Rejoinder of Colombia

INTERNATIONAL COURT OF JUSTICE_____________________________________________QUESTION OF THE DELIMITATION OF THECONTINENTAL SHELF BETWEENNICARAGUAAND COLOMBIA BEYOND 200 NAUTICAL MILES FROM THE NICARAGUANCOAST(NICARAGUA v. COLOMBIA)REJOINDEROF THE REPUBLIC OF COLOMBIA11 February2019

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TABLE OF CONTENTS
Chapter 1
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
A. Nicaragua’s Misrepresentation of the Subject-Matter
of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
B. The Fundamental Flaws Undermining Nicaragua’s
Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
(1) 200-Nautical-Mile EEZ Entitlements Prevail Over OCS Claims. . . . . . . . . . . . . . . . . . . . . .8
(2) Nicaragua’s OCS Claim Prejudices the Rights of Third States. . . . . . . . . . . . . . . . . . . . . . . .13
(3) Nicaragua Failed to Meet its Burden of Proof and did not Demonstrate that it has an OCS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
(4) The Unsettling Implications of Nicaragua’s
Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Chapter 2
APPLICABLE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
A. The Identification of Customary International Law. . . . . . . .22
B. The Customary International Law on the EEZ. . . . . . . . . . .26
C. The Customary International Law on the Continental
Shelf, including on the OCS. . . . . . . . . . . . . . . . . . . . . . . . .30
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Chapter 3
NICARAGUA’S ALLEGED NATURAL PROLONGATION IS NOT A SOURCE OF LEGAL TITLE WITHIN 200 NAUTICAL MILES FROM COLOMBIA’S MAINLAND AND INSULAR TERRITORIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
B. Geology and Geomorphology are not a Source of
Title Within 200 Nautical Miles from Any State’s
Baselines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
(1) The Principle that Natural Prolongation is not a Source of Title within 200 Nautical Miles from Any State is Recognised in
Doctrine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
(2) State Practice Follows the Principle that Natural Prolongation is not a Source of Title within the 200-Nautical-Mile EEZ and its Attendant Continental Shelf of
Any State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .67
(a) Delimitation Practice Follows the Principle that Natural Prolongation is not a Source of Title within 200 Nautical Miles from Any
State’s Baselines. . . . . . . . . . . . . . . . . . . . . . . . . . . .68
(b) Submissions to the CLCS are Consistent with the Principle that Natural Prolongation is not a Source of Title within 200 Nautical Miles
from Any State. . . . . . . . . . . . . . . . . . . . . . . . . . . . .76
(3) The Legislative History of UNCLOS Shows that the OCS Was Only Intended to Encroach upon the Area and not upon the EEZ of another State. . . . . . . . . . . . . . . . . . . . . . . .80
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(4) The Principle that Natural Prolongation is not a Source of Title Within 200 Nautical Miles from Another State’s Baselines was Confirmed by the Court in Libya/Malta. . . . . . . . .84
C. From Grey Areas to Grey “Zones”: The Absence of
Title Based on Natural Prolongation within
200 Nautical Miles from Any State’s Baselines Fosters
the Orderly Management of Ocean Resources. . . . . . . . . . .86
D. Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .95
Chapter 4
THE 200-NAUTICAL-MILE ENTITLEMENTS OF COLOMBIA’S ISLANDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97
A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .97
B. The Entitlement of San Andrés, Providencia and
Santa Catalina to an EEZ and Attendant Continental
Shelf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101
C. The Full Entitlements of the Northern Islands of the
San Andrés Archipelago. . . . . . . . . . . . . . . . . . . . . . . . . . . .104
(1) The notion of “rocks which cannot sustain human habitation or economic life of their
own”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107
(a) The term “rocks”. . . . . . . . . . . . . . . . . . . . . . . . . .107
(b) The meaning of “which cannot sustain human habitation or economic life of their
own”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
(c) Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .116
(d) State practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . .120
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(2) Roncador, Serrana, Serranilla and Bajo Nuevo. . . . .135
(a) General overview. . . . . . . . . . . . . . . . . . . . . . . . . .135
(b) Roncador. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139
D. Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145
Chapter 5
THE NICARAGUAN OCS CLAIM DIRECTLY AFFECTS THE POTENTIAL LEGAL INTERESTS OF NEIGHBOURING THIRD STATES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147
A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147
B. The Defunct Subrogation Theory: Nicaragua’s Failure
to Confine the Potential Legal Interests of
Neighbouring Third States. . . . . . . . . . . . . . . . . . . . . . . . . .154
(1) The Definitive Rejection of the Nicaraguan Subrogation Theory in the Costa Rica v. Nicaragua
Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155
(2) The Nicaraguan Subrogation Theory as the Missing Cornerstone upon which its OCS Claim Rests. . . . . . . . . . . . . . . . . . . . . . . . . . . .160
(3) The Nicaraguan OCS Claim Inevitably Encroaches into Areas where Neighbouring Third States Possess Potential Legal
Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165
C. The Latest Relative (Hypothetical) Delimitation
Theory: Nicaragua’s Failure to Justify Encroachment
into Maritime Areas where Neighbouring Third States
Have Potential Legal Interests. . . . . . . . . . . . . . . . . . . . . . .170
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(1) Nicaragua’s Reliance on Article 59 of the Statute Conflicts with the Court’s Constant Refusal to Draw Relative (Hypothetical) Delimitations . . . . . . . . . . . . . . . .171
(2) The Nicaraguan Appeal to the Settling of Relative Boundaries and Speculative Disputes is Inconsistent with the Sound Administration of Justice and the Proper Exercise of the Judicial Function. . . . . . . . . . . . .178
D. Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181
Chapter 6
NICARAGUA FAILED TO MEET ITS BURDEN OF PROOF AND DID NOT COMPLY WITH THE ADEQUATE STANDARD OF PROOF IN RELATION TO ITS OCS CLAIM. . . . . . . . . . . . . . . .185
A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .185
B. Nicaragua did not Satisfy its Burden of Proof and did
not Meet the Standard of Proof before the Court. . . . . . . . .188
C. Uninterrupted Natural Prolongation is a Prerequisite
of Any OCS Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201
D. The Lack of Geological and Geomorphological
Continuity Demonstrates that the Natural Prolongation
from Nicaragua’s Land Territory Does Not Extend
beyond 200 Nautical Miles. . . . . . . . . . . . . . . . . . . . . . . . .208
(1) The Upper Nicaraguan Rise. . . . . . . . . . . . . . . . . .213
(2) The Lower Nicaraguan Rise. . . . . . . . . . . . . . . . . .215
(a) Lack of Geomorphological Continuity. . . . . . . . .215
(b) Geological Discontinuities. . . . . . . . . . . . . . . . . .220
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(3) The Pedro Bank Escarpment-Providencia Trough Lineament as a Fundamental Discontinuity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228
(4) Nicaragua’s Distorted Use of Bathymetric Profiles To Try To Prove Natural
Prolongation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .236
E. Nicaragua’s Failure to Fulfil its Burden of Proof . . . . . . . .254
F. Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .258
Chapter 7
SUMMARY AND CONCLUSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . .263
SUBMISSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .281
APPENDIX 1: Colombia’s Second Scientific Report. . . . . . . . . . . . .283
APPENDIX 2: Additional Examples of State Practice on the
Entitlements of Islands. . . . . . . . . . . . . . . . . . . . . . . .399
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Chapter 1
INTRODUCTION
1 .1 This Rejoinder is filed pursuant to the Court’s Order of
8 December 2017, fixing 11 February 2019 as the time-limit for
its submission . In accordance with Article 49, paragraph 3, of
the Rules of Court, in responding to the arguments advanced by
Nicaragua in its Reply, this Rejoinder will focus on the issues
that continue to divide the Parties .
1 .2 In these proceedings, Nicaragua is seeking a delimitation
between its alleged outer continental shelf (“OCS”) and the
seabed and subsoil of Colombia’s ipso jure 200-nautical-mile
exclusive economic zone (“EEZ”) . As Colombia will show,
Nicaragua has ignored the law relating to the EEZ, which is
fundamental to this case . Its proposition that an OCS claim of
one State can encroach upon the 200-nautical-mile EEZ
entitlements of another coastal State is wholly untenable. The
legislative history of the United Nations Convention on the Law
of the Sea (“UNCLOS” or “the Convention”), State practice,
doctrine, and the Court’s case law all show precisely the
opposite: namely, that geology and geomorphology are
irrelevant for both title and delimitation within 200 nautical
miles of a State’s coast, and that a claim to an OCS may not
encroach upon another State’s 200-nautical-mile entitlement to
its EEZ with its attendant continental shelf .
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1 .3Since the maritime areas concerned lie within the 200-nautical-mile EEZ with its attendant continental shelf entitlements of Colombia, it follows thatNicaragua has no continental shelf entitlement beyond 200 nautical miles from its coast . Contrary to Nicaragua’s contentions, therefore, there is nothing further to delimit between the Parties .This is quite apart from the fact that Nicaragua hasfailedto prove on scientific grounds that its natural prolongation extends more than 200 nautical miles from its landmass,as well asthe fact thatit, being a Party to UNCLOS,is seekingto by-pass the procedures of the Commission on the Limits of the Continental Shelf (“CLCS” or “the Commission”)and secure from the Court a delineation of the outer limits of its alleged OCS, without obtaining the prior recommendations from the said Commission .A.Nicaragua’s Misrepresentation of the Subject-Matter of the Case1 .4In its Reply, Nicaragua has misrepresented what this case is about and distorted Colombia’s position . Nicaragua asserts that the Parties agree that “the task of the Court in the present case is to delimit the maritime boundary between two States”.1Colombia does not agree that this is the subject-matter of the present case . Nicaragua also allegesthat, in its 2016 decision on Colombia’s Preliminary Objections, “the Court already found that, in the present case, the requested 1Question 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 (hereinafter, “NR”), para. 2.56.
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delimitation may be carried out”.2 Colombia believes this is a
misrepresentation of what the Court decided on the Preliminary
Objections . Elsewhere in the Reply, Nicaragua repeats the
assertion, claiming that “[t]he Court’s mandate is to fix a
maritime boundary, not the outer limit of the continental shelf of
a State.”3 Colombia is convinced that this is not true .
1 .5 All the statements of Nicaragua are demonstrably false .
Colombia has made it crystal clear that it does not agree with
Nicaragua’s characterization of the case . Nicaragua’s assertions
pervert both what the case is about and how Nicaragua itself has
presented its claim for a continental shelf boundary – a claim
that seeks to have the Court assume the task of the CLCS in
establishing the existence of an OCS and delineating the limits
thereof .Nicaragua also distorts the scope of the Court’s decision
on the Preliminary Objections .
1 .6 With respect to the subject-matter of the case, Nicaragua
chooses to ignore the fact that the Court has entitled the case
“Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 Nautical Miles from the
Nicaraguan Coast” .4 This formulation indicates that in limine
litis, there is a “question” – as Colombia will explain, a very
serious one – whether there should be any delimitation of areas
2 NR, para . 2 .40 (emphasis in the original) .
3 NR, para . 2 .58 .
4 Emphasis added. This was the title given to the case from the
beginning .This is the first time in the practice of the Court that a case
involving delimitation of maritime areas is not entitled simply “Delimitation
of…”, as opposed to “Question of the delimitation…”.
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situated beyond 200 nautical miles fromtheNicaraguancoast, particularly where they lie within the 200-nautical-mile entitlements of Colombia (and even those of third States), and where Nicaragua’s scientific case for an OCS has not been proved . The Court has not yet decided that it will proceed to carry out any such delimitation; indeed, there are compelling reasonswhy it shouldnot do so .1 .7Similarly, in its 2016 Judgment on Colombia’s Preliminary Objections, while the Court rejected Colombia’s jurisdictional objection that Nicaragua’s claim was barred by res judicata by eight votes to eight (with the President’s casting vote), and found that Nicaragua’s claim was admissible (the latter decision again by an 8-to-8 vote),5it does not follow that the requested delimitation “may be carried out”6or that the Court’s “mandate” is to fix a maritime boundary.7To the contrary, as Colombia has shown in its Counter-Memorial and will continue toshow in this Rejoinder, there are compelling reasons why the Court, in exercise of its jurisdiction, should decline to carry out any delineation or delimitation of allegedOCS areas claimed to lie beyond 200 nautical miles from the Nicaraguancoast .5Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v . Colombia), Preliminary Objections, Judgment,I.C.J. Reports 2016, pp . 139-140, para . 126 .6NR, para . 2 .40 .7NR, para . 2 .58 .1
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1 .8 Equally misleading is Nicaragua’s assertion that it is
only requesting the Court to fix a continental shelf boundary, not
the establishment of the outer limits of its OCS claim . Nicaragua
made this disclaimer because it knows full well that, as a Party
to UNCLOS, under Article 76 (8) of the Convention it can only
establish the limits of its OCS in a final and binding manner on
the basis of the recommendations of the CLCS . Moreover, under
Article 76 (9), Nicaragua would be required to 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 . Nicaragua has done no such
thing .
1 .9 Notwithstanding these deficiencies, Nicaragua’s
Memorial made it abundantly clear that its whole delimitation
claim depends on the Court carrying out the CLCS’ task,8 that
is, by validating first the existence of its alleged OCS and
establishing the outer limits of said claimed OCS without any
recommendations from the CLCS, and then delimiting the area
of overlap between any such outer limits and the 200-nauticalmile
entitlements measured from Colombia’s mainland coast
(but not from its islands, which Nicaragua conveniently ignores
even though they also generate a 200-nautical-mile entitlement
to an EEZ with its attendant continental shelf).9
8 Indeed, virtually acknowledging that the Court may not have the
specialised knowledge of the CLCS, Nicaragua goes so far as to propose that
the Court appoint experts to perform that function . See NR, para . 2 .49 .
9 Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan
6
1 .10This can be seen from FigureCR1 .1below, which reproducesFigure 5 .1 from Nicaragua’s Memorial . Coast (Nicaragua v . Colombia), Memorial of the Republic of Nicaragua (hereinafter, “NM”), para. 5.12. Figure CR 1.1Source: Nicaragua’s Memorial, Figure 5.1.THE PROVISIONAL MAINLAND-TO-MAINLANDDELIMITATION LINE AS CLAIMED BYNICARAGUA IN ITS MEMORIAL
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1 .11 The blue line in this Figure represents what Nicaragua
claims as the outer limits of its continental shelf; the pink line is
the 200-nautical-mile limit drawn from Colombia’s mainland .
As is evident, Nicaragua’s boundary claim is a “line of equal
division” between these two lines. It is obvious that, contrary to
Nicaragua’s disclaimer, it is asking the Court to determine first
the existence of its claimed OCS and then to delineate its outer
limits, all this as part and parcel of its wholly artificial and selfserving
claim .
1 .12 All of this is as unprecedented as it is untenable . As the
Court stated:
“The Court begins by noting that the jurisprudence
which has been referred to by Nicaragua in support
of its claim for continental shelf delimitation
involves no case in which a court or a tribunal was
requested to determine the outer limits of a
continental shelf beyond 200 nautical miles.”10
1 .13 Moreover, Nicaragua’s delimitation claim, dependent on
the Court’s determination of the outer limits of Nicaragua’s
asserted OCS, is contrary to its obligations as a Party to
UNCLOS, which require prior recommendations from the
Commission and the deposit of charts and relevant information
with the Secretary-General of the United Nations .Moreover, it
flies in the face of the Court’s statement in its 2012 Judgment
10 Territorial and Maritime Dispute (Nicaragua v . Colombia),
Judgment, I.C.J. Reports 2012, p .668, para .125 (hereinafter
“2012 Judgment” or “Territorial and Maritime Dispute case”).
8
that “the fact that Colombia is not a party [to UNCLOS] does not relieve Nicaragua of its obligations under Article 76 of that Convention”.11B.The Fundamental Flaws Undermining Nicaragua’s Case(1)200-NAUTICAL-MILE EEZENTITLEMENTS PREVAIL OVER OCSCLAIMS1 .14Despite Nicaragua’s claim that it seeks an equitable delimitation, its assertion that there exists an alleged OCS entitlement that (i) has been scientifically proven, (ii) encroaches upon Colombia’s 200-nautical-mile entitlements including from its mainland and islands, (iii) by-passes the CLCS’procedures that are obligatory for Nicaragua as a Party to UNCLOS, and (iv) trespasses on the 200-nautical-mile entitlements of third States, all fail on factual, legal and procedural grounds .1 .15In Chapter 2, Colombia will start by addressing the applicable law in this case . The Parties agree that, because Colombia is not a Party to UNCLOS, the applicable law is customary international law. But Nicaragua’s cavalier treatment of customary international law misrepresents the notion of natural prolongation and relies on elements of Article 76 of UNCLOS that, even according to Nicaragua, do not constitute customary international law and are thus not binding in this 112012 Judgment, p. 669, para. 126.
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case .Colombia will point out these and other contradictions in
Nicaragua’s theory of the case in the course of this pleading.
1 .16 Chapter 3 will then show that one of the basic fallacies
underlying Nicaragua’s case is the assumption that an alleged
entitlement to an OCS of one State constitutes a lawful title
within the 200-nautical-mile entitlements of other States .This
proposition is unsustainable . It does not find any support in the
text of UNCLOS. Moreover, there is no evidence that the
negotiating States to UNCLOS considered that, by agreeing to
the novel OCS regime in the Convention, they were potentially
placing in jeopardy their hard-won entitlements to a 200-
nautical-mile EEZ, which include its attendant continental shelf.
EEZ entitlements do not depend on the geological or
geomorphological characteristics of the underlying seabed and
subsoil . Indeed, the Court’s decision in the Continental Shelf
(Libyan Arab Jamahiriya/Malta) case left no doubt that natural
prolongation, i.e., the geology and geomorphology which
constitute the foundation of any OCS claim, is irrelevant to the
question of both entitlement and delimitation in areas situated
within 200 nautical miles of a State’s baselines .12
1 .17 Colombia has shown that State practice subsequent to
the conclusion of UNCLOS reinforces the point . Delimitation
practice demonstrates that the overwhelming majority of States
that could have claimed more extensive OCS areas on scientific
12 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985 (hereinafter “Libya/Malta”), pp . 35-36, paras . 39-40 .
10
grounds stopped their claims when they reached the 200-nautical-mile limits of other States .13This practice indicates that States do not accept the possibility that a coastal State can claim an OCS that encroaches upon the 200-nautical-mile entitlements of other States. Similarly, in respect of submissionsto the CLCS, predominant State practice demonstrates that States halted their OCS claims at the 200-nautical-mile entitlements of other States .Nicaragua’s attempt to diminish the significance of this practice by arguing that it was only intended to avoid a negotiation or conflict with such States, is far-fetched .1 .18As for the CLCS, it has never issued recommendations for an OCS claim that encroaches upon the 200-nautical-mile zones of opposite States. In the very rare instances where a State has made such a submission –and there have only been four such instances, all of which occurred after the Court’s 2012 Judgment –it was invariably met with objections from opposite States . It isclear that States do not countenance the notion that OCS claims can encroach upon their200-nautical-mile entitlements . 1 .19Notwithstanding this, Nicaragua’s truly exorbitant claim extends as far as 490 nautical miles from its coast into areas that lie less than 200 nautical miles from Colombia’s mainland and that in addition would amputate huge areas falling within the 13Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from theNicaraguan Coast (Nicaragua v . Colombia), Counter-Memorial of the Republic of Colombia (hereinafter, “CCM”), paras. 3.47-3.78 and Annex 50. See also Chapter 3 infra .200nauticalmilesof
11
200 nautical miles of Colombia’s islands . Such a result,
purporting to create, not a grey area, but a vast and
unprecedented grey zone, finds no support either under
UNCLOS or customary international law, or indeed, in the
practice of States .Nicaragua’s attempt to introduce a new type
of maritime zone into international law, which it aptly names the
“grey zone”, consisting of large-scale differentiation between
water column and seabed rights, would wreak havoc on the
public order of the oceans and should thus be rejected by the
Court .
1 .20 The Court has already observed that the islands of San
Andrés, Providencia and Santa Catalina are entitled, in addition
to a territorial sea, to an EEZ and continental shelf to the east of
Nicaragua’s 200-nautical-mile range 1.4 Unable to contest this
finding, Nicaragua artificially disregards their entitlement in
blunt contrast to the Court’s ruling in the 2012 Judgment that
they should not be cut-off from their entitlements to the east .
Nicaragua then argues that other islands such as Roncador,
Serrana, Serranilla and Bajo Nuevo are mere “rocks” within the
meaning of Article 121 (3) of UNCLOS and thus have no EEZ
or continental shelf entitlement .
1 .21 Chapter 4 will demonstrate that this contention has no
merit . The description of these islands and the evidence that
Colombia has provided, leave no doubt that they are not
“rocks”, within the ordinary meaning of Article 121 (3) and as
14 2012 Judgment, pp. 686-688, para . 168 .
12
that provision has been interpreted in State practice. They are full-fledged islands which can sustain human habitation or an economic life of their own, as they have for centuries, and they generate 200-nautical-mile entitlements as recognised by international law, under any applicable criteria . Moreover, their EEZ and continental shelf entitlements have been recognised by neighbouring States in the delimitation agreements they entered into with Colombia .1 .22Yet, as noted above, Nicaragua’s OCS claim would encroach upon vast parts of themaritime areas that fall withinthe200-nautical-mileentitlementsof the islands of San Andrés, Providencia and Santa Catalina, as well as of Roncador,Serrana,Serranillaand Bajo Nuevo. This is contrary to international law as reflected in State practice . 1 .23Colombia will also demonstrate that regardless of the entitlements of its other islands, the entitlements of San Andrés, Providencia and Santa Catalina, recognised by the Court, preclude any OCS claim by Nicaragua. Besides the principle that Nicaragua’s alleged OCS may not serveas a title within 200-nautical-miles from San Andrés, Providencia and Santa Catalina, Nicaragua, as it agrees, may not “leapfrog” over or “tunnel” under theseislands’ entitlement, to claim an OCS beyondthem .The entitlements of these islands, and those of third States such as Panama and Jamaica,as will be elaborated in Chapter 5,prevent a continuous Nicaraguan maritime entitlement to any part of what Nicaragua alleges as the
13
“relevant area”, a legal concept which is inapplicable in these
proceedings since, as was demonstrated in Colombia’s Counter-
Memorial, there are no overlapping entitlements to be delimited .
(2) NICARAGUA’S OCS CLAIM PREJUDICES THE RIGHTS OF
THIRD STATES
1 .24 Indeed, as Chapter 5 will show, a further reason why
Nicaragua’s claim is unsustainable is that it prejudices the
potential legal interests of third States in the region . Nicaragua’s
OCS claim not only extends within the 200-nautical-mile
entitlements of Colombia’s mainland and islands, it also extends
far into the 200-nautical-mile potential legal interests generated
by Jamaica and Panama vis-à-vis Nicaragua; indeed, even of
Haiti and the Dominican Republic. This has given rise to
objections from both Jamaica and Panama which, together with
Costa Rica and Colombia, have expressly not consented to the
CLCS’ consideration of Nicaragua’s OCS submission . In fact,
other than Nicaragua, no State in the Caribbean Sea considers
that there is an OCS therein given that there are no areas farther
than 200 nautical miles from the nearest land territory of a
coastal State .
1 .25 The fact that all of the eight foot of slope points (“FOS”)
used by Nicaragua to establish the outer edge of its alleged
continental margin are situated in maritime areas falling within
200 nautical miles of other States in the area (Colombia, Haiti,
Jamaica and Panama), illustrates the wholly artificial and
14
contrived nature of the claim and its prejudice to the interests of third States. Moreover, the bathymetric profile that Nicaragua relies on to demonstrate its natural prolongation transits through the EEZs of Honduras and Jamaica without having any connection to Nicaragua’s coast; its only function is to manoeuvre itself into Colombia’s EEZ. Nicaragua’s proposition that the natural prolongation of its landmass extends into Jamaica’s EEZ before, quite conveniently, executing a 90°manoeuvre and steaming south into Colombia’s EEZ, is as extraordinary as it is mistaken; it can hardly represent any genuine natural prolongation of Nicaragua’s landmass .1 .26In this respect, an analogy can be drawn to the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening)case, where Cameroon attempted to use parts of the coastline belonging to third States to define the relevant coasts . The Court rejected such an approach. It ruled that “the maritime boundary between Cameroon and Nigeria can only be determined by reference to points on the coastlines of these two States and not of third States”.15Similarly, it is impermissible for Nicaragua to attempt to prove its natural prolongation beyond 200 nautical miles from its landmass by means of bathymetric profiles and FOSpoints that are situated in areas appertaining to third States. This is yet another reason why Nicaragua’s contention that the delimitation 15Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v . Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p . 442, para . 291 .
15
it proposes would not affect the rights of third States is plainly
wrong .16
(3) NICARAGUA FAILED TO MEET ITS BURDEN OF PROOF AND
DID NOT DEMONSTRATE THAT IT HAS AN OCS
1 .27 In view of the basic legal defects in Nicaragua’s OCS
claim, the Court does not need to reach the question whether
Nicaragua has met its burden of proving its OCS claim on
scientific grounds . Nonetheless, Chapter 6 will show that
Nicaragua’s technical case is fraught with scientific distortions
and shortcomings which completely undermine the notion that
there is a natural prolongation that extends more than 200
nautical miles from its landmass .It will show that Nicaragua’s
submission to the CLCS fails to fulfil the requisite burden of
proof and would not be acceptable as it stands .
1 .28 As explained in Chapter 6 and the appended expert
report prepared by three renowned experts in the field (including
two who are former members of the CLCS, one of whom was its
the Chair, and another who was Vice-Chair),17 the “Nicaraguan
Rise” as a whole is not a continuous feature that constitutes the
natural prolongation of Nicaragua’s land territory. This is
because the Upper Nicaraguan Rise, which Nicaragua, in its
case against Honduras, equated with the “Nicaraguan Rise” is
fundamentally different both geologically and
geomorphologically from the much more irregular and
16 NR, para . 6 .21 .
17 See Appendix 1: Colombia’s Second Scientific Report.
16
disjointed Lower Nicaraguan Rise from which Nicaraguanowpurports to measure the limits of its allegedOCS .The two features are separated by a pronounced and deep geological and geomorphological discontinuity –the Pedro Bank Escarpment-Providencia Trough Lineament –which breaks any natural prolongation of Nicaragua’s territory and which is a much more prominentand sharply defined feature than the Hess Escarpment on which Nicaragua places much emphasis .1 .29In the light of the scientific evidence demonstrating that Nicaragua’s natural prolongation is interrupted before it reaches the 200-nautical-mile limit, Chapter 6 shows that Nicaragua has failed to prove an OCS with the required scientific certainty. In sharp contrast to past cases involving adjacent States and where the existence of an OCS was undisputed, here there is not only a high degree of uncertainty regarding Nicaragua’s scientific case;that case has not been proven to the required degree of evidentiary certainty. 1 .30Nicaragua asserts that it has “done everything required of it” in accordance with the CLCS’ rules . This is not the case . The mere filing by Nicaragua of a submission with the Commission is insufficient to establish an OCS entitlement, let alone its outer limits . The CLCSvirtually never issues recommendations on submissions as they are submitted . Rather, the process is an iterative one where a submitting State is often required to submit further data to a seven-member subcommission, which tests submissions against rigorous and
17
highly specialised scientific standards .Moreover, even where a
subcommission recommends outer limits, these can be overruled
by the full Commission, as has happened on occasion .
Nicaragua’s de facto amendment of its OCS claim in the Reply,
evidenced by the submission of new bathymetric profiles that do
not overcome the original flaws of the Submission, illustrates
why this case should not be dealt with by the Court and why
Nicaragua’s CLCS submission is far from proving its claimed
OCS .
1 .31 Not only does Nicaragua ask the Court to usurp the
CLCS’ responsibilities by determining and endorsing the outer
limits of its purported continental shelf, it also suggests that if
the Court has any doubts, it can appoint an expert. But the
appointment of an expert is no substitute for the CLCS, which
comprises 21 members who are required to be experts in the
fields of geology, geophysics or hydrography and are elected by
the States Parties to the Convention. Within the Commission, a
two-thirds majority must approve any recommendations.
1 .32 Nicaragua has now had several chances to prove its
OCS. It confidently asserted that it had done so in the Territorial
and Maritime Dispute case, but the Court did not uphold that
submission . It tried again in its Memorial in the present case, but
Colombia showed in its Counter-Memorial that the claim was
wholly untenable. The same holds true now that Nicaragua has
filed its Reply. Nicaragua inappropriately suggests the
appointment of an expert or experts to carry out a function that
18
is specifically entrusted to the CLCSand for which Nicaragua bears the burden of proof and additionally,it has not proved, either in fact or in law, that it has an OCS entitlement that overlaps with Colombia’s entitlements .(4)THE UNSETTLING IMPLICATIONS OF NICARAGUA’SCASE1 .33As the Counter-Memorial made clear and will be elaborated in Chapter 7 of this Rejoinder, Nicaragua’s excessive and unfounded claim has dire implications for the Caribbean Sea and the public order of the oceans: at the international level, Nicaragua’s alternative regime, by attempting to rely on an unproven natural prolongation as a source of title within 200 nauticalmiles from another State’s coasts, runsagainst the package-deal at the core of the OCS regime, according to which narrow margin States were assured of a 200-nautical-mile EEZ with its attendant continental shelf in return for wide margin States being permitted to extend their OCSinto the International Seabed Area(hereinafter the “Area”)upon proof of geology and geomorphology and inreturn for revenue-sharing . Scrapping this regime now threatensthe foundation of dozens of delimitations and many submissions to the CLCS,all rejecting natural prolongation as a source of title within 200 nauticalmiles . 1 .34In the same vein, Nicaragua’s exorbitant thesis regarding insular features would lead to the possible deprivation of the entitlements of plenty of full-fledged islands throughout the
19
world’s oceans, running against decades of unprotested State
practice on this matter. Deeming as merely “rocks” features that
evidently are islands and that meet the criteria of those for which
the international community has recognised 200-nautical-mile
entitlements, would undoubtedly cause disruption in other parts
of the world and could lead to, inter alia, the renegotiations of
maritime boundaries already established, the reduction of
Marine Protected Areas and a change of the regime of islands as
has been construed in the contemporary Law of the Sea .
1 .35 At the regional level, Nicaragua’s excessive claim
threatens to undermine the stability of the Caribbean Sea. By
inserting itself into a maritime space where it does not belong,
and which lies closer to Colombia, Jamaica and Panama,
Nicaragua will transform this stable environment into a testing
ground for its so called “grey zones”.
1 .36 In conclusion, Nicaragua’s exorbitant claims in these
proceedings, if accepted by the Court, would have disrupting
implications, not only in the Caribbean Sea, but in other closed
and semi-enclosed seas such as the Baltic Sea, the Black Sea,
the Mediterranean Sea, the North Sea and the Arctic Ocean, as
well as in all the oceans around the world wherein the 200-
nautical-mile entitlements of full-fledged islands and the EEZ of
coastal States have been fully respected.
20
21
Chapter 2
APPLICABLE LAW
2 .1 Contrary to what Nicaragua suggests,18 it is in fact
common ground between the Parties that the law applicable to
the dispute between them is customary international law .19
Colombia is a Party to the 1958 Geneva Convention on the
Continental Shelf, and Nicaragua is a Party to the 1982
UNCLOS; but neither of these conventions is in force between
the Parties .
2 .2 At the same time, as a Party to UNCLOS, Nicaragua is
bound by its provisions concerning the establishment of any
claim to an OCS, as well as by its provisions concerning the
delineation of the outer limits of any such purported OCS. As
the Court explained in its 2012 Judgment, “the fact that
Colombia is not a party [to UNCLOS] does not relieve
Nicaragua of its obligations under Article 76 of that
Convention.”20 To that extent, it is not the case, as is now
claimed by Nicaragua, “that provisions of UNCLOS which do
not reflect customary international law cannot be invoked in the
present proceedings.”21 Though not applicable as between the
18 NR, paras . 1 .11-1 .12 .
19 The same was true for the prior dispute between the Parties, also
originated in a Nicaraguan request for a maritime delimitation: “[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”. See 2012 Judgment, p. 666, para. 114.
20 2012 Judgment, p. 669, para. 126.
21 NR, para . 2 .4 .
22
Parties, Nicaragua’s obligations under UNCLOS may well be relevant to the Court’s assessment of the present case, as they were in the 2012 Judgment. 2 .3The law applicable to the dispute between the Parties is the customary international law on the EEZ, and the customary international law on the continental shelf . The customary international law on these two regimes will be addressed in turn . But first it is necessary to recall briefly the proper methodology for the identification of customary international law, since Nicaragua’s approach is far removed from the “structured and careful process and legal analysis and evaluation [that is] required to ensure that a rule of customary international law is properly identified” .22A.The Identification of Customary International Law2 .4Article 38, paragraph 1(b) of the Statute of the Courtlists among the sources of international law to be applied by the 22International Law Commission (hereinafter “ILC”), “Conclusions on Identification of Customary International Law and Commentaries Thereto” (hereinafter “2018 Conclusions on Identification of Customary International Law”), Annual Report of the International Law Commission on the Work of its Seventieth Session,A/73/10, General Commentary, Paragraph (2), p. 122, available at: http://undocs.org/en/A/73/10(last visited: 21 Jan. 2019). The Commentaries also refer to “the systematic and rigorous analysis required”. See ILC, 2018 Conclusions on Identification of Customary International Law, Commentary to Conclusion 3, Paragraph (1), p. 127. On 20 December 2018, by Resolution A/RES/73/203 (which was adopted without a vote) the United Nations General Assembly took note of the conclusions, the text of which was annexed to the resolution, with the commentaries thereto; brought them to the attention of States and all who may be called upon to identify rules of customary international law; and encouraged their widest distribution .
23
Court “international custom, as evidence of a general practice
accepted as law”. In its case law, the Court has consistently
applied the two-element approach, looking for both a general
practice and acceptance of that practice as law (opinio juris) .
2 .5 Thus, in Jurisdictional Immunities of the State (Germany
v .Italy: Greece intervening) case, the Court held that:
“It follows that the Court must determine, in
accordance with Article 38 (1) (b) of its Statute,
the existence of ‘international custom, as evidence
of a general practice accepted as law’ conferring
immunity on States and, if so, what is the scope
and extent of that immunity. To do so, it must
apply the criteria which it has repeatedly laid down
for identifying a rule of customary international
law .In particular, as the Court made clear in the
North Sea Continental Shelf cases, the existence of
a rule of customary international law requires that
there be ‘a settled practice’ together with opinio
juris (North Sea Continental Shelf (Federal
Republic of Germany/Denmark; Federal Republic
of Germany/Netherlands), Judgment, I.C.J.
