Reply of Nicaragua

INTERNATIONAL COURT OF JUSTICE DISPUTE CONCERNING THE QUESTION OF THE DELIMITATION OF THE CONTINENTAL SHELF BETWEEN NICARAGUA AND COLOMBIA BEYOND 200 NAUTICAL MILES FROM THE NICARAGUAN COAST (NICARAGUA V. COLOMBIA) REPLY OF THE REPUBLIC OF NICARAGUA VOLUME I 9 July 2018

TABLE OF CONTENTS
LIST OF FIGURES................................................................................................v
CHAPTER 1. INTRODUCTION...........................................................................1
A. The Procedural Context............................................................................1
B. The Subject-Matter of the Dispute...........................................................2
C. Outline of the Reply.................................................................................4
CHAPTER 2. THE COURT MAY DELIMIT THE PARTIES’
CONTINENTAL SHELF ENTITLEMENTS...............................................9
A. The Law Applicable to the Present Dispute.............................................9
B. Nicaragua’s Continental Shelf Entitlement is Opposable to
Colombia................................................................................................12
C. The Respective Roles of the ICJ and the CLCS.....................................25
1. The Court Has Already Found That A Recommendation
By The CLCS Is Not A Prerequisite To The
Delimitation Of The Continental Shelf Beyond
200 Nautical Miles....................................................................26
2. The Court May Entertain Nicaragua’s Delimitation
Request.....................................................................................29
a. The CLCS does not delineate the outer limit of the
continental shelf of States.............................................31
b. The Court’s task in the present case..............................35
CHAPTER 3. CONTINENTAL SHELF ENTITLEMENT..................................41
A. Nicaragua’s Submission To The CLCS Confirms That It Is
Entitled To A Continental Shelf Beyond 200 M.....................................42
1. Summary Of Nicaragua’s Submission To The CLCS..............42
a) Regional Geomorphology.............................................43
b) The Limits of the Continental Margin...........................46
B. “Natural Prolongation” Does Not Have The Meaning Colombia
Seeks To Ascribe To It............................................................................51
1. Colombia’s “Natural Prolongation” Argument Is
Inconsistent With The Jurisprudence........................................53
i
2. An Analysis Of Article 76 In Accordance With The
Vienna Convention On The Law Of Treaties Proves
That ITLOS Was Correct..........................................................58
a. The Text of Article 76....................................................59
b. Context..........................................................................62
c. Object and Purpose.......................................................64
d. The Practice of the CLCS.............................................65
e. The Travaux Préparatoires...........................................70
C. Colombia’s Geological and Geomorphological Arguments Are
Wrong in Any Event...............................................................................75
1. Regional Geology.....................................................................75
2. The Upper And Lower Nicaraguan Rise Are
Geologically Continuous..........................................................80
3. The Upper And Lower Nicaraguan Rise Are
Geomorphologically Continuous..............................................86
CHAPTER 4: ENTITLEMENT OF COLOMBIA’S ISLANDS AND CAYS.....97
A. San Andrés and Providencia...................................................................98
B. Cays of Roncador Serrana, Serranilla and Bajo Nuevo........................101
1. Article 121(3) Reflects Customary International Law...........101
a. The Court’s Jurisprudence on the customary law
status of Article 121(3)................................................102
b. State practice has not led to a divergence between
conventional and customary international law ..........104
2. The Term “Rocks” Does Not Apply Only to “Geological” |. Rocks......................................................................................115
a. Colombia’s interpretation of the term ‘rock’ leads
to a manifestly absurd and unreasonable result.........116
b. The drafting history of Article 121(3).........................120
c. The jurisprudence on the meaning of the term
‘rock’ ...........................................................................125
d. State Practice..............................................................127
3. Sustaining Human Habitation and Economic Life of
their Own................................................................................129
ii
4. The Cays on the Banks of Serrana, Roncador, Serranilla
and Bajo Nuevo Are Rocks that Cannot Sustain Human
Habitation or Economic Life of Their Own...........................137
a. Serrana Has No Entitlement Beyond 12M..................138
b. Roncador Has No Entitlement Beyond 12M...............145
c. Serranilla Has No Entitlement Beyond 12M...............148
d. Bajo Nuevo Has No Entitlement Beyond 12M............152
CHAPTER 5. A STATE’S ENTITLEMENT TO CLAIM A 200 NM EEZ
WITH ITS ATTENDANT RIGHTS OVER THE SEABED DOES
NOT EXTINGUISH ANOTHER STATES OVERLAPPING OCS
CLAIM......................................................................................................159
A. The Continental Shelf, Including The Portion Beyond 200 Nm,
Is An Ipso Jure Entitlement Of Each Coastal State, Which
Automatically Appertains To The Coastal State……….......................161
B. An Overlap Between One State’s OCS And Another State’s
Continental Shelf Within 200 NM Requires Delimitation In The
Normal Way………………………………………..............................171
C. The Juridical Nature Of The Rights Of The Coastal State Are The
Same Throughout Its Entire Continental Shelf.....................................174
D. Qualifying Islands And Mainlands Are Subject To The Same
Customary International Law Regime Regarding Their Continental
Shelves, But May Be Treated Differently In The Context Of
Delimitation..........................................................................................176
E. The UNCLOS Travaux Préparatoires And State practice....................177
1. The Universalization And Central Importance Of The
200-Nautical-Mile Limit.........................................................178
2. The Distinction Between The EEZ And The OCS.................179
3. The OCS May Overlap With The Continental Shelf Of
Another State Or May Direcly Abut The International
Seabed Area............................................................................182
4. Continental Shelf Claims Under UNCLOS Article 76(1)
Based On The 200 NM ‘Distance’ Criterion Have No
Automatic Precedence Over Continental Shelf Claims
Under Unclos Article 76(1) Based On The Outer Edge
Of The Continental Margin....................................................184
iii
F. State Practice Evidences No Juridical Distinction Or Hierarchy
Between The Entitlement To A Continental Shelf Within 200NM
And The Entitlement To A Continental Shelf Beyond 200 NM...........185
CHAPTER 6. THE RIGHTS OF THIRD STATES WOULD NOT BE
AFFECTED BY THE DELIMITATION NICARAGUA PROPOSES.....193
A. A Large Portion of the Relevant Area Is Beyond Any Potential
Claims by a Third State........................................................................194
B. The Delimitation of the Boundary between Nicaragua and
Colombia Is Without Prejudice to Third States....................................196
CHAPTER 7. CONCLUSIONS.........................................................................203
SUBMISSIONS..................................................................................................209
CERTIFICATION...............................................................................................211
LIST OF ANNEXES...........................................................................................213
iv
LIST OF FIGURES
Figure 3.1
Regional Geomorphology of the SW Caribbean
43
Figure 3.2
Regional Geomorphology of the SW Caribbean – perspective view
44
Figure 3.3
Nicaragua’s Eight Foot of Slope Points
47
Figure 3.4
Formula line: FOS + 60M
48
Figure 3.5
Construction of the Outer Limit of the Continental Shelf
49
Figure 3.6
The Outer Continental Shelf in the Relevant Area
50
Figure 3.7
Outer limits of the continental shelf of New Zealand reflecting the recommendations of the Commission adopted 22nd August 2008
67
Figure 3.8
Philippines’ Outer Continental Shelf in the Benham Rise Area
69
Figure 3.9
Regional Tectonics of the SW Caribbean
76
Figure 3.10
Eastwards Motion of the Caribbean Plate from 125 Ma to Present
78
Figure 3.11
Continental Reconstruction and Geological Terrane Accretion in the Caribbean (upper) and NW Colombia (below)
79
Figure 3.12
The Chortis and Siuna Blocks forming the Nicaraguan Landmass
and the Western Part of the Nicaragua Rise
82
Figure 3.13
Accretion of Crustal Blocks in the Caribbean Plate
84
Figure 3.14
Modification of Figure 1 from the Parson-Croker Report showing the effect of differing colour intervals
88
Figure 3.15
Geomorphological Trend Lines showing the Extent of the Nicaraguan Rise
90
Figure 3.16
Transverse profiles illustrating morphological coherency of the Nicaraguan Rise.
92
Figure 3.17
Example of a continental margin used as illustration by the CLCS
94
Figure 3.18
Philippines’ Outer Continental Shelf: Connection between the Benham Rise and the continental slope
96
Figure 4.1
Final Delimitation
99
Figure 4.2
Aves Island, Venezuela
107
Figure 4.3
The Outer Limits of the EEZs of Malaysia and Vietnam in the South China Sea
111
Figure 4.4
200M Limits for Mainlands and Entitled Islands
157
Figure 6.1
200M Limits for Colombia, Jamaica and Panama
196
Figure 6.2
Costa Rica/Nicaragua line
200
Figure 7.1
Final Delimitation
208
v

CHAPTER 1. INTRODUCTION
1.1 After summarising the procedural context of this submission, (A.) this
Introduction briefly recalls the questions at the core of this case and the manner in
which they relate to the Court’s Judgment dated 19 November 2012 in the case
concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia) (‘the
2012 Judgment’),1 (B.), and gives an outline of the present Reply (C.).
A. The Procedural Context
1.2 Nicaragua submits this Reply in accordance with the Court’s Order of 8
December 2017.2
1.3 Nicaragua filed its Application instituting proceedings in this case on 16
September 2013. It made two requests of the Court. First, it asked the Court to
establish “[t]he precise course of the maritime boundary between Nicaragua and
Colombia in the areas of the continental shelf which appertain to each of them
beyond the boundaries determined by the Court in its Judgment of 19 November
2012”. Nicaragua’s Second Request asked the Court to declare “[t]he principles
and rules of international law that determine the rights and duties of the two
States in relation to the area of overlapping continental shelf claims and the use of
1 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J Reports 2012, p.
624.
2 I.C.J., Order, 8 December 2017, Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v.
Colombia).
1
its resources, pending the delimitation of the maritime boundary between them beyond 200 nautical miles from Nicaragua’s coast”. 1.4 On 14 August 2014, Colombia raised preliminary objections to the jurisdiction of the Court. In its Judgment dated 17 March 2016, the Court found that it had jurisdiction on the basis of Article XXXI of the Pact of Bogotá to entertain Nicaragua’s First Request and that that Request was admissible, while Nicaragua’s Second Request was inadmissible. The Court made an Order on 28 April 2016, fixing new time-limits for the filing of the Memorial and Counter-Memorial, and a further Order on 8 December 2017, fixing the time-limits for the filing of this Reply and of a Rejoinder. 1.5 Nicaragua’s Reply draws the appropriate consequences from the Court’s Judgment of 17 March 2016 and its Orders of 28 April 2016 and 8 December 2017, and does not address claims that are outside the Court’s jurisdiction or have been declared inadmissible. B. The Subject-Matter of the Dispute 1.6 The Court’s Judgment dated 19 November 2012 in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia) decided on the course of the single maritime boundary delimiting the continental shelf and the exclusive economic zones of the Republic of Nicaragua and the Republic of 2
Colombia eastwards from the Nicaraguan coast out as far as the 200-nautical-mile
limit from the baselines from which the territorial sea of Nicaragua is measured.3
1.7 In accordance with customary international law, reflected in Article 76(1)
of the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’),
Nicaragua claims a continental shelf that includes, in the words of Article 76(1),
“the sea-bed and subsoil of the submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its land territory to the outer edge of
the continental margin.” That continental margin includes areas of seabed that lie
more than 200 nautical miles from Nicaragua’s baselines.
1.8 UNCLOS Article 76 stipulates that the outer limits of the continental shelf,
defined by the coastal State in accordance with the detailed criteria set out in
Article 76, are “final and binding” if they are established on the basis of the
recommendations of the Commission on the Limits of the Continental Shelf
(‘CLCS’), established under UNCLOS, concerning the location of the outer limits
of the continental shelf. Those recommendations are themselves made on the
basis of data concerning the characteristics of the seabed provided to the CLCS
by the coastal State.
1.9 In the 2012 Judgment, the Court observed that Nicaragua had at that time
not submitted to the CLCS all of the data that would ultimately be required4 to
3 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J Reports 2012, p.
624, para. 251(4).
4 Nicaragua had, on 7 April 2010, submitted to the CLCS the Preliminary Information that it was
required to submit at that time. The rules of the CLCS permitted States to make an initial filing of
3
enable the CLCS to make its recommendations concerning the location of the outer limits of the continental margin. The Court went on to hold that Nicaragua had not established that it has a continental margin that extends far enough to overlap with Colombia’s 200-nautical-mile entitlement to a continental shelf, and that the Court was therefore not in a position to delimit the continental shelf boundary between Nicaragua and Colombia as requested by Nicaragua in that case.5 1.10 On 24 June 2013, in accordance with the CLCS rules, Nicaragua made its full submission to the CLCS. Having done everything required of it in this respect by UNCLOS, Nicaragua filed its Application in the present case on 16 September 2013, requesting the Court to complete the delimitation of Nicaragua’s continental boundary with Colombia. C. Outline of the Reply 1.11 There are six further chapters in this Reply. Chapter Two responds to the arguments in Chapter 2 of the Counter-Memorial, in which Colombia argued that the continental shelf more than 200 NM from the baselines is, for UNCLOS States Parties, subject to a special set of rules distinct both from the regime applicable to the area of the continental shelf closer to shore and from the regime of the continental shelf under customary international law, and that the applicable ‘Preliminary Information’ followed at a later date by fuller data: see UN Doc. SPLOS/183, 20 June 2008. 5 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J Reports 2012, p. 624, para. 129. 4
law so far as concerns Colombia in this case is different from the applicable law
so far as concerns Nicaragua. Colombia further argued that the Parties to
UNCLOS have excluded the delineation of the outer limit of the continental shelf
from the jurisdiction of this Court and conferred exclusive competence in relation
to that task on the CLCS established under UNCLOS.
1.12 Chapter Two of this Reply argues that this conception of the applicable
law is incoherent and incorrect, and sets out Nicaragua’s submission regarding
the applicable law and the respective roles and competences of the Court and of
the CLCS.
1.13 Chapter Three of this Reply responds to arguments concerning the
substantive law applicable to the continental shelf that are set out in Chapters 2, 5
and 7 of the Counter-Memorial. Those arguments relate to the precise nature of
the juridical concept of the continental shelf, and to the manner in which an
entitlement to a continental shelf is to be proved. Nicaragua’s Chapter Three sets
out Nicaragua’s legal submissions on the nature of the continental shelf and of the
entitlement to it, and also sets out the technical details of the basis of Nicaragua’s
continental shelf entitlement, derived from expert reports.
1.14 Chapter Four of this Reply responds to Chapter 4 of the Counter-
Memorial, in which Colombia addressed the question of the continental shelf and
exclusive economic zone (‘EEZ’) entitlements of islands and rocks. Chapter Four
of the Reply submits that Colombia has both mis-stated and misapplied the law
5
relating to the entitlements of minor maritime features such as rocks and islets. In doing so Colombia has wrongly conflated the question of the entitlement of a feature to a continental shelf with the question of the effect of a feature on the delimitation of the course of a maritime boundary. 1.15 Chapter Five of this Reply responds to Chapter 3 of the Counter-Memorial, in which Colombia argued that as a matter of international law a State’s entitlement to a 200 NM EEZ and continental shelf based on the ‘distance from the coast’ criterion automatically enjoys precedence over another State’s overlapping continental shelf entitlement based on its rights over the continental shelf out to the edge of its continental margin when that edge lies more than 200 NM from the coast, under customary international law, enshrined in UNCLOS Article 76(1). Chapter Five submits that Colombia’s argument has no basis in international law. 1.16 Chapter Six of this Reply responds to Chapter 6 of the Counter-Memorial, in which Colombia argued that the rights of third States would be affected by Nicaragua’s continental shelf claims in the Caribbean Sea. Nicaragua submits in Chapter Six that Colombia’s argument concerning the rights of third parties is based on an erroneous assumption, not only because the Court’s delimitation of the boundary between Nicaragua and Colombia will be res inter alios acta as to third States, and therefore without prejudice to their interests, but 6
also because a large portion of the relevant area is beyond any potential claims by
a third State.
1.17 Chapter Seven of this Reply sets out Nicaragua’s Conclusions and
Submissions
7
8
CHAPTER 2. THE COURT MAY DELIMIT THE PARTIES’
CONTINENTAL SHELF ENTITLEMENTS
2.1 In Chapter 2 of its Counter-Memorial, Colombia contends that the Court
may not proceed with the delimitation of the continental shelf beyond 200
nautical miles from Nicaragua’s coasts. In support of this claim, the Respondent
develops two main arguments, with which Nicaragua will deal in turn:
- Nicaragua’s continental shelf entitlement beyond 200 nautical miles would
not be opposable to Colombia (B.); and
- CLCS recommendations would be a pre-requisite to the delimitation in the
present case (C.).
Both assertions are misconceived.
2.2 Before turning to Colombia’s first argument, it is necessary to come back
to the law applicable to the present dispute which Colombia misrepresents (A.).
A. The Law Applicable to the Present Dispute
2.3 Throughout its Counter-Memorial, Colombia treats Article 76(8) of
UNCLOS and other provisions of this Convention related to the CLCS as part of
the applicable law between the Parties. The Respondent makes the extraordinary
claim that “different laws and procedures apply to the Applicant and its
9
Application, on the one hand, and to the Respondent and its defence, on the other.”6 It further stresses that: “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.”7 By contrast, “the Respondent is not a Party to UNCLOS and is only subject, in these proceedings, to customary international law.”8 2.4 The position Colombia adopts today contradicts the position it defended in the Territorial and Maritime Dispute. As the Court noted in its 2012 Judgment, “[t]he Parties agree that, since Colombia is not a party to UNCLOS, only customary international law may apply in respect to the maritime delimitation requested by Nicaragua.”9 As Colombia rightly notes, pacta tertiis nec nocent nec prosunt.10 This principle has been codified in Article 34 of the Vienna Convention on the Law of Treaties.11 It is the corollary of the maxim res inter alios acta. As the Court noted in the Anglo-Iranian case, it means that a treaty to which only one of the Parties to a dispute is a contracting State “cannot produce any legal 6 CCM, para. 2.1. 7 Ibid., para. 2.2. 8 Ibid., para. 2.3. 9 I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v. Colombia), Reports 2012, p. 666, para. 114 – emphasis added. See the Counter-Memorial of Colombia in the Territorial and Maritime Dispute, 11 November 2008, para. 4 of the Introduction to Part III and para. 9.3. 10 CCM, para. 2.12. 11 U.N.T.S., Vol. 1155, No. 18232, p. 341 (“A treaty does not create either obligations or rights for a third State without its consent”). 10
effect as between” 12 the Parties to the dispute. It follows that provisions of
UNCLOS which do not reflect customary international law cannot be invoked in
the present proceedings.
2.5 In the present case, the Parties agree that Article 76(1), 83 and 121 of
UNCLOS reflect customary international law and are applicable between the
Parties. They also agree that the provisions concerning the CLCS are not part of
customary international law. 13 Therefore, these provisions cannot have, by
themselves, any impact on the decision that the Court has been requested to take.
2.6 Conversely, the Parties disagree on the customary nature of paragraphs 2
to 6 of Article 76 of UNCLOS. As shown in the next Section, these paragraphs
are part of customary international law and, consequently, are applicable to the
present case. This leads to the inescapable conclusion that Nicaragua’s
entitlement to a continental shelf “throughout the natural prolongation of its land
territory to the outer edge of the continental margin” in accordance with the
formula in Article 76(1) of the UNCLOS, as elaborated in Article 76, paragraphs
2 to 6, is opposable to Colombia.
2.7 In other words, both Colombia and Nicaragua are bound by the
substantive rules set out in Article 76, which now reflect customary international
law and are part of the public order of the oceans; in their bilateral relations, they
are not bound by the “institutional” rules included in the UNCLOS, notably by
12 I.C.J., Judgment, 22 July 1952, Anglo-Iranian Oil Co. case, Preliminary Objections, Reports
1952, p. 109.
13 See CCM, para. 2.21.
11
those concerning the CLCS. Neither Colombia nor Nicaragua, in their relations inter se, can rely upon said rules or upon the possible findings of the Commission. B. Nicaragua’s Continental Shelf Entitlement is Opposable to Colombia 2.8 In support of its claim that “the OCS [outer continental shelf] is not an entitlement per se”14 and hence not opposable to it, Colombia presents three arguments according to which the continental shelf entitlement beyond 200 nautical miles is dependent on “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).”15 2.9 Nicaragua will address each of these arguments in turn below. 2.10 The first Colombian argument is that the “privilege of acquiring an OCS is granted in return for revenue sharing.”16 2.11 It is true that Article 82 of UNCLOS obliges States to “make payments or contributions in kind in respect of the exploitation of the non-living resources of 14 CCM, para. 2.9. 15 Ibid. 16 CCM, p. 36. 12
the continental shelf beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured.”17
2.12 It is also true that Article 82 is a conventional provision and does not
reflect customary international law. This simply means that third States may not
be required to make such payments and that in turn they cannot claim
redistribution from the International Seabed Authority as provided for in
paragraph 4 of Article 82. Nothing less, nothing more. And, of course, as a Party
to the Convention, Nicaragua, will comply with Article 82.
2.13 Significantly, Article 82 does not address the nature of States’ continental
shelf entitlements. As aptly explained by ITLOS, a procedural requirement like
the one contained in article 82
“does not imply that entitlement to the continental shelf depends on any
procedural requirements. As stated in article 77, paragraph 3, of the
Convention, ‘[t]he rights of the coastal State over the continental shelf
do not depend on occupation, effective or notional, or on any express
proclamation’”.
A coastal State’s entitlement to the continental shelf exists by the sole fact that
the basis of entitlement, namely, sovereignty over the land territory, is present. It
does not require the establishment of outer limits.”18
2.14 This statement is applicable mutatis mutandis to Article 82 payments and
contributions.19
17 Article 82 of UNCLOS.
18 I.T.L.O.S, Judgment, 14 March 2012, Delimitation of the maritime boundary in the Bay of
Bengal (Bangladesh/Myanmar), Reports 2012, p. 107, paras. 408-409. See also paras. 2.52-2.54
below.
13
2.15 Moreover, Colombia’s position is contradicted by its acceptance of the customary nature of Article 76(1),20 which does not distinguish between an inner and an outer continental shelf.21 The unavoidable conclusion is that the entitlement provided for in Article 76(1) is customary but not Article 82, it means that the entitlement to an extended continental shelf does not depend on revenue-sharing. As was recalled in Section A above, an entitlement under customary international law cannot be subject to a treaty-based and non-customary law condition. 2.16 Colombia’s second argument is that “the realization of an OCS claim requires prior determination by the CLCS.”22 Nicaragua will address this argument in more detail in Section C below.23 Suffice it to recall here that, in the words of ITLOS, “the existence of entitlement does not depend on the establishment of the outer limits of the continental shelf by the coastal State.”24 19 Colombia’s description of Article 82 payments as “royalty” (CCM, para. 2.9) is inadequate. A royalty is money paid to the owner of the right. This is not the case here. The owner of the right is the coastal State. Article 82 payments resembles more to a tax on the coastal State’s property. 20 I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v. Colombia), Reports 2012, p. 666, para. 117 (“Colombia accepts that paragraph 1 of Article 76 reflects customary international law”). 21 See Decision of 11 April 2006, R.I.A.A., Vol. XXVII, pp. 208-209, para. 213; I.T.L.O.S, Judgment, 14 March 2012, Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Reports 2012, pp. 96-97, para. 362 and Special Chamber, Judgment, 23 September 2017, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire), para. 490. 22 CCM, p. 40. 23 See paras. 2.37-2.63 below. 24 I.T.L.O.S., Judgment, 14 March 2012, Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Reports 2012, p. 107, para. 409. 14
2.17 The third argument developed by Colombia is that Article 76(4) of
UNCLOS cannot be invoked by Nicaragua in the present case because it is not
part of customary international law.25
2.18 To recall, the Parties agree that “the definition of the continental shelf set
out in Article 76, paragraph 1, of UNCLOS forms part of customary international
law.”26 They disagree, however, on the customary status of the other paragraphs
of Article 76. For the purposes of the present case, the other relevant paragraphs
are paragraphs 2 to 6. Colombia asserts they do not reflect customary
international law.27 Nicaragua will show that they do.
2.19 Article 76 concerns the “Definition of the continental shelf”. It reads as
follows:
“1. The continental shelf of a coastal State comprises the seabed and
subsoil of the submarine areas that extend beyond its territorial sea
throughout the natural prolongation of its land territory to the outer edge
of the continental margin, or to a distance of 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured where
the outer edge of the continental margin does not extend up to that
distance.
