55 Besides the fact that both delimitations were negotiated quid pro quo arrangements, it is evident that the parties did not view the creation of enduring Gray Areas as desirable long-term arrangements, and obviously not as a desirable long-term solution Hence, they swapped their respective rights in the Gray Area in order to maintain the unity of the EEZ This is consistent with State practice which uses a single delimitation line to delimit continental shelf and water column entitlement within 200 nautical miles 194 As Judge Anderson explains: “There are obvious practical reasons for using the same line for regulating fisheries, pollution control and oil and gas operations The existence of different boundaries for different purposes results in a situation of overlapping functional jurisdictions, which can all too easily lead to practical problems calling for consistent monitoring, e.g., through the creation of a bilateral oversight commission Such problems are best avoided by agreeing upon a single, all-purpose boundary Some older agreements relating solely to the continental shelf remain in force, but the new ones having this limited scope relate to areas beyond the 200 n.m. limit”.195 3 56 The complications resulting from Gray Areas are further explained by Leonard Legault and Blair Hankey: “It does not require a great deal of imagination to envisage the kinds of problems that would arise if 194 C Yacouba and D McRae, International Maritime Boundaries, Vol V, p 3288 195 D H Anderson, International Maritime Boundaries, Vol V, p 32 122
one state were to have jurisdiction over rich
hydrocarbon resources in the continental shelf,
while another state had jurisdiction over valuable
fishery resources in the superjacent waters The
domestic litigation in the late 1970s and early
1980s over oil and gas lease sales on the United
States continental shelf, in areas such as Georges
Bank, illustrates the conflict of interests between
oil and gas exploitation, on the one hand, and
fisheries and environmental concerns, on the
other Such unavoidable conflicts are likely to be
greatly exacerbated if both divergent political
interests and separate sovereign powers are
allowed to compete in the same geographical
space.”196
They then stress that the “creation of a substantial grey area
should be avoided to the greatest extent possible”.197
3 57 India and Maldives provide another example of State
aversion to the creation of Gray Areas The extension of the
delimitation line as a continental shelf boundary would have
“under normal circumstances” created a Gray Area since the
“terminus (was identified) as being 203 n m from Indian
territory and 197 n.m. from the nearest point of Maldives”.198
However, as Charney and Alexander note, “Maldives had
already made a unilateral extension of the line and thereby
196 L.H. Legault and B. Hankey, “From Sea to Seabed: The Single
Maritime Boundary in the Gulf of Maine Case”, American Journal of
International Law, Vol 79, 1985, p 985 (available at the Peace Palace
Library)
197 L.H. Legault and B. Hankey, “From Sea to Seabed: The Single
Maritime Boundary in the Gulf of Maine Case”, American Journal of
International Law, Vol 79, 1985, p 988
198 International Maritime Boundaries, Vol II, India-Maldives,
Rep 6-8, pp 1389, 1391
123
abandoned any interest in the potential gray area”.199 3 58 As no jus cogens issues arise here, Magnússon, after surveying State and tribunal practice with regard to the OCS, found, unsurprisingly, that “States enjoy more flexibility in negotiations deciding the method they wish to use to delimit their maritime boundaries than is enjoyed by international courts and tribunal”.200 Thus, Australia and Indonesia intentionally separated the entitlements to the seabed and the water column in 1981 and created a Gray Area,201 though not because of a conflict between an OCS claim and an EEZ entitlement The negotiation that led to the 1997 agreement “faced the problem of continuing the 1972 seabed boundary westwards”.202 It solved it by creating a 1,800 sq nautical miles Gray Area in which Australia was granted continental shelf rights, beyond its 200-nautical-mile zone but within Indonesia’s EEZ.203 It has been explained that “(t)here were offsetting gains and losses of water and seabed for both countries”.204 While Indonesia secured a large portion of the area under negotiation as its EEZ, its gain 199 International Maritime Boundaries, Vol II, India-Maldives, Rep 6-8, pp 1389, 1391 200 B M Magnússon, footnote 37 supra, p 142 See also UNCLOS III, Official Document, 23rd Plenary Meeting, UN Doc A/CONF 62/SR 23, para 70 (Egypt); Ibid , 126th Plenary Meeting, UN Doc A/CONF 62/SR 126, para 179 (Mexico) 201 International Maritime Boundaries, Vol IV, Australia-Indonesia, Rep 6-2(6), pp 2697, 2699-2700, 2710 202 International Maritime Boundaries, Vol IV, Australia-Indonesia, Rep 6-2(6), p 2707 203 International Maritime Boundaries, Vol IV, Australia-Indonesia, Rep 6-2(6), p 2708-9; see also C Yacouba and D McRae, Vol V, p 3288; B M Magnússon, footnote 37 supra, p 194 204 International Maritime Boundaries, Vol IV, Australia-Indonesia, Rep 6-2(6), pp 2697, 2711 124
125
was offset by Australia’s acquisition of seabed within Indonesia’s EEZ.205 3 59 This unique delimitation is limited to the respective 200-nautical-mile entitlements of both parties; as the opposing coastlines are less than 400 nautical miles apart,206 the overlapping EEZ entitlements were solved through a swap Indeed, Australia did not submit this potential OCS claim to the CLCS because it lies within the 200-nautical-mile zone of Indonesia and did not diminish the International Area;207 plainly the Parties appreciated that their respective 200-nautical-mile zone entitlements could be delimited as they saw fit 3 60 The latter point is significant The Australia-Indonesia treaty delimited their respective 200-nautical-mile zones and not an overlap between a State’s customary EEZ with its attendant continental shelf entitlement and another State’s OCS claim. It is thus irrelevant for the present case because there are no overlapping EEZs between Colombia and Nicaragua in the area in which Nicaragua makes its claims There, Colombia, by virtue of the projections of both its insular territories and its mainland coast, has the sole entitlement to a 200-nautical-mile EEZ with its attendant continental shelf 208 205 International Maritime Boundaries, Vol IV, Australia-Indonesia, Rep 6-2(6), p 2705, 2708 206 B M Magnússon, footnote 37 supra, p 194 207 International Maritime Boundaries, Vol IV, Australia-Indonesia, Rep 6-2(6), pp 2708-2709; B M Magnússon, footnote 37 supra, p 194-195 208 See Chapter 4 infra 126
3 61 The tribunals in the Bay of Bengal cases resorted to
small corrections with their corresponding anomalies, but not to
accommodate geomorphological considerations; rather,
adjustments were made to offset the effect of concave coasts In
Bangladesh/Myanmar and Bangladesh v India the tribunals
used a single line to delimit the EEZs and the OCS (the
existence of which was not in doubt) By doing so, due to the sui
generis geographic circumstances of the case, the tribunals
created Gray Areas which were beyond Bangladesh’s 200-
nautical-mile zone (Bangladesh’s OCS) but within Myanmar’s
and India’s 200-nautical-mile zone, and which fell on the
Bangladeshi side of the boundary The result was that
Bangladesh was granted the rights to the seabed and the subsoil
while the other State in each case was granted rights to the water
column In these resulting Gray Areas, inconsistent claims were
to be negotiated 209
209 Bangladesh/Myanmar, p 476
127
Figure 3.11
GRAY AREAS PRODUCED IN THE BAY OF BENGAL
TO HELP MITIGATE THE DRAMATIC CUT-OFF
EFFECT ON BANGLADESH’S COASTAL PROJECTION
128
3 62 In the geographical circumstances,210 the lateral
delimitation line was extended beyond 200 nautical miles in
order to avoid a cut-off effect on Bangladesh 211 ITLOS stated
that:
“when an equidistance line drawn between two
States produces a cut-off effect on the maritime
entitlement of one of those States, as a result of
the concavity of the coast, then an adjustment of
that line may be necessary in order to reach an
equitable result.”212
3 63 The geographical circumstances and the cut-off effect
were the reasons behind the deviation which created the Gray
Area:
“The Tribunal, therefore, takes the position that,
while an adjustment must be made to its
provisional equidistance line to abate the cut-off
effect of the line on Bangladesh’s concave coast,
an equitable solution requires, in light of the
coastal geography of the Parties, that this be done
in a balanced way so as to avoid drawing a line
having a converse distorting effect on the
seaward projection of Myanmar’s coastal façade.
(…)
The Tribunal decides that, in view of the
geographic circumstances in the present case, the
provisional equidistance line is to be deflected at
the point where it begins to cut off the seaward
210 See Magnússon, footnote 37 supra, p 176
211 See International Maritime Boundaries, Vol VII, Bangladesh-India,
Rep 6-23 (Add 1), pp 4985, 4992; see Ibid , Vol VII, Bangladesh-
Myanmar, Rep 6-24 (Add 1), pp 4999, 5000
212 Bangladesh/Myanmar, pp 90-91, para 292
129
projection of the Bangladesh coast The direction of the adjustment is to be determined in the light of those circumstances.”213 3 64 Thus, the small Gray Areas were created to avoid a cut-off effect, which would have otherwise resulted in the sui generis geographic circumstances They were not created in response to a claimed overlap between an EEZ and an OCS claim, the latter based on geology and geomorphology – which was, in any case, never to arise, given that it was a lateral delimitation; in this case, it was extreme geography rather than geomorphology which warranted the creation of the Gray Areas through the adjustment of the equidistance line due to the geography of the region If those circumstances in the Bay of Bengal were the reason for the creation of Gray Areas, suffice it to say that such circumstances do not obtain in the Caribbean Sea as between Nicaragua and Colombia 3 65 The delimitations in the Bay of Bengal demonstrate that in unique situations where the geographic circumstances compel it, minor border adjustments via the creation of Gray Areas have been deemed acceptable deviations in State practice Gray Areas were never created in response to a claim of an OCS encroachment over an EEZ with its attendant continental shelf title or on any large scale, as Nicaragua proposes 213 Bangladesh/Myanmar, pp 98-99, paras 325-329 130
(4) SUMMARY CONCLUSIONS – STATE PRACTICE
3 66 The Limits in the Seas summarizes the law succinctly:
“Regardless of the seafloor features, a State may
claim, at a minimum, a 200-mile continental
shelf Under other LOS Convention provisions a
state has the right to claim a 200-mile EEZ which
includes jurisdictional rights over the living and
nonliving resources of the seafloor and seabed
Thus, for those states whose physical continental
margin does not extend farther than 200 miles
from the baseline, the concept of the continental
shelf is of less importance than before.”214
3 67 The analysis of State practice demonstrates that, as a
general matter, the OCS of one State may not encroach upon the
200-nautical-mile entitlement of another State State practice
confirms the irrelevance of geological and geomorphological
considerations for delimitation within the 200-nautical-mile
limit of a coastal State Only one delimitation treaty creates a
Gray Area (Australia-Indonesia), and it is actually consistent
with State practice inasmuch as it stems from overlapping EEZs
and not an OCS encroachment upon an EEZ As for the Bay of
Bengal cases, they were based on different geographical features
and are not relevant to Nicaragua’s claims against Colombia.
3 68 None of the features that called for a Gray Area solution
in the few other cases in which they were created obtain in the
Caribbean Sea To fabricate a Gray Area in these circumstances
214 Limits in the Seas, No 112
131
would be inconsistent with international law and State practice This is because: (i) Gray Areas have been responsive to special geographical circumstances which do not include a putative OCS overlap of an EEZ entitlement and such circumstances do not obtain in the instant case; (ii) Gray Areas have been created to deal with overlapping EEZ entitlements through mutual gains and offsets; (iii) Gray Areas are intentionally avoided by States due to their ensuing complications; and (iv) due to their problematic character, Gray Areas are only created in small pockets and not on a large scale, as would be required were Nicaragua’s claim accepted. 3 69 In contrast to the instances of special arrangements discussed above, no overlapping EEZ entitlements can be resolved through gain and offset in the entire area, for Colombia’s mainland and all of Colombia’s islands in the Caribbean Sea, are each entitled to their ipso jure 200-nautical-mile zones Moreover, as mentioned earlier, in the Caribbean Sea there are, in fact, no areas beyond 200 nautical miles from any State 215 D. State Practice in CLCS Submissions 3 70 Colombia has conducted an extensive analysis of State practice with respect to submissions of OCS claims to the CLCS 216 The analysis reveals that in 73 out of the overall 77 215 See footnote 165 supra 216 See Annex 50 132
submissions, States did not claim an OCS that would have
encroached upon another State’s 200-nautical-mile entitlement
Of these 73 submissions, with the exception of submissions that
terminated at points set by previous awards or by pre-existing
treaties, 39 reached the 200-nautical-mile limit of other States
Of these 39 submissions, 35 involved States that could have
potentially claimed an OCS that would have encroached upon
the 200-nautical-mile entitlement of another State, but they
stopped at the other State’s 200-nautical-mile zone
3 71 The practice of halting the OCS claims of one State at
the 200-nautical-mile limit of neighbouring States is worldwide
A list of submissions made by States that respect the 200-
nautical-mile limit of their neighbours may be found at Annex
50 These examples are taken from Europe, Africa, Asia, the
Americas and Oceania, and include countries such as France,
Australia, Japan, the United Kingdom, Pakistan, New Zealand,
Ghana, Canada, Spain, Fiji, Norway, Palau, Sri Lanka, Trinidad
and Tobago, Mozambique, Tanzania, the Bahamas and others
3 72 Denmark’s CLCS submission with respect to the area
north of the Faroe Islands serves as a representative example of
the way States have avoided encroaching upon the 200-nauticalmile
entitlements of other States The Executive Summary of
Denmark’s submission states that:
“The outer limits of the continental shelf north of
the Faroe Islands extend to the distance of 350
nautical miles from the baselines from which the
133
territorial sea lines around the Faroe Islands are
measured To the west, north-west, and southeast,
the outer limits of the continental shelf are
delineated by the 200 nautical mile limits of
Iceland, Jan Mayen and the mainland of Norway,
respectively To the northeast, the outer limits are
delineated by straight lines connecting fixed
points in accordance with article 74(4) and
Article 76(7) of the Convention.”217
217 Submission by Denmark, The Continental Shelf North of the Faroe
Islands, Executive Summary, Section 6, available at:
http://www un org/depts/los/clcs_new/submissions_files/dnk28_09/dnk2009e
xecutivesummary pdf (last visited 17 Sep 2017)
Figure 3.12
DENMARK’S SUBMISSION TO THE CLCS
FOR THE AREA NORTH OF THE FAROE ISLANDS
134
3 73 Japan’s CLCS submission places a number of points of
the limit of its OCS claim on the 200-nautical-mile limit of
nearby States Thus, with respect to the Southern Kyushu-Palau
Ridge Region, the submission indicates that one of the fixed
points on the outer limits of the OCS claim is located on the
200-nautical-mile line from the baselines of Palau Another
fixed point is located on the 200-nautical-mile limit from the
baselines of the Federated States of Micronesia 218 In the
Minami-lo To Island Region, a fixed point is located on the 200-
nautical-mile line drawn from the baselines of the United
States 219 And in the Ogasawara Plateau region, part of Japan’s
outer limits again stops at a fixed point on the 200-nautical-mile
line from the baselines of the United States 220
218 Submission by Japan, Executive Summary, available at
http://www un org/depts/los/clcs_new/submissions_files/jpn08/jpn_execsum
mary pdf (last visited 17 Sep 2017)
219 Submission by Japan, Executive Summary, available at
http://www un org/depts/los/clcs_new/submissions_files/jpn08/jpn_execsum
mary pdf (last visited 17 Sep 2017)
220 Submission by Japan, Executive Summary, available at
http://www un org/depts/los/clcs_new/submissions_files/jpn08/jpn_execsum
mary pdf (last visited 17 Sep 2017)
135
JAPAN’S SUBMISSION TO THE CLCSFOR THE AREA SOUTH OF OKI-NO-TORI SHIMA Figure 3.13a
136
Figure 3.13bJAPAN’S SUBMISSION TO THE CLCSFOR THE AREA EAST OF OKI-NO-TORI SHIMA
137
JAPAN’S SUBMISSION TO THE CLCS
FOR THE AREA SOUTH OF OKI-NO-TORI SHIMA
Figure 3.13c
JAPAN’S SUBMISSION TO THE CLCS
FOR THE AREA WEST OF MARCUS ISLAND
138
3 74 France adopted a similar methodology with respect to its
OCS submission in the areas of French Guyana and New
Caledonia. France’s Executive Summary states that the OCS
would not encroach upon Australia’s EEZ: “The extension is
limited to the west by the area under Australian jurisdiction
(EEZ)”. Accordingly, one of the fixed points along the western
part of France’s submission is specified as based on application
of the Gardiner formula and the “Australian 200 mile limit”.221
221 Submission by France in respect of the Areas of French Guiana and
New Caledonia, Executive Summary, para 2 2 1, available at:
http://www un org/depts/los/clcs_new/submissions_files/fra07/fra_executives
ummary_2007 pdf (last visited 17 Sep 2017)
Figure 3.14FRANCE’S SUBMISSION TO THE CLCSFOR THE AREA SOUTH OF NEW CALEDONIA
139
3 75 Similarly, Spain in its submission concerning the area west of the Canary Islands, avoided encroaching upon Morocco’s 200-nautical-mile entitlement Spain specifically limited its submission in the south to a fixed point (No 448), at “the intersection with the 200M computed line from third parties”.222 222 Submission by Spain with respect to the Area West of the Canary Islands, Executive Summary, available at: http://www un org/depts/los/clcs_new/submissions_files/esp77_14/esp_2014_en pdf (last visited 17 Sep 2017) 140
Figure 3.15SPAIN’S SUBMISSION TO THE CLCSFOR THE AREA WEST OF THE CANARY ISLANDS
141
3 76 The Bahamas also respected the 200-nautical-mile limits of the United States by commencing its OCS limits at a fixed point (No. 1), at “the 200M line measured from the territorial sea baselines of the United States of America”.223 223 Submission by The Bahamas, Executive Summary, Section 6 3, available at: http://www un org/depts/los/clcs_new/submissions_files/bhs71_14/BHS-ES-DOC pdf (last visited 17 Sep 2017) 142
Figure 3.16THE BAHAMA’S SUBMISSION TO THE CLCS FOR THEAREA NORTHEAST OF GRAND BAHAMA ISLAND
143
3 77 Thus, the majority of States recognize that OCS claims should only be made where the maritime areas concerned lie beyond 200 nautical miles from the nearest land territory, be it mainland or insular, and should not infringe on the 200-nautical-mile entitlements of other States Of the 77 submissions, only four States’ claims failed to respect another State’s 200-nautical-mile entitlement: China, the Republic of Korea, Somalia and, of course, Nicaragua 3 78 In the vast majority of State practice, OCS claims did not encroach upon another State’s EEZ, not only in delimitation practice, but also in requests to the CLCS for delineation of the outer limit of the continental shelf E. The OCS in Doctrine 3 79 Article 38 (1) (d) of the Statute of the International Court of Justice directs the Court, “as subsidiary means for the determination of rules of law”, to consult “the teachings of the most highly qualified publicists of the various nations.” Colombia’s submission that the UNCLOS based OCS regime may not encroach upon another State’s customary right to an EEZ with its attendant continental shelf, both under UNCLOS and under customary international law, is well established in doctrine Although some outliers exist,224 the great majority of legal scholarship supports Colombia’s position. 224 See S Fietta and R Cleverly, A Practitioner’s Guide to Maritime Boundary Delimitation, 2016; S. Kaye, “The Use of Multiple Boundaries in Maritime Boundary Delimitation: Law and Practice”, Australian Journal of International Law 1998, Vol 19, p 49; M D Evans, Relevant Circumstances and Maritime Delimitation, Oxford University Press, 1989, p 57 144
3 80 The conventional nature of the OCS, which precludes
any encroachment upon a non-Party State’s customary EEZ and
200 nautical miles continental shelf rights, has been accepted in
legal scholarship The fact that the OCS was granted to wideshelf
States in return for revenue-sharing and subject to the
determination of the CLCS is also accepted in most legal
scholarship 225 Doctrine also recognizes that the OCS was
intended to encroach upon the Area, the common heritage of
mankind, rather than another State’s EEZ with its attendant
continental shelf, as the provisions of Article 76 are intended to
protect the rights of the international community 226
3 81 This Section will demonstrate that the type of OCS claim
which Nicaragua is making is not supported by most
international legal scholars Indeed, legal scholarship confirms
that an OCS may not encroach upon another State’s EEZ: (1) It
is not the proof of natural prolongation, upon which a claim to
an OCS claim must rely that is the basis for title within 200
nautical miles from any State’s baselines; the latter is a right
ipso jure, and (2) most scholarship favours the use of a single
225 See W T Burke, footnote 42 supra, pp 402-404; See also Ø
Jensen, footnote 45 supra; S V Suarez, The Outer Limits of the Continental
Shelf, Legal Aspects of their Establishment, Springer, 2008, p 73 (available
at the Peace Palace Library); J Mossop, footnote 36 supra, p 87; B Kunoy,
footnote 19 supra, pp 66-67, 71-72; International Law Association
Committee on the Legal Issues of the Outer Continental Shelf, Draft Report
on Article 82 of the 1982 UN Convention on the Law of the Sea for the 2008
ILA Conference, Rio de Janeiro, Brazil, para 1 2, available at
https://www iho int/mtg_docs/com_wg/ABLOS/ABLOS15/ABLOS15-
10 pdf (last visited 17 Sep 2017)
226 See Ø Jensen, footnote 45 supra, p 111
145
maritime delimitation line, comprising both the EEZ and the continental shelf, and the avoidance, especially on a large scale, of Gray Areas (1) NATURAL PROLONGATION IS NOT THE SOURCE OF TITLE WITHIN 200 NAUTICAL MILES FROM A STATE’S BASELINES 3 82 Most legal scholars concur that within 200 nautical miles from the baselines, the concept of natural prolongation is no longer the source of legal title Rather, the regime of the EEZ grants the State title over the water column, the seabed and the subsoil, regardless of its geology and geomorphology 3 83 Although Malcom Evan’s personal conclusion was an outlier, he analysed correctly the Court’s determination in Libya/Malta and concluded that: “Natural prolongation would only provide the legal basis of title to a continental shelf where a geological shelf extended beyond 200 miles from any state, i e it would not conflict with a 200-mile zone drawn from the coast of another state”.227 3 84 Øystein Jensen writes that: “the relevance of geological facts to the purpose of maritime delimitation was seriously hampered by the development of exclusive economic zones from the mid-1970s (as a customary practice 227 M D Evans, footnote 224 supra, p 51 146
before UNCLOS) onwards In reality, a
significant portion of the continental shelf
concept was ‘consumed’, since coastal states
were secured sovereign rights in the water and
the seabed out to 200 nautical miles, regardless of
the nature of the seabed Thus, the ICJ in the
Libya-Malta case stated that the geological
features of the seabed would be uninteresting for
the delimitation of the continental shelf within
200 nautical miles”. 228
Jensen then quotes the excerpt from the Court’s Judgment in
Libya/Malta, already cited above, and continues:
“The Libya-Malta case thus indicated that
geological and geomorphological factors would
not have significance in delimitation disputes
The situation was, and still is, that the vast
majority of delimitation disputes relate to the sea
areas where the distance between the respective
states’ baselines is less than 400 nautical miles.
Therefore, the relevance of geology and
geomorphology seemed to be evaporating in the
law of maritime delimitation”229
3 85 It is accepted that the concept of the natural prolongation
does not apply within EEZs,230 only surviving for delimitations
of the seabed and subsoil beyond the EEZ, i.e , beyond 200
nautical miles from the baselines of any State 231 Professor
Thomas Cottier states:
228 See Ø Jensen, footnote 45 supra
229 See Ø Jensen, footnote 45 supra, pp 139-140
230 See Ø Jensen, footnote 45 supra, pp 140-141
231 See Ø Jensen, footnote 45 supra, p 141
147
“the EEZ includes full jurisdiction over shelf rights While the shelf can exist independently, the EEZ necessarily includes the continental shelf. As the Court phrased it: ‘there can be a continental shelf where there is no exclusive economic zone, (but) there cannot be an exclusive economic zone without a corresponding continental shelf’. It is important to note that up to the 200 nm limit, the existence of the EEZ is no longer dependent upon the existence of a shelf in the physical sense Thus, to the extent of 200 nm, the doctrine of natural prolongation as a legal title to the shelf no longer applies under the definition of Article 76 of the 1982 Convention Shelf rights therefore directly rely upon the EEZ.”232 Professor Cottier notes the “absorption of the traditional shelf through the concept of the EEZ”: “The adoption of the ‘distance principle’ declared applicable to the shelf by the Court … demonstrates that a shelf zone, even if it exists independently, is increasingly defined by, and inseparable from, criteria established for the EEZ This is true with respect to delimitation between adjacent or opposite coasts that are less than 400 nm apart In this scenario, present international law ultimately defines the expense of shelf zones on the basis of the more comprehensive concept of the EEZ It will be seen that traditional geomorphological criteria of the shelf, which relate to natural prolongation are no longer applied within 200 nm from the coast.”233 232 T Cottier, Equitable Principles of Maritime Boundary Delimitation, Cambridge University Press, 2015, para 123 (available at the Peace Palace Library) (emphasis added) 233 T Cottier, Equitable Principles of Maritime Boundary Delimitation, Cambridge University Press, 2015, para 123, p 124 148
3 86 Judge Anderson also concluded that pursuant to
developments in international law after UNCLOS, confirmed by
the Court in Libya/Malta, the concept of natural prolongation
ceased to be relevant for delimitations within 200 nautical miles
from a State’s baselines:
“Those recent developments about entitlement to
shelf rights were crystallised in the Libya/Malta
case, which concerned delimitation The
acceptance into the law of the distance criterion
had a direct effect upon the law relating to the
delimitation of the continental shelf In the way
in which there is no longer a role for geological
or geophysical factors in establishing the
entitlement of the coastal state, so also is there no
role for those factors in delimiting the continental
shelf within 200 nm of two or more coastal
states… Where the case concerns boundaries
which do not exceed 200 nm from the relevant
coasts, the presence of submarine features such
as channels, ridges, banks, troughs, caps or spurs
should not affect a delimitation reached in
accordance with the rules of international law:
other principles and factors would be
determinative.”234
3 87 Leonard Legault and Blair Hankey, stress that
“(a)lthough the term ‘natural prolongation’ has
geomorphological and geological origins, it has become
essentially a legal concept expressive of the basis of title and of
the outer limit of that title”:
234 D. H. Anderson, “Some Recent Developments in the Law Relating
to the Continental Shelf”, Journal of Energy and Natural Resources Law,
Vol 6, 1988, pp 95, 97 (available at the Peace Palace Library)
149
“Where the physical continental shelf extends to a distance of less than 200 miles, natural prolongation is defined solely in terms of geographical adjacency measured from the coast, that is, by the distance criterion; thus, title in respect of the continental shelf up to 200 miles from the coast is determined on precisely the same basis as title in respect of the economic zone (although that zone does not require the doctrinal underpinning of ‘natural prolongation’ that is inherent in the concept of the continental shelf) Where the physical continental shelf extends beyond 200 miles from the coast, natural prolongation is defined by a combination of geological-geomorphological and geographical or distance criteria.”235 3 88 David A. Colson also concludes that “the Court in 1985 erased natural prolongation as a factor insofar as the exclusive economic zone was concerned but expressly left open the possibility that international law might deem geological and geomorphological factors relevant to delimitation on the outer continental shelf.”236 Colson opined that “(f)ollowing the advent of the 200-nautical-mile zone, Libya-Malta held that such facts are not relevant because they are unrelated to title in this zone, but it left open the possibility of their relevance to delimitation of the outer continental shelf.”237 235 L H Legault and B Hankey, footnote 196 supra, pp 982-983 (emphasis added) 236 D. A. Colson, “The Delimitation of the Outer Continental Shelf between Neighboring States”, American Journal of International Law, Vol 97, 2003, pp 100 (available at the Peace Palace Library) 237 D. A. Colson, “The Delimitation of the Outer Continental Shelf between Neighboring States”, American Journal of International Law, Vol 97, 2003, pp 100, pp 102-103 (emphasis added) 150
151
3 89 After noting that natural prolongation was no longer relevant for delimitations within any State’s 200-nautical-mile zone, Jensen explored various scenarios of potential maritime delimitation, concluding that an OCS claim, which is based upon natural prolongation, cannot encroach upon another State’s 200-nautical-mile zone: “In example 1, let us imagine two states located 600 nautical miles opposite each other States X and Y each have proclaimed their exclusive economic zones of 200 nautical miles, so that an outer continental shelf area of equivalent size lies between them States X and Y make their submissions to the Commission The Commission finds that the continental shelf of state Y plunges down to the deep ocean floor only 50 nautical miles off its coast The continual shelf of state X, on the other hand, proves to extend beyond its 200 nautical mile limit, all the way under the 200 mile intersection, intruding even into the 200 nautical mile zone of state Y In this situation, the Commission will recommend that the continental shelf of state Y should cover the seabed only out to 200-miles.”238 238 Ø Jensen, footnote 45 supra, p 142 (emphasis added) 152
3 90 In Jensen’s example, even though the natural
prolongation of State Y extends into the 200-nautical-mile zone
of State X, due to the fact that an OCS is based upon the concept
of natural prolongation, which no longer grants title or affects
delimitations within 200 nautical miles, State X is entitled to its
entire 200-nautical-mile zone
3 91 Colson, who, like the majority of scholars, accepted the
fact that natural prolongation was no longer the basis for title
within 200 nautical miles from the coast and hence was
irrelevant for delimitation within that distance, subjected a
similar scenario to analysis:
“It may be useful to begin with a simple example.