Reports 1969, p . 44, para . 77) .Moreover, as the
Court has also observed,
‘[i]t is of course axiomatic that the
material of customary international law
is to be looked for primarily in the
actual practice and opinio juris of
States, even though multilateral
conventions may have an important
role to play in recording and defining
rules deriving from custom, or indeed
in developing them’ (Continental Shelf
(Libyan Arab Jamahiriya/Malta),
24
Judgment, I.C.J. Reports 1985, pp . 29-30, para. 27).”232 .6This approach has recently been endorsed by the ILC in its 2018 Conclusions on Identification of customary international law .242 .7The significance of treaty provisions for the development and identification of rules of customary international law has been the subject of important case law of the Court, including in the North SeaContinental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands)cases .25Thishas recently been described in Conclusion 11 (Treaties) of the 2018 Conclusions on Identification of Customary International Lawby the ILC. Paragraph 1 of Conclusion 11 reads:“A rule set forth in a treaty may reflect a rule of customary international law if it is established that the treaty rule: (a) codified a rule of customary international law existing at the time when the treaty was concluded; (b) has led to the crystallization of a rule of customary international law that had started to emerge prior to the conclusion of the treaty; or 23Jurisdictional Immunities of the State (Germany v .Italy: Greece intervening), Judgment, I.C.J. Reports 2012, pp . 122-123, para . 55 .24“To determine the existence and content of a rule of customary international law, it is necessary to ascertain whether there is a general practice that is accepted as law (opinio juris)” . See ILC, 2018 Conclusions on Identification of Customary International Law, Conclusion 2 (Two constituent elements), p . 119 .25North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969 .
25
(c) has given rise to a general practice that is
accepted as law (opinio juris), thus generating a
new rule of customary international law.”26
2 .8 The commentary to this conclusion emphasises the need
for caution: “The words ‘may reflect’ caution that, in and of
themselves, treaties cannot create a rule of customary
international law or conclusively attest to its existence or
content.”27
2 .9 The conclusion further makes it clear that a rule set forth
in a treaty may only reflect a rule of customary international law
“if it is established that” one of three circumstances is present .
As the ILC stated:
“The words ‘if it is established that’ make it clear
that establishing whether a conventional rule does
in fact correspond to an alleged rule of customary
international law cannot be done just by looking at
the text of the treaty: in each case the existence of
the rule must be confirmed by practice (together
with acceptance as law) . It is important that States
can be shown to engage in the practice not (solely)
because of the treaty obligation, but out of a
conviction that the rule embodied in the treaty is or
has become a rule of customary international
law.”28
26 ILC, 2018 Conclusions on Identification of Customary International
Law, Conclusion 11 (Treaties), p . 121 .
27 ILC, 2018 Conclusions on Identification of Customary International
Law, Commentary to Conclusion 11, paragraph (2), p. 143 .
28 ILC, 2018 Conclusions on Identification of Customary International
Law, Commentary to Conclusion 11, Paragraph (4), p. 144.
26
B.The Customary International Law on the EEZ2 .10In its pleadings, Nicaragua has largely ignored the law on the EEZ, which is fundamental to the present dispute. Indeed, its Application, Memorial and Reply ask the Court to delimit the continental shelf, with no recognition that what Nicaragua is actually seeking is a delimitation between its claimed OCS and the seabed and subsoil of Colombia’s EEZ .292 .11The institution of the EEZ evolved rapidly in customary international law in the 1970s and 1980s, at thetime of the preparations for and proceedings of the Third United Nations Conference on the Law of the Sea(“UNCLOS III”). Many coastal States adopted 200-nautical-mile EEZs already in the1970s in accordance with the “specific legal regime”that was developed early in the Conference (the Informal Consolidated Negotiating Text [ICNT] of 1977); and many more did so well before UNCLOS was adopted and opened for signature in 1982, indeed, at a time when the adoption and entry into force of the Convention were far from certain . The coastal States adopted EEZs without protest from other States. There was clear evidence of a general practice along the lines of the specific legal regime of the EEZ and of acceptance of that regime as law. 29Nicaragua requests the Court to adjudge and declare “[t]he maritime boundary between Nicaragua and Colombia in the areasof the continental shelf which appertain to each of them (…)”. See Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v . Colombia), Application Instituting Proceedings, filed in the Registry of the Court on 16 September 2013 (hereinafter “Application”), para. 12(a); NM, p.145; NR, p . 209 .
27
Already in 1985, the Court held that the institution of the EEZ
was part of customary international law .30
2 .12 The essence of the specific legal regime of the EEZ (now
reflected in Part V of UNCLOS) is that, within the EEZ, the
coastal State has “sovereign rights for the purpose of exploring
and exploiting, conserving and managing the natural resources,
whether living or non-living, of the waters superjacent to the
seabed and of the seabed and its subsoil” (Article 56, emphasis
added) .
2 .13 For present purposes, the key provisions of Part V read as
follows:
“Article 55
Specific legal regime of the exclusive economic
zone
The exclusive economic zone is an area beyond
and adjacent to the territorial sea, subject to the
specific legal regime established in this Part, under
which the rights and jurisdiction of the coastal
State and the rights and freedoms of other States
are governed by the relevant provisions of this
Convention .
Article 56
Rights, jurisdiction and duties of the coastal State
in the exclusive economic zone
30 “It is in the Court’s view incontestable that (…) the institution of the
exclusive economic zone, with its rule on entitlement by reason of distance,
is shown by the practice of States to have become a part of customary law.”
(Emphasis added). See Continental Shelf (Libyan Arab Jamahiriya/Malta),
Judgment, I.C.J. Reports 1985, p . 33, para . 34 .
28
1. In the exclusive economic zone, the coastal State has:(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:(i) the establishment and use of artificial islands, installations(ii) marine scientific research;(iii) the protection and preservation of the marine environment;(c) other rights and duties provided for in this Convention .2. In exercising its rights and performing its duties under this Convention in the exclusive economiczone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention .3 . The rights set out in this article with respect to the seabed and subsoil shall be exercised in accordance with Part VI.Article 57Breadth of the exclusive economic zoneThe exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured .”
29
2 .14 It follows that the rights set out in Article 56 (“sovereign
rights for the purpose of exploring and exploiting, conserving
and managing the natural resources (…) of the seabed and its
subsoil”) are not just continental shelf rights. To the contrary,
they are also EEZ rights, spelt out in Article 56 which is in Part
V of the Convention. The Court made this clear in Libya/Malta,
when it referred to “the rights which the exclusive economic
zone entails over the sea-bed of the zone” .31 Nicaragua nowhere
acknowledges this fact .
2 .15 An important distinction should be noted between the
specific legal regime of the EEZ and the institution of the
continental shelf . Based on what the Court has called
“entitlement by reason of distance”,32 the EEZ, including its
attendant continental shelf, extends as of right up to 200 nautical
miles from the baselines, whereas under UNCLOS the
continental shelf may extend beyond that distance, into parts of
the oceans that would have otherwise formed part of the
common heritage of mankind, but only if natural prolongation is
proven with scientific certainty and other conditions are met.
Such OCS may be established only after the coastal State has
gone through the rigorous scientific procedures of the CLCS,
proved the existence of an OCS with scientific certainty, and
established the outer limit on the basis of the CLCS’s
recommendations . nI addition, when a State is recognised to
31 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p . 33, para . 34 .
32 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p . 33, para . 34 .
30
have OCS rights, it is required to pay a royalty to other State Parties as part of theOCS revenue-sharing regime in Article 82 of UNCLOS .2 .16The relationship between the EEZ and the continental shelf was well described by the Court in Libya/Maltain 1985:“It is in the Court's view incontestable that, apart from those provisions, the institution of the exclusive economic zone, withits rule on entitlement by reason of distance, is shown by the practice of States to have become a part of customary law. (…) 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.”332 .17The relationship between the EEZ and the OCS, which is addressed in Colombia’s Counter-Memorial34and in Chapter 3below, is a key to the matters before the Court in this case .C.The Customary International Law on the Continental Shelf, including on the OCS2 .18The institution of the continental shelf evolved over the two decades or so prior to the North SeaContinental Shelf cases in 1969. But the customary rules on the outer limit of the 33Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p . 33, para . 34 .34CCM, Chapter 3 .
31
continental shelf were far from clear at that time .In the North
Sea Continental Shelf cases the Court had recalled that Article 1
of the 1958 Convention on the Continental Shelf was one of the
provisions regarded as “reflecting, or as crystallizing, received
or at least emergent rules of customary international law relative
to the continental shelf” .35 In its 1982 Judgment in the
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case,
however, the Court referred to the definition in Article 1 as
“clearly open-ended” .36
2 .19 By the time of UNCLOS III (1973-1982) it had become
necessary to define the outer limit of the continental shelf so as
to establish the extent of the Area, which is defined in UNCLOS
as “the seabed and ocean floor and subsoil thereof, beyond the
limits of national jurisdiction” .37
2 .20 Acceptance of the institution of the EEZ as part of
customary international law in the 1970s included the coastal
State’s entitlement to continental shelf rights out to 200 nautical
miles .As the Court said in Libya/Malta, “[a]lthough 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.”38
35 North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment,
I.C.J. Reports 1969, pp . 38-39, para . 63 .
36 Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment,
I.C.J. Reports 1982, pp . 45-46, para . 42 .
37 UNCLOS, Article 1 .1(1) .
38 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p . 33, para . 34 .
32
2 .21After hard-fought negotiations, a compromise was reached at UNCLOS IIIbetween the wide-margin States (sometimes referred to as the “margineers”) and others, including the group of land-locked and geographically disadvantaged States, on a package-deal for the definition of the continental shelf under the future convention. As explained in the Counter-Memorial, this package-deal recognised an opportunity for wide-margin coastal States to exploit the resources of the continental shelf beyond the EEZ, in the area which would have otherwise formed part of the common heritage of mankind, subject to the fulfilment of certain conditions and obligations .39This package-deal comprised, in addition to the definition in Article 76, paragraph 1, four main elements:(i)A complex set of provisions of a scientific-technical nature for the continental shelf beyond200 nautical miles from the baselines, to ensure that the shelf could not encroach indefinitely and arbitrarily upon the Area (Article 76, paragraphs 2 to 6); (ii)A procedure involving the CLCS, established by UNCLOS, to ensure that the coastal State may not unilaterally delineate the outer limits of its continental shelf beyond 200 nautical miles (Article 76, paragraphs 7 to 8 and Annex II); 39See CCM,Chapters2 and 3 .
33
(iii) A requirement to deposit charts and relevant information
permanently describing the outer limits of its continental
shelf with the Secretary-General of the United Nations,
to inform all States Parties to the Convention (Article 76,
paragraph 9); and
(iv) An obligation upon the coastal State to make royalty
payments or contributions in kind in respect of the
exploitation of the non-living resources of the continental
shelf beyond 200 nautical miles. The payments are to be
made through the International Seabed Authority (the
“Authority”) for distribution to the States Parties to
UNCLOS (Article 82) .
2 .22 It is beyond doubt, and agreed between the Parties, that
elements (ii), (iii) and (iv) of the package-deal do not reflect
customary international law. As explained in Colombia’s
Counter-Memorial40 and below, it follows that the OCS regime
as a whole and element (i), which is an integral part thereof, is
likewise not part of customary international law .41
2 .23 In its pleadings, Nicaragua seeks to make much of what it
claims is Colombia’s mistaken view that the OCS is subject to a
quite different regime from the shelf within 200 nautical miles .42
40 CCM, paras .2 1.0-2 .16 (citing inter alia the Statement by the
President of UNCLOS III at the final Plenary Meeting).
41 CCM, paras . 2 .17-2 .21 .
42 NR, para . 2 .15 .
34
Nicaragua is confusing the issue of the source of title over the continental shelf, dealt with in Chapter 3 below, and the regime applicable to the continental shelf, once established . Colombia considers, and Nicaragua accepts, that there are separate and specific rules (set forth in UNCLOS) concerning the shelf beyond 200 nautical miles, which are different from those applicable to the shelf within 200 nautical miles . These relate inter aliato the different sources of legal title to the seabedand subsoil within and beyond 200 nauticalmiles from the coasts; the procedures for the establishment of entitlement to an OCS and the delineation of its outer limits; the obligation to make royalty payments or contributions in kind through the Authority;and the rules governing marine scientific research . It is thus evident that international law prescribes a separate legal regime to govern the OCS .2 .24The Parties to the present case disagree on whether, and if so to what extent, Article 76 of UNCLOS reflects customary international law. They set out their respective positions in response to a question from a member of the Courtin the course of the Territorial and Maritime Disputecase; in its Memorial in the present proceedings, Nicaragua reproduced its response to Judge Bennouna in full .43It has repeated and expanded upon its arguments in the Reply .44Colombia set out its position fully in response to Judge Bennouna and in its Counter-Memorial .4543NM, para . 2 .10 .44NR, paras . 2 .6-2 .36 . 45CCM, paras . 2 .9-2 .28 .
35
2 .25 In the 2012 Judgment, the Court opined that:
“The Court considers that the definition of the
continental shelf set out in Article 76, paragraph 1,
of UNCLOS forms part of customary international
law .At this stage, in view of the fact that the
Court’s task is limited to the examination of
whether it is in a position to carry out a continental
shelf delimitation as requested by Nicaragua, it
does not need to decide whether other provisions of
Article 76 of UNCLOS form part of customary
international law.”46
2 .26 Article 76 is much more than a definition . Together with
Annex II to UNCLOS, Article 76 comprises five different sets
of provisions:
– Paragraph 1 sets out the definition of the continental
shelf and the “natural prolongation” requirement for any
OCS claim;
– Paragraphs 2 to 6 set out precise scientific-technical
formulae fixing limits beyond which an OCS may not
extend. There is disagreement between the Parties as to
whether these paragraphs reflect customary international
law;
– Paragraphs 7 and 8, together with Annex II, set out a
procedure whereby the coastal State, subject to the
involvement and recommendation of the CLCS, may
46 2012 Judgment, p . 666, para . 118 . See also, p . 666, para .114 .
36
establish an OCS claim; it is common ground between the Parties that these paragraphs do not reflect customary international law;–Paragraph 9 requires the coastal State to deposit charts and relevant information permanently describing the outer limits of its continental shelf; and–Paragraph 10 states that the provisions of the article are without prejudice to the question of the delimitation of the continental shelf between States with opposite or adjacent coast . 2 .27As noted above, in the 2012 Judgment, the Court was of the opinion that the definition of the continental shelf set out in paragraph 1 of Article 76 formed part of customary international law . But the Court took no position on the remaining provisions of the Article. Colombia respectfully submits that the OCS regime cannot plausibly be recognised to form part of customary international law and is thus not opposable to Colombia .2 .28Article 76, paragraphs 2 to 6, which set out precise scientific-technical formulae fixing limits beyond which an OCS may not be claimed, do not reflect customary international law. They cannot be viewed in isolation since they form an integral and indissoluble part of a compromise or package-deal negotiated at UNCLOS III which recognised the opportunity of
37
wide-margin States to exploit the resources of the seabed and
subsoil beyond 200 nautical miles from their coasts.
2 .29 As explained above, that package-deal includes the
detailed paragraphs 2 to 6 of Article 76, the procedures
involving the CLCS, and the obligations of royalty payments
and contributions prescribed in Article 82 .The OCS regime
cannot be regarded as forming part of customary international
law in isolation from these other elements of the package-deal .47
As Ambassador Koh, President of the Conference, indicated in
the final plenary session:
“Even in the case of article 76, on the continental
shelf, the article contains new law in that it has
expanded the concept of the continental shelf to
include the continental slope and the continental
47 In its Reply, Nicaragua relies on a brief statement by ITLOS in its
case Delimitation of the Maritime Boundary in the Bay of Bengal
(Bangladesh/Myanmar), ITLOS Reports 2012, p .107, paras .408-409 .See
NR, paras .2 .31-2 1.4 .ITLOS, having noted that the outer limits of the
continental shelf beyond 200 nautical miles only become “final and binding”
when established on the basis of recommendations of the CLCS, went on to
say that this did not imply that entitlement to the continental shelf depended
on any procedural requirements. The passage continues by saying that
entitlement does not require the establishment of limits and refers in this
regard to Article 77(3) of UNCLOS .The circumstances of
Bangladesh/Myanmar were entirely different from the present case. Said case
was between two States Parties to UNCLOS, and UNCLOS was the
applicable law .There was agreement between the Parties on the facts
determinative of the question of their respective entitlements beyond
200 nautical miles . ITLOS was dealing with a delimitation between adjacent
States, and for that purpose did not need to know the outer limits of the shelf .
Most importantly, the circumstances were such that both Parties were in fact
bound by all the elements of the package deal under UNCLOS: neither Party
could exercise its continental shelf resource rights beyond 200 nautical miles
except on the basis of recommendations by the CLCS or without making
payments or other contributions as required by Article 82. ITLOS was not
called upon to consider the position under customary international law.
38
rise . This concession to the broad-margin States was in return for their agreement to revenue-sharing on the continental shelf beyond 200 miles. It is therefore my view that a State which is not a party to this Convention cannot invoke the benefits of article 76.”48As will now be shown, these other elements are not capable of becoming rules of customary international law, and there is no practice or acceptance as law (opinio juris) to suggest otherwise . 2 .30Article 82 was an essential part of the package-deal leading to agreement on the recognition of the OCS regime and inclusion of the rules on the outer limit . Article 82 imposes an obligation on States Parties, having established an OCS, to make precisely calculated royalty payments or contributions in kind in respect of the exploitation of “the non-living resources of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured.” It does not form part of customary international law .2 .31Of the three circumstances set out in the Court’s caselaw, and Conclusion 11 (a) of the 2018 Conclusions on Identification of Customary International Lawby the ILC,Nicaragua cannot show that the detailed rules concerning the “outer edge of the continental margin”codified rules existing at 48UNCLOS III, Official Records, Vol. XVII, 193rdPlenary Meeting, para . 48, UN Doc . A/CONF .62/SR .193 (UNCLOS III, Official Records),available at: http://legal.un.org/docs/?path= . ./diplomaticconferences/1973_los/docs/english/vol_17/a_conf62_sr193.pdf&lang=E (last visited: 21 Jan. 2019). (Emphasis added) .
39
the time that UNCLOS was concluded. The negotiating history
shows the opposite . Article 76 was a package-deal, and few if
any of the negotiating States considered that it reflected existing
law. Indeed, the solution eventually agreed upon was just one of
many considered during the negotiations at UNCLOS III . Others
included that agreed in 1958 (200 m isobath and exploitability);
the USSR proposal in 1973 (maximum extent up to the 500 m
isobath); a Chinese proposal also in 1973 (a coastal State may
reasonably define the outer limit); a Japanese proposal in 1976
(the boundary between continental and oceanic crustal
structures); and a USSR proposal in 1978 (outer edge of the
margin but no further than 100 nautical miles from the outer
limit of the 200-nautical-mile economic zone) .49
2 .32 The possibilities for recognising the OCS regime as
customary international law are then the crystallization of a rule
that was emerging in 1982, or the generation of a new rule . The
OCS cannot have crystallised in 1982; it can be seen from the
examples above that there was no common understanding of the
definition of the outer limit of the continental shelf and how it
was to be identified at that time . And Nicaragua has not begun
to show the general practice that is accepted as law that would
49 For an account of the negotiating history of Article 76, see United
Nations Division for Ocean Affairs and the Law of the Sea (hereinafter
“DOALOS”), The Law of the Sea: Definition of the Continental Self – An
Examination of the Relevant Provisions of the United Nations Convention on
the Law of the Sea, United Nations Publications Sales No. E.93. V.16,
(available at the Peace Palace Library); M. H. Nordquist, S. N. Nandan and
S . Rosenne (eds .), United Nations Convention on the Law of the Sea 1982: A
Commentary, University of Virginia / Martinus Nijhoff (Virginia
Commentary), Vol. II, 1993, pp. 841-873 (available at the Peace Palace
Library).
40
be required to show that a new rule of customary international law had been generated after 1982 .2 .33Paragraph 2 of Article 76 has to be read together with paragraphs 4 to 6, to which it makes a direct cross-reference, and with paragraph 7, to which paragraph 4 makes direct reference . The Parties disagree on whether these provisions, and hence the OCS regime, reflect customary international law .502 .34The relevant provisions of Article 76 read:“2. The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6 .4 . (a) For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either:(i) a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or(ii) a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope .(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 itsbase .50CCM, paras . 2 .5-2 .17; NR, paras . 2 .18-2 .36 .5.
41
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.”
The rule in paragraph 2 incorporates paragraphs 4, 5 and 6 (and
by further incorporation by reference, paragraph 7). Paragraph 2
could therefore only reflect a rule of customary international law
if each of those four later provisions also reflected customary
international law . This is not and cannot be the case, as is now
explained.
2 .35 Paragraph 4 of Article 76 places an obligation on the
coastal State, “[f]or the purposes of this Convention”, to
establish the outer edge of its continental margin (where that lies
beyond 200 nautical miles from the baselines) by one or other
42
(or both) of two lines (known respectively as the Hedberg formula and the Gardiner formula) . Inclusion of the words“for the purposes of this Convention” is a clear indication that the negotiators did not consider these provisions to reflect customary international law, nor intend them to become such. 2 .36This is not the place to elaborate on the two technical formulae set forth in paragraph 4 .51It is in any event clear that the rules set forth in paragraph 4, and in paragraphs 5, 6 and 7 with which paragraph 4 has to be read, are not “of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law” .52They are highly technical and scientific, containing strict and complex measurements such that they could not enter into the corpus of customary international law. By way of example, they include such precise requirements as “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”;“fixed points not more than 60 nautical miles from the foot of the continental slope”;“fixed points (…)either shall not exceed 350 nautical miles from the baselines (…)or shall not exceed 100 nautical miles from the 2,500 metre isobath”;“on submarine ridges [excluding submarine elevations that are natural components of the continental margin], the outer limit of the continental shelf shall not exceed 350 nautical miles from 51In its Reply, Nicaragua itself refers to them as “detailed criteria”: See NR, para . 1 .8 .52North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969,pp . 41-42, para . 72 .
43
the baselines (…)”; and “straight lines not exceeding 60 nautical
miles in length” .
2 .37 In its Reply, Nicaragua invokes writings and practice to
support its view that these paragraphs of Article 76 reflect
customary international law. In doing so it reveals the weakness
of its position. Nicaragua argues that a “largely dominant
doctrine” confirms that the whole of Article 76 has become
customary international law .53 Even if this were so (quod non),
scholarly opinions are no substitute for State practice and opinio
juris – they do not create customary international law. In any
case, there are academic opinions that take the opposite view
and do not consider that the whole of Article 76 has become
customary international law. For instance, Malcolm Evans, in
2018, refers to the “complex compromise found in LOSC article
76(1)” and, after describing the remainder of Article 76,
concludes that “[t]his complicated formula is difficult to apply
and its customary law status unclear” .54 In the same vein,
Yoshifumi Tanaka states that “with the emergence of the
concept of the EEZ, the continental shelf within 200 nautical
miles is currently established as customary law” .55 He makes no
such claim for the continental shelf beyond 200 nautical miles.
The fact that the OCS could not plausibly be recognised to form
part of customary international law has been supported by
Ambassador Koh, as quoted above, and by Professor William T.
53 NR, para . 2 .21 .
54 M. Evans (ed.), International Law, Oxford University Press, 2018,
p. 656 (available at the Peace Palace Library).
55 Y. Tanaka, The International Law of the Sea, Cambridge University
Press, 2015, p. 139 (available at the Peace Palace Library).
44
Burke who criticised the position of the United States favouring the OCS as customary:56“This particular situation seems to be an especially unappealing one for insisting on the status of the convention principles as customary law. The appearance, or perhaps it is better stated as the odor, of picking and choosing is unusually strong in this vicinity. The agreement on the broad margin provisions rested not only on the trade-off of revenue sharing beyond 200 miles, but also on the acceptance of an elaborate, especially created third-party decision procedure designed to discourage easy claims and to assure that such claims as might be made were founded on a solid basis of scientific data regarding the critical characteristics of the area that justified the claim .To take the position now that the Article 76 provisions on the foot of the slope and the depth of the sediment are a matter of customary law appears to dispense with the aforementioned safeguards as if they are insignificant. It is impossible to argue plausibly that the requirement for sharing revenue from operations beyond 200 miles is established customary international law –no one in the world would believe that. And it is perfectly obvious that Article 76(8) and the contents of Annex II on the Commission on the Limits of the Continental Shelf are not found in general practice of states . But if these are not also customary law, and the other paragraphs of Article 76 are customary law, then there can beno assurance founded in international procedures that coastal states’ claims beyond 200 miles have any substance to them other than air.”5756CCM, Annex 43: W. Burke, “Customary Law as Reflected in the LOS Convention: A Slippery Formula”, in J. P. Craven, J. Schneider, C. Stimson (eds), The International Implications of Extended Maritime Jurisdiction in the Pacific, Law of the Sea Institute, 1989, pp . 402-409 .57W. Burke, footnote 56 supra, p . 405 .2
45
2 .38 The scholars Nicaragua referenced to support this
proposition also recognise that it is a controversial matter . Bjarni
Már Magnússon, for instance, emphasised the package-deal
elements of OCS and the difficulty with its recognition as
customary:
“One issue must be addressed. As mentioned
earlier, the definition and limits of the continental
shelf were negotiated together with the
requirement to share the revenues of the
continental shelf, and it is unlikely that article 76
would have been concluded in its present form if
article 82 were not part of the deal .Although it is
difficult to view article 82 as part of customary
international law (e g. ., because there is so far no
state practice concerning it), it could upset other
states if the United States established the outer
limits of its extended continental shelf without
showing an intent to respect the package deal.”58
2 .39 Nicaragua’s analysis and scholarly references seem to
follow the analysis conducted in a recent article by Kevin A.
Baumert, an attorney-advisor to the US Department of State 5.9
Baumert, however, recognised that his proposition that the OCS
has become part of customary international law was
controversial and referenced many scholars that objected to this
58 B .M .Magnússon, “Can the United States Establish the Outer Limits
of Its Extended Continental Shelf Under International Law?”, Ocean
Development and International Law: the Journal of Marine Affairs, Vol. 48,
2017, p. 11 (available at the Peace Palace Library).
59 NR, para. 2.21. See K. Baumert, “The Outer Limits of the
Continental Shelf under Customary International Law”, American Journal of
International Law, Vol. 111, 2017, p. 857 (available at the Peace Palace
Library).
46
view .60Amongst these is Judge Vladimir Golitsyn, the former President of ITLOS .61Judge Golitsyn explained that “Article 76 can hardly be viewed as a reflection of customary international law”, pointing out that a contrary proposition would place the “United States (…) in an advantageous position compared to other Arctic States, as it will not subject its assertion of the outer limit of the U .S . continentalshelf to the scrutiny of the Commission”.622 .40Nicaragua’s review of what it terms “State practice”63is likewise much distorted . It lists States that adopted legislative and administrative acts conforming to Article 76shortlybefore they became Parties to UNCLOS . It fails to produce evidence of opinio juris. There may be many reasons why States decided to refer to Article 76 . In particular, Nicaragua overlooks the fact that States would have been acting in anticipation of becoming States Parties to UNCLOS. Indeed, with only one exception, namely the United States, Nicaragua has not referred to the practice of States that are not Parties to UNCLOS . This one example has, as indicated above, been criticised by scholars.2 .41Paragraph 8 of Article 76, which has to be read with Annex II, requires the coastal State, in order to establish the limits of its OCS as final and binding, to engage in a procedure 60K . Baumert, footnote 59 supra, pp . 836-837, 849-850 .61V. Golitsyn, “Continental Shelf Claims in the Arctic Ocean: A Commentary”, inThe International Journal of Marine and Coastal Law, Vol. 24, 2009, p. 405 (available at the Peace Palace Library).62V. Golitsyn, footnote 61 supra .63NR, paras . 2 .22-2 .36 .
47
with the CLCS (and to do so within a fixed period of becoming
a State Party) and establish any OCS based on the
Commission’s recommendations . The procedure involves the
submission of particulars of the limits to the CLCS along with
supporting scientific and technical data,64 its consideration of the
data, and its recommendations . In the case of disagreement by
the coastal State with the recommendations of the CLCS, the
coastal State shall, within a reasonable time, make a revised or
new submission to the CLCS .65 The fact that paragraph 8
includes a time-limit for a State Party to undergo the procedure
necessary to establish its outer limit, based on the date of
becoming party to UNCLOS, is a further indication that the
procedure cannot be regarded as customary international law.
2 .42 Paragraph 9 obliges States Parties to deposit charts and
relevant information, including geodetic data, permanently
describing the outer limits of the continental shelf .66 It is
common ground between the Parties that these procedural
requirements are not and cannot form part of customary
64 Article 76 (8) of UNCLOS reads: “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.” See also UNCLOS Annex II, Article 3 (1) (a).
65 UNCLOS Annex II, Article 8.
66 Article 76 (9) reads: “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.”
48
international law .67It is well established that procedural and institutional requirements in a treaty are not “of a fundamentally norm creating character such as could be regarded as forming the basis of a general rule of law”. Since these procedural requirements are an essential part of the overallUNCLOS package-deal recognising the OCS, it means that no part of the package, neither an OCS entitlement nor the “outer limit”rule, could have become or should be recognised by the Court to form part of customary international law.2 .43It also follows thatthe procedural requirements for the establishment of the outer limit of the OCS including the deposit with the Secretary-Generalof the United Nationsof charts and information on the location of that outer limit are exercises that are opposable onlyvis-à-visStates Parties to UNCLOS . 2 .44By requesting the Court to delineate the outer limit of its purported OCS in lieu of the CLCS, Nicaragua attempts to by-pass all the safeguards put in place under UNCLOS to verify with a high degree of scientific certainty that an OCS is factually warranted and lawfully claimed. This is wholly apart from the legal questions whether such claim is opposable to a non-Party (quod non)and, critically to Nicaragua’s case, whether this natural prolongation may even serve as alawful source of legal 67“[The Parties] agree that the provisions concerning the CLCS are not part of customary international law.” See NR, para. 2.5.
49
title to the seabed and subsoil within another State’s EEZ, i.e.,
within “sea-bed areas less than 200 miles from the coast”.68
2 .45 In conclusion, the national legislation, papers and books
cited by Nicaragua are insufficient to establish rules of
customary international law in the sense of the OCS regime and
the detailed provisions of Article 76 . Moreover, the provisions
in question are not of a nature that may make them the basis of a
general rule of law. And in so far as they involve interaction
with institutions established under UNCLOS (the CLCS and the
Authority), or require royalty payments or contributions in kind,
they are self-evidently not capable of becoming binding on non-
State Parties as rules of customary international law. Nicaragua
itself appears to accept at least this last point .Thus, Colombia
submits that the OCS regime entirely, and specifically the
UNCLOS provisions on its recognition and extent, do not form
part of customary international law and hence are unopposable
to Colombia .69
68 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p . 36, para . 40 .
69 In making these submissions, Colombia does not deem it necessary
to claim persistent objector status; if, however, the Court were to consider
that the rules in question have become customary international law, the Court
would also need to consider whether Colombia was indeed a persistent
objector to any such rules.
50
51
Chapter 3
NICARAGUA’S ALLEGED NATURAL
PROLONGATION IS NOT A SOURCE OF
LEGAL TITLE WITHIN 200 NAUTICAL
MILES FROM COLOMBIA’S
MAINLAND AND INSULAR
TERRITORIES
A. Introduction
3 .1 In Chapter 3 of its Counter-Memorial, Colombia
reviewed and analysed State practice, legislative history and
doctrine to demonstrate that, under customary international law
as well as under UNCLOS, one State’s alleged geological and
geomorphological OCS claim may not encroach upon another
State’s entitlement to its 200-nautical-mile EEZ with its
attendant continental shelf .70 As the Counter-Memorial showed,
the EEZ was recognised to be the “keystone” of the current
regime of the Law of the Sea . The OCS, on the other hand, was
recognised under UNCLOS as a supplemental grant to widemargin
coastal States, subject to a verification process by a
scientific commission, the CLCS, and in return for revenuesharing.
In this “package-deal”, a State’s OCS could extend into
areas that would otherwise have been the Area, but not into
another State’s EEZ with its attendant continental shelf.
Accordingly, in both delimitation practice and CLCS
submissions, States generally have refrained from claiming that
70 CCM, Chapter 3 .
52
their geological and geomorphological OCS may encroach upon another State’s EEZ. Indeed, as the Court confirmed in Libya/Malta,71natural prolongation, the foundation of an OCS claim, is not a source of title within maritime areas that lie 200 nautical miles from another State’s baselines, i .e ., within that State’s EEZ: “This is especially clear where verification of the validity of title is concerned, since, at least in so far as those areas are situated at a distance of under 200 miles from the coasts in question, title depends solely on the distance from the coasts of the claimant States of any areas of sea-bed claimed by way of continental shelf, and the geological or geomorphological characteristics of those areas are completely immaterial.”72The Court then confirmed that the law which usedto accord title based on natural prolongation “(…)now belongs to the past, in so far as seabed areas less than 200 miles from the coast are concerned.”733 .2In Chapter 5 of its Reply, Nicaragua boastsof “swiftly” repudiating this established legal principle, but thisis based on nothing more than unsubstantiated assertions and unsuccessful 71Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985,pp . 35-36, paras . 39-40.72Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p . 35, para . 39 .73Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985,p . 36, para . 40 .
53
attempts to raise doubts about established customary and
treaty-based international law .
3 .3 Nicaragua argues that a single continental shelf under
international law may serve as a source of title throughout its
natural prolongation to the edge of the continental margin,
regardless of whether such areas lie within another State’s EEZ.
But Nicaragua is mistaken . Under international law, continental
shelf entitlement is distinct within and beyond 200 nautical
miles from the coast. As explained in the Counter-Memorial,
and in Chapter 2 above, while the continental shelf entitlement
within 200 nautical miles from the coast is included within the
customary and conventional EEZ regime, any continental shelf
entitlement beyond 200 nautical miles is founded, perforce,
upon geological and geomorphological features, i .e ., the natural
prolongation of the landmass . There are thus two distinct
sources of title for the continental shelf; one within 200 nautical
miles and one beyond.
3 .4 Nicaragua’s apparent argument is that in spite of State
practice, legislative history, jurisprudence and doctrine, geology
and geomorphology may constitute a source of title within
200 nautical miles from another State’s baselines .
3 .5 Nicaragua argues that a few excessive claims and quid
pro quo deviations from the general practice demonstrate that
there is no established State practice. That is plainly false, as the
Counter-Memorial and this Chapter demonstrate . Nicaragua has
54
failed toshow that under customary international law, based on State practice and opinio juris, claims to title based on geological and geomorphological factors, i .e ., OCS claims, are valid within 200 nauticalmiles from another State’s coast . Nicaragua attempts this by proposing an interpretation that is, at once, cynical and incoherent. Cynical because it distorts the clear purport of legislative history, practice, doctrine and jurisprudence . Incoherent because it produces aresult that is wholly inconsistent with the developments in the Law of the Sea .3 .6Nicaragua’s real, though belatedly revealed argument is that,in spite of legislative history, State practice, doctrine and the Court’s jurisprudence, the Court should ignore customary international law and instead conduct an “equitable solution” exercise, dividing Colombia’s EEZ.74But that puts the cart before the horse. An equitable delimitation of Colombia’s EEZ and its attendant continental shelf presupposesthat Nicaragua has some title to the area which it wishes to divide,and that said title is equal to Colombia’s. Yet its OCS claim, purporting to be based on geology and geomorphology (and ignoring, for the moment, that it has not been proved), cannot be the basis of an entitlement within another State’s 200-nautical-mile EEZ, with its attendant continental shelf . 3 .7This is the sleight of hand in Nicaragua’s argument: to speak piously of equity and equitable delimitation as a means of 74NR, para . 5 .63 .