2. The continental shelf of a coastal State shall not extend beyond the
limits provided for in paragraphs 4 to 6.
3. The continental margin comprises the submerged prolongation of the
land mass of the coastal State, and consists of the seabed and subsoil of
the shelf, the slope and the rise. It does not include the deep ocean floor
with its oceanic ridges or the subsoil thereof.
4. (a) For the purposes of this Convention, the coastal State shall
establish the outer edge of the continental margin wherever the margin
25 See CCM, paras. 2.17 and 2.22-2.28.
26 I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v.
Colombia), Reports 2012, p. 666, paras. 116-117.
27 See CCM, para. 2.5-2.17
15
extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either: (i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or (ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope. (b) In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base. 5. The fixed points comprising the line of the outer limits of the continental shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres. 6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs. 7. The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by coordinates of latitude and longitude. 8. Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding. 9. The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto. 16
10. The provisions of this article are without prejudice to the question of
delimitation of the continental shelf between States with opposite or
adjacent coasts.”
2.20 Paragraphs 1 to 6 of Article 76 are closely interrelated and they are
necessary for understanding paragraph 1, as they explicate the meaning of the
determination of the continental shelf in Article 76(1). As the ITLOS explained,
“the reference to natural prolongation in article 76, paragraph 1, of the
Convention, should be understood in light of the subsequent provisions
of the article defining the continental shelf and the continental margin.
Entitlement to a continental shelf beyond 200 nm should thus be
determined by reference to the outer edge of the continental margin, to
be ascertained in accordance with article 76, paragraph 4. To interpret
otherwise is warranted neither by the text of article 76 nor by its object
and purpose.”28
2.21 As early as 1985, Hutchinson concluded from his examination of State
practice that “it is quite likely that Article 76 of the UN Convention, although not
yet wholly reflecting the position at customary law, will act as a clear and
authoritative guide for future State practice.”29 Similarly, in 1990, Brownlie noted
that Article 76 “will probably be recognized as the new standard of customary
law.”30 This is now confirmed by a largely dominant doctrine.31
28 I.T.L.O.S, Judgment, 14 March 2012, Delimitation of the maritime boundary in the Bay of
Bengal (Bangladesh/Myanmar), Reports 2012, p. 114, para. 437.
29 D.N. Hutchinson, “The Seaward Limit to Continental Shelf Jurisdiction in Customary
International Law”, British Yearbook of International, Vol. 56, 1985, p. 188.
30 I. Brownlie, Principles of Public International Law, C.U.P., 4th ed., 1990, p. 223. Twenty years
later, Crawford confirmed Brownlie’s prediction (Brownlie’s Principles of Public International
Law, C.U.P., 8th ed., 2012, p. 274).
31 See e.g. R.R. Churchill and A.V. Lowe, The Law of the Sea, Juris Publishing, Manchester UP,
3rd ed. 1999, pp. 149-150; T. A. Clingan Jr., “The Law of the Sea in Prospective: Problems of
States Not Parties to the Law of the Sea Treaty”, German Yearbook of International Law, Vol. 30,
1987, p. 111 and K.A. Baumert, “The Outer Limit of the Continental Shelf under Customary
International Law”, A.J.I.L., Vol. 111, 2017, Issue 4, p. 857. See also the Separate Opinion of
Judge Mbaye in the Libya/Malta case (I.C.J. Reports 1985, p. 94) and B.M. Magnusson, “Can the
17
2.22 The review of State practice is indeed compelling in that it shows that, when their continental shelf extends beyond 200 M, States have apparently unanimously used Article 76 for the determination of the limits of their continental shelf. As the ILC has concluded “[f]orms of State practice include, but are not limited to: […] conduct in connection with treaties; […] legislative and administrative acts [...].”32 2.23 The legislative and administrative acts of several States constitute particularly relevant State practice because they were adopted before these States became Parties to UNCLOS: - Brazilian Law No. 8.617 adopted in 1993 provides that “[t]he outer limits of the continental shelf will be established in accordance with article 76”;33 - paragraph 6 of the Preamble of the Costa Rican Decree 18581-RE of 1988 reads as follows: “The regulations of the Convention that refer to the zones of national jurisdiction, including the system of drawing straight baselines, reflect contemporary international practice and have been considered to derive from prevailing International customary law”;34 United States Establish the Outer Limits of Its Extended Continental Shelf Under International Law?”, Ocean Development and International Law, 2017, p. 12. 32 Report of the International Law Commission on the Work of the Sixty-Eight Session (2016), U.N. Doc. A/71/10, Conclusion 6(2), p. 91. 33 Article 11(Sole paragraph) http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/BRA_1993_8617.pdf. Brazil became a party in 1994. 34http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/CRI_1988_Decree18581.pdf. Costa Rica ratified UNCLOS in 1992. 18
- the 1994 Maritime Zones Act of South Africa establishes that “[t]he
continental shelf as defined in article 76 of the United Nations Convention on the
Law of the Sea […] shall be the continental shelf of the Republic”;35
- in a 1985 Declaration, the Ministry of Foreign Affairs of Chile, referring
to the continental shelf of Easter Island and of Sala y Gomez Island “declare[d]
and communicate[d] to the international community that its sovereignty over their
respective shelves extends up to a distance of 350 nautical miles, measured from
the baselines from which their respective territorial seas are measured”;36
- the 1985 Ecuadorian Declaration on the continental shelf provides that
“the international law of the sea recognizes that the coastal States have the power
to delineate the limits of their continental shelves up to a distance of 100 miles
from the 2,500 metre isobath”;37 and
- in its 1985 Ordinance No. 85-013, Madagascar declares that its
continental shelf “shall comprise the sea-bed and its subsoil beyond the territorial
sea to a distance of 200 nautical miles from the baselines from which the breadth
35 Article 8(1)
(http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ZAF
_1994_Act.pdf). South Africa ratified UNCLOS in 1997.
36 Article 1
(http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/CHL_1985_Declarati
on.pdf). Chile ratified UNCLOS in 1997.
37http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ECU_1985_Declarat
ion.pdf. Ecuador ratified UNCLOS in 2012.
19
of the territorial sea is measured, or to the limit determined by agreement with adjacent States, or else to 100 nautical miles from the 2,500-metre isobath.”38 2.24 The few treaties delimiting the continental shelf beyond 200 nautical miles support Nicaragua’s position: - the Agreement between the Republic of Ireland and the United Kingdom of Great Britain and Northern Ireland Concerning the Delimitation of the Continental Shelf between the Two Countries of 7 November 198839 was adopted before these two States became Parties to UNCLOS. As noted in Anderson’s report on the Agreement in International Maritime Boundaries: “Point 94 was chosen according to the criterion of the foot of the slope plus 60 n.m.; Point 132 according to that of the 2500 meters isobath plus 100 n.m., thereby taking into account Article 76 of the UN Convention on the Law of the Sea”;40 - the Treaty between the Republic of Trinidad and Tobago and the Republic of Venezuela on the Delimitation of Marine and Submarine Areas of 18 April 199041 is pertinent since Venezuela is not a Party to UNCLOS. As pointed out in the Nweihed report on the Treaty: “the edge of the margin was calculated 38 Article 7 (http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/MDG_1985_Ordinance.pdf). Madagascar ratified UNCLOS in 2001. 39 J.L. Charney and L.M. Alexander (eds.), International Maritime Boundaries, Brill, 1993, Report No. 9-5, pp. 1774-1779. 40 Ibid., p. 1771. See DOALOS, Law of the Sea: Practice of States at the Time of Entry in Force of the United Nations Convention of the Law of the Sea, Sales No. E.94.V.13, 1994, p. 141 (“The continental shelf delimitation line agreed between Ireland and the UK in 1988 was apparently fixed on the basis of the criteria in article 76, paragraphs 4 and 5 of the Convention”). 41 J.L. Charney and L.M. Alexander (eds.), International Maritime Boundaries, Brill, 1993, Report No. 2-13(3), pp. 685-689. 20
on the basis of the thickness of the sedimentary rocks as equal to 1 percent of the
shortest distance from the slope” and “the potential extension of the boundary to a
point close to the 350-n.m. limit (LOS Convention, Art. 76, No.4 and 5) was
virtually pre-empted by the parties”42; and
- the preamble of the 2017 Treaty between Cuba and the United States
affirms “that the provisions of international law pertaining to the seaward extent
of the continental shelf are reflected in Article 76 of the 1982 United Nations
Convention on the Law of the Sea”.43
2.25 In 1988, before UNCLOS even entered into force, the Consultative44 and
Contracting Parties45 to the Antarctic Treaty concluded that the “international
law” for the determination of “the geographic extent of the continental shelf” is
“paragraphs 1 to 7 of Article 76 of the United Nations Convention on the Law of
the Sea.”46
2.26 Likewise, the opinio juris is unquestionable. The “[f]orms of evidence of
acceptance as law (opinio juris) include, but are not limited to: public statements
made on behalf of States; official publications; government legal opinions.”47
42 Ibid., p. 681.
43 See K.A. Baumert, “The Outer Limit of the Continental Shelf under Customary International
Law”, A.J.I.L., Vol. 111, 2017, Issue 4, p. 852 (note 197).
44 Argentina, Australia, Belgium, Brazil, Chile, China, France, German Democratic Republic,
Federal Republic of Germany, India, Italy, Japan, New Zealand, Norway, Poland, South Africa,
USSR, United Kingdom, United States, and Uruguay.
45 Bulgaria, Canada, Czechoslovakia, Denmark, Ecuador, Finland, Greece, Republic of Korea,
Netherlands, Papua New Guinea, Peru, Romania, and Sweden.
46 Final Act of the Fourth Special Antarctic Treaty Consultative Meeting on Antarctic Mineral
Resources, I.L.M., Vol. 27, 1988, p. 866.
47 Report of the International Law Commission on the Work of the Sixty-Eight Session (2016),
U.N. Doc. A/71/10, Conclusion 10(2), p. 99.
21
2.27 The following public statements and government legal positions illustrates this opinio juris. 2.28 During the UN Conference on the Law of the Sea, Costa Rica declared “that the legal regime which […] governed […] the continental shelf [reflected in the draft convention] formed part of customary international law and was already binding upon all States […].”48 Similarly, the U.K. Representative stated that Article 76 makes “more precise what is inherent or implicit in existing international law” and that it “accurately reflects the evolution and development of the concept” of the continental shelf.49 2.29 In a 1987 Memorandum, the Department of External Affairs of Canada stated that “elements of [the provision of the Law of the Sea Convention] on delimitation of the continental shelf […] probably do reflect current international law.”50 Canada confirmed its position in the context of the St. Pierre and Miquelon case, in which it challenged France’s application of Article 76(4). Canada argued “that although the continental margin off Newfoundland generally extends beyond 200 nautical miles, the point at which France is making its claim may, in fact, lie beyond the edge of that margin determined in accordance with Article 76 of the 1982 Convention on the Law of the Sea […] Canada adds that it does not accept the French assertion concerning the location of the outer edge of the continental margin and observes that France itself does not know the location 48 139th Plenary meeting, U.N. Doc. A/CONF.62/SR.139 (1980), XIV Official Records, p. 66. 49 189th Plenary meeting, U.N. Doc. A/CONF.62/SR.189 (1980), XVII Official Records, p. 79. 50 Canadian Yearbook of International Law, 1987, p. 490 – brackets in the original text. 22
of the outer edge of the margin.”51 Canada became a Party to UNCLOS only in
2003.
2.30 In that same case, France invoked Article 76(4)(a)(ii) in support of its
claim to “rights over the continental shelf beyond 200 miles, asserting that its
shelf in the area extends as far as the outer edge of the continental margin.”52
France became a Party to the Convention in 1996.
2.31 In the Peru v. Chile case, Peru, a non-party to UNCLOS, referred to “the
customary rule codified in Article 76 of the 1982 Convention” in its Memorial.53
2.32 It can also be noted that, as early as 1987, the United States, also a nonparty
to UNCLOS, considered that “that the delimitation provisions of Article 76
of the 1982 United Nations Convention on the Law of the Sea reflect customary
international law.”54 Accordingly, the U.S.
“has exercised and shall continue to exercise jurisdiction over its
continental shelf in accordance with and to the full extent permitted by
international law as reflected in Article 76, paragraphs (1), (2), and (3).
At such time in the future that it is determined desirable to delimit the
outer limit of the continental shelf of the United States beyond two
hundred nautical miles from the baseline from which the territorial sea is
measured, such delimitation shall be carried out in accordance with
paragraphs (4), (5), (6), and (7).”55
51 Case Concerning Delimitation of Maritime Areas between Canada and the French Republic,
Award, 10 June 1992, I.L.M., Vol. 31, pp. 1171-1172, para. 76.
52 Ibid., p. 1171, para. 75.
53 20 March 2009, p. 260, para. 7.25.
54 Memorandum from Assistant Secretary John D. Negroponte to Deputy Legal Adviser Elizabeth
Verville, 17 November 1987, State Dep‘t File No. P89 0140–0428, in Cumulative Digest of
United States Practice in International Law (1981–1988), 1995, p. 1878.
55 “United States Policy Governing the Continental Shelf of the United States of America”, ibid.,
State Dep‘t File No. P89 0141-0429/0430, in Cumulative Digest of United States Practice in
International Law (1981–1988), 1995, p. 1879.
23
2.33 More recently, the United States has confirmed its position: “The legal rules for determining the ECS outer limits are reflected in Article 76 in the Convention. A coastal State can use one of two formulas in any combination to determine the outer edge of its continental margin. Article 76 also contains two constraint lines. If the formula lines extend past the constraint lines, a State can use any combination of those two constraint lines to maximize its ECS. The outer limit of the continental shelf is determined by the combined use of Article 76’s formula lines and constraint lines.”56 2.34 Only one State has at some point argued that Article 76(2)-(6) does not reflect customary international law. That State is Colombia. However, Colombia’s objection has not been consistent. Contrary to what it now argues,57 in its Counter-Memorial in the Territorial and Maritime Dispute, Colombia stated that “the relevant provisions of the Convention dealing with a coastal State’s baselines and its entitlement to maritime areas […] reflect well-established principles of customary international law.”58 Moreover, Colombia never objected to its neighbour Ecuador’s continental shelf limits established in 1985 and based on paragraph 5 of Article 76, 59 or to Chile’s extended continental shelf claim made public that same year.60 56 See https://www.state.gov/e/oes/ocns/opa/ecs/about/index.htm (last accessed 26 February 2018). 57 CCM, para. 2.26. 58 11 November 2008, p. 306, para. 4 – emphasis added. 59 See Declaration on the continental shelf, 19 September 1985 (http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ECU_1985_Declaration.pdf). 60 See http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/CHL_1985_Declaration.pdf. 24
2.35 The aforementioned evidence of the customary nature of Article 76(1)-(6)
was provided by major maritime states – i.e: Brazil, Canada, Chile, France,
Iceland, India, South Africa, the United States, and the United Kingdom – at a
time these States were not yet Parties to UNCLOS.61
2.36 Finally, it is worth noting that no method other than those prescribed in
Article 76 has been used or referred to by States in the determination of the outer
limits of their continental shelf.62
C. The Respective Roles of the ICJ and the CLCS
2.37 The argument Colombia develops in Chapter 2, Sections C and D, of its
Counter-Memorial is a mere reiteration of its fifth preliminary objection, as the
Respondent itself recalls.63 The Court has already rejected that objection in its
2016 Judgment on Colombia’s Preliminary Objections and found that it may
proceed with the delimitation before the CLCS has made recommendation on
Nicaragua’s submission (1.). Thus, without repeating the arguments it developed
in its Written Statement 64 or during the public hearings of October 2015, 65
Nicaragua will respond to Colombia’s new argument according to which the
Court should decline to exercise its jurisdiction in the present case (2.).
61 See paras. 2.23-32 above.
62 K.A. Baumert, “The Outer Limit of the Continental Shelf under Customary International Law”,
A.J.I.L., Vol. 111, 2017, Issue 4, pp. 853-854.
63 See ibid., para. 2.36.
64 Written Statement of the Republic of Nicaragua to the Preliminary Objections of the Republic
of Colombia, 19 January 2015, paras. 5.1-5.36.
65 See CR 2015/27, 6 October 2015, pp. 45-55 (Oude Elferink) and 2015/29, 9 October 2015, pp.
29-37 (Oude Elferink).
25
1. THE COURT HAS ALREADY FOUND THAT A RECOMMENDATION BY THE CLCS IS NOT A PREREQUISITE TO THE DELIMITATION OF THE CONTINENTAL SHELF BEYOND 200 NAUTICAL MILES 2.38 According to Colombia’s fifth preliminary objection, Nicaragua’s request for delimitation was “inadmissible due to the fact that Nicaragua has not secured the requisite recommendation on the establishment of the outer limits of its continental shelf from the CLCS.”66 2.39 The Court has already rejected this objection. In its 2016 Judgment, the Court explained that it had to “determine 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”67. The Court gave a negative answer to this question68 and found Nicaragua’s request to be admissible and proceeded to the merits of the case.69 2.40 Colombia now asserts that: “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.”70 66 I.C.J., Judgment, 17 March 2016, Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Reports 2016, p. 134, para. 95. 67 Ibid., p. 136, para. 106. 68 Ibid., p. 137, para. 114. 69 Ibid., p. 140, para. 126(2). 70 CCM, para. 2.50. 26
Whether this is true or not is irrelevant because the Court already found that, in
the present case, the requested delimitation may be carried out.
2.41 Colombia attempts to re-argue that the reason why the Court allegedly
cannot entertain Nicaragua’s submission is that “[i]n 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.”71
2.42 During the jurisdictional phase, the Respondent advanced the exact same
argument. At paragraph 7.16 of its Preliminary Objections, Colombia argued that:
“Nicaragua’s Application requests a continental shelf delimitation
between opposite coasts, which cannot be done without first identifying
the extent, or limit, of each State’s shelf entitlement.”
2.43 This argument was expressly dealt with in the 2016 Judgment where the
Court noted:
“Colombia adds that, in the present case, Nicaragua ‘requests a
continental shelf delimitation between opposite coasts, which cannot be
done without first identifying the extent, or limit, of each State’s shelf
entitlement’. The absence of a recommendation from the CLCS must
therefore result in the inadmissibility of the First Request contained in
the Application of 16 September 2013.”72
2.44 After observing that the delineation process was without prejudice to the
delimitation process,73 the Court found that
71 Ibid., para. 2.49.
72 I.C.J., Judgment, 17 March 2016, Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v.
Colombia), Preliminary Objections, Reports 2016, p. 135, para. 100.
73 Ibid., p. 136, para. 110 and p. 137, paras. 112-113.
27
“since the delimitation of the continental shelf beyond 200 nautical miles can be undertaken independently of a recommendation from the CLCS, the latter is not a prerequisite that needs to be satisfied by a State party to UNCLOS before it can ask the Court to settle a dispute with another State over such a delimitation.”74 The Court then concluded that it could entertain Nicaragua’s request for a delimitation of the boundary between the Parties’ continental shelves beyond 200 nautical miles from the coast of Nicaragua.75 2.45 Colombia would have the Court believe that the situation has changed since the 2016 Judgment on Preliminary Objections because, at the time of the Judgment, Nicaragua had not yet filed its Memorial76 and, therefore, the Court did not know “Nicaragua’s precise claim”.77 This is an artificial argument. The Court has been well aware of Nicaragua’s delimitation claim since the proceedings in the Territorial and Maritime Dispute. In its 2012 Judgment, the Court depicted Nicaragua’s position on Sketch-map No. 2.78 The Court’s 2016 Judgment, which expressly refers to Nicaragua’s submissions,79 takes Nicaragua’s position into account. In any event, even if Nicaragua’s position had 74 Ibid., p. 137, para. 114. 75 I.C.J., Judgment, 17 March 2016, Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Reports 2016, p. 140, para. 126(2). 76 See CCM, para. 2.37. 77 Ibid., para. 2.41. 78 I.C.J., Judgment, 19 November 2012, Territorial and Maritime Dispute (Nicaragua v. Colombia), Reports 2012, p. 663. Nicaragua’s claim in the present proceedings is very slightly different from its claim in that case (since it was based on preliminary information). 79 I.C.J., Judgment, 17 March 2016, Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Preliminary Objections, Reports 2016, p. 123, para. 49. 28
not been known (quod non), the Court would not be precluded from entertaining
Nicaragua’s delimitation request in the absence of CLCS recommendations.
2. THE COURT MAY ENTERTAIN NICARAGUA’S
DELIMITATION REQUEST
2.46 In its Counter-Memorial, Colombia complains that the Court cannot
identify the outer limits of Nicaragua’s continental shelf and argues 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.”80 Colombia’s position brings to light its misconception of the
functions of both the CLCS (a.) and the Court (b.).
2.47 Before turning to the role of the CLCS, a clarification is needed.
Colombia has referred to cases in which the Court refused to exercise its
jurisdiction.81 These cases are of an exceptional nature and are unrelated to the
present case:
- As Colombia noted,82 in the Free Zones case, the Court did not exercise
its jurisdiction because the validity of the Judgment it would have rendered would
have been dependent on the approval of the Parties;83
80 CCM, para. 2.55.
81 See CCM, paras. 2.69-2.70.
82 See ibid., 2.70.
83 P.C.I.J., Judgment, 7 June 1932, Free Zones of Upper Savoy and the District of Gex, Series A/B,
No. 46, p. 161.
29
- In the Northern Cameroons case, the Court declined to proceed to the merits of the case because it would have been “impossible for the Court to render a judgment capable of effective application”;84 - Finally, in the more recent Burkina Faso/Niger case, the Court refused to entertain a claim because there was no dispute between the Parties concerning that claim.85 The Court concluded that: “In the circumstances of the present case, it is not necessary for the Court to rule on such a possibility. What the Special Agreement provides for is that the Court should place on record the ‘entente’ reached by the Parties at the end of their negotiations, before the proceedings were instituted. According to Burkina Faso, this should be included in the operative part of the Judgment. But for the reasons explained above, the Court considers that such a request is not compatible with its judicial function.”86 2.48 Unlike these cases, the present case is not exceptional. There is a dispute between the Parties. It is a legal dispute. Nicaragua requests the Court to apply legal rules, i.e. those reflected in Article 83 of UNCLOS. These norms may involve a scientific aspect, but this does not transform the nature of the dispute. It remains a legal dispute. The validity of the Judgment the Court will deliver is not dependent on the approval of the Parties or of the CLCS, which has no mandate to review the Court’s Judgments. 2.49 Were the Court be asked to delimit the continental shelf beyond 200 nautical miles by non-Parties to UNCLOS, it would be required to review the 84 I.C.J., Judgment, 2 December 1963, Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Reports 1963, p. 33. 85 I.C.J., Judgment, 16 April 2013, Frontier Dispute (Burkina Faso/Niger), Reports 2013, pp. 69-71, paras. 46-53. 86 Ibid., p. 72, para. 58. 30
scientific evidence brought by the Parties in order to verify that there is no
“significant uncertainty as to the existence of a continental margin in the area in
question.”87 If the Court believes that scientific assistance is needed, it could
appoint an expert or experts, as it has recently done in the case concerning the
Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica
v. Nicaragua).88
a. The CLCS does not delineate the outer limit of the continental shelf of States
2.50 In its Counter-Memorial, Colombia asserts that “no State can establish the
limits of its outer continental shelf except on the basis of the prior
recommendations of the CLCS.”89 This assertion is erroneous as regards both the
relations between UNCLOS Parties and between Parties and non-Parties to
UNCLOS:
- Whereas an outer limit of the continental shelf established unilaterally
by a State may be challenged by another State on the basis that the unilaterallydetermined
limit does not in fact satisfy the criteria set out in Article 76, an outer
limit established on the basis of a CLCS recommendation is final and binding and
cannot be challenged by any UNCLOS State Party. That is the clear meaning and
effect of Article 76(8) as between UNCLOS States Parties;
87 I.T.L.O.S, Judgment, 14 March 2012, Delimitation of the maritime boundary in the Bay of
Bengal (Bangladesh/Myanmar), Reports 2012, p. 115, para. 443.
88 I.C.J., Order, 31 May 2016, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean
(Costa Rica v. Nicaragua), Reports 2016, pp. 237-238, para. 10. See also para. 2.62 below.