Assume that countries A and B are opposite and
153
500 nautical miles apart Each maintains a 200-nautical-mile zone claim; thus, a 100-nautical-mile strip lies between these two zones Furthermore, assume that country A has a very narrow continental shelf, which drops off to the deep seabed within 75 nautical miles of the coast Country B, however, is a broad margin state Its continental shelf (in the terms of Article 76) actually extends through its 200-nautical-mile zone, the entire 100-nautical-mile strip, and into the 200-nautical-mile zone of country A In such a situation, in concept, the law seems to provide (1) that country A is entitled to its entire 200-nautical-mile zone, including the portion of outer continental shelf attributable to country B that intrudes into its 200-nautical-mile zone; but (2) that country A is not entitled to any of the outer continental shelf in the 100- nautical-mile strip, as that is attributable solely to country B.”239 (2) SUPPORT FOR A SINGLE DELIMITATION LINE AND AVOIDANCE OF GRAY AREAS 3 92 Any encroachment by an OCS upon another State’s EEZ would in effect create a Gray Area by separating the continental shelf rights (deriving from an OCS claim) from the water column rights (deriving from EEZ rights) State practice and legal scholarship manifest a preference for a single delimitation line For this reason, as explained earlier, Gray Areas are a rare phenomenon in maritime delimitation practice, created under extreme geographical circumstances and only on a small scale, due to the problems attendant on separating water column and seabed rights 240 Professor Cottier writes that: 239 D Colson, footnote 236 supra, pp 103-104 240 See Chapter 5 infra. 154
“The case law and state practice on maritime
delimitation has approximated the two zones
(EEZ and Continental Shelf) by the use of single
boundary lines The Court in Qatar v. Bahrain
observed that the concept of a single maritime
boundary stems not from multilateral treaty law
but from state practice, and that it finds its
explanation in the desire of states to establish one
uninterrupted boundary line delimiting the
various – partially coincident – zones
appertaining to them The Tribunal in Guyana v.
Suriname recalled that while the regimes are
separate, a single maritime boundary avoids the
difficult practical problems that could arise were
one party to have rights over the water column
and the other rights over the seabed and subsoil
below the water column”.241
3 93 On the basis of his review, Professor Cottier proposes
that “the prevailing convergence and similarities of the shelf and
the EEZ, and the evolution towards a single homogeneous zone,
call for a principle of identical boundary lines”.242 He concludes
that State practice supports the use of a single maritime
boundary 243
3 94 Nor is Professor Cottier alone in deprecating the creation
of Gray Areas As mentioned above, Judge David Anderson also
supports a single maritime boundary and objects to the creation
of Gray Areas due to their inherent problems:
241 T Cottier, footnote 232 supra, p 124
242 T Cottier, footnote 232 supra, p 125
243 T Cottier, footnote 232 supra, pp 126-129
155
“The existence of different boundaries for different purposes results in a situation of overlapping functional jurisdictions, which can all too easily lead to practical problems calling for consistent monitoring, e.g., through the creation of a bilateral oversight commission Such problems are best avoided by agreeing upon a single, all-purpose boundary.”244 3 95 A Chamber of the Court has also expressed its concern over separating water column and seabed rights in the Gulf of Maine case: “In reality, a delimitation by a single line, such as that which has to be carried out in the present case, i e , a delimitation which has to apply at one and the same time to the continental shelf and to the superjacent water column can only be carried out by the application of a criterion, or combination of criteria, which does not give preferential treatment to one of these two objects to the detriment of the other, and at the same time is such as to be equally suitable to the division of either of them In that regard, moreover, it can be foreseen that with the gradual adoption by the majority of maritime States of an exclusive economic zone and, consequently, an increasingly general demand for single delimitation, so as to avoid as far as possible the disadvantages inherent in a plurality of separate delimitations, preference will henceforth inevitably be given to criteria that, because of their more neutral character, are best suited for use in a multi-purpose delimitation” 245 244 D H Anderson, footnote 234 supra, p 32 245 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984, p 327, para 194; see also, Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p 93, para 173 156
3 96 Commenting on this judgment of the Chamber, Legault
and Hankey also support the use of a single delimitation line and
warn of the severe problems that a separation between maritime
entitlements in the same area through the creation of Gray Areas
can produce 246 They stress that “it seems more immediately
evident that the parallel jurisdiction of two states in the same
maritime space would carry great potential for administrative
chaos and political conflict.”247
3 97 Professor Orrego Vicuña states that when considering a
separation between overlapping entitlements “(i)t is also
necessary to take into account in this regard the difficulties that
could derive from the overlapping of different jurisdictions over
the same geographical ambit and how these considerations of
convenience can strengthen the trend in favor of a single
maritime boundary line.”248
3 98 As the comprehensive analysis conducted by Professor
Orrego Vicuña demonstrates, most South American States, and
notably Colombia, were proponents of the single maritime
boundary long before UNCLOS was signed From the Santiago
(Qatar v Bahrain); Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v Nigeria: Equatorial Guinea intervening), Judgment,
I.C.J. Reports 2002, p 440, para 286 (Cameroon v Nigeria: Equatorial
Guinea intervening); Award in the Arbitration Regarding the Delimitation of
the Maritime Boundary between Guyana and Suriname, 17 Sep. 2007, Vol.
XXX R.I.A.A, para 334
246 L H Legault and B Hankey, footnote 196 supra, pp 983-988
247 L H Legault and B Hankey, footnote 196 supra, pp 984-986
248 F Orrego Vicuña, footnote 39 supra, pp 196-197
157
Declaration on the Maritime Zones of 18 August 1952 and the subsequent delimitation treaties signed by Colombia, Colombia has persisted in implementing the trend of a single maritime boundary (as have other South American countries) 249 This “very clear trend” was followed by many other States outside the region 250 A single maritime boundary was used except in “very special cases” because the “strength of this integrating trend has been so powerful”.251 3 99 As Legault and Hankey explain, the creation of a large scale Gray Area, as Nicaragua is trying to persuade the Court, should be “avoided to the greatest extent possible”: “This factor is of especially great practical importance where a single maritime boundary is to be extended for continental shelf purposes beyond the area in which the 200-mile limits of the parties overlap If the boundary were to be extended seaward in a manner consistent with its final direction at the 200-mile limit, at a point well away from the equidistant point, there would be two possible outcomes If the single maritime boundary principle were maintained, one party would have continental shelf jurisdiction within the gray area, and neither party would have fisheries or exclusive economic zone jurisdiction Alternatively, if the parties were willing to accept overlapping jurisdiction in the gray area, one party would have continental shelf jurisdiction and the other party would have fisheries and water column jurisdiction in exactly the same area This suggests that the creation of a 249 F Orrego Vicuña, footnote 39 supra, pp 206-208 250 F Orrego Vicuña, footnote 39 supra, p 208 251 F Orrego Vicuña, footnote 39 supra, pp 208-209 158
substantial gray area should be avoided to the
greatest extent possible ”252
(3) SUMMARY CONCLUSION ON DOCTRINE
3 100 The above review of doctrine supports Colombia’s
submission that an OCS may not encroach upon another State’s
EEZ with its attendant continental shelf The principle of natural
prolongation is no longer the source of title within 200 nautical
miles from the coast of any State; accordingly, an OCS claim
based upon natural prolongation (geology and geomorphology)
cannot trump any entitlement within 200 nautical miles from
another State’s coast. Moreover, a review of doctrine also
demonstrates the preference for a single maritime boundary;
deviations have been extremely rare, spatially limited and
constructed only under special circumstances The consensus is
that it “should be avoided to the greatest extent possible”.253
3 101 This analysis shows that Nicaragua’s claim is contrary to
the legislative history of UNCLOS, subsequent State practice,
sound legal policy and the teaching of publicists Its proposition
that an OCS may encroach upon another State’s customary right
to a 200-nautical-mile EEZ with its attendant continental shelf is
baseless
252 L H Legault and B Hankey, footnote 196 supra, p 988 (emphasis
added)
253 L H Legault and B Hankey, footnote 196 supra
159
F. Conclusion 3 102 In this Chapter, Colombia has established that the EEZ with its attendant continental shelf is both customary as well as conventional international law Not only the text of UNCLOS but its legislative history, State practice and doctrine support the conclusion that no OCS claim by one State may encroach upon another State’s entitlement to its 200-nautical-mile EEZ with its attendant continental shelf, emanating from all its landmasses 3 103 Colombia has demonstrated that the UNCLOS negotiating Parties conceived the OCS as a regime supplementary to the EEZ, which in turn was conceived as the coastal State’s entitlement ipso jure The OCS, insofar as it could be proved by a State claiming it, was envisioned to encroach upon the International Area, reserved as the Common Heritage of Mankind and not, as Nicaragua proposes, on another State’s EEZ with its attendant continental shelf This is why the OCS regime was subject to a revenue-sharing mechanism, to compensate the international community for the infringement on the Area The recommendation approving any OCS claim was conditioned on withstanding the meticulous scrutiny by an independent scientific commission precisely in order to safeguard said Common Heritage 3 104 The understanding of the Conference is confirmed by subsequent State practice which demonstrates that a State’s OCS claim may not encroach upon another State’s entitlement to a 160
200-nautical-mile EEZ with its attendant continental shelf, from
both its mainland and islands This understanding is one of the
pillars of the CLCS As noted by the Court in its 2016
Judgment, Nicaragua’s position is that: “the role of the CLCS is
to protect the common heritage of mankind against possible
encroachments by coastal States (and) to protect the
international community from excessive claims”.254 Thus,
Nicaragua has recognized that OCS claims are only possible in
the International Area, not in the EEZ with its attendant
continental shelf entitlement of other States
3 105 Colombia has established that in State practice,
consistent with the Court’s ruling in Libya/Malta and the 2012
Judgment, geological and geomorphological considerations are
deemed irrelevant for delimitation within 200 nautical miles
from the baselines Hence, no OCS claim, which is based upon
such features, may be sustained within 200 nautical miles from
another State’s baselines. State practice with respect to OCS
shows that claims do not encroach upon another State’s 200-
nautical-mile zones from both its mainland and islands The
delimitation between Australia and New Zealand, in which
islands were granted not only their 200-nautical-mile zone but
also a significant OCS vis-à-vis the other State’s OCS, is a
prime example for this juridical equality
3 106 Colombia has also shown that the episodic deviations
from this practice, through the creation of a Gray Area, insofar
254 2016 Judgment, para 102
161
as something so case and fact-specific and idiosyncratic can be precedential, have no place in the Caribbean Gray Areas in State practice were created due to special geographical circumstances (such as the sui generis concavity of coasts in the Bay of Bengal), or overlapping EEZs and not an overlap between an OCS claim and a State’s EEZ entitlement. Due to their problematic character, Gray Areas have been small scale and States have avoided their creation when possible Since no special geographical circumstances exist in the space which Nicaragua asserts is the relevant area and since the only EEZ in that area is Colombia’s, no deviation from general State practice, as illustrated by the Australia-New Zealand delimitation, is warranted in the instant case 3 107 To conclude, no OCS claim by Nicaragua, even if it were supported by the requisite geological and geomorphological evidence, quod non,255 may be sustained within the 200-nautical-mile distance from Colombia’s mainland and insular territories, whose EEZ with its attendant continental shelf entitlements prevail over any alleged OCS claim by Nicaragua The foregoing is, of course, also true for any 200-nautical-mile entitlement emanating from any other Caribbean State, such as Panama and Jamaica, which cover a significant part of the maritime spaces claimed by Nicaragua 256 255 See Chapter 7 infra 256 Colombia fully respects and complies with the boundary treaties it has signed in the Caribbean Sea with, inter alia, Panama, Jamaica, Haiti and the Dominican Republic See Chapter 6 infra 162
Chapter 4
COLOMBIA’S MAINLAND AND ISLANDS EEZ
WITH ITS ATTENDANT CONTINENTAL SHELF
EXTENDS TO ITS FULL ENTITLEMENT OF
200 NAUTICAL MILES
A. Introduction
4 1 In this Chapter, Colombia will prove that, in conformity
with customary international law, both its mainland and the
islands which conform the San Andrés Archipelago are entitled
to an EEZ, with its attendant continental shelf, east of
Nicaragua’s 200-nautical-mile line, in the area which Nicaragua
claims to be relevant in this case
4 2 As explained in Chapter 3 supra, the customary
international law entitlement of coastal States to an EEZ with its
attendant continental shelf, from both mainland and islands, may
not be encroached by another State’s geologically and
geomorphologically based OCS claim – as Nicaragua purports
4 3 Thus, in the area east of Nicaragua’s 200-nautical-mile
line, the EEZ with its attendant continental shelf entitlement of
Colombia’s mainland and the San Andrés Archipelago, which is
a unit composed of several islands, retain their full extension of
200 nautical miles ipso jure entitlements in every direction
Therefore, Nicaragua cannot claim any title, based upon an
alleged OCS, beyond its 200-nautical-mile limit and within the
maritime entitlements of Colombia These entitlements are
163
depicted in the following sketch-map: 164
4 4 Section B will recall that, under customary international law, Colombia’s mainland and the islands that conform the San Andrés Archipelago generate and are entitled ipso jure to an EEZ with its attendant continental shelf, extending up to 200 nautical miles from their baselines Section C will illustrate the extent of the entitlement of Colombia’s mainland to a 200-nautical-mile EEZ, with its attendant continental shelf Section D will illustrate the extent of the 200-nautical-mile entitlement of Colombia’s islands to an EEZ with its attendant continental shelf B. Colombia’s Mainland and Islands Generate and are Entitled Ipso Jure to EEZs, Including their Attendant Continental Shelves of 200 Nautical Miles 4 5 There is no debate on the fact that customary international law recognizes Colombia’s right to the continental shelf up to 200 nautical miles from its coasts Nicaragua acknowledged this in the course of the Territorial and Maritime Dispute case 257 Under customary international law, as elaborated in Chapter 3 supra, Colombia’s mainland and islands are entitled, ipso jure, to an EEZ, with its attendant continental shelf, up to 200 nautical miles in every direction, including east of Nicaragua’s 200-nautical-mile line,258 which comprises the “waters superjacent to the seabed and the seabed and its subsoil”.259 257 2012 Judgment, p 666, para 115 258 See 2012 Judgment, p 686, para 168 259 UNCLOS, Article 56 (1) (a) 165
4 6 Colombia has consistently claimed its entitlement to an EEZ with its attendant continental shelf, extending up to 200 nautical miles off the coasts of its mainland and islands, over which its sovereignty is exercised “for the purposes of exploring and exploiting the natural resources.”260 No State has objected to Colombia’s entitlement. To the contrary, it is the uncontested existence of Colombia’s entitlement which has shaped the maritime boundaries negotiated by Colombia in the Caribbean Sea, in particular with countries like Panama and Jamaica 4 7 Both Colombia and Nicaragua agree that Colombia is in principle entitled to exercise its sovereign rights over the continental shelf up to 200 nautical miles from its baselines Indeed, according to Nicaragua, “Colombia’s continental shelf (…) extends to a distance of 200M from the territorial sea baselines (…)”.261 This was Nicaragua’s position in the original case as recalled by the Court in its 2012 Judgment: “In the course of the hearings, Nicaragua acknowledged that, (…) Article 76 entitled (Colombia) to a continental shelf extending to a limit of 200 nautical miles from the baseline (of its mainland) from which the breadth of the territorial sea is measured (see sketch-map No 2, p. 663).”262 260 Law 10 of 4 August 1978, “Whereby rules on Territorial Sea, Exclusive Economic Zone and Continental Shelf are set, and other provisions are issued”, Article 10 (Annex 10) 261 Memorial of Nicaragua, p 88, para 3 78 262 2012 Judgment, p 662, para 105 Colombia retained the same wording in Note S-DM-13-014681 of 22 April 2013 (Annex 19) See also, Memorial of Nicaragua, Annex 3 166
4 8 Nicaragua’s position is correct insofar as Colombia is
entitled to an EEZ with its attendant continental shelf extending
to 200 nautical miles from its baselines, but it is incorrect both
in separating the continental shelf from Colombia’s EEZ regime
within 200 nautical miles and in stating that such entitlement is
based upon the application of Article 76 of UNCLOS First, as
explained in Chapter 2, since Colombia is not a Party to this
Convention, UNCLOS is inapplicable to it and Colombia is only
subject to customary international law in this regard Second,
under customary international law, Colombia is entitled to a
200-nautical-mile continental shelf as an integral part of the ipso
jure EEZ regime, which includes the water column, the seabed
and the subsoil
4 9 In the same manner as Colombia’s mainland, the islands
of the San Andrés Archipelago are entitled ipso jure to an EEZ,
with its attendant continental shelf, of 200 nautical miles from
its baselines: “islands, regardless of their size ( ) enjoy the
same status, and therefore generate the same maritime rights, as
other land territory”.263 This principle is generally recognized as
part of customary international law
4 10 Therefore, based upon customary international law,
which applies to Colombia in these proceedings, Colombia’s
mainland and the islands of the San Andrés Archipelago are
entitled, ipso jure, to an EEZ with its attendant continental shelf,
263 Qatar v Bahrain, p 97, para 185
167
extending to 200 nautical miles in every direction Hence, since the alleged natural prolongation, upon which Nicaragua’s OCS claim is based, is not a source of title within Colombia’s 200 nautical miles entitlement,264 there are no overlapping entitlements between the Parties east of Nicaragua’s 200-nautical-mile range Colombia will now demonstrate its EEZ with its attendant continental shelf entitlements in the area which Nicaragua claims to be relevant in this case C. The EEZ and Attendant Continental Shelf of Colombia’s Mainland 4 11 The limit of Colombia’s mainland 200-nautical-mile entitlement is to be calculated from the baselines from which the breadth of the territorial sea is measured The 200-nautical-mile EEZ entitlement of Colombia’s mainland with its attendant continental shelf is illustrated in the following sketch-map 264 See Chapter 3 supra 168
169
D. The EEZ and Attendant Continental Shelf of Colombia’s Islands 4 12 This section will demonstrate the entitlements of Colombia’s islands to a 200-nautical-mile EEZ, with its attendant continental shelf Part (1) will address the entitlements of the islands of San Andrés, Providencia and Santa Catalina which are not disputed Part (2) will demonstrate that the islands of Roncador, Serrana, Serranilla and Bajo Nuevo generate analogous entitlements (1) THE EEZ AND ATTENDANT CONTINENTAL SHELF OF SAN ANDRÉS, PROVIDENCIA AND SANTA CATALINA 4 13 In the previous incarnation of this case, the Court, in concurrence with the positions of the Parties,265 ruled that San Andrés, Providencia and Santa Catalina, to which the Court referred to as the “principal”,266 or “major”, islands,267 generate a territorial sea, an EEZ and a continental shelf 268 The Court was particular in that these islands possess substantial entitlements to the east,269 extending into the area which Nicaragua now purports to claim as relevant for delimitation: “(…) to the east the maritime entitlement of the three islands (San Andrés, Providencia and Santa Catalina) extends to an area which lies beyond a line 200 nautical miles from the Nicaraguan 265 2012 Judgment, p 686, para 168 266 2012 Judgment, p 697, paras 195, 196; p 710, para 236; p 716, para 244 267 2012 Judgment, p 654, para 76 268 2012 Judgment, p 686, para 168 269 2012 Judgment, p 708, para 230 170
baselines and thus falls outside the relevant area
as defined by the Court” 270
4 14 In contrast to Nicaragua’s submission, the Court
recognized that San Andrés, Providencia and Santa Catalina
should not be cut-off from their entitlements east of Nicaragua’s
200-nautical-mile range:
“San Andrés, Providencia and Santa Catalina
should not be cut off from their entitlement to an
exclusive economic zone and continental shelf to
their east, including in that area which is within
200 nautical miles of their coasts but beyond 200
nautical miles from the Nicaraguan baselines.”271
4 15 The entitlements of these islands to the east, on which
there is res judicata between the Parties, are illustrated on the
following sketch-map:
270 2012 Judgment, pp 686-688, para 168
271 2012 Judgment, p 716, para 244
171
172
4 16 In the current reprise of its case, Nicaragua does not
challenge the fact that San Andrés, Providencia and Santa
Catalina generate a full 200 nautical miles entitlement
Nicaragua’s only and unsupported contention is that the
delimitation that its seeks 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.”272
4 17 Nicaragua’s claim is therefore that through a process of
delimitation between, on the one hand, the islands’ undisputed
entitlement to an ipso jure EEZ with its attendant continental
shelf, and, on the other hand, Nicaragua’s purported OCS claim,
the islands should not be “accorded” (i.e , should be deprived of)
one half of their EEZ entitlement, with its attendant continental
shelf The result would be that the three Colombian islands
would have no maritime entitlement whatsoever east of
Nicaragua’s 200-nautical-mile limit
4 18 As Colombia established in Chapter 3, natural
prolongation upon which an OCS claim is based is not a source
of title within 200 nautical miles from another State’s baselines,
272 Memorial of Nicaragua, p 130, para 5 19 (emphasis added) In fact,
what the Court actually qualified as “substantial” in its 2012 Judgment was
not the entitlements of these islands within the 200-nautical-mile limit from
Nicaragua, but their projection to the east of that line (see 2012 Judgment,
p 708, para 230)
173
whether measured from the mainland or islands Thus, even if Nicaragua were able to establish the factual prerequisites of an OCS claim within what it considers the relevant area (quod non), its proposition would still fail since there are no overlapping competing entitlements beyond Nicaragua’s 200-nautical-mile limit and therefore there can be no delimitation The Court should confirm its prior decision recognising the entitlements of San Andrés, Providencia and Santa Catalina to their full 200-nautical-mile EEZ with its attendant continental shelf (2) THE EEZ AND ATTENDANT CONTINENTAL SHELF OF COLOMBIA’S OTHER ISLANDS 4 19 In the Memorial, Nicaragua contends that: “The rocks and cays of Quitasueño, Alburquerque, Bajo Nuevo, Eastsoutheast Cays, Roncador, Serrana and Serranilla fall under the definition of ‘rocks’ in Article 121(3) and are entitled to a territorial sea, but not to a continental shelf or exclusive economic zone”.273 4 20 Nicaragua does not explain why it qualifies these islands as rocks under Article 121 (3) of UNCLOS or, indeed, why Article 121 (3) even applies to Colombia 4 21 For its part, the Court did not address this question in its 2012 Judgment When discussing the maritime entitlements of the Colombian islands, all of which were located inside the 273 Memorial of Nicaragua, pp 88-89, para 3 80; p 108, footnote 127 and p 131, paras 5 21-5 22 174
relevant area for the delimitation in that case, that is within 200
nautical miles from the Nicaraguan coast, the Court considered
that it was not:
“necessary to determine the precise status of the
smaller islands, since any entitlement to maritime
spaces which they might generate within the
relevant area (outside the territorial sea) would
entirely overlap with the entitlement to a
continental shelf and exclusive economic zone
generated by the islands of San Andrés,
Providencia and Santa Catalina.”274
4 22 In this section, Colombia will establish that Roncador,
Serrana, Serranilla and Bajo Nuevo, as islands of the San
Andrés Archipelago, are entitled to their full 200-nautical-mile
EEZ with its attendant continental shelf, east of Nicaragua’s 200
nautical miles Colombia will demonstrate that:
(i) Under customary international law, developed through
State practice based upon Article 121 (3) of UNCLOS,
the limitation with respect to the EEZ and the continental
shelf entitlements of islands, applies only to rocks, a
geological term which refers to a specific type of island,
a feature made solely of solid rock It is thus a geological
criterion, rather than a geographical size criterion;
(ii) Only when a feature fulfils the geological requirement of
being made solely of solid rock, is it necessary to assess
if it is capable of sustaining human habitation or
274 2012 Judgment, p 692, para 180
175
economic life of its own, in order to determine if it is entitled to an EEZ with its attendant continental shelf According to customary international law, islands that do not fulfil that geological criterion retain their ipso jure 200-nautical-mile entitlements regardless of their size or ability to sustain human habitation or economic life of their own; (iii) None of Colombia’s islands is made solely of solid rock; (iv) Therefore, based upon State practice and customary international law, these islands are entitled to an EEZ with its attendant continental shelf, which extends to the full 200 nautical miles from their baselines; and (v) Even if the Court were to dispense with the geological requirement, Colombia will demonstrate that all of its relevant islands are capable of sustaining human habitation or economic life of their own, in accordance with the standard established in State practice The 200 nautical miles’ EEZ with its attendant continental shelf entitlement to the east of Roncador, Serrana, Serranilla and Bajo Nuevo islands is depicted in the following sketch-map: 176
177
4 23 In contrast to Nicaragua’s unsupported contentions, Colombia’s analysis will be based on a careful examination of the circumstances of those Colombian islands that are critical to this case, i.e. the islands which have the most eastern position, namely Roncador (c), Serrana (d), Serranilla (e) and Bajo Nuevo (f). Colombia’s position is based upon a detailed examination of the applicable law (a), which shows that international law recognizes these islands’ entitlement to an EEZ with its attendant continental shelf. Before presenting each island’s characteristics, Colombia will provide a general overview of their geography and socio-economic specificities (b) (a) Applicable Law 4 24 Article 121 (3) of UNCLOS did not reflect customary international law at the time that UNCLOS was adopted Nor does the 1958 Convention on the Continental Shelf contain any equivalent wording; such wording is therefore entirely an UNCLOS conventional creation and not a codification of previously existing customary rules 275 275 The purely conventional origin of the rule expressed in Article 121 (3) is reflected in the United Kingdom’s practice in this regard. The UK maintained a 1976 claim to a 200-nautical-mile fishing zone around the very small rocky feature of Rockall, but gave it up when it acceded to UNCLOS in 1997 See House of Commons (H C ) Hansard, Written Answers, 21 July 1997, col 397: for Richard Cook (U K Foreign Secretary), available at: https://publications parliament uk/pa/cm199798/cmhansrd/vo970721/text/70721w04 htm (last visited 17 Sep 2017) This shows that the UK, at least before 1997, did not consider Article 121 (3), as customary international law, and complied with it only when it had duly consented to it 178
4 25 Until recently, the Court refrained from recognizing a
customary status to Article 121 (3) 276 In its 2012 Judgment, the
Court affirmed the customary law status of Article 121 (3)
According to the Court:
“the 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 human habitation 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’ (....) 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 régime of
islands set out in UNCLOS Article 121 forms an
indivisible régime, all of which (as Colombia and
Nicaragua recognize) has the status of customary
international law.”277
4 26 The proposition that a conventional rule can become
customary law due to practice has been recognized by the
Court 278 Since non-Parties to UNCLOS are only subject to
customary international law, the extent of such customary law,
developed from a conventional rule, should be interpreted
276 In its Judgment in Qatar v Bahrain, the Court only held that:
“Article 121, paragraph 2, of the 1982 Convention on the Law of the Sea,
(…) reflects customary international law”. It took no position with respect to
paragraph 3 See Qatar v Bahrain, p 97, para 185
277 2012 Judgment, p 674, para 139
278 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p 44,
para 74 (North Sea Continental Shelf)
179
primarily by reference to State practice, including “that of States whose interests are specially affected.”279 4 27 Nonetheless, since Nicaragua purports to rely on Article 121 (3), before turning to State practice, it may be useful to look closely at the wording of that provision 4 28 Article 121 of UNCLOS provides that: “1 An island is a naturally formed area of land, surrounded by water, which is above water at high tide 2 Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory 3 Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” 4 29 Paragraph 3 of Article 121 is generally considered to have been poorly drafted It has notably been described as having been drafted “with the following idea: ‘I cannot exactly define what I mean, but show me an offshore territory and I will 279 See on this practice, J M Van Dyke, et al, “The EEZ of the Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate an EEZ?”, San Diego Law Review, Vol. 25, 1988, pp 430-433 180