55
hiding the fact that it simply lacks legal title to the area it covets.
This is not to say that there is no principle of equitability at work
here. The accepted principle that OCS claims may not encroach
upon the 200-nautical-mile entitlements of other States, i .e ., that
geological and geomorphological factors are not a source of title
within 200 nautical miles from a State’s baselines is what States
accept and agree is needed to ensure an equitable distribution of
access to resources .
3 .8 Nicaragua further claims that Colombia had not
produced evidence or references to support the principle that
natural prolongation, i.e., geology and geomorphology, upon
which an OCS claim is founded, is not a source of title within
200 nautical miles from another State’s baselines 75. All of
Nicaragua’s arguments in Chapter 5 of its Reply have already
been fully rebutted in Chapter 3 of the Counter-Memorial and
Colombia respectfully refers the Court to its thorough review of
the legislative history, State practice and doctrine there.
3 .9 In Section B to this Chapter, Colombia will demonstrate
that, under both customary and conventional international law
and in contrast to Nicaragua’s unsupported assertions, natural
prolongation, upon which an OCS claim is founded, does not
serve as a source of title within the EEZ of another State, i.e.,
within 200 nautical miles from another State’s baselines .
Colombia will show this, based upon legal doctrine, State
practice, the legislative history of UNCLOS and the Court’s
75 NR, paras . 5 .24, 5 .40, 5 .48 .
56
jurisprudence . In Section C, Colombia willdemonstrate that this principle is supported by sound policy considerations for maintaining stability between States and equitable access to resources . B.Geology and Geomorphology are not a Source of TitleWithin 200 Nautical Miles from Any State’sBaselines3 .10Nicaragua contends that Colombia failed to provide references to support the argument that an OCS claim may not encroach upon another State’s EEZ, with its attendant continental shelf. Nicaragua attempts to sidestep the necessary link between the questions of delimitation and of legal title . According to Nicaragua, an equitable delimitation should be performed regardless of whether its claimed source of legal title, natural prolongation, is even a source of title in the area it claims .3 .11Nicaragua argues that natural prolongation, i.e., geology and geomorphology, provides for an “inherent” legal title to the entire breadth of that natural prolongation . Legal sophistriesoften tryto create the illusion of authority by presenting themselves as “natural” or “inherent”. But title to maritime resources, either as part of the customary EEZ regime or the conventional OCS regime, is the product of law-making by the international community; they are not natural rights. Just as the law of nature does not provide a State with a territorial sea or set the scope of that space, legal title to maritime zones within 200
57
nautical miles from the baselines has been effected irrespective
of criteria based on geology or geomorphology; simply put,
natural prolongation is not a source of title within 200 nautical
miles .
(1) THE PRINCIPLE THAT NATURAL PROLONGATION IS NOT A
SOURCE OF TITLE WITHIN 200 NAUTICAL MILES FROM
ANY STATE IS RECOGNISED IN DOCTRINE
3 .12 A review of Nicaragua’s 30-page attempt in Chapter 5 of
its Reply to show that natural prolongation is a source of title
within 200 nautical miles from any State’s baselines reveals that
Nicaragua can marshal neither authority, practice nor doctrine to
support its claim that natural prolongation, the basis of its
alleged OCS claim, may be a source of title in another State’s
EEZ.
3 .13 Indeed, the flaw in Nicaragua’s attempt to overturn the
existing legal regime is made manifest in its own attempt to
distinguish its OCS claim from any other claim to sustain legal
title based on geology and geomorphology within 200 nautical
miles from another State .In its Reply, Nicaragua attempts to
justify its position by stating that
“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
58
will necessarily be relied upon by at least one of the States as the basis of its claim.”76As Colombia demonstrated in its Counter-Memorial, and will reaffirm in Chapter 5 below, there are no areas in the CaribbeanSeathat lie more than 200 nauticalmiles from the coasts of other States . Regardless of this fact, Nicaragua’s reasoning here is a petitio principii. When the question is the legal cogency of a claim, Nicaragua’s only answer is that the claim has been made out of necessity and for want of a better one.3 .14The legislative history of UNCLOS, the jurisprudence of the Court, State practice and doctrine all support the principle that the EEZ entitlementof one State may not be encroached upon by the allegedgeology and geomorphology-basedclaim of another State . Natural prolongation, the foundation of an OCS claim, is only a source of title in areas that would otherwise be part of the common heritage of mankind, which lie beyond 200 nauticalmiles from any State .3 .15Nicaragua accepts, as the quote above shows, that within 400 nauticalmiles of opposing coasts, distance supersedes geology and geomorphology. For example, if the coasts are 400 nauticalmiles apart, while the natural prolongation of one State may extend 350 nautical miles, and the opposing State’s natural prolongation extends only 25 nautical miles, since natural prolongation is not a source of title within the EEZ, the 76NR,para . 5 .65 .
59
delimitation would be effected, without regard to natural
prolongation, by dividing their respective EEZ entitlements with
an equidistance line (absent relevant circumstances):
3 .16 According to Nicaragua, however, were the distance 401
nautical miles, “natural prolongation will necessarily be relied
upon by at least one of the States as the basis of its claim”,77
within and beyond the other State’s 200-nautical-mile range .
3 .17 Nicaragua’s effort at “universalization” of its own
exorbitant claim by means of the adverb “necessarily” should be
rejected. It is a “necessary” claim only if a claimant has the
temerity to bring a claim devoid of a respectable legal basis. The
fact that it might be relied on by another such State does not
77 NR, para . 5 .65 .
350M25MSTATE A’s200M EEZ EntitlementSTATE B’s200M EEZ Entitlement400MSTATEB’scont.shelfSTATE A’scontinentalshelfSTATE ASTATE BFigure CR 3.1STATES SEPARATED BY 400M OR LESS:DISTANCE TRUMPS NATURAL PROLONGATION
60
validate it . As Colombia establishedin the Counter-Memorial,78and will further elaborate below, State practice in both delimitation treaties and CLCS submissions clearly proves the opposite. Natural prolongation “necessarily” is notrelied upon by States as a source of title within 200 nauticalmiles from another State. Nicaragua is in a tiny minority of States in making such an unlawful, unrecognised and excessive claim to title .3 .18Nicaragua muddles the distinction between the sourcesof title relating to the continental shelf within and beyond 200 nauticalmiles from coasts. Nicaragua claims that by increasing the distance by 1 nauticalmile, natural prolongation springs back as a source of title within the entire area between the States and thus necessarily within “sea-bed areas less than 200 miles from the coast”. To use Nicaragua’s words, it is correct that when the coasts of the States are 401 nauticalmiles apart, “natural prolongation [may] be relied upon by at least one of the States as the basis of its claim”,79provided that a natural prolongation beyond 200 nauticalmiles exists and both States are Parties to UNCLOS . Nicaragua is, however, mistaken about the “where”. What Nicaragua misses is that natural prolongation could be relied upon in the 1 nauticalmile of highseas, between the opposing EEZs of the two States. If the distance were 450 nauticalmiles, then natural prolongation would be relied upon in the 50 nauticalmiles between the EEZs, and so forth. To accept 78CCM, Chapter 3 .79NR, para . 5 .65 .
61
Nicaragua’s proposition would mean reverting to the old regime
and creating potentially vast “grey” areas solely because the
distance is 401 rather than 400 nautical miles .
3 .19 The extraordinary result of Nicaragua’s position may be
illustrated by a simple example: if the coasts are 401 nautical
miles apart, and State A Party to UNCLOS has a 350-nauticalmile
shelf and State B has a 25-nautical-mile shelf, instead of
each State being recognised with title to 200 nautical miles of
EEZ, and State A being recognised with 1 nautical mile of OCS,
Nicaragua would have the Court separate between water column
and seabed and draw, in respect of seabed rights only, an
equidistance line between the 200-nautical-mile EEZ of State B
and the 350-nautical-mile natural prolongation of State A .
According to Nicaragua, since natural prolongation would
spring back to an equal source of title within another State’s
200-nautical-mile zone, in this example, State A will have an
EEZ of 200 nautical miles, while State B will have an EEZ of
only 125.5 nautical miles .In the middle will lie a huge “grey”
area totalling 74 .5 nautical miles, in which State A will possess
seabed rights as part of the OCS regime and State B water
column rights .State A will also have OCS rights to the 1
nautical mile in between . The unreasonableness of Nicaragua’s
proposed global order may be depicted:
62
3 .20 The legal regime established as a result of UNCLOS III
divided access to maritime resources so that each State is
recognised to possess the exclusive title to such resources, based
on the EEZ regime with its attendant continental shelf, up to 200
nautical miles from the baselines or until confronted by and
delimited with another State’s 200-nautical-mile EEZ. This
division of access to resources was supplemented, under
UNCLOS, by affording wide-shelf States the opportunity to
utilise resources beyond 200 nautical miles, as part of the OCS
regime, subject to revenue-sharing and the recommendations of
a scientific commission 8.0 Colombia has established this in the
Counter-Memorial and will further elaborate on it below . For
80 CCM, Chapter 2 .
STATE A’s EEZ
200M
STATE B’s EEZ
125.5M
STATE B’s
Water Column
74.5M
STATE A STATE B
High Seas
(1M)
“Gray Zone”
(74.5M)
401M
350M 25M
STATE
B’s
cont.
shelf
STATE A’s
continental
shelf
Figure CR 3.2
STATE A’s
OCS 75.5M
NICARAGUA’S EXPANSIONIST
GLOBAL ORDER
63
the purposes of this section, however, it is sufficient to show that
under this regime, natural prolongation, the basis of an OCS
claim, is only a source of legal title vers le large and beyond 200
nautical miles from any State .An OCS claim cannot encroach
upon the coastal State’s EEZ entitlement to exclusively utilise
the resources of the seabed and the subsoil up to 200 nautical
miles .
3 .21 The legal principle that natural prolongation is not a
source of title within 200 nautical miles from a State’s coast, has
been widely recognised and supported by legal scholarship. In
the Counter-Memorial, Colombia has provided a thorough
review of legal scholarship in support of this principle .80F
81 A few
examples will suffice. Writing in 1989 in respect of the Court’s
decision in Libya/Malta, Professor Malcom D. Evans concluded
that:
“Natural prolongation would only provide the legal
basis of title to a continental shelf where a
geological shelf extended beyond 200 miles from
any state, i .e . it would not conflict with a 200-mile
zone drawn from the coast of another state”.81F
82
Similarly, Professor Thomas Cottier concluded that:
“the EEZ includes full jurisdiction over shelf
rights. While the shelf can exist independently, the
EEZ necessarily includes the continental shelf. As
81 CCM, Chapter 3, Section E.
82 M. D. Evans, Relevant Circumstances and Maritime Delimitation,
Oxford University Press, 1989, p. 51 (available at the Peace Palace Library).
64
the Court phrased it: ‘there can be a continental shelf where there is no exclusive economic zone, [but] there cannot be an exclusive economic zone without a corresponding continental shelf’ . It is important to note that up to the 200 nm limit, the existence of the EEZ is no longer dependent upon the existence of a shelf in the physical sense. Thus, to the extent of 200 nm, the doctrine of natural prolongation as a legal title to the shelf no longer applies under the definition of Article 76 of the 1982 Convention. Shelf rights therefore directly rely upon the EEZ.”83This conclusion was also supported by JudgeAnderson84and Øystein Jensen.85Leonard Legault and Blair Hankeyfurtherexplained that natural prolongation, “a legal concept expressive of the basis of title and of the outer limit of that title”, is only relevant as a source of title, in areas which arebeyond 200 nautical miles from any State:83T . Cottier, Equitable Principles of Maritime Boundary Delimitation,Cambridge University Press, 2015, p. 123 (available at the Peace Palace Library). (Emphasis added)84“Those recent developments about entitlement to shelf rights were crystallised in the Libya/Maltacase, which concerned delimitation . The acceptance into the law of the distance criterion had a direct effect upon the law relating to the delimitation of the continental shelf. In the way in which there is no longer a role for geological or geophysical factors in establishing the entitlement of the coastal state, so also is there no role for those factors in delimiting the continental shelf within 200 nm of two or more coastal states… Where the case concerns boundaries which do not exceed 200 nm from the relevant coasts, the presence of submarine features such as channels, ridges, banks, troughs, caps or spurs should not affect a delimitation reached in accordance with the rules of international law: other principles and factors would be determinative”, D. H. Anderson, “Some Recent Developments in the Law Relating to the Continental Shelf”,Journal of Energy and Natural Resources Law, Vol. 6, 1988, pp. 96-97 (available at the Peace Palace Library).85Ø. Jensen, The Commission on the Limits of the Continental Shelf: Law and Legitimacy, Brill,2014, pp . 139-140 (available at the Peace Palace Library).
65
“Where the physical continental shelf extends to a
distance of less than 200 miles, natural
prolongation is defined solely in terms of
geographical adjacency measured from the coast,
that is, by the distance criterion; thus, title in
respect of the continental shelf up to 200 miles
from the coast is determined on precisely the same
basis as title in respect of the economic zone
(although that zone does not require the doctrinal
underpinning of ‘natural prolongation’ that is
inherent in the concept of the continental shelf) .
Where the physical continental shelf extends
beyond 200 miles from the coast, natural
prolongation is defined by a combination of
geological-geomorphological and geographical or
distance criteria.”86
David A. Colson opined that “[f]ollowing the advent of the 200-
nautical-mile zone, Libya-Malta held that such facts [geological
and geomorphological factors] are not relevant because they are
unrelated to title in this zone (…)”.87 That geological and
geomorphological factors serve in delimitation of competing
OCS claims is irrelevant in the EEZ. For instance, were two
opposing States situated 500 nautical miles apart, natural
prolongation would not be a source of title within 200 nautical
miles from each State, but, ceteris paribus, could serve as a
source of title only in the 100 nautical miles that lay between. If
86 L. H. Legault and B. Hankey, “From Sea to Seabed: The Single
Maritime Boundary in the Gulf of Maine Case”, American Journal of
International Law, Vol. 79, 1985, pp. 982-983 (available at the Peace Palace
Library). (Emphasis added)
87 D. A. Colson, “The Delimitation of the Outer Continental Shelf
between Neighboring States”, American Journal of International Law,
Vol. 97, 2003, pp .102-103 (available at the Peace Palace Library).
(Emphasis added)
66
State A has a 400-nautical-mile shelf and State B has a50-nautical-mile shelf, were State A an UNCLOS Party, the natural prolongation of State A could, ifscientifically proven, only serve it as a source of title within the 100 nauticalmiles between their respective 200-nautical-mile entitlements, and not within the 200-nautical-mile entitlement of State B . Such scenarios were discussed in legal scholarship, all reaching the same conclusion .883 .22Nicaraguahas failed to produce a shred of evidence, from either legal scholarship or jurisprudence to support its claim that natural prolongation, the foundation of an OCS claim, may serve as a source of title within the 200-nautical-mile EEZ of another State . 3 .23Nicaragua claimsthat the established legal principle which prescribes that its natural prolongation does not serve as a source of title within 200 nautical miles from Colombia is an “extreme position” as it “would be to bar Nicaragua in liminefrom even articulating the basis of its claim,while permitting Colombia to make its claim on a different basis under the Article 76 definition”,89or the customary international law regime of the EEZ, which is the source of title within 200 nautical miles of Colombia .With respect, it is Nicaragua’s claim that is extreme. It is hardly “extreme” to conclude that a State geographically located hundreds of miles away may not claim an entitlement to 88CCM, paras . 3 .89-3.91; Ø. Jensen, footnote 85 supra,p .142; D . A . Colson, footnote 87 supra, p . 103 .89NR, para . 5 .48 .
67
an area within another State’s 200-nautical-mile entitlements . In
the same sense, it would be unthinkable for a State to claim an
EEZ with its attendant continental shelf within 12 nautical miles
from another State, as the EEZ regime is not a source of title
within another State’s territorial sea. Similarly, natural
prolongation, upon which an OCS claim must be founded, does
not serve as a source of title within 200 nautical miles from
another State’s baselines. There is nothing “extreme” in saying
that there may be different sources of title within different areas
of the oceans .
3 .24 Colombia does not request the Court to create any new
rules or to alter existing rules, but only to give effect to an
existing principle of customary international law: natural
prolongation does not serve as a source of title within the 200-
nautical-mile E EZ o f any State . This principle has been given
effect and followed by the great majority of States and is
manifest in the negotiating history of UNCLOS. As Colombia
established in the Counter-Memorial and will recall below,
States have respected this principle in both delimitation practice
and CLCS submissions .
(2) STATE PRACTICE FOLLOWS THE PRINCIPLE THAT NATURAL
PROLONGATION IS NOT A SOURCE OF TITLE WITHIN THE
200-NAUTICAL-MILE EEZ AND ITS ATTENDANT
CONTINENTAL SHELF OF ANY STATE
3 .25 As Colombia showed in the Counter-Memorial, a review
of State practice demonstrates that when the coasts of two or
68
more States are opposite,the vast majority of States have abided by the principle that natural prolongation is not a source of title within 200 nautical miles from another State’s coast, irrespective of the distance between the coasts .3 .26In this section of the Rejoinder, Colombia will respond to Nicaragua’s attempts to sow doubts about the body of practice which Colombia assembled . It will first respond to Nicaragua’s claims in respect of delimitations and then in respect of CLCS practice .(a)Delimitation Practice Follows the Principle that Natural Prolongation is not a Source of Title within 200 Nautical Milesfrom Any State’s Baselines3 .27Nicaragua’s main argument in this respect is not that there is a general practice which supports its purported claim of title based upon natural prolongation within another State’s EEZ. Rather it makes several more oblique claims:(1) Nicaragua purports tolabel all practice within 400 nauticalmiles as irrelevant;90(2) because there are a few negotiated exceptions, Nicaragua argues that Colombia did not prove existing State practice;91and (3) Nicaragua argues that the practice shown by Colombia only demonstrated what the States considered to be the equitable delimitation in those cases .92Each of these arguments proves, on examination, to be unfounded.90NR,para . 5 .55 .91NR, para . 5 .66 .92NR,paras . 5 .57 and 5 .63 .3
69
3 .28 Nicaragua’s first argument, that practice within
400 nautical miles is irrelevant, rests upon the same flawed logic
as its argument that once the distance between the coasts
becomes 401 nautical miles, the regime governing the entire
area reverts to the pre-EEZ regime, and natural prolongation
springs back as a source of title within the entire area . Nicaragua
must label such practice irrelevant precisely because it shows
that States accept that the EEZ entitlement with its attendant
continental shelf prevails over another State’s natural
prolongation within 200 nautical miles from any State’s
baselines .93 Contrary to Nicaragua’s assertion, practice
demonstrates that States followed the principle that natural
prolongation does not serve as a source of title within 200
nautical miles from any State’s baselines.
3 .29 In the Counter-Memorial, Colombia provided an
extensive review of State practice both within and beyond
200 nautical miles from States. Colombia respectfully refers the
Court to Section C of Chapter 3 of the Counter-Memorial .
Confronted with that wealth of evidence, Nicaragua argues that
because of a few quid pro quo deviations, Colombia has failed
to demonstrate State practice .There are two responses to this .
First, Nicaragua attempts here to reverse the burden of proof . It
has failed to establish that under customary international law its
alleged geological and geomorphological-based OCS claim,
even if legally proven (quod non), can be a source of title within
93 CCM, Chapter 3, Section C .
70
another State’s 200-nautical-mile entitlements . Second, as explained above,94under international law, it is sufficient to establish general practice; there is no requirement of unanimity. 3 .30Nicaragua’s main argument is that delimitation practice indicates only what the States considered equitable in those circumstances .95According to Nicaragua, the fact that the vast majority of delimitation examplesdid not recognise natural prolongation as a source of title within 200 nautical miles from another State’s baselines,simply reflects the equitablenature of thedelimitation achieved in those instances, while in other instances (which are not identified), natural prolongation may serve as a source of title within another State’s EEZ. That is incorrect and represents a misconception of the notion of State practice . 3 .31State practice shows that in their delimitation agreements,States have accepted the principle that natural prolongation is not a source of title within 200 nautical miles from another State’s baselines . As Colombia demonstrated in its Counter-Memorial, this predominant practice is evident both when the area was confined to 200 nautical milesfrom each State and also in delimitations involving claims beyond 200 nautical miles from each State .96The practice shows that States 94See Chapter 2 .95NR, paras .5 .57, 5 .63 .96CCM, Chapter 3, Section C. A comprehensive record and analysis of delimitation practice may be found in J. Charney and L. Alexander, International Maritime Boundaries, Vol. I –Vol. VII, 1993-2016, (hereinafter, “International Maritime Boundaries”).
71
do not consider their natural prolongation to constitute a source
of title within the 200-nautical-mile entitlements of another
State .
3 .32 Nicaragua submits that practice within 200 nautical
miles from both States, which is based solely on the distance
criterion as a basis for title, is irrelevant for an EEZ versus
natural prolongation claim. Nicaragua, however, ignores why
State practice within 200 nautical miles did not consider geology
and geomorphology as relevant. If natural prolongation was, as
Nicaragua claims, a valid source of legal title within 200
nautical miles from another State’s baselines, then States would
have claimed such title, whether the distance between the coasts
was more or less than 400 nautical miles .But State practice
shows that even when natural prolongation could have been
raised as a possible basis for a claim of title within 200 nautical
miles from another State, States did not take geological and
geomorphological factors into account,97 precisely because it
97 International Maritime Boundaries, Vol. I, Colombia-Dominican
Republic, Rep . 2-2, 477; Ibid., Vol. I, Colombia-Honduras, Rep . 2-4, 503;
Ibid., Vol. I, Cuba-Haiti, Rep . 2-7, 551; Ibid., Vol. I, Cuba-Mexico, Rep . 2-8,
565; Id., Vol. I, France (Martinique)-Saint Lucia, Rep . 2-10, 591; Ibid.,
Vol. I, France (Guadeloupe and Martinique)-Venezuela, Rep . 2-11, 603; Id.,
Vol. I, Trinidad and Tobago-Venezuela, Rep .2-13(2), 655; Ibid., Vol. I,
Trinidad and Tobago-Venezuela, Rep . 2-13(3), 675; Ibid., Vol. I, United
States (Puerto Rico and the Virgin Islands)-Venezuela, Rep . 2-14, 691; Ibid.,
Vol. I, Dominica-France (Guadeloupe and Martinique), Rep .2-15, 705;
Ibid., Vol. I, Argentina-Uruguay, Rep . 3-2, 757; Id., Vol. I, Australia-France
(New Caledonia), Rep . 5-1, 905 (equidistance was used for the area within
and beyond the 200-nautical-mile EEZ); Id., Vol. I, Australia-Solomon
Islands, Rep .5-4, 977; Id., Vol. II, Australia (Heard/McDonald Islands)-
France (Kerguelen Islands), Rep . 6-1, 1185 (equidistance was used within
and beyond the EEZ); Id., Vol. II, India-Maldives, Rep . 6-8, 1389; Id., Vol.
II, India-Thailand, Rep .6-11, 1433; Id., Vol. II, Italy-Tunisia, Rep .8 -6,
1611; Id., Vol. III, Colombia-Jamaica, Rep . 2-18, 2179; Id., Vol. III, Cuba72
was understood that natural prolongation was not a source of title within 200 nautical miles from another State’s baselines . For example, this is evident in the delimitation between Denmark and Norway, in which the Parties did not accord the significant geological and geomorphological features any part in the delimitation of their respective titles, which were based, solely, on their 200-nautical-mile overlapping entitlements .983 .33In similar circumstances in the delimitation between the United Kingdom and Denmark,99Jonathan Charney and Robert Smith comment that:“From a geomorphological point of view, the Faroe Islands are divided from Scotland by the Faroe-Shetland Channel, but this feature does not represent a major break in the continental shelf . Jamaica, 2205; Id.,Vol. III, Dominican Republic-United Kingdom (Turks and Caicos Islands), Rep . 2-22, 2235; Id.,Vol. III, Cape Verde-Senegal, Rep . 4-8, 2279; Id.,Vol. III, Papua New Guinea-Solomon Islands, Rep . 5-16(2), 2323; Id.,Vol. III, Denmark-Netherlands, Rep . 9-18, 2497; Id.,Vol. III, Finland-Sweden (Bogskär Area), Rep . 10-13, 2540;Id.,Vol. IV, United States-Mexico, Rep . 1-5(2), 2621 (equidistance was used to delimit the area both within and beyond the 200-nautical-mile zone) (in the initial report 1-5, Vol 1, it was stated that there were no relevant geological or geomorphological features that could have offset the equidistance line, this report only deals with the OCS) Id.,Vol. IV, Oman-Pakistan, Rep . 6-17, 2809; Id.,Vol. IV, Bulgaria-Turkey, Rep .8-13, 2871; Id.,Vol. IV, Belgium-Netherlands, Rep . 9-21, 2921; Id.,Vol. IV, Denmark (Greenland)-Iceland,Rep . 9-22, 2942; Id.,Vol. V, Cameron-Nigeria, Rep . 4-1 (add . 2), 3605; Id.,Vol. VI, Mauritius-Seychelles, Rep . 6-22, 4391; Id.,Vol. VI, Denmark/Greenland-Norway (Svalbard), Rep . 9-25, 4513 .; Id.,Vol. VII, Bahamas-Cuba, Rep . 2-23, 4721 (because the area was comprised by overlapping EEZs and territorial sea, OCS claims had no effect of the delimitation); Id.,Vol. VII, Kenya-Tanzania, Rep . 4-5(2), 4781; Id.,Vol.VII, Cook Islands-New Zealand (Tokelau), Rep . 5-43, 4973 .98International Maritime Boundaries,Vol. VI, Denmark/Greenland-Norway (Svalbard), Rep . 9-25, 4513, 4524 .99International Maritime Boundaries, Vol. IV, Denmark (Faroe Islands)-United Kingdom, Rep . 9-23, 2956 .
73
Moreover, as the Channel lies within the 200 n m. .
limits of the two sides, geomorphology would not
have had a role to play in the delimitation”.100
3 .34 The Court should take account of State practice within
200 nautical miles from both States . Such practice relates
precisely to the example of 400 nautical miles between the
coasts, with State A having a 350-nautical-mile physical shelf
and State B having 25-nautical-miles of shelf . Were the Court
now to revise the law and accept Nicaragua’s proposition that
one State may claim title based on natural prolongation, i.e., an
alleged OCS, within another State’s 200-nautical-mile
entitlements, then in the above example, the natural
prolongation of State A may serve as title within State B’s 200-
nautical-mile entitlements . This would diverge from State
practice, which, in such scenarios, shows precisely the opposite.
3 .35 This principle is also evidenced by cases where the
distance between the coasts exceeded 400 nautical miles.101 State
practice shows that States do not consider their geological and
geomorphological OCS claim as a source of title within another
State’s 200-nautical-miles entitlements .102 In the Denmark
100 International Maritime Boundaries, Vol. IV, Denmark (Faroe
Islands)-United Kingdom, Rep . 9-23, 2956 .
101 CCM, Chapter 3, Section C .
102 Until today the treaties which delimited the OCS are: International
Maritime Boundaries, Vol. VII, Denmark (Greenland)-Iceland, Rep . 9-22
(2), 5259; Id., Vol. V, Australia-New Zealand, Rep . 5-26, 3759; Id., Vol .I,
Australia-France (New Caledonia), Rep . 5-1, 905 (the parties delimited the
entire area including beyond the 200-nautical-mile distance using the
equidistance method ).; Id., Vol. I, Trinidad and Tobago-Venezuela, Rep .2 -
13(3), 675; Id., Vol. I, Australia-Solomon Islands, Rep . 5-4, 977 (the
delimitation used equidistance and began beyond the 200 nautical miles of
74
(Greenland) and Iceland delimitation, Iceland’s claim terminated at Greenland’s 200-nautical-mile entitlement and not at the edge of its natural prolongation .103The delimitation between Australia and New Zealand is especially instructive, as Colombia explained in the Counter-Memorial:104In that delimitation, natural prolongation was not used as a source of title within each State’s 200-nautical-mile entitlement. On the contrary, each State was recognised as havingas a minimum200-nautical-mile entitlements from both mainland and islands, regardless of any geological or geomorphological considerations .105Only where the distance was greater than 200 nautical miles from bothcoasts, did natural prolongation play a role in the delimitation .106This is fully in conformity with the rules concerning title to the continental shelf embodied in Article 76(1) of UNCLOS, and is evident from the official map published by the Parties:107each State); Id., Vol. II, Australia (Heard/McDonald Islands)-France (Kerguelen Islands), Rep . 6-1, 1185 (equidistance was used when the line extended beyond their respective 200-nautical-mile zones); Id.,Vol. VI, Denmark/The Faroes-Iceland-Norway, Rep . 9-26, 4532;Id.,Vol. VI, Barbados-France (Guadeloupe and Martinique),Rep . 2-30, 4223; Id., Vol. I, Argentina-Uruguay, Rep . 3-2, 757 (1973) .103Seemap in International Maritime Boundaries, Vol. VII, Denmark (Greenland)-Iceland, Rep . 9-22 (2), 5259, 5268 .104CCM, paras . 3 .49 -3 .51 .105International Maritime Boundaries,Vol. V, Australia-New Zealand,Rep . 5-26, 3759. See also V. Prescott and G. Triggs, “Islands and Rocks and their Role in Maritime Delimitation”,International Maritime Boundaries,Vol. V, 3245;C. Yacouba and D. McRae, “The Legal Regime of Maritime Boundary Agreements”,International Maritime Boundaries,Vol.V, 3281, 3289 .106International Maritime Boundaries, p . 3764 .107Land Information New Zealand, “Exclusive Economic Zone & continental shelf boundaries between New Zealand & Australia”,available at:http://www.linz.govt.nz/sea/nautical-information/maritime-boundaries/exclusive-economic-zone-continental-shelf-boundaries-between-new-zealand-australia(last visited 21 Jan. 2019). See alsoInternational Maritime Boundaries,p . 3767 .
75
Figure CR 3.3Source: http://www.linz.govt.nz/sea/nautical-information/maritime-boundaries/exclusive- economic-zone-continental-shelf-boundaries-between-new-zealand-australia
76
3 .36Thus, in general State practice, States have refrained from according natural prolongation any consideration in respect of title in so far as seabed areas less than 200 nautical miles from the coast are concerned . This principle was followed regardless of the distance between the coasts involved . It seems that States, with the exception ofonlyfour,including Nicaragua, have not claimed maritime areas which lie beyond 200 nautical miles from their coastline and within 200 nautical miles of another State’s coastline . 3 .37Contrary to Nicaragua’s misrepresentation, general State practice clearly demonstrates thatdistance and natural prolongation based on geology and geomorphology are not equal sources of title. Within 200 nautical miles from the coast, the Law of the Sea prescribes that distance, i.e., the EEZ with its attendant continental shelf, is the sole source of legal title, while natural prolongation cannot serve as a competing source of title . Natural prolongation may onlyserve as a possiblesource of legal title in areas beyond 200 nautical miles from any State . Nicaragua has failed to produce any State practice to support its proposition that natural prolongation may serve as a source of title within 200 nautical miles from another State . (b)Submissions to the CLCS are Consistent with the Principle that Natural Prolongation is not a Source of Title within 200Nautical Miles from Any State3 .38Nicaragua contends that the significant body of State practice confining geological and geomorphologicalOCS claims
77
to areas situated beyond 200 nautical miles from any State does
not reflect recognition that natural prolongation cannot be a
source of title within 200 nautical miles from any State, but,
rather, is only a series of case-specific choices of the States
concerned. Aside from the fact that that is precisely the essence
of State practice, Nicaragua attempts to explain such choices on
the ground that otherwise the CLCS would not have reviewed
the applications had there been a conflict 10.8 In essence,
Nicaragua’s explanation for why States refrained from claiming
title was to avert a conflict of entitlements and prolonged CLCS
disposal of their applications . Nicaragua wants the Court to
believe, without a shred of evidence, that 31 States,109
relinquished their “inherent right” to potentially vast OCS
resources, in favour of another State to avoid a dispute with
another State .
3 .39 In the face of a total number of at least 230 delimitation
treaties and judgments in force worldwide,110 out of which nine
treaties delimited conflicting OCS claims,111 it strains credulity
to suggest that 31 States,112 while believing that they had a
legitimate source of title to the seabed and subsoil within
108 NR, para . 5 .62 .
109 CCM, Annex 50.
110 As of 2016, see International Maritime Boundaries Vol. VII,
Regional Maps (Region 1, North America, six delimitations; Region 2,
Caribbean Sea 33 delimitations; Region 3, South America, 10 delimitations;
Region 4, Africa, 19 delimitations; Region 5, Central Pacific and East Asia,
44 delimitations; Region 6, Indian ocean, 30 delimitations; Region 7, Persian
Gulf, 14 delimitations; Region 8, Mediterranean Sea, 22 delimitations;
Region 9, Northern Europe, 27 delimitations; Region 10, Baltic Sea,
21 delimitations; Region 11, Caspian Sea, four delimitations) .
111 See footnote 102 supra .
112 CCM, Annex 50.
78
another State’s EEZ, simply relinquished such title in return for nothing . According to Nicaragua, while these States negotiated numerous delimitation treaties with other States,113they relinquished title instead of negotiating another treaty. The States that Nicaragua claims to have willingly relinquished their purported “inherent” OCS rights in another State’s EEZ supposedly in order to avoid a “conflict” with other States, include the United Kingdom, France, Spain, Canada, Japan and Australia .1143 .40As Colombia showed in its Counter-Memorial, 31 States could have claimed an OCS within another State’s EEZ butrefrained from doing so. Only China, the Republic of Korea, Somalia and, of course, Nicaragua, submitted OCS claims which encroached upon another State’s EEZ. These claims have not been recognised and were objected to bythe directly affected States, i .e .,Japan, Yemen, Costa Rica, Panama, Jamaica and Colombia .115113International Maritime Boundaries,Vol. VII, Country-by-Country Index, 5289. E.g. The Russian Federation negotiated 25 maritime delimitation treaties; France 36; the United Kingdom 27; Norway 24; and Australia 14 .114Other States include Iceland, Norway, New Zealand, Denmark, Pakistan, Yemen, Cook Islands, Fiji, Ghana, Micronesia, Papua New Guinea, Solomon Islands, Palau, Côte d’Ivoire, Sri Lanka, Portugal, Tonga, Trinidad and Tobago, Mozambique, Maldives, Tanzania, Gabon, Kiribati, Bahamas and Liberia . SeeCCM, Annex 50.115Permanent Mission of Japan, Communication dated 28 December 2012 to the CLCS, available at: http://www.un.org/Depts/los/clcs_new/submissions_files/chn63_12/jpn_re_chn_28_12_2012 .pdf(last visited 21 Jan. 2019); Permanent Mission of the Republic of Yemen, Communication to the CLCS dated 10 December 2014, available at:http://www.un.org/Depts/los/clcs_new/submissions_files/som74_14/2014_12_10_YEM_NV_UN_001_14.pdf(last visited 21 Jan. 2019).