89 CCM, para. 2.33.
31
- Concerning the relations between UNCLOS Parties and non-Parties (or between non-Parties) it must be kept in mind that, under Article 76(1), the continental shelf of a State may extend beyond 200 nautical miles when the outer edge of the continental margin extends beyond that distance. Since States non-parties to UNCLOS may claim rights over the continental shelf beyond 200 nautical miles but have no access to the CLCS (as the Parties agree90), it must follow that the establishment of the rights of a non-party State to the continental shelf beyond 200 nautical miles may occur without the need for recommendations by the CLCS. 2.51 The absurdity of Colombia’s argument is further demonstrated by the following thought experiment. Let us assume for the sake of argument that the Court was asked to delimit the continental shelf beyond 200 nautical miles from Colombia’s coasts. Under Colombia’s argument, it would have to wait for the recommendations of the CLCS concerning Colombia’s extended continental shelf. However, since the CLCS would have no jurisdiction over Colombia’s claim because it is not a party to UNCLOS, the Court would never be in a position to proceed with the requested delimitation. 2.52 Colombia’s argument reveals its misconception of the role of the CLCS: - First, the CLCS makes recommendations, not decisions, concerning the delineation submitted by the coastal State. These recommendations are neither 90 See CCM, para. 2.21. See also para. 2.5 above. 32
final, as States may file revised or new submissions,91 nor binding92; in their
effect,
- Second, in accordance with the rules exposed in Article 76(7) and (8),
and in Article 7, Annex II, it is for the coastal State – and not the CLCS – to
delineate the outer limits of its continental shelf. This obligation is expressly set
out in Article 76(7), which provides that “[t]he coastal State shall delineate the
outer limits of its continental shelf”, and confirmed in Article 76(8) which recalls
that “limits of the shelf [are] established by a coastal State”;
- Third, as explained in Nicaragua’s Written Statement on Colombia’s
preliminary objections,93 the primary role of the CLCS is to protect the
international community from excessive claims;94 however, it is not concerned
with the relations between a State party to the Convention and a non-Party;95 and
- Fourth, for these reasons, when not yet reviewed by the CLCS, the limit
of the extended continental shelf claim of a State party to UNCLOS may be
challenged by other States Parties.96 However, it does not mean that this State has
no entitlement over the extended shelf thus defined. As the ITLOS explained and
91 See UNCLOS Annex II, Article 8.
92 See e.g. B.M. Magnusson, The Continental Shelf Beyond 200 Nautical Miles, Brill/Nijhoff,
2015, pp. 40 and 48; 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, 2017, p. 15 or D. Müller, “L’étendue des espaces marins”, in M. Forteau & J.-
M. Thouvenin (eds.), Droit international de la mer, Paris, Pedone, 2017, p. 560.
93 Written Statement of the Republic of Nicaragua to the Preliminary Objections of the Republic
of Colombia, 19 January 2015, para. 5.15.
94 See also B.M. Magnusson, The Continental Shelf Beyond 200 Nautical Miles, Brill/Nijhoff,
2015, p. 51.
95 See para. 2.50 above.
96 ITLOS, Judgment, 14 March 2012, Delimitation of the maritime boundary in the Bay of Bengal
(Bangladesh/Myanmar), Reports 2012, pp. 106-107, para. 407.
33
as Nicaragua has recalled above,97 a coastal State’s entitlement to the continental shelf exists ipso facto, by the sole fact that the basis of entitlement, namely, sovereignty over the land territory, is present. It does not require the establishment of outer limits.”98 In other words, the entitlement is inherent.99 2.53 This is consonant with Article 77(3) of UNCLOS which provides “[t]he rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation.” This Article recalls that a State possesses rights over the continental shelf ipso facto and ab initio.100 The continental shelf is defined by the rules set up in Article 76 (which have a customary character) and hence concerns the whole shelf, including the portion extending beyond 200 nautical miles. As the Tribunal in the Arbitration between Barbados and Trinidad and Tobago noted, “there is in law only a single ‘continental shelf’.”101 The rights of the coastal state over the continental shelf exist ipso facto from the coast to the outer edge of its margin, whether the margin is located within or beyond 200 nautical miles.102 97 See para. 2.13 above. 98 ITLOS, Judgment, 14 March 2012, Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Reports 2012, p. 107, para. 409. 99 I.C.J., Judgment, 20 February 1969, North Sea Continental Shelf, Reports 1969, p. 22, para. 19. 100 Ibid. 101 Decision of 11 April 2006, R.I.A.A., Vol. XXVII, pp. 208-209, para. 213. See also I.T.L.O.S, Judgment, 14 March 2012, Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), Reports 2012, pp. 96-97, para. 362 and Special Chamber, Judgment, 23 September 2017, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire), para. 490. 102 See paras. 5.4-5.23 below. 34
2.54 The role of the CLCS is to ensure a clear identification between the zones
within national jurisdiction and those beyond national jurisdiction (the “Area”103)
in which States Parties to UNCLOS may carry out certain activities. However, the
CLCS does not create the entitlement of a State over the portion of the continental
shelf beyond 200 nautical miles. It simply legitimizes its outer limits vis-à-vis
other States Parties to UNCLOS and ensures that it does encroach upon the
Area.104
2.55 Nicaragua’s entitlement to a continental shelf including that beyond 200
nautical miles exists simply by reason of the fact that it is a coastal State with a
continental margin beyond 200 nautical miles. The entitlement is generated by
Nicaragua’s sovereignty over its land territory. The CLCS’ role is simply to make
recommendations to the States Parties in order to delineate the outer limits of
their continental shelf in accordance with article 76; however it has no
preliminary role – and, indeed, no role at all in the delimitation of the continental
shelf between States with opposite or adjacent coasts.
b. The Court’s task in the present case
2.56 As the Parties agree,105 the task of the Court in the present case is to
delimit the maritime boundary between two States, not to delineate the outer
103 See Article 1(1)(1) of UNCLOS.
104 I.C.J., Judgment, 17 March 2016, Question of the Delimitation of the Continental Shelf
between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast
(Nicaragua v. Colombia), Preliminary Objections, Reports 2016, p. 136, para. 109.
105 See CCM, paras. 2.57-2.60.
35
limits of their continental shelf. Two important comments are in order in this respect. 2.57 First, other international courts and tribunals have delimited the continental shelf of the States before them beyond 200 nautical miles, without the need for recommendations of the CLCS or acting in lieu et place of it.106 Similarly, in the recent Ghana v. Côte d’Ivoire Judgment, the Special Chamber of the ITLOS found that “Côte d’Ivoire may invoke its revised submission to the CLCS”107 and identified the relevant maritime boundary by reference to the “outer limits of the continental shelf as claimed by Côte d’Ivoire in its submission to the CLCS”, absent any recommendation by the Commission.108 The ITLOS’ Judgment of 2012, in the Bangladesh/Myanmar case, is also illuminating. Bangladesh argued on the basis of its interpretation of UNCLOS Article 76 that Myanmar’s continental shelf “has no natural prolongation beyond 50 nm off that coast.”109 The Tribunal nevertheless delimited the continental shelf beyond 200 nautical miles between the two countries. The Tribunal’s decision to proceed with the delimitation was reached on the basis of “information submitted during the proceedings.”110 The Tribunal concluded that it was “satisfied”111 that Myanmar’s 106 See ITLOS; Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, Award, 7 July 2014, para. 309. 107 I.T.L.O.S., Special Chamber, Judgment, 23 September 2017, Dispute Concerning Delimitation of the Maritime Boundary between Ghana and Côte d'Ivoire in the Atlantic Ocean (Ghana/Côte d'Ivoire), para. 518. 108 Ibid., para. 3.84. 109 I.T.L.O.S, Judgment, 14 March 2012, Delimitation of the maritime boundary in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Reports 2012, p. 114, para. 441. 110 Ibid., p. 115, para. 446. 36
continental margin extends beyond 200 nautical miles. In order to reach this
conclusion, the Tribunal must have reviewed and processed the scientific
information provided by the Parties. There was no CLCS recommendation.
2.58 Second, it must be noted that the decision of the Court will bind only the
two Parties to the present case, Nicaragua and Colombia. 112 Therefore, any
reference the Court could make to the outer limits of Nicaragua’s continental
shelf will not be binding upon the CLCS or other States, including States Parties
to UNCLOS. Furthermore, such reference will only be ancillary to the Court’s
decision. The Court’s mandate is to fix a maritime boundary, not the outer limit
of the continental shelf of a State. This maritime boundary – and this maritime
boundary only – will be res judicata as a result of the present case.
2.59 In the Bangladesh/Myanmar case, the ITLOS added an important point. It
explained that
“[n]otwithstanding 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.”113
2.60 The emphasized passage calls for two remarks:
- The standard is high. A “significant uncertainty” is not a mere doubt;
and
111 Ibid.
112 See Article 59 of the Statute of the International Court of Justice.
113 Ibid., para. 443 – emphasis added.
37
- It is for the Court to decide whether such “significant uncertainty” exists after reviewing the evidence on the record.114 2.61 In order to do so, the Court must apply the rules embodied in Article 76(4) and (5) of UNCLOS. This does not mean that the Court is bound by any guidelines of the CLCS, which, in any event, are not binding in the relations between the Parties since Colombia is not a party to UNCLOS.115 However, the Court may certainly seek guidance from these guidelines in determining whether there is a significant uncertainty concerning the outer limits of Nicaragua’s continental shelf. 2.62 In this respect, the Court should not be impressed by Colombia’s repeated innuendoes about the Court’s inability to deal with scientific issues116 or the risk to which the Court would expose “its authority and credibility, as well as the integrity of its judicial function and the coherence of international jurisprudence” by dealing with them.117 In the past, the Court has dealt satisfactorily with scientific evidence; and it enjoys the prerogative of appointing an expert or experts in order to ensure that there is no significant uncertainty in the present case. 2.63 In fact, the Court has never shied away from scientific aspects of cases. As it stated in the Pulp Mills case: 114 See paras. 2.48-2.49 above. 115 See paras. 2.3-2.7 above. 116 See e.g. CCM, paras. 2.66-2.69 and 2.71-2.72. 117 CCM, para. 2.66. 38
“[D]espite the volume and complexity of the factual information
submitted to it, it is the responsibility of the Court, after having given
careful considerations to all the evidence placed before it by the Parties,
to determine which facts must be considered relevant, to assess their
probative value, and to draw conclusions from them as appropriate.
Thus, in keeping with its practice, the Court will make its own
determination of the facts, on the basis of the evidence presented to it,
and then it will apply the relevant rules of international law to those facts
which it has found to have existed.”118
2.64 For all of these reasons, the Court is empowered and well positioned to
delimit the continental shelf boundary between Nicaragua and Colombia beyond
200 M from Nicaragua’s coasts. In particular:
- The Court has found in its 2016 Judgment that it has jurisdiction to
delimit the continental shelf boundary between the Parties, and that Nicaragua’s
request is admissible;
- The applicable customary international law for determining the
continental shelf entitlements of the Parties is easily identifiable, as it is reflected
in Articles 76(1) to (6), 83 and 121 of UNCLOS;
- There is no competition between the Court and the CLCS. They have
two clear and distinct functions; and, in any event, the CLCS and its
recommendations cannot have any bearing on the present dispute since Colombia
is not a party to UNCLOS; and
- Nicaragua has provided the Court will all the relevant information and
evidence it needs to reach a decision in the present case.
118 I.C.J., Judgment, 20 April 2010, Pulp Mills on the River Uruguay (Argentina v. Uruguay),
Reports 2010, pp. 72-73, para. 168.
39
40
CHAPTER 3. CONTINENTAL SHELF ENTITLEMENT
41
Chapter (pages 41 to 96) not reproduced
CHAPTER 4: ENTITLEMENT OF COLOMBIA’S ISLANDS
AND CAYS
4.1 Chapter 4 of Colombia’s Counter-Memorial addresses the entitlement of
Colombia’s mainland and islands to an EEZ and continental shelf. According to
the Counter-Memorial, in addition to Colombia’s mainland and the islands of San
Andrés and Providencia,198 the cays that are located on the banks of Serrana,
Roncador, Serranilla and Bajo Nuevo also generate 200 M potential entitlements.
Nicaragua agrees that Colombia’s mainland and the islands of San Andrés and
Providencia are entitled to an EEZ and continental shelf. But Nicaragua does not
agree that any entitlement of Colombia’s islands of San Andres and Providencia
to an EEZ or continental shelf could, in a delimitation, deprive Nicaragua of its
entitlement to an extended continental shelf generated by its mainland (Section
A); or that the cays located on the banks of Roncador, Serrana, Serranilla and
Bajo Nuevo generate any entitlement to an EEZ or continental shelf (Section B).
4.2 Section A will demonstrate that the Islands of San Andres and
Providencia are small land masses, particularly, in comparison to Nicaragua’s
extensive mainland and that these small islands have already been attributed
extensive maritime areas in the 2012 Judgment of the Court.
4.3 Section B will demonstrate that the cays of Roncador, Serrana, Serranilla
and Bajo Nuevo are “rocks” within the meaning of the customary law equivalent
198 Any reference to Providencia also includes the nearby island of Santa Catalina, unless
specifically stated otherwise.
97
of Article 121(3) of UNCLOS, which provides: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf”. 4.4 Section B is organized as follows: Subsection 1 demonstrates that the content of the rule stated in Article 121(3) is identical to the analogous rule of customary international law. Subsection 2 addresses the meaning of the term “rock” and shows that it does not refer to the geological composition of islands, but rather was adopted to distinguish insignificant features from other islands on the basis of their capacity to sustain human habitation and economic life. Subsection 3 analyses the meaning of the terms “sustain”, “human habitation” and “economic life of their own”, relying on the rules of treaty interpretation provided in the Vienna Convention on the Law of Treaties; and Subsection 4 applies the analysis set forth in the preceding sections to the cays located on the banks of Serrana, Roncador, Serranilla and Bajo Nuevo. A. San Andrés and Providencia 4.5 Nicaragua set out its proposal for an equitable delimitation in Chapter 5 of its Memorial. Colombia chose not to address it in its Counter-Memorial. Colombia simply argued that its mainland and islands are each entitled to a continental shelf of 200 NM, and that these entitlements overlap and, as a matter of law, take precedence over all of Nicaragua’s claims beyond 200 NM and, 98
therefore, that all of Nicaragua’s claims beyond 200 M must fail and there is no
need for a delimitation.
4.6 Since Colombia did not address Nicaragua’s proposed delimitation, this
section describes it briefly in the interest of completeness. It is depicted below.
Figure 4.1 Final Delimitation
4.7 In the east, where Nicaragua’s extended continental shelf overlaps with
the continental shelf of Colombia adjacent to its mainland, Nicaragua has
proposed that the area of overlap be delimited by means of an equidistance or
median line, based on the
“criterion long held to be as equitable as it is simple, namely that in
principle, while having regard to the special circumstances of the case,
one should aim at an equal division of areas where the maritime
projections of the coasts of the States ... converge and overlap.”199
199 Nicaragua v. Honduras, para. 287 (quoting Gulf of Maine, para. 195)
99
4.8 In the center, in the area immediately beyond Nicaragua’s 200 M EEZ limit (as drawn by the Court in its 2012 Judgment), Nicaragua considers that the delimitation should not accord the islands of San Andres and Providencia a continental shelf beyond Nicaragua’s 200 M limit. In the 2012 Judgment, the Court accorded Colombia’s islands very substantial continental shelf rights, extending along a 82 nm-wide corridor out as far as the 200 nm limit measured from Nicaragua’s baselines. That limit lies some 124 and 112 nm east of those islands, respectively. The total maritime space already accorded to these islands, together with the territorial sea enclaves around Quitasueño and Serrana Cay, measures fully 48,750 sq km in area. 4.9 It bears emphasis that Colombia’s entitlements in this area emanate from what the Court itself has described as “a few small islands which are many nautical miles apart.”200 4.10 Of these, only San Andrés and Providencia meet the requirements of Article 121(3) for entitlement to an exclusive economic zone or continental shelf. The east-facing coasts of these two islands, taken together, measure 20 km (27 km if sinuousities are included in the calculation) as compared with 454 km (531 km including sinuousities) for Nicaragua’s east-facing coast; the ratio of coastal lengths is thus 22.7:1 in Nicaragua’s favour (or 20:1 if sinuousities are included). 200 Nicaragua v. Colombia, para.215. 100
4.11 In Nicaragua’s view, there is no reason to extend the continental shelf of
San Andres or Providencia east of Nicaragua’s 200 nm limit, where it would
overlap with Nicaragua’s extended continental shelf. Any such extension, in the
geographical circumstances of this case, would be inequitable to Nicaragua.
Hence, the delimitation line separating the continental shelf of Nicaragua from
the continental shelf of Colombia in this area should follow the line previously
drawn by the Court, 200 M from Nicaragua’s coast.
B. Cays of Roncador Serrana, Serranilla and Bajo Nuevo
4.12 Nicaragua and Colombia agree that Article 121(3) reflects customary
international law.201 But they disagree over the interpretation of that paragraph in
several critical respects. This chapter of the Reply will focus on those differences
and their implications for the classification of Serrana, Roncador, Serranilla and
Bajo Nuevo, and show that, as rocks that cannot sustain human habitation or
economic life of their own, those cays are not entitled to a 200 M EEZ or
continental shelf.
1. ARTICLE 121(3) REFLECTS CUSTOMARY INTERNATIONAL
LAW
4.13 Article 121(3) of the Convention poses an insurmountable challenge to
Colombia. As demonstrated below, there can be no doubt that Serrana, Roncador,
201 See CCM, para. 4.22.
101
Serranilla and Bajo Nuevo are all “rocks” that do not have an EEZ or continental shelf under the customary law equivalent of Article 121(3). 4.14 Colombia seeks to escape its fate by positing that State practice in relation to Article 121(3) has led to the existence of a rule of customary law that is different from the conventional rule.202 Colombia’s attempt to drive a wedge between the conventional and customary rule fails for two reasons. First, Colombia ignores what the Court has said about the customary law status of Article 121(3) (Section a). Second, State practice has not led to a rule of customary law different from the rule contained in that paragraph because there is no settled practice evincing a different rule (Section b). a. The Court’s Jurisprudence on the customary law status of Article 121(3) 4.15 The customary law status of Article 121(3) was confirmed by the Court in its 2012 Judgment in Territorial and Maritime Dispute (Nicaragua v. Colombia), where the Court stated that it “has recognized that the principles of maritime delimitation enshrined in Articles 74 and 83 reflect customary international law (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 91, paras. 167 et seq.). In the same case it treated the legal definition of an island embodied in Article 121, paragraph 1, as part of customary international law (ibid., p. 91, para. 167 and p. 99, para. 195). It reached the same conclusion as regards Article 121, paragraph 2 (ibid., p. 97, para. 185). The Judgment in the Qatar v. Bahrain case did not specifically address paragraph 3 of Article 121. The Court observes, however, that the entitlement to maritime rights accorded to an island by the provisions of 202 CCM, paras 4.183-4.184. 102
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 longestablished
principle that ‘islands, regardless of their size,... enjoy the
same status, and therefore generate the same maritime rights, as other
land territory” (ibid.) 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.”203
4.16 The Counter-Memorial quotes from the same paragraph of the 2012
Judgment,204 and recognizes that the “proposition that a conventional rule can
become customary law due to practice has been recognized by the Court”.205 But
it then argues the opposite - that the customary law rule on entitlements of rocks
is different from the rule set out in Article 121(3). According to the Counter-
Memorial: “Since non-Parties to [the Convention] are only subject to customary
international law, the extent of such customary law, developed from a
conventional rule, should be interpreted primarily by reference to State practice,
including ‘that of States whose interests are specially affected.’”206
4.17 Colombia’s argument cannot be reconciled with the 2012 Judgment,
which, of course, has the force of res judicata. It attempts to exclude paragraph 3
of Article 121 from the body of customary international law at the same time that
203 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012,
para. 139.
204 CCM, para. 4.25.
205 CCM, para. 4.26.
206 CCM, para. 4.26.
103
it admits that paragraphs 1 and 2 are part of that body. But the 2012 Judgment expressly precludes the excision that Colombia attempts to perform. The pertinent language merits repetition: 4.18 “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.”207In other words, the whole of Article 121 as negotiated at UNCLOS III has become part of customary international law. It is not up to individual States to pick and choose from this package. Colombia tries to do exactly that by claiming an EEZ and continental shelf for its rocks based on an alleged rule of customary international law that is inconsistent with Article 121(3). b. State practice has not led to a divergence between conventional and customary international law 4.19 A large part of Chapter 4 of the Counter-Memorial is dedicated to an analysis of State practice in relation to Article 121(3). The yardstick for assessing the relevance of State practice for the formation of a rule of customary international law is provided by the Court’s judgment in North Sea Continental Shelf, where it observed: “The essential point in this connection–and it seems necessary to stress it–is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the 207 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, para. 139. 104
opinio juris;–for, in order to achieve this result, two conditions must be
fulfilled. Not only must the acts concerned amount to a settled practice,
but they must also be such, or be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it.”208
4.20 As set out below, State practice in relation to Article 121(3) does not
amount to settled practice. A few States, by their conduct have exhibited
divergent interpretations of what constitutes the content of the rule contained in
Article 121(3) and the corresponding rule of customary international law.
4.21 The Counter-Memorial wrongly suggests that States are unanimous in
claiming an EEZ and continental shelf from all but the most insignificant insular
features, and that this practice has been met with approval by the international
community at large.209 A more balanced review of State practice reveals a very
different picture. State practice has not led to the formation of a rule of customary
law that diverges from the rule contained in Article 121(3).
4.22 Colombia either misstates or ignores key facts. For example, the Counter-
Memorial observes that Venezuela’s Aves Island (picture in Figure 4.2 below)
was given full effect in delimitation treaties concluded by Venezuela with the
United States210 , France and the Netherlands 211 . But it fails to mention that
several Caribbean States have indicated that the treatment of Aves Island in the
delimitations between Venezuela and France, the Netherlands and the United
208 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 45, para. 77.
209 CCM, paras. 4.113-125.
210 CCM, para. 4.69.
211 Idem.
105
States cannot prejudice their rights. In particular, Antigua and Barbuda, Saint Kitts and Nevis, and Saint Vincent and the Grenadines stated in diplomatic notes that were distributed to the States Parties to the Convention that Aves Island should not receive any weight in the delimitation between those States and Venezuela. The Secretary-General reported on the contents of these notes in his annual report on oceans and law of the sea for the year 1997.212 4.23 The Government of Saint Kitts and Nevis observed in this connection that with regard to the status of Aves Island it “wishes to recall that as recognized in customary international law and as reflected in the 1982 United Nations Convention on the Law of the Sea, rocks which cannot sustain human habitation or an economic life of their own shall have no exclusive economic zone or continental shelf”.213 4.24 The Government of Saint Vincent and the Grenadines made exactly the same statement concerning the content of “customary international law” in its note to the Secretary-General of the U.N. dated 8 August 1997.214 212 See A/52/487, paras. 74-75. The diplomatic notes are reproduced in Annexes 6-8 of this Reply. 213 Note from the Permanent Mission of St. Kitts and Nevis to the U.N. Secretary-General, 16 July 1997. UN, LOS Bull. No. 35, pp. 98-99. (NR, Annex 7). According to the Counter-Memorial, Aves Island measures 30 by 375 meters, and the Counter-Memorial observes that it is similar in size to the Colombian cay of Bajo Nuevo. CCM, para. 4.69. 214 Note from the Permanent Mission of Saint Vincent and the Grenadines to the U.N. Secretary-General, 8 August 1997. UN, LOS Bull. No. 35, p. 100. (NR, Annex 8). 106
Figure 4.2 Aves Island, Venezuela
4.25 Colombia’s reliance on certain boundary treaties, in which some States
appear to accept disputed entitlements, such as that of Aves Island beyond 12 M,
is misplaced. Boundary treaties can reflect many factors, including political and
economic ones, as well as trade-offs between the parties.215
4.26 Thus, boundary treaties do not necessarily reflect the opinion juris of the
parties themselves, let alone a position widely held by a significant number of
States. In fact, such treaties sometimes reflect the opposite, even when the same
purported “rule” is reflected in a “considerable number” of them.
215 “Soons argues that Aves may qualify as a rock. He has concluded that the delimitation treaty
between The Netherlands and Venezuela could have followed the more equitable enclave solution
while admitting, however, that the full effect for Aves, ‘seen in the broader framework of the
entire delimitation treaty, is understandable as a negotiating deal package’”. J. Charney, L.
Alexander, eds., International Maritime Boundaries, Vol.I, p.623.