let you know if it is a paragraph 3 rock’.”280
4 30 E D Brown underlined that it was an “entirely new rule
of unique vagueness”,281 D. P. O’Connell,282 H Dipla283 and R R
Churchill and V Lowe – who happens to be Counsel for
Nicaragua – insist on the subjectivity of the rule, its vagueness
and ambiguity, and on its “poor drafting”284. According to L L
Herman it is “replete with uncertainties”,285 while J R
Stevenson and B. H. Oxman point to the “unclear effects of this
text.”286
4 31 Whatever its other deficiencies, neither this provision nor
any other provision in UNCLOS, defines “rock” as a special
kind of island Paragraph 3 simply presents two conditions that
must be met for denying a “rock” an EEZ and continental shelf
These conditions rely on the notions of habitability and
economic life, terms that are themselves quite imprecise
280 R. W. Smith, “The Effect of Extended Maritime Jurisdiction”, A. W.
Koers and B H Oxman, (eds), The 1982 Convention on the Law of the Seas,
The Law of the Sea Institute, University of Hawaii, Honolulu, 1984, p 345
(available at the Peace Palace Library)
281 E. D. Brown, “Rockall and the Limits of National Jurisdiction of the
United Kingdom”, Marine Policy, 1978, p 205 (Annex 45)
282 D P O'Connell, The International Law of the Sea, Vol II, Oxford,
1982, p 731 (available at the Peace Palace Library)
283 H Dipla, Le régime juridique des îles dans le droit international de
la mer, Paris, 1984, p 41 (available at the Peace Palace Library)
284 R R Churchill and A V. Lowe, The Law of the Sea, 2nd edition
revised and enlarged, 1988, Manchester University Press, pp 41-42
(available at the Peace Palace Library)
285 L. L. Herman, “The Modern Concept of Off-Lying Archipelagos in
International Law”, Canadian Yearbook of International Law, Vol 23, 1985,
p 194
286 J. R. Stevenson and B. H. Oxman, “The Third United Nations
Conference on the Law of the Sea: The 1975 Geneva Session”, American
Journal of International Law, Vol 69, 1975, p 786
181
(i) Interpretation of the Term “Rocks” in Article 121 (3) 4 32 This section will establish that the ordinary meaning of the term “rock” in Article 121 (3) of UNCLOS, and especially in the customary implementation of the Article, refers to a geological rather than a geographical criterion In short, a rock is a rock That means that for the limitation in Article 121 (3) with respect to the EEZ, with its attendant continental shelf, to apply, the feature must first be a geological “rock”, meaning a feature made solely of solid rock The second criterion, that is the ability to sustain human habitation or economic life of its own, only applies to features that are “rocks” in the geological sense; if a feature is not a “rock” in the geological sense, the habitation and economic life qualifications do not apply and the feature is entitled to an EEZ, with its attendant continental shelf, regardless of whether it can sustain human habitation or economic life a. The Term “Rock” in the Context of Article 121 4 33 Article 121 (3) only concerns rocks that qualify as islands under Article 121 (1), because rocks which are not islands – for example low-tide elevations – do not generate any entitlement at all, and are therefore of no concern to Article 121 287 287 Low-tide elevations do not generate entitlements as such, but can be considered for the establishment of the baseline when they are situated 182
4 34 The subject-matter of Article 121 (3) is “Rocks which
cannot sustain human habitation or economic life of their own”
(“Les rochers qui ne se prêtent pas à l’habitation humaine ou à
une vie économique propre”; “Las rocas no aptas para
mantener habitación humana o vida económica propia”)
Therefore, two cumulative elements are necessary for
Article 121 (3) to apply: (i) the feature must be a “rock”; and (ii)
it must be a rock “which cannot sustain human habitation or
economic life of (its) own”.
4 35 The notion of rocks which cannot sustain human
habitation or economic life of their own is significantly different
from to the notion of islands which cannot sustain human
habitation or economic life of their own UNCLOS III invested
considerable efforts into defining the term “island” in Article
121 (1), “(a)n island is a naturally formed area of land,
surrounded by water, which is above water at high tide” It is
implausible to assume that having invested time and energy in
defining a concept, the Conference would use a different term to
refer to the same exact concept In other words, if the drafters of
UNCLOS intended the limitation in Article 121 (3) to extend to
all islands, as they were defined in Article 121 (1), they would
have used the term island The fact that the drafters of UNCLOS
did not use the term island in Article 121 (3) implies that
“rocks” is not synonymous with “islands”.
wholly or partly at a distance not exceeding the breadth of the territorial sea
from the mainland or an island
183
4 36 Thus, the term “rock” must have a different meaning than “island”. A “rock” must be a particular type of island A “rock” may not be defined through the second condition, meaning by reference to the ability to “sustain human habitation or economic life”. Such a proposition would in essence transform the word “rocks” into “islands”; a result which the drafters of UNCLOS clearly intended to avoid. Thus, “rocks” must have a different meaning Analysis of State practice, indicative of customary international law, will show that a “rock” has a precise geological denotation, which cannot be ignored by jumping to a reference to the ability to “sustain human habitation or economic life”. This is also the ordinary meaning of the word “rock” under Article 121 (3) 4 37 The travaux are inconclusive on this issue, although they contain several interesting elements During the Caracas session the notion of “rock” appeared for the first time in this context. It was defined as a “naturally formed rocky elevation of ground”.288 Thus, at this stage, the notion of rock referred to a geological feature 289 4 38 Libya proposed that “small islands and rocks, wherever they may be, which cannot support human habitation or 288 UNCLOS III, Official Documents, Second Committee Meetings, 3rd Meeting, UN Doc A/CONF 62/C 2/L 62/Rev 1, available at: http://legal un org/docs/?path= /diplomaticconferences (last visited 17 Sep 2017) 289 R Kolb, « L'interprétation de l'article 121, paragraphe 3, de la convention de Montego Bay sur le droit de la mer : les rochers qui ne se prêtent pas à l'habitation humaine ou à une vie économique propre’ », Annuaire français de droit international, Vol 40, 1994, p 891 184
economic life of their own, shall have no territorial sea”.290 In
Libya’s understanding of those terms, “rocks” on the one hand,
and “small islands”, on the other hand, were to be distinguished.
Jonathan L Charney explains that before the appearance of the
term “rocks”, the terms “islet” or “small island” were widely
used 291 Indeed, a Romanian proposal distinguished between
“islets” (“naturally formed elevations of land less than one
square kilometre in area”), and “islands similar to islets” (more
than one square kilometre, but less than… square kilometre”),
and contended that “the practice of States, customary law, and
international legal theory demonstrated widespread agreement
on the need to distinguish clearly between islets and rocks, on
the one hand, and proper islands, on the other”.292 But the term
“rocks” and not “small islands” was finally retained This means
that a “rock” was not perceived merely as a small island, but one
of a particular kind Size does not matter: what define a rock are
not its dimensions but the material it is made of
4 39 Although the travaux are far from conclusive in this
respect, one thing that they demonstrate is that while proposals
to extend the limitation in Article 121 (3) based upon
geographical criteria to all small islands, were raised, they were
rejected by the Conference The Conference deliberately chose
290 UNCLOS Documents, Vol IV, p 347
291 J. L. Charney, “Note and Comment: Rocks That Cannot Sustain
Human Habitation”, American Journal of International Law, Vol 93, 1999,
p 869
292 W van Overbeek, “Art. 121 (3) LOSC in Mexican State Practice in
the Pacific”, International Journal of Estuarine and Coastal Law, Vol 4,
No 4, pp 252- 267, p 259
185
the term “rocks”, which has a natural geological and geomorphological meaning, in order to limit the extent of the exception in Article 121 (3) If the travaux do not resolve the question of the proper interpretation of the term “rocks”, they do demonstrate that the term “rocks” does not apply to all small islands; a conclusion that would be reached if only the second criterion applied 293 4 40 This simple textual reading of Article 121 (3), which is “in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”,294 confirms that the State Parties intended to avoid the limitation in Article 121 (3) from applying to all insular features Rather, it was limited to a specific type of island, defined by the term “rock”, which was considered by the State Parties to be the correct way to characterize its nature 4 41 ITLOS confirmed this conclusion by regarding Australia’s Heard Island as falling outside the scope of Article 121 (3), despite its being completely covered by snow and ice and therefore not capable of sustaining human habitation or economic life of its own 295 In deciding the case, the Tribunal proceeded on the basis that Heard Island has an EEZ, in which 293 It should be noted that Colombia is only subject to the State practice which evolved through the application of this Article As Colombia will demonstrate, State practice follows the interpretation giving the term “rock” a geological meaning, different from the term “island”. 294 Vienna Convention on the Law of Treaties, Article 31, para 1 295 “Volga” (Russian Federation v Australia), Prompt Release, Judgment, ITLOS Reports 2002, p 17, para 23 and p 20, para 32 186
the Volga was detained by Australia 296 Vice-President Vukas
disassociated himself from all of the Tribunal’s positions “which
are based on the proclaimed exclusive economic zone around
Heard Island and the McDonald Islands”,297 explaining that:
“According to Encyclopaedia Britannica ‘(m)uch
of its (Heard Island’s) surface is covered with
snow and ice The McDonalds are a group of
uninhabited rocky islets 25 miles (40 km) west of
Heard Island’
Taking into account all these data, one should not
ignore article 121, paragraph 3, of the LOS
Convention, where we find many of the elements
obviously present in this group of Australian
islands/isles/islets/rocks: ‘Rocks which cannot
sustain human habitation or economic life of their
own shall have no exclusive economic zone or
continental shelf.’
Although the terminology used in article 121,
paragraph 3, is vague, and the relationships
between the components of this rule are rather
unclear, taking into account the legislative history
of this provision, we must agree with the
conclusions arrived at by Barbara Kwiatkowska
and Alfred H A Soons:
‘As the term « rocks » should be construed as not
implying any specific geological features, the
essential element of the definition is the second
one , namely that it covers only rocks (islands)
296 “Volga” (Russian Federation v. Australia), Prompt Release,
Judgment, ITLOS Reports 2002, p 20, para 32
297 “Volga” (Russian Federation v Australia), Prompt Release,
Judgment, ITLOS Reports 2002, Declaration of Vice-President Vukas, p 42,
para 2
187
« which cannot sustain human habitation or economic life of their own » (…)’”298 4 42 ITLOS’ majority holding is correct, since giving to Article 121 (3) the meaning suggested by Judge Vukas would mean replacing the term intended by the negotiating States, “rocks”, with another term, specifically defined two paragraphs before, “island”. Such a determination is not only textually unsustainable, it is unreasonable; if the negotiating States intended to avoid applying the capability limitation in Article 121 (3) to all islands, adopting such a wide interpretation would have frustrated their effort Shifting the focus only toward the second condition, as Judge Vukas proposed, would undermine the compromise achieved with respect to the entitlement of islands, which was intentionally limited by the first criterion, the geological criterion of a feature being a “rock”.299 298 “Volga” (Russian Federation v. Australia), Prompt Release, Judgment, ITLOS Reports 2002, Declaration of Vice-President Vukas, p 44, para 6, quoting B. Kwiatkowska and A. H. A. Soons, “Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own”, Netherlands Yearbook of International Law, Vol XXI, 1990, p 153 299 Although Colombia is only subject to the customary application of this provision, adduced through the analysis of State practice, a purely textual analysis of Article 121 (3) also supports this position. For Judge Vukas’ interpretation to apply, Article 121 (3) should read “Rocks, which cannot sustain …” (« Les rochers, qui ne se prêtent pas » ; “Las rocas, no aptas para mantener…”) In such case the phrase beginning with “which” would have the effect of defining what must be understood as “rocks” – i.e , “islands which cannot sustain …”. But it reads “Rocks which cannot sustain …”, which is necessarily to be understood as meaning that some rocks “can sustain …”, while others “cannot sustain …”. Therefore, the very word “rocks” must necessarily mean “a peculiar kind of island”, independently of the question whether they can, or cannot, “sustain human habitation …”. Thus, a rock is then a kind of island that is not characterized as unable to sustain human habitation or economic life of its own What characterizes a rock as a particular island is necessarily something different 188
4 43 The Court’s jurisprudence with respect to the term
“rock” is sparse; nonetheless, it demonstrates the Court’s resolve
to distinguish between “rocks” and “small islands”.
4 44 In the North Sea Continental Shelf cases, the Court made
reference to “islets, rocks and minor coastal projections”, thus
suggesting that “rocks” must be distinguished from islets and
that they are different types of features 300 Indeed, rocks may be
small islands, however, they qualify as “rocks” because they are
islands solely made of “rocks”.
4 45 Also, In the Libya/Malta case, it was a small rocky
feature, Filfla, which the Court expressly qualified as an
“uninhabited rock”.301
300 North Sea Continental Shelf, p 36, para 57
301 Libya/Malta, p 20, para 15
Figure 4.5Filfla Islet, MALTA
189
4 46 The Arbitral Tribunal in the Philippines v China award reached a different conclusion than ITLOS and the Court There, the Tribunal struggled to demonstrate that the term “rocks” has no specific geological or geomorphological meaning and, ultimately, no meaning at all 302 That conclusion is, as shown above, doubtful on its face and the reasoning on which it purports to be based is not persuasive 4 47 The Tribunal refers to the definition of “rock” found in a dictionary of English terms,303 however, Arabic, Russian, Chinese, Spanish and French versions of the Convention are equally authentic Confining a terminological inquiry to an English dictionary is legally incomplete 304 Before drawing any conclusion from a purely lexicological approach, the Tribunal should at least have noted, for example, that in the French language the term “rocher” has the very specific meaning of « une grande masse de matière minérale dure (roche), formant une éminence généralement abrupte », which clearly refers to a geological or geomorphological character 305 Similarly, in the Spanish language the term “roca” means “material sólido de origen natural formado por una asociación de minerales o por uno solo, que constituye una parte importante de la corteza 302 The South China Sea Arbitration (Philippines v China), Award of 12 July 2016, PCA Case No. 2013-19, paras 479-482 (South China Sea Arbitration) 303 South China Sea Arbitration, para 480 304 See Vienna Convention on the Law of Treaties, Article 33 305 See S Karagiannis, « Les rochers qui ne se prêtent pas à l’habitation humaine ou à une vie économique propre et le droit de la mer », Revue Belge de Droit International, Éditions Bruylant, 1996/2, p 565, quoting the French dictionary « Robert » 190
terrestre”, which also refers to the same geological and
geomorphological character 306
4 48 Also, the Tribunal contends that the Court’s 2012
Judgment in the Territorial and Maritime Dispute case confirms
its view that the term “rock” has no geological or
geomorphological meaning According to the Tribunal, “this
was also the conclusion reached by the International Court of
Justice in Territorial and Maritime Dispute (Nicaragua v.
Colombia) when it held Colombia’s Quitasueño, a ‘minuscule’
protrusion of coral, to be an Article 121 (3) rock ”307 The
Tribunal justifies its conclusion by quoting paragraph 37 of the
2012 Judgment, which reads:
“(i)nternational law defines an island by reference
to whether it is ‘naturally formed’ and whether it
is above water at high tide, not by reference to its
geological composition ( ) The fact that the
feature is composed of coral is irrelevant.”308
4 49 The citation and reasoning of the Tribunal are flawed for
various reasons
4 50 First, the Court does not discuss the notion of “rock” in
Article 121 (3), but only addresses the question whether
Quitasueño is an “island” based upon Article 121 (1),
306 Diccionario de la Real Academia Española, online edition, available
at http://dle rae es/?id=WYwJeO6 (last visited 17 Sep 2017) Another
meaning of roca is “piedra, o vena de ella, muy dura y sólida”, which also
refers to its geological nature
307 South China Sea Arbitration, para 480
308 2012 Judgment, p 645, para 37
191
determining that since this feature is above water at high tide, it
is an island, whatever its geological composition; there is no
insight into the Court’s stance regarding the very notion of
“rocks” in paragraph 3 of that same provision.
4 51 Second, Quitasueño was never qualified by the Court as
a “protrusion of coral”; which it is not. All that the Court stated
was that: “the photographic evidence shows that QS 32 is
composed of solid material, attached to the substrate, and not of
loose debris.”309
Quitasueño (including QS 32, see the picture above) is correctly
described as a group of “coral islands that has formed over
centuries by the gradual accretion of the skeletons of the coral
polyp in temperate waters”.310 This kind of formation is the
outcome of a classical phenomenon that leads to the creation of
309 2012 Judgment, p 645, para 37
310 Territorial and Maritime Dispute, Public Sitting 4 May 2012, CR
2012/17, p 13, para 31 (Crawford)
Figure 4.6
Quitasueño Cay (QS-32)
192
a category of rocks, namely “biochemical sedimentary rocks”.
Biochemical sedimentary rock are undoubtedly a geological
product Therefore, it is simply wrong to suggest that since the
Court accepted that Quitasueño is a rock, then the notion of rock
cannot have a geological meaning To the contrary, since
Quitasueño is composed of biochemical sedimentary rocks, the
fact that the Court viewed it as a rock confirms – and not
contradicts – that the term “rocks” has a geological meaning
4 52 Third, the Arbitral Tribunal argues that interpreting the
term “rock” as referring to features with geological or
geomorphological characteristics “would lead to an absurd
result”.311 But that is a classic petitio principii: the fact that such
or such treaty provision, when interpreted in accordance with
the ordinary meaning to be given to its terms, leads to a result
that the interpreter considers absurd must be explained; it is a
threshold and not a conclusion and it has never been a sufficient
reason to immediately reject the result with no further inquiry
According to Article 32 of the Vienna Convention on the Law of
Treaties, in case an interpretation made in accordance with the
ordinary meaning leads to an absurd result, the interpreter
should have recourse to supplementary means of interpretation
But this is not the method the Tribunal applied; it simply
concluded that the word “rocks” has no meaning of its own
Such an approach cannot convince
4 53 A survey of academic writings demonstrates that the
311 South China Sea Arbitration, para 481
193
proponents of the theory that a “rock” is nothing but a small island were inconsistent with respect to the size beyond which an island will no longer be considered a “rock”. This renders the criterion of “smallness” as extremely vague, subjective and capricious as the length of the Chancellor’s foot and hardly operational This is why those who adhere to this thesis are finally driven to contend that a “rock” is nothing other than an island which cannot sustain human habitation or economic life of its own Such conclusion, however, is just an attempt to rewrite Article 121 (3) 4 54 Regardless of the fact that only State practice stemming from the application of Article 121 (3) is applicable to Colombia, to rewrite this provision in such a way would undermine the conviction of the negotiating State to apply the limitation in Article 121 (3) solely to geological “rocks”, rather than to all islands 4 55 Prescott312 and Dipla313 have argued that the notion of “rock” refers to a geological (or geomorphological) feature, meaning that a “rock” should be formed of solely a rocky elevation, surrounded by water. Since all “rocks” are islands, the term “rock” means land of a certain composition, rather than a land of a certain size This position is most consistent with an interpretation respecting the natural meaning of the term “rock” and was maintained by Colombia in its pleadings in the previous 312 J R V Prescott, The Maritime Political Boundaries of the World, Methuen, 1985, p 38, p 73; (available at the Peace Palace Library) 313 H Dipla, footnote 283 supra 194
case 314
4 56 It follows from the above that an interpretation of Article
121 (3), leads to the conclusion that the term “rock” cannot be
without signification, and cannot refer to all kinds of islands, but
to a particular kind of island, that is to say a peculiar kind of
“naturally formed area of land”. Any other approach would be
contrary to “the principle that words should be given appropriate
effect whenever possible.”315 It would undermine the conviction
of the negotiating State to avoid the application of Article 121
(3) to all islands As Jonathan Charney put it, habitability and
economic life should not be used to define the term “rocks”,
rather they are intended to narrow the scope of the provision to
specific “rocks” that in addition cannot sustain either
habitability or economic life:
“The general rule of treaty interpretation gives
meaning to all words of a text, so that references
to ‘habitability’ and ‘economic life’ must have
meanings independent of the nature of the feature
itself They must narrow the scope of the
provision to rocks that also are either
uninhabitable or have no economic life of their
own” 316
4 57 The proposition that the criteria of habitability and
economic life should not be used to define the term “rock”, but
314 Territorial and Maritime Dispute, Public Sitting 27 April 2012, CR
2012/12, p 17, paras 37-40 (Bundy)
315 Application of the International Convention on the Elimination of
All Forms of Racial Discrimination (Georgia v Russian Federation),
Preliminary Objections, Judgment, I.C.J. Reports 2011, p 126, para 134
316 J Charney, see footnote 291 supra, p 870
195
rather only apply if established that the feature in question is a “rock”, is supported also by Rothwell and Stephens: “Article 121(3) of the LOSC is somewhat of an anomalous provision as it applies only to ‘rocks’, and not to more substantial territory that may be as incapable of sustaining human habitation or economic life as a remote islet” 317 4 58 Were the Court to conclude that State practice is not based on a definition of “rock” that turns upon geological criteria, and rule that size should be indicative of the term “rock”, all of Colombia’s features are in any case large enough to qualify as islands, as will become evident later in the Chapter 4 59 There is no accepted size criterion for what constitutes a “rock”. However, Robert Hodgson’s categorization, referenced by other scholars,318 distinguished among the following: rocks, less than 0,001 sq miles in area; islets, between 0,001 and 1 sq miles; isles, between 1 and 1,000 sq miles; and islands, larger than 1,000 sq miles 319 Even if the Court were to reject a geological definition and embrace a purely geographical one, the only credible size definition for a “rock” would be a feature that 317 D R Rothwell and T Stephens, The International Law of the Sea, Hart Publishing, 2016, p 90 (available at the Peace Palace Library) 318 See B. H. Dubner, “The Spratly ‘Rocks’ Dispute – a ‘Rockapelago’ Defies Norms of International Law”, Temple International and Comparative Law Journal, Vol 9, 1995, pp 303-304; L Diaz, et al, “When is a ‘Rock’ an ‘Island’? – Another Unilateral Declaration Defies ‘Norms’ of International Law”, Michigan State Journal of International Law, Vol 15, 2007, pp 519, 535 319 Quoted by W van Overbeek, footnote 292 supra, p 253, footnote 10 196
is less than 0,001 sq miles large (which equals 0,002 sq km)
An extremely small feature indeed
b. State Practice in Interpreting the Term “Rocks”
4 60 A series of further indications pertaining to State
practice, including that of States whose interests are specially
affected, point to a narrow interpretation of the term “rock”
consistent with its ordinary textual meaning The following
examples refer to features which were considered to be
geological “rocks”, thus subject to the implementation of the
rule of customary international law which is analogue to Article
121 (3)
4 61 One of the first State Parties to UNCLOS that introduced
Article 121 (3) in its domestic legislation, namely Mexico, has
adopted a restrictive interpretation Initially, prior to ratifying
UNCLOS, the 1976 Mexican legislation stated that islands
generate an EEZ “with the exception of those islands which
cannot maintain human habitation or which do not have an
economic life of their own” 320 This was duly amended in 1986
by a new text providing that “islands shall have an exclusive
economic zone; however rocks that cannot sustain human
320 Article 3 of the Law regulating the eighth paragraph of Article 27 of
the Constitution, Official Journal of Mexico, 13 February 1976, available at:
http://www dof gob mx/nota_detalle php?codigo=4840744&fecha=13/02/197
6 (last visited 17 Sep 2017) See also C R Symmons, The Maritime Zones
of Islands in International Law, Kluwers Academic Publishers, 1979, p 125
(available at the Peace Palace Library)
197
habitation or economic life of their own shall not”.321 This
clearly reflects the fact that, according to Mexico, rocks are not
just “islands that cannot sustain” certain human activities, but
are areas of land of a particular nature
4 62 Among its many little islands, the only feature for which
Mexico would appear not to claim an EEZ with its attendant
continental shelf is a series of “rocks” in the strict sense, namely
Rocas Alijos 322
321 See W van Overbeek, footnote 292 supra, p 261
322 See S Karagiannis, footnote 305 supra, pp 613-614; M H
Nordquist, J Norton Moore, et al , The Law of the Sea Convention: US
Accession and Globalization, Leiden, 2012, p 329 (available at Peace Palace
Library); Alex G. Oude Elferink, “Clarifying Article 121(3) of the Law of the
Sea Convention: The Limits Set by the Nature of International Legal
Processes”, IBRU Boundary and Security Bulletin (Summer 1998), p 58 at
p 59 (available at Peace Palace Library); C R Symmons, footnote 320
supra, p 126
Figure 4.7
Rocas Alijos, MEXICO
198
4 63 By contrast, Mexico is reported to claim an EEZ from
the baselines of Roca Partida, which would qualify as a
geological rock, and in addition lacks fresh water and supports
no animal life on land It seems that Mexico considers that this
rock is part of a group of other features, namely Clarion,
Socorro, and San Benedicto, which form what is called the
Revillagigego Archipelago, a place “that today may not be
inhabited or may not have an economic life of their own but,
because they are located in marine areas endowed with abundant
mineral resources, it is anticipated that in the future when they
become economically viable for commercial exploitation
activities, they may be inhabited and they may also eventually
have an economic life of their own.”323
323 J Vargas, Mexico and the Law of the Sea: Contributions and
Compromises, Martinus Nijhoff, 2011, p 229 (available at Peace Palace
Library)
Figure 4.8Roca Partida, MEXICO
199
4 64 J L Charney suggested that a feature would not be
subject to Article 121 (3) if, despite its rocky nature, it were
found to have mineral resources, such as oil or gas, or other
resources of value such as newly harvestable fishery species, or
even a location for a profitable business (such as a casino),
whose exploitation could sustain an economy sufficient to
support that activity through the purchase of necessities from
external sources 324 As a consequence, Mexico’s position would
not be that Roca Partida is not a rock, but, rather, that it is a rock
which may sustain human habitation or economic life of its own
4 65 When the United Kingdom became a Party to UNCLOS
in 1997, it renounced its claim that an EEZ, with its attendant
continental shelf, was generated by Rockall, which is clearly
nothing more than a “rock” stricto sensu
324 J L Charney, footnote 291 supra, p 871
Figure 4.9
Rockall, U.K.
200
4 66 The following paragraphs will elaborate on various small
islands for which States have claimed an EEZ with its attendant
continental shelf The review of State practice, which is a
principal generator of customary international law applicable to
Colombia, will illustrate that features which were islands, but
not “rocks” in the geological sense, were claimed by a wide
range of States to be entitled to an EEZ with its attendant
continental shelf Thus, State practice confirms that the term
“rock” has been and, hence, should be interpreted in a
geological rather than a geographical sense
4 67 The United Kingdom’s position regarding Ducie Island,
an atoll belonging to the Pitcairn Islands, demonstrates that
small islands, which geologically are not rocks, are not
considered by the United Kingdom as covered by Article 121
(3) 325 In 1992, the United Kingdom declared an EEZ attached to
this feature, which is a very small and uninhabited island, but
certainly not a “rock” in the geological sense.326 It has a total
area, including the lagoon, of 3,9 sq km It is 2,4 km long,
northeast to southwest, and about 1,6 km wide The land area is
only 0,7 sq km
325 There are four islets on the rim of the atoll: Acadia Islet (largest
islet, along the north and east rim); Pandora Islet (second largest, in the
south); Edwards Islet (immediately east of Pandora Islet); Westward Islet
(smallest, west of Pandora Islet)
326 Law of the Sea Report of the UN Secretary General, 10 November
1993, UN Doc N° A/48/527, para 26
201
4 68 Oeno Atoll, also belonging to the Pitcairn Islands, is
illustrative of the United Kingdom’s practice in claiming EEZ
for certain islands 327 The atoll measures about 4 km in diameter
There are two larger and three smaller islets on or within the rim
of the atoll Their aggregate land area is only 0,68 sq km The
main island (Oeno) is about 0,65 sq km in area It has a forest
and scrub with pandanus and palm trees There is also a water
tap installed on the island
327 Law of the Sea Report of the UN Secretary General, footnote 326
supra, para 26
Figure 4.10
Ducie Island, U.K.