79
3 .41 The three additional examples presented by Nicaragua in
the Reply are irrelevant. The submission of Bangladesh
followed two judicially-made maritime delimitations . The
Russian submission in respect of the area delimited with
Norway follows a quid pro quo delimitation in which Norway
transferred to Russia the water column rights in the small grey
area created due to their delimitation .As with Australia and
Indonesia,116 when the entire area to be delimited lies within 200
nautical miles of their respective coasts, States may, absent a jus
cogens, create a lex specialis, deviating from established rules
and practices in quid pro quo agreements; they can transfer title
as part of such agreements . In all such cases, conflicting titles in
the entire delimited area were resolved with certain exchanges
between the States .
3 .42 Nicaragua’s third purported example of encroachment of
the EEZ of one State by another State’s OCS claim is found, to
quote Nicaragua, in “Australia’s submission and the CLCS
recommendation concerning Heard and McDonald Islands
[which] indicate that the OCS extends into the 200 M zone of
the Australian Antarctic Territory .”117 The irrelevance of this
example to this case is evident: it involved a single State.
3 .43 The review of CLCS submissions shows that they are
consistent with the legislative history of UNCLOS, doctrine and
116 CCM, paras . 3 .58-3 .59 .
117 NR, para . 5 .61 .
80
practice . As with delimitation treaties, the review of CLCS submissions demonstrates that except for a few excessive claims, States, presented with this choice, did not consider their natural prolongation to be a source of title within another State’s 200-nautical-mile EEZ. As Colombia explained in the Counter-Memorial, and will review below, this principle is confirmed by the legislative history of UNCLOS.(3)THE LEGISLATIVE HISTORY OF UNCLOSSHOWS THAT THE OCSWAS ONLY INTENDED TO ENCROACH UPON THE AREA ANDNOT UPON THE EEZOF ANOTHER STATE3 .44Nicaragua simply asserts that Colombia’s review of the legislative history presents no evidence that the negotiating States considered that the OCS should not encroach upon another State’s EEZ but only upon the Area.118Colombia respectfully refers the Court to Chapter 3 of its Counter-Memorial which provides an extensive analysis of the negotiating history. It shows that the negotiating States never considered this additional grant to wide-shelf States in return for revenue-sharing as a potential source of title within another State’s 200-nautical-mile EEZ, with its attendant continental shelf .119The OCS was intended only to extend to seabed and subsoil that would have otherwise been part of the common heritage of mankind .120118NR, para .5 .40 .119CCM, Chapter 3, Section B .120SeeCCM, Chapter 3, Section B; see alsoUNCLOS III, Vol. II, Summary Records of Meetings of the First, Second and Third Committees, Second Committee, Second Session, 20thMeeting,available at:
81
3 .45 As explained in the Counter-Memorial, the OCS was
considered supplemental to the EEZ; States, including the
United States and the USSR, deemed the OCS to lie beyond the
EEZ.121 The continental shelf within 200 nautical miles was
considered by many to have been absorbed by the EEZ regime
http://legal.un.org/diplomaticconferences/1973_los/ (last visited 21 Jan.
2018) (“Second Committee Meetings”), Ghana, para. 65. (Emphasis added).
See also, UNCLOS III, Official Records, Vol. I – Vol. XVII, Summary
records of meetings of the Plenary, available at:
http://legal.un.org/diplomaticconferences/1973_los/ (last visited 21 Jan.
2019) (“UNCLOS Plenary Meetings”), 127th Plenary Meeting, Yugoslavia,
para .5 (“Turning to the proposed articles 76 and 82, he pointed out that his
delegation, as well as those of the group of Arab States and many other
States, had favoured a 200-mile limit for the continental shelf .Their
willingness to negotiate another limit had not been reciprocated by the broadmargin
States. Proposals to increase the rate of payments or contributions
with respect to the exploitation of the shelf had not been examined. Only if
the international community benefited substantially from the exploitation of
the continental shelf beyond the 200-mile limit could the extension of the
shelf régime be justified. Payments and contributions should be made to the
Authority, and in that context the proposed common heritage fund could play
a useful role serving the interests of all States.”); Id., 116th Plenary Meeting,
Canada, para. 39 (“The Canadian delegation had been the first to propose a
revenue-sharing system which it regarded as an essential element in any overall
compromise on the definition of the outer edge of the continental
margin”).
121 See UNCLOS Documents, Informal Suggestion by the USSR, Part
VI, Article 76, C 2 Informal Meeting/14, 27 April 1978, Vol. V, p. 20. See
also Ibid., United States: draft articles for a chapter on the economic zone and
the continental shelf, UN Doc A/CONF 62/C 2/L 47, Article 22 (2), Vol. V,
pp .165, 167; Ibid., Proposal by Austria, Article 63 bis, Informal Single
Negotiating Text, Part II (“ISNT”), April 28, 1976, Vol. IV, p. 323; Ibid.,
Proposal by the Netherlands, Article 82, Informal Composite Negotiating
Text (“ICNT”), 17 April 1979, Vol. IV, p. 516; Ibid., Proposal by the Federal
Republic of Germany, Article 76 and Annex II, ICNT, Revision 2, 5 August
1980, Vol. IV, p. 527; UNCLOS III, Official Documents, Second Committee
Meetings, 17th Meeting, UN Doc A/CONF 62/C 2/SR 17, para . 3 (Finland);
Ibid., para .32 (Spain); Ibid., 116th Plenary Meeting, UN Doc A/CONF
62/SR 116, para .51 (USSR); Ibid., para .63 (United States) (differentiating
between the regime of scientific research within the EEZ and in the OCS
beyond it); Ibid., 164th Plenary Meeting, UN Doc A/CONF 62/SR 164, para.
158 (Algeria); Ibid., 128th Plenary Meeting, UN Doc A/CONF 62/SR 128,
para. 167 (Kenya).
82
and superfluous;122some proposed to abolish the concept of the continental shelf altogether .123Geological and geomorphological features were thus considered by most States to be irrelevant within 200 nautical miles from the baselines .1243 .46The legislative history demonstrates that the compromise between broad margin and narrow margin States was a quidproquo: any sovereign rights to exploit the resources of the OCS, which would have otherwise been part of the Area, were recognised in return for revenue-sharing and subject to 122CCM, paras . 3 .17-3 .18; see e .g . UNCLOS III, Official Documents, Second Committee Meetings, 17th Meeting, UN Doc A/CONF 62/C 2/SR 17, para . 3 (Finland); Ibid., 28th Plenary Meeting, UN Doc A/CONF 62/SR 28, para . 52 (Congo); Ibid., UN Doc A/CONF 62/SR 35, 35th Plenary Meeting, para. 21 (Switzerland); Ibid., 37th Plenary meeting, UN Doc A/CONF 62/SR 37, para . 56 (Malta); Ibid., 40th Plenary Meeting, UN Doc A/CONF 62/SR 40, para . 28 (Guinea-Bissau) .123CCM, para . 3 .22 .124CCM, para . 3 .19; see Virginia Commentary, Vol. II, pp. 841, 874; UNCLOS Documents, Informal Suggestion by the USSR, Part VI, Article 76, C 2 Informal Meeting/14, 27 April 1978, Vol. V, p. 21; Ibid., Canada, Article 62 (RSNT II), Vol IV, p. 467; Ibid., Spain, Articles 62 and 71 (RSNT II), Vol IV, p. 467; Ibid., Algeria, et al, Articles 62 and 71, Revised Single Negotiating Text (“RSNT”), Revision II, Vol. IV, p. 468; Ibid., Netherlands: draft article on delimitation between States with opposite or adjacent coasts, UN Doc A/CONF 62/C 2/L 14, Vol. V, pp. 133-4; Ibid., Romania: draft articles on delimitation of marine and ocean space between adjacent and opposing neighbouring States and various aspects involved, UN Doc A/CONF 62/C 2/L 18, Vol. V, pp. 138-9;Ibid., Greece: draft articles on the continental shelf, UN Doc A/CONF 62/C 2/L 25, Vol. V, p. 145; Ibid., Japan: revised draft article on the continental shelf, UN Doc A/CONF 62/C 2/L 31/Rev 1, Vol. V, p. 154; Ibid., Greece: draft article on the exclusiveeconomic zone beyond the territorial sea, UN Doc A/CONF 62/C 2/L 32, Vol. V, p. 154; Ibid., Ireland: draft article on delimitation of area of continental shelf between neighbouring States, UN Doc A/CONF 62/C 2/L 43, Vol. V, p. 163; Ibid., France: draft articles on the delimitation of the continental shelf or the exclusive economic zone, UN Doc A/CONF 62/C 2/L 74, Vol. V, p. 181; UNCLOS III, Official Records, Second Committee Meetings, 20th Meeting, UN Doc A/CONF 62/C 2/SR 20, paras . 60-61 (Federal Republic of Germany).
83
validation and review by an independent commission composed
of scientists .125
3 .47 This understanding of the different sources of titles
makes perfect sense. After securing title to maritime zones
which lay 200 nautical miles from the coast, no reasonable
negotiator would have relinquished such title, in favour of widemargin
States, for a fraction of the contingent revenue-sharing
obligation. As Pakistan stated during the negotiations:
“It would (…) be prepared to give sympathetic
consideration to other proposals based on
geomorphological considerations [for the OCS] so
long as they did not cause prejudice to the rights
and jurisdiction of the continental coast states
which the concept of the economic zone or
patrimonial sea sought to establish”.126
3 .48 In summary, as was explained in the Counter-Memorial,
the negotiating history of UNCLOS, shows that the OCS
entitlement was a concession to wide-margin States in return for
revenue sharing . Claiming continental shelf rights, based on
geology and geomorphology, was only recognised by the
Conference in areas which lay beyond 200 nautical miles from
any State and which would otherwise have been part of the
Area .
125 CCM, para . 3 .25 .
126 Second Committee Meetings, 18th Meeting, Pakistan, para .74 .
(Emphasis added)
84
(4)THE PRINCIPLE THAT NATURAL PROLONGATION IS NOT A SOURCE OF TITLE WITHIN 200NAUTICAL MILES FROM ANOTHERSTATE’SBASELINES WAS CONFIRMED BY THECOURTIN LIBYA/MALTA3 .49Nicaragua is correct that Libya/Maltaconcerned an area which lay within 200 nautical miles from the respective coasts. Nicaragua, however, fails to understand the ratio legis of the Court’s decision, or the basic principle it confirmed . 3 .50While Nicaragua makes multiple references to the Court’s statements in the 2012 Judgment, it treads carefully around and fails to quote the 1985 decision in Libya/Malta, to which the Court approvingly refers in the same statements. Nicaragua’s omission is telling, for in Libya/Malta, the Court states, as a principle of law, that within 200 nautical miles from a State’s baselines, geology and geomorphology, the essence of an OCS claim, are no longer a source of legal title:“The Court however considers that since the development of the law enables a State to claim that the continental shelf appertaining to it extends up to as far as 200 miles from its coast, whatever the geological characteristics of the corresponding sea-bed and subsoil, there is no reason to ascribe any role to geological or geophysical factors within that distance either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims . This is especially clear where verification of the validity of title is concerned, since, at least in so far asthose areas are situated at a distance of under 200 miles from the coasts in question, title depends solely on the distance from the coasts of the claimant States of
85
any areas of sea-bed claimed by way of continental
shelf, and the geological or geomorphological
characteristics of those areas are completely
immaterial. It follows that, since the distance
between the coasts of the Parties is less than 400
miles, so that no geophysical feature can lie more
than 200 miles from each coast, the feature
referred to as the ‘rift zone’ cannot constitute a
fundamental discontinuity terminating the
southward extension of the Maltese shelf and the
northward extension of the Libyan as if it were
some natural boundary.”127
The Court then quotes from the North Sea Continental Shelf and
Continental Shelf (Tunisia/Libyan Arab Jamahiriya) cases, and
explains that the regime in which natural prolongation, i.e.,
geology and geomorphology, was a source of title within 200
nautical miles from a State’s baselines, is now a relic of the past:
“However to rely on this jurisprudence would be to
overlook the fact that where such jurisprudence
appears to ascribe a role to geophysical or
geological factors in delimitation, it finds warrant
for doing so in a régime of the title itself which
used to allot those factors a place which now
belongs to the past, in so far as sea-bed areas less
than 200 miles from the coast are concerned.”128
As the Court explained, under the current regime of titles, for
geological and geomorphological features to be relevant in
127 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p. 35, para. 39. (Emphasis added)
128 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p. 36, para. 40. (Emphasis added)
86
respect of legal title, they must “lie more than 200 miles from each coast”.1293 .51Nicaragua fails to present State practice or doctrine which supports its claim that natural prolongation, the foundation of an OCS claim, serves as a sourceof title within 200 nauticalmiles from a State’s baselines . Its failure is understandable . Such a proposition would go against the Court’s dictum quoted above .3 .52While Libya/Malta concerned areas that were within 400 nautical miles from coasts, whether within 200 nautical miles from a State, or beyond that distance as an OCS claim, a State’s natural prolongation is not a source of title within 200 nauticalmiles from another State’s baselines . C.From Grey Areas to Grey “Zones”: The Absence of TitleBased on Natural Prolongation within 200 Nautical Milesfrom Any State’s Baselines Fosters the Orderly Management of Ocean Resources3 .53In its Reply, Nicaragua didnot address the question of grey areas, a matter relevant to its case which Colombia had treated in depth. Nicaragua only claims that grey areas are “legally possible”130and states that:129Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 35, para. 39. (Emphasis added)130NR, para .5 .58 .
87
“Nicaragua does not argue that gray zones [sic]
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.”131
3 .54 The proposition that natural prolongation may serve as a
source of title within another State’s EEZ entails the creation of
a potentially coextensive grey area. But rather than a device
reluctantly resorted to in confined situations, Nicaragua aspires
to create a new type of maritime zone in international law,
which it aptly calls a “gray zone.” The use of the neologism
“gray zone” rather than a “grey area” is telling. Grey areas, as
Colombia explained in the Counter-Memorial, are small
abnormalities created due to extreme geographical constraints;132
what Nicaragua proposes is for the Court to recognise as
legitimate, arrangements which require the creation of largescale
“grey zones”, in which water column rights are arbitrarily
separated from seabed rights, potentially over all of a State’s
EEZ. This is unprecedented and should be rejected.
3 .55 Under the current regime of access to maritime resources
in the area within 200 nautical miles from the coasts in question,
natural prolongation cannot serve as a source of title 13.3
Therefore, within a State’s 200-nautical-mile areas, the
131 NR, para . 5 .59 .
132 CCM, Chapter 3, Section C .
133 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, pp . 35-36, paras . 39-40 .
88
delimitation of maritime entitlements is normally effected through a single delimitation line dividing both the water column and the seabed .134As explained by legal scholarship135and by a Chamber of the Court,136this is a sound policy for the orderly management of maritime resources. 3 .56Grey areas, which are exceptions to the single delimitation line, are created between adjacent States where the criterion of equidistance was abandoned . As Colombia explained in the Counter-Memorial “[i]n State practice, GreyAreas manifest a general pattern: (1) they are a response to geography and not geomorphology; (2) they are created on a small segment of the delimited area; and (3) they are usually responses to the undesirable consequences of the delimitation line that emerges from the application of the law that would normally apply.”137States tend to avoid the creation of greyareas due to the associated management difficulties,138and 134CCM, Chapter 3, Sections C and E.135CCM, Chapter 3, Section E. Seealso T . Cottier, footnote 83 supra,pp . 124-129;D. H. Anderson, footnote 84 supra, p .32; seeL. H. Legault and B. Hankey, footnote 86 supra, pp . 983-988 .136Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984, p . 327, para . 194; see also,Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v .Bahrain), Merits, Judgment, I.C.J. Reports 2001, p . 93, para . 173;Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v .Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p . 440, para . 286; Award in the Arbitration Regarding the Delimitation of the Maritime Boundary between Guyana and Suriname,Award of 17 September 2007, Vol. XXX R.I.A.A 1, para . 334 .137CCM, para . 3 .52 .138CCM, Chapter 3, Section C . See, e .g .,International Maritime BoundariesVol. VII, Norway-Russian Federation, Rep . 9-5 (3), 5181-5182; Ibid.,Vol. VII, Ireland-United Kingdom, Rep . 9-5 (3), 5152, 5153; Ibid.,Vol. II, India-Maldives, Rep . 6-8, 1389, 1391 .
89
scholars have cautioned about their creation . As Judge Anderson
explained:
“There are obvious practical reasons for using the
same line for regulating fisheries, pollution control
and oil and gas operations. The existence of
different boundaries for different purposes results
in a situation of overlapping functional
jurisdictions, which can all too easily lead to
practical problems calling for consistent
monitoring, e.g., through the creation of a bilateral
oversight commission . Such problems are best
avoided by agreeing upon a single, all-purpose
boundary. Some older agreements relating solely to
the continental shelf remain in force, but the new
ones having this limited scope relate to areas
beyond the 200 n.m. limit”.139
3 .57 Soon after the adoption of UNCLOS, in 1985, Leonard
Legault and Blair Hankey stressed that the “creation of a
substantial grey area should be avoided to the greatest extent
possible”.140 But Nicaragua’s proposed alteration of the title
would create exactly that: a grey “zone”.
139 See also D. H. Anderson, footnote 84 supra, p .32; see also
L .H. Legault and B. Hankey, footnote 86 supra, p . 985 (“It does not require
a great deal of imagination to envisage the kinds of problems that would arise
if one state were to have jurisdiction over rich hydrocarbon resources in the
continental shelf, while another state had jurisdiction over valuable fishery
resources in the superjacent waters . The domestic litigation in the late 1970s
and early 1980s over oil and gas lease sales on the United States continental
shelf, in areas such as Georges Bank, illustrates the conflict of interests
between oil and gas exploitation, on the one hand, and fisheries and
environmental concerns, on the other. Such unavoidable conflicts are likely
to be greatly exacerbated if both divergent political interests and separate
sovereign powers are allowed to compete in the same geographical space.”).
140 L .H. Legault and B. Hankey, footnote 86 supra, p . 988 .
90
3 .58 Nicaragua’s purported alternative regime would result in
the creation of large-scale grey areas, in effect “grey zones”, in
which the seabed and water column rights would be severed,
with only the latter going to the EEZ State. Wholly apart from
the absolute lack of legal support and its inherent lack of equity,
such a proposition has dire implications for the orderly
management of ocean resources .If Nicaragua’s claim were to be
accepted, the “grey zone” would comprise the entire area
claimed by Nicaragua in the present proceedings. Moreover, it
would be almost 35 times larger than the grey area created in the
Bay of Bengal and would be the largest and most unmanageable
grey area ever created.
Source: Nicaragua’s Reply, Figure 7.1. Figure CR 3.4
FINAL DELIMITATION AS CLAIMED
BY NICARAGUA IN ITS REPLY
Annotated Version
“Gray Zone”
91
As the Court can see, the grey zone which Nicaragua purports to
create encompasses most of the Southwestern Caribbean Sea
and is larger than the land territory of Lebanon, the Netherlands
and Jamaica combined.
3 .59 The creation of the small grey areas in the Bay of Bengal
was criticised by scholars, and echoed the warning that Legault
and Hankey had sounded, that the “creation of a substantial grey
area should be avoided to the greatest extent possible”.141 The
problems anticipated by scholars, which provoked their
warnings, pale in the face of the problems to be associated with
these grey zones which Nicaragua asks the Court to create.
3 .60 As evident from Colombia’s review of State practice, at
least 34 delimitation treaties and 36 CLCS submissions, from 31
States, were based on the principle that natural prolongation is
not a source of title within the 200-nautical-mile entitlements,
measured from any State’s baselines. If the Court were to
reverse the law and conclude that natural prolongation may in
fact be the source of title within the 200-nautical-mile
entitlements measured from a State’s baselines, as Nicaragua
proposes, it will put in question the foundation of these
delimitations and submissions . An alteration of the regime of
titles would thus precipitate new claims, disputes, submissions
and hugely complex delimitations.
141 L. H. Legault and B. Hankey, footnote 86 supra, p . 988 .
92
To claim now, as Nicaragua does, that simply because the coasts are 401 or more nautical miles apart, the old regime is to be resurrected and retrofitted all the way back to the baselines from which the other State’s EEZ is measured, and natural prolongation is to be restored pro hac viceas a source of title there, is extraordinary. If accepted, it would undermine the foundation of the established public order .It will create a huge grey zone in which the continental shelf otherwise appurtenant to the EEZ is carved out and assigned to Nicaragua . To use the exampleabove,this is the difference between the existing global order and Nicaragua’s proposed alteration:
93
STATE A’s EEZ200MSTATE B’s EEZ125.5MSTATE B’s200M EEZSTATE A’s200M EEZSTATE B’sWater Column74.5MSTATE A’sSeabed 75.5MSTATE A’sOuter Continental Shelf(1M)STATE ASTATE BSTATE ASTATE BHigh Seas(1M)401M401M350M25MSTATEB’scont.shelfSTATE A’scontinentalshelf350M25MSTATEB’scont.shelfSTATE A’scontinentalshelfFigure CR 3.5NICARAGUA’S EXPANSIONISTGLOBAL ORDER(Figure CR 3.2)EXISTING GLOBAL ORDER BASED ONLIBYA/MALTAHigh Seas(1M)“Gray Zone”(74.5M)
94
3 .61These examples illustrate two things. First, the reasons why the principle thatnatural prolongation, upon which an OCS claim is based, is not a source of title within 200 nautical miles from another State’s baselines. Second, the reasons why the regime evidenced by the legislative history and State practiceis such a sound foundation for the public order in the oceans . It also shows that if the OCS had been intended to encroach upon other States’ 200-nautical-mile EEZ with its attendant continental shelf, narrow margin States would have objected during the negotiations .3 .62Nicaragua isfrustrated that its alleged and yet unconfirmed natural prolongation is not a source of title within 200 nauticalmiles from Colombia’s baselines and asks the Court to alter the sources of title, because the current regime is “extreme”. There is nothing extreme in the established legal order. There is nothing extreme in the proposition that each State is entitled to utilise the resources which lie within 200nauticalmiles from its coasts regardless of geology and geomorphology. There is nothing extreme inthe State practice which respects the right of all States to a 200-nautical-mile EEZ andcontinental shelf,confiningOCS claims to the Area. What is extreme is Nicaragua’s radical claim to resurrect natural prolongation as a source of title in “sea-bed areas less than 200miles from the coast” and tohave the Courtsanction vast grey zones in international law.
95
D. Conclusions
3 .63 In this Chapter, Colombia has shown that the OCS
regime may not encroach upon another State’s 200-nautical-mile
entitlement to an EEZ, with its attendant continental shelf.
3 .64 Within 200 nautical miles, all maritime entitlements are
based solely upon distance. Beyond 200 nautical miles from any
coast, in areas that would have otherwise been part of the Area,
a State Party to UNCLOS may claim entitlement to submarine
areas based on geology and geomorphology, i.e., an OCS claim,
in return for revenue-sharing and subject to strict scientific and
technical validation by a body established by the Convention,
and constituted by experts, based on equitable geographical
representation .
3 .65 Natural prolongation, i.e., geology and geomorphology,
does not serve as a source of title in another State’s EEZ and
continental shelf, i .e ., within 200 nautical miles of that other
State . This is evident from the legislative history of UNCLOS
and has been recognised by the Court in Libya/Malta. State
practice clearly demonstrates that geology and geomorphology
are not a source of title within the 200-nautical-mile entitlements
of another State and hence an OCS claim may not encroach
upon another States’ entitlements . This understanding is
reflected in both delimitation practice and CLCS submissions .
96
3 .66Nicaragua’s purported alteration of this legal position, in which natural prolongation springs back as a source of legal title throughout the entire area, finds no support in legislative history, practice, doctrine or jurisprudence . If accepted, it would destabilise the Law of theSea, creating large scale “grey zones” in which the water column and the seabed rights would be severed .3 .67Colombia submits that the Court should reject Nicaragua’s effort to change the settled law and reaffirm the principle that geology and geomorphology are not a source of title within the ipso jure EEZand inner continental shelf, i .e ., within 200 nautical miles measured from thecoast . The Court should confirm that an alleged OCS claim may neverencroach upon another State’s 200-nautical-mile entitlements .Accordingly, since Nicaragua’s entire claim of title within Colombia’s EEZand continental shelfis founded upon purported geological and geomorphological assertions, the Court should reject Nicaragua’s claim in its entirety.
97
Chapter 4
THE 200-NAUTICAL-MILE ENTITLEMENTS
OF COLOMBIA’S ISLANDS
A. Introduction
4 .1 Colombia takes note of the fact that Nicaragua
acknowledges in its Reply that the islands of San Andrés,
Providencia and Santa Catalina generate entitlements to an EEZ
and its attendant continental shelf .142
4 .2 However, as is apparent from Figure 4.4 of the Reply,143
Nicaragua contends that these islands’ entitlements are limited
beyond Nicaragua’s 200 nautical miles by horizontal lines
prolonging to the east the lines drawn by the Court in its 2012
Judgment. This position is presented by Nicaragua in its Reply
prior to its final delimitation claim, in which it asks the Court to
fully enclose the islands. This would have the practical effect of
completely cutting off San Andrés, Providencia and Santa
Catalina from their entitlements to the northeast and southeast .
4 .3 This is contrary to what the Court ruled in 2012 . On that
occasion it found that these islands generate an entitlement
which “is capable of extending up to 200 nautical miles in each
direction”.144 The Court also recognised that “to the east the
142 NR, para . 4 .1 .
143 NR, p . 157 .
144 2012 Judgment, pp. 686-688, para . 168 .
98
maritime entitlement of the three islands extends to an area which lies beyond a line 200 nautical miles from the Nicaraguan baselines and thus falls outside the relevant area as defined by the Court”145and ruled that the islands “should not be cut off from their entitlement to an exclusive economic zone and continental shelf to their east, includingin that area which is within 200 nautical miles of their coasts but beyond 200 nautical miles from the Nicaraguan baselines.”1464 .4As a consequence, theentitlements of San Andrés, Providencia and Santa Catalina go beyond 200 nautical miles from the Nicaraguan baselinesand cannot be cut-off .Their coasts continue to radiate an EEZ and continental shelf entitlement in alldirections, as recognised by the Court.147These islands’ entitlements extend to their full 200 nauticalmiles, as shown in the following Figure .1481452012 Judgment, pp. 686-688, para . 168 .1462012 Judgment, p. 716, para. 244. (Emphasis added)1472012 Judgment, p. 716, para. 244.148See also CCM, Figure 4 .3, p . 172 .
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JOINT REGIMEAREA(Colombia / Jamaica)Costa RicaPanamaColombiaPanamaHonNicJamaicaCol.Dom. Rep.Col.HaitiCol.NicaraguaCosta RicaCaribbeanSeaPedro BankSouthwestRocksSan Andrés I.LittleCorn I.GreatCorn I.Santa Catalina I.QuitasueñoCay Providencia I.RoncadorCayESE CaysAlburquerque CaysGorda I.Cajones Is.Swan I.Morant CaysBajo Nuevo CaySerranilla CayMiskitosCaysEdinburghReefSerranaCayNICARAGUACOSTA RICAPANAMAHONDURASJAMAICAHAITICOLOMBIA18°N14°N10°N18°N14°N10°N6°N76°W 80°W 84°W 76°W 200M fromNicaragua’s baselinesNicaragua’s finaldelimitation claimLine from the ICJJudgment of 2012Col.Col.1ABC23456798200M from San Andrés,Providencia and Santa Catalina0150200100500100200300400Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 12°N)Prepared by: International MappingSAN ANDRÉS, PROVIDENCIA ANDSANTA CATALINA’S 200 M ENTITLEMENTSIN THE FINAL DELIMITATIONAS CLAIMED BY NICARAGUA IN ITS REPLYFigure CR 4.1
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4 .5Evenif Nicaragua could demonstrate to the Court that its natural prolongation extends uninterrupted east of the 200-nautical-mile limit from its mainland coast –which it has not, and cannot do (see Chapter 6 below)–such natural prolongation, an OCS claim,may not serve as a source of title within San Andrés, Providencia and Santa Catalina’s EEZ and its attendant continental shelf .149With no competing source of title, the islands are entitled to their full 200 nauticalmileseast of Nicaragua’s 200-nautical-mile line . 4 .6The same holds true further east of San Andrés, Providencia and Santa Catalina’s 200-nautical-mile limit, where any potential Nicaraguan claim to an OCS cannot encroach upon other Colombian islands’ EEZs and their attendant continental shelves . But even absent these other islands’ entitlements, Nicaragua’s claim would fail because its OCS cannot “leapfrog” over or “tunnel” underthe San Andrés, Providencia and Santa Catalina’s EEZ and attendant continental shelf,150which limits any potential Nicaraguan projection eastward of its 200-nautical-mile limit. Nicaragua has accepted that “leapfrogging” or “tunnelling” underentitlements is impermissible under international law .1514 .7It follows that absententitlements of Nicaraguaeast of its 200-nautical-mile limit, there is no overlap with Colombia’s entitlements and therefore nodelimitation needs to be carried 149CCM, Chapter 3 and Chapter 3 to this Rejoinder .150CCM, Chapter 5 .151NR, para . 4 .108 .
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out in this area . Moreover, since Nicaragua’s 200-nautical-mile
limit marks the eastern limit of its maritime entitlements, which
cannot continue eastwards because of the entitlements of San
Andrés, Providencia and Santa Catalina, there is no need for the
Court to consider the extent of any entitlement of Colombia’s
other islands .
4 .8 Nicaragua tries to escape these inevitable conclusions by
contending that the islands of San Andrés, Providencia and
Santa Catalina “have already been attributed extensive maritime
areas in the 2012 Judgment”152 (B) . Nicaragua also contends that
“Roncador, Serrana, Serranilla and Bajo Nuevo are ‘rocks’
within the meaning of the customary law”153 (C) . Colombia will
respond to these baseless contentions in turn .
B. The Entitlement of San Andrés, Providencia and Santa
Catalina to an EEZ and Attendant Continental Shelf
4 .9 In the Section of its Reply devoted to the maritime
entitlements of San Andrés, Providencia and Santa Catalina,
Nicaragua purports to sum up Colombia’s Counter-Memorial in
a few misleading lines,154 then presents irrelevant arguments
regarding Nicaragua’s claim for a delimitation in Colombia’s
EEZ adjacent to its mainland coast,155 and finally asserts that it
“considers” that “the delimitation should not ‘accord’ the islands
152 NR, para . 4 .2 .
153 NR, para . 4 .3 .
154 NR, para . 4 .5 .
155 NR, para . 4 .7 .
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of San Andres and Providencia a continental shelf beyond Nicaragua’s 200 M limit .”156Thesecontentionsare baseless . 4 .10As explained above, the Court has already recognised thefullentitlements of theseislands to the east .As a consequence, there is no delimitation to entertain east of Nicaragua’s 200-nautical-mile limit . 4 .11Moreover, Nicaragua’s only arguments in support of its claim are that, quoting the Court out of context, Colombia’s islands are “small islands which are many nautical miles apart”,157and that the ratio between the east-facing coasts of Colombia and Nicaragua in the area east of Nicaragua’s 200 nautical miles is in favour of Nicaragua .158But even if Nicaragua could prove a potential OCS entitlement, there would be no basis in international law to limit the entitlements of Colombia’s islands to an EEZ and its attendant continental shelf .4 .12First, Nicaragua’s 200-nautical-mile limit is of no consequence at all to the entitlements of Colombia’s islands . There is no basis for Nicaragua to claim that itslimit is to be applied to the entitlements of Colombia’s islands and become also a limit to their entitlements to the east .159156NR, para . 4 .8 .157NR, para. 4.9. Yet, it is worth noting that by 2015 the Archipelago Department of San Andrés, Providencia and Santa Catalina had approximately 76.442 inhabitants.158NR, para . 4 .10 .159Nicaragua further asserts that the Court has “drawn” a “line” 200nautical miles from Nicaragua’s coast (NR, para . 4 .11) as if the Court had intended to fix a limit to Colombia’s entitlements east of this line. This is
103
4 .13 Second, Nicaragua ignores the words of the Court in its
2012 Judgment, recalled by Colombia in its Counter-
Memorial160 and above . The Court stated that:
“(…) San Andrés, Providencia and Santa Catalina
should not be cut off from their entitlement to an
exclusive economic zone and continental shelf to
their east, including in that area which is within
200 nautical miles of their coasts but beyond 200
nautical miles from the Nicaraguan baselines.”161
4 .14 As held by the Court in 2012, San Andrés, Providencia
and Santa Catalina should not be “cut off” from their
entitlements east of Nicaragua’s 200-nautical-mile limit .That
Nicaragua now “considers” that this should be the case is not an
argument the Court should entertain . In asserting that the islands
should not be accorded title east of Nicaragua’s 200-nauticalmile
range and thus limiting their entitlement, Nicaragua asks
the Court to contradict its prior decision .
4 .15 In sum, San Andrés, Providencia and Santa Catalina
project their entitlements as far as 200 nautical miles from their
baselines, in all directions; their entitlement in this area was not,
and cannot, be confined by invoking a delimitation performed in
another area. Thus, Colombia’s EEZ and continental shelf
erroneous: the Court did not “draw” a line, but simply represented the 200-
nautical-mile limit from Nicaragua’s coast as the eastern limit of the relevant
area, which it found that could be determined “only on an approximate
basis”. See 2012 Judgment, p. 683, para. 159 and sketch-map No . 7, p . 687 .
160 CCM, para . 4 .14 .
161 2012 Judgment, p. 716, para. 244.
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extendseast of Nicaragua’s 200-nautical-mileandreachthe 200-nautical-mile limit from San Andrés, Providencia and Santa Catalina. Even if Nicaragua could prove a natural prolongation which extendsuninterrupted beyond 200 nautical miles from its baselines (quod non),it could not claim any right in this area because the islands’ 200-nautical-mile entitlements prevail over any OCS claim. Moreover, the Court has already decided that the entitlements of Colombia’s islands to the east should not be cut-off. Therefore, Nicaragua cannot claim any right to areas beyond 200 nautical miles from its baselines and within the EEZ and attendant continental shelf of San Andrés, Providencia and Santa Catalina, andmay neither “leapfrog” over nor “tunnel” under their EEZ to claim an OCS beyond .C.The Full Entitlements of the Northern Islands of the San Andrés Archipelago4 .16Turning to the islands of Roncador, Serrana, Serranilla, and BajoNuevo, the legal question discussed by the Parties so far is whether under customary international law theygenerate an entitlement to an EEZ with its attendant continental shelf. The discussion has focused on the rule of customary international law reflected in Article 121(3) of UNCLOS . 4 .17Colombia submits that the Court does not have to address it because, as explained above, Nicaragua’s natural prolongation cannot, even if proven (quod non), serve as a source of title beyond Nicaragua’s 200 nautical-mile limit, into
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the EEZ and attendant continental shelf of San Andrés,
Providencia and Santa Catalina, nor “leapfrog” over or “tunnel”
under it. However, since in its Reply Nicaragua continues to
insist on this question, Colombia will further address it in the
present section .