107
4.27 Conclusion 11(2) of the draft conclusions on the identification of customary international law adopted by the International Law Commission provides: The fact that a rule is set forth in a number of treaties may, but does not necessarily, indicate that the treaty rule reflects a rule of customary international law.216 4.28 The ILC commentary to this provision provides: Paragraph 2 seeks to caution that the existence of similar provisions in a considerable number of bilateral or other treaties, thus establishing similar rights and obligations for a broad array of States, does not necessarily indicate that a rule of customary international law is reflected in such provisions. While it may indeed be the case that such repetition attests to the existence of a corresponding rule of customary international law (or has given rise to it), it “could equally show the contrary” in the sense that States enter into treaties because of the absence of any rule or in order to derogate from it. Again, an investigation into whether there are instances of practice accepted as law (accompanied by opinio juris) that support the written rule is required.217 4.29 The Court itself has followed this cautious approach. In the case concerning Ahmadou Sadio Diallo (Guinea v. Democratic Republic of the Congo), in the Judgment on preliminary objections (2007), the Court held: The fact invoked by Guinea that various international agreements, such as agreements for the promotion and protection of foreign investments and the Washington Convention, have established special legal régimes governing investment protection, or that provisions in this regard are commonly included in contracts 216 ILC draft conclusions on the identification of customary international law adopted by the Commission, Conclusion 11(2), http://legal.un.org/docs/?path=../ilc/reports/2016/english/chp5.pdf&lang=EFSRAC, p. 102. 217 ILC draft conclusions on the identification of customary international law adopted by the Commission, Conclusion 11(2), Comment 8, http://legal.un.org/docs/?path=../ilc/reports/2016/english/chp5.pdf&lang=EFSRAC, p. 106. 108
entered into directly between States and foreign investors, is not
sufficient to show that there has been a change in the
customary rules of diplomatic protection; it could equally show the
contrary.218
4.30 The Counter-Memorial ignores State practice that contradicts the
Colombian view. The Philippines took the position in the South China Sea case
that all the islands among the Spratly Islands constituted “rocks” in the sense of
Article 121(3).219 Interestingly, Itu Abu, the largest of the Spratly Islands at 0.46
sq km, is significantly larger than the cays on the banks of Serrana, Roncador,
Serranilla and Bajo Nuevo. Serrana, the largest according to Colombia, is 0.26 sq
km.220
4.31 This was not just the view of the Philippines. Both Vietnam and Malaysia
have also taken the position that all of the islands in the Spratlys are rocks that
cannot sustain human habitation or economic life of their own. This is evident
from their joint submission to the CLCS on the outer limits of their continental
shelf beyond 200 M in the southern part of the South China Sea.221
4.32 As is illustrated by Figure 1 of the joint submission, which is reproduced
as Figure 4.3 of this Reply, the outer limits of the EEZ of Malaysia and Vietnam
218 Judgment (24 May 2007), 2007 ICJ Rep. 582, para. 90.
219 See South China Sea Arbitration (Philippines v China), Award of 12 July 2016, PCA Case No.
2013-19, para. 1203(A)(3).
220 See CCM, para. 4.161.
221 Malaysia and the Socialist Republic of Viet Nam, Joint submission to the Commission on the
Limits of the Continental Shelf, in accordance with Article 76, paragraph 8, of the United Nations
Convention on the Law of the Sea in respect of the southern part of the South China Sea;
Executive Summary; available at
www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/mys_vnm2009excutivesumma
ry.pdf.
109
are defined by reference to the straight baselines along the Vietnamese coast and the Malaysian territories of Sarawak and Sabah. The Spratly Islands are ignored in determining the outer limits of the EEZ of the coastal States of the South China Sea. In other words, they have been treated as rocks under Article 121(3). 110
Figure 4.3 The Outer Limits of the EEZ of Malaysia and Vietnam in the
South China Sea
111
4.33 Vietnam confirmed this view in a statement submitted to the tribunal in South China Sea case, in which it observed that none of the features in the Spratly Islands can “generate maritime entitlements in excess of 12 nautical miles since they are low-tide elevations or ‘rocks which cannot sustain human habitation or economic life of their own’ under Article 121(3) of the Convention”.222 4.34 China, for its part, has asserted not only that the Nansha Islands (its name for the Spratly Islands) are entitled under UNCLOS to an exclusive economic zone and continental shelf, but also that for historic reasons it has rights over all the areas of the South China Sea it claims to.223 4.35 However, there is no evidence that China has accepted the interpretation of Article 121(3) that Colombia now propounds, or that there is a customary international law rule that diverges from the conventional one. To the contrary, China has made clear in its representations to the Commission on the Limits of the Continental Shelf that it reads Article 121(3) in much the same way as Nicaragua does: that “rocks” which cannot sustain human habitation or economic life of their own do not generate en exclusive economic zone or a continental 222 See South China Sea Arbitration (Philippines v China), Award of 12 July 2016, PCA Case No. 2013-19, para. 36. 223 See the Notes Verbales sent by the Permanent Mission of the People’s Republic of China CML/17/2009 available at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2009re_mys_vnm_e.pdf ; CML/18/2009 available at http://www.un.org/Depts/los/clcs_new/submissions_files/vnm37_09/chn_2009re_vnm.pdf ; and CML/8/2011 available at http://www.un.org/Depts/los/clcs_new/submissions_files/mysvnm33_09/chn_2011_re_phl_e.pdf 112
shelf. In objecting to Japan’s claim to an extended continental shelf for
Okinotorishima, China explained:
Article121(3) of the Convention stipulates that, "Rocks which cannot
sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf'. Available scientific data
fully reveal that the rock of Oki-no-Tori, on its natural conditions,
obviously cannot sustain human habitation or economic life of its own,
and therefore shall have no exclusive economic zone or continental
shelf Even less shall it have the right to the extended continental shelf
beyond 200 nautical miles.224
4.36 States may differ on whether the Spratly Islands consist only of “rocks”
and lesser features, or whether any of these small islands is capable of sustaining
human habitation and economic life. But that difference is not enough to
demonstrate the existence of a State practice that is sufficient to create an opinio
juris on the meaning of Article 121(3), or a new rule of customary international
law that differs from it.
4.37 Colombia discusses a number of examples from the practice of the United
States, France, Australia and other countries claiming an EEZ and continental
shelf for a number of small islands.225 According to the Counter-Memorial: “This
practice clearly confirms a very restrictive interpretation of this rule.” 226
Nicaragua does not agree.
224 Communication from the People’s Republic of China to the Secretary-General of the United
Nations, CML/2/2009 (6 February 2009),
http://www.un.org/depts/los/clcs_new/submissions_files/jpn08/chn_6feb09_e.pdf .
Communication from the Republic of Korea to the Secretary-General of the United Nations,
MUN/046/09 (27 February 2009),
http://www.un.org/depts/los/clcs_new/submissions_files/jpn08/kor_27feb09.pdf
225 CCM, paras 4.70-4.73.
226 CCM, para. 4.73.
113
4.38 In the first instance, with the exception only of the United States and Venezuela, the examples Colombia cites are from States that are parties to UNCLOS. Their practice could therefore only be of direct relevance to the interpretation of the treaty-based rule on rocks, not its customary international law equivalent. And even in that respect, they are too few and far between to be of any relevance to the interpretation of Article 121(3). Under Article 31(3)(b) of the VCLT, subsequent State practice may be taken into account in the interpretation of a treaty’s terms only if it establishes the agreement of the parties regarding its interpretation. In the case of a multi-lateral treaty like UNCLOS, such practice would have to be universal, or at least nearly so, in character. The sampling of claims that Colombia mentions do not rise anywhere close to that level, particularly given the contrary examples discussed above. 4.39 Insofar as Colombia seeks comfort in the practice of the United States and Venezuela, the conduct and views of two States plainly cannot give rise to settled practice sufficient to reflect a customary rule, particularly when the claim of one of those two States (Venezuela/Aves Island) has been met with opposition by a number of other States. 4.40 Moreover, the mere fact that some States may have made maximalist claims from comparatively minor features is not surprising and certainly does not have the implications Colombia suggests. This is particularly true given that most of the examples Colombia cites relate to islands in the open ocean, where no 114
other State has a direct interest in opposing an exaggerated claim, or to
delimitation agreements involving minor insular features on both sides in which
the States concerned have a mutual interest in accepting each other’s maximalist
claims.227 Colombia cannot possibly draw out of these self-interested exercises
the kind of opinio juris necessary for the establishment of a new rule of
customary international law.
4.41 All that they show is that, some States occasionally succumb to what one
distinguished commentator has called the “territorial temptation”;228 that is, the
desire for more. But that is no reason to read more into the State practice than
what is really there, especially since, as discussed below, Article 121(3) exists
precisely as a check on the territorial temptation.
2. THE TERM “ROCKS” DOES NOT APPLY ONLY TO
“GEOLOGICAL” ROCKS
4.42 A core argument of the Counter-Memorial is that the term “rock” in
Article 121(3) only refers to “geological” rocks, “meaning a feature made solely
of solid rock”.229 According to Colombia, that interpretation accords with the
ordinary meaning of the term,230 and finds support in the drafting history of
227 See generally CCM, paras. 4.62-92.
228 Bernard Oxman, “The Territorial Temptation: a Siren Song at Sea”, 100 AM. J. INT'L. L. 830
(2006).
229 CCM, para. 4.32.
230 CCM, para. 4.32.
115
Article 121(3) and State practice.231 The Counter-Memorial also contends that the jurisprudence, apart from the award in South China Sea, supports its interpretation.232 4.43 The present section will address these contentions. First, Subsection (a) considers Colombia’s position from the perspective of the rules of treaty interpretation. Second, Subsection (b) considers the drafting history of Article 121(3), which supports the conclusion that the term “rock” is intended to refer to insular features that cannot sustain human habitation or economic life of their own regardless of their geological configuration. Third, Subsection (c) assesses the jurisprudence including the Court’s 2012 Judgment in Territorial and Maritime Dispute (Nicaragua v. Colombia), where the term ‘rock’ ‘was deemed applicable to features that are not made up of solely of solid geological rock. Finally, Subsection (d) discusses State practice. As that discussion indicates, the practice does not support the view that the term only applies to geological rocks. States have repeatedly invoked Article 121(3) in relation to islands that are not rocks in a strictly geological sense. a. Colombia’s interpretation of the term ‘rock’ leads to a manifestly absurd and unreasonable result 4.44 The meaning of the term “rock” was directly addressed by the arbitral tribunal in the South China Sea arbitration, which relied on the Court’s 2012 231 CCM, paras. 4.37 and 4.67. 232 CCM, paras 4.41-4.51. 116
Judgment in Nicaragua v. Colombia and ruled “that ‘rocks’ for the purposes of
Article 121(3) will not necessarily be composed of rock in the lay sense of that
term.”233
4.45 Colombia is understandably unhappy with this rule. According to the
Counter-Memorial, the arbitral tribunal “struggled to demonstrate that the term
‘rocks’ has no specific geological or geomorphological meaning and, ultimately,
no meaning at all”.234
4.46 The tribunal had no such difficultly. In fact, as stated, the tribunal placed
principal reliance on the Court’s own 2012 Judgment, observing that it was
guided in part by the Court’s finding that Quitasueño (QS 32), “a ‘miniscule’
protrusion of coral” was a rock235 despite being comprised of the skeletons of
dead coral, not solid geological rock.
4.47 The Court’s qualification of Quitasueño (QS 32) as an Article 121(3)
“rock” causes Colombia considerable embarrassment. The Counter-Memorial
seeks to escape the logic of the Court’s findings by submitting that: “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.’”236
233 South China Sea Arbitration (Philippines v China), Award of 12 July 2016, PCA Case No.
2013-19, para. 482.
234 CCM, para. 4.46.
235 South China Sea Arbitration (Philippines v China), Award of 12 July 2016, PCA Case No.
2013-19, para. 480.
236 CCM, para. 4.51.
117
4.48 The Counter-Memorial’s discussion of the Court's treatment of Quitasueño is a fine example of selective quoting. Colombia purports to back up its assertion that the Court never qualified QS 32 as coral by quoting from paragraph 37 of the 2012 Judgment. However, the context of the quoted passage, plainly confirms that the Court considered that QS 32 consists of coral: “Nicaragua's contention that QS 32 cannot be regarded as an island within the definition established in customary international law, because it is composed of coral debris, is without merit. International 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 photographic evidence shows that QS 32 is composed of solid material, attached to the substrate, and not of loose debris. The fact that the feature is composed of coral is irrelevant”.237 4.49 The Court’s finding that the term “rocks” encompasses coral formations confirms that it does not apply only to features that consist solely of solid geological rock, but also to features made up of other materials. 4.50 In any event, insofar as the issue now in dispute concerns the composition of Serrana, Roncador, Serranilla and Bajo Nuevo, the debate is purely academic. As discussed in more detail below, all four of these features are naturally comprised of sand and coral. The Court has already held that coral can be considered a form of “rock”. The same must equally be true of sand, which is formed by the slow erosion of rock and coral over geological time.238 It is, in other words, a mass of tiny, weathered rocks. 237 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, para. 37. 238 See, e.g., https://oceanservice.noaa.gov/facts/sand.html (defining sand). 118
4.51 For Colombia to prevail on its argument that Serrana, Roncador,
Serranilla and Bajo Nuevo are not “rocks” it would have to convince the Court
that pulverized rock is not rock. Nicaragua considers the argument absurd on its
face.
4.52 In fact, the historical record shows that the term “rock” has been used to
describe Serrana, Roncador and Serranilla (and Quitasueño). For example, a 1932
study prepared by the U.S. Department of State analyzing the territorial claims of
various States to Serrana, Roncador, Serranilla and Quitasueño states:
“Although the islands of Old Providence and San Andres, and the
Mosquito coast and Keys were occupied and their possession was
disputed from time to time during the 17th century, no evidence has
been found of any use of the islands of Roncador, Quito Sueno,
Serrana, or Serranilla. … [T]hese Keys were then, and probably for
many years to come, regarded only as barren, uninhabited, useless
rocks”.239
4.53 Colombia’s argument is wrong in another sense as well: it would lead to
manifestly absurd results that are plainly inconsistent with the object and purpose
of Article 121(3). Under Colombia’s approach, a small, uninhabitable sand-spit or
mud-patch, devoid of economic life would be entitled to generate expanded
maritime rights and jurisdiction even though an otherwise identical feature that
happens to be composed of granite would not be.
4.54 Here again, Nicaragua considers such a result self-evidently absurd. As
discussed more fully below, it is also inconsistent with the object and purpose of
239 “The Sovereignty of the Islands of Roncador, Quita Sueno, Serrana and Serranilla”, Legal
Advisor’s Office, U.S. Dept. of State (9 Aug. 1932) (“1932 State Dept. Study”), pp. 50-51
(emphasis added) (NR, Annex 5).
119
Article 121(3). The newly created regime of the EEZ reflected a compromise that was intended to balance the interests of the peoples of developing States with the interests of the traditional maritime States. The compromise that was reached gave coastal States exclusive access to the living and non-living resources within 200 M of their coasts so that these resources could be used for the benefit of their people. Article 121(3) serves as a check to prevent insignificant features from inequitably generating enormous entitlements to maritime space that would not benefit the local population. b. The drafting history of Article 121(3) 4.55 In discussing the travaux of Article 121(3) of the Convention, the Counter-Memorial submits that they “are inconclusive on this issue” (i.e. the meaning of the term “rocks”).240 But that does not stop Colombia from jumping to the bold conclusion that the drafters of the Convention deliberately chose to use the term “rocks” to restrict the scope of the provision’s application to geological rocks.241 4.56 Nicaragua agrees that the travaux are of limited value in interpreting Article 121(3). But it disagrees that one can nevertheless draw from them the conclusion Colombia suggests. To the contrary, the only genuine conclusion the travaux support is that the architects of the Convention were concerned about 240 CCM, para. 4.37. 241 CCM, para. 4.39. 120
preventing minor insular features from generating expanded maritime
entitlements and impinging on (1) the Area as the common heritage of mankind,
or (2) the rights and interests of other coastal States.
4.57 The final text of Article 121(3) differs substantially from the various
proposals submitted by States like Colombia, Malta, Romania, Turkey and a
group of 14 African States.242 There is therefore limited utility in reviewing any
of those proposals in detail. In the end, the agreed text was the product of the
work of the Second Committee’s informal consultative group on islands. That
group produced the text that ultimately became Article 121 during the Third
Session in Geneva in April 1975, but it left no records of its work.243
4.58 That does not, however, obscure the object and purpose of the provision.
In particular, the negotiation records reflect the fact that what former ITLOS
President Jesus—himself a participant in the negotiations—has called “an
overwhelming number of countries”244 opposed the idea of granting insignificant
islands maritime zones beyond the territorial sea.
4.59 At a 1971 meeting of the UN Sea-Bed Committee, the preparatory body
for UNCLOS III, Ambassador Arvid Pardo of Malta expressed the stakes for the
forthcoming negotiations:
242 David Anderson, “Islands and Rocks in the Modern Law of the Sea” in United Nations
Convention on the Law of the Sea 1982: A Commentary, Vol. 2 (M. Nordquist, et. al., eds., 2002),
p. 313.
243 See South China Sea Arbitration (Philippines v China), Award of 12 July 2016, PCA Case No.
2013-19, para. 532.
244 Jose Luis Jesus, “Rocks, New-born Islands, Sea Level Rise, and Maritime Space” in
Negotiating for Peace (Jochen A. Frowein, et. al., eds., 2003), p. 583.
121
“If a 200 mile limit of jurisdiction could be founded on the possession of uninhabited, remote or very small islands, the effectiveness of international administration of ocean space beyond national jurisdiction could be gravely impaired.”245 4.60 Similar concerns were expressed throughout the negotiations. For example, the delegate of Tunisia, Mohamed Marsit, who later became an ITLOS judge, stated that the then-existing law, which drew no distinction among islands, “favoured mainly those countries which had been able to extend their power over a large number of islands, while it was detrimental to the developing countries, which had not participated in the elaboration of the 1958 Geneva Conventions and which for the most part did not possess any islands. It was also unfavourable to all land-locked and other geographically disadvantaged States, which, having expected an equitable distribution of the resources of the international zone, were justly concerned at seeing that concept rendered meaningless by the exaggerated claims of countries possessing islands…”.246 4.61 There was also much concern about the potential for insignificant insular features to intrude on the maritime entitlements of other States. Former ITLOS President Jesus wrote: “The very purpose of the rock provision … was to deny to tiny islands … the capacity to generate unfairly and inequitably huge maritime spaces … which would, in most cases, impinge on other States maritime space or on the area of the international seabed…”.247 4.62 The oft-quoted Danish view—expressed in the context of late-stage proposals by some States in 1982 to delete paragraph 3—captures the consensus 245 Russia v. Australia, Declaration of Judge Vukas, para. 10 (citing UN Sea-Bed Committee, Doc. A/AC.138/SR.57, p. 167). 246 United Nations, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Régime of Islands: Legislative History of Part VIII (Article 121) of the United Nations Convention on the Law of the Sea, Part 8 (1988), p. 65. 247 Jose Luis Jesus, “Rocks, New-born Islands, Sea Level Rise, and Maritime Space” in Negotiating for Peace (Jochen A. Frowein, et. al., eds., 2003), p. 588. 122
perfectly. The Danish representative emphasized that without a provision limiting
the maritime entitlements of insignificant insular features,
“tiny and barren islands, looked upon in the past as mere obstacles to
navigation, would miraculously become the golden keys to vast
maritime zones. This would indeed be an unwarranted and unacceptable
consequence of the new law of the sea.”248
4.63 The connection between the enlargement of coastal States’ maritime
zones to 200 M and the need for a check against that enlargement when it was not
warranted was articulated by Ambassador Tommy Koh of Singapore, who later
assumed the Presidency of the Conference, when he observed:
“The rationale for the proposal that coastal States should have the right
to establish an economic zone was essentially based upon the interests
of the people and the desire to marshal the resources of ocean space for
their development. . . . However, it would be unjust, and the common
heritage of mankind would be further diminished, if every island,
irrespective of its characteristics, was automatically entitled to claim a
uniform economic zone. Such an approach would give inequitable
benefits to coastal States with small or uninhabited islands scattered
over a wide expanse of the ocean. The economic zone of a barren rock
would be larger than the land territory of many States and larger than
the economic zones of many coastal States”.249
4.64 The representative of Colombia notably made substantially the same point
at the final stages of the Conference, during the 172nd session of the Plenary in
1982. He stated: “Rocks are entitled only to a territorial sea since they cannot
248 United Nations, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Régime
of Islands: Legislative History of Part VIII (Article 121) of the United Nations Convention on the
Law of the Sea, Part 8 (1988), p. 107.
249 “Summary Records of Meetings of the Second Committee, 39th Meeting, ” UN Doc.
A/CONF.62/C.2/SR.39 at p. 285, para. 72 (14 August 1974) (Statement of the Representative of
Singapore), Official Records of the Third United Nations Conference on the Law of the Sea,
Volume II (Summary Records of Meetings of the First, Second and Third Committees, Second
Session).
123
sustain human habitation or economic life of their own. This is logical. It is a ‘package’ which results from the view that these maritime spaces have been granted to benefit the inhabitants, with an economic concept”.250 4.65 Explaining why his country opposed the deletion of what is now Article 121(3), the representative of Colombia further stated that “Colombia was opposed to the amendments concerning article 121 proposed in documents A/CONF.62/L.108 and Corr.1 and L.126 because that article reflected a unique and delicate balance and would help to preserve the common heritage in the oceans. A simple look at the map of the Pacific Ocean would show what could result from the deletion of article 121, paragraph 3, or from reservations in respect of that paragraph”.251 4.66 The Court itself made much the same point in its 2012 Judgment when it observed that “the entitlement to maritime rights accorded to an island by the provisions of [Article 121,] 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.”252 4.67 This “essential link” would be broken if uninhabitable spits of sand and coral debris were accorded the more extensive maritime entitlements recognized 250 “189th Plenary Meeting,” UN Doc. A/CONF.62/SR.189, p. 66 at p. 83, para. 251 (8 December 1982) (Statement of the Representative of Colombia), Official Records of the Third United Nations Conference on the Law of the Sea, Volume XVI (Summary Records, Plenary, First and Second Committees, as well as Documents of the Conference, Eleventh Session). 251 Official Records of the Third United Nations Conference on the Law of the Sea, vol. XVI, p. 116, para. 29. 252 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, para. 139. 124
in UNCLOS, while “geological” rocks were not, simply because the former
happen to be comprised of finer mineralogical material.
c. The jurisprudence on the meaning of the term ‘rock’
4.68 The Counter-Memorial also seeks to shore up Colombia’s position by
reference to a number of decisions in other cases. With the exception of the
Court’s 2012 Judgment in Territorial and Maritime Dispute (Nicaragua v.
Colombia), which Nicaragua addressed above, none of the other cases on which
Colombia attempts to rely are relevant to the issues now before the Court.
4.69 In the case of the Volga, ITLOS dealt with the arrest of the Russian
fishing vessel Volga.253 It was strictly a prompt release case under UNCLOS
Article 292, and the Tribunal’s judgment did not address the question of whether
Australia’s Heard and MacDonald Islands were entitled to an EEZ. (That
notwithstanding, Vice-President Vukas submitted a separate declaration opining
that Heard and MacDonald Islands were rocks in the sense of Article 121(3) of
the Convention.254) The Counter-Memorial nevertheless has no qualms asserting
that the Tribunal confirmed that Article 121(3) only applies to rocks as defined by
Colombia, i.e. made up of solely of solid geological rock. 255 Colombia’s
argument is untenable on its face. There is nothing in the ITLOS judgment to
253 “Volga” (Russian Federation v Australia), Prompt Release, Judgment, ITLOS Reports 2002.
254 Ibid., Declaration of Vice-President Vukas.
255 CCM, paras 4.40-4.41.
125
indicate that the Tribunal even considered the issue. The question simply was not before it. 4.70 The Counter-Memorial also tries to find support in the Court’s case law for its argument that “rock” means only “geological” rocks because, Colombia says, the jurisprudence “demonstrates the Court’s resolve to distinguish between ‘rocks’ and ‘small islands’”.256 Although the Court has sometimes used the words “rocks” and “islets”, it has never done so in a way that supports the position of Colombia. 4.71 First, the Counter-Memorial refers to the Court’s Judgment in North Sea Continental Shelf, which in dictum refers to “the presence of islets, rocks and minor coastal projections”.257 As may be appreciated, the Court’s enumeration does not list different features according to their composition, as Colombia would have it,258 but provides a generic list of minor geographical features, rocks being one of them. Moreover, this observation was made in the context of discussing the delimitation of maritime boundaries and the potential distorting effect of minor features.259 But that issue, of course, has no bearing on the meaning of the term “rocks” under Article 121(3) or its customary international law equivalent. 4.72 The Counter-Memorial also observes that the Court’s Judgment in Libya/Malta expressly qualified the Maltese island of Filfla as “a small rocky 256 CCM, para. 4.43. 257 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 37, para. 57. 258 CCM, para. 4.44. 259 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 37, para. 57. 126
feature” and as an “uninhabited rock”. 260 How this helps Colombia is not
explained. The Court did not consider Filfla’s status under Article 121(3). While
the Court’s characterization of Filfla as a small feature indicates that the Court
took into account the size of Filfla in assessing its role in the delimitation of the
continental shelf between Libya and Malta, there is no indication in the Judgment
that Filfla’s geological composition played any role in that respect. The Court
merely explained that it had decided to ignore Filfla in drawing the provisional
equidistance line between Libya and Malta. Again, that issue has nothing to do
with the interpretation of Article 121(3).