202
4 69 Venezuela’s Aves Island, a sand feature located far from
the Venezuelan mainland coast and which is not a geological
“rock”, has been given full effect by certain third States despite
the fact that it is small in size, about 375 metres in length and 50
metres wide, which makes it similar in size and composition to
Bajo Nuevo Consisting mostly of sand and with some
vegetation, the island has no human habitation 328 In 1978,
Venezuela established a permanent scientific station on the
island, staffed by scientists, and protected by naval personnel 329
Aves Island was given full effect in the Maritime Boundary
Treaty between the United States and Venezuela;330 in doing so,
the United States recognized Venezuela’s right to claim an EEZ
328 International Maritime Boundaries, Vol V, p 3411
329 D. Freestone, “Maritime Boundaries in the Eastern Caribbean”, Carl
Grundy-Warr (ed ), International Boundaries and Boundary Conflict
Resolution: Proceedings of the 1989 IBRU Conference, International
Boundaries Research Unit Durham University, 1990, p 199 (available at
Peace Palace Library)
330 Limits in the Seas, No 91
Figure 4.11Oeno Atoll, U.K.
203
and continental shelf from Aves Island The Netherlands and
France, have also given Aves Island the treatment of a fullfledged
island 331
4 70 Howland Island, belonging to the United States, provides
another instructive example 332 This 1,62 sq km island has no
lagoon, seemingly no natural fresh water resources, no
economic activity and it is only visited every two years by the
U S Fish and Wildlife Service 333 An airstrip and a lighthouse
331 C. W. Dundas, “Middle American and Caribbean Maritime
Boundaries”, International Maritime Boundaries, Vol V, pp 3410-3411 See
also Ibid , Vol I, the Netherlands (Antilles)-Venezuela, Rep 2-12, p 615;
Limits in the Seas, No. 105; C. Carleton, “Maritime Delimitation in Complex
Island Situations: A Case Study on the Caribbean Sea”, R. Lagoni and D.
Vignes (eds ), Maritime Delimitation, Leiden/Boston, Martinus Nijhoff
Publishers, 2006, p 177 (available at the Peace Palace Library); International
Maritime Boundaries, Vol I, Report 2-11, pp 603-614
332 Y. Song, “The Application of Article 121 of the Law of the Sea
Convention to the Selected Geographical Features Situated in the Pacific
Ocean”, Chinese Journal of International Law, Vol 9, 2010, pp 663, 689-
690
333 U.S. Fish and Wildlife Service, “Howland Island National Widlife
Refuge, available at: https://www fws gov/refuge/howland_island/ (last
visited 17 Sep 2017)
Figure 4.12
Aves Island, VENEZUELA
204
were constructed in 1937 to support the famous aviator Amelia
Earhart’s round-the-world flight, but have been inactive since
1942 334 In 1974 the Howland Island National Wildlife Refuge
was established and currently covers more than 410,000 acres
(around 1,660 sq km) 335 The United States claims a fishing
zone of 200 nautical miles around the island It appears that the
neighbouring country, Kiribati, accepts this claim 336
4 71 Another example of a small atoll from which the United
States claims an EEZ is Baker Island It has a total land mass of
334 University of North Carolina, “Lighthouses of U.S. Pacific Remote
Islands”, available at: https://www unc edu/~rowlett/lighthouse/umi htm (last
visited 17 Sep 2017)
335 U S Fish and Wildlife Service, footnote 333 supra
336 Treaty between the United States and Kiribati, signed on 6
September, 2013, U S Senate, 114th Congress, 2nd Session, Treaty Doc 114-
13, pp 1 to 6 See also R Crocombe, The Pacific Islands and the USA,
Institute of Pacific Studies, University of the South Pacific, 1995, p 21
(Annex 46); International Maritime Unit, Maritime Briefing, Vol 2, N° 8,
Undelimited Maritime Boundaries in the Pacific Ocean Excluding the Asian
Rim, by J R V Prescott and G Boyes, IBRU, 2000, p 38 (available at the
Peace Palace Library)
Figure 4.13Howland Island, U.S.
205
around 1,5 sq km and is uninhabited except for periodic visits
by scientists and every two years by the U S Fish and Wildlife
Service 337 Baker Island has no natural fresh water or economic
activity 338 It has an airstrip and a lighthouse, which has been
inactive since 1942 339 In 1974 the Baker Island National
Wildlife Refuge was established and currently covers more than
410,000 acres (around 1,660 sq km) 340
4 72 The United States’ Kingman Reef is even more
illustrative It is said to be a very small feature of around
0,0044 sq km, with no terrestrial plants, no natural resources
and supporting no economic activity However, it does possess
337 “Baker Island”, Encyclopaedia Britannica, available at:
https://www britannica com/place/Baker-Island (last visited 17 Sep 2017)
338 Y Song, footnote 332 supra, p 690
339 University of North Carolina, footnote 334 supra.
340 U.S. Fish and Wildlife Service, “Baker Island National Widlife
Refuge”, available at: https://www fws gov/refuge/Baker_island/about html
(last visited 17 Sep 2017)
Figure 4.14
Baker Island, UNITED STATES
206
abundant and diverse marine fauna and flora In 1983, the
United States proclaimed that Kingman Reef was entitled to an
EEZ 341
4 73 The practice of the United States, inasmuch as it is not a
Party to UNCLOS, is particularly relevant for assessing its view
with regard to the customary interpretation of Article 121 (3)
This practice clearly confirms a very restrictive interpretation of
this rule
4 74 The delimitation treaty between Australia and France
(New Caledonia) is another example of State practice in this
341 U.S. President, “Presidential Proclamation 5030: Exclusive
Economic Zone of the United States of America”, 10 March 1983, Federal
Regulation, Vol 48, p 605, available at: https://www boem gov/US-Mexico-
Presidential-Proclamation-5030/ (last visited 17 Sep 2017); see also U S
Department of State, Public Notice 2237, “Exclusive Economic Zone and
Maritime Boundaries, Notice of Limits”, Federal Regulation, Vol. 60, No.
163, 23 August 1995, p 43825, available at:
https://www gpo gov/fdsys/pkg/FR-1995-08-23/pdf/95-20794 pdf (last
visited 17 Sep 2017)
Figure 4.15Kingman Reef, U.S.
207
regard The location of the boundary was significantly affected
by Australia’s Middleton Reef, located 150 km north of Lord
Howe island and measures 8,9 km by 6,3 km; at high tide only a
small sand cay known as “The Sound”, which measures 100
metres by 70 metres, is above water 342 According to Charney
and Alexander, “France agreed or conceded to give full effect to
this reef as one of Australia’s basepoints”.343 Middleton Reef is
part of Australia’s “New Lord Howe Commonwealth Marine
Reserve” 344
342 Australian Government, Department of the Environment and
Energy, “Elizabeth and Middleton Reefs Ramsar Wetland Ecological
Character Description”, available at:
http://www environment gov au/water/wetlands/publications/elizabeth-andmiddleton-
reefs-ramsar-wetland-ecd (last visited 17 Sep 2017)
343 International Maritime Boundaries, Vol I, Australia-France (New
Caledonia), Rep 5-1, pp 905, 906
344 Australian Government, Department of the Environment and
Energy, “New Lord Howe Commonwealth Marine Reserve”, available at
http://www environment gov au/topics/marine/marine-reserves/temperateeast/
lord-howe (last visited 17 Sep 2017)
Figure 4.16
Middleton Reef, AUSTRALIA
208
4 75 Australia’s EEZ declaration from both Middleton Reef
and Elizabeth Reef, was recognized by New Zealand as part of
their delimitation 345 The EEZs of Australia and New Zealand,
and their respective boundaries are depicted by the following
map:346
345 International Maritime Boundaries, Vol V, Australia-New Zealand,
Rep 5-26, p 3759
346 Land Information New Zealand, “Exclusive Economic Zone &
continental shelf boundaries between New Zealand & Australia”,
available at: http://www linz govt nz/sea/nautical-information/maritimeboundaries/
exclusive-economic-zone-continental-shelf-boundaries-betweennew-
zealand-australia, (last visited 17 Sep 2017)
209
Figure 4.17 210
4 76 New Zealand thus recognizes Australia’s claim to extend
a 200-nautical-mile EEZ from Middleton Reef (discussed
above), and also from Elizabeth Reef, which measures 8,2 km
by 5,5 km; the only part of Elizabeth Reef, which is above water
at high tide is a small sand cay known as “Elizabeth Island” that
measures 400 metres in diameter 347
4 77 The Federated States of Micronesia recognized the
Marshall Islands’ claim to an EEZ extending from Ujelang
Atoll, which affected the boundary between the parties 348
Ujelang Atoll is a small uninhabited feature with a total land
area of 1,74 sq km 349 Ujelang is clearly not a geological rock:
347 Australian Government, Department of the Environment and
Energy, footnote 342 supra
348 International Maritime Boundaries, Vol VI, Federated States of
Micronesia-Marshall Island, Rep 5-28, p 4316
349 Charles Strut University, “Marshall Islands Atoll Information -
Ujelang Atoll”, available at:
http://marshall csu edu au/Marshalls/html/atolls/ujelang html (last visited 17
Sep 2017)
Figure 4.18Elizabeth Reef, AUSTRALIA
211
4 78 In the delimitation treaty between Cook Islands and
Kiribati, the Cook Islands recognised Kiribati’s claim of an EEZ
around Vostok, an uninhabited coral island with a total land
mass of 0,1 sq miles (around 0,25 sq km) 350 Vostok, although
very small, is clearly not a geological rock:
350 International Maritime Boundaries, Vol VII, Rep 5-32, p 4847;
“Vostok Island”, Encyclopaedia Britannica, available at:
https://www britannica com/place/Vostok-Island (last visited 17 Sep 2017)
Figure 4.19
Ujelang Island, MARSHALL ISLANDS
Figure 4.20
Vostok Island, KIRIBATI
212
4 79 The same treaty also recognises the entitlement of Flint
Island, which is about 2,5 miles (4 km) long, about 0,5 mile (0,8
km) wide and has an approximate land area of 1 sq mile (about
2,6 sq km) 351 Although larger in size than Vostok, Flint Island
is also an uninhabited coral island, and clearly not a geological
rock
4 80 France’s Tromelin is, according to French official
documents:
« habitée seulement par des missions
scientifiques ou météorologiques, dépourvue
d’eau potable et balayée par des alizés qui
rendent toute culture impossible, ne peut être
351 United States National Geospatial Intelligence Agency, “Pub. 126,
Sailing Directions (Enroute), Pacific Islands”, p. 43, available at:
https://msi nga mil/MSISiteContent/StaticFiles/NAV_PUBS/SD/Pub126/Pub
126bk pdf (last visited 17 Sep 2017); see also “Flint Island”, Encyclopaedia
Britannica, available at: https://www britannica com/place/Flint-Island (last
visited 17 Sep 2017)
Figure 4.21Flint Island, KIRIBATI
213
abordée que dans des conditions particulièrement
difficiles ».352
4 81 Although it is a very small feature (1,7 km long, 0,7 km
large, and a total land area of 0,85 sq km),353 France proclaimed
an EEZ for Tromelin It is not a geological rock, and the only
ongoing dispute concerns its sovereignty, which is contested by
Mauritius But there is no dispute that Tromelin would be
entitled to an EEZ with its attendant continental shelf of 296,580
sq km
352 French Senate, « Étude d’impact du Projet de Loi autorisant
l’approbation de l’accord-cadre entre le Gouvernement de la République
française et le Gouvernement de la République de Maurice sur la cogestion
économique, scientifique et environnementale relative à l'île de Tromelin et à
ses espaces maritimes environnants », available at:
https://www senat fr/leg/etudes-impact/pjl11-299-ei/pjl11-299-ei html (last
visited 17 Sep 2017)
353 French Government, Decree No 78-146 of 3 February 1978, «
portant création, en application de la loi du 16 juillet 1976, d’une zone
économique exclusive au large des côtes des îles Tromelin, Glorieuses, Juan
de Nova, Europa, et Bassas da India », available at:
https://www legifrance gouv fr/jo_pdf do?id=JORFTEXT000000883905 (last
visited 17 Sep 2017)
Figure 4.22
Tromelin Island, FRANCE
214
4 82 The same is true for Clipperton Island The highest part
of the island is a rock, but the rest is made of sand beaches
forming a thin circle capturing the waters of a lagoon The
emerged feature is very small and uninhabited Nonetheless,
France claimed that it is entitled to an EEZ 354 When Mexico
protested the French EEZ claim, France agreed to allow
Mexican vessels to fish in the waters around Clipperton Island
but has maintained its claim 355
354 French Government, Decree No 78-147 of 3 February 1978
« portant création, en application de la loi du 16 juillet 1976, d’une zone
économique exclusive au large des côtes de l’île de Clipperton », available
at : https://www legifrance gouv fr/jo_pdf do?id=JORFTEXT000000883905
(last visited 17 Sep 2017)
355 Y H Song, see footnote 332 supra, p 76
215
4 83 France’s Matthew Island is no more than 0,68 sq km and
is only partially a rocky feature France claims an EEZ from this
feature which extends for over 432,473 sq km 356
356 French Senate, J -É Antoinette, J Guerriau et R Tuheiava,
« Rapport d’information: Zones économiques exclusives ultramarines : le
moment de vérité », 9 April 2014, p 80, available at:
https://www senat fr/rap/r13-430/r13-4301 pdf (last visited 17 Sep 2017)
See also, Communication from the Government of France to the United
Nations Secretariat, 6 December 2010, p 2, available at:
http://www un org/depts/los/LEGISLATIONANDTREATIES/STATEFILES
/FRA htm (last visited 17 Sep 2017)
Figure 4.24
Clipperton Island, FRANCE
Figure 4.25
Matthew Island, FRANCE
216
4 84 The same holds true for Bassas da India, which is a very
small atoll of 0,2 sq km of dry land According to a document
from the French Senate: “les terres émergées de Bassas da India
représentent 0,2 km2 de superficie et sont quasiment totalement
submergées à marée haute car elles ne culminent qu’à 2,4
mètres d’altitude. Par conséquent, la faune et la flore aérienne
sont totalement absentes et l’île est inhabitable.”357 This
notwithstanding, France claims a 200 nautical mile entitlement
for Bassas de India, of 121,556 sq km 358
357 French Senate, J -É Antoinette, J Guerriau et R Tuheiava,
footnote 356 supra, p 77
358 French Senate, J -É Antoinette, J Guerriau et R Tuheiava,
footnote 356 supra, pp 77-78
Figure 4.26Bassas da India, FRANCE
217
4 85 Kiribati’s McKean Island is a treeless island nearly 0,5
mile (around 0,8 km) round in shape 359 It is ringed by a reef flat,
with a beach rising to five metres above sea level The centre of
the island is depressed, with a shallow, hypersaline, guano-laced
lagoon This small island is certainly not made of “rock”.
Kiribati’s EEZ claim for this island has not been opposed by the
United States 360
4 86 Theva-i-Ra Reef (or Ceva-i-reef, or Conway Reef) is an
atoll type island 450 km southwest of the Fiji Islands, part of the
Republic of Fiji According to U S sources, “(o)n the middle of
the reef is a sand cay, 1 8m high, 0 2 mile long (around
359 United States National Geospatial Intelligence Agency, footnote 351
supra, p 103
360 Treaty between the United States and Kiribati on the Delimitation of
Maritime Boundaries, footnote 336 supra See also R Teiwaki, Management
of Marine Resources in Kiribati, 1988, University of the South Pacific,
Vol 2, No 8, p 86; J R V Prescott and G Boyes, footnote 312 supra, p
38; U S Secretary of State, Letter of submittal of the Treaty between the
United States and Kiribati on the Delimitation of Maritime Boundaries, 28
October 2016, U S Senate, 114th Congress, 2nd Session, Treaty Doc 114-13
Figure 4.27
McKean Island, KIRIBATI
218
0 32 km), and 73m wide.”361 The reef is uninhabited In 1981
Fiji claimed an EEZ for this, not rocky, island 362 In the
maritime delimitation treaty between France and Fiji, full effect
was given to this island, which significantly affected the
boundary location 363
4 87 The positions of the Pacific States with respect to the
Japanese claims of EEZ from Okinotorishima and
Minamitorishima, are illustrative of how States perceive the
distinction between a “rock” and any other “island” under
customary international law Japan has declared an EEZ from
361 United States National Geospatial Intelligence Agency, footnote 351
supra, p 140; see also J R V Prescott and G Boyes, footnote 312 supra, p
28
362 Marine Spaces Act (Chapter 158A), 19 Nov 1981, Fiji Royal
Gazette Supplement, No 41, 27 Nov 1981, available at:
http://www state gov/documents/organization/58567 pdf (last visited 17 Sep
2017)
363 Limits in the Seas, No 101 See also, International Maritime
Boundaries, Vol I, Rep 5-6, pp 995, 997
Figure 4.28Conway Reef, FIJISatellite image ofConway Reef
219
both Okinotorishima and Minamitorishima, two small features in the Pacific Ocean under Japanese sovereignty While China, Taiwan and the Republic of Korea protested Japan’s EEZ declaration for Okinotorishima, their silence with respect to Minamitorishima suggests their acceptance of the claim 364 4 88 Okinotorishima is composed of two small rocks which were covered by concrete in order to prevent their erosion 365 Okinotorishima is clearly a geological “rock” and hence should be considered a “rock” under international law (in case the Court decided to adhere to the size criterion, Okinotorishima is much less than 0,001 sq mile). Japan’s claim is therefore probably based upon the claim that Okinotorishima may sustain economic life China and the Republic of Korea on the other hand, claim that Okinotorishima cannot sustain human habitation or economic life and thus should be deprived of an EEZ 366 This example adds confirmation to the proposition that States consider the standard for the ability to sustain economic life as very low 364 Y Tanaka, The International Law of the Sea, Cambridge University Press, 2015, pp 66-67; Y H Song, footnote 332 supra, pp 691-694 365 Y H Song, footnote 332 supra, pp 691-694 366 Y H Song, footnote 332 supra, p 671 220
Figure 4.29Okinotorishima, JAPANOkinotorishima, JAPAN
4 89 This is how Okinotorishima looks today after it was
covered in concrete:
221
4 90 This is how Okinotorishima looked before it was covered
in concrete:
4 91 In contrast to Okinotorishima, which is a clear geological
“rock” and an extremely tiny feature, Minamitorishima,
although small in size, is considered by States to be entitled to
an EEZ Minamitorishima has no permanent population,
however, it houses “around 30 officials from the Japan
Meteorological Agency, the Maritime Self-Defense Force and
the Japan Coast Guard, which are engaged in observation and
other activities there”; the island also has an airstrip 367 The total
land size of the island is 1,2 sq km
367 Y H Song, footnote 332 supra, p 692
Figure 4.30
Okinotorishima, JAPAN
222
4 92 While China, Taiwan and the Republic of Korea
objected to Japan’s EEZ claim from Okinotorishima, they did
not oppose its claim from Minamitorishima, which is recognized
as having an EEZ These States did not consider
Minamitorishima as a “rock” and thus subject to Article 121 (3)
While Okinotorishima is clearly a feature made of solid rock,
Minamitorishima is an island and it has never been treated as a
“rock”. This demonstrates the discrepancy between what States
consider to be “rocks” and Nicaragua’s purported claim that
Colombia’s islands are “rocks”.
4 93 State practice demonstrates that States only refrained
from claiming or recognising an EEZ, with its attendant
continental shelf, from islands that were geologically
identifiable as “rocks”, i.e features solely made of solid rock
Figure 4.31Minamitorishima, JAPAN
223
By contrast, States declared or recognised EEZs from features that, although small in size, were not geologically a “rock”. 4 94 Professor Bernard H Oxman commented that State practice with respect to Article 121 (3) confirms that whether an island’s EEZ entitlement was recognised was not affected by size or habitability 368 Oxman’s analysis demonstrates that, apart from Rockall, “instances of states refraining from making EEZ or continental shelf claims because of paragraph 3 of Article 121 are not easily ascertained”.369 According to Oxman: “As one might expect, there is overwhelming evidence of the application of the basic principle reflected in paragraph 2 of Article 121 and scant if any evidence that state practice suggests anything more than a widespread (albeit not ubiquitous) tendency to ignore or refrain from applying the exception introduced by paragraph 3 of that article in the establishment of EEZs and continental shelves.”370 4 95 Furthermore, with respect to submissions to the CLCS which include small islands, Oxman suggests that they demonstrate a wide-spread practice of according maritime zones to very small islands: 368 B. H. Oxman, “On Rocks and Maritime Delimitation”, Essays on International Law in Honor of W. Michael Reisman, M H Arsanjani et al. (eds ), Nijhoff, 2010, pp 893, 900-901 (available at the Peace Palace Library) 369 B H Oxman, footnote 368 supra 370 B H Oxman, footnote 368 supra 224
“While much attention has been drawn to
objections by China and the Republic of Korea to
Japan’s submission in respect of Oki-no-Tori
Shima, submissions to the Commission on the
Limits of the Continental Shelf pursuant to
paragraph 8 of Article 76, and the general
absence of objection by other states to those
submissions on grounds of paragraph 3 of Article
121, confirm the prevailing practice of affording
small islands full effect in accordance with the
principle set forth in paragraph 2 of Article 121
of the LOS Convention Small islands, often at
some distance from the mainland, play different
roles in many of these submissions.”371
Because Oxman finds that governments have not been liberal in
the application of Article 121 (3) both to themselves and to other
States, he concludes with respect to the scope of application of
the exclusion in Article 121 (3) that “(t)he exception in
paragraph 3 should be strictly construed The burden of
persuasion should be borne by those advocating its application
The established rule in paragraph 2 of Article 121 should govern
unless it is clearly demonstrated that the exception in paragraph
3 must be applied.”372 In view of predominant State practice, it is
submitted that Nicaragua did not, and could not, fulfil this
burden
4 96 Oxman’s position was shared by Myron H Nordquist
Although Nordquist explored Article 121 (3) from a textual
perspective (and, as such, his approach would not be applicable
to Colombia), he concluded that since Article 121 (3) was an
371 B H Oxman, footnote 368 supra
372 B H Oxman, footnote 368 supra
225
exception to the general principle in Article 121 (2) that islands should be recognised an EEZ and continental shelf, “(t)he application of general accepted guidelines for interpreting treaty text requires one to scrutinize the exception carefully and unless merited, not read the exception too broadly to cut down the general rule Not reading the exception too broadly in this case means recognizing a constructive presumption that a ‘rock’ is an island entitled to the full treatment as land for purposes of maritime entitlement under UNCLOS”.373 4 97 Thus, based upon State practice, Colombia submits that the customary interpretation of Article 121 (3), that is applicable to it, is that under which the term “rock” should be construed restrictively, in the geological sense of the term This is in line with the fact that, as recognized by the Court,374 paragraph 3 is in effect an exception to paragraph 2 and should therefore be interpreted restrictively Islands, as small as they may be, which are not “rocks” in the geological sense, are not subject to the limitation in Article 121 (3) and are thus entitled, under customary international law, to a 200-nautical-mile EEZ with its attendant continental shelf in every direction 373 M H Nordquist, “Textual Interpretation of Article 121 in the UN Convention on the Law of the Sea”, Coexistance, Cooperation and Solidarity, J P Hestermeyer (ed ), Brill, 2012 (available at the Peace Palace Library) 374 2012 Judgment, p 674, para 139 226
(ii) Interpretation of “Which Cannot Sustain Human
Habitation or Economic Life of their Own”
4 98 As further explained below, none of Colombia’s relevant
islands in the Caribbean Sea is a “rock” in the geological sense
and thus is not subject to the limitation in Article 121 (3);
however, should the Court decide to the contrary, Colombia will
now elaborate on the meaning of the requirement of the capacity
to sustain human habitation or economic life
4 99 This condition is based on a presumption of a
potentiality, rather than a contemporary observation: the
operative words are “cannot” and not “does not”. This means
that a “rock” which can potentially sustain either human
habitation or economic life of its own will enjoy full
entitlements, while a “rock” which cannot, will not These two
conditions are alternative, not cumulative The question is
therefore not if the “rock” in fact does sustain, or has ever
sustained, human activities, it is only whether it can or cannot 375
4 100 Like the first criterion of a geological “rock”, this issue
also turns upon relevant State practice Thus, Colombia will first
survey the alternative requirements of either the capability to
sustain human habitation (a) or an economic life of its own (b)
It will then demonstrate that State practice supports an
extremely low standard for fulfilling either requirement (c)
375 See Y Tanaka, footnote 364 supra
227
a. Capability to Sustain Human Habitation 4 101 Authors diverge on the meaning of the capacity to sustain human habitation Some suggest that the question to be answered is not whether human beings can survive on the rock under examination, but if the rock is technically capable of sustaining human habitation To be such, some suggest that the minimum requirement be based on three criteria: whether there is fresh water; whether it is possible to grow food and whether there is material to build houses or shelters of some kind 376 This seems to be the approach taken by the Arbitral Tribunal in Philippines v China 377 More generally, the “habitation test” applied by a part of doctrine focuses on the sole question of fresh water 378 4 102 If a rocky island of a certain size could offer such facilities, it would not be an Article 121 (3) rock Thus, a feature like Rockall, which does not provide fresh water or food, is accepted by the United Kingdom as a typical Article 121 (3) rock As will be demonstrated below, it is clear that State practice does not validate any “habitation test” when it comes to islands, even small ones, which are not rocks 376 G. Xue, “How much can a rock get? A reflection from the Okinotorishima Rocks”, in The Law of the Sea Convention: US Accession and Globalization, M H Nordquist et al (eds ), Martinus Nijhoff Publishers, 2012, p 356 377 South China Sea Arbitration, para 490 378 E D Brown, footnote 281 supra, p 150; S Karagiannis, footnote 365 supra, p 573 228
4 103 Gidel wrote that an island must have the natural
conditions allowing the stable residence of organized groups of
human beings 379 Jon M Van Dyke and Robert A Brooks
contend that “only if stable communities of people live on the
island and use the surrounding ocean areas, the island can
generate an EEZ or a continental shelf.”380 They wrote that:
“from the perspective of history, if a rock or reef cannot sustain
human habitation permanently for 50 people, then it cannot
claim an EEZ or a continental shelf.”381 Many of these views
seem based on nothing more than ipse dixit
4 104 On the other hand, after an examination of the travaux, J
L Charney denied that the need for habitation must be
permanent 382 Indeed, neither the word “permanent” nor the
word “stable” are used in Article 121 (3) Oude Elferink,
Counsel for Nicaragua, writes that: “(i)n any case, there are no
indications that there was a consensus at either the Third United
Nations Conference on the Law of the Sea or in subsequent
practice that ‘human habitation’ has to be interpreted in these
broad terms.”383
379 G Gidel, Le Droit International Public de la Mer : le temps de paix,
Vol III, Mellottée, 1934
380 J. Van Dyke and R. A. Brooks, “Uninhabited Islands: Their Impact
on the Ownership of the Oceans’ Resources”, Ocean Development and
International Law, Vol. 12, 1983, p 286
381 J. Van Dyke and D. Bennett, “Islands and the Delimitation of Ocean
Space in the South China Sea”, Ocean Yearbook, Vol 10, 1993, p 79
382 J L Charney, footnote 291 supra, p 868
383 G. Oude Elferink, “The Islands in the South China Sea: How Does
Their Presence Limit the Extent of the High Seas and the Area and the
Maritime Zones of the Mainland Coasts “, Ocean Development and
International Law, Vol 32, 2001, p 174
229
4 105 In any event, the habitability criterion does not require that the rock must be currently inhabited, but that habitation is possible The way of assessing such ability to sustain human habitation could be by looking at past and present habitation, but other means are possible As to whether this human presence has to be permanent or may be intermittent, e.g. stops by fishermen, one doctrinal position has argued that habitability must mean more than occasional shelter to a few 384 4 106 Some scholars assert that the requirement of habitability refers to a civilian population and that “soldiers and lighthouse keepers are not sufficient”.385 But other scholars argue that an island should not be automatically disqualified from generating an EEZ and a continental shelf simply because only scientific personnel inhabit it; rather, it should be demonstrated that the island cannot sustain other kinds of habitation 386 On this particular issue, the Court said that Pedra Branca, a definitively geological rock, on which there has been a lighthouse for a long time, is an “uninhabited and uninhabitable island”.387 384 M. Gjetnes, “The Spratlys: are they rocks or islands?”, Ocean Development and International Law, Vol 32, 2001, p 196 385 M Gjetnes, footnote 384 supra, p 195 See also the position of Turkey during the travaux préparatoires, quoted by Kolb, footnote 289 supra, p 891 386 M Gjetnes, footnote 384 supra, p 196 387 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p 36, para 66 230
4 107 But it should be stressed that when States base their
claim that a rock generates entitlements on the mere presence of
a lighthouse and on the people who operate it, they do not base
their claim on a contention that such rock is capable of
sustaining human habitation, but on the demonstration that it
hosts an economic activity and that in the future it may be
inhabited
4 108 The question arises as to the number of inhabitants that
the feature should be able to sustain Different authors argue that
if a rock can sustain a “stable community” of at least fifty
people, then it meets the requirement of habitability 388 But this
is a doctrinal invention and has never been considered as
relevant by courts Even the Arbitral Tribunal in Philippines v.