4 .18 In its Counter-Memorial, Colombia recalled that in the
2012 Judgment, the Court for the first time considered that
Article 121 (3) of UNCLOS reflected a customary international
law rule 1.62 Colombia also acknowledged that it was common
ground that where sufficient State practice and opinio juris exist,
a treaty provision can reflect customary international law.163
Colombia further explained that the interpretation of this
customary law rule is to be demonstrated primarily by reference
to State practice 16.4 Assessing the said practice in detail,
Colombia demonstrated that under customary international law:
(i) the ordinary meaning of the term “rock” is different from
the term “island” and is interpreted as referring to
features composed of solid rock; and
(ii) the criterion that a rock can sustain human habitation or
economic life of its own has not been applied by States
with the extremely high threshold Nicaragua suggests .
162 CCM, para . 4 .25 .
163 CCM, para .4 2. 6 .See also Chapter 2 to this Rejoinder and the ILC
2018 Conclusions on Identification of Customary International Law.
164 CCM, para . 4 .26 .
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Colombia fully maintains these conclusions, and will add further illustration of their accuracy below, with additional State practice .165Colombia has proven in the Counter-Memorial and will reiterate below, that Roncador, Serrana, Serranilla, and Bajo Nuevo are entitled to an EEZ with its attendant continental shelf .4 .19On this question, Nicaragua distorts Colombia’s position by suggesting that Colombia denies that the Court has held that Article 121(3) reflects customary international law.166Colombia’s Counter-Memorial clearly statesthe contrary.167Nicaragua confuses interpretationof this customary international law rule, which is what Colombia discussed, with disputingthe existence of this rule, which Colombia did not do. In this regard, the title of Chapter IV, Section B (1)(b) ofNicaragua’s Reply (“State practice has not led to a divergence between conventional and customary international law”) is misconceived, because the point in discussion between the Parties is not whether there is a divergence between the rules of conventional and customary international law, but is about the correct interpretationof the customary international law rule reflected in Article 121(3) of UNCLOS .168165See sub-section (d) infraand Appendix 2: Additional Examples of State Practice on the Entitlements of Islands. In this Appendix, Colombia presents 11 additional examples of State practice of islands from the United Kingdom, France, Argentina, Brazil, South Africa and the United States, which have been recognised full maritime entitlements .166NR, paras . 4 .17-4 .18 .167CCM, para. 4.25 (“In its 2012 Judgment, the Court affirmed the customary law status of Article 121 (3).”)168According to the Court, “[r]ules which are identical in treaty law and in customary international law are also distinguishable by reference to the methods of interpretation and application.”, Military and Paramilitary
107
4 .20 Colombia’s response will not follow the confusing
outline of Nicaragua’s Reply, but concentrates on the rule of
customary international law and its application to the facts.
Colombia will first discuss Nicaragua’s arguments regarding the
legal definition of “rocks which cannot sustain human habitation
or economic life of their own” (1), and then will rebut
Nicaragua’s erroneous characterization of Colombia’s islands
(2) .
(1) THE NOTION OF “ROCKS WHICH CANNOT SUSTAIN HUMAN
HABITATION OR ECONOMIC LIFE OF THEIR OWN”
4 .21 As for the interpretation of the notion of “rocks which
cannot sustain human habitation or economic life of their own”,
the Parties disagree on all aspects, namely on the meaning of the
term “rocks” (a), on the meaning of “which cannot sustain
human habitation or economic life of their own” (b), on the case
law (c), and on State practice (d) .Colombia will address these
issues in turn .
(a) The term “rocks”
4 .22 In its Counter-Memorial, Colombia demonstrated that
under customary international law “rock” refers to “a feature
made solely of solid rock”, based, first, on the customary rules
of treaty interpretation, taking into account the ordinary meaning
Activities in and against Nicaragua (Nicaragua v .United States of America) .
Merits, Judgment, I.C.J. Reports 1986, p . 95, para . 178 .
108
of the term “rocks” (“rochers” in French, “rocas” in Spanish), as well as the context which demonstrate that “rocks” is not synonymous with “island” but means a peculiar kind of island characterised by the very word “rocks”. 4 .23Colombia also showed that the travauxpréparatoiresof UNCLOS clearly point to the fact that the negotiating States did not agree on a broad extension of the exception contained in Article 121(3) and knowinglydecided to use the term “rocks”, which has an ordinary geological meaning, precisely to limit the exception to the general rule .1694 .24Since none of the islands discussed by Colombia in its Counter-Memorial meet the criteria of “rocks” under UNCLOS, Colombia concluded that, even relying solely on UNCLOS as correctly interpreted, none of the islands relevant to these proceedings are rocks within the meaning of Article 121(3) .4 .25In its Reply, Nicaragua denies any significance to the term “rocks”. It asserts that Roncador,Serrana, Serranilla and Bajo Nuevo are sand and coral features, made of “a mass of tiny,weathered rocks”,170and that “[f]or Colombia to prevail on its argument that Serrana, Roncador, Serranilla and Bajo Nuevo are not ‘rocks’it would have to convince the Court that 169CCM, paras . 4 .39-4.40 and generally paras. 4.19-4 .109 . See also S . Talmon, “Article 121. Regime of islands”,inA . Proelss,United Nations Convention on the Law of the Sea. A Commentary,Munich, C.H. Beck / Hart / Nomos, 2017, pp . 862 and 868-872 (available at the Peace Palace Library) .170NR, para . 4 .50 .
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pulverised rock is not rock . Nicaragua considers Colombia’s
argument absurd on its face”.171
4 .26 What is “absurd on its face” is to suggest, as Nicaragua
does, that the ordinary meaning of the term “rocks” in Article
121 (3) includes grains of sand in the beach .Likewise, as
recalled by Colombia in its Counter-Memorial, “rocks” in
Article 121 (3) reads, in the French authentic text of UNCLOS
“[l]es rochers”. As in English, the ordinary meaning of “les
rochers” (rocks) cannot be assimilated to “du sable et des débris
de corail” (sand and coral debris) .172
4 .27 Nicaragua argues that the Court took this position in its
2012 Judgment.173 But Nicaragua has not been able to contradict
Colombia’s demonstration in its Counter-Memorial that what
the Court concluded in 2012 regarding Quitasueño (including
QS 32) is that it qualifies as a “rock” .The Court noted that it is
“composed of solid material, attached to the substrate, and not
of loose debris” .174 Colombia further explained that this “solid
material, attached to the substrate, and not loose debris”, is
undoubtedly a category of rocks, in the geological sense.175
171 NR, para . 4 .51 .
172 The Dictionnaire de l’Académie française defines “rocher” as:
“Bloc de pierre brute, généralement abrupt et isolé, de taille variable”. In
Spanish, the Diccionario de la Real Academia Española defines “roca” as
“Piedra, o vena de ella, muy dura y sólida” o r “ Material sólido de origen
natural formado por una asociación de minerales o por uno solo, que
constituye una parte importante de la corteza terrestre”. In Russian, “скала”
designates a bloc of hard rock as well .
173 NR, para . 4 .50 .
174 2012 Judgment, p. 645, para. 37 .
175 CCM, para . 4 .51 .
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Thus, if the words of the Court confirm anything, it is the exact opposite of what Nicaragua asserts .1764 .28Nicaragua refers to the controversial arbitral award177in the South China Seacase which deprived the term “rock”from any particular meaning .Nicaragua tries to justify the Arbitral Tribunal’s finding by stating that it “placed principal reliance on the Court’s own 2012 Judgment”.178Thus, according to Nicaragua, the Arbitral Tribunal applied the Court’s own view . Butthe Tribunal erred in its interpretation of the 2012 Judgment, 176CCM, para . 4 .51 .177See, e.g., M. H. Nordquist and W. G. Phalen, “Interpretation of UNCLOS Article 121 and Itu Aba (Taiping) in the South China Sea Arbitration Award” in M. H. Nordquist, J. N. Moore and R. Long (eds.), International Marine Economy: Law and Policy, Leiden, Martinus Nijhoff, 2017 (available at the PeacePalace Library); A. G. Oude Elferink, “The South China Sea Arbitration’s Interpretation of Article 121 (3) of the LOSC: A Disquieting First, The JCLOS Blog, available at: http://site.uit.no/jclos/files/2016/09/The-South-China-Sea-Arbitrations-Interpretation-of-Article-1213-of-the-LOSC-A-Disquieting-First .pdf(last visited: 21 Jan. 2019); J. Mossop, “The South China Sea Arbitration and New Zealand’s Maritime Claims”, New Zealand Journal of Public and International Law, Vol. 15, No. 2, 2017 (available at the Peace Palace Library); J. A. Roach, “Rocks versus islands: implications for protection of the marine environment” in S. Jayakumar, Tommy Koh et al (eds .), The South China Sea Arbitration: The Legal Dimension, Edward Elgar Publishing, 2018 (available at the Peace Palace Library); P. Gewirtz, Limits of Law in the South China Sea, Brookings Institution, 2016, available at: https://www.brookings.edu/wp-content/uploads/2016/07/Limits-of-Law-in-the-South-China-Sea-2 .pdf(last visited: 21 Jan. 2019); S . Talmon, footnote 169supra;J. Wang, “Legitimacy, Jurisdiction and Merits in the South China Sea Arbitration: Chinese Perspectives and International Law”, Journal of Chinese Political Science, Vol. 22, No. 2, 2017 (available at the Peace Palace Library); C. Whomersley, “The Award on the Merits in the Case Brought by the Philippines against China Relating to the South China Sea: A Critique”, Chinese Journal of International Law,Vol. 16, No. 3, 2017 (available at the Peace Palace Library); Chinese Society of International Law, “The South China Sea Arbitration Awards: A Critical Study”, Chinese Journal of International Law, Vol. 17, No. 2, 2018 (available at the Peace Palace Library).178NR, para . 4 .46 .
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since the latter supports the opposite view to that taken by the
Arbitral Tribunal . The South China Sea award, therefore, cannot
be regarded as a useful precedent .
4 .29 Nicaragua contends that interpreting the term “rocks” as
referring to features made solely of solid rock would be
inconsistent with the object and purpose of Article 121 (3) of
UNCLOS. But to the contrary, giving the term “rocks” its
ordinary meaning meets the object and purpose of Article 121
(3), which was to avoid States claiming full entitlements for
small rocky features, save when they can sustain human
habitation or economic life of their own . Colombia’s
interpretation meets this object and purpose, since it does
effectively limit the extent of claimed entitlements as shown by
the examples of Quitasueño, Rocas Alijos,179 Rockall,180 or
Kolbeinsey.181
4 .30 Nicaragua’s interpretation would use the second element,
namely the requirement on the capacity to “sustain human
habitation or economic life of their own”, to define the term
“rocks”. Such an exercise, however, equates the term “island”
with the term “rock”, undermining the clear intention of the
drafters to use the distinct term “rocks”. Interpreting a treaty
provision by depriving of any meaning a key element,
intentionally distinguished by the drafters, cannot be consistent
179 CCM, para . 4 .62 .
180 CCM, para . 4 .65 .
181 See para . 4 .63 infra .
112
with a “good faith” interpretation, as prescribed by Article 31 of the Vienna Convention on the Lawof Treaties . 4 .31The term “rocks” must indeed have a meaning distinct from “islands”; defining it by only using the second element would have the same meaning as if the provision read “Islandswhich cannot sustain human habitation or economic life of their own(…)” .The negotiating States, however, clearly intended the term “rocks” to have a meaning distinct from the term “island”. 4 .32In any event, the correct interpretation of the term “rocks”, is only half of the criteria that must be met for islands to be deprived of their entitlements to an EEZ and attendant continental shelf . The other half, to which Colombia will turn below, is that rocks “cannot sustain human habitationor economic life of their own”.(b)The meaning of “which cannot sustain human habitation or economic life of their own”4 .33Nicaragua gives a misleading title to the discussion of this topic: “Sustaining human habitation and economic life of their own” .182Article 121(3) uses the conjunction “or” not “and”;Nicaragua reiterates this mistake throughout the Reply.1834 .34Nicaragua further contends that the term “which cannot sustain human habitation or economic life of their own” “results 182NR, p . 129, Sub-section (3) .183See, e .g ., NR, paras . 4 .4, 4 .36, 4 .85 and 4 .103 .
113
in an unambiguous understanding”.184 Such position stands in
sharp contrast with virtually all the scholarship on the issue.185
To recall just one example, Churchill and Lowe, the latter
having acted as Counsel for Nicaragua, insist on the subjectivity
of the rule, its vagueness and its poor drafting .186
4 .35 Colombia’s view on the law is fully set out in its
Counter-Memorial. It is that since the term “which cannot
sustain human habitation or economic life of their own” is
unclear, and since the only applicable rule in the present case
emanates from customary international law, reference must be
made to State practice 1.87 Colombia has already presented the
relevant State practice,188 and sets out further practice below .189
Nicaragua’s Reply is silent on this point. Thus, Colombia
maintains its position and will not rebut in detail the purported
“unambiguous understanding” provided by Nicaragua,190 which
is devoid of any support.191
184 NR, para . 4 .82 .
185 CCM, para . 4 .30 .
186 CCM, para . 4 .30 . See also CCM, paras . 4 .101-4 .106 .
187 CCM, para . 4 .113 .
188 CCM, paras . 4 .113-4 .125 .
189 See sub-section (d) infra and Appendix 2 to this Rejoinder.
190 NR, paras . 4 .83-4 .104 .
191 Colombia notes for example that in seeking support for its
interpretation of the terms “rocks… [which can] sustain human habitation” as
meaning that the “rock” must provide, in and by itself, the capacity for
human beings to live almost in an autarkical way, Nicaragua acknowledges
that in the French version of the Convention the corresponding word for
“sustain” is “se prêter à”, and concludes that this confirms its interpretation.
But, to the contrary, saying that an area “se prête à l’habitation humaine”
means that this area is suitable for human habitation, or that it is possible to
have human habitation there, certainly not that the area can provide all
services, like food, water, building material, etc., necessary for human life
and development .
114
4 .36Nicaragua asserts that “the feature’s capacity to ‘sustain’ human habitation and economic life must be determined by reference to its natural conditions”,192so that it would not be acceptable 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 asource of fresh water”.1934 .37This is a distorted interpretation . In the case of Roncador, Serrana and Serranilla fresh water is availableevenwithout a desalinization plant .194Moreover, Nicaragua’s argument is solely based on its own peculiar interpretation of Article 121 according to which since an island is a “naturally formed” area of land, and since “‘rocks’ are a sub-category of islands”, then “[t]he ‘naturally formed’ criterion thusapplies equally to rocks, and dictates that a feature’s capacity to ‘sustain’ human habitation and economic life must be determined by its natural conditions.”195This is a nonsequitur:the fact that a “rock” is a “natural” feature is relevant to characterise it as an island under Article 121, but it is not relevant for interpreting the notion of “which cannot sustain human habitation (…)”. It is not disputed that all Colombian islands are naturally formed.192NR, para . 4 .85 .193NR, para . 4 .86 .194CCM, paras . 4 .154, 4 .162 and Figure 4 .54 .195NR, para . 4 .85 .4
115
4 .38 Nicaragua’s confusion derives notably from its error in
reading Article 121 (3) as saying “which cannot sustain human
habitation and economic life of their own”. The paragraph
actually reads “which cannot sustain human habitation or
economic life of their own”. Thus, the conditions are alternative,
not cumulative .
4 .39 The words “of their own”, which Nicaragua erroneously
associates with “which cannot sustain human habitation”, only
qualify the economic life that rocks may or may not be capable
of sustaining . The distinction between the two concepts
separated by “or” is even clearer in the French version, which
reads: “Les rochers qui ne se prêtent pas à l'habitation humaine
ou à une vie économique propre” .The term “propre”, which
corresponds to “of their own”, refers to “vie économique”, not
to “l’habitation humaine”, since (as in English) it would be
meaningless to speak about “l’habitation humaine propre” .
4 .40 Thus, Nicaragua’s interpretation of the notion of “sustain
human habitation”, which would mean that the feature should be
able to provide, in and of itself, all the services needed for
human beings to live there, is meritless .
116
(c)Caselaw4 .41The Court’s case law supports Colombia’s view, as explained in the Counter-Memorial .196Nicaragua’s position in this regard is not convincing .4 .42Nicaragua denies any significance to the fact that the Court qualified the Maltese island of Filfla as an “uninhabited rock”197and argues that “the Court did not consider Filfla’s status under Article 121(3)”.198But Nicaragua cannot deny that (i) Filfla is an undisputable “rock”, made of solid rock, (ii) the Court expressly said that it was a “rock”, and (iii) apart from Quitasueño, Filfla is the onlymaritime feature that the Court has qualified as a “rock”. 4 .43By contrast, in the Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v . Bahrain), the Court qualified Qit’at Jaradahas a “very small island”,199not as a “rock” or as an “uninhabited rock”. The Court’s spontaneous description of maritime features, consistent with the ordinary meaning of terms, confirms Colombia’s view on the interpretation of the term “rocks”.196CCM, paras . 4 .43-4 .45 .197Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p . 20, para . 15 . 198NR, para . 4 .72 .199Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, I.C.J. Reports 2001, p . 99, para . 197 .
117
4 .44 Nicaragua also fails to convince when it seeks to argue
that the Court did not mean what it said in the North Sea
Continental Shelf cases, when it referred to “islets, rocks and
minor coastal projections” (“des îlots, des rochers, ou des légers
saillants de la côte”).200 The Court thus distinguished between
“islets” and “rocks”. When the Court mentions “rocks”
(“rochers”), it means what it says, namely solid rocks, to be
distinguished from “islets”, that are tiny islands not consisting
solely of rock.
4 .45 Nicaragua misunderstands the judgment in the Volga
(Russian Federation v .Australia) case before ITLOS,201 which
was explained in detail in Colombia’s Counter-Memorial .202 In
this case, contrary to what Nicaragua asserts, the Tribunal
accepted that Heard Island and the McDonald Islands, which
manifestly cannot sustain human habitation or economic life of
their own, but are not rocky features, were entitled to an EEZ.
This confirms that, according to ITLOS, Article 121 (3) applies
to an island only if the two cumulative conditions are met: one
positive (that the island is a rocky feature) and the other negative
(that it cannot sustain human habitation or economic life of its
own) . If one of these two conditions is not met, the feature is a
full-fledged island .
4 .46 Finally, the South China Sea Arbitration award (which
Oude Elferink, who has acted as Counsel for Nicaragua,
200 NR, para . 4 .71 .
201 NR, para . 4 .69 .
202 CCM, paras . 4 .41-4 .42 .
118
considers“disquieting”)203must be mentioned since Nicaragua’s arguments repeat almost verbatimthe “significantly flawed”204reasoning of that tribunal . 4 .47For example, Nicaragua proposes a textual analysis of Article 121(3) from which it concludes that “to avoid being found a rockwithin 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. (…) The feature must, moreover, be able to do so on its naturally occurring conditions” .205and that “[f]or 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 (…) 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 .”2064 .48These are the very same positions as those adopted in the SouthChina SeaAward. Colombia recalls that they have been 203A. G. Oude Elferink, footnote 177 supra .204C. Whomersley, footnote 177 supra, p . 403, para . 47 .205NR, paras . 4 .84-4 .85 . 206NR, paras . 4 .100-4 .101 .
119
cogently criticised for being devoid of legal support .207 As noted
by Nordquist and Phalen, the assertion that the feature’s
capacities must be assessed on its natural form, without external
input “does not appear in [Article] 121(3)”.208 They also
commented that the Tribunal has “overreach[ed] its legal
mandate and denie[d] well-founded facts before it by injecting
doctrines not rooted in the Convention or State Practice .”209
4 .49 Colombia agrees with the many commentaries stating
that the Arbitral Tribunal’s views expressed in the South China
Sea Arbitral award do not represent customary international law,
are devoid of legal basis, purport to “overturn decades of
practice on the basis of an interpretation of article 121 (3) which
is highly controversial”,210 and lead to “widespread repudiation
207 According to Nordquist and Phalen “[t[he Tribunal was not
empowered under the Convention to rewrite the Convention text. It
overstepped its role when it took upon itself to use the legitimate procedural
latitude entrusted to it to embark on a wide-ranging historical review of
factors with only a marginal relationship to the intended meaning of the
Convention text and little relation to the Conference negotiations .The
Tribunal, for example, read into the text dependence upon the ‘objective
capacity of a feature, in its natural condition, to sustain either a stable
community of people or economic activity that is not dependent on outside
resources or purely extractive in nature’. Such discretionary input by the
Tribunal has no credible support in the text or context of the Convention. In
applying self-injected criteria, the Tribunal inaccurately concluded that none
of the features considered in the Spratly / Nansha Group were ‘islands’. Such
a conclusion was procedurally convenient to allow the Tribunal to proceed
with jurisdiction in the case since under this holding there was asserted to be
no overlapping sea boundaries between the two parties to the arbitration”. M.
H. Nordquist and W. G. Phalen, footnote 177 supra .See also A .G .Oude
Elferink, footnote 177 supra; J. Mossop, footnote 177 supra; J. A. Roach,
footnote 177 supra; P. Gewirtz, footnote 177 supra; S . Talmon, footnote 169
supra; J. Wang, footnote 177 supra; C. Whomersley, footnote 177 supra;
Chinese Society of International Law, footnote 177 supra .
208 M. H. Nordquist and W. G. Phalen, footnote 177 supra, p . 30 .
209 M. H. Nordquist and W. G. Phalen, footnote 177 supra, p . 32 .
210 J. Mossop, footnote 177 supra, p . 290 .
120
of decades of unprotested State Practice relevant to the regime of islands throughout the world’s oceans”.211Oude Elferink, who has acted as Counsel for Nicaraguain these proceedings,agreesthat “there is an abyss between the tribunal’s approach and the practice of many States” and asserts that “if the findings of the tribunal (…) were to be applied across the board, many islands that have not been considered to fall under the scopearticle 121(3) would likely have to be (re)categorized as article 121(3) rocks”.212(d)State practice4 .50Colombia gave many examples of State practice concerning islands’ entitlements in its Counter-Memorial . It will provide further examples below (ii), after having demonstrated that what Nicaragua says about State practice is untenable (i).(i)Nicaragua’s case regarding State practice is untenable4 .51Nicaragua’s case finds no support in State practice . To try to escape this conclusion, itargues that “the State practice is far from being uniform and indicates that different States have different views on the meaning of the term ‘rocks’”.213But Nicaraguadoes not demonstrate its assertion. It refers only to a 211M. H. Nordquist and W. G. Phalen, footnote 177 supra, pp . 77-78 .212A. G. Oude Elferink, footnote 177 supra . Among the islands identified by Oude Elferink which would be deprived of their entitlements are, inter alia,Jan Mayen and Bouvet (Norway), Henrietta and Jeanetta (Russia), Heard and McDonald (Australia), Clipperton, Tromelin and Kerguelen (France) and Jabal al-Tayr (Yemen).213NR, para . 4 .75 . See also NR, para . 4 .79 .
121
few States dissenting from the general practice illustrated in
Colombia’s Counter-Memorial, in highly controversial
situations. These States, at most, can qualify as persistent
objectors .
4 .52 Moreover, if Nicaragua were right about the absence of
uniformity of State practice, there simply could be no customary
rule regarding the meaning of the terms “rocks which
cannot (…)”. Indeed, no customary rule can ever emerge when
States have “different views” and when their practice is “far
from being uniform”, as argued by Nicaragua.
4 .53 If Nicaragua were right, it would either mean that the
Court erred in considering that Article 121 (3) reflected a
customary international law rule, or that the notion of “rocks” in
this rule is legally undetermined and subject to the sovereign
interpretation of each State with respect to its own maritime
features. In the latter case, there would be “no strict rule on the
point in dispute”.214 But the reality is different. As Colombia has
shown, the common view of States supports an interpretation of
“rocks” as meaning “rocks”/“rochers”, and a flexible approach
to the requirement of being capable of sustaining “human
habitation or economic life of their own”.
4 .54 Nicaragua also purports to disqualify the practice of nonmember
States of UNCLOS, on which Colombia’s Counter-
214 Case concerning rights of nationals of the United States of America
in Morocco, Judgment of August 27th, 1952: I.C.J. Reports 1952, p . 211 .
122
Memorial relies, arguing in particular,that the practice of the United States, based on its opinio juris, which comes in full support of Colombia’s position, is isolated and is thus not a practice capable of reflecting a customary rule.2154 .55But the true question is whether, when the Court acknowledged the customary nature of this rule, itdid so in complete opposition tothe long lasting and consistent practice and opinio jurisof the United States and other States . The answer cannot but be negative: the rule recognised as customary by the Court in 2012 must necessarily be consistent with State practice, including the practice of the States that are not Parties to UNCLOS,because these States are undoubtedly States “whose interests are specially affected”,216and thus their practice contributes to the creation of the customary international law rule . 4 .56The customary definition of rocks as acknowledged in 2012 is therefore necessarily consistent with State practice, including that of the United States, which is consistent with the general State practice . And this practice, as demonstrated in the Counter-Memorial, and will be further illustrated below, wholly supports Colombia’s position as to the customary international law definition of “rocks which cannot sustain human habitation or economic life of their own” .215NR, para . 4 .39 .216North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p . 44, para . 74 .
123
4 .57 Nicaragua also fails when it seeks to disavow the
abundant practice of States Parties to UNCLOS to which
Colombia refers in its Counter-Memorial .
4 .58 First, Nicaragua cannot seriously contend that the
treaties concluded with Venezuela by France, the United States,
and the Netherlands,217 “do not necessarily reflect the opinio
juris of the parties”.218 In so far as Colombia is aware, the
practice of these States has been systematic, and not only
applied in relation with Venezuela (see in particular the practice
of France and of the United States as shown in the Counter-
Memorial and further developed below) .
4 .59 Second, Nicaragua invokes two highly contested
situations, one regarding Aves Island, 219 and the other
concerning the Spratly Islands.220 But the positions expressed by
the Parties to these disputes have little if any value in terms of
State practice and opinio juris, since they are mere antagonistic
claims asserted in the context of ongoing maritime disputes.
4 .60 Nicaragua is right that some of the practice mentioned by
Colombia “relates to islands in the open ocean”.221 But
Nicaragua is wrong to assert that in these cases “no other State
217 On the fact that these treaties recognise full entitlements to Aves
Island, see, e .g ., International Maritime Boundaries, Vol. I, pp. 603, 606,
607-608 and 691-692 (available at Peace Palace Library).
218 NR, para . 4 .26 .
219 NR, paras . 4 .22-4 .24 .
220 NR, paras . 4 .30-4 .36 .
221 NR, para . 4 .40 .
124
has a direct interest in opposing an exaggerated claim”.222To the contrary, in all instances where States claim that small features generate full entitlements, all other States are directly concerned because the creation of these zones would limit their freedom to fish and carry out other sorts of economic activities therein, and it reduces the extent of the Area. 4 .61Thus, the absence of any reaction whenthis kind ofislandsare granted full entitlements is the most telling State practice as regards the interpretation of the rule embodied in Article 121(3) .223Nicaragua itself considers that “the architects of the Convention were concerned about preventing minor insular features from generating expanded maritime entitlements and impinging on (…)the Area as the common heritage of mankind”,224and thus is inconsistent when it claims that no conclusion can be derived from the fact that the “architects of the Convention” stay silent when most of them interpret and apply the Article 121(3) rule in the exact same manner as Colombia .222NR, para . 4 .40 .223The importance of silence in precisely such circumstances is recognised by the ILC in Conclusion 6 (1) of its2018 Conclusions on Identification of Customary International Law: “Practice may take a wide range of forms. It includes both physical andverbal acts. It may, under certain circumstances, include inaction.” See also Conclusion 10 (3): “Failure to react over time to a practice may serve as evidence of acceptance as law (opinio juris), provided that States were in a position to react and the circumstances called for some reaction.”224NR, para . 4 .56 .
125
(ii) Additional elements on State practice
4 .62 In addition to the State practice detailed in Colombia’s
Counter-Memorial, many other cases confirm Colombia’s
view .225 In fact, Colombia did not find any case in which a State
has refrained from claiming an EEZ and continental shelf from a
non-rocky island.
4 .63 In so far as rocky features are concerned, the case of
Kolbeinsey (Denmark) illustrates that only features made of
rock which are uninhabitable and of no economic value are
deprived of an EEZ and continental shelf. As has been
explained:
“Kolbeinsey (…) is a barren, rocky feature about
70 meters long and from 30 to 60 meters wide with
a maximum elevation of 7 meters and lies just to
the north of the Arctic Circle (…) . It is isolated
(…) well t o s eaward o f t he s ystem o f s traight
baselines around Iceland, and about 38 n .m . from
the nearest inhabited place namely Grimsey (…) It
has no history of human habitation, although
landing can be achieved on the South East side. It
is uninhabited and may well be considered to be
uninhabitable (…) . Thus, Greenland/Denmark, a
signatory although not a party to the UN
Convention on the Law of the Sea, considered that
Kolbeinsey was a rock which does not qualify as a
basepoint for measuring an economic zone or
continental shelf”.226
225 See also Appendix 2 to this Rejoinder.
226 International Maritime Boundaries, Vol. IV, Denmark (Greenland)
– Iceland, Rep . No . 9-22, pp . 2941, 2946-2947 .
126
4 .64 By contrast, States generally do not question that nonrocky
islands are entitled to an EEZ and continental shelf.
4 .65 Rose Island (0,2 sq .km) is a non-rocky feature
belonging to the United States . It is uninhabited and lacks fresh
water .227 The island’s surrounding waters are a Marine Protected
Area. Rose Island is entitled to an EEZ and its attendant
continental shelf .It has indeed been selected as an agreed
basepoint for the delimitation of the overlapping entitlements to
an EEZ and continental shelf between the United States (not a
Party to UNCLOS) and the Cook Islands (a Party to UNCLOS),
as well as between the United States and Niue (a Party to
UNCLOS) .228
227 A .Wegmann and S .Holzwarth, Rose Atoll National Wildlife Refuge
Research Compendium, 2006, p 7, . available at:
https://www.researchgate.net/publication/247151791_Rose_Atoll_National_
Wildlife_Refuge_Research_Compendium (last visited: 21 Jan. 2019).
228 United States Department of State, Limits in the Seas, No . 100 and
No . 119, available at: https://www.state.gov/e/oes/ocns/opa/c16065.htm (last
visited: 21 Jan. 2019).
Source: https://blog.marine-conservation.org/2018/05/pacific-ocean-gem-scientists-on-rose-atoll.html Figure CR 4.2
ROSE ATOLL
A PROTECTED MARINE AREA OF THE U.S.
127
4 .66 Gaferut (0,07 sq . km) is an island under the sovereignty
of the Federated States of Micronesia . It is obviously not a rocky
feature, as the following picture shows . The island is
uninhabited and has no fresh water. It was exploited around
1935 by Japan for phosphates,229 and exploited for hunting and
fishing purposes by inhabitants of near-by atolls.230 Gaferut has
been recognised as an island with an EEZ and continental shelf,
as appears in the 2014 maritime delimitation treaty between the
United States and Micronesia .231 Indeed, point 9 of the
delimitation is 120 nautical miles from Gaferut (Micronesia) and
Guam (United States) .232 The United States is not a Party to
UNCLOS, while the Federated States of Micronesia is .
229 W. A. Niering, “Observations on Puluwat and Gaferut, Caroline
Islands”, Atoll Research Bulletin, No. 76, p. 5, available at:
https://repository.si.edu/bitstream/handle/10088/5013/00076.pdf?sequence=1
&isAllowed=y (last visited: 21 Jan. 2019).
230 M .-H. Sachet, “Historical and climatic information
on Gaferut Island”, Atoll Research Bulletin, No. 76, p. 11, available at:
https://repository.si.edu/bitstream/handle/10088/5013/00076.pdf?sequence=1
&isAllowed=y (last visited: 21 Jan. 2019).
231 Treaty between the Government of the United States of America and
the Government of the Federated States of Micronesia on the Delimitation of
a Maritime Boundary, available at:
https://www.state.gov/documents/organization/244470.pdf (last visited:
21 Jan. 2019).
232 See also International Maritime Boundaries, Vol. V, p. 4965 (“Four
of Micronesia’s islands – Ulithi, Fais, Faraulep, and Gaferut – were relevant
to the determination of the boundary.”)
128
4 .67 Oroluk (0,13 sq . km), another island of the Federated
States of Micronesia, is the sole emerged land of the Oroluk
atoll. It is not a rocky island, as shown on the following picture .
The island is not permanently inhabited but is exploited for its
resources .233 Micronesia regards it as an island entitled to an
EEZ and continental shelf.234
233 Latitute, “Oroluk Island”, available at: https://latitude.to/articles-bycountry/
fm/micronesia/235946/oroluk-island (last visited: 21 Jan. 2019).
234 See S ection 4 o f t he “ Act t o a mend t itle 1 8 o f t he C ode o f t he
Federated States of Micronesia by amending sections 101, 102, 103, 104, 105
and 107 and by adding a new section 108 to establish an Exclusive Economic
Zone in the oceans surrounding the Federated States of Micronesia, to expand
the size of the Territorial Sea, to make the chapter consistent with
the current political status of the Federated States of Micronesia, and for
other purposes” of 16 December 1988, available at:
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/F
SM_1988_Act .pdf (last visited: 21 Jan. 2019). See also the map annexed to
the “Treaty between the Federated States of Micronesia and the Republic of
the Marshall Islands concerning maritime boundaries and cooperation on
Source: https://okeanos-foundation.org/wp-content/uploads/SATAWAL-SHOOT_DRONE-1_DJI_0009_1.jpg Figure CR 4.3
GAFERUT ISLAND
PART OF THE FEDERATED STATES OF MICRONESIA
129
4 .68 Huon Island is a sandy island pertaining to New
Caledonia (France) of about 0,5 sq . km . It is uninhabited and
lacks fresh water. It is a UNESCO World Heritage Site since
2008. It is accepted as generating entitlement to an EEZ and a
continental shelf in the Agreement between France and the
Solomon Islands .235
related matters” of 5 July 2006, available at:
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/F
SM-RMI .pdf (last visited: 21 Jan. 2019).
235 “Agreement between the Solomon Islands and France on maritime
delimitation (with chart)”, United Nations Treaty Series, Vol. 1591 (1991),
No . 27851, p. 204, available at:
https://treaties.un.org/doc/Publication/UNTS/Volume%201591/v1591.pdf
(last visited: 21 Jan. 2019) . See also International Maritime Boundaries, Vol.