4.73 The truth is simple and clear: prior to its 2012 Judgment in Nicaragua v.
Colombia, the Court never previously interpreted Article 121(3) or applied that
interpretation to particular, disputed features. Colombia’s references to the
Court’s prior jurisprudence therefore do nothing to advance its case.
d. State Practice
4.74 Colombia also tries to enlist State practice in aid of its argument about the
meaning of the term “rocks”. According to the Counter-Memorial, “based upon
State practice…the term ‘rock’ should be continued restrictively, in the
geological sense of the term.”261
260 CCM, para. 4.45.
261 CCM, para. 4.97.
127
4.75 Colombia is mistaken. The State practice is far from uniform and indicates that different States have different views on the meaning of the term “rock”. The practice of eastern Caribbean island States in relation to Venezuela’s Aves Island—which, like Colombia’s cays, is made up of sand and coral, not solid rock—indicates that these States consider Article 121(3) and its customary law equivalent applicable to insular features regardless of their geological composition.262 4.76 The same conclusion follows from the practice of the Philippines, Vietnam and Malaysia in relation to the Spratly Islands,263 which are similar in composition to the Colombian cays on the banks of Roncador, Serrana, Serranilla and Bajo Nuevo. 4.77 Colombia’s myopic focus on geology is reflected in the Counter-Memorial’s discussion of State practice in relation to the Japanese islands of Okinotorishima and Minamitorishima. As the Counter-Memorial sets out, China and the Republic of Korea have protested Japan’s use of Okinotorishima to determine the extent of its EEZ and continental shelf, but apparently have not raised such objections in relation to Minamitorishima.264 4.78 Colombia submits that what distinguishes the two cases is that “[w]hile Okinotorishima is clearly a feature made of solid rock, Minamitorishima is an 262 See paras. 4.19- 4.24. 263 See paras. 4.30-4.36. 264 CCM, para. 4.92. 128
island and it has never been treated as a “rock”.”265 However, this is no more than
speculation. Colombia points to nothing to support its statement. Moreover,
neither China’s nor Korea’s protest regarding Okinotorishima made any reference
to the feature’s geological composition. To the contrary, as China plainly stated,
Okinotorishima is a “rock” because it is incapable of sustaining human habitation
or economic life of its own.266
4.79 In any event, the State practice is sufficiently inconsistent that no firm
conclusion about the interpretation of the term rock can be drawn from it. While
some States may take the self-interested view that it applies only to “geological”
rocks, others plainly do not share that view. The practice is, in short, not settled.
3. SUSTAINING HUMAN HABITATION AND ECONOMIC LIFE
OF THEIR OWN
4.80 Article 121(3) provides that “[r]ocks” which “cannot sustain human
habitation or economic life of their own” are not entitled to an EEZ or continental
shelf. Features that do have these capacities, on the other hand, are, regardless of
geological composition, entitled to the full suite of maritime zones under the
Convention and customary law.
265 CCM, para. 4.92.
266 Communication from the People’s Republic of China to the Secretary-General of the United
Nations, CML/2/2009 (6 February 2009),
http://www.un.org/depts/los/clcs_new/submissions_files/jpn08/chn_6feb09_e.pdf
Communication from the Republic of Korea to the Secretary-General of the United Nations,
MUN/046/09 (27 February 2009),
http://www.un.org/depts/los/clcs_new/submissions_files/jpn08/kor_27feb09.pdf
129
4.81 The travaux of Article 121(3) shed little light on the meaning of the terms “sustain”, “human habitation” and “economic life of their own”.267 One thing is clear, however. As discussed above, the Convention’s expanded maritime zones were created for the benefit of the inhabitants of coastal States, and Article 121(3) was intended as a counter-weight to prevent unreasonable encroachments on the Area or the interests of other States. In the words of Colombia’s own representative to UNCLOS III: “Article 121 defines what is an island and the difference between islands and rocks. Islands have a right to a territorial sea, a continental shelf and an exclusive economic zone. Rocks are entitled only to a territorial sea since they cannot sustain human habitation or economic life of their own. This is logical. It is a ‘package’ which results from the view that these maritime spaces have been granted to benefit the inhabitants, with an economic concept. Any other interpretation would distort the concept”.268 4.82 Nicaragua considers that reading the terms “sustain”, “human habitation” and “economic life of their own” in accordance with their ordinary meaning results in an unambiguous understanding of Article 121(3) that is entirely consistent with the provision’s object and purpose. 4.83 “Sustain” has a clear meaning. The Oxford English Dictionary defines it as: 267 Nicaragua and Colombia agree that “cannot” refers to the capacity (or lack thereof) to sustain human habitation and economic life. See CCM, para. 4.99. 268 Statement of the Colombian representative at the resumed eleventh session of the Third United Nations Conference on the Law of the Sea (reproduced in The Law of the Sea; Regime of Islands (United Nations, 1988) p. 111) (emphasis added). 130
“To keep in existence, maintain; spec. to cause to continue in a certain
state for an extended period or without interruption; to keep or maintain
at the proper level, standard, or rate; to preserve the status of.
To maintain (a person, etc.) in life and health; to provide with food,
drink, and other substances necessary for remaining alive; to feed, to
keep.”269
4.84 It follows that to avoid being found a rock within the meaning of Article
121(3), a feature must be capable of providing the fresh water, the food, the
shelter and the living space that are necessary to keep human beings alive for an
extended period of time.
4.85 The feature must, moreover, be able to do so on its naturally occurring
conditions. Paragraph 1 of Article 121 provides that an island is a “naturally
formed” area of land that is above water at high-tide. Article 121(3) “rocks” are a
sub-category of islands. The “naturally formed” criterion thus applies equally to
rocks, and dictates that a feature's capacity to “sustain” human habitation and
economic life must be determined by reference to its natural conditions.
4.86 It therefore cannot be the case (as Colombia suggests270) that importing all
the supplies that make life possible can transform a rock into a full-fledged island.
Nor can this be accomplished by building a desalination plant to provide a source
of fresh water (as Colombia also suggests271). Such an approach would fly in the
place of the plain meaning of “sustain” and “naturally formed”, as explained
above.
269 Oxford English Dictionary (online version) (last accessed 20 June 2018).
270 CCM, para. 4.109.
271 CCM, para. 4.109.
131
4.87 Moreover, that understanding would create perverse incentives for States to undertake such actions to extend their maritime zones to the detriment of other coastal States and/or the common heritage of mankind. Under such an interpretation, every high-tide feature, no matter how small, no matter how remote, and no matter how incapable of sustaining human habitation or economic life in its natural conditions, could be converted into an island generating a 200 M entitlement if the State that claims it is willing to supply the resources necessary to sustain a human settlement. 4.88 This same understanding of what it means to “sustain” human habitation follows equally from the other authentic texts of the Convention. In French, the verb used is “se prêter à”, which means “to lend itself to”272 and, in Spanish, the word is “mantener”, which means: “Provide someone with the necessary food. Finance someone’s economic necessities. Maintain something in its being, to give it vigor and permanence”.273 4.89 The phrase “human habitation” has an equally clear meaning. Again, according to the Oxford English Dictionary, “habitation” means: “The action of dwelling in or inhabiting as a place of residence; occupancy by inhabitants.”274 In 272 Larousse French-English Dictionary (1981), p. 558. 273Dictionary of the Royal Spanish Academy (http://dle.rae.es) (last accessed 20 June 2018).In Chinese, the word used is “维持” (wéichi), which means to “maintain” or keep. In the Russian text, the words “cannot sustain” are expressed as “не пригодный”, which means “unfit” for a particular purpose. In the Arabic text they are expressed as “ ت ه يئ ا س تمرار ” (“tuhayyi' istimraar”),
where “tuhayyi’” means “to make ready, get ready, put in readiness (something); to prepare (something); to fix up, fit up, set up (something)”, and “istimraar” means “duration, permanence, continuity, continuance, continuation, continued existence, survival; persistence”. 274 Oxford English Dictionary (online version) (last accessed 20 June 2018). 132
French, the word is “habitation,” which has the same meaning as its English
equivalent.275 .
4.90 It is not enough that a feature be able to keep a single soul alive or provide
episodic shelter for a group of people. To “sustain human habitation” can only
mean to maintain a stable group of human beings by providing the food, water
and other necessities they need to make the island their residence.276
4.91 Moreover, the terms “sustain” and “habitation” include an obvious time
element, all the more when used together. As the dictionary definition reflects, to
“sustain” something is an action that occurs across “an extended period” of time.
So too for “habitation.” To inhabit a place is to reside there, not to stop there
episodically. To “sustain human habitation” can therefore only mean to support a
human settlement for a significant and continuous period of time, such that the
human population can validly be considered to make their residence on the
feature.
4.92 Human beings are, of course, endlessly resourceful. The Russian
cosmonaut Valeriy Poliyakov lived on the space station Mir for over 437 days,
taking his food and water with him. Nicaragua doubts that even Colombia would
argue that Mir was capable of sustaining human habitation.
275 Larousse French-English Dictionary (1981), p. 376 (“habitation, inhabiting, dwelling,
occupancy”). And in Chinese, the word used is “居住” (jūzhù), which means to dwell or “to live”.
276 See J.M Van Dyke and R.A. Brooks, “Uninhabited Islands: Their Impact on the Ownership of
the Oceans’ Resources”, Ocean Development and International Law, Vol. 12, No. 3-4 (1983).
133
4.93 For these reasons, Nicaragua shares the views of Van Dyke and Brooks, who wrote that in determining whether a feature can sustain human habitation, “[t]he key factor must be whether the island can in fact support a stable population. Islands should not generate ocean space if they are claimed by some distant absentee landlord who now desires the island primarily because of the ocean resources around the island. Islands should generate ocean space if stable communities of people live on the island and use the surrounding ocean areas”.277 4.94 In their words, “it does not serve the central purposes of the Treaty to grant ocean space to barren atolls that have only slight links to some distant nation”. 4.95 Colombia attempts to escape these conclusions by arguing that “neither the word ‘permanent’ nor the word ‘stable’ are used in Article 121(3).”278 But that misses the point. Interpreted in accordance with their ordinary meaning in light of the object and purpose of the provision, the words that Article 121(3) does use—“sustain human habitation”—plainly contemplate the continuous residence of a group of people across a period of time. Any contrary interpretation would deprive those words of their plain meaning. 4.96 In this respect it is significant that the provision does not use the terms “person” or “survival” as would be expected if the test were merely whether a feature could keep individual people alive intermittently or for some temporary period. 277 J.M Van Dyke and R.A. Brooks, “Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources”, Ocean Development and International Law, Vol. 12, No. 3-4 (1983). 278 CCM, para. 4.104. 134
4.97 Article 121(3) also requires that feature be able to sustain “economic life
of its own” if it is to have an entitlement to an exclusive economic zone and a
continental shelf. Nicaragua has already addressed what it means to “sustain”
habitation and therefore need not pause any longer on the word “sustain” other
than to underscore that the grammatical structure of Article 121(3) makes it clear
that the verb applies equally to the economic life requirement and the human
habitation requirement.
4.98 The meaning of “of their own” could scarcely be clearer, all the more
when the other authentic texts are also examined. On its plain and obvious
meaning, “of their own” means that the feature itself has the ability to support an
independent economic life without infusion from the outside. In his monograph
on “The Legal Regime of Islands in International Law”, Sir Derek Bowett put the
point this way: “The phrase ‘of their own’ means that a State cannot avoid a rock
being denied both an EEZ and a shelf by injecting artificial life, based on
resources from its other land territory”.279
4.99 In Nicaragua’s view, “economic life” cannot be equated to “economic
value”. If Article 121(3) were intended to capture the latter meaning, it would
have used those words or others to the same effect. But it does not. On its plain
meaning, economic “life” suggests the presence of local economic activity that is
the expression of human life. According to the Oxford English Dictionary, “life”
279 D. W. Bowett, The Legal Regime of Islands in International Law (1979), p. 34.
135
in this sense means: “Vitality or activity embodied in material (esp. human or animal) forms”.280 4.100 For a feature to sustain an “economic life”, it must therefore support the development and maintenance of local human economic activity across time. This presupposes more than the existence of a resource or the presence of an installation of an economic nature, however important. As former ITLOS President Jesus has observed, it requires that a feature have the capacity “to develop its own sources of production, distribution and exchange in a way that … it would constitute the material basis that would justify the existence and development of a stable human habitation or community …”.281 4.101 This, moreover, must be true of the feature as naturally formed. Conditions to support economic life cannot be artificially created or injected from the mainland. This does not mean, and Nicaragua does not argue, that links with the mainland must be entirely disregarded. One hundred percent self-sufficiency is not required. Especially in the modern world, there is no such place. But the economic life must be real and not contrived, local and not imported. 4.102 The Counter-Memorial submits that the requirement of “economic life of its own” is “extremely low”.282 But Colombia rather conspicuously offers no further explanation. For the reasons just explained, this cursory treatment of the 280 Oxford English Dictionary (online version) (last accessed 20 June 2018). 281 Jose Luis Jesus, “Rocks, New-born Islands, Sea Level Rise, and Maritime Space” in Negotiating for Peace (Jochen A. Frowein, et. al., eds., 2003), p. 590. 282 CCM, para. 4.184. 136
phrase does not accord with an interpretation that is consistent with the rules of
treaty interpretation.
4.103 The understanding of what it means to sustain human habitation and an
economic life is clear, but nevertheless only general, guidance on how to
distinguish between a rock and a true island. There are, and can be, no bright line
rules. Size matters but is not by itself determinative. Fresh water resources matter
but are not by themselves determinative. Soil composition and capacity to sustain
agriculture matter but are not by themselves determinative.
4.104 In the end, it is a question of appreciation in light of the natural
characteristics of a given feature. That question of appreciation in this case is
entrusted to the Court. Under any view, however, the Colombian cays that are
located on the banks of Serrana, Roncador, Serranilla and Bajo Nuevo do not
meet the requirements of being able to sustain human habitation or economic life
of their own.
4. THE CAYS ON THE BANKS OF SERRANA, RONCADOR,
SERRANILLA AND BAJO NUEVO ARE ROCKS THAT CANNOT
SUSTAIN HUMAN HABITATION OR ECONOMIC LIFE OF THEIR
OWN
4.105 The Counter-Memorial contends that all of Colombia’s cays that are
located on the banks of Serrana, Roncador, Serranilla and Bajo Nuevo escape the
application of the customary law equivalent of Article 121(3). The Counter-
137
Memorial first provides a general overview in this respect and then separately assesses the individual cays.283 For convenience, Nicaragua will assesses the status of the individual cays that are located on the banks of Serrana, Roncador, Serranilla and Bajo Nuevo in that order. In so doing, it will respond as appropriate to Colombia’s general arguments concerning the status of each of these features. 4.106 One prior point is necessary, however. Colombia argues that the cays on the banks of Roncador, Serrana, Serranilla and Bajo Nuevo “are naturally-formed islands”, not “geological” rocks.284 Nicaragua has already shown that the composition of an island is not determinative of its status as a rock. Nicaragua will therefore not respond separately on this point in addressing the status of each of the features below. The fact that they consist of sand and broken coral does not preclude them from being “rocks” under Article 121(3) or customary international law. a. Serrana Has No Entitlement Beyond 12M 4.107 Serrana Cay (also sometimes called Southwest Cay285) poses the simplest issue because its entitlements have already been determined by the Court. In its 283 See CCM, paras. 4.126-182. 284 CCM, para. 4.126. 285 There are actually several other, much smaller cays on the bank of Serrana: Triangle Cay, Little Cay, Anchor Cay, East Cay, North Cay, Northwest Cay, Sand Cay and Sunny Cay. Colombia makes no argument that these other cays are entitled to an EEZ and continental shelf. Nicaragua will therefore not separately address them in this Reply. 138
2012 Judgment, the Court enclaved Serrana within a 12 M territorial sea. In so
doing, the Court observed:
“Its small size, remoteness and other characteristics mean that, in any
event, the achievement of an equitable result requires that the boundary
line follow the outer limit of the territorial sea around the island. The
boundary will therefore follow a 12 nautical mile envelope of arcs
measured from Serrana Cay and other cays in its vicinity”.286
4.108 The maritime boundary between Serrana and Nicaragua established by the
Court definitively determines the extent of its entitlements.287 To argue now, as
Colombia does, that Serrana generates entitlement to a 200 M EEZ and
continental shelf effectively ignores the Court’s prior determination. It would
require a finding that Serrana’s entitlements could somehow leap-frog over
Nicaragua’s EEZ and reassert themselves to the east of Nicaragua’s 200 M limit.
There can therefore be no question of Serrana having overlapping entitlements
with Nicaragua that remains to be delimited.
4.109 In any event, even ignoring the Court’s 2012 Judgment, it is clear that
Serrana is plainly a “rock” that cannot sustain human habitation or economic life
of its own.
4.110 Serrana Cay is diminutive, measuring only some 0.26 sq km in area.288
Although it has some vegetation on it, it is comprised entirely of sand, rendering
agriculture impossible. The 1902 version of “The Navigation of the Gulf of
286 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012,
para. 238.
287 Ibid., para. 251(5).
288 CCM, para. 4.161.
139
Mexico and the Caribbean Sea” published by the Hydrographic Office of the United States Navy (“US Sailing Directions”), describes Serrana Cay as “composed entirely of sand covered with grass and stunted brushwood and has upon it summit a single cocoanut tree which can be seen sometime before the cay. At the southwest end large masses of broken coral have been thrown up upon the beach to a height of 3 or 4 feet”.289 4.111 Given the insignificance of the feature, it is not surprising that there is no record of any habitation there. The 1932 U.S. State Department Study quoted above indicates that “[i]n 1920, the superintendent of the lighthouse [erected by the United States] reported that the island was uninhabited, but that there was one fisherman’s hut at the north end of the Cay”.290 The presence of the hut appears connected with the fact that Serrana, like other “islands have been frequented by fishermen”. This is confirmed by the US Sailing Directions which state that “[i]n the turtle season [Serrana] bank is visited by small fishing vessels from Jamaica and the neighboring islands, and at this period their masts and temporary huts on the cays may be seen before the reefs”.291 4.112 The record concerning the sovereignty dispute between Colombia and the United States only underscores the lack of significance Colombia itself attached to Serrana. In or around 1919, the United States erected a lighthouse on Serrana (as well as Roncador and Quitasueño). Thereafter, “[i]n September, 1919, Colombia protested: asserting that these keys, Roncador, Quita Sueno, and 289 “The Navigation of the Gulf of Mexico and the Caribbean Sea” (“U.S. Sailing Directions”), Hydrographic Office of the United States Navy (1902), p. 280. (NR, Annex 2) 290 1932 U.S. State Depart. Study, p. 59.(NR, Annex 5) 291 U.S. Sailing Directions (1902), p.282.(NR, Annex 2) 140
Serranilla (although the light was on Serrana) belong to Colombia …”.292 In other
words, even as it was contesting sovereignty over the feature with the United
States, Colombia itself did not know the difference between Serrana and
Serranilla.
4.113 The Counter-Memorial makes a number of arguments that, despite its
evident insignificance, Serrana Cay is not a “rock” within the meaning of the
customary international law equivalent of Article 121(3). First, the Counter-
Memorial points out that there is vegetation on Serrana, consisting of “grass,
coconut palms and stunted brushwood”.293 While that assertion is consistent with
the historical descriptions recounted above, it does nothing to demonstrate that
Serrana can sustain human habitation or economic life of its own. The mere fact
that some plants grow on a feature does not mean that it can produce the quality
or quantity of food products necessary to feed a human community across time.
Colombia has not made—because it cannot make—any showing that Serrana is
capable of producing edible plants in sufficient quantity to sustain human
habitation.
4.114 Second, the Counter-Memorial observes that Serrana Cay is “constantly
visited” by fishermen from San Andrés and Providencia and that there are Navy
and Coastguard personnel on the cay.294 Colombia thus negates its own argument.
Visitation is not habitation. With respect to how “constantly” the feature was
292 1932 U.S. State Dept. Study, p. 83 (underlining in original).(NR, Annex 5)
293 CCM, para. 4.161.
294 CCM, para. 4.161-4.162.
141
visited, Nicaragua observes that the historical record only appears to support the assertion that it was visited by fishermen from Colombia and elsewhere during turtle season (i.e., between the months of March and August). Such temporary sojourns hardly constitute “constant visitation,” let alone the establishment or existence of a continuously settled human community (which Colombia does not even allege). 4.115 In this respect, one of the documents Colombia submits in support of the assertion that there was a “constant periodic presence”295—a revealingly awkward phrase—on its islands, the 1941 report on the Results of the Fifth George Vanderbilt Expedition,296 undermines its case about Serrana. Although the report noted the presence of fishermen on Serranilla during turtle season, it said nothing about the presence of any fishermen on Serrana at that time.297 4.116 In any event, as stated, visitation is not habitation, which connotes something more. And here the historical record is clear: Serrana has never been inhabited. Writing generally about the history of Serrana, Serranilla, Roncador and Quitasueño, the 1932 U.S. State Department study states that “there is practically no mention of anything taking place on Serrana, Serranilla, Roncador and Quito Sueno before the middle of the nineteenth century, although it is plain that there [sic] existence was known by the beginning of the seventeenth century. Apparently the islands themselves had no history before modern times. This inference 295 CCM, para. 4.62. 296 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 (CCM, Annex 47). 297 Ibid. 142
is reasonable in view of their tiny size and comparative uselessness
…”.298
4.117 Colombia itself acknowledges the importance of this point when it states
that “the way of assessing [the] ability to sustain human habitation could be by
looking at past and present habitation …”.299 This is only logical. If a feature
were historically uninhabited and sustained no economic life, that would
constitute powerful evidence of its lack of capacity to do so.
4.118 The absence of any historical habitation is particularly telling in assessing
the capacity of Serrana to sustain human habitation. It is not located in some
remote part of the globe, but in an area that has been inhabited for well over
10,000 years. The presence of pre-Colombian human habitation and a colonial
presence on many other nearby Caribbean islands indicates that those other
islands historically had the capacity to sustain human habitation. There has to be a
reason that Serrana, in contrast, has never been inhabited. Undoubtedly, it is
because it is uninhabitable.
4.119 The presence of Navy and Coast Guard personnel also does not meet the
standard of human habitation as understood in the context of Article 121(3) and
its customary international law equivalent. That presence is temporary in
character, and directed and supported by Colombia for reasons that have nothing
to do with the purposes of the expanded maritime zone UNCLOS created. As
former ITLOS Judge David Anderson (among others) has written: “The
298 1932 U.S. State Dept. Study, p. 40 (NR, Annex 5).
299 CCM, para. 4.105.
143
introduction on to a small feature, such as a rock or a sand spit, of an official or military presence, serviced from the outside, does not establish that the feature is capable of sustaining human habitation or has an economic life of its own.”300 4.120 Third, the Counter-Memorial submits that there are buildings, other infrastructure and an internet kiosk on the island.301 The information that is provided with the Counter-Memorial indicates that these facilities, which are plainly of recent origin, are used by the personnel of the Navy and the Coast Guard, and sometimes fishermen.302 Again, this evidence does not even begin to prove that Serrana Cay can sustain human habitation or economic life of its own. Facilities like those Colombia points to could be installed on virtually any feature anywhere in the world. But Article 121(3) requires the capacity to sustain “human habitation” and “economic life of its own”, not the capacity to be built upon. 4.121 There is therefore no escaping the conclusion that, even setting aside the Court’s 2012 Judgment, Serrana does not generate entitlement to an EEZ or continental shelf. 300 David Anderson, “Islands and Rocks in the Modern Law of the Sea” in United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. 2 (M. Nordquist, et. al., eds., 2002), p. 313. See also Robert Kolb, “The Interpretation of Article 121, Paragraph 3 of the United Nations Convention on the law of the Sea: Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own”, FRENCH YEARBOOK OF INTERNATIONAL LAW, Vol. 40 (1994), p. 906; United Nations, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Régime of Islands: Legislative History of Part VIII (Article 121) of the United Nations Convention on the Law of the Sea, Part 8 (1988), p. 7. 301 CCM, para. 4.162. 302 CCM, para. 4.162. 144
b. Roncador Has No Entitlement Beyond 12M
4.122 The Court’s 2012 Judgment did not separately address the delimitation of
Roncador. What it did say about Roncador, however, suggests that it too is
entitled to no more than a territorial sea. In particular, the Court drew the parallel
of latitude comprising the northern limit of Colombia’s corridor, and thus limited
the extent of Colombia’s maritime zones, by reference to the 12 M territorial sea
limit of Roncador.303 Especially given the diminutive size of Roncador (0.07 sq
km), its entitlements vis-à-vis Nicaragua should therefore be limited to 12 M.