China was cautious in this respect, suggesting that it should be
388 J Van Dyke and D Benett, footnote 381 supra, p 79
Figure 4.32Pedra Branca, SINGAPORE
231
more than one person, without further explanation 389 4 109 In any case, it is obvious that fresh water can be produced anywhere via desalinization, food can be grown on artificial elevated land, and material for permanent habitation can also be brought to any feature by human intervention As rightly said by Karagiannis “quasiment tout rocher peut finir par se prêter à l’habitation humaine si un gouvernement décide de tout faire pour qu’il en soit ainsi.”390 Thus, if at a certain period, a rock showed no capacity to sustain human habitation, it is possible that, later, this situation changes and it could acquire such capacity b. Capability to Sustain Economic Life on Its Own 4 110 This second criterion is alternative, not cumulative J L Charney explained that it is only necessary to prove that the island can sustain human habitation or economic life, not both 391 This is also the position of G Oude Elferink 392 4 111 Moreover, B Kwiatkowska and A H A Soons observed in this context “that an increasing number of ocean law and policy commentators alleged that a lighthouse or other aid to navigation built on an island gives the island an economic life of 389 South China Sea Arbitration, para 491 390 S Karagiannis, footnote 365 supra, p 575 391 J L Charney, footnote 291 supra, p 871 392 G Oude Elferink, footnote 383 supra, p 174 232
its own due to its value to shipping”.393
4 112 As will be further elaborated below, Professor Jonathan
L Hafetz proposed that establishing a preservation of maritime
environment around an island may demonstrate that the island
can sustain an economic life
c. State Practice with Respect to the Capability to Sustain
either Human Habitation or Economic Life
4 113 Inasmuch as the rule applicable to Colombia is of a
customary nature, State practice is particularly significant for
determining what is required In this regard, the practice
explained below demonstrates that: (1) the standard of “human
habitation or economic life of its own” does not apply to
features which are not rocks in the geological sense; (2) if it is
applied to rocks in the geological sense, the standard of “human
habitation or economic life” is extremely low
4 114 The United States, for instance, contends that all its
features are capable of sustaining human habitation, even the
smallest 394 As mentioned above, the United States declared an
EEZ from Howland Island, which has no lagoon, seemingly no
natural fresh water resources, no economic activity and it is only
393 B. Kwiatkowska and A.H.A. Soons, “Entitlement to Maritime Areas
of Rocks Which Cannot Sustain Human habitation or Economic Life of Their
Own”, Netherlands Yearbook of International Law, Vol 21, 1990, pp 167-
168, cited in R. Beckman and C. Schofield, “Moving beyond Disputes over
Islands Sovereignty: ICJ Decision Sets Stage for Maritime Boundary
Delimitation in the Singapore Strait”, Ocean Development and International
Law, Vol 40, 2009, p 10
394 See J van Dyke et al., footnote 279 supra, pp 425-494
233
visited every two years by the U S Fish and Wildlife Service 4 115 Similarly, the United States declared an EEZ for Kingman Reef which has no terrestrial vegetation, no natural resources and supports no economic activity, besides abundant and diverse marine fauna and flora 4 116 Both EEZ assertions by the United States are probably based upon the proposition that the islands are not geological rocks and thus not subject to the customary limitation based upon Article 121 (3) 4 117 As recalled above, the French Senate commented on Tromelin that: « l’île de Tromelin, dont les dimensions n’excèdent pas 1,5 km de longueur sur 0,7 km de largeur et dont l’altitude maximum est de 7 mètres, est habitée uniquement par des missions scientifiques ou météorologiques, car dépourvue d’eau potable et balayée par des alizés qui rendent toute culture impossible et ne peut être abordée que dans des conditions difficiles. La partie terrestre de l’îlot ne présente donc pas d’intérêt économique. Elle abrite une station météorologique et les équipes chargées de l’entretenir, station que Météo France souhaite automatiser.»395 395 French Senate, « Rapport n° 143 (2012-2013) de M. Gilbert Roger, fait au nom de la commission des affaires étrangères, de la défense et des forces armées, sur le projet de loi autorisant l’approbation de l’accord-cadre entre le Gouvernement de la République française et le Gouvernement de la République de Maurice sur la cogestion économique, scientifique et environnementale relative à l’île de Tromelin et à ses espaces maritimes 234
4 118 Yet, France claims an EEZ for this feature, meaning that
France either considers that it is not a “rocher” (rock), in the
geological sense, or that the habitation test is met
4 119 Aves Island, which is recognized by certain third States
as having an EEZ with its attendant continental shelf, and
consists mostly of sand and vegetation, has no supply of fresh
water other than rainfall and has never been inhabited From
1878 to 1912 it was occupied intermittently by a U S company
under the U S Guano Islands Act Venezuela asserted its claim
to the island in 1895 (based on an 1865 arbitration agreement
with the Netherlands) In 1978, a permanent scientific station
was established, staffed by scientists and protected by Naval
personnel Aves Island again demonstrates that the “habitation
or economic life” test is very low.
environnants », p 6, available at: https://www senat fr/rap/l12-143/l12-
1431 pdf (last visited 17 Sep 2017)
235
4 120 Brazil has claimed entitlements for Saint Peter and Saint
Paul Rocks, which are clearly rocks (around 0,0159 sq km) in
the geological sense
4 121 It has been reported that the Brazilian Navy inaugurated
in 1998 the Saint Peter and Saint Paul Archipelago Scientific
Station 396 The station is manned with four researchers, who are
rotated in and out every 15 days 397 There is also a 6 metres high
lighthouse 398
396 C. Engel de Alvarez and D. Viania, “The Research Station of St
Peter and St Paul Archipelago”, in Saint Peter and Saint Paul Archipelago,
Brazil in the mid-Atlantic, Vedas Ediçoes, 2017, p 128, available at:
https://www mar mil br/secirm/publicacoes/livros/arquipelagospsp-ingles pdf
(last visited 17 Sep 2017)
397 L. Ferraz, “Expedição ao Arquipélago de São Pedro e São Paulo e
Fernando de Noronha”, 19 April 2017, Marinha do Brasil, available at:
www marinha mil br/content/expedicao-ao-arquipelago-de-sao-pedro-e-saopaulo-
e-fernando-de-noronha (last visited 17 Sep 2017)
398 University of North Carolina, “Lighthouses of Brazil: Atlantic
Islands”, available at: www unc edu/~rowlett/lighthouse/bris htm (last
visited 17 Sep 2017)
Figure 4.34
Saint Peter & Paul Rocks, BRAZIL
236
Lighthouse and radio towerHousing installationSAINT PETER & PAUL ROCKS, BRAZILFigure 4.35
237
4 122 Brazil presented a submission before the CLCS claiming that these features are entitled to an OCS 399 The United States subsequently sent a note to the CLCS regarding Brazil’s submission, highlighting only the issues of sediment thickness and the Victoria-Trindade feature;400 neither the United States, nor any other State contested the right of Brazil to claim entitlements for Saint Peter and Paul Rocks 401 This practice once again points to an extremely low requirement of human habitation or economic life with respect to Article 121 (3) and the implementation of the analogue rule of customary international law 4 123 As mentioned above, Mexico declared an EEZ from Roca Partida, clearly a geological rock. Mexico’s position appears to be based upon the proposition that Roca Partida is a rock which may sustain human habitation or economic life of its own 4 124 This State practice demonstrates that either these States did not consider these features as geological rocks, or that they considered the features to be capable of sustaining economic life 399 See “Submission by Brazil to the Commission on the Limits of the Continental Shelf (CLCS) on the Outer limits of the continental shelf beyond 200 nautical miles from the baselines” and “Executive Summary”, p. 8, available at: www un org/depts/los/clcs_new/submissions_files/bra04/bra_exec_sum pdf (last visited 17 Sep 2017) 400 Letter dated 25 August 2004 from the Permanent Mission of the United States to the Legal Counsel of the United Nations regarding the Brazilian Submission to the CLCS, available at: http://www un org/depts/los/clcs_new/submissions_files/bra04/clcs_02_2004_los_usatext pdf (last visited 17 Sep 2017) 401 Y Song, footnote 332 supra, p 77 238
or human habitation Regardless of the reason, this practice
demonstrates that small features were recognized as having EEZ
with its attendant continental shelf and that the standards for a
rock and human habitation or economic life are extremely low
in customary international law
4 125 Colombia thus submits that State practice demonstrates
that: (i) features that are islands but not rocks in the geological
sense are entitled to an EEZ with its attendant continental shelf;
and (ii) in any event, the human habitation and economic life
test, if it applies, is very low
(b) General overview on Colombia’s Islands
4 126 The Court is already familiar with Colombia’s islands
since it unanimously decided in 2012 that Colombia has
sovereignty over the islands of Roncador, Serrana, Serranilla,
and Bajo Nuevo, among others These are naturally-formed
islands and clearly not rocks
4 127 What is important to point out at this juncture is that
these islands are part of the territorial, cultural, environmental
and political unity of the San Andrés Archipelago Hence, they
are considered and used by the inhabitants of the Archipelago as
pertaining to a unit. As a Raizal fisherman explains: “I see the
Archipelago as one single territory I do not see it detached with
Providencia on one side, the northern cays (Roncador, Serrana,
Serranilla and Bajo Nuevo) on another side, San Andrés on a
239
different side and the southern cays on another side No For me is just the same thing.”402 4 128 As a result of the territorial, cultural, environmental and political unity of the San Andrés Archipelago, the inhabitants of the islands of San Andrés, Providencia and Santa Catalina, since time immemorial, have been inextricably linked to the other islands, in particular Roncador, Serrana, Serranilla and Bajo Nuevo 403 4 129 Although these islands, as of today, are not permanently inhabited, as a matter of national policy,404 by people other than the Naval officers stationed there, the inhabitants of the Archipelago – and among them, especially the Raizales – have had for centuries a constant periodic presence there for purposes of exploiting the abundant natural resources, such as guano, fish, spiny lobster, queen conch, turtles, coconuts and seabird eggs As skilled sailors, they frequently navigate to these islands from San Andrés and Providencia for extended periods 405 This traditional practice has continued over the years and persists in present times. Examples of the Roncador’s Visitors Log support 402 Affidavit by Mr Milford Danley McKeller Hudgson (Annex 34) 403 See Annexes 34 to 42 404 In this regard, Law 1 of 1972 “Whereby a Special Statute for the Archipelago of San Andrés and Providencia is issued” establishes that for reasons of national sovereignty the islands of Roncador, Serrana, Serranilla and Bajo Nuevo, among others, are considered of public utility, which, accordingly, belong to the State and are inalienable (the State cannot transfer its property rights in any way) and imprescriptible (no inhabitant can acquire property rights by means of prescription) See Annex 2 405 See Annexes 34 to 42 240
such regular visits 406 Similarly, commercial fishing vessels from
San Andrés also visit Roncador, Serrana, Serranilla and Bajo
Nuevo with frequency and stay there for considerable periods of
time 407 As a result, in these islands there is a permanent rotating
human presence all year long
4 130 The fact that the islands of Roncador, Serrana, Serranilla
and Bajo Nuevo are an integral part of the San Andrés
Archipelago408 and that there has been constant and periodic
presence of the Raizales there, has long been recognized by
Colombian authorities For instance, as early as 1934 a Report
of the Colombian Senate’s Special Commission in relation to the
Cays of Roncador and Quitasueño noted that:
“Geographically, the cays of Roncador and
Quitasueño and la Serrana can and must be
considered as an integral part of the Archipelago
of San Andrés and Providencia The latter lands
are those which are closer to the islets in
question and the natives of our archipelago are
those who, since immemorial times, have
exercised acts of dominion and possession over
them, consisting mainly of turtle and tortoise
fishing.”409
406 National Navy of Colombia, Selected Entries in the Report Book on
Motor Vessels, Advanced Navy Detachment # 22 “Roncador” (Annex 10).
407 See Annexes 11 to 15
408 It was also what other States considered, as found by the Court in its
2012 Judgment, p 660, para 95
409 Colombian Senate, “Report of Special Commission that studied the
memorial of Mr Ernesto Restrepo Gaviria, in relation to the Cays of
Roncador and Quitasueño, 16 November 1934”, Territorial and Maritime
Dispute, Counter-Memorial of the Republic of Colombia, Volume II A,
Annex 118
241
4 131 The historic presence of the Raizales in the islands of Roncador, Serrana, Serranilla and Bajo Nuevo is well documented For instance, in 1941, while conducting the Fifth George Vanderbilt Expedition, the famous ornithologists James Bond and Rodolphe Meyer de Schauensee landed in Serranilla and found that “fishermen with their families were living there for the purpose of catching turtles as well as gathering tern eggs and guano.”410 4 132 The constant and periodic presence of the Raizales in the islands of the Archipelago such as Roncador, Serrana, Serranilla and Bajo Nuevo does not conform to the Western lifestyle, but rather with the Raizal traditions, customs and idiosyncrasies developed by these populations for centuries Due to their historical ties to the sea, the Raizal fishermen’s lifestyle includes spending several months a year in Roncador, Serrana, Serranilla and Bajo Nuevo – not enduring “a night or two on their shores” as Nicaragua put it411 – fishing, cooking on bonfires, collecting rainwater or well water for their basic needs, using natural herbs as Lavinda for tea or infusions and coconut as the base of cooking, among others Furthermore, graves can be found in the islands 412 The Raizales integration of Roncador, Serrana, Serranilla and Bajo Nuevo cays as inherent to their way of life 410 J. Bond and R. Meyer de Schauensee, “The Birds”, The Academy of Natural Sciences of Philadelphia, Monographs, Number 6, Results of the Fifth George Vanderbilt Expedition (1941), Wickersham Printing Company, 1947, p 10 (Annex 47) 411 Territorial and Maritime Dispute, Public Sitting 1 May 2012 CR 2012/15, p 31, para 82 (Lowe) 412 Affidavit by Mr Artimas Alcides Britton Davis (Annex 36) 242
may, to a certain extent, be compared to the “nomad’s way of
life”, which created “legal ties” between nomadic tribes and
certain uninhabited territories, as described by the Court in the
Western Sahara advisory opinion 413
4 133 Due to the dependence of the Raizal fishermen for their
subsistence on the natural resources of the islands – like turtles
and seabirds – and the delicate ecosystem balance that could be
jeopardized if significant human settlements were developed in
the islands, the Raizales have never permanently settled in
Roncador, Serrana, Serranilla or Bajo Nuevo, although it can be
said that they have been and continue to be permanently
inhabited on a rotating basis
4 134 Turning to the assessment of economic life, due regard
must be given to environmental protection measures Professor
Jonathan L Hafetz suggests that establishing a preservation of
maritime environment around a feature can serve to demonstrate
an economic life. He states that the “(p)reservation of the marine
environment through devices like MACPAs (Marine and
Coastal Protected Areas) can bring net economic benefits and
sustainable development, thus demonstrating why marine
conservation can constitute an economic use within the meaning
of Article 121 (3).”414 In support of this position, based upon the
413 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp 64-65,
para 152
414 J. L. Hafetz, “Fostering Protection of the Marine Environment and
Economic Development: Article 121(3) of the Third Law of the Sea
Convention”, American University International Law Review, Vol 15, 2000,
pp 626-627
243
objectives of Article 121 (3), he brings as an illustrative example: “a State that establishes a marine park or protected area around a pristine coral reef should not be penalized by being forced to forego the expansion of its maritime jurisdiction that it would likely have gained from pursuing a more traditional form of economic development Instead such States should be given an incentive to preserve the marine environment where such preservation is also economically beneficial and thus consistent with the ‘economic life’ criterion of Article 121 (3).”415 4 135 Professor Hafetz further explains that recognizing maritime preservation zones as sources of economic life is consistent with the purpose of UNCLOS and is good policy: “Measures to protect the marine environment can yield economic benefits in various forms, including increased fishing stocks, tourist spending, products from coral reefs, and health benefits from reduced pollution Such measures can and should satisfy the ‘economic life of their own’ requirement of Article 121(3), thus enabling a ‘rock’ to achieve the formal legal status of an ‘island’ and thereby potentially extending a coastal State's continental shelf and EEZ rights This interpretation of Article 121(3) is consistent with UNCLOS III's text, UNCLOS III's objects and aims, subsequent developments in international law, and the public policy of preserving the marine environment where it is economically beneficial to do so.”416 415 J L Hafetz, footnote 414 supra, p 627 416 J L Hafetz, footnote 414 supra, p 627 244
4 136 In this regard, it is worth highlighting the unique
environmental characteristics of the Archipelago – including the
invaluable environmental resources and services of Roncador,
Serrana, Serranilla and Bajo Nuevo – which have led to the
adoption of different protection measures by the Colombian
government
4 137 For instance, in 1996 the Colombian Ministry of
Environment issued Resolution No 1426 which declared the
San Andrés Archipelago – including, of course, the islands of
Roncador, Serrana, Serranilla and Bajo Nuevo – as a Special
Management Area, due to the remarkably high productivity and
biodiversity of its ecosystem and the need to “ensure the
perpetuation of its natural resources and cultural values, the
healthy environment for its inhabitants and the continued
availability of resources”.417
4 138 Thus, the management and protection of the environment
and the renewable resources in the Special Management Area
were entrusted to the Ministry of Environment and the
Corporation for the Sustainable Development of the Archipelago
of San Andrés, Providencia and Santa Catalina (CORALINA)
Their powers and duties included, for instance, protecting the
environment by “regulating the activities that are carried out
within the area” and “regulating land use according to its
417 Ministry of Environment, Resolution Number 1426 of 1996,
“Whereby the Special Management Area ‘The Corals’ of the Archipelago of
San Andrés, Providencia and Santa Catalina is reserved, its boundaries are
marked out and it is declared”, Excerpts from the Reasoning and Articles 1
and 2 (Annex 3)
245
characteristics and potential”.418 4 139 Furthermore, in 2000, UNESCO declared the ecosystem of the San Andrés Archipelago as the Seaflower Biosphere Reserve under its Man and the Biosphere (MAB) Program In this regard, it has been noted that “The Seaflower Biosphere Reserve houses important ecosystems such as tropical dry forest, mangrove forests, seagrass meadows or seagrass beds, soft bottoms and coralline sand beaches, which are very well preserved (Taylor et al , 2011) Likewise, it has more than 77% of the shallow coralline areas of Colombia (Invemar 2005, 2009, Coralina-Invemar 2012), the world’s third biggest coral reef, deep ecosystems (including deep corals), key species, great richness and diversity of fish, corals, sponges, gorgonacea, macroalgae, queen conch, lobsters, birds, reptiles, insects, among others, which provide countless ecosystem services such as food, coastal protection, recreation, etc (Conservation International 2008, Burke et al , 2008).”419 4 140 Then, in 2005, the Ministry of Environment, Housing and Territorial Development of Colombia issued Resolution No 107 declaring a zone within the Archipelago (comprising, among others, the cays of Roncador and Serrana) as the Seaflower Marine Protected Area, given the importance of the Archipelago “due to its ecosystems and resources of strategic 418 Ministry of Environment, Resolution Number 1426 of 1996, Article 2 (Annex 3) 419 Colombian Ocean Commission, “Contributions to the Knowledge of the Seaflower Biosphere Reserve”, Excerpts, 2015, p. 15 (Annex 16). 246
value that provide environmental goods and services at the base
of the sustainable development and preservation of the country’s
environmental heritage”.420
4 141 In this context, the Colombian government, through its
national and local authorities, has progressively established a
sustainable development model aimed at the rational use of
those resources and services, as well as their conservation for
future generations
4 142 In fact, for decades the authorities and inhabitants of the
Archipelago have been fully aware of these environmental
constraints and have structured their activities around the need
for environmental sustainability and the development of
planning instruments of administrative units like the
Archipelago Department of San Andrés on one hand and the
Municipality of Providencia on the other 421
4 143 This approach is reflected in a series of political, legal
and technical instruments, which include limitations on the
420 Ministry of Environment, Housing and Territorial Development,
Resolution number 107 of 2005, “Whereby a Marine Protected Area is
declared and other provisions are enacted”, Preamble (Annex 4)
421 See for example: Strategic Line of Environmental and Cultural
Sustainable Development in the Municipal Agreement No 007 of 2012 (May
28), “Through which the Municipal Development Plan of Providencia and
Santa Catalina Islands 2012-2015 ‘Opportunities for all’ is adopted”;
Strategic Line of Economic Development and Environmental Sustainability
in the Municipal Agreement No. 005 of 2008 (May 28), “Through which the
Municipal Development Plan of Providencia and Santa Catalina Islands
2008-2011 ‘Opportunities for all’ is adopted”; Environmental Objectives in
Decree No 325 of 2003 (November 18) Land Use Plan of San Andrés 2003-
2020
247
exploitation of certain resources and restrictions to the marine and land use As an example, for decades the environmental authorities in the Archipelago have imposed fishing bans in the waters surrounding Roncador, Serrana, Serranilla and Bajo Nuevo in order to protect species such as spiny lobster and queen conch; and have entirely banned turtle fishing and the use of autonomous and semi-autonomous diving equipment 422 4 144 In 1968, the Board of Directors of the Colombian Institute for Agrarian Reform (INCORA) issued Resolution No 206,423 which declared Roncador, Serrana, Serranilla and Bajo Nuevo – among other features of the Archipelago – as “special reserve zones, with the purpose of preserving the flora, fauna, lake levels, creeks and natural scenic beauties”,424 establishing that within these “intangible preservation zones”, it was forbidden to “occupy the land”, as well as engage in “all kinds 422 See for example: Board of Directors of the National Institute for the Renewable Natural Resources and the Environment (INDERENA), Agreement No. 0085 of 1 December 1988 “Whereby regulatory measures for the fishing activities in the Archipelago of San Andrés and Providencia and especially in its Cays and Banks of Roncador, Serrana and Quitasueño are established”; and Agreement No. 0017 of 8 May 1990 “Whereby regulatory measures for the fishing activities in the Archipelago of San Andrés and Providencia and especially in the area of the Vásquez Saccio Treaty 1972 are established”. Further evidence of these fishing bans and regulations can be found in Colombia’s Counter-Memorial in Territorial and Maritime Dispute, Vol II B, Appendix 5 (Licensing of foreign fishing vessels in the San Andrés Archipelago, pp 74, 75, 79, 90, 97, 111) and Appendix 6 (Operation and permanence of United States fishing vessels in the cays of Roncador, Quitasueño and Serrana, pp 127, 131, 134) 423 Colombian Institute for Agrarian Reform, Resolution Number 206 of 1968, “Whereby certain areas from the Archipelago of San Andrés and Providencia are removed from the territorial reserve of the State and certain sectors therein are declared as special reserves” (Annex 5). 424 Colombian Institute for Agrarian Reform, footnote 423 supra, Article 3 248
of activity in industry, cattle or agriculture”.425
4 145 In 2005, the Board of Directors of CORALINA, the
environmental authority of the Archipelago, issued Agreement
No 025, which established the internal zoning and regulation of
uses in the Seaflower Marine Protected Area Regarding the
islands of Roncador and Serrana, they are defined as a Special
Use Zone, which means that “the degree of human intervention
will be restricted to activities such as research, monitoring,
environmental education, ecotourism, low impact recreation,
anchorage, access channel, sustainable fishing, among others”.426
4 146 The establishment of these types of restrictions intended
to preserve the environment of the Archipelago is common In
fact, the whole Archipelago, including the islands of San
Andrés, Providencia and Santa Catalina, are subject to a special
legal regime, expressly provided for in the Colombian
Constitution 427 This regime includes restriction and regulation
of the rights of movement and residence in the Archipelago,
considering that it presents “a high index of demographic
density which has made the development of the human
communities on the islands difficult” and that “the natural and
425 Colombian Institute for Agrarian Reform, footnote 423 supra,
Article 5
426 Corporation for the Sustainable Development of the Archipelago of
San Andrés, Providencia and Santa Catalina (CORALINA), Agreement No
025 of 2005, “Whereby the Marine Protected Area of the Seaflower
Biosphere Reserve is internally zoned, and the General Regulatory
Framework of Uses and other provisions are enacted”, Article 1 and Annexes
7 and 8 (Annex 6)
427 Republic of Colombia, Political Constitution, 1991, Article 310
(Annex 7)
249
environmental resources of the Archipelago are endangered, making it necessary to adopt immediate measures to avoid irreversible damage to the ecosystem.”428 In this regard, the exercise of special functions for controlling population density, regulating land use and preserving the environment were entrusted to the Archipelago Department429 and a special fishing regime has also been established 430 4 147 Clearly, the protection measures adopted by the Colombian Government have been of the utmost importance in preserving the environment of the Archipelago In this regard, it has been noted that due to these conditions, the Seaflower Marine Protected Area is a “remarkable example of reef integrity” and “perhaps among the unique places within the Caribbean that can be preserved for its natural values and in the future, have the opportunity to be managed as an exceptional example of sustainable development”.431 4 148 Thus, although Roncador, Serrana, Serranilla and Bajo Nuevo are capable of sustaining both human habitation and an 428 Presidential Decree Number 2762 of 1991, “Whereby measures are adopted to control the population density in the Archipelago Department of San Andrés, Providencia and Santa Catalina” (Annex 8). 429 Law 47 of 1993, “Whereby special rules are laid down for the organization and operation of the Archipelago Department of San Andrés, Providencia and Santa Catalina”, Article 4 (Annex 9). 430 See Law 915 of 2004, “Whereby the Frontier Statute for Economic and Social Development of the Archipelago of San Andrés, Providencia and Santa Catalina is established”. 431 M. C. Prada Triana, “Comparative Study of a Section of the Seaflower MPA as Potential World Heritage Site”, Corporación para el Desarrollo Sostenible del Archipiélago de San Andrés, Providencia y Santa Catalina (CORALINA), 2009, pp 18 and 30 (Annex 48) 250
economic life of their own, legal and environmental concerns
have barred any eventual permanent human settlement in them
4 149 In any event, as will be evident from the analysis below,
none of these islands qualifies as a geological rock under
customary international law and thus none is subject to the
limitation represented in Article 121 (3)
(c) Roncador
(i) Relevant Facts
4 150 Roncador Cay is the largest island in the eponymous
atoll, which is pear-shaped and located on a bank bordered by
the 200-metre isobath, over the top of the Cunas Ridge The
atoll is located some 75 nautical miles east of the island of
Providencia and 45 nautical miles off Serrana It is 15 km long
in a northwest to southeast trend, reaching maximum amplitude
of about 7 km and a broad perimeter of 24 km This atoll has a
total area, including the lagoon, of about 20 sq km There are
three islands on the rim of the atoll: Roncador Cay, Middle Cay
and South Cay
251
SATELLITE IMAGE OF
RONCADOR ATOLL
Excerpt: Inset “C” from original chart
U.S. NAVAL CHART 1374
(12th Ed., July 1919)
Figure 4.36
252
4 151 Roncador Cay is located in the northwest border of the
atoll It is some 550 metres long and 300 metres wide and about
4,5 metres above sea level for a total land area of about 0,07 sq
km 432 There is a small lagoon of shallow water in the north of
the Cay, which is a natural reservoir for migratory birds and
other species Roncador Cay is obviously an island, not a rock
4 152 The vegetation of Roncador Cay is composed of bushes,
thickets and palm trees It has a well-preserved coral formation
and varied fauna, such as angelfish, starfish, barracudas, sharks,
dolphins and numerous other species As mentioned before, this
flora and fauna is under the protection of Colombian agencies
charged with the preservation of the environment
432 2012 Judgment, p 640, para 24
253
4 153 Roncador Cay is constantly visited by fishermen coming
from San Andrés, Providencia and Santa Catalina, who have
traditionally engaged in artisanal fishing and who stay there for
considerable periods of time It has houses and shelters, some of
them recent and some others partly ruined Furthermore, there
are facilities for marine research and for a detachment of the
RONCADOR CAY
Figure 4.37
254
Colombian Navy and Coastguard that operates in the island
With speedboats, a helicopter, and naval support, this unit
carries out tasks against proscribed fishing activities, illicit drugtrafficking,
as well as search and rescue operations
RONCADOR CAYFigure 4.38
255
4 154 The Cay has a heliport, solar panels, a fuel plant, a water
well, rain water reserve tanks and a sewage water recycling
plant It also has a 79 feet high lighthouse that has been
operating since 1978, providing safety to maritime commerce
The lighthouse stands on the northernmost end of the reef and its
white light flashes every 11 seconds Moreover, Colombia has
Figure 4.39
RONCADOR CAY DETACHMENT
256
installed Information and Communications Technology (ICT)
facilities in Roncador. Indeed, since January 2015 a “Vive
Digital” Kiosk has been operating there, giving fishermen and
Naval officers permanent access to internet and telephone
communication through satellite technology, as well as printing,