I, p .1171 .
Figure CR 4.4Source: https://mybrothertraveler.com/oceania/micronesia/MMP_03/67FSM%20 %20Pohnpei%20State%20-%20Oroluk%20Island_2003DSCN5728.JPGOROLUK ISLANDPART OF THE FEDERATED STATES OF MICRONESIA
130
4 .69 The Isles Maria (1,3 sq . km) are islands within French
Polynesia. They are not made of rock and are uninhabited. They
are considered islands entitled to an EEZ and continental shelf,
as agreed between French Polynesia and the Cook Islands in an
agreement on maritime delimitation of 3 August 1990 .236
236 “Agreement on Maritime Delimitation between the Government of
the Cook Islands and the Government of the French Republic of 3 August
1990”, available at:
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/T
REATIES/COK-FRA1990MD .PDF (last visited: 21 Jan. 2019) .See also
International Maritime Boundaries, Vol. V, pp. 1176-1177 .
Source: https://www.livingoceansfoundation.org/stunning-and-extraordinary- Figure CR 4.5
geography-of-new-caledonia/olympus-digital-camera-49/
HUON ISLAND
PART OF NEW CALEDONIA (FRANCE)
131
4 .70 Suwarrow Island belongs to the Cook Islands . The
biggest feature is 0,27 sq . km. It is not a rocky feature and is
uninhabited . It has been recognised as entitled to an EEZ in the
maritime delimitation treaty between the United States and the
Cook Islands, concluded on 11 June 1980 .237
237 United States Department of State, Limits in the Seas, No .100,
available at: https://www.state.gov/documents/organization/58566.pdf (last
visited: 21 Jan. 2019) .
Figure CR 4.6Source: https://www.livingoceansfoundation.org/the-untamed-cool-tropical-islands-of-french-polynesia/ÎLES MARIAPART OF FRENCH POLYNESIA
132
4 .71 Bikar islands is a group of islands totalling 0,5 sq . km,
belonging to the Marshall Islands. It is not a rocky feature. It is
uninhabited and lacks fresh water .238 The island has traditionally
been visited by local population to hunt and gather resources
such as seabirds and turtles 23.9 Marshall Islands claims full
entitlements from this island .240
238 J. E. Tobin, “Land Tenure in the Marshall Islands”, Atoll Research
Bulletin, No. 11, p. 12, available at:
https://repository.si.edu/bitstream/handle/10088/5075/00011.pdf?sequence=1
&isAllowed=y (last visited: 21 Jan. 2019).
239 J. E. Tobin, “Land Tenure in the Marshall Islands”, Atoll Research
Bulletin, No. 11, p. 12, available at:
https://repository.si.edu/bitstream/handle/10088/5075/00011.pdf?sequence=1
&isAllowed=y (last visited: 21 Jan. 2019).
240 Republic of the Marshall Islands, “Declaration of baselines and
maritime zones and outer limits made under Section 118 of the Maritime
Zones Declaration Act 2016”, p p. 1 82-183 and 451, available at:
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/D
EPOSIT/mhl_mzn120_2016_2.pdf (last visited: 21 Jan. 2019).
Source: http://oriondevoyage.blogspot.com/2018/05/suvarov-suwarrow-30-avril-au-5-mai-2018.html Figure CR 4.7
SUWARROW ISLAND
PART OF THE COOK ISLANDS
133
4 .72 Cayos Arena, is a less than 0,15 sq . km non-rocky
feature belonging to Mexico. It is uninhabited and has no fresh
water. Yet, it has been recognised as entitled to an EEZ and its
attendant continental shelf in the delimitation between Mexico
and the United States .241
4 .73 Rocas Atoll, is an uninhabited non-rocky Brazilian
island of about 0,3 sq . km . It lacks fresh water but has a
lighthouse and constitutes the Atol das Rocas Biological
Reserve, which is a World Heritage Site since 2001 .242 Brazil
claims that this is a full-fledged island .243
4 .74 Thus, the State practice of the following States confirms
Colombia’s position regarding the customary international law
rule regarding the maritime entitlement of islands:
- Argentina (CR, Appendix 2, Examples No. 5 and 6);
- Australia (CCM, paras . 4 .74-4 .76);
- Brazil (CCM, paras. 4.120-4 .122; CR, para . 4 .73);
- Cook Islands (CCM, paras . 4 .78-4 .79; CR, paras .4 .65, 4 .69-
4 .70);
241 International Maritime Boundaries, V ol. I , p . 4 33. S ee a lso J . A .
Vargas, Mexico and the Law of the Sea: Contributions and Compromises,
Nijhoff, 2011, p . 200, footnote 24 and pp . 205, 224 (available at Peace Palace
Library).
242 UNESCO, “Brazilian Atlantic Islands: Fernando de Noronha
and Atol das Rocas Reserves”, available
at: https://whc.unesco.org/en/list/1000 (last visited: 21 Jan. 2019).
243 See the map in Brazil’s submission to the CLCS in 2004, titled
“Chart of the Outer Limit of the Continental shelf”, which shows the limit of
the EEZ, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/bra04/bra_outer_li
mit .pdf (last visited: 21 Jan. 2019).
134
-Denmark (CR, para . 4 .63);-Fiji (CCM, para . 4 .86);-France (CCM, paras . 4 .69, 4 .74, 4 .80-4 .84, 4 .86; CR, paras . 4 .68-4.69 and Appendix 2, Examples No. 1, 4, 7 and 9);-Japan (CCM, paras. 4.87-4 .92); -Kiribati (CCM, paras . 4 .70, 4 .78-4 .79, 4 .85);-Marshall Islands (CCM, para . 4 .77, CR, paras . 4 .67, 4 .71);-Mexico (CCM, paras . 4 .61-4 .63; CR, para . 4 .72);-Micronesia (CCM, para . 4 .77; CR, paras . 4 .66-4 .67);-Niue (CR, para . 4 .65);-The Netherlands (CCM, para . 4 .69);-New Zealand (CCM, paras. 4.75-4 .76);-Norway (CR, Appendix 2, Examples No. 3 and 11);-Russia (CR, Appendix 2, Example No. 8);-Solomon Islands (CR, para . 4 .68);-South Africa (CR, Appendix 2, Example No. 4);-United Kingdom (CCM, paras . 4 .65, 4 .67-4 .68; CR, Appendix 2, Examples No. 2, 5 and 6);-United States (CCM, paras . 4 .69-4 .72, 4 .85, 4 .122; CR, paras . 4 .66, 4.70, 4.72 and Appendix 2, Example No. 10);-Venezuela (CCM, para. 4.69).4 .75To conclude, Colombia submits that Nicaragua’s interpretation of the customary international law rule reflected in Article 121(3) lacks any legal basis. Colombia maintains in full its own position, and will now turn to the status of the islands of Roncador, Serrana, Serranillaand Bajo Nuevo .
135
(2) RONCADOR, SERRANA, SERRANILLA AND BAJO NUEVO
(a) General overview
4 .76 In its Counter-Memorial . Colombia demonstrated that
Roncador, Serrana, Serranilla and Bajo Nuevo are not rocks
which cannot sustain human habitation or economic life of their
own, under the applicable customary rule reflected in Article
121 (3) of UNCLOS .244
4 .77 In doing so, Colombia has provided substantial historical
and factual information which has not been refuted by
Nicaragua. Noticeably, it has failed to address the evidence
submitted in the form of nine affidavits from Raizal
fishermen,245 which show the long-standing interdependence
between these islands and San Andrés, Providencia and Santa
Catalina . Moreover, the affidavits show that these islands fulfil
the criteria for sustaining human habitation or economic life of
their own (availability of fresh water, fertile soil, natural
resources, modern facilities, etc .) . Nicaragua did not contest the
contents of any of these affidavits, therefore accepting this
evidence .
4 .78 Colombia has also recalled that these islands, together
with San Andrés, Providencia and Santa Catalina, and their
surrounding waters, form an intrinsic geographical, economic
244 CCM, Chapter 4 .
245 CCM, Annexes 34 to 42.
136
and political entity, and have been historically regarded as such .2464 .79On this particular point, it may also be recalled that the Court concluded in its 2012 Judgment that “for many decades Colombia continuously and consistently acted à titre de souverainin respect of the maritime features”.247The Court reached this conclusion after having observed, for example:-That an administrative report dated 1920 “specifically referred to Roncador, Quitasueño and Serrana as Colombian and forming an integral part of the Archipelago”;248-That in 1914 and 1924 the Governor of Cayman Islands issued a Governmental Notice regulatingfishing and guano and phosphate extraction activities in the Archipelago which was explicitly described as encompassing all Colombian maritime features;249-That the Colombian Navy frequently visited Serrana, Quitasueño and Roncador throughout the 20thcentury250and enforced Colombian fishing regulations in these islands;251246CCM, paras . 4 .126-4 .148 .2472012 Judgment, p. 657, para. 84. In the same decision the Court had already found that “Colombia has indeed acted à titre de souverain in respect of both the maritime area surrounding the disputed features and the maritime features themselves (…)”, see2012 Judgment, p. 655, para. 81.2482012 Judgment, p. 656, para. 82.2492012 Judgment, p. 656, para. 82.2502012 Judgment, p. 657, para. 82.2512012 Judgment, p. 656, para. 82.
137
- That it was officially admitted in 1913 and 1937 that the
jurisdiction of the German consular officials extended
over the Archipelago expressly described as including
Roncador;252
- That correspondence emanating from the United
Kingdom and the colonial administrations in what, at the
relevant time, were territories dependent upon the United
Kingdom, indicates that the it regarded Alburquerque,
Bajo Nuevo, Roncador, Serrana and Serranilla as
appertaining to Colombia on the basis of Colombian
sovereignty over San Andrés .253
4 .80 The Archipelago, as a whole, has been the habitat of the
Raizales for centuries, who were sustained by the fisheries
around the islands as a unit,254 each of the islands being
inextricably linked and permitting their overall economic
sustainability.255 The inhabitants of the islands are indeed closely
dependent upon the resources of the Archipelago as a whole,
and Colombia has amply demonstrated the interrelationship
between the resources of the islands and their interconnecting
waters .256
4 .81 Colombia maintains that the fact that the Archipelago
forms a unity must be taken into account when assessing the
capacity of its components to sustain human habitation or
252 2012 Judgment, p. 657, para. 82.
253 2012 Judgment, p. 660, para. 95.
254 CCM, para . 4 .127 .
255 CCM, para . 4 .128 .
256 CCM, paras . 4 .131-4 .148 .
138
economic life . Colombia takes note that Nicaragua did not engage with Colombia’s arguments in this regard in its Reply,257and will therefore not discuss this point further .4 .82Turning to the entitlements of the various Colombian islands, Colombia fully maintains its position asstated in its Counter-Memorial . 4 .83Since Nicaragua’s own assessment is based on an erroneous understanding of the meaning of the term “rocks which cannot sustain human habitation or economic life of their own”, and in order to avoid repetition, Colombia will not discuss again the status of Serrana, Serranilla, and Bajo Nuevo under customary international law as islands entitled to an EEZ and its attendant continental shelf . 4 .84Colombia respectfully refers the Court to its thorough review of the islands in Chapter 4 of its Counter-Memorial, which unequivocally shows that these islands are not rocks and are, in any case, able to sustain human habitation or economic life of their own . 4 .85In any event, it is unnecessary to enter into a discussion concerning the extent of the entitlements of these islands because they largely overlap with other Colombia’s 200-nautical-mileentitlements . For the purposes of the present pleading and in view of its location and distance from the 257NR, para . 4 .105 .
139
Nicaraguan coast, Colombia will limit itself to provide some
additional comments on Roncador .
(b) Roncador
4 .86 A full and accurate description of Roncador is available
at paragraphs 4 .150to 4 .159 of Colombia’s Counter-Memorial .
4 .87 Nicaragua’s own description, in the Reply, is without
merit since it relies on an inaccurate report dating from 1932,
which erroneously asserts that there are no trees or bushes on
Roncador .258 Nicaragua also seeks to rely on a note sent in 1893
by the Legation of Colombia in Washington to the United States
Secretary of State .259 According to Nicaragua, these two
documents prove that Roncador is a “rock which cannot sustain
human habitation”.
4 .88 But Nicaragua fails to point out that Roncador is
described in this note as an “island”, not as a “rock”. Nicaragua
cannot select what it likes and ignore what it dislikes . Nicaragua
also fails to mention that, according to the note, Roncador
“forms an integral part” of the “Providence Archipelago”,260 and
has been, from time immemorial, visited by inhabitants of San
Andrés and Providencia for what “constitute[s] one of their most
important and lucrative industries”, namely turtle fisheries.261
258 NR, para . 4 .123 .
259 NR, para . 4 .124 .
260 NR, Annex 9, p. 487.
261 NR, Annex 9, p. 491.
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Nicaragua conveniently omits that in the same note reference ismade to the fact that the inhabitants of San Andrés and Providencia hadperiodically visited the Roncador Cays “(…) which are the breeding grounds of those useful animals; remaining on those keys until their purpose is accomplished; constructing wells for the collection of potable water, and executing in general all necessary works for the fulfillment of their objects or for improving the conditions of their temporary sojourn”.262This plainly shows the strong economic and cultural link between Roncador and the inhabitants of the Archipelago, as well as this island’s intrinsic capabilities .4 .89In any event, the question whether Roncador does or does not qualify as a “rock which cannot sustain human habitation oreconomic life of [its] own” can only be answered on the basis of facts, not according to what such or such person argued one century ago in order to support a sovereignty claim. Somewhat inconsistently, Nicaragua seems to agree on thispoint since it concludes that“the characteristics of Roncador are a matter of objective fact”.263However, the objective facts are precisely what Nicaragua ignores. 4 .90Nicaragua does not even seek to argue that Roncador, a non-rocky feature, is a “rock”, asserting that the only relevant 262NR, Annex 9, pp. 491-492 .263NR, para . 4 .130 .
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test for applying the rule reflected in Article 121 (3) of
UNCLOS is the capacity to sustain human habitation and
economic life of its own .264 But if Nicaragua were right that an
island is entitled to an EEZ and continental shelf only if it can
provide food, water and services necessary for human life
without external support, a large number of islands throughout
the world which are entitled to an EEZ and continental shelf
would be deprived of their entitlements .
4 .91 In the same vein, it is obvious that Roncador is not a
“rock”, but a fully fledged island . It is not composed of solid
rock .It is similar to other small features which were recognised
to generate an EEZ by other States .The fact that Roncador is
not a “rock” is evident from a comparison with features that
have been considered by States to constitute “rocks”.265
4 .92 But even if Roncador were to be considered a “rock”, the
facts explained in Colombia’s Counter-Memorial show that it is
able to sustain human habitation or economic life of its own .
Nicaragua fails to take account of the existence of vegetation,
fresh water, fish and birds on the island in assessing its nature .266
Nicaragua also wrongly argues that the undisputed existence of
inhabitants on Roncador is not relevant for assessing whether
the island can sustain human habitation, because these
inhabitants are members of the Navy and Coast Guard.267 This
264 See, e .g ., NR, paras . 4 .85-4 .86 .
265 See CCM, paras . 4 .150-4 .159 .
266 NR, paras . 4 .126-4 .130 .
267 NR, para . 4 .128 .
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contention relies on the assumption that Naval and Coast Guard personnel are not “human” or that their habitation is not a “human habitation” within the meaning of the rule reflectedin Article 121(3) of UNCLOS . 4 .93Article 121(3), in any event, contains no exclusion or restriction to “civilian” human habitation, but rather “human habitation” with no qualification, which necessarily includes “any” human habitation. Moreover, Nicaragua’s assertion ignores that the criteria of the capacity “to sustain human habitation” refers, precisely, to a capacity or to a potentiality, not necessarily to a contemporaneous fact. Thus, even if the current inhabitants were to be ignored for assessing the human habitation criterionbecause they are members of the Navy and Coast Guard(quod non), the fact that persons do inhabit the island, in an environment encompassing buildings, infrastructure, electric energy, fresh water and even an internet kiosk, proves that the island is capable of sustaining human habitation .4 .94As for the economic life, substantiated by the rich biodiversity of the surrounding waters and the link between the main islands of the Archipelago and Roncador, Nicaragua only tries to cast some doubts on the fact that there are permanent visits by fishermen. The evidence presented by Colombia in its Counter-Memorial proves Colombia’s assertion, which is not
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that there is a colony of fishermen living on Roncador, but there
are fishermen in the island constantly throughout the year .268
4 .95 As explained by Colombia, Roncador (in the same way
as the other islands) is not permanently inhabited because
Colombia prohibits such permanent settlement as a matter of
conservation policy, in order to protect the environment of the
islands for future generations .269 This by no means signifies that
Roncador (or the other islands) cannot sustain human habitation
or economic life of its own; to the contrary, it is because it can
sustain human habitation that Colombia continues to prohibit
permanent settlement on Roncador by civilians .
4 .96 To conclude, Roncador is not a “rock”, and is anyway
capable of sustaining human habitation or economic life of its
own. It therefore does not fall under the customary rule reflected
in Article 121 (3) of UNCLOS . It is an island with entitlements
radiating in all directions up to 200 nautical miles from the
baselines . The same conclusion holds true concerning the other
islands .
4 .97 When one compares Colombia’s islands with the
features to which State practice gives full entitlements, it is
obvious that they do not fall under the customary exception
reflected in Article 121 (3) of UNCLOS . No State, whether
268 CCM, paras . 4 .129-4 .133 .
269 CCM, paras . 4 .133-4 .148 .
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Party or non-Party to UNCLOS, would refrain from considering these features as islands within paragraph 2 of Article 121 .4 .98Nicaragua’s inability to prove the contrary is illustrated by its random description of Colombia’s features as “diminutive”,270“insignifican[t]”,271“lack of significance”,272“minuscule”,273“tiny”,274“too small and unimportant”,275“unimportant” .276The Court will not be misled by a plethora of adjectives, which serve only to highlight Nicaragua’s insecurity in its legal position, and suggest that the rule reflected in Article 121(3) relies on a criterion of “small size”, which it plainly does not .4 .99As rightly said by Nicaragua, “States cannot change theobjective reality by describing features in a way that best suits their interests”.277One only needslook at the facts presented by Colombia to see that none of Colombia’s islands are “rocks which cannot sustain human habitation or economic life of their own” as defined by customary international law. They are islands entitled to an EEZ with its attendant continental shelf. 270NR, para . 4 .110 .271NR, paras . 4 .111 and 4 .113 .272NR, para . 4 .112 .273NR, para . 4 .124 .274NR, para . 4 .133 .275NR, para . 4 .135 .276NR, para . 4 .136 .277NR, para . 4 .145 .
145
D. Conclusions
4 .100 As Colombia has shown in this Chapter, all of its islands
relevant to the present proceedings are entitled to a 200-
nautical-mile EEZ radiating in every direction.
4 .101 San Andrés, Providencia and Santa Catalina have been
recognised by the Court to generate an EEZ entitlement to the
east of Nicaragua’s 200-nautical-mile range .This entitlement is
not confined by the Court’s ruling in 2012 and extends in every
direction in the area beyond what was considered in the 2012
Judgment. This entitlement prevails over any Nicaraguan OCS
claim based on geology and geomorphology as the said elements
do not serve as a source of title to maritime zones within 200
nautical miles from another State’s mainland or islands .
4 .102 The entitlements of San Andrés, Providencia and Santa
Catalina thus preclude Nicaragua from claiming any OCS, even
if it had an uninterrupted natural prolongation (quod non), in any
part of the Southwestern Caribbean Sea beyond the EEZ of
these islands .This is so, because, as Nicaragua recognised,
“leapfrogging” over or “tunnelling” under the entitlements of
other States is precluded under international law .
4 .103 Colombia established in the Counter-Memorial, and has
reiterated above, that for the purposes of the rule reflected in
Article 121 (3), “rocks” refers to features made of solid rock.
Furthermore, Colombia has shown that the second element, i .e .,
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the ability to “sustainhuman habitation or economic life of their own”, applies only to “rocks” and not all “islands”, as the contrary proposition would undermine the intention of the negotiating States to distinguish between “rocks” and other “islands”. This second element hasbeen shown to be interpreted broadly, and not narrowly as Nicaragua would have it.4 .104The evidence provided by Colombia in the Counter-Memorial and this Rejoinder thus shows that all of Colombia’s other islands, i .e ., Roncador, Serrana, Serranilla and Bajo Nuevo, constitute islands and not “rocks” and are thus entitled to an EEZ with its attendant continental shelf. Even were the Court to conclude that “rocks” and “islands” is the same term, Colombia has shown that Roncador, Serrana, Serranilla and Bajo Nuevo fulfil the requirement of the ability to “sustain human habitation or economic life of their own”. The Court should thus conclude that Roncador, Serrana, Serranilla and Bajo Nuevo are entitled to an EEZ with its attendant continental shelf .4 .105Since Nicaragua’s OCS claim cannot serve as a source of legal title within maritime zones included within the EEZ of these islands, and within the EEZ of San Andrés, Providencia and Santa Catalina, Colombia respectfully requests the Court to reject Nicaragua’s claim in its entirety.
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Chapter 5
THE NICARAGUAN OCS CLAIM DIRECTLY
AFFECTS THE POTENTIAL LEGAL
INTERESTS OF NEIGHBOURING
THIRD STATES
A. Introduction
5 .1 The Court has frequently been confronted with the
presence of neighbouring third States in maritime delimitation
disputes. Nicaragua, in its Reply, glossed over the significant
body of jurisprudence that has accumulated over the last four
decades dealing with this situation 2.78 Nicaragua’s decision to
ignore the case law is unsurprising, since an appropriate
assessment of that case law would have led it to the conclusion
that the Court has always protected the potential legal interests
of third States, regardless of whether the latter filed an
application for permission to intervene, and whether that request
had been accepted or not .279
5 .2 What is novel in these proceedings is the unprecedented
magnitude of the neighbouring States’ potential legal interests
vis-à-vis Nicaragua that are at stake. Contrary to the Land and
Maritime Boundary between Cameroon and Nigeria (Cameroon
v . Nigeria: Equatorial Guinea intervening) case, for example,
278 NR, Chapter 6 . In fact, Nicaragua has relied on one single precedent .
See para . 5 .41 infra .
279 CCM, paras . 6 .8-6 .11 .
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the present case cannot be partially resolved simply by saying that, beyond certain geographical coordinates, the boundary will proceed along a specified azimuth until it reaches the maritime areas of the interested third State .2805 .3Costa Rica andPanama, together with Colombia,jointly conveyed to the Secretary-General of the United Nations their strong objection concerning Nicaragua’s submission to the CLCS, which detrimentally affects and violates their legitimate legal interests in the area .281Almost simultaneously, Jamaica submittedits own communication reserving its rights .2825 .4Tellingly, Nicaragua argues in its Reply that the Court may proceed to delimit a boundary between Colombia’s and Nicaragua’s sovereign rights, since this will only determine whom between “Nicaragua or Colombia has superior rights vis-à-visthe other” without objectively determining whether the alleged relevant area does, in fact, appertain to those two States .283In other words, because other neighbouring States, in addition to Colombia, also possess, vis-à-vis Nicaragua, entitlements in the purported area tobe delimited, Nicaragua is requesting the Court to conduct a “relative” (and thus 280Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v . Nigeria; Equatorial Guinea intervening), Preliminary Objections of Nigeria, paras . 8 .1-8 .17; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v . Nigeria; Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, pp . 416-421, paras . 226-238 and p . 448, para . 307 .281CCM, Annexes 27 and 28.282CCM, Annex 26.283NR, para . 6 .17 .
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hypothetical) delimitation between the Parties to the present
proceedings .
5 .5 Nicaragua’s belated appeal to relative boundaries is the
consequence of its failure to demonstrate, most recently in the
Maritime Delimitation in the Caribbean Sea and the Pacific
Ocean (Costa Rica v . Nicaragua) case,284 that Nicaragua can
somehow benefit from the treaties established between
Colombia and other neighbouring States, such as Costa Rica and
Panama .
5 .6 Nicaragua has repeatedly asserted that it should replace
Colombia in the boundary relations as defined in the agreements
concluded with Costa Rica and Panama as well as with
Jamaica.285 But as has already been demonstrated in Colombia’s
Counter-Memorial, Nicaragua cannot use agreements to which it
is not a Party to confine the legal interests of third States vis-àvis
itself .286 The consequences are fatal to Nicaragua’s claim, for
284 See Section B infra .
285 “Treaty on Delimitation of Marine and Submarine Areas and
Maritime Cooperation between the Republic of Colombia and the Republic
of Costa Rica” of 17 March 1977, available at:
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/T
REATIES/COL-CRI1977MC .PDF (last visited: 21 Jan. 2019); “Treaty on
the Delimitation of Marine and Submarine Areas and Related Matters
between the Republic of Panama and the Republic of Colombia” of 20
November 1976, available at:
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/T
REATIES/PAN-COL1976DM .PDF (last visited: 21 Jan. 2019); “Maritime
Delimitation Treaty between Jamaica and the Republic of Colombia” of 12
November 1993, available at:
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/T
REATIES/JAM-COL1993MD .PDF (last visited: 21 Jan. 2019).
286 CCM, paras . 6 .12-6 .18 .
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its case vis-à-visColombia is contingent on the assumption that itsalleged OCS entitlement can project unobstructed by the potential legal interests of neighbouring States. Accordingly, as far as Nicaragua is concerned, the coasts of Panama and Jamaica project their full 200-nautical-mile entitlements vis-à-visNicaragua . Such entitlements have not been delimited vis-à-visNicaragua and are not subject to the Court’s jurisdiction in this case .5 .7Colombia will show that Nicaragua’s exorbitant OCS claim does not conform to the crowded geography of the Southwestern Caribbean Sea. The broader context indicates that the allegedly disputed seabed and subsoil is of concern to Colombia, and respectively, to Panama and Jamaica, certainly not to Nicaragua. This is by no mean surprising or inequitable. It is the logical consequence ofthe fact that Nicaragua claims maritime areas that are not only much closer to the San Andrés Archipelago and the Colombian mainland, but also much closer to the coastlines of Panama and Jamaica, than they are to its own coastline. The inexorable conclusion, which can be drawn by merely glancing at a map of the Southwestern Caribbean Sea, is that the entitlements of Colombia, combined with the 200-nautical-mile entitlements of those two other States, leave no room for Nicaragua beyond 200 nautical miles from the Nicaraguan coastline .
151
QS9QS7QS6QS13QS12QS11QS28QS25QS19QS23QS18QS14QS46QS44QS43QS54QS51QS50QS49QS48QS8QS5QS4QS3QS2QS1QS53QS52QS47QS45QS42QS41QS39QS40QS38QS37QS36QS35QS34QS33QS32QS31QS30QS29QS27QS26QS24QS22QS20QS21QS17QS16QS15QS10LagodeMaracaiboLagodeNicaraguaCaribbeanSeaPACIFICOCEANRoatan I.Guanaja I.San AndrésLittleCornGreatCornSanta CatalinaQuitasueñoProvidenciaRoncadorESEAlburquerqueSerranaGorda I.Cajones Is.Swan I.MorantBajo NuevoAliciaBankSerranillaMiskitosEdinburghReefPedro BankSouthwestRocksCOSTA RICAPANAMAHONDURASJAMAICAHAITIDOM.REP.COLOMBIANICARAGUAVENEZUELA15°N10°N15°N10°N75°W 80°W 85°W 75°W 80°W 85°W Haiti’s 200 Mpotential legal interestsColombian islands200 M entitlementDominican Republic’s 200 Mpotential legal interestsJOINT REGIMEAREA(Colombia / Jamaica)Col.Col.ColombiaPanamaHonNicCosta RicaPanamaJamaicaColombiaDominican RepublicColombia1AB23456798Haiti / Col.NicaraguaCosta RicaLine from the ICJJudgment of 2012Colombian mainland200 M
entitlementNicaragua’s 200 MentitlementJamaica’s 200 Mpotential legal interestsPanama’s 200 Mpotential legal interests0150200100500100200300400Nautical MilesKilometersMercator ProjectionDatum: WGS-84(Scale accurate at 12°N)Prepared by: International MappingNICARAGUA’S CLAIMED DELIMITATIONPREJUDICES THE 200 M POTENTIALLEGAL INTERESTS OF NEIGHBOURINGSTATESFigure CR 5.1
152
5 .8To clarify, this Chapter is not premised on the position taken in Chapter 3, according to which there can be no Nicaraguan OCS within Colombia’s 200-nautical-mile entitlements, as a matter of law . That argument is, of course, equally applicable to the maritime areas located within 200nautical miles from Jamaica and Panama. And, indeed, it is true, as shown inFigureCR5 .1 above, that there are no areas in the Southwestern Caribbean Sea lying beyond 200 nautical miles from the nearest coast . This Chapter makes the point that the neighbouring third States have potential legal interests that cannot be disregarded,irrespectiveof whether they prevail over Nicaragua’s OCS claim .5 .9Likewise, this Chapter is not premised on the scientific and technical developments addressed in the following Chapter . Quite apart from the fact that Nicaragua has failed to prove that the natural prolongation of its landmasscontinues uninterrupted beyond 200 nautical miles, its delimitation claim must in any event be dismissed because it inevitably entails trespassing into areas where neighbouring third States havepotentiallegal interests vis-à-vis Nicaragua . 5 .10As a preliminary point, what Nicaragua in effect is attempting to achieve in the current proceedings is to disrupt the boundaries agreed between Colombia and other neighbouring States with potential legal interests in the area, such as Jamaica and Panama. This is a futile exercise given the geographic circumstances of the present case . Inprevious cases, the Court
153
could draw a line with an arrow, while at the same time avoiding
the respective areas of interest of third States . In this case, as
Colombia will demonstrate below, it is impossible to repeat this
exercise because Nicaragua has stretched its maritime claims too
far from its coastline and too close to the coastlines of the truly
interested States, Colombia, Jamaica and Panama .
5 .11 Colombia will start with an examination of Nicaragua’s
now defunct subrogation theory, according to which Nicaragua
would inherit all that was previously negotiated between
Colombia and third States . In addition, Colombia will show that,
because Nicaragua cannot rely on boundary agreements to
which it is not a Party as if they were barricades shielding it
from the entitlements of neighbouring States, encroachment is
not only probable, but is the inevitable consequence of
Nicaragua’s exorbitant OCS claim (B) .
5 .12 Colombia will then address Nicaragua’s new thesis, the
relative (hypothetical) delimitation theory, that is to say the idea
that the Court, far from determining the limits of Colombia’s
and Nicaragua’s sovereign rights, should only determine which
has a better title, regardless of the fact that under no plausible
scenario can Colombia and Nicaragua have a boundary in this
part of the Southwestern Caribbean Sea . Colombia will also
address Nicaragua’s assertion according to which the settling of
theoretical boundaries and speculative disputes is in conformity
154
with the sound administration of justice and the proper exercise of the judicial function (C) .287B.The Defunct Subrogation Theory: Nicaragua’sFailure to Confine the Potential Legal Interests ofNeighbouring Third States5 .13In its Counter-Memorial, Colombia (referring to its delimitation treaties with Costa Rica, Panama and Jamaica) demonstrated why Nicaragua cannot “on the one hand, rely on the relative effect of treaties for the purpose of arguing that those States’ recognition of Colombia’s sovereign rights is not opposable to itself and, on the other hand, rely on those same agreements for the purpose of confining their legal interests vis-à-visitself”.2885 .14Nicaragua made no effort to rebut Colombia’s argument in its Reply. The reason is simple. Nicaragua’s subrogation theory, which had already been dismissed by the Court in the Territorial and Maritime Dispute case,289was definitively rejected in the 2018 Judgment in the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v .287NR, para . 6 .18 .288CCM, para . 6 .14 . See also in general CCM, paras . 6 .12-6 .18 . 289Territorial and Maritime Dispute (Nicaragua v .Colombia), Application of Honduras for Permission to Intervene, Judgment, I.C.J. Reports 2011, p. 444, para. 72: “(…) States may conclude maritime delimitation treaties on a bilateral basis . Such bilateral treaties, under the principle res inter alios acta, neither confer any rights upon a third State, nor impose any duties on it. Whatever concessions one State party has made to the other shall remain bilateral and bilateral only, and will not affect the entitlements of the third State.”. (Emphasis added)
155
Nicaragua) case (1) .If Nicaragua, nevertheless, insists that the
neighbouring States have “objectively renounced” certain
maritime areas, it is because its OCS claim is predicated on the
absence of overlapping entitlements of third States susceptible
of cutting off its own alleged projections (2) . However, because
the Nicaraguan subrogation theory is baseless, it is apparent that
Nicaragua’s OCS claim inevitably encroaches into maritime
areas where neighbouring third States, in addition to Colombia,
also possess potential legal interests (3) .
(1) THE DEFINITIVE REJECTION OF THE NICARAGUAN
SUBROGATION THEORY IN THE COSTA RICA V.
NICARAGUA CASE
5 .15 In the Maritime Delimitation in the Caribbean Sea and
the Pacific Ocean (Costa Rica v .Nicaragua) case, Nicaragua’s
subrogation theory was a critical part of its delimitation claim
vis-à-vis Costa Rica, which, in the relevant sector, perfectly
abutted the delimitation line agreed between Colombia and
Costa Rica in 1977 . As it argued in the proceedings relating to
Costa Rica’s request for permission to intervene in the
Territorial and Maritime Dispute case,290 Nicaragua once again
stressed that that agreement objectively limited the potential
entitlements, claims, or legal interests of Costa Rica, regardless
290 Territorial and Maritime Dispute (Nicaragua v .Colombia), Public
Sitting, 13 October 2010, CR 2010/13, paras .27-45 (Reichler) and Public
Sitting, 15 October 2010, CR 2010/16, paras . 31-36 (Reichler) .
156
of the fact that the instrument constituted an inter partesagreement between Colombia and Costa Rica .2915 .16Nicaragua’s subrogationtheorywas also implicit in the way it tried to determine the relevant area in thatcase . On the one hand, Nicaragua submitted that “the relevant area in the Caribbean Sea [was]limited in the east by the boundary line defined in the 1977 Treaty between Costa Rica and Colombia”, because what “Costa Rica ha[d] previously recognized as Colombian [could not] be part of the relevant area”.292On the other hand, Nicaragua suggested, in the alternative, that if the relevant area were to project north-east of the agreement, on the Colombian side of the delimitation, it should not stop along the notional extension of the boundary between Costa Rica and Panama, as argued by Costa Rica. It should, rather, reach the 1976 Treaty between Panama and Colombia because, in any event, Panama had no entitlements susceptible of projecting beyond that line, on the Colombian side of this other delimitation .293291Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v .Nicaragua), Counter-Memorial of Nicaragua, paras . 3 .32-3.33. For example, Nicaragua stated that “the 1977 Treaty fixed and limited Costa Rica’s interests in the maritime spaces of the Caribbean Sea . Costa Rica cannot now claim areas over which it renounced any claim in what it accepted as an equitable delimitation, then with Colombia, in 1977” (para. 3 .32) .292Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v .Nicaragua), Counter-Memorial of Nicaragua, para . 3 .78 .293Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v .Nicaragua), Counter-Memorial of Nicaragua, para . 3 .72 .5
157
5 .17 The Figure below portrays Nicaragua’s overt reliance on
treaties to which it was not a Party in the Maritime Delimitation
in the Caribbean Sea and the Pacific Ocean (Costa Rica v .