4.123 Roncador is also a “rock” within the meaning of Article 121(3).304 The
1932 U.S. State Department study cited above305 describes Roncador as follows:
“It is about twelve feet above water and 600 by 630 yards in size, and is
composed of sand and coral without trees or bushes, but with some
guano on it. Brackish water may be obtained by digging wells, but there
is no good drinking water on the island.
[…]
That it has been used by fishermen in the Nineteenth and Twentieth
Centuries is quite certain. A fisherman's hut may usually be seen on the
Key, though it is probably only occupied by the men at intervals from
March to August, during the turtle breeding season.”306
4.124 Colombia’s own official documents prove that this miniscule feature is a
“rock”. In 1893, the Legation of Colombia to Washington, DC sent a note to the
303 Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012,
para. 237.
304 There are three cays on the bank of Roncador: Roncador Cay, Middle Cay and South Cay. The
Counter-Memorial makes no argument that Middle Cay or South Cay can sustain human
habitation or economic life of their own. Like Colombia, Nicaragua will therefore also focus its
analysis on Roncador Cay.
305 1932 U.S. State Dept. Study, (NR, Annex 5).
306 1932 U.S. State Dept. Study, pp. 58, 61, (NR, Annex 5)
145
U.S. Secretary of State protesting the United States’ sovereignty claim over Roncador (and Quitasueño), and stating the basis of Colombia’s competing claim. In that note, Colombia said of both Roncador and Quitasueño: “The aforesaid banks are not, neither can they be, permanently inhabited; they are barren islands without any kind of vegetation; they are destitute of the elements necessary for life of man, and the passing but periodical sojourn which the inhabitants of the more fertile contiguous islands make thereon, as well as the pursuit of turtle fisheries, of which, as I have stated, those keys are the breeding grounds, constitute the sole useful purpose of which they are susceptible”.307 4.125 Adding further colour to this description, the note tells the tale of 12 Jamaican laborers, hired to mine guano, who were abandoned on the feature. After waiting in vain for someone to return for them, and “being destitute of all means of subsistence on that arid and desert island”, seven left on a small boat and were picked up by a passing ship four days later.308 The remaining five all died. Fishermen subsequently found two of the corpses, the position of which is reported to have “clearly showed that death had come upon them in the midst of the most absolute destitution”.309 4.126 Notwithstanding the characterisation of Roncador by its own Legation to Washington (in the midst of a sovereignty dispute, no less), the Counter-Memorial makes a number of arguments that Roncador can sustain human habitation and an economic life of its own. First, the Counter-Memorial points 307 Letter, Legation of Colombia to the United States (18 Jan. 1893), p. 12.( NR, Annex 9). 308 Letter, Legation of Colombia to the United States (18 Jan. 1893), p. 3. ( NR, Annex 9). 309 Letter, Legation of Colombia to the United States (18 Jan. 1893), p. 4. ( NR, Annex 9). 146
out that there is now vegetation, and various species of fish and birds on
Roncador Cay.310 This, however, does nothing to show that Roncador Cay can
sustain human habitation or an economic life of its own. Indeed, Colombia’s own
prior description of the feature provides compelling evidence that it cannot.
4.127 Second, the Counter-Memorial observes that Roncador Cay is “constantly
visited” by fishermen from San Andrés and Providencia, and that there are Navy
and Coastguard personnel on the cay.311 These arguments are no more persuasive
in respect of Roncador than they are in respect of Serrana.
4.128 Historically, visits by fishermen were limited to the turtle season. The
1941 report on the Results of the Fifth George Vanderbilt Expedition indicates
that Roncador was deserted at the time the expedition visited the islands. The
only other evidence of the “constant visiting” that Colombia offers relates only to
the period after 2010 and records rare visits with large intervals in between.312
And, for the reasons already stated, the presence of Navy and Coast Guard
personnel does not meet the standard of human habitation as understood in the
context of Article 121(3) and its customary law equivalent.313
4.129 Third, the Counter-Memorial submits that there are buildings, other
infrastructure and an internet kiosk on the island. 314 The information that is
310 CCM, para. 4.152.
311 CCM, para. 4.153.
312 See CCM, para. 4.129 & Annexes 10-15.
313 South China Sea Arbitration (Philippines v China), Award of 12 July 2016, PCA Case No.
2013-19, para. 520.
314 CCM, para. 4.154.
147
provided by the Counter-Memorial indicates that these facilities, which are of recent origin, and presumably installed by the Government of Colombia with building materials transported to the island, are used by the personnel of the Navy and the Coast Guard and fisherman. As in the case of Serrana, the mere fact that a feature can be built upon is not by itself indicative of its ability to sustain human habitation or economic life, particularly when considered in light of Colombia’s own previous description of the feature. 4.130 Fourth, the Counter-Memorial asserts that before the Second World War Germany requested that a consul be accredited to San Andrés, Providencia and Roncador.315 According to the Counter-Memorial: “[C]learly, a foreign State would not request a consul to be accredited over another State’s rock”.316 This is pure speculation; the documents to which the Counter-Memorial refers do not provide any explanation for Germany’s actions.317 Nicaragua will not try to guess why Germany did what it did. Whatever the case, the characteristics of Roncador are a matter of objective fact and speak for themselves. It is plainly a “rock” within the meaning of Article 121(3). c. Serranilla Has No Entitlement Beyond 12M 4.131 The Court’s 2012 Judgment did not address the delimitation between Nicaragua’s mainland coast and the cays on the banks of Serranilla. Nicaragua 315 CCM, para. 4.157. 316 CCM, para. 4.157. 317 CCM, p. 260, fns. 434 and 435. 148
does note, however, that in the 1993 delimitation agreement between Colombia
and Jamaica, Colombia agreed that the entitlements of Serranilla should be
limited to a 12 M territorial sea.318 Although that agreement is res inter alios acta
as to Nicaragua, it constitutes persuasive evidence of Colombia’s own assessment
of the weight to be accorded the feature. Nicaragua respectfully submits that the
Court should follow Colombia’s lead and find that as a matter of delimitation visà-
vis Nicaragua, Serranilla generates no more than a territorial sea.
4.132 Serranilla’s entitlements should also be limited to 12 M for the additional
reason that it is an Article 121(3) “rock”.319 It therefore does not even potentially
generate entitlements beyond 12 M.
4.133 At just 0.12 sq km in area,320 Serranilla is only marginally less tiny than
Roncador. And the evidence is clear that it is equally incapable of sustaining
human habitation or an economic life of its own. The 1902 U.S. Sailing
Directions describe Serranilla Cay (also known as Beacon Cay) in the following
terms:
“[I]ts shape is that of a quarter moon, convex to the south, and from
point to point it is about ½ mile in length. The sand and coral, of which
it is composed, is covered with samphire grass and stands 8 feet above
the sea …. The fishermen say that indifferent brackish water, strongly
318 Treaty on Maritime Delimitation between the Republic of Colombia and Jamaica of 12
November 1993 (1776 UNTS 27).
319 There are several cays on the bank of Serranilla: Serranilla Cay, East Cay, Middle Cay, West
Cay and Sand Cay. The Counter-Memorial makes no argument that any feature other than
Serranilla Cay can sustain human habitation or economic life of their own. Like Colombia,
Nicaragua will therefore also focus its analysis on Serranilla Cay.
320 CCM, para. 4.168.
149
impregnated with lime, may be obtained on Beacon cay by digging wells.”321 4.134 The Colombian Navigator, published in 1839 by English hydrographer John Purdy, describes Serranilla in very similar terms, stating that there “is a small creeping shrub just covering the sand. Seals frequent this kay, with their young, in March and April …”.322 4.135 Serranilla is so small and so unimportant that Colombia historically paid it scant attention. As recorded in the aforementioned 1932 U.S. State Department study: “Colombia is the only government other than the United States that appears to have had any claim to sovereignty over Serranilla, and that claim has never been presented through diplomatic channels to the United States. Its existence is only inferred from certain records of the State Department which indicate that Colombia regards Serranilla as a part of the Providence Archipelago, and as under Colombian jurisdiction. Serranilla was never mentioned in the exposition of Colombia’s claim in 1893. … [I]t was not until 1919, after the erection of lights on the other three banks, that Serranilla was mentioned in the diplomaitc [sic] negotiations between the two governments. Even then, as has been seen, it was by mistake, Serrana and not Serranilla being what each side had in mind. Serranilla was dropped from the correspondence when this mistake was discovered, though no mention was made of the error. Furthermore, Serranilla was not included in the treaties of 1928 between Colombia and Nicaragua, and Colombia and the United States, and has not figured in any of the subsequent negotiations.”323 321 U.S. Sailing Directions (1902), p. 277. (NR, Annex 2). 322 The Colombian Navigator; or, Sailing Directory for the American Coasts and the West Indies (1839), John Purdy, Vol. III, p. 248. (NR, Annex 3). 323 1932 U.S. State Dept. Study, pp.113-14.(NR, Annex 5). 150
4.136 Notwithstanding the physical and historical unimportance of Serranilla
Cay, Colombia argues that it generates entitlement to a 200 M EEZ and
continental shelf. The arguments that Serranilla can sustain human habitation or
an economic life of its own that the Counter-Memorial makes are largely the
same as those it made in respect of Serrana and Roncador; namely, that it has
vegetation, that it is “permanently inhabited on a rotating basis by fishermen”,324
and that there are buildings and a detachment of the Colombian Navy on it.325
These arguments fail as to Serranilla for all the same reasons they did as to
Serrana and Roncador.
4.137 Moreover, Nicaragua notes that the only document introduced in
connection with Colombia’s argument that Serranilla is visited by fishermen is
the 1941 report on the Results of the Fifth George Vanderbilt Expedition.326 The
report observes that “fishermen with their families were living [in Serranilla] for
the purpose of catching turtles as well as gathering tern eggs and guano”.327
However, the report neither specifies where these fishermen came from, nor
indicates their number or the duration of their stay. It is quite possible that the
fishermen came from Jamaica. A discussion of the Joint Regime Area created by
the 1993 Agreement between Colombia and Jamaica states:
324 CCM, para. 4.168.
325 CCM, paras. 4.169-70.
326 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 (CCM, Annex 47).
327 Ibid., p. 10.
151
“Friction over these fishing grounds had been frequent between Jamaican fishermen and Colombian naval guards. It must be borne in mind that Colombia’s fishermen are based either on the distant mainland or quite locally on the inhabited islands of San Andrés and Providencia, but they have not been motivated to engage in activities traditionally carried out by Jamaican boats on these banks.”328 4.138 In any event, regardless of the provenance of the fishermen temporarily present at Serranilla, the fact that fishermen from other islands travel long distances to fish around a feature is not enough to entitle it to expanded maritime zones. If it were, then logic would dictate that Quitasueño should be entitled to an EEZ and continental shelf because they too have long been a destination for regional fishermen.329 But, of course, the Court has already ruled that they are not. The same conclusion should apply to Serranilla. d. Bajo Nuevo Has No Entitlement Beyond 12M 4.139 As in the case of Serranilla, the Court did not address the delimitation between Nicaragua’s mainland coast and the cays on the banks of Bajo Nuevo in its 2012 Judgment. But as also in the case of Serranilla, Bajo Nuevo was enclaved within a 12 M territorial sea in the 1993 delimitation agreement between Colombia and Jamaica.330 As such, it shows that Colombia itself does not consider the feature significant enough to generate an EEZ or continental shelf. Nicaragua respectfully submits that the Court should adopt the same approach 328 J.I. Charney and L.M. Alexander (eds.) International Maritime Boundaries; Volume III, p. 2187. 329 See 1932 U.S. Dept. Study, p. 75.(NR, Annex 5). 330 Treaty on Maritime Delimitation between the Republic of Colombia and Jamaica of 12 November 1993 (1776 UNTS 27). 152
and find that as a matter of delimitation vis-à-vis Nicaragua, Bajo Nuevo is
entitled only to a territorial sea.
4.140 Bajo Nuevo entitlements should be limited to 12 M also because it is an
Article 121(3) “rock”. 331 It therefore does not even potentially generate
entitlements beyond 12 M.
4.141 Bajo Nuevo Cay is just one-tenth the size of Roncador Cay: 0.007 sq
km.332 Nicaragua considers it self-evident that Bajo Nuevo can no more sustain
human habitation or an economic life of its own than Roncador. Colombia’s own
photographs make this clear. Counter-Memorial Figure 4.59 is reproduced below.
331 There are several cays on the bank of Bajo Nuevo: Bajo Nuevo Cay (also known as Low Cay),
West Cay, Sand Cay and Middle Cay. The Counter-Memorial makes no argument that any feature
other than Bajo Nuevo Cay can sustain human habitation or economic life of their own. Like
Colombia, Nicaragua will therefore also focus its analysis on Bajo Nuevo Cay.
332 CCM, para. 4.177.
153
154
4.142 The 1890 U.S. Sailing Directions confirm what the photographs show.
They describe Bajo Nuevo as
“a barren cay composed of sand, broken coral, and drift wood, thrown
up by the waves to the height of 5 feet above the sea. It is 300 yards
long, and about 50 yards broad, and lies in lat. 15° 52’ 28” N., long. 78°
39’ 4” W. At the south end there is a small pond, which is resorted to by
seals; and in the months of March and April the bank is visited by
fishing vessels, from St. Andrews [San Andrés] and Old Providence
[Providencia], for the purpose of taking them.”333
4.143 In the face of the obvious, the Counter-Memorial makes several hopeless
arguments that Bajo Nuevo Cay is in fact capable of sustaining human habitation
or an economic life of its own. The Counter-Memorial does not—because it
cannot—argue that there is vegetation on Bajo Nuevo Cay. But it does argue that
it is “frequently visited” by Colombian fishermen.334 It produces no documents to
support this assertion, however. The Book of Information and the Sailing
Directions contained in Annexes 10 to 15 of the Counter Memorial, and which
cover the period from 2010 to the present, do not register even a single visit to
Bajo Nuevo. Moreover, as stated, the historical record suggests that it was, at
most, visited by fishermen from San Andrés and Providencia only during March
and April for purposes of hunting seal. Again, visitation is not habitation.
4.144 Colombia also refers to the activities of Jamaican fishermen.335 But as
Colombia itself describes those activities, they are extremely limited and only
333 The Navigation of the Gulf of Mexico and Caribbean Sea (U.S. Sailing Directions),
Hydrographic Office of the United States Navy (1890), p. 116. (NR, Annex 4).
334 CCM, para. 4.177.
335 CCM, para. 4.181.
155
underscore the incapacity of Bajo Nuevo to sustain human life or economic activity. It states, for instance, that under the 1984 Agreement between Colombia and Jamaica, a maximum of just 12 Jamaican fishermen were “permitted temporary stationing in Bajo Nuevo”.336 Moreover, as explained above, there is no basis for according a feature extended maritime entitlements on the basis of transient activities undertaken by fishermen who reside on an island over 125 M away. 4.145 Finally, Colombia gets no mileage from its citation to the provisions of the 1984 Agreement with Jamaica that state that Bajo Nuevo (and Serranilla) “allow the habitation and can sustain of their own the life of Jamaican fishermen …”.337 The intent behind that provision is obvious. But States cannot change objective reality simply by describing a feature in a way that best suits their interests. 4.146 The conclusion remains: Bajo Nuevo, like Serrana, Roncador and Serranilla, is a “rock” within the meaning of the customary international law analogue to Article 121(3). None of them can sustain human habitation or an economic life of their own, and they therefore do not generate even a potential entitlement to an EEZ or continental shelf. 336 CCM, para. 4.181. 337 CCM, para. 4.181. 156
4.147 Figure 4.4 illustrates the maritime zones of Colombia and Nicaragua
taking into account the absence of these entitlements of the cays that are located
on the banks of Roncador, Serrana, Serranilla and Bajo Nuevo.
Figure 4.4 200M Limits for Mainlands and Entitled Islands
157
158
CHAPTER 5. A STATE’S ENTITLEMENT TO CLAIM A 200
NM EEZ WITH ITS ATTENDANT RIGHTS OVER THE
SEABED DOES NOT EXTINGUISH ANOTHER STATES
OVERLAPPING OCS CLAIM
5.1. This chapter of Nicaragua’s Reply responds to the arguments set out in
Chapter 3 of Colombia’s Counter-Memorial concerning the juridical nature of the
continental shelf, including the OCS, and the EEZ. The essence of Colombia’s
arguments is that a continental shelf defined under UNCLOS Article 76 in terms
of its distance from shore is juridically different from, or in some way
hierarchically superior to, a continental shelf defined under UNCLOS Article 76
in terms of the outer edge of the continental margin. This chapter shows that
those arguments are incorrect. There is no juridical difference between a coastal
State’s rights in different parts of its continental shelf; and there is no hierarchy
between continental shelf entitlements based on the different criteria that together
define the continental shelf under UNCLOS Article 76.
5.2. Those arguments lie at the heart of Colombia’s case, and because of their
pivotal importance it is worthwhile quoting Colombia’s summary of the
arguments verbatim.
“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-
159
nautical-mile EEZ with its attendant continental shelf, encompassing the waters superjacent to the seabed, as well as the seabed and its subsoil, 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; (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; 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. […] 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 continental shelf, as “the keystone” of the new regime. 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 160
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.”338
5.3. The ‘principal reasons’ given by Colombia have no basis in international
law. They are bare assertions of propositions that contradict established and
fundamental principles of international law and misrepresent the work of
UNCLOS III. The following paragraphs address, first, each of the ‘three principal
reasons’ in turn, and then the question of the application of the principles of
international law to the continental shelves of islands. This Chapter closes with a
review of Colombia’s treatment of the UNCLOS travaux préparatoires and of
State practice.
A. The Continental Shelf, Including The Portion Beyond 200 NM, Is
An Ipso Jure Entitlement Of Each Coastal State, Which Automatically
Appertains To The Coastal State.
5.4. Colombia’s first proposition, in paragraph 3.5, is that “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
338 Footnotes omitted.
161
geomorphological criteria.”339 The plain implication, according to Colombia’s argument, is that an OCS claim is not an ipso jure entitlement. 5.5. The authority that it cites for this proposition is “2016 Judgment, Separate Opinion of Judge Greenwood, para. 18.” That paragraph reads as follows: “18. Nor does the 2012 Judgment give any indication of what it was that Nicaragua had to prove. Since Colombia was not a party to the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”), the Court necessarily held that the applicable law was customary international law (I.C.J. Reports 2012 (II), p. 666, para. 118). It concluded that the definition of the continental shelf contained in paragraph 1 of Article 76 of UNCLOS forms part of customary international law. That provision states: “The continental shelf of a coastal State comprises the sea‐bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.” The Court thus accepted that customary international law, like UNCLOS, recognizes two distinct grounds for entitlement to a continental shelf, one based upon distance and the other upon the possession of a continental margin which constitutes a natural prolongation of the coastal State’s land territory. To assert a claim to an area based upon the first ground, a State need only establish that the area claimed lies within 200 nautical miles of its baselines. Claims based upon the second ground are, however, rather more complicated. A State asserting such a claim in respect of a particular area must demonstrate that it possesses a continental margin which constitutes a natural prolongation of its land territory and that the area in question falls within the outer limits of that continental margin. That is what Nicaragua was seeking to prove in 2012.” 339 Cf CCM para. 3.12. 162
5.6. As is apparent, Judge Greenwood did not assert the proposition for which
he is cited as authority. He said, to borrow Colombia’s words, that ““while the
200-nautical-mile … continental shelf is an … 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.” In the sense that a State must demonstrate the existence of its
continental margin — just as a State must demonstrate that a particular point falls
within 200 NM of its baselines — Nicaragua does not dispute that proposition.
But Judge Greenwood did not say that ““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.” That is a quite different
proposition; and it is incorrect. Nor did he suggest in any way that the OCS is not
an ipso jure of a coastal State.
5.7. UNCLOS does not say that the EEZ is an ipso jure entitlement of coastal
States. UNCLOS makes no provision in relation to the EEZ that is equivalent to
the provision in UNCLOS Article 77(3), which stipulates in relation to the
continental shelf that “[t]he rights of the coastal State over the continental shelf
do not depend on occupation, effective or notional, or on any express
proclamation.”
5.8. UNCLOS Article 77(3) reflects what the Court called “the most
fundamental of all the rules of law relating to the continental shelf”, namely that
163
“the rights of the coastal State in respect of the area of continental shelf … exist ipso facto and ab initio, by virtue of its sovereignty over the land.”340 It is important to be clear on the meaning of that proposition. It means, as the Court went on to explain, that “there is here an inherent right. In order to exercise it, no special legal process has to be gone through, nor have any special legal acts to be performed. Its existence can be declared (and many States have done this) but does not need to be constituted.” 5.9. In other words, every coastal State has, by operation of law, and as a necessary and automatic consequence of it having a coastline, a continental shelf. A State may enact legislation or a declaration or a proclamation asserting its rights over the continental shelf; but those rights themselves are inherent, and their existence does not depend upon the making of any such legislation or declaration or proclamation. Like the territorial sea, the continental shelf is an automatic appurtenance of the coastal State, attaching to the coastal State by operation of law. The Court also said that the continental shelf rights of the coastal State exist ab initio.341 That follows naturally: because the law automatically ascribes a continental shelf to every coastal State, there is no rational basis for saying that it ascribes those right only after the State has performed this or that act, or after a certain date or after a certain period of time. 5.10. Colombia makes the mistake of conflating ipso facto appurtenance, in the sense just described, with the question of what might be called the ‘automatic 340 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3, at para. 19. 341 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3, para. 19. 164
entitlement” of a coastal State to establish an EEZ. It is true that every coastal
State is entitled to claim and establish an EEZ. It is not true that international law
automatically ascribes an EEZ to every coastal State whether or not a coastal
State has as a matter of fact claimed one.
5.11. Some States choose not to claim an EEZ. The UN Division for Ocean
Affairs and the Law of the Sea (‘DOALOS’) maintains a list of legislation and
proclamations of EEZ rights.342 DOALOS lists Albania, Algeria, Bahrain, Benin,
Bosnia and Herzegovina, Ecuador, El Salvador, Gambia, Greece, Iraq, Jordan,
Kuwait, Malta, Monaco, Montenegro, Papua New Guinea, Peru, Saudi Arabia,
Somalia, and Sudan as making no EEZ claim, and lists other States that claim
only limited competences, not amounting to a full EEZ claim, beyond their
territorial seas. 343 In the same sense, in 2013 a European Commission press
release referred to a statement by the European Commissioner for Maritime
Affairs and Fisheries that “There are huge untapped opportunities in the
Mediterranean Sea, which could come to fruition by establishing Exclusive
Economic Zones (EEZs). The proclamation and establishment of maritime zones
remains the sovereign right of each coastal State.”344
342 < http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/index.htmm >
343
<http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/table_summary_of_c
laims.pdf >
344 Press Release, ‘Improving governance of the maritime space: an opportunity for Blue Growth
in the Mediterranean sea’, Brussels, 11 July 2013, < http://europa.eu/rapid/press-release_IP-13-
681_en.htm >. (last accessed 20 june 2018)
165
5.12. The ‘proclamation and establishment’ of an EEZ is a right: it is not a duty; and it is not a legally-irrelevant act which is redundant because international law imposes an EEZ on every coastal State in any event. It is an opportunity, and States choose whether and when to avail themselves of it. If a coastal State chooses not to claim an EEZ, the area beyond its territorial sea, overlying its continental shelf, remains high seas. 5.13. Of course, if an EEZ is in fact proclaimed, it entails rights over both the water column and the seabed. 345 That is what the EEZ is, as a legal regime. The EEZ seabed rights are historically derived from, and their exercise is legally defined by reference to,346 the legal regime of the continental shelf. The proclamation of an EEZ is in that sense necessarily an assertion of rights that exist also under the regime of the continental shelf. That is why, as the Court held in 1985 in the Libya / Malta case: “Although the institutions of the continental shelf and the exclusive economic zone are different and distinct, the rights which the exclusive economic zone entails over the sea-bed of the zone are defined by reference to the régime laid down for the continental shelf. 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.”347 5.14. That is one reason that Colombia’s first proposition in paragraph 3.5 of its Counter-Memorial is incorrect. The 200-nautical-mile EEZ is not an ipso jure 345 UNCLOS Article 56. 346 UNCLOS Article 56(3). 347 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I. C.J. Reports 1985, p. 13, para. 34. 166
appurtenance of coastal States in the sense that the continental shelf undoubtedly
is an automatic appurtenance of costal States, ipso facto and ab initio.