scanning and copying services This kiosk has high consumption
rates of internet and telephone, demonstrating that human
activity on this island is important The data from February to
April 2017 are as follows:
“VIVE DIGITAL” KIOSK IN RONCADOR
February Downloaded Gigabytes 223
March Downloaded Gigabytes 191
April Downloaded Gigabytes 215
TOTAL INTERNET TRAFFIC (IN GIGABYTES) 630
February Hours on the phone 5
March Hours on the phone 24
April Hours on the phone 23
TOTAL HOURS ON THE PHONE 52
257
4 155 Regarding human habitation in Roncador, Raizal
fishermen who visit the island consider that:
“It is possible to live in the cays. If I decide to
go and live in one cay I would choose
Roncador, my favourite cay, because the
Figure 4.40
INSTALLATIONS ON RONCADOR CAY
258
fishing bank is close and it is very productive,
full of fish You can catch queen conch nearby
the cay You will not starve You bring your
nylon to fish and you can find fish right there
at the seashore Besides, the island has many
coconut palm trees full of coconuts.”433
(ii) Roncador is an Island, not a Geological “Rock”
4 156 Roncador Cay is obviously not a geological rock
comparable to Rockall or Rocas Alijos:
433 Affidavit by Mr Julio Eusebio Robinson Hawkins (Annex 37)
RONCADOR CAY
ROCKALL ROCAS ALIJOS
Figure 4.41
RONCADOR CAY
ROCKALL ROCAS ALIJOS
Figure 4.41
259
4 157 Moreover, Roncador Cay has been considered by foreign States as an island of a certain importance for a long time Indeed, other States have in the past requested the Colombian Government’s agreement to post consular officials in Colombian cities, whose jurisdiction would include not only San Andrés and Providencia but also Roncador Such was the case of the German Empire in 1913 when its Vice-Consul was recognized as accredited in Cartagena, with jurisdiction over the islands of San Andrés, Providencia and Roncador, by Decree number 1496, dated 23 May 1913 434 After 1913, the German Government continued to accredit its consular agents with jurisdiction extending to Roncador Thus in 1937, it requested again the Colombian Government’s agreement to appoint a Consul whose jurisdiction would include San Andrés, Providencia and Roncador The Colombian President approved the request 435 Clearly, a foreign State would not request a consul to be accredited over another State’s rock 4 158 Thus, even if Roncador was found to be a geological rock – which it is obviously not – it would still have the capacity to sustain human habitation or economic life of its own, as demonstrated by the facts recalled above, as well as the long standing and current use made of this island 434 Presidential Decree Number 1496 of 23 May 1913 Territorial and Maritime Dispute, Counter-Memorial of the Republic of Colombia, Volume IIA, Annex 94 435 Ministry of Foreign Affairs, Executive Resolution Number 90 of 1937 Territorial and Maritime Dispute, Counter-Memorial of Colombia, Volume IIA, Annex 119 260
(iii) The Maritime Entitlement of Roncador
4 159 Roncador thus generates a 200-nautical-mile ipso jure
EEZ, with its attendant continental shelf, as follows:
261
(d) Serrana (i) Relevant Facts 4 160 Serrana Cay is the largest island on the eponymous atoll, which extends for 25 km in a northeast to southwest trend, reaching maximum amplitude of about 23 km and a broad perimeter of 83 km The atoll includes a shallow-water lagoon and has a total area of 237 sq km There are several islands on the rim of the atoll: Serrana Cay (also known as Southwest Cay), Triangle Cay, Little Cay, Anchor Cay, East Cay, North Cay, Northwest Cay, Sand Cay and Sunny Cay 262
SATELLITE IMAGE OF SERRANA ATOLLU.S. NAVAL OCEANOGRAPHIC OFFICE CHART No. 137412th Ed., 1919Figure 4.43
263
4 161 As acknowledged by the Court in 2012, Serrana Cay, the
largest island in the atoll, is about 1,000 metre long and 400
metre wide (with a total land mass of about 0,26 sq km) 436 It is
covered by grass, coconut palms and stunted brushwood, some
10 metres high Serrana is located some 45 nautical miles north
of Roncador and 80 nautical miles northeast of Providencia As
noted earlier, the Cay is constantly visited by fishermen coming
from San Andrés, Providencia and Santa Catalina, who have
traditionally engaged in artisanal fishing and stay there for
considerable periods of time Between March and August turtle
fishermen used to come from those islands, but now turtle catch
is totally banned
436 2012 Judgment, p 640, para 24
AERIAL PHOTOGRAPHS OF SERRANA CAY
Figure 4.44
264
4 162 In Serrana Cay there is a detachment of the Colombian
Marine Infantry that carries out law enforcement activities
relating mainly to the control of fishing and illicit drug
trafficking, as well as search and rescue operations The island is
equipped with a 6-metre-wide well for the water supply of the
marine infantry corpsmen and fishermen who visit and stay in
the cay Furthermore, there are facilities such as solar panels, a
heliport and a lighthouse operated by the Colombian Navy In
addition, Serrana is equipped since January 2015 with a system
permitting access to internet, telephone, printing, scanning and
copying services, which have been rendered necessary for
servicing personal and economic activity in the island From
February to April 2017, the data are as follows:
“VIVE DIGITAL” KIOSK IN SERRANA
February Downloaded Gigabytes 243
March Downloaded Gigabytes 256
April Downloaded Gigabytes 345
TOTAL INTERNET TRAFFIC (IN GIGABYTES) 844
February Hours on the phone 18
March Hours on the phone 28
April Hours on the phone 30
TOTAL HOURS ON THE PHONE 77
265
SERRANA CAYFigure 4.45
266
INSTALLATIONS ON SERRANA CAYFigure 4.46
267
4 163 While there are currently no crops on the island Raizal fishermen consider that it would be possible, because “the soil in those cays (Roncador and Serrana) is very good, is sand mixed with soil”437 and: “(…) if someone wanted to grow crops in Serrana they could do it because it is the same kind of soil the southern cays have, that is Bolívar (East-South-East) and Albuquerque (South-South-West) and other fishermen have managed to grow crops in there For example, in Albuquerque there are growing basil and yam right now They also are raising hens in Albuquerque and Bolívar So if one can grow crops in Bolívar and Albuquerque, it can be done in the northern cays (Roncador, Serrana, Serranilla and Bajo Nuevo) as well because it is the same kind of soil” 438 (ii) Serrana is an Island, not a Geological “Rock” 4 164 Since Article 121 (3) and its customary implementation only apply to “rocky” features, it is not applicable to Serrana. Therefore, as a full-fledged island, it generates entitlements to an EEZ with its attendant continental shelf 437 Affidavit by Mr Anselmo Dawkins Duffis (Annex 38) 438 Affidavit by Mr Milford Danley McKeller Hudgson (Annex 34) 268
SERRANA CAYSERRANA CAYFigure 4.47
269
Serrana’s geological composition is in sharp contrast with
features that have been recognized as rocks such as Rockall or
Rocas Alijos:
PHOTOGRAPHS OF SERRANA CAY
Figure 4.48
270
4 165 In any event, even if Serrana was found to be a
geological rock, it would still be capable of sustaining human
habitation or economic life of its own, as demonstrated by the
facts recalled above, as well as the long standing and current use
that is made of this island
(iii) The Maritime Entitlement of Serrana
4 166 Serrana thus generates a 200-nautical-mile ipso jure
EEZ, with its attendant continental shelf, as follows:
SERRANA CAYROCKALLROCAS ALIJOSFigure 4.49
271
(e) Serranilla (i) Relevant Facts 4 167 Serranilla Cay is the largest island in the eponymous 272
atoll, which is about 40 km long and 32 km wide, covering an
area of over 1,200 sq km There are several islands emerging
from the atoll: Serranilla Cay (also known as Beacon Cay), East
Cay, Middle Cay, West Cay and Sand Cay It is located 165
nautical miles from Providencia and 80 nautical miles north
from Serrana
SATELLITE IMAGE OF SERRANILLA ATOLLU.S. NAVAL OCEANOGRAPHIC OFFICE CHART No. 148912th Ed., 1920Figure 4.51
273
4 168 Serranilla Cay is 650 metres long and some 300 metres
wide, with a total land mass of about 0 12 sq km 439 It has a
large group of coconut palms, grass and varied vegetation and,
as noted earlier, it is permanently inhabited on a rotating basis
by fishermen coming from San Andrés, Providencia and Santa
Catalina, who stay there for considerable periods of time
439 2012 Judgment, p 641, para 24
AERIAL PHOTOGRAPHS OF SERRANILLA CAY
Figure 4.52
274
4 169 Currently, there is a detachment from the Colombian
Navy entrusted with tasks of controlling fishing activities and
illicit drug-trafficking, as well as search and rescue operations
Facilities on the cay include solar panels, a fuel plant, weather
and radio stations, landing facilities for small aircraft and a 108
feet high lighthouse operated by the Colombian Navy since
1977
Figure 4.53SERRANILLA CAY
275
4 170 In the same manner as Roncador and Serrana, Serranilla
is equipped since January 2015 with a system permitting internet
access, telephone, printing, scanning and copying services From
February to April 2017, the data are as follows:
“VIVE DIGITAL” KIOSK IN SERRANILLA
February Downloaded Gigabytes 124
March Downloaded Gigabytes 219
April Downloaded Gigabytes 241
TOTAL INTERNET TRAFFIC (IN GIGABYTES) 584
February Hours on the phone 10
March Hours on the phone 37
April Hours on the phone 59
TOTAL HOURS ON THE PHONE 106
PHOTOGRAPHS OF SERRANILLA CAY
Figure 4.54
276
(ii) Serranilla is an Island, not a Geological “Rock”
4 171 It is obvious that Serranilla is not a rocky feature In any
event, even if Serranilla were found to be a geological rock, it is
clearly capable of sustaining, in accordance with the customary
international law standard, human habitation or economic life of
its own, as demonstrated by the facts mentioned above
4 172 As to human habitation, a marine detachment is
permanently on the island, and scientists also temporarily
inhabit the site when conducting scientific expeditions
Additionally, fishermen, and among them especially the
Raizales, frequently stay on the island for long periods in order
to carry out their activities. As one Raizal fisherman says: “It is
clear that people can live in the cays You can build shelters or
lodging because the cays are big enough I would live in
Serranilla because it is more comfortable to live in, it has
PHOTOGRAPHS OF SERRANILLA CAYFigure 4.55
277
coconut trees, it has water.”440 4 173 Serranilla’s economic life is additionally illustrated by the fact that, prior to signing a maritime delimitation agreement in 1993, Colombia concluded fishing agreements with Jamaica in 1981 and 1984 regarding the areas of Serranilla and Bajo Nuevo, aimed at limiting the number of foreign fishermen accepted to stay there According to these agreements: (i) certain Jamaican vessels were authorized to undertake fishing activities in the waters surrounding Serranilla and Bajo Nuevo, and (ii) a maximum number of Jamaican fishermen (36 in the 1981 Agreement and 28 in the 1984 Agreement) were permitted “temporary stationing” in Serranilla,441 on the condition that they obtained prior approval of the Colombian Authorities should they execute installations and works within the cays 442 Furthermore, the 1984 Agreement expressly recognised that “Bajo Nuevo and Serranilla allow the habitation and can sustain of their own the life of the Jamaican fishermen and facilitate the artisanal fishing activities foreseen in this Agreement”.443 4 174 Serranilla’s geological composition is in sharp contrast to features that have been recognized as rocks such as Rockall or Rocas Alijos: 440 Affidavit by Mr Beltrán Juvencio Fernández Hoy (Annex 39) 441 Evidently, Colombia authorized only temporary stationing, because permanent stationing was always possible 442 Fishing Agreements between the Republic of Colombia and Jamaica (Annexes 17 and 18) 443 Fishing Agreement between the Republic of Colombia and Jamaica of 1984, Preamble (Annex 18) 278
(iii) The Maritime Entitlement of Serranilla
4 175 Serranilla thus generates a 200-nautical-mile ipso jure
EEZ, with its attendant continental shelf, as follows:
SERRANILLA CAYROCKALLROCAS ALIJOSFigure 4.56
279
(f) Bajo Nuevo (i) Relevant Facts 4 176 Bajo Nuevo is the largest island of the eponymous atoll, which extends across 29 km from northeast to southwest and 11 km from northwest to southeast It is some 69 nautical miles east of Serranilla and 138 nautical miles north-northeast of Serrana 280
There are four cays in the atoll: West Cay, Sand Cay, Bajo
Nuevo Cay (also known as Low Cay) and Middle Cay These
islands, including the waters of the internal lagoon, sum a total
of 50 sq km in a perimeter of 56 km
BAJO NUEVO ATOLLSATELLITE IMAGE OF BAJO NUEVOFigure 4.58
281
4 177 Bajo Nuevo Cay is at the northern end of West Reef, it is
300 metres long and 40 metres wide, with a total land mass of
0,007 sq km 444 It has a lighthouse operated by the Colombian
Navy, is frequently visited by fishing vessels from San Andrés,
Providencia and Santa Catalina and is subject to the national
fishing regulations
444 2012 Judgment, p 641, para 24
THE LIGHTHOUSE ON
BAJO NUEVO
Figure 4.59
282
4 178 Around the island, the fringing reef is a natural limit and
the protection barrier waves, winds and currents that enclose an
internal lagoon compounded by shallow water of a maximum of
40 metres depth, including abundant patch reefs, coral heads and
sand bars that form an integral part of the fringing reef system
bordering the island’s shore.
(ii) Bajo Nuevo is an Island, not a Geological “Rock”
4 179 It is beyond doubt that Bajo Nuevo is an island, since it
is a naturally formed area of land permanently above high tide
It is also clear that Bajo Nuevo is not a geological rock under
international law, as represented in the customary application of
Article 121 (3), as it is not made solely of solid rock
4 180 The significant difference between Bajo Nuevo and any
feature recognized as a “rock” under customary international
law is quite clear, in the following pictorial contrast:
BAJO NUEVO CAYROCKALLROCAS ALIJOSFigure 4.60
283
4 181 As in the case of Serranilla, Bajo Nuevo’s economic life is illustrated by the fact that Colombia concluded fishing agreements with Jamaica in 1981 and 1984 regarding the waters surrounding these cays, aimed at limiting the number of foreign fishermen accepted to stay there As explained before, under these agreements: (i) certain Jamaican vessels were authorized to undertake fishing activities in the waters surroundings both cays, and (ii) a maximum number of Jamaican fishermen (24 in the 1981 Agreement and 12 in the 1984 Agreement) were permitted temporary stationing in Bajo Nuevo,445 on the condition that they obtained prior approval of the Colombian Authorities should they execute installations and works within the cays 446 Furthermore, the 1984 Agreement expressly recognised that “Bajo Nuevo and Serranilla allow the habitation and can sustain of their own the life of the Jamaican fishermen and facilitate the artisanal fishing activities foreseen in this Agreement”.447 445 As mentioned in footnote 441 supra, it is evident that Colombia authorized only temporary stationing because permanent stationing was always possible 446 Fishing Agreements between the Republic of Colombia and Jamaica (Annexes 17 and 18) 447 Fishing Agreement between the Republic of Colombia and Jamaica of 1984, Preamble (Annex 18) 284
(iii) The Maritime Entitlement of Bajo Nuevo
4 182 Bajo Nuevo thus generates a 200-nautical-mile ipso jure
EEZ, with its attendant continental shelf, as follows:
285
E. Conclusion 4 183 In this Chapter, Colombia demonstrated that the term “rock” in its conventional formulation in Article 121 (3) of UNCLOS, falls to be interpreted and applied under customary international law, in terms of geology Hence, in order for the limitation in Article 121 (3) to apply to an island, it must be a “rock” in the geological sense, and additionally it must be deprived of the ability to sustain human habitation or economic life of its own A contrary proposition would be opposed to the ordinary meaning of Article 121 (3) and subsequent State practice, which is especially important in ascertaining the customary interpretation of such Article which applies to Colombia 4 184 Moreover, Colombia has established that under customary international law, as demonstrated from a review of State practice, the standard to fulfil the requirement of an ability to sustain human habitation or economic life is extremely low and must be assessed in terms of posse and not esse Practice shows that a minimal potential for economic life or human habitation has been enough to conclude that a geological rock does not fall prey to the limitation in Article 121 (3) 4 185 Colombia has also established that in addition to the islands of San Andrés, Providencia and Santa Catalina, the rest of Colombia’s islands in the Caribbean are also not “rocks” in the geological sense of the term Thus, Roncador, Serrana, 286
Serranilla and Bajo Nuevo are not subject to the limitation of the
customary rule which originated in Article 121 (3) of UNCLOS
All the islands of the San Andrés Archipelago generate an ipso
jure 200-nautical-mile EEZ with its attendant continental shelf
4 186 In case it was considered that the term “rock” refers to all
“islands”, Colombia has also established that all its islands are
capable of sustaining human habitation and their own economic
life Therefore, since establishing at least one of these two
alternative conditions, removes an island from the limitation in
Article 121 (3), all of the islands of the San Andrés Archipelago
generate a 200-nautical-mile EEZ with its attendant continental
shelf
4 187 Finally, Colombia has demonstrated the extent of each
island’s entitlement to a 200-nautical-mile EEZ with its
attendant continental shelf, in every direction The combined
entitlements of Colombia’s islands are as follows:
287
4 188 Since natural prolongation, upon which an OCS is founded, is not a source of title within 200 nautical miles from another State’s baselines, there are no overlapping entitlements between the Parties in the area Nicaragua claims to be relevant, and therefore there is no basis for delimitation 288
Chapter 5
A REQUISITE OF EEZ AND OCS IS THAT
THEY BE CONTIGUOUS TO THE TERRA
FIRMA THAT GENERATES THEM
A. Introduction
5 1 Having already established that Nicaragua cannot sustain
any OCS claim within Colombia’s mainland and insular EEZ
with its attendant continental shelf, this Chapter will prove that
Nicaragua cannot, with the aim of avoiding this legal obstacle,
‘leapfrog’ over or ‘tunnel’ under Colombia as well as another
State’s EEZ with its attendant continental shelf, to then resume
its claim beyond the San Andrés Archipelago This would be
contrary to the principle of contiguity of maritime entitlements
which flows naturally from the general principle according to
which the “land dominates the sea”.
5 2 The balkanization or fragmentation of maritime
jurisdictions, which would result if Nicaragua’s OCS claim were
to be sustained, not only runs counter to this foundational
principle of the Law of the Sea but also has calamitous
consequences for the public order of the oceans
5 3 In this Chapter, Colombia will establish that any
maritime entitlement of a State must be contiguous to the
coastline that generates it Whatever seaward jurisdiction a State
may claim, it must be part of a maritime zone that begins at the
289
baselines from which that State measures its territorial sea and continues, without interruption, until it reaches the extent permissible for that jurisdiction 448 Because Nicaragua is unable to demonstrate such contiguity, its claim is contrary to international law B. Nicaragua’s OCS Claim Disregards International Law because Maritime Entitlements should be Contiguous to the Coastline that Generates them 5 4 Nicaragua’s OCS claim disregards international law because maritime entitlements should be contiguous to the coastline that generates them The controlling principle in this regard is that according to which the “land dominates the sea”; this principle has been recognized in the Court’s jurisprudence449 and has even been labelled as “axiomatic” by Nicaragua.450 It is meant to avoid the balkanization of the oceans and precludes the possibility of any State to have its alleged maritime entitlements ‘leapfrog’ over or ‘tunnel’ under those of other States (1). This is well established in State practice which has avoided such methods (2) Moreover, as established in Chapter 7 infra, it is worth stressing that Nicaragua has been unable to demonstrate a continuous and uninterrupted natural prolongation beyond 200 nautical miles towards Colombia; as a result, it has sought to 448 While multiple States may not possess simultaneous title in the same area with regard to the resources of the seabed, subsoil or superjacent waters, contiguous zone rights of one State may co-exist with another State’s resource based rights in an EEZ 449 North Sea Continental Shelf, p 51, para 96; Black Sea, p 89, para 77 and pp 96-97, para 99 450 Territorial and Maritime Dispute, Reply of Nicaragua, p 156, para 6 25 290
claim an alleged OCS entitlement by first transiting though
Honduras and Jamaica, only to eventually encroach on
Colombia’s ipso jure EEZ with its attendant continental shelf
entitlements All this clearly means that its OCS claim is not
contiguous to its coast as required by international law (3)
Lastly, since as established in Chapter 4 supra the Colombian
islands have ipso jure 200-nautical-mile entitlements tous
azimuts, Nicaragua is prevented from establishing any
contiguous maritime entitlement to any area beyond 200
nautical miles from its coast (4)
(1) THE LAND DOMINATES THE SEA
5 5 According to the principle that the “land dominates the
sea”, any maritime entitlement must originate in sovereignty
over a coastal land territory In 1969, it became part of
international jurisprudence when the Court ruled that “the land
is the legal source of the power which a State may exercise over
territorial extensions to seaward”.451 More recently, the Court
has explained that “(t)he title of a State to the continental shelf
and to the exclusive economic zone is based on the principle that
the land dominates the sea through the projection of the coasts
or the coastal fronts.”452
5 6 Maritime entitlements are thus inextricably connected to
the land territory that generates them A logical corollary of this
451 North Sea Continental Shelf, p 51, para 96
452 Black Sea, p 61, para 77
291
principle is that any maritime entitlement must be contiguous to the coastline of the State Thus, any maritime zone must constitute the uninterrupted extension of that coastline 5 7 Indeed, every maritime zone originates in and is directly contiguous to the State’s baselines The link to the baselines is the embodiment of the principle that the “land dominates the sea”; the baselines are the edge of the State’s sovereign territory, from which all seaward maritime zones project As one commentator succinctly put it: “(…) the consistency of the Court’s view is beyond doubt that the territorial sovereignty of the coastal State must be the starting point for determining the maritime rights to which the State is entitled under international law (…)”.453 5 8 To subscribe to the principle that without land there cannot be a maritime entitlement is, perforce, to reject any contention that ‘blocks’, ‘patches’, ‘fragments’ or ‘specks’ of maritime zones may exist without being directly tethered to a coastal territory 5 9 To allow ‘leapfrogging’ or ‘tunnelling’ for OCS claims is to violate this foundational principle of the Law of the Sea If a State’s maritime entitlement is not contiguous, that is, if it is not linked to that State’s baselines, the land no longer dominates 453 B. B. Jia, “The Principle of the Domination of the Land over the Sea: A Historical Perspective on the Adaptability of the Law of the Sea to New Challenges”, German Yearbook of International Law, Vol 57, 2014, p 13 292
the sea Hence, a coastal State’s maritime entitlement cannot just
leap over or burrow under another State’s entitlements and, then,
continue beyond them A State’s OCS claim must necessarily
terminate when it reaches another State’s 200-nautical-mile ipso
jure entitlements such as those of Colombia in the present
case 454
5 10 To abandon the principle that the “land dominates the
sea” and, consequently, adopt the altogether novel system that
would allow States to claim blocks of ocean floor without the
restraint of having to tether their claims to direct contiguity to
mainland or insular territories would have disastrous
consequences It would generate conflicts without criteria to
restrain and resolve them and allow for, indeed encourage, the
encroachment on other State’s well-established entitlements, as
well as the erosion of the Common Heritage of Mankind It
would also destabilize the regime of maritime entitlements by
creating a balkanized ocean, with severe jurisdictional and
public order consequences, which the Court itself has recognised
must be avoided 455
454 See Chapters 3 and 4 supra
455 2012 Judgment, p 708, para 230
293
(2) THE STATE PRACTICE OF AVOIDING THE FRAGMENTATION AND BALKANIZATION OF THE OCEANS 5 11 The proposition that maritime entitlements must be contiguous to the baselines from which they emanate is well established in State practice A survey of said practice demonstrates that there is not one case in which a maritime claim of a State that reached another State’s entitlement leaped over or tunnelled under it, in order to then continue on the far side 456 On the contrary, States have sought to avoid the balkanization of maritime jurisdictions, preferring a single, coherent and clear distribution of maritime zones 5 12 State practice, especially in the context of closed or semi-enclosed seas, reveals a similar pattern of recourse to a continuous maritime boundary arrangement which links several delimitation treaties The end point of a delimitation treaty with one State is used as the starting point for the delimitation treaty with another State, even though that State is not a Party and hence not obligated to accept such a starting point The resulting continuation of one maritime boundary into the next creates a single, seamless, coherent and clear system of boundaries between the various States, promoting clarity and order 457 Here, practice reflects an appreciation that balkanization, through 456 International Maritime Boundaries, Vol VII, Introduction, Regional Overview Maps 457 This practice was accurately described in Libya/Malta, Separate Opinion of Judges Ruda, Bedjaoui and Jiménez de Aréchaga, pp 78-80, paras 7-14 294
untethered patches and blocks, would undermine the public
order of the oceans
5 13 An indicative example of this State practice can be found
in the Baltic Sea The map below illustrates said maritime
delimitations:458
458 International Maritime Boundaries, Vol VII, Introduction, Regional
Overview Maps, Baltic Sea (Region 10) Figure 5 1 was prepared specially
for this Counter-Memorial, on the basis of a map included in this publication
295
296
5 14 As can be seen, all the States around the Baltic Sea
(Sweden, Finland, the Russian Federation, Estonia, Latvia,
Lithuania, Poland, Germany and Denmark), carefully followed
the practice of avoiding the balkanization of the seas The
maritime boundaries established by these States, by means of
almost 20 treaties, are all interconnected, forming a single,
contiguous and continuous maritime boundary between the
littoral States
5 15 The delimitation practice of the States of Northern and
Western Europe (the United Kingdom, Norway, Denmark,
Iceland, Germany, the Netherlands, Belgium and France) also
demonstrates the rejection of leapfrogging Regardless of
whether these States were delimiting the area within 200
nautical miles, or beyond it, like Iceland, Norway and
Denmark,459 they avoided the fragmentation of the oceans 460
The following figure illustrates this point:461
459 International Maritime Boundaries, Vol IV, Estonia-Finland-
Sweden, Rep 10-21, pp 3129-3130 These three States are Parties to
UNCLOS
460 International Maritime Boundaries, Vol VII, Introduction, Regional
Overview Maps, Northern and Western Europe (Region 9)
461 International Maritime Boundaries, Vol VII, Introduction, Regional
Overview Maps, Northern and Western Europe (Region 9) Figure 5 2 was
prepared specially for this Counter-Memorial, on the basis of a map included
in this publication
297
298
5 16 Similar State practices can be found in parts of the
Mediterranean, the Pacific Ocean,462 the Indian Ocean463 and of
course, the Caribbean Sea 464
5 17 The survey of different sub-regions shows a general
practice on the part of States in semi-enclosed seas to conclude a
set of coherent maritime boundaries 465 This coherent and
orderly delimitation of the oceans allows for the stable
management of maritime boundaries
5 18 The Court is aware of the perils of straying away from
such practice In its 2012 Judgment, it emphasized the dangers
associated with Nicaragua’s earlier proposal for the carving-up
of the Caribbean In that case, and consistent with its tendency
to make excessive claims, Nicaragua requested the Court to
enclave all the Colombian islands within Nicaraguan waters
The Court rejected Nicaragua’s claim and stated that
“(…) the Nicaraguan proposal would produce a
disorderly pattern of several distinct Colombian
enclaves within a maritime space which
otherwise pertained to Nicaragua with
unfortunate consequences for the orderly
462 International Maritime Boundaries, Vol VII, Introduction, Regional
Overview Map, Central Pacific and East Asia (Region 5)
463 International Maritime Boundaries, Vol VII, Introduction, Regional
Overview Map, Indian Ocean / Southeast Asia (Region 6)
464 International Maritime Boundaries, Vol VII, Introduction, Regional
Overview Map, Middle America and the Caribbean (Region 2); Ibid.,
Introduction, Regional Overview Map, Persian Gulf (Region 7); Ibid.,
Introduction, Regional Overview Map, Mediterranean / Black Sea (Region
8); Ibid., Introduction, Regional Overview Map, Caspian Sea (Region 11)
465 The delimitations in Africa, and North and South America were
mostly ocean facing
299
management of maritime resources, policing and the public order of the oceans in general, all of which would be better served by a simpler and more coherent division of the relevant area.”466 5 19 The Court’s rejection of a claim that would have led to the balkanization of the Caribbean Sea applies, with equal force, to this case To accept the Applicant’s OCS claim would result in allocating an untethered patch of ocean floor to Nicaragua Such a result, which runs counter to the consistent practice of States, would produce significant and undesirable management problems (3) NICARAGUA’S OCS CLAIM IS NOT CONTIGUOUS TO ITS BASELINES AND THUS MUST BE REJECTED 5 20 Having established that a State’s OCS entitlement must be directly and uninterruptedly contiguous to the baselines that generates it, Colombia will now demonstrate that, wholly apart from its factual and procedural deficiencies, no single part of Nicaragua’s OCS claim may, in any scenario, be shown to be contiguous to its baselines 5 21 An OCS claim’s continuity and contiguity is based upon proof of geomorphological and geological natural prolongation of the land territory A State cannot lay claim to a natural prolongation of its land territory if its continuity and contiguity was interrupted by geomorphological disruptions or geological discontinuities within 200 nautical miles 466 2012 Judgment, p 708, para 230 300
5 22 As shown in Chapters 2 and 7, Nicaragua did not meet
its conventional and customary burden of proof in accordance
with the required scientific rigour and has thus failed to prove
that there are no geomorphological or geological features which
interrupt the continuity of its natural prolongation within the
200-nautical-mile limit Likewise, Nicaragua failed to prove any
geographical continuity of its OCS claim in relation to its 200
nautical miles entitlements, since its entire claim must transit
through third States’ maritime entitlements.