Nicaragua) case .
Nicaragua’s AdditionalRelevant Area(Alternative Claim)Nicaragua’s Relevant Area (Main Claim)CARIBBEANSEANicaragua’s Claim LineNicaragua’s Claim LineSee insetfor detailFigure CR 5.2NICARAGUA’S CLAIMED SUBROGATION THEORYIN THE COSTA RICA v. NICARAGUA CASESource: Costa Rica v. Nicaragua 2018 Judgment, Sketch-map 7 (annotated).
158
5 .18The Court’s 2018 Judgment accepted neither Nicaragua’s delimitation claim nor its twofold manner of defining the relevant area as depicted above . Thecourse of theline drawn by theCourtsuffices to demonstrate that the Nicaraguan subrogation theorywas rejected . 5 .19After an extensive examination of Nicaragua’s subrogation theory,294the Court concluded that:“(…) the 1976 Treaty between Panama and Colombia involves third States and cannot be considered relevant for the delimitation between the Parties. With regard to the 1977 Treaty between Costa Rica and Colombia, there is no evidence that a renunciation by Costa Rica of its maritime entitlements, if it had ever taken place, was also intended to be effective with regard to a State other than Colombia.”295In other words, contrary to Nicaragua’s arguments, the Court found that, vis-à-visNicaragua, the potential legal interestsof Costa Rica and Panama were not confined by the delimitation lines previously agreed with Colombia.5 .20The above analysis was confirmed at the disproportionality test stage of the 2018 Judgment since the 294Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v .Nicaragua); Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), Judgment of 2 February 2018,paras .123-134 .295Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v .Nicaragua); Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua),Judgment of 2 February 2018,para .134 .
159
Court decided that it was appropriate “to base this calculation on
the ‘notional extension of the Costa Rica-Panama boundary’ as
suggested by Costa Rica.”296 Thus, the Court excluded from the
relevant area maritime spaces located well within 200 nautical
miles of both Nicaragua and Costa Rica, because those maritime
spaces could potentially appertain to Panama .This constitutes,
among other things, an additional confirmation that Nicaragua’s
subrogation theory is groundless .
5 .21 The Figure CR 5 .3 depicts the relevant area determined
by the Court in the 2018 Judgment . The inclusion of certain
maritime spaces attests to the fact that, vis-à-vis Nicaragua,
Costa Rica’s potential legal interests were not confined by the
1977 Treaty. Likewise, the exclusion of other maritime spaces
demonstrates that, vis-à-vis Nicaragua, the 1976 Treaty did not
restrict Panama’s potential legal interests .
296 Maritime Delimitation in the Caribbean Sea and the Pacific Ocean
(Costa Rica v. Nicaragua); Land Boundary in the Northern Part of Isla
Portillos (Costa Rica v . Nicaragua), Judgment of 2 February 2018,
para .164 .
160
(2) THE NICARAGUAN SUBROGATION THEORY AS THE MISSING
CORNERSTONE UPON WHICH ITS OCS CLAIM RESTS
5 .22 Despite the explicit and repeated rejection of the
subrogation theory, Nicaragua persists, in the present
proceedings, to try somehow to benefit from the agreements
established between Colombia and, respectively, Panama and
Jamaica. In this effort, Nicaragua relies in its Reply on
propositions and depictions previously rejected by the Court.
5 .23 Thus, Figure 7.1 of Nicaragua’s Reply, which depicts the
Applicant’s “Final Delimitation” claim, prolongs the Court’s
2018 delimitation drawn between Costa Rica and Nicaragua so
Relevant Area according
to the Court
CARIBBEAN
SEA
Notional extension of the
Costa Rica - Panama boundary
Excluded because of Panama’s
Legal Interests
Included because of Costa Rica’s
Legal Interests
Figure CR 5.3
REJECTION BY THE COURT OF NICARAGUA’S
SUBROGATION THEORY IN THE 2018 JUDGMENT
Source: Costa Rica v. Nicaragua 2018 Judgment, Sketch-map 12 (annotated).
161
as to intersect the 1976 Treaty established between Colombia
and Panama .297
297 NR, p . 208 .
Figure CR 5.4THE NICARAGUAN FALSE DEPICTION OF THECOSTA RICA-NICARAGUA AND NICARAGUA-HONDURASDELIMITATIONSSource: Costa Rica v. Nicaragua 2018 Judgment, excerpt from Sketch-Map 13.Source: Nicaragua v. Honduras 2007 Judgment, excerpt from Sketch-Map 7.Source: Nicaraguan Reply, Figure 7.1 (annotated).
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Nicaragua wrongly assumes that the boundary that the Court only drew up to point V, before resorting to the directional arrow technique,298necessarily intersects the 1976 agreement. This is nothing but a repetition of Nicaragua’s already rejected argument according to which Panama has no legal interests beyond the agreement concluded with Colombia. In reality, had the Court considered the subrogation theoryto be well-founded, it could have easily extended the boundary as depicted in the Nicaraguan Reply. But the Court did not do so precisely because, contrary to what Nicaragua suggests, such a boundary would encroach on the potential legal interestsof Panama well before it reached the 1976 delimitation line . 5 .24Moreover, Figure 7.1 of Nicaragua’s Reply also wrongly suggests that the dashed section of the 2007 Court’s delimitation between Nicaragua and Honduras is, in fact, a full line. This isclearly prejudicial to Jamaica’s potential legal interests vis-à-vis Nicaragua . Indeed, as Colombia will demonstrate below, Jamaica’s potential legal interestsvis-à-visNicaragua reach maritime areas located well within the terminal point implicitly putforward in Nicaragua’s depiction .5 .25Why does Nicaragua insist on its subrogation theory,notwithstanding the fact that the latter has repeatedly been 298Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua); Land Boundary in the Northern Part of Isla Portillos (Costa Rica v .Nicaragua), Judgment of 2 February 2018, para .158 and sketch-map No . 11 .
163
rejected?299 Could it be that subrogation is the cornerstone upon
which Nicaragua’s entire edifice, its exorbitant OCS claim vis-àvis
Colombia, is built?
5 .26 By giving the impression that the neighbouring third
States’ entitlements and legal interests are objectively confined
by the agreements they concluded with Colombia, Nicaragua
insinuates that the Court can delimit all the maritime areas
located on the Colombian sides of the aforementioned treaties
without encroaching on spaces of interest to other States .
Nicaragua’s final delimitation claim, which intersects both with
the delimitation lines contained in the 1976 and 1993 Treaties
concluded between Colombia and, respectively, Panama and
Jamaica, implies that the Court can set these two implicit
tripoints without affecting the legal interests of the two
neighbouring States .
5 .27 Under Nicaragua’s subrogation theory, inter partes
agreements become the objective limits of Nicaragua’s maritime
area, or, in other words, the perimeter that it inherited, by some
form of legal alchemy, from decades of negotiations conducted
by the representatives of other States. If that were the case, by
delimiting the purported seabed boundary claimed by
Nicaragua, the Court would in effect also be determining the
299 In addition to Figure 7.1, see also NR, para. 6.5: “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.” (Emphasis added)
164
boundaries between Nicaraguaand, respectively, Panama and Jamaica. 5 .28To quote from Nicaragua’s official position, as it was made public in two notes sent to the Secretary-General of the United Nations: “Nicaragua’s Submission does not in any way encroach upon any rightsover submarine areas to which Jamaica is entitled under international law. (…)Nicaragua does not claim any areas of continental shelf which appertain to Jamaica in accordance with the Maritime Delimitation Treaty between Jamaica and the Republic of Colombia, dated12 November 1993 .”300“Nicaragua’s Submission does not in any way encroach upon any rights over maritime areas to which Panama is entitled under international law . (…)Nicaragua does not claim any areas of continental shelf which appertain to Panama in accordance with the Maritime Delimitation Treaty between Panama and the Republic of Colombia in force as of 30 November 1977.”301The problem with Nicaragua’s official position, as Colombia will now demonstrate, is that its claim is in fact the epitome of encroachment since Jamaica’s and Panama’s potential legal interests vis-à-visNicaragua, do project well beyond the aforementioned treaties .300Communication MINIC-NU-049-13 of the Permanent Mission of Nicaragua to the United Nations, 20 December 2013 (CCM, Annex 32).301Communication MINIC-NU-050-13 of the Permanent Mission of Nicaragua to the United Nations, 20 December 2013 (CCM, Annex 33).
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(3) THE NICARAGUAN OCS CLAIM INEVITABLY ENCROACHES
INTO AREAS WHERE NEIGHBOURING THIRD STATES
POSSESS POTENTIAL LEGAL INTERESTS
5 .29 If one disregards the treaties to which Nicaragua is not a
Party, in accordance with the Court’s jurisprudence, it becomes
evident that the seabed and subsoil entitlements of Jamaica and
Panama effectively overlap with the Nicaraguan OCS claim.
This has significant repercussions in the present case. While the
Court has in the past been able to draw partial maritime
delimitations, in lieu of complete ones, here the degree of
overlap is such that it entails, as stated in the Counter-Memorial,
“that even the shortest of all maritime delimitations would
inevitably trespass into areas where, aside from Colombia’s
sovereign rights, third States possess entitlements” vis-à-vis
Nicaragua .302
302 CCM, para . 6 .5 .
166
QS9
QS7
QS6
QS13
QS12
QS11
QS28
QS25
QS19
QS23
QS18
QS14
QS46
QS44
QS43
QS54
QS50 QS51
QS49
QS48
QS8
QS5
QS4
QS3
QS2
QS1
QS53
QS52
QS47
QS45
QS42
QS41
QS39
QS40
QS38
QS37
QS36
QS35
QS34
QS33
QS32
QS31
QS30
QS29
QS26 QS27
QS24
QS22
QS20
QS21
QS17
QS16 QS15
QS10
Lago
de
Maracaibo
Lago
de
Nicaragua
C a r i b b e a n
Sea
PA C I F I C
OCEAN
Roatan I.
Guanaja I.
San Andrés
Little
Corn
Great
Corn
Santa Catalina
Quitasueño
Providencia
Roncador
ESE
Alburquerque
Serrana
Cajones Is. Gorda I.
Swan I. Morant
Bajo Nuevo
Alicia
Bank
Serranilla
Miskitos
Edinburgh
Reef
Pedro Bank
Southwest
Rocks
COSTA
RICA
PANAMA
HONDURAS
JAMAICA
HAITI
DOM.
REP.
C O L O M B I A
N I C A R A G U A
VENEZUELA
15°N
10°N
15°N
10°N
85°W 80°W 75°W
85°W 80°W 75°W
1
7
11
12
13
21
22
47
48
65
66
89
91
120
164 121
8
FOS-1
FOS-3
FOS-5
FOS-7
FOS-4
FOS-6
FOS-8
FOS-2
Haiti’s 200 M
potential legal interests
Colombian islands
200 M entitlement
Dominican Republic’s 200 M
potential legal interests
JOINT REGIME
AREA
(Colombia / Jamaica)
Col.
Col.
Colombia
Panama
Hon
Nic
Costa Rica
Panama
Jamaica
Colombia
Dominican Republic
Colombia
1
A
B
2
3
4
5
6
7
9
8
Haiti / Col.
Nicaragua
Costa Rica
Line from the ICJ
Judgment of 2012
Nicaragua’s FOS Claim
Nicaragua’s OCS Limit Claim
Nicaragua’s final
delimitation claim
Nicaragua’s Final
Delimitation Claim
Colombian mainland
200 M entitlement
Nicaragua’s 200 M
entitlement
Panama’s 200 M
potential legal interests
Jamaica’s 200 M
potential legal interests
0 50 100 150 200
0 100 200 300 400
Nautical Miles
Kilometers
Mercator Projection
Datum: WGS-84
(Scale accurate at 12°N)
Prepared by: International Mapping
NICARAGUA’S CLAIMED DELIMITATION
AND FOS POINTS PREJUDICE THE 200 M
POTENTIAL LEGAL INTERESTS OF
NEIGHBOURING STATES
Figure CR 5.5
167
5 .30 The Figure above demonstrates that, beyond 200 nautical
miles from the Nicaraguan coastline, the potential legal interests
of Jamaica and Panama significantly overlap with the
Nicaraguan OCS claim . The Court is not confronted here with a
minor problem concerning the terminal sections of a
delimitation line drawn between the Parties before it, which
could be resolved by resorting to the directional arrow
technique .
5 .31 The eight foot of slope points identified by Nicaragua are
located in EEZ and continental shelf areas not appertaining to
it .303 Moreover, the greatest part of both Nicaragua’s purported
OCS limit and its delimitation claim likewise encroach upon
areas where neighbouring States have potential legal interests
vis-à-vis Nicaragua .
5 .32 But what is even more remarkable in the present case is
the fact that the potential legal interests of Panama and Jamaica
vis-à-vis Nicaragua conflict with Nicaragua’s claim .
Considering that the three interested States have opposite
coastlines, hypothetically it would be possible to draw median
lines between Nicaragua and, respectively, Jamaica and Panama,
which would be located within the 200 nautical miles from the
Nicaraguan coast, thus barring Nicaragua’s projections
eastwards .
303 See Chapter 6 infra .
168
5 .33Nicaragua’s delimitation claim with regard to Serranilla and Bajo Nuevo is premised on Nicaragua’s belief that it can catapult itself into the Joint Regime Area established between Colombia and Jamaica. Not only does Nicaragua blatantly disregard the 2012 Judgment,304its delimitation claim isprejudicial to Jamaica’s legal interests insofar as, at itscore, lies the premise that the boundary between Nicaragua and Jamaica should be located northeast of the Joint Regime Area or, at the very least, within that area . In fact,the potential legal interestsof Jamaica project southwest of that area, within 200 nautical miles from the Nicaraguan coast .5 .34While Nicaragua self-servingly has a myopic view of the delimitation dispute (as if Colombia and Nicaragua were the only two States in the region), the broader geographical context indicates that Nicaragua cannot claim areas locatedbeyond 200nautical miles from its coastline . Nicaragua’s belief that it should be allowed to reach maritime areas located so far away from its coastline despite the crowded geography of the region, is based on a complete refashioning of geography. 5 .35Nicaragua argues that there is a maritime space where the 200-nautical-mile limits of Jamaica and Panama do not overlap with those of Colombia and Nicaragua .305But the fact 304In said Judgment, the Court stressed that the Joint Regime Area, as well as the waters within a 12-nautical-mile radius of the islands of Serranilla and Bajo Nuevo could not be part of the relevant area in view of the “potential Jamaican entitlements”.See2012 Judgment, pp. 685-686, para .163 .305NR, paras . 6 .2, 6 .5 and 6 .8 .
169
that what it calls the “middle portion of the delimitation area”306
is located outside of Panama’s and Jamaica’s 200-nautical-mile
potential entitlements vis-à-vis Nicaragua, is of no help to the
Applicant . Aside from the proposition that the only way in
which Nicaragua could have, vis-à-vis Colombia, a “better
claim” to that area, would be if the San Andrés Archipelago
were obliterated from the Southwestern Caribbean Sea, the fact
remains that, in order to reach that area, Nicaragua would have
to “leapfrog” over or “tunnel” under the maritime spaces of
Panama, Jamaica and Colombia .
5 .36 Yet, when it comes to Serrana, Nicaragua asserts that its
entitlements cannot “somehow leapfrog over Nicaragua’s EEZ
and reassert themselves to the east of Nicaragua’s 200 M
limit .”307 But Nicaragua cannot have it both ways. If Serrana’s
entitlements cannot leapfrog over those of Nicaragua, then
Nicaragua’s alleged OCS claim cannot leapfrog over the
maritime areas of the San Andrés Archipelago and the potential
legal interests of Jamaica and Panama. Simply put, Nicaragua’s
delimitation claim vis-à-vis Colombia is unsustainable because it
cannot be merged with the remainder of Nicaragua’s maritime
area, which must necessarily be interrupted much further to the
west .
5 .37 Interestingly, Nicaragua felt compelled to stress that
Panama and Jamaica have not in fact claimed an OCS and that
306 NR, para . 6 .8 .
307 NR, para . 4 .108 .
170
“[t]here can therefore be no question of Jamaica or Panama having even potential interests beyond 200 M”.308Colombia considers significant the fact that, if one were to follow Nicaragua’s theory, the same OCS could havebeen claimed by other neighbouring States which, in fact, have refrained from doing so . 5 .38This brings Colombia to Nicaragua’s new convenient theory, the relative (hypothetical) delimitation theory, which much like its defunct subrogation theory is premised on a complete reversal of the Court’s jurisprudence constante .C.The Latest Relative (Hypothetical) Delimitation Theory: Nicaragua’s Failure to Justify Encroachment into MaritimeAreas where Neighbouring Third StatesHavePotential Legal Interests5 .39Having established that Nicaragua’s subrogation theory is meretricious and that, consequently, Panama’s and Jamaica’s entitlements do overlap significantly with those of Nicaragua, Colombia will address Nicaragua’s assertion according to which encroachment, in any event, is of no concern since “[t]he 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 respect of that particular case’”309(1) . Colombia will then demonstrate why the Nicaraguan relative delimitation 308NR, para . 6 .7 .309NR, para . 6 .10 .
171
theory is not conducive to the sound administration of justice
and the proper exercise of the judicial function (2).
(1) NICARAGUA’S RELIANCE ON ARTICLE 59 OF THE STATUTE
CONFLICTS WITH THE COURT’S CONSTANT REFUSAL TO
DRAW RELATIVE (HYPOTHETICAL) DELIMITATIONS
5 .40 The Court and Colombia are well aware of Article 59 of
the Statute . It is Nicaragua, however, that needs to be reminded
of the Court’s consistent jurisprudence on maritime delimitation
disputes, which it has failed to mention in its Reply.
5 .41 Nicaragua has only relied, in its Reply, on a single
precedent, the 2018 Judgment in the Maritime Delimitation in
the Caribbean Sea and the Pacific Ocean (Costa Rica v .
Nicaragua) case .310 This is all the more astonishing considering
that that precedent, aside from definitively dismissing
Nicaragua’s subrogation theory, also demonstrates beyond any
doubt that, when delimiting the maritime areas appertaining to
the Parties to the proceedings, the Court avoids encroaching on
areas susceptible of appertaining to neighbouring third States . If
the contrary were to be true, as the Nicaraguan Reply suggests,
the Court would not have resorted in its Judgment to the
directional arrow technique beyond point V. If the protection
afforded by Article 59 of the Statute were truly sufficient, as
Nicaragua asserts, the Court would have delimited the boundary
up to the 200-nautical-mile limits of Nicaragua or Costa Rica,
310 NR, paras . 6 .3, 6 .10, 6 .12 and 6 .13 .
172
whichever came first . But the Court did not do so, contrary to what Nicaragua’s false depictioninFigure 7 .1 suggests . 5 .42By resorting to the directional arrow technique, the Court followed its consistent jurisprudence, which dates back to the 1982 Judgment in the Continental Shelf (Tunisia/Libyan Arab Jamahiriya)case . In that case, the Court resorted to the directional arrow technique so as not to affect Malta’s potential legal interests . As the Court stated, when drawing an arrow well outside Malta’s equidistance claims vis-à-visLibya and Tunisia, “the extension of this [delimitation]line northeastwards isamatter falling outside the jurisdiction of the Court in the present case, as it will dependon the delimitation to be agreed with third States”.3115 .43Later, in the Land and Maritime Boundarybetween Cameroon and Nigeria (Cameroon v .Nigeria: Equatorial Guinea intervening) case, the Court said the following:“In the present case, Article 59 may not sufficiently protect Equatorial Guinea or Sao Tome and Principe from the effects –even if only indirect –of a judgment affecting their legal rights . (…) In view of the foregoing, the Court concludes that it cannot rule on Cameroon’s claims in so far as they might affect rights of Equatorial Guinea and Sao Tome and Principe . Nonetheless, the mere presence of those two States, whose rights might be affected by the decision of the Court, does not in itself preclude the Court from having jurisdiction over a maritime 311Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p . 94, para . 133 C . (3) .
173
delimitation between the Parties to the case before it,
namely Cameroon and Nigeria, although it must
remain mindful, as always in situations of this kind,
of the limitations on its jurisdiction that such
presence imposes.”312
As already stated in the Introduction to the present chapter, in
that case the Court was able to proceed to a partial delimitation .
But once again it had to rely on an arrow, drawn well outside
Equatorial Guinea’s equidistance claim vis-à-vis Cameroon, so
as not to encroach and, consequently, directly affect the legal
interests of the neighbouring State. As stated by the Court, the
boundary could not “be extended very far” since “it c[ould] take
no decision that might affect rights of Equatorial Guinea, which
is not a party to the proceedings”.313
5 .44 In the Territorial and Maritime Dispute between
Nicaragua and Honduras in the Caribbean Sea (Nicaragua v .
Honduras) case, the 2007 Judgment did not specify the endpoint
of the delimitation because “[t]he Court will not rule on an issue
when in order to do so the rights of a third party that is not
before it, have first to be determined”.314
312 Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v . Nigeria: Equatorial Guinea intervening), Judgment, I.C.J.
Reports 2002, p . 421, para . 238 .
313 Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v . Nigeria: Equatorial Guinea intervening), Judgment, I.C.J.
Reports 2002, p . 488, para . 307 .
314 Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean Sea (Nicaragua v . Honduras), Judgment, I.C.J. Reports
2007, p . 756, para . 312 .
174
5 .45There is no point in addressing the additional jurisprudence that proves Colombia’s point and compellingly disproves Nicaragua’s unsubstantiated argument . Colombia can limit itself to stressing that all the other relevant precedents, in addition to those mentioned above, confirm the fact that the Court, “as a matter of principle”,315does not draw boundaries that encroach into maritime areas of interest to third States . Colombia will simply refer to Judge Donoghue’s comprehensiveaccount of the Court’s practice, as set out in her dissenting opinion in the proceedings relating to Honduras’ request to intervene in the Territorial and Maritime Dispute case .3165 .46Nicaragua has made a great deal of the fact that, in the 2018 Judgment in the Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v .Nicaragua) case, the Court drew a boundary which, to a limited extent, “crossed into areas that are closer to Panama than to Costa Rica”.317In its Counter-Memorial, Colombianoted that the jurisprudence tends to suggest that the Court will usually draw the directional arrow before the delimitation can reach maritime areas that are located closer to the coastline of a third State .318Colombia stands by its proposition, which is supported by the bulk of the Court’s jurisprudence . 315Territorial and Maritime Dispute, Application of Costa Rica for Permission to Intervene, Judgment, I.C.J. Reports 2011, p . 372, para . 86 .316Territorial and Maritime Dispute, Application of Honduras for Permission to Intervene,I.C.J. Reports 2011, Dissenting Opinion of Judge Donoghue, pp . 477-481, paras . 18-24 .317NR, para . 6 .12 .318CCM, para . 6 .8 .5
175
5 .47 In any event, Colombia must stress that, what is more
significant in the Maritime Delimitation in the Caribbean Sea
and the Pacific Ocean (Costa Rica v. Nicaragua) case, is the
fact that the Court, on the one hand, excluded from the relevant
area maritime spaces susceptible of appertaining to Panama and,
on the other hand, resorted to the directional arrow technique .
Even if some minor degree of encroachment could be inferred
from the 2018 Judgment, Nicaragua cannot compare such a
limited form of trespassing to the situation at hand .
5 .48 Nicaragua’s relative (hypothetical) delimitation theory is
based on the assumption that the requested delimitation “could
have no effect on the [legal] interests” of the third States
because the Court’s boundary would only determine which State
had the better claim as between the two Parties .319 If, for the sake
of argument, the Court were to follow Nicaragua’s train of
thought to its proper conclusion, the consequences would be
different from those mentioned in Nicaragua’s Reply. Nicaragua
suggests that if the Court “were to draw a boundary that passed
into areas within the potential entitlements of a third State”,
“[s]uch 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”.320
319 NR, para . 6 .17 .
320 NR, para. 6.17. (Emphasis added)
176
5 .49But what about the legal status of the areasbetween Colombia and, respectively, Jamaica and Panama, which have been delimited by treaties that are in force between these three States? If one adopts the Nicaraguan approach, which runs contrary to the entire jurisprudence of the Court, it follows that judicially established delimitations, like politically agreed ones, are not merely relative lines, they are purely hypothetical lines which can be deprived of purpose by subsequent delimitations. 5 .50But as Judge Jennings stated, when confronted with similar arguments raised by Libya and Malta:“(…) if Article 59 were to be given the very broad interpretation that the Court now seems to have espoused, so that every decision is to be analogous to a bilateral agreement, and res inter alios acta for third States, does this not mean that the Court in effect disables itself from making useful and realistic pronouncements on questions of sovereignty and sovereign rights (and the latter is what we are in fact dealing with in this case)? ‘Sovereign rights’that are opposable only to only one other party comes very near to a contradiction in terms.”3215 .51The jurisprudence demonstrates that the Court has never delimited relative(hypothetical)boundaries . The following excerpt from the Continental Shelf (Libyan Arab Jamahiriya/Malta)case deserves to be cited at some length: 321Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to Intervene, Judgment, I.C.J. Reports 1984, Dissenting Opinion of Judge Jennings, p. 158, para. 30.
177
“The Court notes that by the Special Agreement it
is asked to define the legal principles and rules
applicable to the delimitation of the area of
continental shelf ‘which appertains’ to each of the
Parties. The decision of the Court will, by virtue of
Article 59 of the Statute, have binding force
between the Parties, but not against third States . If
therefore the decision is to be stated in absolute
terms, in the sense of permitting the delimitation of
the areas of shelf which ‘appertain’ to the Parties,
as distinct from the areas to which one of the
Parties has shown a better title than the other, but
which might nevertheless prove to ‘appertain’ to a
third State if the Court had jurisdiction to enquire
into the entitlement of that third State, the decision
must be limited to a geographical area in which no
such claims exist. It is true that the Parties have in
effect invited the Court, notwithstanding the terms
of their Special Agreement, not to limit its
judgment to the area in which theirs are the sole
competing claims; but the Court does not regard
itself as free to do so, in view of the interest of
Italy in the proceedings.”322
Much like Malta and Libya, Nicaragua, when instituting the
proceedings, requested the Court to determine “the precise
course of the maritime boundary between Nicaragua and
Colombia in the areas of the continental shelf which appertain
to each of them”.323 Much like Malta and Libya, it is irrelevant
that Nicaragua now asks the Court merely to determine which
State has a better title, i.e., “superior rights” .324 The Court did
not extend its boundary in the areas in which Italy had a
322 Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J.
Reports 1985, p . 25, para . 21 .
323 Application of Nicaragua, para. 12. (Emphasis added)
324 NR, para . 6 .17 .
178
potential legal interest . The Court did not drawthena relative,and thus hypothetical,boundaryand it has not done so since .5 .52Nicaragua’s exorbitant delimitation claim, like that of Cameroon in the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) case, is not a boundary linedividing equivalent overlapping entitlements . It is an exclusion line entirely divorced from geography. Nicaragua is trying to exclude Colombia from the seabed and subsoil of a maritime area that cannot, in the presence of neighbouring States’ potential legal interests, in any event be Nicaraguan. Like the claim in that case, Nicaragua’s final delimitation either significantly trespasses into maritime areas in which neighbouring third States would have analogous if not “better claims” than Nicaragua can possibly have, or requires “leapfrogging”over or “tunnelling”under their maritime areas . (2)THE NICARAGUAN APPEAL TO THE SETTLING OF RELATIVE BOUNDARIES AND SPECULATIVE DISPUTES IS INCONSISTENT WITHTHE SOUND ADMINISTRATION OF JUSTICE AND THE PROPEREXERCISE OF THE JUDICIAL FUNCTION5 .53Nicaragua says in its Reply that “if the Court were to decline to act in this case, the result would be the indefinite prolongation of this dispute, potentially forever” and that, consequently, the Court should “resolve the prevailing uncertainty” in the “interests of peace and stability”.325These sweeping assertions are wholly unpersuasive. The settling of 325NR, para . 6 .18 .
179
relative and hypothetical boundaries is by no means conducive
to the sound administration of justice and the proper exercise of
the judicial function. It also undermines peace and stability,
contrary to Nicaragua’s assertion.
5 .54 Were the Court to draw a boundary beyond 200 nautical
miles from the Nicaraguan coastline, it would be suggesting that
a boundary exists between Nicaragua and Colombia in an area
that cannot plausibly appertain to Nicaragua. In a perfect world,
that boundary, if it truly were relative (hypothetical) as
suggested by Nicaragua, could later be deprived of meaning due
to the drawing of two boundaries between Nicaragua and,
respectively, Jamaica and Panama within 200 nautical miles
from the Nicaraguan coastline . In other words, the present
proceedings would, a posteriori, have proven to be futile
because at the end of the day, the boundary relation would have
been found to be non-existent .
5 .55 However, a judicially determined boundary, even when a
State self-servingly suggests that it only determines who has a
better claim, creates in practice an objective situation, which
would be virtually impossible for third States to question. If the
Court were to delimit the seabed and subsoil beyond 200
nautical miles from the Nicaraguan coast, Nicaragua will
doubtless cease to claim that that line is relative .On the
contrary, Nicaragua will offer the Court’s delimitation as
conclusive evidence of the fact that, at the very least,
Nicaragua’s sovereign rights must be present on the Nicaraguan
180
side, or sides, of the delimitation . This wouldmean that the boundaries which would fall to be established between itself andcountries likeJamaica and Panama wouldhave to turn due east so as to preserve a Nicaraguan corridor of seabed and subsoil located beyond 200 nautical miles from the Nicaraguan coast. Such a scenario would be the very definition of refashioning the geography of the region . 5 .56What is more, this scenario entails the creation of, not one, but three grey zones in the middle of the Southwestern Caribbean Sea . The Colombian water column would in effect straddle three relative boundaries between Nicaragua and, respectively, Colombia, Jamaica and Panama. Colombia deems it totally unproductive to engage in policy considerations of what is frankly an absurd, and therefore unacceptable, scenario. 5 .57Moreover, a judicially determined boundary, far from constituting a relative (hypothetical) line that will eventually disappear, must entail the presence of the Parties’ sovereign rights on their respective sides . In other words, while the delimitation does not determine the full spatial extent of the two Parties’ maritime areas, it presupposes that the maritime boundary is part of the perimeterswhich will define the maritime areas appertaining to the two Parties. Yet it is far-fetched to assume, as Nicaragua does, that its delimitation claim vis-à-visColombia can somehow be merged with the undefined maritime boundaries between Nicaragua and, respectively Jamaica and Panama.
181
D. Conclusions
5 .58 Colombia respectfully urges the Court to weigh carefully
what Nicaragua’s OCS claim would entail for the Respondent
and third States in the region . The Court is confronted with an
exorbitant claim that significantly trespasses into the 200-
nautical-mile entitlements of Colombia and of the other
interested neighbouring States. To put it bluntly, this
unprecedented situation attests to the fact that Nicaragua’s OCS
claim is forcing its presence into an area in which it should have
no boundary relations at all, either with Colombia, or with other
neighbouring States .
5 .59 Were the Court to entertain Nicaragua’s claim, it would
effectively be affecting the potential legal interests of Jamaica
and Panama within 200 nautical miles from Nicaragua’s
coastline . Moreover, by recognising a Nicaraguan presence
beyond the 200-nautical-mile limit, the Court would inevitably
be prejudging sovereign rights to the soil and subsoil in favour
of Nicaragua and to the detriment of third States . This is an
extremely advantageous proposition for Nicaragua, given that
the maritime areas at stake are closer to the coastlines of the
neighbouring third States than they are to those of Nicaragua .
5 .60 Nicaragua’s exorbitant claim in the current proceedings
would lead to disruptions in the existent boundary relations, as
well as to the creation of multiple grey zones in an area where
182
Nicaragua has the least convincing claim of all the neighbouring States . This wouldconstitute an unwarranted, and therefore unacceptable, refashioning of geography.5 .61If the Court were to entertain Nicaragua’s expansionist claim in an area where it does not belong, it would create, to use Nicaragua’s words,an“indefinite prolongation of this dispute, potentially forever”, and add to the toxic brew disputes with other States; all in a region stabilised through equitable delimitations between the EEZ and continental shelf entitlements of the surrounding States. Contrary to Nicaragua’s distorted views of “uncertainty”, “peace” and “stability”, if the Court were to reject Nicaragua’s claim for an OCSin this part of the Southwestern CaribbeanSea,which is far removed from Nicaragua’s coast and lies within 200 nautical miles of other States,it would promote certainty, peace and stabilityin the area . The Court would thus preserve the coherent and clear relations and delimitations of jurisdictions between the only relevant States . 5 .62Byattempting to insert itself, through its purported natural prolongation,into this part of the SouthwesternCaribbeanSeacoveredby the 200-nautical-mile entitlements of other States, Nicaragua aspires to destabilise this region .5 .63Finally, Colombiawants to reiterate, as it has throughout these proceedings,that itfully respects the bilateral delimitation treaties it has concluded with its neighbouring Statesand abides
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by the obligations arising from said instruments .Colombia’s
maritime delimitation treaties are res inter alios acta for
Nicaragua and cannot be invoked by said State in order to
confine the potential legal interests of the Parties to those
agreements .
184
185
325F
Chapter 6
NICARAGUA FAILED TO MEET ITS BURDEN
OF PROOF AND DID NOT COMPLY WITH
THE ADEQUATE STANDARD OF PROOF
IN RELATION TO ITS OCS CLAIM
Chapter (pages 185 to 262) not reproduced
263
Chapter 7
SUMMARY AND CONCLUSIONS
7 .1 Colombia has proven that under customary international
law, natural prolongation may not serve as a source of title
within, and hence encroach upon, another State’s 200-nauticalmile
EEZ with its attendant continental shelf. Or, in other words,
natural prolongation may not serve a wide-margin coastal State
as a source of legal title to maritime areas which lie within
200 nautical miles from another State’s baselines .Apart from
Nicaragua, the many States that have made submissions to the
CLCS, have respected this principle, save in three exceptional
cases, in all of which submissions were filed after the 2012
Judgment and objections were raised by the States whose 200-
nautical-mile entitlements were encroached upon .
7 .2 Nicaragua has failed to provide a shred of evidence from
either doctrine, practice or jurisprudence to challenge this
conclusion .Instead, Nicaragua has offered a contrived argument
that contends that if coasts are 401 nautical miles or more apart
rather than 400, the regime of title throughout the entire area, up
to the baselines, reverts to the regime of the past, and natural
prolongation springs back as a source of title within the entire
area, including within another State’s 200-nautical-mile
entitlements . Colombia has shown that this argument has no
basis in international law and runs counter to the whole
negotiating history at UNCLOS III .