5.15. There is a further point. If Colombia’s statement that “while the 200-
nautical-mile EEZ with its attendant continental shelf is an ipso jure entitlement
of coastal States … any OCS claim must be proven by the coastal State with
reference to geological and geomorphological criteria” is meant to imply that the
OCS does not attach to coastal States ipso facto and ab initio, that too would be
incorrect.
5.16. UNCLOS Articles 76(1) and 77(3) ascribe a continental shelf to each
coastal State. When Article 77(3) states that “[t]he rights of the coastal State over
the continental shelf do not depend on occupation, effective or notional, or on any
express proclamation,” the “continental shelf” that is referred to must be that
defined in Article 76(1), which speaks of the continental shelf of a coastal State
extending “throughout the natural prolongation of its land territory to the outer
edge of the continental margin, or to a distance of 200 nautical miles from the
baselines from which the breath of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance.“ There is no
reason to suppose anything different.
5.17. It is accordingly clear that the “inherent rights” of the coastal State extend
throughout its entire continental shelf. They extend both to that portion of the
167
continental shelf that lies within 200 NM of the baselines, and to that portion that lies more than 200 NM from the baselines. 5.18. As was explained above, in Chapter 2,348 the involvement of the Commission on the Limits of the Continental Shelf (‘CLCS’) in the process of settling the outer limit of the continental shelf does not alter this position. 5.19. UNCLOS Article 76(8) provides that: “Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.” 5.20. Nothing in that provision suggests that the submission of the “information” is an act constitutive of the coastal State rights over the OCS. Nothing suggests that the rights of the coastal State over the continental shelf do not exist, or are in some sense inchoate, pending the submission of the information to the CLCS and / or the receipt of its recommendation. The International Tribunal for the Law of the Sea, in the Bangladesh / Myanmar case, explained the position:349 “406. Regarding the question whether it can and should decide on the entitlements of the Parties, the Tribunal first points out the need to make 348 See paras. 2.37-2.45 above. 349 Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Case No. 16, Judgment of 14 March 2012, para. 409. 168
a distinction between the notion of entitlement to the continental shelf
beyond 200 nm and that of the outer limits of the continental shelf.
407. It is clear from article 76, paragraph 8, of the Convention that the
limits of the continental shelf beyond 200 nm can be established only by
the coastal State. Although this is a unilateral act, the opposability with
regard to other States of the limits thus established depends upon
satisfaction of the requirements specified in article 76, in particular
compliance by the coastal State with the obligation to submit to the
Commission information on the limits of the continental shelf beyond
200 nm and issuance by the Commission of relevant recommendations in
this regard. It is only after the limits are established by the coastal State
on the basis of the recommendations of the Commission that these limits
become “final and binding”.
408. The foregoing does not imply that entitlement to the continental
shelf depends on any procedural requirements. As stated in article 77,
paragraph 3, of the Convention, “[t]he rights of the coastal State over the
continental shelf do not depend on occupation, effective or notional, or
on any express proclamation”.
409. A coastal State’s entitlement to the continental shelf exists by the
sole fact that the basis of entitlement, namely, sovereignty over the land
territory, is present. It does not require the establishment of outer limits.
Article 77, paragraph 3, of the Convention confirms that the existence of
entitlement does not depend on the establishment of the outer limits of
the continental shelf by the coastal State.
410. Therefore, the fact that the outer limits of the continental shelf
beyond 200 nm have not been established does not imply that the
Tribunal must refrain from determining the existence of entitlement to
the continental shelf and delimiting the continental shelf between the
parties concerned.”
5.21. The point is reinforced by UNCLOS Article 76(10), which provides that
“[t]he provisions of this article are without prejudice to the delimitation of the
continental shelf between States with opposite or adjacent coasts.” The Virginia
Commentary notes that
“78.18(m). Paragraph 10 is a savings provision for all questions
regarding the delimitation of overlapping claims between States to
continental shelf. It provides that the determination of the outer limits of
169
the continental shelf is ‘without prejudice’ to the delimitation of the continental shelf between States with opposite or adjacent coasts. This provision emphasizes that article 76 prescribes the method of determining the outer limits of the continental shelf; it does not address in any way the question of delimitation of the continental shelf between opposite or adjacent States, which is addressed exclusively in Article 87. This distinction is reinforced by Annex II, article 9, which provides that the actions of the Commission on the Limits of the Continental Shelf in making the recommendations on the basis of data and other material submitted by the coastal State does not in any way affect ‘matters relating to delimitation of boundaries between States with opposite or adjacent coasts. The distinction is further reinforced by article 134, paragraph 4, which provides that nothing in Part XI ‘affects the establishment of the outer limits of the continental shelf … or the validity of agreements relating to delimitation between States with opposite or adjacent coasts’. 5.22. As the ITLOS points out, the technical experts of whom the CLCS is made up do not decide questions of legal entitlement: they decide technical questions, such as the validity of inferences drawn from oceanographic data on the precise location of the 2,500 metre isobath,350 or of the points at which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope.351 The CLCS’s review and recommendations serve the same function as a technical review of the drawing of baselines that might occur if, for example, the calculation by a coastal State of the coordinates of the outer limit of the territorial sea were challenged by another State, or the status as an island or a low-tide elevation of a maritime feature used as a basepoint were contested. The entitlement to a territorial sea is not in 350 Article 76(5). 351 Article 76(4)(a)(i). 170
question: the validity of the precise location of the claimed outer limit is
questioned.
5.23. Colombia, of course, is not bound by UNCLOS. It has no duty, and no
right, to submit information on its continental shelf to the CLCS. Colombia’s
entitlement to its continental shelf, including any areas of OCS to which it may
lay claim, is nonetheless as legally complete as it can ever be. Colombia’s
entitlement in this matter is governed by customary international law, as are its
relations with Nicaragua. Nicaragua’s continental shelf rights are similarly
complete. The Court can delimit the maritime boundary between Nicaragua and
Colombia on the basis of the evidence placed before it, just as it would delimit the
maritime boundary of any other pair of State whose relationship is governed by
customary international law.
B. An Overlap Between One State’s OCS And Another State’s
Continental Shelf Within 200 NM Requires Delimitation In The
Normal Way.
5.24. Colombia’s second proposition is that “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.” That proposition can be dealt with swiftly.
171
5.25. The fallacy of the reference to an “ipso jure entitlement to an EEZ “ has been addressed above. Further, the tendentious language352 can be put aside. It is not a question of ‘encroachment’: it is a question of finding the boundary between two maritime zones, each of which sits within its proper limits as determined in accordance with international law. 5.26. It is undoubtedly correct that the importance of the outer limit of the continental shelf, whether defined according to the 200 NM distance criterion or defined according to the geomorphological criteria of Article 76, is that, where it abuts the International Sea-Bed Area (‘the Area’) which is the common heritage of mankind, it constitutes the boundary with the Area. But the fact that every part of the boundary of the Area abuts a continental shelf does not mean that every part of a continental shelf boundary must abut the Area. It is a basic logical fallacy to suggest otherwise, as the existence of continental shelf boundaries between opposite and adjacent States clearly demonstrates. 5.27. Colombia points rightly to evidence at UNCLOS III that States were concerned that national continental shelves, and particularly outer continental shelves, should not ‘encroach’ upon the Area. That concern with the International Sea-Bed Area does not entail the proposition that no State’s OCS could ‘encroach’ upon the OCS of another State, or upon the 200 NM continental shelf of another State. The continental shelf has a straightforward definition in 352 And similar examples, such as the reference to the OCS as “a tolerated infringement on the Common Heritage of Mankind”: CCM para 3.3. 172
UNCLOS Article 76, which is understood to represent the definition in customary
international law. A continental shelf drawn in accordance with that definition
either does or does not overlap with a continental shelf drawn by another State.
That is a simple question of fact. If they do overlap, delimitation is called for.
5.28. Plainly, it is usually the case that a State’s continental shelf claims will
overlap with those of neighbouring States. That is obviously the case with the
very many claims to a continental shelf based on distance from the coast. But
Colombia points to no authority that establishes — or even attempts to argue —
that there can be no overlap between the OCS entitlements created by the
mainlands353 of opposite or adjacent States, or between one continental shelf
based on the entitlement through to the outer edge of the continental margin and
another continental shelf based on the 200 NM ‘distance from the coast’criterion,
both of which are equally provided for UNCLOS Article 76(1).
5.29. Similarly, there is no basis for the proposition that the continental shelf
within 200 NM of the coast has a juridical character different from the continental
shelf beyond 200 NM from the coast, and that where two continental shelf claims
overlap the continental shelf within 200 NM will somehow extinguish any
entitlement to a continental shelf based on geomorphological criteria. Nor is there
any basis for the suggestion that UNCLOS reflects or establishes a hierarchy
between continental shelf entitlements based on which of the Article 76(1)
353 The question whether a continental shelf measured from an island should be given full effect in
a delimitation is a distinct question, addressed in Chapter 4 above.
173
criteria defines each of the entitlements in question. The location of the boundary is to be determined in each specific case on the basis of international law in order to achieve an equitable solution in the circumstances of that case. C. The Juridical Nature Of The Rights Of The Coastal State Are The Same Throughout Its Entire Continental Shelf. 5.30. Colombia’s third argument is that the economic rights assigned in the 200 NM 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. 5.31. The proposition that the rights of the coastal State over the seabed and subsoil within 200 NM and out to the edge of the continental margin, whether derived from the legal regime of the EEZ354 or that of the continental shelf,355 are sovereign rights, is not controversial. Nor is the proposition that those rights “are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State.”356 But the assertion that “the OCS is a grant to a wide-shelf State in exchange for revenue-sharing with the other States Parties”357 is misconceived. 354 UNCLOS Article 56(1)(a), 56(3). 355 UNCLOS Article 77, and Part VI passim. 356 UNCLOS Article 77(2), 56(3). 357 CCM, para. 2.13, and cf., paras 22.10–2.16 174
5.32. As has been shown above, rights over the continental shelf are not
‘granted’ to States. They are inherent rights. They are rights which attach to every
coastal State automatically and which are enjoyed by every coastal State by
operation of law. Those rights exist throughout “the continental shelf”. 358
UNCLOS does not distinguish in this respect between the juridical nature of that
part of the continental shelf that lies within 200 NM of the baseline and that part
of it that lies more than 200 NM from the baseline; and there is no basis, whether
in UNCLOS or otherwise, for such a distinction. As was stated in the Award in
the Bay of Bengal Maritime Boundary Arbitration:
“: “The Tribunal emphasizes that article 76 of the Convention embodies
the concept of a single continental shelf. This is confirmed by article 77,
paragraphs 1 and 2 of the Convention, according to which a coastal State
exercises exclusive sovereign rights over the continental shelf in its
entirety. No distinction is made in these provisions between the
continental shelf within 200 nm and the shelf beyond that limit. Article
83 of the Convention, concerning the delimitation of the continental
shelf between States with opposite or adjacent coasts, likewise makes no
such distinction. This view is in line with the observation of the tribunal
in Barbados/Trinidad and Tobago that “there is in law only a single
‘continental shelf’ rather than an inner continental shelf and a separate
extended or outer continental shelf” (Award of 11 April 2006, RIAA,
Vol. XXVII, p. 147, at pp. 208-209, paragraph 213).”359
358 UNCLOS Article 77.
359 Bay of Bengal Maritime Boundary Arbitration, (Bangladesh / India), Award of 7 July 2014,
para. 77; < https://www.pcacases.com/web/sendAttach/383 >.
175
5.33. It is of course the case that some UNCLOS States Parties360 are liable to pay a levy or tax in respect of production from their OCS, in the same way that some UNCLOS States Parties are liable to have to share the living resources of their EEZ with other States in certain circumstances.361 These liabilities do not, however, affect the juridical nature of the rights exercised by the coastal State. D. Qualifying Islands And Mainlands Are Subject To The Same Customary International Law Regime Regarding Their Continental Shelves, But May Be Treated Differently In The Context Of Delimitation 5.34. Colombia asserts that “the customary international law regime applies equally to EEZ with its attendant continental shelf generated by islands and mainland”.362 That proposition is itself not controversial; but it is important to be aware of the limits upon it. 5.35. Colombia does not say that all islands have the same entitlement as a mainland coast to an EEZ. That is correct: the entitlement is qualified. UNCLOS Article 121(2) says plainly that “[e]xcept as provided for in paragraph 3… 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”; and Article 121(3) says that “[r]ocks which cannot sustain human 360 The duty does not apply to a developing State that is a net importer of a mineral resource produced from its continental shelf: UNCLOS Article 82(3). Nor does it apply to non-Party States, such as Colombia. 361 UNCLOS Articles 62, 69, 70. 362 CCM, para. 3.5. 176
habitation or economic life of their own shall have no exclusive economic zone or
continental shelf.”
5.36. Similarly, Colombia says that the “customary international law regime
applies equally” to the EEZ of islands and of mainlands. It does not say that under
the customary international law regime mainlands and islands necessarily have
the same effect upon the course of the maritime boundary between opposite and
adjacent States. That too is correct; and the implications of that point for the
present case have been considered in Chapter 4, above.
E. The UNCLOS Travaux Préparatoires And State practice.
5.37. Colombia devotes much space to its attempt to glean support from the
UNCLOS travaux préparatoires for the propositions set out above. Many of the
points arising from that part of the Counter-Memorial have been addressed in
earlier chapters in this Reply; but it is convenient to summarize Nicaragua’s main
responses here.
177
1. THE UNIVERSALIZATION AND CENTRAL IMPORTANCE OF THE 200-NAUTICAL-MILE LIMIT 5.38. Colombia first asserts “the primacy which was assigned to the EEZ, with its attendant 200-nautical-mile continental shelf, as “the keystone” of the new regime.”363 5.39. It is undoubtedly reasonable to point to the central importance of the EEZ as a concept promoted to reconcile the aspirations of, on the one hand, those States seeking the widest possible extent of national sovereignty over adjacent waters, epitomised by the 200 NM territorial sea claims extant during the Third UN Conference on the Law of the Sea (‘UNCLOS III’) which drafted UNCLOS, with, on the other hand, the aspirations of those States seeking to maximize the extent of waters that remain subject to the laissez faire regime of the high seas. 5.40. It is quite another matter to assert that, for example, “the OCS was considered supplemental to the entitlement ipso jure to the EEZ rather than its juridical equal.”364 No evidence is cited by Colombia to support that assertion. No evidence is cited to indicate that the delegates to the Law of the Sea Conference even considered the question of “juridical equality” between the EEZ and the OCS. There is no basis whatever for the suggestion that any form of juridical hierarchy was established between the EEZ and the OCS. 363 CCM para 3.7. 364 CCM para. 3.15. 178
2. THE DISTINCTION BETWEEN THE EEZ AND THE OCS
5.41. Colombia’s second proposition is (i) that the States negotiating at
UNCLOS III distinguished between the EEZ and the OCS, and (ii) that the EEZ
appertains to the coastal State as of right whereas the OCS is contingent on the
proof of geomorphological facts. The first part of the proposition is correct: the
second is not.
5.42. The distinction between the EEZ and the OCS is obvious. They are
subject to separate and different legal regimes. But, as was explained above,365 it
is the continental shelf – whether within or beyond 200 NM from the baseline –
that is an ‘inherent right’, so that the continental shelf appertains automatically to
a coastal State without needing to be claimed. The EEZ, in contrast, must be
claimed by a coastal State. If it does not claim an EEZ, the area beyond the
territorial sea of a coastal State, overlying its continental shelf, remains high seas.
5.43. It might be said that a coastal State has the ‘right to proclaim’ an EEZ. But
it does not actually have an EEZ automatically, by operation of law. A coastal
State does, on the other hand, have a continental shelf automatically, by operation
of law – ipso facto and ab initio.
5.44. Plainly, the area that is automatically ascribed by law to the coastal State
as its continental shelf must be defined. It is defined by UNCLOS Article 76.
That definition uses a range of different physical criteria to define the limits of the
365 See paras. 5.4 to 5.13, above.
179
continental shelf. It uses distance (the 200 NM limit in Article 76(1) and 76(4(a), and the 350 NM limits in Article 76(5) and 76(6)), and depth (the 2,500 metre isobath in Article 76(5)), and the thickness of sedimentary rocks at a given point and its proportion to the distance to the foot of the continental slope (Article 76(4(a)(i)), and gradient (the criterion for locating the foot of the slope under Article 76(4)(b)). 5.45. States have a certain freedom to choose between those criteria. But in every case, the limit of the continental shelf is “contingent upon” conformity with the relevant physical criteria set out in UNCLOS Article 76. That is as true of the 200 NM distance criterion in Article 76(1), which must be calculated from baselines drawn in accordance with international law, as it is of, for example, the ‘change-of-gradient’ criterion in Article 76(4)(ii). And it is no more pertinent to observe that “geological and geomorphological features were deemed irrelevant within 200 nautical miles from the baselines”366 than it is to observe that the 200 NM distance criterion is irrelevant when applying the change-of-gradient test. 5.46. The Court has made clear that where there is an overlap between overlapping entitlements caused by the overlap of a 200 NM claim of one State with a 200 NM claim of another State, geological and geomorphological considerations are not relevant to delimitation.367 That must be so: geological and geomorphological considerations have no relevance to the basis of the 366 CCM para. 3.18. 367 2012 Judgment, para 214. 180
entitlement, which is calculated on the basis of distance from baselines. But at
paragraph 3.21 of the Counter-Memorial, Colombia makes a different point: not
that geology and geomorphology is irrelevant in areas within 200 NM of both
claimant States, but that it is irrelevant within 200 NM of Colombia, even if
Nicaragua’s claim is not based on distance at all. That is a fallacy.
5.47. At a given point on the seabed, Colombia may have a claim under the
definition of the continental shelf in Article 76(1) based on the fact that the point
is within 200 NM of its coast. Nicaragua may have a claim to the same point, also
made under the definition of the continental shelf in Article 76(1), but based on
the fact that it is within “the outer edge of the continental margin”. Obviously,
Nicaragua has to put forward evidence to demonstrate that a point is within
Nicaragua’s continental margin, as defined in Article 76, and in particular Article
76(4)-(6). Nicaragua has put forward the evidence to support its claim to an OCS,
and Colombia’s evidence has not pointed to any significant uncertainty
concerning it, so that Nicaragua’s case meets the evidential standard set in the
Myanmar / Bangladesh case.368 Equally obviously, Colombia will not need to put
forward precisely the same kind of evidence in respect of its own distance-based
claim, though it will have to put forward evidence relating to its baselines and its
distance calculations, and to the maritime entitlements of each of its various
offshore features.
368 Bay of Bengal (Bangladesh / Myanmar), Judgment of 14 March 2012, para. 443; <
https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/published/C16-J-
14_mar_12.pdf >
181
5.48. To say that geology and geomorphology, which are the essential basis for the calculation of the outer edge of the continental margin under Article 76, are ‘irrelevant’ in these circumstances would be to bar Nicaragua in limine from even articulating the basis of its claim, while permitting Colombia to make its claim on a different basis under the Article 76 definition. The Court has never adopted such an extreme position; and Nicaragua submits that there is no principled basis for such a position. A State must be able to make and defend its claim to its inherent rights over the continental shelf, in accordance with the provisions of UNCLOS. If, in a given case, it is determined that, having considered the overlapping claims, the continental shelf boundary is not to be drawn inside one State’s 200 NM on the basis of another State’s claim to its continental margin, that determination must be on the basis that it is necessary to reach that decision in order to arrive at an equitable result, not on the basis that the claim is a juridical nonsense because there can be no claim to a continental margin that extends within 200 NM of another State. 3. THE OCS MAY OVERLAP WITH THE CONTINENTAL SHELF OF ANOTHER STATE OR MAY DIRECLY ABUT THE INTERNATIONAL SEABED AREA. 5.49. Colombia says that it will show that “the OCS of one State, rather than encroach upon the EEZ with its attendant continental shelf of another, was 182
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.”369
5.50. That point has been addressed already. 370 The fact that the focus of
UNCLOS III was on the risks of the intrusion of national claims to a continental
shelf extending into areas that properly belong to the International Sea-Bed Area
does not mean that a continental shelf can only extend beyond the 200 NM limit
if it extends into the International Sea-Bed Area. Nothing indicates that an OCS
cannot extend into an area that would otherwise be claimed by a neighbouring
coastal State as its own OCS, or be claimed by a neighbouring coastal State as its
own continental shelf on the basis of the 200 NM distance criterion. Indeed, just
such an overlap occurred, and was adjudicated, in the Bay of Bengal cases.371
Colombia’s argument to the contrary is based entirely upon unsupported
assertions and suppositions and has no basis in international law.372
369 CCM para. 3.5.
370 See paras. 5.254-529 above.
371 Bay of Bengal (Bangladesh / Myanmar), Judgment of 14 March 2012, para. 443; <
https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_16/published/C16-J-
14_mar_12.pdf >; Bay of Bengal Maritime Boundary Arbitration, (Bangladesh / India), Award of
7 July 2014, < https://www.pcacases.com/web/sendAttach/383 >.
372 And Colombia itself refers to contrary examples, such as the overlap between Australia’s OCS
and Indonesia’s 200 NM zone:see CCM para 3.59, “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.”
183
4. CONTINENTAL SHELF CLAIMS UNDER UNCLOS ARTICLE 76(1) BASED ON THE 200 NM ‘DISTANCE’ CRITERION HAVE NO AUTOMATIC PRECEDENCE OVER CONTINENTAL SHELF CLAIMS UNDER UNCLOS ARTICLE 76(1) BASED ON THE OUTER EDGE OF THE CONTINENTAL MARGIN. 5.51. Colombia states 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 States entitlement extended from mainland or islands”.373 5.52. In so far as that section of the Counter-Memorial is concerned to make out an argument on the relative weights to be given to islands and to mainlands in the context of the delimitation of overlapping continental shelf claims, based on distance and on the natural prolongation of land territory throughout the continental margin, it is addressed in Chapter 4 of this Reply. 5.53. In so far as that section of the Counter-Memorial is seeking to advance the suggestion that a continental shelf claim based on distance must always extinguish or prevail over or trump a continental shelf claim based on natural prolongation, it has been addressed above in this chapter. There is no basis in the UNCLOS travaux préparatoires for the creation of two different classes of 373 CCM para 3.32. 184
coastal State entitlement to a continental shelf, depending on which of the criteria
available under UNCLOS Article 76 they choose to apply.
F. State Practice Evidences No Juridical Distinction Or Hierarchy
Between The Entitlement To A Continental Shelf Within 200NM And
The Entitlement To A Continental Shelf Beyond 200 NM
5.54. Colombia argues that State practice confirms that the entitlement of one
State to an EEZ prevails over the OCS claim of another State.374 It arranges its
analysis 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).”375
5.55. The first part, State practice on overlapping areas within 200 NM of the
baselines, is not relevant to the question of overlaps with continental shelf claims
beyond 200 NM. Nicaragua’s claims in this case are, by definition, not based on
the distance criterion and must be addressed in the terms in which they are framed
– as claims based on Nicaragua’s inherent sovereign rights over the continental
shelf to the outer edge of the continental margin, in accordance with UNCLOS
Article 76(1).