5 23 In relation to the latter of these points and as addressed in
Chapter 7 infra, Nicaragua’s “dog-leg” natural prolongation
claim follows a circuitous path: it transits through Honduras’
EEZ and continental shelf, invades Jamaica’s corresponding
EEZ and continental shelf, and then swings into an almost 90
degrees turn, from where it speeds straight south into
Colombia’s ipso jure EEZ with its attendant continental shelf
Not only is this absurd and unprecedented but represents an
absolute contempt for the basic principles of the Law of the Sea
This is leapfrogging in overdrive
5 24 Once Nicaragua’s purported natural prolongation reaches
the 200-nautical-mile maritime entitlement of another State, it
ceases to be a legitimate source of title Nicaragua may not
disregard the titles of third States and use their maritime zones
to create ‘transit corridors’ or disconnected areas to claim an
OCS If allowed, such a proposition would destabilize the
301
international system of maritime entitlements and create chaos where order exists Therefore, it must be rejected (4) THE IPSO JURE TITLES OF COLOMBIA’S ISLANDS PREVENT NICARAGUA FROM ESTABLISHING A CONTINUOUS AND CONTIGUOUS TITLE BEYOND 200 NAUTICAL MILES FROM ITS COAST 5 25 Nicaragua is required to establish a continuous and contiguous maritime entitlement, legally, geophysically, and geographically, to any section of the area it claims as its OCS This section expands on Chapter 4 and elaborates on the entitlements of certain Colombian islands and the extent to which such entitlements block and thereby prevent Nicaragua from establishing any contiguous maritime entitlement to any area beyond 200 nautical miles from its coast 5 26 It might be recalled here that the San Andrés Archipelago is a geographic, political, environmental and cultural unit comprised of multiple islands, all of them under the sovereignty of Colombia Because of their location, the following are particularly important for the current analysis: San Andrés, Providencia, Santa Catalina, Roncador, Serranilla and Bajo Nuevo All of these, as fully-fledged islands, are entitled to an ipso jure EEZ with its attendant continental shelf, since: “islands, regardless of their size… enjoy the same status, and therefore generate the same maritime rights, as other land 302
territory.”467 Such entitlements preclude any OCS claim by
Nicaragua
(a) San Andrés, Providencia and Santa Catalina
5 27 In the 2012 Judgment, the Court held that the entitlement
of the islands of San Andrés, Providencia and Santa Catalina
extend to the east of Nicaragua’s 200-nautical-mile range 468
Since, as established in Chapter 3 supra, no OCS claim may
encroach upon another State’s EEZ with its attendant
continental shelf, the 200-nautical-mile entitlement of these
Colombian islands, extending in all directions east of
Nicaragua’s 200-nautical-mile range, in itself, blocks Nicaragua
from establishing a contiguous title to a maritime zone
extending from its baselines to any purported areas east of its
200-nautical-mile limit and within San Andrés, Providencia and
Santa Catalina’s 200-nautical-mile entitlements
467 Qatar v Bahrain, p 97, para 185, 2012 Judgment, p 674,
para 139 See also figures 4 3, 4 42, 4 57 and 4 61 supra
468 2012 Judgment, p 687, para 168 and p 708, para 230
303
(b) Roncador 5 28 In the 2012 Judgment, the Court concluded that Roncador was an island but decided that it was unnecessary to determine the exact extent of its maritime entitlements 469 In accordance with international law, as elaborated in Chapter 4, the island of Roncador is entitled to its full 200-nautical-mile EEZ with its attendant continental shelf to the east tous azimuts 470 State practice demonstrates that islands similar to Roncador are entitled to the full extent of their 200-nautical-mile maritime entitlements 471 Since Nicaragua may not establish any OCS where Colombia possesses an EEZ with its attendant continental shelf entitlement, its OCS claim is not only blocked by the EEZ with its attendant continental shelf entitlements of San Andrés, Providencia and Santa Catalina, but also by those of Roncador (c) Serranilla and Bajo Nuevo 5 29 The 200-nautical-mile ipso jure EEZ with its attendant continental shelf entitlements of the islands of Serranilla and Bajo Nuevo continue uninterrupted from their baselines into the area which Nicaragua claims as its OCS in this case As such, the maritime zones of these islands not only further block a contiguous maritime title for Nicaragua, but in effect prevent 469 2012 Judgment, p 692, para 180 470 See Chapter 4 supra. 471 See Chapter 4 supra 304
Nicaragua from establishing an OCS claim in this part of the
Caribbean Sea
C. Conclusion
5 30 As Colombia has established in this Chapter, under
international law, maritime entitlements must be directly
contiguous to the baselines which generate them, in conformity
with the principle according to which the “land dominates the
sea”. Hence, a State’s alleged OCS entitlement may not leapfrog
over or tunnel under another State’s ipso jure entitlement and
then resume its seaward thrust on the other end This is
confirmed by State practice in different sub-regions of the world
where the coherent and harmonious sharing of maritime zones
has prevailed 472
5 31 Nicaragua’s purported OCS claim fails on multiple
fronts Not only does it disregard international law and State
practice, but also, as a question of fact, Nicaragua could not in
any scenario, gain title beyond its 200-nautical-mile limit
5 32 From a geological and geomorphological perspective,
Nicaragua’s natural prolongation of its land territory does not
extend beyond its 200-nautical-mile limit from its coast 473
472 See International Maritime Boundaries, Vol VII, Introduction,
Regional Overview Maps.
473 See Chapter 7 infra
305
5 33 Moreover, Nicaragua may not use the maritime zones of Honduras and Jamaica as transit routes for its purported natural prolongation claim Natural prolongation ceases to be a source of title upon encountering another State’s ipso jure 200-nautical mile zone. No State may use a proximate State’s maritime areas to gain access to another State’s maritime entitlements with the intention of encroaching upon them 5 34 In addition, since the recognition of the 200-nautical-mile EEZ with its attendant continental shelf entitlements of San Andrés, Providencia and Santa Catalina is res judicata, and the islands of Roncador, Serranilla and Bajo Nuevo are fully entitled to their ipso jure EEZ with its attendant continental shelf, Nicaragua’s case must still fail due to the inexistence of a contiguous maritime title to any part of the area it claims 5 35 Allowing such a claim, far removed from any title generated by Nicaragua’s baselines, would allow a State’s OCS claim to leapfrog over or tunnel under another State’s 200-nautical-mile EEZ with its attendant continental shelf, balkanize the Caribbean Sea and constitute a dangerous precedent for the public order of the oceans. Nicaragua’s submissions should thus be rejected in their entirety 306
Chapter 6
THE RIGHTS OF THIRD STATES WOULD BE
DIRECTLY AFFECTED BY NICARAGUA’S OCS
CLAIM IN THE SEMI-ENCLOSED CARIBBEAN
SEA
A. Introduction
6 1 Colombia has established that under customary
international law, besides its mainland, all of its islands are
entitled to their full 200-nautical-mile EEZ with its attendant
continental shelf, in all directions 474 These entitlements project
in the area which Nicaragua claims as relevant Since an OCS
claim, based upon geology and geomorphology is not a source
of title within 200 nautical miles from any State, i.e., within the
maritime zone covered under the EEZ regime, Nicaragua’s OCS
claim may not encroach upon the area of Colombia’s EEZ with
its attendant continental shelf Thus, there are no overlapping
entitlements within the area Nicaragua argues as relevant in this
case
6 2 This Chapter addresses the legal implications of
Nicaragua’s claim in certain contrary-to-fact scenarios If the
Court were to reduce the effect of Colombia’s islands in the area
east of Nicaragua’s 200-nautical-mile range, or were to decide
474 Colombia fully respects and complies with the boundary treaties it
has concluded in the Caribbean Sea with, inter alia, Panama, Jamaica, Haiti
and the Dominican Republic
307
to disregard the inter se division of rights derived from the Colombia-Jamaica and Colombia-Panama delimitation treaties, this Chapter will establish that the EEZ with its attendant continental shelf-based entitlements of third States, specifically Panama and Jamaica, would prevail in this area over Nicaragua’s OCS claim. 6 3 Since the inter se agreements between Colombia and these States only divide their respective rights, within any area, as between themselves, and as such do not affect the entitlements of these States vis-à-vis Nicaragua, any decision by the Court to reduce Colombia’s rights, would not avail Nicaragua, for it could not affect the rights of Jamaica or Panama in the same area 6 4 In other words, if the Court were to reduce Colombia’s EEZ with its attendant continental shelf rights in any area within 200 nautical miles from the baselines of either Jamaica or Panama, such State could have a claim to such area as its EEZ with its attendant continental shelf Under international law, the EEZ with its attendant continental shelf may not be encroached by another State’s OCS claim. Since the Court may not prejudice the rights of States which are not participating in these proceedings, as will be explained, the Court would not be in a position to grant any OCS to Nicaragua 6 5 The jurisprudence of the Court shows that it has generally avoided drawing a maritime boundary between two 308
Parties in an area where a third State, whether intervening or
not, could have legal interests (B) While the Court has
previously been able to draw partial boundaries, which refrained
from prejudicing the rights of third States, Nicaragua’s
ambitious claim stretches so far from its coast that even the
shortest of all maritime delimitations would inevitably trespass
into areas where, aside from Colombia’s sovereign rights, third
States possess entitlements, regardless of how such rights were
internally divided inter se between the States concerned Indeed,
the whole area beyond 200 nautical miles from the Nicaraguan
coast in which, it asserts, a boundary remains to be drawn, is
located closer to Colombia, Jamaica or Panama than it is to
Nicaragua This fact would be even more significant if some of
Colombia’s treaty and customary international law rights were
not allowed their full effect
6 6 Nicaragua does not feign ignorance of this geographical
fact and is aware that its claim disrupts the neighbourly relations
established between Colombia and, respectively, Panama and
Jamaica, amongst others By asserting that it will not claim areas
located on the Panamanian and Jamaican sides of the maritime
delimitations agreed between those States and Colombia,
Nicaragua deludes itself into believing that it can use
agreements to which it is not a Party to confine the legal
interests of these third States in the proceedings vis-à-vis
Nicaragua itself But Nicaragua cannot benefit from res inter
alios acta established on the basis of entirely different coastal
projections Panama and Jamaica, amongst others, could have
309
legal interests vis-à-vis Nicaragua that project well beyond the boundaries concluded with Colombia, that is to say within the area which Nicaragua contends is to be delimited (C) 6 7 Because of Nicaragua’s exaggerated claim to an OCS within the semi-enclosed Caribbean Sea, the Court is confronted with an unprecedented situation in which it cannot draw a single point of any new purported maritime boundary between Colombia and Nicaragua without trespassing into maritime areas where third States could have existing and contingent legal interests against Nicaragua; any reduction of Colombia’s rights deriving from the inter se arrangements with those States, would effectively activate the entitlements of such States in the area If those entitlements were to revert into effect, they would prevail over Nicaragua's OCS claim (D) B. The Court, as a Matter of Principle, does not Draw Maritime Boundaries that Encroach into Areas where Third States have Legal Interests 6 8 The jurisprudence attests to the fact that, “as a matter of principle”,475 the Court will not draw a maritime boundary between two Parties in an area where a third State possesses legal interests. Indeed, the Court’s practice is to stop the delimitation before it reaches an area that is located closer to the coast of a third State than it is to the coast of one of the Parties to the proceedings 475 Territorial and Maritime Dispute, Application of Costa Rica for Permission to Intervene, Judgment, I.C.J. Reports 2011, p 372, para 86 310
6 9 Many aspects of the law of maritime delimitation have
fluctuated over time However, the jurisprudence of the Court
has been remarkably consistent in relation to the need to protect
the legal interests of third States during the process of
delimitation In this respect, the Court has stressed that, where
the entitlements of several coastal States are involved, the
protection afforded by Article 59 of the Statute may not be
sufficient 476 Thus, ever since the 1982 Judgment in the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case,477 “the
Court has always taken care not to draw a boundary line which
extends into areas where the rights of third States may be
affected”.478 Because the Court “will not rule on an issue when
in order to do so the rights of a third party that is not before it,
have first to be determined”,479 it either resorts to the directional
arrow technique,480 or ends the delimitation before reaching
areas where third States possess legal interests 481
476 Cameroon v Nigeria: Equatorial Guinea intervening, p 421, para
238
477 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment,
I.C.J. Reports 1982, p 90, Map No 3 and p 91, para 130 (Tunisia/Libya).
478 2012 Judgment, p 707, para 228
479 Nicaragua v. Honduras, p 756, para 312; Case of the Monetary
Gold removed from Rome in 1943 (Preliminary Question), Judgment of June
15th, 1954: I.C.J. Reports 1954, pp 32-33; Certain Phosphate Lands in
Nauru (Nauru v Australia), Preliminary Objections, Judgment, I.C.J.
Reports 1992, p 261, para 55; East Timor (Portugal v Australia),
Judgment, I.C.J. Reports 1995, pp 100-105, paras 23-35
480 Black Sea, p 129, para 209; Nicaragua v. Honduras, p 759, para
319; Cameroon v Nigeria: Equatorial Guinea intervening, p 448, para 307;
Qatar v Bahrain, pp 115-116, paras 249-250; Tunisia/Libya, p 90, Map
No 3 and p 91, para 130
481 Libya/Malta, pp 24-28, paras 20-23 and p 54 Map No 3
311
6 10 According to its jurisprudence, the Court shields the legal interests of third States regardless of whether they filed an application for permission to intervene, accepted or not, and of whether they indicated an area of interest by any given modality Thus, in the Cameroon v Nigeria case, Sao Tome and Principe, which did not apply for permission to intervene in the case, obtained the same protection afforded to Equatorial Guinea 482 6 11 Moreover, the jurisprudence shows that the Court, at the very least, ends the maritime delimitation before it reaches areas that are located closer to the coast of a third State than to the coast of one of the parties to the proceedings Thus, the directional arrow is drawn before it reaches the equidistance line (or lines) between, respectively, the third State and the parties to the proceedings that have not concluded a delimitation agreement with the former However, when, as here, due to the exorbitant claim of one of the parties to the proceedings, the maritime delimitation is supposed to be effected in an area that in its entirety is located closer to the coasts of a third State than those of that Party, the Court would be precluded from drawing any boundary between the parties, such as the case of the present proceedings 482 Cameroon v Nigeria: Equatorial Guinea intervening, p 421, para 238 312
C. Nicaragua Cannot Invoke Maritime Delimitation
Treaties to which it is not a Party in Order to Confine
the Legal Interests of the Parties to those Agreements
6 12 The situation may arise in which a third State has
concluded a maritime delimitation agreement with only one of
the Parties to the proceedings This was, for example, the
position of Equatorial Guinea in the Cameroon v Nigeria case,
and of Costa Rica and Honduras in the Territorial and Maritime
Dispute case Indeed, Equatorial Guinea was bound by an
agreement with Nigeria483 and Costa Rica and Honduras had
signed maritime delimitation agreements with Colombia 484
These treaties do confine the legal interests of Equatorial Guinea
and of Costa Rica and Honduras vis-à-vis, respectively, Nigeria
and Colombia However, they do not limit the legal interests of
Equatorial Guinea, Costa Rica and Honduras vis-à-vis Parties
with whom they have no delimited boundaries: i.e. Cameroon
and Nicaragua respectively, which were Parties to the relevant
proceedings but were third States vis-à-vis the agreements
6 13 In the Cameroon v Nigeria case, Cameroon suggested
that any delimitation drawn on the Nigerian side of the 2000
boundary between Nigeria and Equatorial Guinea could not
affect the legal interests of Equatorial Guinea because the latter
483 International Maritime Boundaries, Vol IV, Nigeria-Equatorial
Guinea, Rep 4-9, p 3759
484 Treaty on Delimitation of Marine and Submarine Areas and
Maritime Cooperation between Colombia and Costa Rica, 17 March 1977,
Territorial and Maritime Dispute, Counter-Memorial of the Republic of
Colombia, Vol IIA, Annex 5; Maritime Delimitation Treaty between
Colombia and Honduras, 2 August 1986, Ibid , Annex 10
313
had “manifested its lack of interest” for those areas.485 But that argument did not persuade the Court which rightly ended the delimitation between the Parties before it could affect Equatorial Guinea’s legal interests on the Nigerian side of the agreed boundary 486 6 14 More recently, in the Territorial and Maritime Dispute case, Nicaragua argued that any delimitation drawn on the Colombian side of the 1977 boundary between Colombia and Costa Rica could not affect the legal interests of Costa Rica because the latter had renounced those areas erga omnes 487 Nicaragua also invoked the 1986 boundary between Colombia and Honduras488 in order to confine Colombia’s legal interests to the area located south of the 15th parallel 489 Nicaragua now suggests that not only Costa Rica, but also Panama and Jamaica, have no legal interests beyond the boundaries that they have established with Colombia 490 But Nicaragua cannot have it both 485 Cameroon v Nigeria: Equatorial Guinea intervening, Observations écrites de la République du Cameroun sur la requête de la Guinée équatoriale à fin d’intervention, 4 juillet 2001, p. 6 para. 14, pp 6-8, para 17 and p 11, para 30 (available in French only) 486 Cameroon v Nigeria: Equatorial Guinea intervening, p 448, para 307 487 Territorial and Maritime Dispute (Nicaragua v Colombia), Application by Costa Rica for Permission to Intervene, Public Sitting 15 October 2010, CR 2010/16, pp 27-28, paras 31-34 (Reichler) 488 Maritime Delimitation Treaty between Colombia and Honduras (with map), 2 August 1986 Territorial and Maritime Dispute, Counter-Memorial of the Republic of Colombia, Vol IIA, Annex 10 489 Territorial and Maritime Dispute (Nicaragua v Colombia), Application by Honduras for Permission to Intervene, Public Sitting 20 October 2010, CR 2010/19, p 29, para 43 (Pellet) 490 Communication MINIC-NU-049-13 of the Permanent Mission of Nicaragua to the United Nations, 20 December 2013 (Annex 32); 314
ways It cannot, on the one hand, rely on the relative effect of
treaties for the purpose of arguing that those States’ recognition
of Colombia’s sovereign rights is not opposable to itself and, on
the other hand, rely on those same agreements for the purpose of
confining their legal interests vis-à-vis itself
6 15 In fact, in the Territorial and Maritime Dispute case, the
Court rejected Nicaragua’s self-contradicting arguments by
stressing that:
“(…) States may conclude maritime delimitation
treaties on a bilateral basis Such bilateral treaties,
under the principle res inter alios acta, neither
confer any rights upon a third State, nor impose
any duties on it Whatever concessions one State
party has made to the other shall remain bilateral
and bilateral only, and will not affect the
entitlements of the third State.”491
6 16 Likewise, the Court’s examination of the Costa Rican
request to intervene in that same case attests to the recognition
of the legal interests of that State vis-à-vis Nicaragua beyond the
boundary with Colombia. Indeed, the Court stressed that “Costa
Rica’s interest of a legal nature may only be affected if the
maritime boundary that the Court ha(d) been asked to draw
between Nicaragua and Colombia were to be extended beyond a
Communication MINIC-NU-050-13 of the Permanent Mission of Nicaragua
to the United Nations, 20 December 2013 (Annex 33)
491 Territorial and Maritime Dispute (Nicaragua v Colombia),
Application of Honduras for Permission to Intervene, Judgment, I.C.J.
Reports 2011, p 444, para 72 (emphasis added)
315
certain latitude southwards”.492 This conclusion, which flows from the principle res inter alios acta, is confirmed in many opinions that were appended to the judgment in that case 493 In its 2012 Judgment on the merits, the Court was able to draw a maritime delimitation between Colombia and Nicaragua without trespassing into what Costa Rica itself defined as its “minimum area of interest”. Colombia will demonstrate, however, that in the circumstances of the present case it is not possible to draw a delimitation beyond 200 nautical miles from Nicaragua’s coast without trespassing into areas where countries like Jamaica and Panama possess legal interests 6 17 In other words, Nicaragua cannot rely on the maritime delimitation agreements concluded by Colombia in order to confine the projections of Panama or Jamaica vis-à-vis itself Although Nicaragua pretends to substitute itself for Colombia in the delimitations agreed between that State and, respectively, Jamaica and Panama, reliance on the law of State succession is inapposite here The present case has nothing to do with the one, for example, of Guinea-Bissau and Senegal in relation to the maritime boundary established by France and Portugal during 492 Territorial and Maritime Dispute (Nicaragua v Colombia), Application of Costa Rica for Permission to Intervene, Judgment, I C J Reports 2011, p 372, para 89 493 Territorial and Maritime Dispute (Nicaragua v Colombia), Application of Costa Rica for Permission to Intervene, Judgment, I.C.J. Reports 2011, Dissenting Opinion of Judge Abraham, pp 387-388, paras 12-13; Dissenting Opinion of Judges Cançado Trindade and Yusuf, p 410, para 18; Dissenting Opinion of Judge Donoghue, pp 414-415, para 4; Declaration of Judge Xue, pp 749-750, para 12 316
colonial times 494 Nor is the present situation similar to the one
of Slovenia, Croatia and Montenegro with respect to the
continental shelf boundary established between Yugoslavia and
Italy 495 Nicaragua is not the sovereign of the San Andrés
Archipelago Thus, it certainly cannot succeed to the
delimitation agreements established between the coastal
projections of that Colombian territory and the territory of other
States While Nicaragua has also invoked the jurisprudence
relating to territorial frontiers,496 the analogy is misplaced with
regard to maritime boundaries that are established in areas
where the entitlements of three or more States overlap due to a
multitude of different coastal projections Indeed, in the 1986
Judgment in the Frontier Dispute case, the Court stressed that:
“But the process by which a court determines the
line of a land boundary between two States can be
clearly distinguished from the process by which it
identifies the principles and rules applicable to
the delimitation of the continental shelf The legal
considerations which have to be taken into
account in determining the location of the land
boundary between parties are in no way
dependent on the position of the boundary
between the territory of either of those parties and
the territory of a third State, (…) On the other
hand, in continental shelf delimitations, an
agreement between the parties which is perfectly
valid and binding on the treaty level may, when
494 Case concerning the Delimitation of the Maritime Boundary
between Guinea-Bissau and Senegal, Award of 31 July 1989, R.I.A.A.,
Volume XX, pp 119-213
495 Limits in the Seas, No 9
496 Territorial and Maritime Dispute (Nicaragua v. Colombia),
Application of Costa Rica for Permission to Intervene, Public Sitting 15
October 2010, CR 2010/16, pp 27-28, paras 32-33 (Reichler)
317
the relations between the parties and a third State are taken into consideration, prove to be contrary to the rules of international law governing the continental shelf (…) It follows that a court dealing with a request for the delimitation of a continental shelf must decline, even if so authorized by the disputant parties, to rule upon rights relating to areas in which third States have such claims as may contradict the legal considerations – especially in regard to equitable principles – which would have formed the basis of the decision.”497 6 18 The fact that Nicaragua cannot benefit from the agreements concluded by Colombia with third States has important consequences for Nicaragua’s OCS claim. As Colombia will demonstrate, these consequences are detrimental to Nicaragua’s case; even if the Court were to reduce the effect of any of Colombia’s EEZ with its attendant continental shelf entitlements in the area Nicaragua deems relevant, third States retain their customary ipso jure 200-nautical-mile entitlements in any void that would thus be created D. Any Delimitation Beyond 200 Nautical Miles from the Nicaraguan Coast would Inevitably Encroach into Areas where Third States have Legal Interests vis-à-vis Nicaragua 6 19 Costa Rica, Panama and Jamaica, with reason, have not claimed an OCS in the Caribbean Sea Nor has any other Caribbean State other than Nicaragua Together with Colombia, those three States all vigorously protested Nicaragua’s claim to 497 Frontier Dispute, Judgment, I.C.J. Reports 1986, p 578, para 47 318
the CLCS 498 Their entitlements vis-à-vis Nicaragua, like those of
Colombia, are based on 200-nautical-mile projections. Panama’s
notional entitlement vis-à-vis Nicaragua could extend beyond
the 1976 boundary line with Colombia 499 Likewise, Jamaica’s
and Haiti’s notional entitlements vis-à-vis Nicaragua could
extend beyond their respective boundaries with Colombia 500
498 Annexes 19 to 28
499 Treaty on the delimitation of marine and submarine areas and related
matters between Panama and Colombia, 20 November 1976, Territorial and
Maritime Dispute, Counter-Memorial of the Republic of Colombia, Vol IIA,
Annex 4
500 Maritime Delimitation Treaty between Jamaica and Colombia, 12
November 1993, Territorial and Maritime Dispute, Counter-Memorial of the
Republic of Colombia, Vol IIA, Annex 14 International Maritime
Boundaries, Vol I, Colombia-Haiti, Rep 2-3, p 491
319
320
6 20 This map shows exactly why the Court cannot delineate
Nicaragua’s purported outer limit of the continental shelf nor
draw a maritime delimitation between the two Parties beyond
200 nautical miles from the Nicaraguan coast Any delimitation
between the Parties to the proceedings would not only encroach
on Colombia’s 200 nautical miles entitlements; it would
inevitably trespass into areas where Jamaica and Panama could
have legal interests vis-à-vis Nicaragua, if Colombia’s rights are
reduced or disallowed Colombia has previously shown that the
concept of the EEZ, an area that encompasses both the
continental shelf and the column of water within 200 nautical
miles of a coast, precludes competing OCS claims over the same
areas 501 Even if those third States’ 200 nautical miles
entitlements would not trump Nicaragua’s OCS claim, quod
non, they would still, at a minimum, constitute plausible legal
interests which must be protected
6 21 As established in Chapter 5 supra, Nicaragua’s OCS
claim simply ignores reality Not only will a delimitation
beyond 200 nautical miles off the Nicaraguan coast inevitably
trespass into areas where third States possess legal interests, it
will also necessarily imply that Nicaragua is allowed to leapfrog
maritime zones appertaining to other coastal States
6 22 Furthermore, as will be further discussed in Chapter 7
infra, Nicaragua’s “dog-leg” natural prolongation claim intrudes
into the maritime entitlements of Honduras and Jamaica, before
501 See Chapter 4 supra
321
miraculously manoeuvring itself into Colombia’s maritime zones It should be noted that any recognition by the Court of the validity of any part of Nicaragua’s “dog-leg” natural prolongation (quod non) would prejudice the rights of Honduras and Jamaica Nicaragua could then use its newly recognized “dog-leg” natural prolongation to prejudice the rights of Honduras beyond 200 nautical miles, or of Jamaica within its EEZ with its attendant continental shelf Neither of these States is a party to these proceedings and may not make their case against the incursion of Nicaragua’s natural prolongation into their 200-nautical-mile maritime zones; however, were the Court to decide to replace the CLCS and make a determination, such a determination of the validity of Nicaragua’s claim (quod non), could be used by Nicaragua vis-à-vis those States It should be noted in this respect that Jamaica objected to any consideration by the CLCS of Nicaragua’s purported OCS claim; any recognition of it by the Court would prejudice Jamaica E. Conclusion 6 23 Even if the Court were to reduce or disallow the legal effect of Colombia’s treaty and customary international law rights, Nicaragua would not be the beneficiary, as third States’ EEZ with their attendant continental shelf rights would substantively prevail over Nicaragua's OCS claim, thus precluding the possibility of judicial action in the present case All this presupposes that Nicaragua has proved the requisite 322
existence of its natural prolongation It has not, as will be
demonstrated in the following Chapter
6 24 Beyond 200 nautical miles from the Nicaraguan coast, no
boundary can be drawn between Colombia and Nicaragua
without encroaching into areas where third States could then
have an EEZ with its attendant continental shelf, an ipso jure
entitlement that would trump any competing OCS claim by
Nicaragua
323
324
Chapter 7
NICARAGUA’S FAILURE TO DEMONSTRATE
THAT THE NATURAL PROLONGATION OF
ITS LAND TERRITORY EXTENDS BEYOND
200 NAUTICAL MILES FROM ITS COAST
325
Chapter (pages 325 to 388) not reproduced
Chapter 8 SUMMARY AND CONCLUSIONS 8 1 Colombia has shown that, in the particular circumstances that characterize this case, there is no room for the Court to proceed with any delimitation of the continental shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan coast This conclusion is based on a number of considerations under international law, as well as on Nicaragua’s failure to sustain its burden of proof that the continental shelf areas situated beyond 200 nautical miles from its coast constitute the natural prolongation of its territory into and under the sea 8 2 First, Nicaragua has not proved that the areas it seeks to delimit in the present proceedings constitute the natural prolongation of its land territory To the contrary, Colombia has shown that there are a series of fundamental discontinuities and disruptions in the continental shelf off Nicaragua’s coast that interrupt any natural prolongation well before the 200-nautical-mile limit is reached As a question of fact, therefore, Nicaragua has not established that it has a natural prolongation of its land territory beyond 200 nautical miles from its coast that overlaps with Colombia’s 200-nautical-mile entitlements to the EEZ with its attendant continental shelf; 389
8 3 Second, Article 76 of UNCLOS contains an indivisible regime that is not opposable to Colombia, a State that has chosen to remain outside of that treaty This regime is not part of customary international law and in consequence its application is reserved exclusively for the States that are bound by the Convention 8 4 Third, notwithstanding what was said in the previous paragraph, the object and purpose of the outer continental shelf regime in UNCLOS, together with its negotiating history and subsequent State practice, shows that it was never intended that OCS claims should encroach over the ipso jure rights of a coastal State to a 200-nautical-mile EEZ with its attendant continental shelf, measured from its mainland or insular territory No outer continental shelf submission that encroaches on another State’s ipso jure 200-nautical-mile entitlement has ever been endorsed by the CLCS, and the overwhelming weight of State practice points to the same result If any part of Nicaragua’s OCS claim were to be accepted, it would encroach upon Colombia’s ipso jure entitlement to a 200 nautical miles EEZ with its attendant continental shelf generated from its mainland and islands This would be contrary to international law in that Colombia’s 200-nautical-mile ipso jure entitlement to an EEZ with its attendant continental shelf, prevails over any putative OCS of Nicaragua 8 5 Fourth, due to the semi-enclosed nature of the Caribbean Sea, there are no maritime areas that are situated more than 200 390
nautical miles from the nearest land territory of neighbouring
States In short, there are no areas for claiming an OCS in the
Caribbean All other Caribbean States except Nicaragua accept
this reality State practice, especially that of the States
particularly affected, shows that no Caribbean State – with the
isolated exception of Nicaragua – has ever claimed continental
shelf rights beyond 200 nautical miles from its coast in the
Caribbean Sea or made a submission to that effect to the CLCS
State practice on maritime delimitation also points to a general
understanding of the States of the region to the effect that all
delimitations of maritime entitlements in the Caribbean Sea
have been carried out within 200 nautical miles from the
mainland or insular coasts of each of the States involved
8 6 Fifth, Colombia is entitled to a 200-nautical-mile EEZ
with its attendant continental shelf, both from its mainland and
its islands With regard to the islands of San Andrés,
Providencia and Santa Catalina, the Court in its 2012 Judgment
already decided that they are entitled to an EEZ with its
attendant continental shelf in all directions This entitlement
extends approximately 100 nautical miles east of the 200-
nautical-mile limit from Nicaragua’s coast. The same applies to
other islands of the San Andrés Archipelago, in particular
Roncador, Serrana, Serranilla and Bajo Nuevo, which have been
shown to be islands that generate full entitlements The
entitlements of Colombia’s islands and the entitlement of its
mainland project into the area claimed by Nicaragua as its OCS
Nicaragua’s claim that the Colombian islands should not be
391
accorded any continental shelf rights east of Nicaragua’s 200-nautical-mile limit is thus fundamentally misplaced and runs contrary to established customary international law and the 2012 Judgment Moreover, Nicaragua’s OCS claim also encroaches on Colombia’s 200-nautical-mile entitlements from its mainland – a further reason why Nicaragua’s claim is misguided. As a result, the notion that a claimed Nicaraguan OCS can nullify Colombia’s ipso jure EEZ with its attendant continental shelf entitlements, should be rejected 8 7 Sixth, the principle that the “land dominates the sea” is well-established in international law It requires that any maritime title must be a contiguous, uninterrupted extension of the landmass. Nicaragua’s claim to an outer continental shelf violates this principle in three respects: (i) it is not based on a continuous natural prolongation of its land territory into and under the sea; (ii) it uses the maritime entitlements of other States as transit corridors to manoeuvre itself into Colombia’s maritime zone; and (iii) it seeks to leapfrog over Colombia’s and other States’ 200-nautical-mile maritime entitlements To avoid fragmentation of the oceans, maritime titles must be contiguous to the baselines of the coasts from which they emanate Consistent with this principle, there is not a single instance of State practice in which a State’s maritime entitlement reached the 200-nautical-mile limit, and then “leapfrogged” over or “tunnelled under” the 200-nautical-mile entitlements of another State, only to resurface further seaward on the other side Nor has any such claim ever been endorsed by the CLCS To the 392
extent that Nicaragua’s claim to an OCS seeks to do that, it must
be rejected
8 8 Seventh, in its Memorial Nicaragua clearly states that its
delimitation claim relies on the delineation of the outer limits of
its alleged OCS Yet, Nicaragua has not complied with the
procedures for establishing said outer limits, as it is obliged to as
a State Party to UNCLOS The Court has made it clear that
Nicaragua remains obliged to comply with these procedures
notwithstanding the fact that Colombia is not a Party to
UNCLOS Under Article 76, paragraph 8 of UNCLOS,
Nicaragua can only establish the outer limits of its alleged OCS
based on recommendations from the CLCS However, the CLCS
has not reviewed that claim and has not made any such
recommendations, and the mere filing of a submission is not
sufficient to establish an entitlement
8 9 Eighth, in the delimitation scenario proposed by
Nicaragua, the first step in the process, the identification of the
relevant area, is premised on the delineation of the outer limits
of an alleged continental margin that has not received the
approval of the CLCS It is true that the delineation of the outer
limits of an OCS and the delimitation of continental shelf areas
are distinct operations and that, in principle, the latter can be
undertaken independently of a recommendation from the CLCS
However, in cases in which this has been done it is because the
specific circumstances warranted it: they were cases involving
States Parties to UNCLOS in which there was no doubt that the
393
continental margin did extend beyond 200 nautical miles, the parties were in agreement in that respect, and the coastal geography made it possible to carry out a delimitation of the OCS without the need of a prior delineation of its outer limits, inasmuch as it involved States with adjacent coasts None of these circumstances obtains in the present case and, on the contrary, the very methodology put forward by Nicaragua pre-supposes that it will be for the Court to undertake for itself the operation of delineation, as a first step in the process of delimitation The Court should not accede to do this because it is a judicial body, inherently unsuited to do that, and because this would contradict what the Court itself has stated in its case-law and would disregard the terms of a convention that Nicaragua is bound to observe For these reasons also, Nicaragua’s claim must fail 8 10 Ninth, the CLCS is a body comprised of 21 experts in geology, geomorphology and hydrography who are specially qualified to assess outer continental shelf claims A submission not only has to be vetted by a seven-member sub commission, but by the CLCS as a whole The procedure before the CLCS is a collaborative process in which submissions made by States are frequently not accepted, or where additional data and proof, as well as substantive amendments, are required To this end, the CLCS requires rigorous scientific proof This is a very different process from judicial proceedings and it requires specialized scientific and technical knowledge. In Colombia’s respectful 394
view, it is not a task for which the Court should substitute itself
for the CLCS
8 11 Tenth, Nicaragua’s OCS claim also encroaches upon the
maritime entitlements of other States of the region Nicaragua
seeks to overcome this difficulty by relying on Colombia’s inter
se delimitation agreements with these States But Nicaragua is
not a Party to those agreements and cannot rely on them to limit
the entitlements of any of those States vis-à-vis itself If the
Court were to reduce the EEZ entitlement of Colombia, with its
attendant continental shelf, secured by Colombia as a Party to its
treaties with those States, they would then be entitled to claim as
their EEZ and continental shelf any such area which lies within
their respective 200-nautical-mile limits; such entitlement would
prevail over any competing OCS claim by Nicaragua Consistent
with its established jurisprudence, the Court should thus refrain
from prejudicing the potential maritime entitlements of third
States vis-à-vis Nicaragua, particularly in areas lying beyond
200 nautical miles from the Nicaraguan coast but within 200
nautical miles from the coasts of such States
* * *
8 12 Nicaragua’s Application should thus be dismissed
inasmuch as it goes against customary international law and
established State practice. But that is not all: Nicaragua’s claim
has a number of unsettling implications for the Law of the Sea
395
and the international community as a whole that should not be countenanced 8 13 As Colombia explained throughout this Counter-Memorial, Nicaragua’s claim, if accepted, even partially, would undermine the established public order of the oceans on three levels: the institutional, the global and the local Caribbean level 8 14 If claims to an outer continental shelf in a semi-enclosed sea are allowed to prevail over the 200-nautical-mile ipso jure entitlements of coastal States, this would run counter to the object and purpose of the OCS regime agreed under UNCLOS and well-established State practice New disputes would be likely to arise, and States would be thrown into confusion as to their maritime entitlements 8 15 Nicaragua’s attempt to nullify the maritime entitlements of the Colombian islands would similarly have a disruptive effect in the light of the extensive State practice in the matter 8 16 Were the Court to uphold Nicaragua’s submissions, it would have to entirely disregard overwhelming State practice and effectively rewrite customary international law Colombia believes that the Caribbean Sea – a confined, semi-enclosed sea with a “crowded geography”602 – should not serve as a testing ground for innovative delimitation experiments which would 602 The expression was used by Judge Donoghue (2012 Judgment, Separate Opinion, p 759, para 29) 396
undermine established practice and significantly complicate the orderly management of the oceans 8 17 Based on the foregoing, Colombia is of the firm view that Nicaragua has not established that it has an outer continental shelf beyond 200 nautical miles from its coast, nor did it establish that such a putative OCS overlaps with Colombia’s EEZ with its attendant continental shelf There are no overlapping maritime entitlements to be delimited, and it would be inappropriate in the particular circumstances of this case for the Court to proceed to a delimitation Consequently, Nicaragua’s request for delimitation should be dismissed and given Nicaragua’s propensity to treat the door to the World Court as a revolving one, that dismissal should be with prejudice 397
398
SUBMISSIONS
With respect to the Question of the Delimitation of the
Continental Shelf between Nicaragua and Colombia beyond 200
Nautical Miles from the Nicaraguan Coast, for the reasons set
out in this Counter-Memorial, and reserving the right to amend
or supplement these Submissions, Colombia respectfully
requests the Court to adjudge and declare that:
Nicaragua’s request for a delimitation of the continental shelf
beyond 200 nautical miles from its coast is rejected with
prejudice
CARLOS GUSTAVO ARRIETA PADILLA
Agent of Colombia
399
400
APPENDIX
Scientific Report:
Shortfalls in the Geological and Geomorphological Evidence for Natural Prolongation from the Nicaraguan Coast
Dr Lindsay Parson and Mr Peter Croker
401
402
Appendix (pages 403 to 446) not reproduced
VOLUME II: LIST OF ANNEXES AND FIGURES
Annexes
1. National Legislation
Annex 1 Law 10 of 4 August 1978
Annex 2 Law 1 of 8 February 1972
Annex 3 Ministry of Environment, Resolution Number 1426 of 20 December 1996, Excerpts from the Reasoning section and Articles 1 and 2
Annex 4 Ministry of Environment, Housing and Territorial Development, Resolution Number 107 of 27 January 2005
Annex 5 Colombian Institute for Agrarian Reform, Resolution Number 206 of 16 December 1968, Articles 3, 4 and 5
Annex 6 Corporation for the Sustainable Development of the San Andrés, Providencia and Santa Catalina Archipelago - CORALINA, Agreement Number 025 of 4 August 2005
Annex 7 Republic of Colombia, Political Constitution 1991,
Article 310
Annex 8 Presidential Decree Number 2762 of 13 December 1991, Excerpts from the Reasoning Section and Article 1
Annex 9 Law 47 of 19 February 1993, Articles 1 and 4
447
2. Colombian Official Documents
.
Annex 10 National Navy of Colombia, Selected Entries in the Report Book on Motor Vessels, Advanced Navy Detachment # 22 “Roncador”, opened on
29 November 2010
Annex 11 Ministry of Defense, General Maritime Direction, Sailing Record, Miss Ida, 14 January 2015
Annex 12 Ministry of Defense, General Maritime Direction, Sailing Record, Equivel, 17 February 2015
Annex 13 Ministry of Defense, General Maritime Direction, Sailing Record, Genesis III, 17 October 2015
Annex 14 Ministry of Defense, General Maritime Direction, Sailing Record, Miss Suseth, 15 February 2016
Annex 15 Ministry of Defense, General Maritime Direction, Sailing Record, Mar Azul, 19 September 2016
Annex 16 Colombian Ocean Commission, “Contribution to the knowledge of the Seaflower Biosphere Reserve”, Excerpts, Bogotá, 2015
3. International Agreements
Annex 17 Fishing Agreement between the Republic of Colombia and Jamaica, Bogotá, 30 July 1981
Annex 18 Fishing Agreement between the Republic of Colombia and Jamaica, Bogotá, 30 August 1984
448
4. Diplomatic Correspondence
.
Annex 19 Note S-DM-13-014681 from the Ministry of Foreign Affairs of Colombia, 22 April 2013
Annex 20 Note S-DM-13-035351 from the Ministry of Foreign Affairs of Colombia, 24 September 2013
Annex 21 Note Verbale from the Ministry of Foreign Affairs of Colombia, 5 February 2014
Annex 22 Note MCRONU-438-2013 from the Permanent Mission of Costa Rica to the United Nations, 15 July 2013
Annex 23 Letter from the Permanent Representative of Costa Rica to the United Nations, 20 January 2014
Annex 24 Note DGPE/DG/665/22013 from the Ministry of Foreign Affairs of Panama, 30 September 2013
Annex 25 Note DGPE/FRONT/082/14 from the Ministry of Foreign Affairs of Panama, 3 February 2014
Annex 26 Note LOS/15 from the Permanent Mission of Jamaica to the United Nations, 12 September 2013
Annex 27 Joint Communication from the Governments of Colombia, Costa Rica and Panama, 23 September 2013
Annex 28 Joint Communication from the Governments of Colombia, Costa Rica and Panama, 5 February 2014
Annex 29 Note from the Permanent Mission of Nicaragua to the United Nations, 20 December 2013
Annex 30 Note MINIC-NU-047-13 from the Permanent Mission of Nicaragua to the United Nations, 20 December 2013
Annex 31 Note MINIC-NU-048-13 from the Permanent Mission of Nicaragua to the United Nations, 20 December 2013
449
Annex 32 Note MINIC-NU-049-13 from the Permanent Mission of Nicaragua to the United Nations, 20 December 2013
Annex 33 Note MINIC-NU-050-13 from the Permanent Mission of Nicaragua to the United Nations, 20 December 2013
5. Affidavits
Annex 34 Affidavit by Mr Milford Danley Mckeller Hudgson
Annex 35 Affidavit by Mr Barrington Espedito Watler Robinson
Annex 36 Affidavit by Mr Artimas Alcides Britton Davis
Annex 37 Affidavit by Mr Julio Eusebio Robinson Hawkins
Annex 38 Affidavit by Mr Anselmo Dawkins Duffis
Annex 39 Affidavit by Mr Beltran Juvencio Fernández Hoy
Annex 40 Affidavit by Mr Willberson Fernando Archbold Robinson
Annex 41 Affidavit by Mr Carson Antonio Brown Archbold
Annex 42 Affidavit by Mr Fidelino Gomez Bernard
6. Other Documents
Annex 43 W. T. Burke, “Customary Law as Reflected in the LOS Convention: A Slippery Formula”, The International Implications of Extended Maritime Jurisdiction in the Pacific, Law of the Sea Institute, William S. Richardson School of Law, University of Hawaii, 1989
450
Annex 44 R. A. Kinzie III, “Caribbean Contributions to Coral Reef Science”, Oceanographic History: The Pacific and Beyond, K. R. Benson and P. F. Rehbock (Eds.), University of Washington Press, 2002
Annex 45 E.D. Brown, “Rockall and the Limits of National Jurisdiction of the United Kingdom”, Part 1, Marine Policy, IPC Business Press, 1978
Annex 46 R. Crocombe, The Pacific Islands and the USA, Chapter 2 - Territory, Institute of Pacific Studies, University of the South Pacific, 1995
Annex 47 J. Bond and R. Meyer de Schauensee, “The Birds”, The Academy of Natural Sciences of Philadelphia, Monographs, Number 6, Results of the Fifth George Vanderbilt Expedition (1941), Wickersham Printing
Company, 1944
Annex 48 M. C. Prada Triana, “Comparative Study of a Section of the Seaflower MPA as Potential World Heritage Site”, Corporación para el Desarrollo Sostenible del Archipiélago de San Andrés, Providencia y Santa Catalina (CORALINA), 2009
Annex 49 Description of the Procedure and Scientific Rigour employed by the CLCS
Annex 50 Submissions to the CLCS in relation to 200nm Entitlements of other States: An Assessment of State
Practice
451
Figures
Figures in Chapter 3
Figure 3.1 Denmark (Greenland) / Norway (Svalbard) Boundary Agreement: 2006
Figure 3.2 Bulgaria / Turkey Boundary Agreement: 1997
Figure 3.3 Denmark (Faroe Islands) / United Kingdom Boundary Agreement: 1999
Figure 3.4 Federated States of Micronesia / Palau Boundary
Agreement: 2006
Figure 3.5 Denmark (Greenland) / Iceland Boundary Agreements: 1997 & 2014
Figure 3.6 Denmark (Faroe Islands) / Iceland / Norway Boundary Agreements: 2006
Figure 3.7 Australia / New Zealand Boundaries and OCS Claims
Figure 3.8 Norway / Russia Boundary Agreement: 1957 & 2010
Figure 3.9 Ireland / United Kingdom Boundary Agreement:
1988 & 2013
Figure 3.10 Australia / Indonesia Boundary Agreements: 1971-1997
Figure 3.11 Gray Areas produced in the Bay of Bengal to help mitigate the dramatic cut-off effect on Bangladesh’s coastal projection
Figure 3.12 Denmark’s Submission to the CLCS for the area north of the Faroe Islands
452
Figure 3.13a Japan’s Submission to the CLCS for the area south of Oki-no-tori Shima
Figure 3.13b Japan’s Submission to the CLCS for the area east of
Oki-no-tori Shima
Figure 3.13c Japan’s Submission to the CLCS for the area west of
Marcus Island
Figure 3.14 France’s Submission to the CLCS for the area south of New Caledonia
Figure 3.15 Spain’s Submission to the CLCS for the area west of the Canary Islands
Figure 3.16 The Bahama’s Submission to the CLCS for the area northeast of Grand Bahama Island
Figure 3.17 Libya/Malta ICJ Judgment: 1985
Figure 3.18 An OCS Claim based on natural prolongation cannot encroach upon another State’s 200 M EEZ and
continental shelf
Figures in Chapter 4
Figure 4.1 Colombia’s 200 NM entitlements to an EEZ and
continental shelf
Figure 4.2 Colombian Mainland’s 200 NM extension of its EEZ and continental shelf
Figure 4.3 San Andrés, Providencia and Santa Catalina’s 200 NM extension of their EEZ and continental shelf
Figure 4.4 Roncador, Serrana, Serranilla and Bajo Nuevo’s
200 NM extension of their EEZ and continental shelf
453
Figure 4.5 Filfla Islet, Malta
Figure 4.6 Quitasueño Cay (QS-32)
Figure 4.7 Rocas Alijos, Mexico
Figure 4.8 Roca Partida, Mexico
Figure 4.9 Rockall, U.K.
Figure 4.10 Ducie Island, U.K.
Figure 4.11 Oeno Atoll, U.K.
Figure 4.12 Aves Island, Venezuela
Figure 4.13 Howland Island, U.S.
Figure 4.14 Baker Island, U.S.
Figure 4.15 Kingman Reef, U.S.
Figure 4.16 Middleton Reef, Australia
Figure 4.17 Australia – New Zealand Maritime Boundary
Figure 4.18 Elizabeth Reef, Australia
Figure 4.19 Ujelang Island, Marshall Islands
Figure 4.20 Vostok Island, Kiribati
Figure 4.21 Flint Island, Kiribati
Figure 4.22 Tromelin Island, France
Figure 4.23 Tromelin Island’s Exclusive Economic Zone
Figure 4.24 Clipperton Island, France
454
Figure 4.25 Matthew Island, France
Figure 4.26 Bassas da India, France
Figure 4.27 McKean Island, Kiribati
Figure 4.28 Conway Reef, Fiji
Figure 4.29 Okinotorishima, Japan
Figure 4.30 Okinotorishima, Japan
Figure 4.31 Minamitorishima, Japan
Figure 4.32 Pedra Branca, Singapore
Figure 4.33 Aves Island, Venezuela
Figure 4.34 Saint Peter & Paul Rocks, Brazil
Figure 4.35 Saint Peter & Paul Rocks, Brazil
Figure 4.36 Satellite image of Roncador Atoll and U.S. Naval
Chart 1374
Figure 4.37 Roncador Cay
Figure 4.38 Roncador Cay
Figure 4.39 Roncador Cay Detachment
Figure 4.40 Installations on Roncador Cay
Figure 4.41 Roncador Cay, Rockall and Rocas Alijos
Figure 4.42 Roncador’s 200 NM extension of its EEZ and
continental shelf
Figure 4.43 Satellite image of Serrana Atoll and U.S. Naval Chart 1374
455
Figure 4.44 Aerial photographs of Serrana Cay
Figure 4.45 Serrana Cay
Figure 4.46 Installations on Serrana Cay
Figure 4.47 Serrana Cay
Figure 4.48 Photographs of Serrana Cay
Figure 4.49 Serrana Cay, Rockall and Rocas Alijos
Figure 4.50 Serrana’s 200 NM extension of its EEZ and continental
shelf
Figure 4.51 Satellite image of Serranilla Atoll and U.S. Naval
Chart 1489
Figure 4.52 Aerial photographs of Serranilla Cay
Figure 4.53 Serranilla Cay
Figure 4.54 Photographs of Serranilla Cay
Figure 4.55 Photographs of Serranilla Cay
Figure 4.56 Serranilla Cay, Rockall and Rocas Alijos
Figure 4.57 Serranilla’s 200 NM extension of its EEZ and continental
shelf
Figure 4.58 Bajo Nuevo Atoll and Satellite Image of Bajo Nuevo
Figure 4.59 The lighthouse on Bajo Nuevo
Figure 4.60 Bajo Nuevo Cay, Rockall and Rocas Alijos
Figure 4.61 Bajo Nuevo’s 200 NM extension of its EEZ and
continental shelf
456
Figure 4.62 Roncador, Serrana, Serranilla and Bajo Nuevo’s 200 NM extension of their EEZ and continental shelf
Figures in Chapter 5
Figure 5.1 Maritime boundaries in the Baltic Sea
Figure 5.2 Maritime boundaries in Northern and Western Europe
Figures in Chapter 6
Figure 6.1 The 200 NM notional entitlements of third States beyond 200 NM of Nicaragua and Colombia’s entitlements
Figures in Chapter 7
Figure 7.1 Memorial of Nicaragua: Figure II. Nicaragua v. Honduras Maritime Dispute
Figure 7.2 Nicaragua’s natural prolongation in accordance with the 200m isobath
Figure 7.3 Nicaragua’s natural prolongation in accordance with the 1,500m isobath
Figure 7.4 Figure 2-2 from Nicaragua’s 2013 Submission to the CLCS
Figure 7.5 The Caribbean-Colombian Cretaceous Large Igneous Province (CCCLIP)
Figure 7.6 Early and late Eocene/Oligo-Miocene petroleum system on the Nicaraguan Rise: Insights from basin and three-dimensional petroleum system modeling
457
Figure 7.7 Profile along the crest of the Hess Escarpment (yellow) vs. Seafloor at base (orange)
Figure 7.8 The Jan Mayen Ridge
Figure 7.9 Map showing geology, oil and gas fields, and geologic provinces of the Caribbean region: USGS 2004
Figure 7.10 3-D image created using VUE Infinite with data from the 2014 GEBCO bathymetric grid
Figure 7.11 Location of bathymetric profile
Figure 7.12 Profile orthogonal to Nicaraguan coastline, across the Providencia Trough, to Colombia Basin
Figure 7.13 Colombia Nautical Chart 1601
Figure 7.14 Bathymetric profile sketch between Australia and
East Timor
Figure 7.15 Figure 2-14 from Nicaragua’s 2013 Submission to the
CLCS
Figure 7.16 Nicaragua’s bathymetric profile
Figure 7.17 General bathymetric trend lines taken at 200m increments to a depth of 1,000m
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