374 CCM para. 3.39 et seq.
375 CCM para. 3.40.
185
5.56. As to Colombia’s reference to the Micronesia / Palau agreement and the provision that gave EEZ rights precedence over OCS rights,376 Nicaragua does not question the right of States to adopt such an approach in an agreed delimitation. It notes, however, that the statement made by Ambassador David Colson, Deputy Assistant Secretary of State for Oceans and Fisheries Affairs for the U.S., and Dr Smith (former US State Department Geographer), quoted by Colombia, that “care has been taken” to ensure that result,377 does not suggest any confidence at all in the existence of a rule of international law that automatically imposes that result. 5.57. The second part of the analysis of State practice, on OCS delimitations, similarly does not advance Colombia’s case. Nicaragua fully accepts that there are instances where a State has claimed or agreed to a continental shelf boundary that extends more than 200 NM from its baseline, but stops at or short of the 200 NM zone of another State. Nicaragua accepts the right of States to make such claims and agreements, and accepts that in the circumstances of some such possible claims this approach might in fact yield an equitable result, as required by UNCLOS Article 83. This practice does not, however, engage with Nicaragua’s central point, which is that the delimitation of overlapping continental shelf claims, whether based on distance or geological or gradient criteria under Article 76, are to be settled on a case-by-case basis in order to 376 CCM paras 3.45, 3.46. 377 CCM para. 3.46. 186
achieve an equitable solution in accordance with UNCLOS Article 83. The point
is that stopping at or short of the 200 NM limit of another State does not
necessarily secure an equitable solution in every case, so that it can be applied
mechanically without regard to the specific circumstances in each case.
5.58. The third part of Colombia’s analysis is concerned with gray areas in State
practice.378 As Colombia observes, gray areas, in which one State’s continental
shelf lies under or projects into another State’s EEZ, are not common. The
existence of examples such as Australia/Indonesia,379 and those decided upon in
the Bangladesh/Myanmar and Bangladesh/India cases,380 however, demonstrates
conclusively that they are legally possible.
5.59. Colombia tries to explain that the reasons for which those gray areas were
created are not applicable in the present case.381 Again, that misses the point.
Nicaragua does not argue that gray zones must be created in every case. Its
argument is that each case of overlapping claims should be approached on its own
facts, in accordance with the Court’s established jurisprudence, in order to find an
equitable solution, as international law requires.
5.60. The analysis of State practice is followed by what Colombia calls “an
extensive analysis of State practice with respect to submissions of OCS claims to
the CLCS” which “reveals that in 73 out of the overall 77 submissions, States did
378 CCM para 3.52 et seq.
379 CCM paras 3.58 – 3.60.
380 CCM para. 361 – 3.64.
381 CCM para. 3.65, 3.67 – 3.69.
187
not claim an OCS that would have encroached upon another State’s 200-nautical-mile entitlement.”382 Colombia continues: “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.” 5.61. The material statistic from the CLCS submissions is that “35 … States that could have potentially claimed an OCS that would have encroached upon the 200-nautical-mile entitlement of another State, … stopped at the other State’s 200-nautical-mile zone” and that “[o]nly four States claims failed to respect another State’s 200-nautical-mile entitlement: China, the Republic of Korea, Somalia and, of course, Nicaragua”.383 (In fact there appear to be three other examples. Russia, in its submission in 2001 concerning the Barents Sea, included areas within its OCS that were within 200 M of Norway. The submission of Bangladesh obviously would not have been possible at all if it had been confined by the 200 M zones of India and Myanmar. And Australia’s submission and the CLCS recommendation concerning Heard and McDonald Islands indicate that the OCS extends into the 200 M zone of the Australian Antarctic Territory.) 382 CCM para. 3.70. 383 CCM para 3.77. 188
5.62. That is not surprising. A submission to the CLCS which involves a
dispute arising from overlapping maritime claims will not be considered without
the prior consent of all States concerned. The CLCS Rules of Procedure stipulate:
“In cases where a land or maritime dispute exists, the Commission shall
not consider and qualify a submission made by any of the States
concerned in the dispute. However, the Commission may consider one or
more submissions in the areas under dispute with prior consent given by
all States that are parties to such a dispute.”384
5.63. Again, Nicaragua reiterates its position. It does not argue that all States
that could claim an OCS overlapping a 200 NM zone of another State must do so.
It argues simply that each case of overlapping claims must be approached on its
own facts, in accordance with the Court’s established jurisprudence, in order to
find an equitable solution, as international law requires.
5.64. The Counter-Memorial closes with a review of “the OCS in Doctrine.”385
It fails to advance Colombia’s case. Colombia asserts
“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 maritime delimitation line, comprising both the EEZ and the
continental shelf, and the avoidance, especially on a large scale, of Gray
Areas.”386
384 CLCS Rules of Procedure, Rule 46 and Annex I para. 5.
385 CCM para. 3.79 et seq.
386 CCM para. 3.81.
189
5.65. The confusion in the quoted paragraph is evident. Point (1) is irrelevant to the present case. In the case of overlapping 200 NM claims, geomorphology is indeed irrelevant. In the case of overlapping claims involving opposite States that are more than 400 NM apart, natural prolongation will necessarily be relied upon by at least one of the States as the basis of its claim. Indeed, the scholars quoted by Colombia appear to recognise this.387 5.66. As to point (2), a single maritime boundary may well be usually favoured by scholars. That does not imply that a single maritime boundary must always be established. Indeed, the existence of a single exception would be sufficient to prove that international law does not require that there must be a single maritime boundary but accommodates other solutions– and as was noted above, Colombia itself refers to four such cases.388 5.67. The Counter-Memorial closes with an extended quod erat demonstrandum.389 As has been shown, the material from the UNCLOS travaux préparatoires and from State practice and the selection of anglophone scholars quoted by Colombia do not support its case, and Colombia’s case is in any event misdirected. It misses Nicaragua’s argument, which is simply that the 387 See CCM paras 3.85 (Cottier), 3.86 (Anderson), 3.87 (Legault and Hankey), 3.88 (Colson. The quotation from Colson at CCM para. 3.91 refers to entitlements to a continental shelf, not to delimitation of overlapping claims). At paras 3.89 – 3.90 Jensen is presented as if he is denying that the natural prolongation / continental margin of a State [his ‘State X’] continental margin can extend into the 200 NM zone of another State [his State Y]; but Jensen says only that where State Y’s natural prolongation does not extend even as far as State Y’s 200 NM limit, the CLCS “will recommend that the continental shelf of state Y should cover the seabed only out to 200-miles.” (emphasis added). 388 See fn. 383 above. 389 CCM paras 3.102 – 3.107. 190
delimitation of overlapping continental shelf claims, whether based on distance or
geological or gradient criteria under Article 76, are to be settled on a case-by-case
basis in order to achieve an equitable solution in accordance with UNCLOS
Article 83.
191
192
CHAPTER 6. THE RIGHTS OF THIRD STATES WOULD
NOT BE AFFECTED BY THE DELIMITATION NICARAGUA
PROPOSES
6.1 In Chapter 6 of the Counter-Memorial, Colombia argues that the Court
cannot effect the delimitation Nicaragua requests because it would impermissibly
encroach on areas in which third States have potential interests.
6.2 This chapter responds to that argument and shows why Colombia is
mistaken. The argument is wrong in the first instance because it is based on an
incorrect premise. There is, in fact, a very substantial portion of the area in
dispute in this case where no third State has even a potential entitlement. In that
area, only the interests of Nicaragua and Colombia are implicated.
6.3 Colombia is also mistaken because the Court’s delimitation of the
boundary between Nicaragua and Colombia will be res inter alios acta as to third
States, and therefore without prejudice to their interests. That allowed the Court,
in its most recent maritime delimitation decision (Maritime Delimitation in the
Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua)), to draw the
boundary between Nicaragua and Costa Rica into areas where it was understood
that a third State (Panama) had a potential interest. There is no reason the Court
cannot do the same in this case in those areas where Panama and Jamaica might
have potential interests.
193
A. A Large Portion of the Relevant Area Is Beyond Any Potential Claims by a Third State 6.4 The Counter-Memorial argues that the Court “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 …”.390 In particular, Colombia argues: “Any delimitation between the Parties to the proceedings … would inevitably trespass into areas where Jamaica and Panama could have legal interests vis-à-vis Nicaragua …”.391 The result, Colombia says, is that “the possibility of judicial action in the present case” is “preclud[ed]”.392 6.5 Colombia’s argument stumbles at the threshold. It is factually incorrect. It is contradicted by Colombia’s own map, at Figure 6.1 of the Counter-Memorial. In reality, there are substantial areas at issue in the delimitation now before the Court that do not “trespass into areas where Jamaica and Panama could have legal interests”. This is true whether Jamaica’s and Panama’s areas of potential interest are defined by reference to their respective treaties with Colombia or by reference to the larger areas encompassed by their notional 200 M limits. Indeed, Colombia’s own maps prove the point. 6.6 Reproduced below is an annotated copy of Figure 6.1 from Colombia’s Counter-Memorial. As the Court can see, there is a large, continuous area (in 390 CCM, para. 6.7. 391 CCM, para. 6.20. 392 CCM, para. 6.25. 194
blue) running all the way from Nicaragua’s 200 M limit to the boundary it claims
in this case, which does not “trespass” in any way on any space within the 200 M
limits drawn from either Jamaica or Panama.
6.7 In this respect, Nicaragua observes that the 200 M limits drawn from
Jamaica and Panama represent their maximum area of potential interest even if
their treaties with Colombia are disregarded. As Colombia itself rightly observes:
“Costa Rica, Panama and Jamaica, with reason, have not claimed an OCS in the
Caribbean Sea. … Their entitlements vis-à-vis Nicaragua, like those of Colombia,
are based on 200-nautical-mile projections”. 393 There can therefore be no
question of Jamaica or Panama having even potential interests beyond 200 M.
6.8 Accordingly, in this middle portion of the delimitation area, the ostensible
problem of “trespassing” into areas where third States could have interests simply
does not arise. Colombia’s argument fails on this basis alone.
393 CCM, para. 6.19.
195
Figure 6.1 The 200 M Limits for Colombia, Jamaica and Panama B. The Delimitation of the Boundary between Nicaragua and Colombia Is Without Prejudice to Third States 6.9 Colombia’s argument that the Court may not act on the delimitation requested by Nicaragua also fails because any judgment the Court might render would be without prejudice to the rights and interests of third States. 6.10 The Court needs no reminding that Article 59 of the Statute provides: “The decision of the Court has no binding force except between the parties and in 196
respect of that particular case.” The Court recently had occasion to reaffirm the
rule in the context of the maritime delimitation between Nicaragua and Costa
Rica. The Court stated in its February 2018 Judgement:
1. “An issue is raised by the fact that, in the area of the Caribbean
Sea in which the Court is requested to delimit the maritime boundary
between the Parties, third States may also have claims. As was stated in
Territorial and Maritime Dispute (Nicaragua v. Colombia), the Court’s
Judgment may only address the maritime boundary between the Parties,
‘without prejudice to any claim of a third State or any claim which
either Party may have against a third State’ (Judgment, I.C.J. Reports
2012 (II), p. 707, para. 228). The Judgment can refer to those claims,
but cannot determine whether they are well founded. Conversely, a
judgment rendered by the Court between one of the Parties and a third
State or between two third States cannot per se affect the maritime
boundary between the Parties”394.
6.11 Colombia argues that the protections afforded by Article 59, and the fact
that any delimitation would be without prejudice to any claim of a third State, are
not enough. According to the Counter-Memorial: “[T]he 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”.395
6.12 Here again, Colombia is mistaken. In its recent Judgment on delimitation
in Costa Rica v. Nicaragua, the boundary the Court drew in the Caribbean
crossed into areas that are closer to Panama than to Costa Rica and in which
Panama has a potential interest. This can be observed in Figure {+} below, a copy
394 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua),
I.C.J., Judgment, 2 February 2018, para. 123.
395 CCM, para. 6.11.
197
of Sketch-map No. 11 from the Court’s February 2018 Judgment (which has been annotated to include a notional equidistance line between Costa Rica and Panama). As the Court can see, beginning between points T and V of the boundary determined by the Court, the boundary line is closer to Panama than to Costa Rica. Indeed, as shown, the Court’s boundary even crosses the line representing the seaward extension of the existing treaty line between Costa Rica and Panama. 6.13 In drawing the provisional equidistance line in that case, which also crosses both the Costa Rica-Panama equidistance line and the seaward extension of the treaty line between those States, the Court stated that “the construction of this line is without prejudice to any claims that a third State may have on part of the area crossed by the line”.396 The same, of course, applies equally to the final delimitation line, which was adjusted so as to give Nicaragua’s Corn Islands half effect. 6.14 There is no reason the Court could not do the same in this case and draw an appropriate delimitation line with the express proviso that it is without prejudice to the claims or interests of any third States. 6.15 Colombia argues that the Court cannot possibly draw a delimitation line that might impinge on the 200 M limits drawn from Jamaica or Panama for the additional reason that “the EEZ with its attendant continental shelf rights” of 396 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), I.C.J., Judgment, 2 February 2018, para. 144. 198
those States “would prevail over Nicaragua’s OCS claims”.397 This is both legally
incorrect and entirely beside the point.
6.16 It is incorrect as a matter of law for the reasons explained in Chapter 5 of
this Reply. That is, there is no reason that one State’s EEZ entitlement necessarily
takes precedence over another State’s entitlement to a continental shelf beyond
200 M when the two overlap.398
397 CCM, para. 6.2
398 See paras. 5.54-5.67 above.
199
Figure 6.2 Costa Rica/Nicaragua line 6.17 It is irrelevant for the reasons explained above. Even if the Court were to draw a boundary that passed into areas within the potential entitlements of a third State, that boundary could have no effect on the interests of that State. The only thing the Court would be finding is that in the affected area, as between the Parties, either Nicaragua or Colombia has superior rights vis-à-vis the other. Such a finding would have no implications for the legal status of the area in question as between Nicaragua and either Jamaica or Panama, as the case may be. 200
6.18 Finally, Nicaragua observes that if the Court were to decline to act in this
case, the result would be the indefinite prolongation of this dispute, potentially
forever. The only authoritative body that can act to resolve the prevailing
uncertainty is the Court. Doing so would serve the interests of peace and stability
by providing clarity, and paving the way for the full and final settlement of the
outstanding delimitation issues in this area of the Caribbean.
6.19 In particular, if quod non the Court were to determine that Colombia has
superior rights vis-à-vis Nicaragua, the status of the area would be as provided for
in the existing treaties among the States concerned. Alternatively, if Nicaragua
were adjudged to have superior rights vis-à-vis Colombia, the legal status of the
area as between Nicaragua and Jamaica and Panama would fall for subsequent
determination, either by negotiation or, if necessary, by third-party dispute
resolution.
6.20 Nicaragua anticipates that it would quickly be able to reach boundary
agreements with both Jamaica and Panama. That would certainly be its objective.
6.21 For all the foregoing reasons, the rights of third States would not be
affected by the delimitation Nicaragua proposes, and there is no reason for the
Court to refrain from drawing the boundary between Nicaragua and Colombia
beyond 200 M from Nicaragua’s coast.
201
202
CHAPTER 7. CONCLUSIONS
7.1 In 2001, Nicaragua brought to the Court its maritime boundary dispute
with Colombia. On 19 November 2012, the Court determined the boundary of the
exclusive economic zone and continental shelf within 200 nautical miles of
Nicaragua’s Caribbean coastal baselines. On 16 September 2013, Nicaragua
requested the Court to delimit the portion of the continental shelf which extends
beyond 200 nautical miles from its baselines. The Judgment the Court will render
in the present proceedings will fix the last segment of their common maritime
boundary and, hence, definitively close this long-lasting dispute between the two
States.
7.2 The first step towards the final settlement of this dispute was made on 17
March 2016, when the Court found that it has jurisdiction to entertain
Nicaragua’s request.399 Unfortunately, instead of setting out its position on the
location of its common continental shelf boundary with Nicaragua, Colombia, in
its Counter-Memorial, seeks once again to prevent the Court from establishing it.
Colombia has put forward five main arguments. Nicaragua has shown in the
present Reply that all five of them are legally and factually unfounded:
399 I.C.J., Judgment, 17 March 2016, Question of the Delimitation of the Continental Shelf
between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast
(Nicaragua v. Colombia), Preliminary Objections, Reports 2016, p. 100.
203
- First, Colombia claims that Nicaragua has no continental shelf entitlement beyond 200 nautical miles because the natural prolongation of its land territory does not extend beyond 200 nautical miles.400 In Chapter 3 of the Reply, Nicaragua has shown that Colombia’s argument is based on a misconceived interpretation of the notion of “natural prolongation”. Contrary to what Colombia argues, “natural prolongation” is not a criterion independent of the concept of “continental margin”. In any event, Colombia’s claim is grounded on erroneous facts, as there are no geomorphological or geological discontinuities in Nicaragua’s continental shelf; - Second, according to Colombia, even if Nicaragua had such an entitlement, it would not be opposable to Colombia because the OCS is allegedly a “non-customary internal UNCLOS regime”.401 In Chapter 2, Nicaragua has established its entitlement to a continental shelf beyond 200 nautical miles on the basis of customary international law, as reflected in Article 76(1) to (6) of UNCLOS; - Third, according to Colombia, even if Nicaragua’s entitlement was opposable to Colombia, the Court would be barred from acting until the CLCS has issued its recommendations on Nicaragua’s submission.402 Still in Chapter 2, Nicaragua has shown that there is only one continental shelf and that its entitlement to a continental shelf, whether within or beyond 200 NM exists ipso 400 See CCM, Chapter 7. 401 See ibid., Chapter 2(B). 402 See ibid., Chapter 1(C)(2) and Chapter 2(C) and (D). 204
facto and ab initio and is not created by the CLCS, and that the Commission can
have no role in the determination of the maritime boundary;
- Fourth, Colombia asserts that the entitlement of a State to a 200 NM
continental shelf prevails over the entitlement of another State to the portion of its
continental shelf located beyond 200 nautical miles.403 In Chapter 5, Nicaragua
has shown that Colombia’s assertion is unsupported by customary international
law, as reflected in the relevant provisions of UNCLOS, the travaux
préparatoires of this Convention, state practice or the case law; and
- Fifth, Colombia argues that the Court is not in a position to decide on
Nicaragua rights on the continental shelf beyond 200 NM because it would
prejudice the rights of third States.404 In Chapter 6, Nicaragua has recalled that
the Court’s decision in the present case will not bind third States, as Article 59 of
the Court’s Statute makes clear, and has shown that insofar as part of Nicaragua’s
continental shelf beyond 200 nautical miles might overlaps with third States’
entitlements, the overlapping area would have to be delimited by the States
concerned, either by negotiations or by any other pacific mean they would choose.
Accordingly, the potential interests of third States do not preclude the Court from
determining the maritime boundary between Nicaragua and Colombia beyond
200 NM from Nicaragua’s coastal baselines.
403 See ibid., Chapter 3.
404 See ibid., Chapter 6.
205
7.3 It is striking that Colombia’s Counter-Memorial fails to address the outer limits of Nicaragua’s continental shelf, as established in Nicaragua’s Memorial that contains the submission and material filed before the CLCS,all of which has been validated by the Expert Report of Dr. Alain Murphy and Dr. Richard Haworth. Although Colombia has included in its Counter-Memorial a Report by Dr Lindsay Parson and Mr Peter Crocker, it does not challenge Nicaragua’s demonstration concerning the outer limits of its continental margin, its foot of slope points, or any other aspect of its submission to the CLCS based on Article 76(4)(a)(ii) of UNCLOS. Nor does Colombia challenge the delimitation methodology set out in Nicaragua’s Memorial or its application in the present case. Colombia’s opposition to Nicaragua’s claim is based solely on its erroneous contention that the “natural prolongation” of Nicaragua’s coast does not extend beyond 200 NM, notwithstanding Nicaragua’s full satisfaction of the criteria of Article 76(4)(a)(ii), which Colombia does not challenge. 7.4 In the Memorial, Nicaragua has demonstrated the following points: (1) the relevant customary rules for the determination the Parties’ entitlements in the present case are enshrined in Article 76 and 121 of UNCLOS; (2) Nicaragua’s continental shelf entitlement beyond 200 nautical miles overlaps with that of Colombia’s mainland and the islands of San Andrés and Providencia only; 206
(3) the relevant customary rule for the delimitation of the continental shelf
boundary is reflected in Article 83 of UNCLOS, as interpreted and applied by
international courts and tribunals;
(4) the standard three-stage method is applicable to the delimitation of the
continental shelf beyond 200 nautical miles;
(5) the relevant area is formed by the area between the mainland coasts of
the Parties and limited by maritime boundaries between Colombia and third
States, and between Nicaragua and third States;
(6) the appropriate provisional delimitation line is the line that equally
divides the area of overlap between Nicaragua’s continental shelf beyond 200
nautical miles and Colombia’s continental shelf within 200 nautical miles of its
mainland;
(7) there are no relevant circumstances justifying the adjustment of the
provisional delimitation lines; and that
(8) these lines easily passes the disproportionality test and, therefore,
achieves an equitable solution.
7.5 Colombia claims that the small cays that are located on the banks of
Roncador, Serrana, Serranilla and Bajo Nuevo are also entitled to a 200-nauticalmile
continental shelf. In Chapter 4, Nicaragua has shown that all these cays are
rocks within the meaning of Article 121(3) of UNCLOS, which reflects
customary international law. None of these tiny features can sustain human
207
habitation or economic life of its own. For these reasons, they are not entitled to a 200-nautical-miles continental shelf (or an exclusive economic zone). 7.6 The maritime boundary proposed by Nicaragua, on the basis of all of these considerations, is depicted in Figure 7.1 below. Figure 7.1 Final Delimitation 208
SUBMISSIONS
For the reasons given in the Memorial and the present Reply, the Republic of
Nicaragua requests the Court to adjudge and declare that:
1. The maritime boundary between Nicaragua and Colombia in the areas of the
continental shelf which appertain to each of them beyond the boundary
determined by the Court in its Judgment of 19 November 2012, follows geodetic
lines connecting the points with the following co-ordinates:
Point Latitude Longitude
1 14° 43’ 20.6” N 74° 34’ 49.1” W
2 14° 21’ 53.4” N 75° 15’ 39.3” W
3 13° 59’ 29.8” N 76° 5’ 15.6” W
4 13° 51’ 26.0” N 76° 21’ 57.1” W
5 13° 46’ 6.1” N 76° 35’ 44.9” W
6 13° 42’ 31.1” N 76° 41’-20.33” W
7 12° 41’ 56.9” N 77° 32’ 27.4” W
8 12° 15’ 38.3” N 77° 47’ 56.3” W
2. The islands of San Andrés and Providencia are entitled to a continental shelf up
to a line consisting of 200 nm arcs from the baselines from which the territorial
sea of Nicaragua is measured connecting the points with the following coordinates:
Point Latitude Longitude
A 13° 46’ 35.7” N 79° 12’ 23.1” W
C 12° 42’ 24.1” N 79° 34’ 4.7” W
B 12° 24’ 9.4” N 79° 34’ 4.7” W
209
3. Serranilla and Bajo Nuevo are enclaved and granted a territorial sea of twelve nautical miles, and Serrana is enclaved as per the Court’s November 2012 Judgment. All coordinates are referred to WGS84. The Hague, 9 July 2018 Carlos J. Argüello-Gómez Agent of the Republic of Nicaragua 3. Serranilla and Bajo Nuevo are enclaved and granted a territorial sea of twelve nautical miles, and Serrana is enclaved as per the Court’s November 2012 Judgment. All coordinates are referred to WGS84. The Hague, 9 July 2018 Carlos J. Argüello-Gómez Agent of the Republic of Nicaragua 210
CERTIFICATION
I have the honour to certify that this Reply and the documents annexed are true
copies and conform to the original documents.
The Hague, 9 July 2018
Carlos J. Argüello-Gómez
Agent of the Republic of Nicaragua
211
212
LIST OF ANNEXES
Annex
No.
Document Page
1 Expert Report (June 2018), Dr. Alain Murphy and Dr. Richard
Haworth.
215
2 The Navigation of the Gulf of Mexico and the Caribbean Sea
(“U.S. Sailing Directions”), Hydrographic Office of the United
States Navy (1902).
273
3 The Colombian Navigator; or, Sailing Directory for the
American Coasts and the West Indies (1839), John Purdy, Vol.
III.
289
4 The Navigation of the Gulf of Mexico and Caribbean Sea
(“U.S. Sailing Directions”), Hydrographic Office of the United
States Navy (1890).
299
5 The Sovereignty of the Islands of Roncador, Quitasueño,
Serrana and Serranilla”, Legal Advisor’s Office, U.S. Dept. of
State (9 Aug. 1932) (“1932 State Dept. Study”).
313
Diplomatic correspondence
6 Letter from the Government of Antigua and Barbuda with
regards to maritime treaties and a protest with regard to the
status granted to Isla Aves, 19 June 1997.
467
7 Note from the Permanent Mission of St. Kitts and Nevis to the
U.N. Secretary-General, 16 July 1997.
471
8 Note from the Permanent Mission of Saint Vincent and the
Grenadines to the U.N. Secretary-General, 8 August 1997.
475
9 Letter, Legation of Colombia to the United States (18 Jan.
1893).
479
Other materials
10 Figures 495
213
214