264
7 .3As for the applicable law, given that Colombia is not a Party to UNCLOS, the case falls to be addressed under customary international law. In Chapter 2, Colombia established that the entirety of the OCS regime is not customary international law . The OCS regime was part of the package-deal between narrow and wide-margin States; it opened the way for a wide-margin State to exploit resources of what would have otherwise been partof the Area, if it could prove to the CLCS (an internal UNCLOS technical commission)on the basis of scientific data, that the area it sought was its continental shelf . And it was then subject toarevenue-sharingscheme . As these last two elements are an essential part of the package-deal, and may not plausibly reflect customary international law, the rest of the package-deal –including the opportunity to benefit from OCS resources –may not plausibly reflect customary international law, nor be opposable to non-Parties . As Colombia is only subject to customaryinternational law, this alone warrants rejectingin its entiretyNicaragua’s claim,based as it is on a conventional OCS regime .7 .4Colombia enjoys an entitlement to a continental shelf, as part of its EEZ to a distance of 200 nautical miles from its baselines . Both Colombia’s mainland and its islands generate such 200-nautical-mile entitlements. The Court has already acknowledged in its 2012 Judgment that the islands of San Andrés, Providencia and Santa Catalina are entitled to an EEZ with its attendant continental shelf to the east of Nicaragua’s
265
200-nautical-mile line and should not be cut-off from this
entitlement .442
7 .5 In asserting that the Colombian islands should not be
accorded title east of Nicaragua’s 200-nautical-mile range and
confining their entitlements by the lines drawn by the Court in
the 2012 Judgment, Nicaragua asks the Court to contradict its
prior decision .Moreover, Nicaragua pretends to confine these
islands’ entitlements on the basis of variables such as coastal
ratio, distance and size, which are not applicable in these
proceedings; they would only be relevant for the final stage of a
delimitation case . The Court would, however, only reach this
stage if it were established that Nicaragua possessed an equal
source of title that would necessitate a delimitation vis-à-vis
Colombia. As explained in Chapter 3 above, Nicaragua’s OCS
claim is not a source of title within 200 nautical miles from
Colombia’s coasts; this unqualified principle extends to both
mainland and islands . This is irrespective of the ratio, distance
or size of the islands.
7 .6 The 200-nautical-mile entitlements generated by these
islands extend some 100 nautical miles beyond Nicaragua’s own
200-nautical-mile EEZ and continental shelf; in other words, in
areas upon which Nicaragua’s purported OCS claim encroaches .
Because Nicaragua may not lay claim to title based on natural
prolongation within 200 nautical miles from these islands, these
442 2012 Judgment, pp. 716-717, para . 244 .
266
entitlementsexclude any possibility of delimitation, which is the appropriate answer to the “question” that is at issuein this case . 7 .7Colombia has also shown that Roncador and the other relevant islands of the Archipelagohave 200-nautical-mile entitlements in every direction. Contrary to Nicaragua’s contentions, these islandsare not “rocks” within the meaning of Article 121(3)of UNCLOS . As Colombia has shown, under customary and conventional international law, the word “rocks” has a distinct meaning, which refersfirst and foremostto features made of solid rock . As the naked eye can see,the islands in question are far removed from any features recognised as “rocks” in State practice.7 .8Moreover, the islands’ economic and human importance is attested by the fact that they have been frequentedformany decades by the fishermen of the Archipelago, and form part of the Raizales’ culture and natural habitat. Even though they have notbeenpermanently inhabited because of a decision by the Colombian Government for purely environmental reasons, they arepermanently visited and are an essential part of the Raizales’ economy. 7 .9They have also been the subject of significant effectivités of an economic nature –a factor that led the Court to rule in its 2012 Judgment that Colombia had sovereignty over them –and they are host to military contingents thatpermanentlycarry out essential security activities. Unlike Colombia, which has shown
267
that there is considerable State practice that treats islands having
the characteristics of Colombia’s islands as fully entitled to an
EEZ and continental shelf, Nicaragua is unable to adduce any
State practice showing the contrary. The 200-nautical-mile
entitlements generated by these islands extend over 150 nautical
miles beyond Nicaragua’s 200-nautical-mile EEZ, yet Nicaragua
would have its OCS claim encroach on these entitlements as
well as those of San Andrés, Providencia and Santa Catalina.
7 .10 Colombia has also demonstrated that Nicaragua’s OCS
claim extends well into maritime areas where third States such
as Panama and Jamaica have potential legal interests vis-à-vis
Nicaragua, within 200 nautical miles from their coasts .In such
circumstances, it is not surprising that those two States, along
with Colombia and Costa Rica, have, as is their right, objected
Nicaragua’s claim .As Chapter 5 has demonstrated, in this
confined space of the Southwestern Caribbean Sea, it would be
impossible for the Court to draw directional arrows to avoid the
entitlements of other States. Were Nicaragua’s claim to be even
partially upheld, it would not simply prejudice Colombia, but
the interests of third States as well .
7 .11 In Colombia’s submission, the above-mentioned
considerations are ample grounds for rejecting Nicaragua’s
claim in this case .Thus, once the Court finds that OCS claims
may not encroach upon the 200-nautical-mile entitlements of
coastal States, or that Nicaragua’s claim inappropriately
prejudices the rights and interests of third States, it does not
268
need to review the scientific and technical arguments Nicaragua has advanced in support of its claim .7 .12Nonetheless, Colombia has also demonstrated (i) that Nicaragua’s scientific and technical arguments have failed to prove that it has an OCS and (ii) that its Submission to the CLCS, upon which its claim purports to base itself, is seriously flawed and would not be accepted as it stands as the basis for any recommendations by the Commission. As Chapter 6 explained, Nicaragua’s OCS claim must be evaluated by the same scientific standards and rigorous scientific process as the CLCS would; this process was detailed in Annex 49 of the Counter-Memorial under the title“Description of the Procedure and Scientific Rigour employed by the CLCS” based on the CLCS Guidelines .7 .13Contrary to Nicaragua’s contention, the evidence in the record shows that the natural prolongation from Nicaragua’s land territory simply does not extend up to and beyond the 200-nautical-mile limit. The scientific evidence, which is explained in detail in the expert reports Colombia has furnished and in Chapter 6, shows that the Upper NicaraguanRise andtheLower Nicaraguan Rise are fundamentally different, having regard to both their geological and geomorphological characteristics . These two features are separated by a marked discontinuity –the Pedro Bank Escarpment-Providencia Trough Lineament–that interrupts Nicaragua’s natural prolongation, and that is a far more pronounced feature than the Hess Escarpment.
269
7 .14 Nicaragua has tried to camouflage this reality by
resorting to a bathymetric profile based on the argument that the
natural prolongation of its landmass extends into Jamaica’s EEZ
before, conveniently, executing a 90° manoeuvre and steaming
south into Colombia’s EEZ. That profile does not represent any
genuine natural prolongation of Nicaragua’s territory towards
Colombia. Similarly, Nicaragua has used foot of slope points,
which are situated in maritime areas appertaining to third States
and most of which are generated by bathymetric profiles that
have no relation with Nicaragua’s coast from which natural
prolongation must be shown to exist.
7 .15 It follows that, even if the Court were to reach the
question of whether Nicaragua has established any OCS on
geological and geomorphological grounds, not only is Nicaragua
asking the Court to carry out a task reserved for the CLCS, but
also its case has simply not been proven with anything
resembling the requisite scientific certainty that the composition
of the CLCS and its rigorous procedures require and ensure . In
such circumstances, the claim should be rejected, and the result
remains that there is nothing to delimit beyond 200 nautical
miles from Nicaragua’s baselines .
7 .16 In its Reply, Nicaragua asserts, out of the blue, as it
were, that the Parties agree that “the task of the Court in the
present case is to delimit the maritime boundary between two
270
States”.443As Colombia has pointed out, this is wrong: Colombia does not agree that both Parties coincide on the object and main issues in this case and certainly not that the Court’s task in this caseis to delimit. To the contrary.The case is about the “Questionof the Delimitation of the Continental Shelf” between the Parties,notaboutthe “Delimitation of the Continental Shelf”.444This indicates that in limine litis, the question before the Court is whether, in the particular circumstances of the case,it should proceed to any delimitationat allof the continental shelf beyond 200nautical miles fromthe Nicaraguancoast. Colombia has explained the compelling legal and factual reasons why there is nothing to delimit beyond 200 nautical miles from Nicaragua’s coast, and that the Court should not proceed to any further delimitation in this case . ***7 .17Besides being deprived of any legal or factual basis, Nicaragua’s excessive claim has grave implications for the Caribbean Sea and the entire international community. Most of these implications have been touched upon in the Counter-Memorial and the Rejoinder, however, given their gravity, Colombia will recall them briefly because it considers it imperative that the Court weigh such implications when considering Nicaragua’s claim . 443NR, para . 2 .56 .444Emphasis added.
271
7 .18 The coastal geography of the Southwestern Caribbean
Sea is such that there are no maritime areas that lie more than
200 nautical miles from the nearest land territory. This fact has
been recognised by all Caribbean States except Nicaragua, as is
evident from the fact that no other State has considered that it
was entitled to claim OCS rights in the Caribbean, and none
have made submissions to that effect to the CLCS . In short,
every other Caribbean State respects the 200-nautical-mile
entitlements of the other States and has refrained from
attempting to encroach upon them based on natural
prolongation. Every other State, that is, with the notable
exception of Nicaragua.
7 .19 Nicaragua’s claim to an OCS was belated and
opportunistic. As previously noted, Nicaragua made no such
claim in its case against Honduras, despite the fact that the
Nicaraguan Rise extends northeast from the coasts of Nicaragua
and Honduras towards Jamaica. Even when Nicaragua filed its
Application and Memorial in the Territorial and Maritime
Dispute case against Colombia, it made no OCS claim .Its
original claim was for a single maritime boundary which, by
definition, could only extend as far as the 200-nautical-mile
limit of the EEZ with its attendant continental shelf. Nicaragua
only conjured up its OCS claim in the Reply, and it was not
upheld by the Court in its 2012 Judgment.
7 .20 When Nicaragua filed its Submission with the CLCS on
24 June 2013, Panama, Jamaica, Costa Rica and Colombia
272
objected, as was their right. Indeed, they did so more than once .445The Notes they sent to the Secretary-General of the United Nations made it clear that they did not view Nicaragua’s OCS pretensions as having any justification and that they did not consent to the consideration of Nicaragua’s Submission by the CLCS . As several of those States pointed out, Nicaragua had intentionally attempted to mislead the CLCSwhen it stated in the Executive Summary to its Submissionthat there were no unresolved maritime disputes relating to it . The current casewhich was initiated when Nicaragua itself brought before the Court one of such “non-existent disputes”,isampleevidence of Nicaragua’s misconduct . Panama’s communication of 3February 2014summed up the position in the following terms:“We strongly object to the claim for the extension of the continental shelf submitted by the Republic of Nicaragua: we do not consent to the Commission’s consideration or assessment of Nicaragua’s submission and we request the Commission to dismiss it in its entirety”.4467 .21Paragraph 5(a) of Annex I to the Commission’s Rules of Procedure stipulates that, in cases where a land or maritime boundary dispute exists, “the Commission shall not consider and 445Costa Rica objected to Nicaragua’s submission in two Notes dated 15 July 2013 and 7 February 2014 (CPO, Annexes 19 and 24); Jamaica filed a similar Note on 12 September 2013 (CPO,Annex 20); Panama filed two Notes dated 30 September 2013 and 3 February 2014 (CPO,Annexes 23 and 25); Colombia filed two Notes dated 24 September 2013 and 11 February 2014 (CPO,Annexes 22 and 27); and Colombia, Costa Rica and Panama filed two joint Notes on 23 September 2013 and 5 February 2014 (CPO,Annexes 21 and 26). 446CPO, Annex 25.
273
qualify a submission made by any of the States concerned in the
dispute” without the prior consent of the other States Parties to a
dispute . In the present case what Nicaragua is trying to do is to
invoke its own wrongdoings, as it also did at the Preliminary
Objections stage when it argued that a practical impasse447 was
created by Colombia. Contrary to Nicaragua’s assertions,
Colombia’s objection to Nicaragua’s Submission to the CLCS
does not create an impasse; it is simply the consequence of, and
reflects, the general practice of States that do not countenance
the extension of alleged OCS claims of another State into their
200-nautical-mile entitlements . Nicaragua filed an overreaching
OCS Submission, knowing very well that all concerned
Caribbean States would be forced to object to consideration of
its claim, as they did . The fact that Nicaragua’s Submission
cannot be considered by the CLCS is Nicaragua’s own fault .
While it tries to blame Colombia, it conveniently forgets the
basic principle of law which states nemo auditur propriam
turpitudinem allegans.
7 .22 Critically, Nicaragua’s attempt to undermine this legal
principle by introducing its “grey zones” would destabilise not
only the Caribbean Sea, but have worldwide implications .
Reversing the Court’s dictum in Libya/Malta and accepting
natural prolongation as a source of legal title within 200 nautical
miles of other States, would run counter to well-established
447 Question of the Delimitation of the Continental Shelf between
Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan
Coast (Nicaragua v . Colombia), Written Statement of the Republic of
Nicaragua to the Preliminary Objections of the Republic of Colombia,
paras .5 .29-5 .31 .
274
State practice, destabilise existing treaties and CLCS submissions which followed this principle . Accepting Nicaragua’s title theory would introduce “grey areas”, oras Nicaragua would have it “grey zones” at a scale which would undermine the public order of the oceans and preclude any prospect of orderly ocean management. The validation of the separation between water columnrightsand seabed rights over vast areas would open a Pandora’s box of disputes worldwideand exacerbate the problems in the already complicated environments of semi-enclosed seas .7 .23By requesting the Court to establish these outer limits as part of its OCS claim, Nicaragua seeks to replacea specialised technical body,with ample geographical representation andarange of expertise especially assembled to examine OCS claims, and entrustedwith that responsibility .By bypassing the CLCS, Nicaragua hopes to create a “fast-track” procedure with a lower scientific standard thanthatrequired by the CLCS, without going through the rigorous and lengthy process of dialogue with the CLCS andwithout having to convincea two-thirds qualified majority within the Commission of the scientific validity of its evidence . Nicaragua is trying to avoid the possible results that the normal procedure before the CLCS would have, i .e . inter alia, the requestof more technical information to support its claim,the possibility of a non-approvalby the Commission of the draft recommendations presented by a subcommission, or the possibility that the CLCS does not award any recommendations at all .It further hopes to bypass the opposition
275
of Colombia and other Caribbean States while encroaching on
their maritime entitlements .
7 .24 Nicaragua is also trying to circumvent the applicable
rules by seeking to obtain erga omnes effects from an inter
partes judicial decision, something wholly unprecedented in
international law .UNCLOS Articles 76(8) and (9), which are
binding for Nicaragua, establish that for an OCS to be opposable
to all States Parties, the coastal State shall deposit with the
Secretary-General of the United Nations the charts and relevant
information permanently describing the outer limits of its
continental shelf, as recommended by the CLCS. The reasoning
behind this requisite is that the composition of the CLCS, which
is a strictly scientific and technical validation body, based on
equitable geographical representation, guarantees that its
recommendations have certain representation and validation by
the international community, which in turn allows its deposit
with the Secretary-General of the United Nations and justifies its
erga omnes effects among States Parties to UNCLOS .
Moreover, the matter is so sensitive that the procedure
established in the Convention allows for the participation of any
State that has an interest in the delineation claimed by a State
Party .
7 .25 Nicaragua cannot pretend to bypass the requisite of the
formal deposit with the Secretary-General of the United Nations,
as required after receiving recommendations by the CLCS .Such
a consequence would be unsustainable, as any decision of the
276
Court, as provided forin Article 59 of its Statute,would only have binding force between the Parties and in respect of that particular case .Therefore, the absurdity of Nicaragua’s claim is evident since it pretends to obtain an OCSwith erga omnes effects,from an inter partes process. This is contrary to Nicaragua’s obligations under UNCLOSand to the judicial function of the Court . 7 .26There are good reasons why the Court and other tribunals have been reluctant to conduct delineations of the outer limit of OCS claims . These tasks have been assigned to the CLCS due to their demanding burden of proof requiring scientific certainty. Nicaragua’s request would have the Court assume the role of the CLCS without its standards and procedures and approve, without the required scientific certainty, that Nicaragua’s natural prolongation extends beyond 200 nautical miles and then delineate its outer limit. Wholly apart from this abuse of process, the integrity of CLCS practice can only be muddled if the Court acquiesces to Nicaragua’s gambit . The muddling is underway, as Nicaragua has already amended its OCS claim in the Reply, which increases the risk of contradictory determinations between the Court and the CLCS . As thesolejurisdiction over OCS delineation and verification has been assigned to the CLCS under UNCLOS, even relying upon an expert, the Court risks rendering a judgment that would be inconsistent withany eventual findingsof the CLCS . And this cannot be ruled out, as it would be nearly impossible for an expert or even severalof themto approximate the work of a
277
broad professional scientific committee of experts with
extensive resources at its disposal. The Court should respect the
division of work enshrined in UNCLOS, and refrain from
entertaining Nicaragua’s request to make itself henceforth
available to verify and delineate any purported OCS claim.
7 .27 As the Court noted in its 2012 Judgment, the Preamble to
UNCLOS stresses that “the problems of ocean space are closely
interrelated and need to be considered as a whole” .448 Yet, if
such a radical claim to an OCS as that advanced by Nicaragua
were to be upheld – one that usurps Colombia’s ipso jure
entitlement to a 200-nautical-mile EEZ with its attendant
continental shelf from its islands and mainland – it would set a
dangerous precedent with far-reaching consequences .States
would no longer consider that they were under any constraints to
limit future OCS claims to areas lying within 200 nautical miles
of a neighbouring State .In addition, early-submitting States
which have shown restraint with their OCS, by stopping at a
neighbour’s 200-nautical-mile limit, and who have already
received recommendations from the CLCS, may feel sufficiently
short-changed that they consider submitting additional,
supplementary OCS claims to the CLCS, encroaching into
hitherto unthreatened 200-nautical-mile entitlements .
7 .28 Nor would States Parties to UNCLOS feel bound to
await the recommendations of the CLCS if they could bypass
the Commission by resorting to third-party settlement. This
448 2012 Judgment, pp. 668-669, para . 126 .
278
would severely affect the stability of legal relations that currently exists, and the specific responsibilities accorded to the CLCS under UNCLOS. Ultimately, it would be the integrity of the Common Heritageof Mankind principlethat would be compromised .7 .29In the light of the foregoing, the implications of Nicaragua’s case are profoundly unsettling. Nicaragua’s unprecedented OCS claim, and its proposal to alter the regime oflegal titles, risk disrupting the orderly delimitation of the maritime spaces that, until now, has largely been accomplished amongst the States bordering the Southwestern Caribbean Sea . Regionally, Nicaragua’s attempt to claim an OCS is at odds with the position adopted by all the other Caribbean States, recognising and respecting the fact that there are no areas of OCS within the Caribbean Sea; as there are no areas which lie beyond 200nautical miles from States .7 .30Globally, Nicaragua’s claim, if endorsedby the Court, would be contrary to how the vast majority of States view the relationship between the200-nautical-mile entitlementswhich exists ipso jurewithout having to be proved, and OCS claims . Nicaragua’s alternative regime of titles would destabilise current treaties and CLCS submissionspromoting conflict where legal stability has reigned. 7 .31Critically, Nicaragua’s regime would require the establishment of vast “grey zones” undermining the orderly
279
management of ocean resources. Institutionally, Nicaragua’s
approach calls upon the Court not only to ignore interinstitutional
comity but to arrogate functions that have been
entrusted to a specialised body which has been designed and
staffed to perform a complex scientific function.
7 .32 Moreover, Nicaragua’s exorbitant thesis regarding
insular features would lead to the deprivation of the entitlements
of plenty of full-fledged islands throughout the world’s oceans .
Deeming as merely “rocks” features that evidently are islands
and that meet the criteria of those for which the international
community has recognised 200-nautical-mile entitlements,
would undoubtedly cause disruption in other parts of the world.
7 .33 The implications of Nicaragua’s claim on the global
order of the oceans are profound . The Court should stand guard
and protect the rights of all coastal States to enjoy the resources
within 200 nautical miles of their coasts as envisioned by
UNCLOS regardless of any geological or geomorphological
considerations . UNCLOS III never intended this conventional
grant to wide-shelf States to encroach upon the hard-earned 200-
nautical-mile EEZ and continental shelves of all States; the
Court should not allow this balance to be disturbed .
280
281
SUBMISSIONS
With respect to the Question of the Delimitation of the
Continental Shelf between Nicaragua and Colombia beyond 200
Nautical Miles from the Nicaraguan Coast, for the reasons set out
in its Counter-Memorial and Rejoinder, and reserving the right to
amend or supplement these Submissions, Colombia respectfully
requests the Court to adjudge and declare that:
Nicaragua’s request for a delimitation of the continental shelf
beyond 200 nautical miles from its coast is rejected with
prejudice .
CARLOS GUSTAVO ARRIETA PADILLA
Agent of Colombia
282
283
APPENDIX 1 Colombia’s Second Scientific Report The contrasting geomorphology and geology between the Upper Nicaraguan Rise and the Lower Nicaraguan Rise confirms a fundamental natural discontinuity between these areas; A review of the Report of Nicaragua’s scientific experts and comment on Nicaragua’s Reply; An assessment of Nicaragua’s submission of the 24 June 2013 with respect to Article 76 of UNCLOS except paragraph 1. Dr Lindsay Parson, Mr Peter Croker and Dr Walter Roest
284
285
APPENDIX 1
SR-1 COLOMBIA’S SECOND SCIENTIFIC REPORT The contrasting geomorphology and geology between the Upper Nicaraguan Rise and the Lower Nicaraguan Rise confirms a fundamental natural discontinuity between these areas; A review of the Report of Nicaragua’s scientific experts and comment on Nicaragua’s Reply; An assessment of Nicaragua’s submission of the 24 June 2013 with respect to Article 76 of UNCLOS except paragraph 1. Dr Lindsay Parson, Mr Peter Croker and Dr Walter Roest
Appendix (pages 283 to 398) not reproduced
399
APPENDIX 2 Additional Examples of State Practice on the Entitlements of Islands
400
401
APPENDIX 2
1
APPENDIX 2
Additional Examples of State Practice on the
Entitlements of Islands
Example No. 1: Amsterdam & Saint-Paul Islands (France)
Amsterdam and Saint-Paul Islands are located in the Indian
Ocean and are part of the French Southern and Antarctic Lands .1
France claims maritime entitlements to these islands up to their
full extent of 200 nautical miles .2 The claim has not been disputed
by other States.
1 Photographic material of Amsterdam Island by H. Pérau / IPEV (CC
BY-SA 4 .0); Photographic material of Saint-Paul Island by Francis Letourmy,
CC BY-SA 4 .0 .
2 French Republic, Decree No . 2017-367, enacted on 20 March 2017,
available at:
www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/DEPOS
IT/2017-367_fr .pdf (last visited: 21 Jan. 2019)
Amsterdam Island Saint-Paul Island
402
APPENDIX 2
2
The United Nations Environment Programme (UNEP) classifies
Amsterdam Island with an isolation index of 98.3 It is 1 .412 km
from any other inhabited island, 3 .534 km from Australia and
3 .587 km from Madagascar .
The only human presence there is a scientific station located on
Amsterdam Island, where about ten people permanently reside .4
The station depends on a regular supply of food, equipment,
materials, tools and fuel, which is only possible by sea. The
supply ship “Marion Dufresne II” operates 4 rotations per year to
the French Southern and Antarctic Lands . Since there is no
harbour on Amsterdam Island, it cannot be directly reached by
the supply ship and the last meters are operated by helicopter and
smaller vessels, further reducing the amount of supplies which
can be delivered .5
3 UNEP, “Island Directory - Islands of French Southern Territories
(France)”, available at: islands.unep.ch/INO.htm#1121 (last visited: 21 Jan.
2019). The isolation index is of a purely geographic nature and only takes into
consideration the nearest island, the nearest group and the nearest continent . In
comparison, Easter Island (Chile), the most isolated island in the world, has an
isolation index of 149.
4 Institut de l'Information Scientifique et Technique, “Recherches
Arctiques - Ile Amsterdam”, available at: recherchespolaires .inist .fr/?Ile-
Amsterdam (last visited: 21 Jan. 2019) .
5 Terres Australes et Antarctiques Françaises, “Présentation du Marion
Dufresne”, available at: www .taaf .fr/Presentation-du-Marion-Dufresne (last
visited: 21 Jan. 2019) .
403
APPENDIX 2
3
Example No. 2: Gough Island (United Kingdom)
Gough Island is a British island in the South Atlantic Ocean .
According to UNEP, Gough Island has an isolation index of 125 .6
It is about 400 km southeast of the other islands in the Tristan da
Cunha group, 2600 km from Cape Town and over 3200 km from
the nearest point of South America .7
The island is inhabited by 6 to 8 people who work in a weather
station leased by the United Kingdom to South Africa .8 It has no
airport and is only accessible by sea, although it has no port either .
Supplies are provided to the weather station staff by the yearly
rotation of the South African icebreaking polar supply and
research ship “S .A . Agulhas II” .9
6 UNEP, “Island Directory - Islands of Tristan da Cunha Islands”
available at: islands.unep.ch/INV.htm (last visited: 21 Jan. 2019) .
7 South African National Antarctic Programme, “Gough Base”,
available at: http://www.sanap.ac.za/stations/gough-base/ (last visited: 21 Jan.
2019)
8 Id .
9 See the voyage schedule of the “S.A. Agulhas II” on the South African
National Antartic Programme website, available at: www.sanap.ac.za (last
visited: 21 Jan. 2019) .
Gough Island
404
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4
Example No. 3: Bouvet Island (Norway)
Bouvet Island (Bouvetøya) is a Norwegian island located in the
South Atlantic Ocean .
In addition to the 200-nautical-mile EEZ and continental shelf,
Norway claims an outer continental shelf for Bouvet Island and
has therefore presented a submission before the CLCS .10 While
the United States, 11 Russia, 12 India, 13 Netherlands, 14 and
10 See “Continental Shelf Submission of Norway in respect of
Bouvetøya and Dronning Maud Land - Executive Summary”, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/nor30_09/nor2009_
executivesummary.pdf (last visited: 21 Jan. 2019)
11 United States Mission to the United Nations, Diplomatic Note of 4
June 2009, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/nor30_09/usa_re_no
r_2009 .pdf (last visited: 21 Jan. 2019)
12 Permanent Mission of the Russian Federation to the United Nations,
Letter dated 15 June 2009, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/nor30_09/rus_15jun
09_e .pdf (last visited: 21 Jan. 2019)
13 Permanent Mission of India to the United Nations, Note No .
NY/PM/443/1/2009 of 31 August 2009, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/nor30_09/ind_re_no
r_2009 .pdf (last visited: 21 Jan. 2019)
14 Permanent Mission of the Kingdom of the Netherlands to the United
Nations, Note No. NYV/2009/2458 of 30 September 2009, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/nor30_09/nld_re_no
r_2009 .pdf (last visited: 21 Jan. 2019)
Bouvet Island
405
APPENDIX 2
5
Japan15 have addressed Norway’s submission before the CLCS,
they only have done so as it relates to the Antarctic Treaty and not
to the entitlements generated by Bouvet Island .
For its severe isolation and extreme weather conditions, the island
has never hosted human habitation nor an economic life of its own .
According to UNEP, it has an isolation index of 125, being 1 .700
km from Antarctica and 2 .500 km from South Africa .16 The CIA
World Factbook notes that it “is recognized as the most remote
island on Earth.”17
The island is almost entirely covered by ice and has steep cliffs
on all sides, which make it extremely difficult to go ashore there .
The average temperature is around -1°C and the soil is barren .
The island is uninhabited and is only visited by expeditions of the
Norwegian Polar Institute .18 The research station erected in 2014
by Norway can hold six people for periods of two to four
months .19
15 Permanent Mission of the Japan to the United Nations, Note
SC/09/389 of 19 November 2009, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/nor30_09/jpn_19no
v2009 .pdf (last visited: 21 Jan. 2019)
16 UNEP, “Island Directory - Islands of Norway”, available at:
islands .unep .ch/ICA .htm#1878 (last visited: 21 Jan. 2019) .
17 CIA World Factbook, “Antarctica – Bouvet Island”, available at:
https://www.cia.gov/library/publications/resources/the-worldfactbook/
geos/bv .html (last visited: 21 Jan. 2019) .
18 Norwegian Polar Institute, “Bouvetøya (Bouvet Island)”, available at:
http://www.npolar.no/en/bouvetoya/ (last visited: 21 Jan. 2019) .
19 CIA World Factbook, “Antarctica – Bouvet Island”, available at:
https://www.cia.gov/library/publications/resources/the-worldfactbook/
geos/bv .html (last visited: 21 Jan. 2019) .
406
APPENDIX 2
6
Example No. 4: Prince Edward Islands (South Africa)
Prince Edward and Marion Islands are two South African islands
located in the Indian Ocean .
South Africa claims 200-nautical-mile maritime entitlements to
these islands, alongside with an outer continental shelf . To this
end, it filed before the CLCS a joint submission with France 2.0
The claim has not been disputed .
According to UNEP, Prince Edward Island has an isolation index
of 79, and Marion Island of 77,21 being located 1900 km southeast
of Cape Town .22
20 See “Joint Submission by France and South Africa to the Commission
on the Limits of the Continental Shelf in the area of the Crozet Archipelago
and the Prince Edward Islands”, available at:
www.un.org/depts/los/clcs_new/submissions_files/frazaf34_09/frazaf2009ex
ec_sum_resume .pdf (last visited: 21 Jan. 2019)
21 UNEP, “Island Directory - Islands of South Africa”, available at:
http://islands.unep.ch/IRL.htm#1099 (last visited: 21 Jan. 2019) .
22 Encyclopaedia Britannica, “Prince Edward Island”, available at:
https://www.britannica.com/place/Prince-Edward-Island-South-Africa (last
visited: 21 Jan. 2019) .
Prince Edward Island Marion Island
407
APPENDIX 2
7
The islands’ soil is barren and they are inhabited by a team of 10
to 12 researchers of the South African National Antarctic
Programme .23 As noted in an article:
“Conditions on Marion are harsh – constant winds,
low temperatures and large amounts of snow and
rain make it a rather inhospitable place to live . The
vegetation is restricted to grasses, mosses and
lichens, and much of the island’s lowland is marshy
due to the high precipitation.”24
Example No. 5: South Orkney Islands (Argentina / United
Kingdom)
The South Orkney Islands are a group of islands located in the
Antarctic Ocean . Its sovereignty is disputed between Argentina
and the United Kingdom . The two main islands are Coronation
Island and Laurie Island .25
23 Antarctic Legacy of South Africa, “Marion Station”, available at:
http://blogs.sun.ac.za/antarcticlegacy/about-2/marion-station/ (last visited: 21
Jan. 2019)
24 Ibid .
25 Photographic material of Coronation Island by Ben Tulis (CC BY-SA
4 .0); Photographic material of Saint-Paul Island by Francis Letourmy, CC BYSA
4 .0
Coronation Island Laurie Island
408
APPENDIX 2
8
In addition to a 200-nautical-mile EEZ and continental shelf,
Argentina has claimed that these islands are entitled to an outer
continental shelf and to this end it has filed a submission before
the CLCS 2.6 While the United States, 27 Russia, 28 India, 29
Netherlands,30 Japan,31 the United Kingdom32 and Chile33 have
addressed Argentina’s submission before the CLCS, they only
have done so as it relates to the Antarctic Treaty and not to the
entitlements generated by the South Orkney Islands .
26 See “Outer Limit of the Continental Shelf – Argentine Submission”,
available at
http://www.un.org/depts/los/clcs_new/submissions_files/arg25_09/arg2009e_
summary_eng.pdf (last visited: 21 Jan. 2019)
27 United States Mission to the United Nations, Diplomatic Note of 19
August 2009, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/arg25_09/usa_re_ar
g_2009 .pdf (last visited: 21 Jan. 2019)
28 Permanent Mission of the Russian Federation to the United Nations,
Note No. 2282/N of 24 August 2009, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/arg25_09/rus_re_ar
g_2009e .pdf (last visited: 21 Jan. 2019)
29 Permanent Mission of India to the United Nations, Note No .
NY/PM/443/1/2009 of 31 August 2009, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/arg25_09/ind_re_ar
g_2009 .pdf (last visited: 21 Jan. 2019)
30 Permanent Mission of the Kingdom of the Netherlands to the United
Nations, Note No. NYV/2009/2459 of 30 September 2009, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/arg25_09/nld_re_ar
g_2009 .pdf (last visited: 21 Jan. 2019)
31 Permanent Mission of the Japan to the United Nations, Note
SC/09/390 of 19 November 2009, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/arg25_09/jpn_re_ar
g_2009 .pdf (last visited: 21 Jan. 2019)
32 United Kingdom Permanent Mission to the United Nations, Note No .
84/09 of 6 August 2009, available at:
http://www.un.org/depts/los/clcs_new/submissions_files/arg25_09/clcs_45_2
009_los_gbr .pdf (last visited: 21 Jan. 2019)
33 Permanent Mission of Chile to the United Nations, Note No . 93/2016
of 25 May 2016, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/arg25_09/chl_re_ar
g_2016_e .pdf (last visited: 21 Jan. 2019)
409
APPENDIX 2
9
The South Orkney Islands are about 600 km from the Antarctic
Peninsula and 1,440 km from Tierra del Fuego . They are covered
with ice and are completely barren.34
There are two scientific stations in the South Orkney Islands, an
Argentinean one – Orcadas Station35 – and a British one – Signy
Station .36
Example No. 6: South Georgia Island (Argentina / United
Kingdom)
South Georgia Island is an island in the South Atlantic Ocean,
whose sovereignty is disputed between Argentina and the United
Kingdom .
34 National Geospatial Intelligence Agency, “South Orkney Islands:
Antarctica”, available at:
https://geographic.org/geographic_names/antname.php?uni=14284&fid=antg
eo_122 (last visited: 21 Jan. 2019)
35 S. Petrowitz, “A special visit to Orcadas Station”, available at:
oceanwide-expeditions.com/blog/a-special-visit-to-orcadas-station (last
visited: 21 Jan. 2019) .
36 British Antarctic Survey, “Signy Research Station”, available at:
www .bas .ac .uk/polar-operations/sites-and-facilities/facility/signy/ (last
visited: 21 Jan. 2019) .
South Georgia Island
410
APPENDIX 2
10
Both Argentina and the United Kingdom have claimed before the
CLCS an outer continental shelf from South Georgia Island37 and
have mutually objected the submissions due to the sovereignty
dispute .
South Georgia is 1370 km from the Falkland Islands and 4815 km
from South Africa . The UNEP classifies it with an isolation index
of 113 .38
The soil in South Georgia Island is mainly covered with ice and
is barren .39 There is a scientific station which houses 10 scientists
from the British Antarctic Survey .40 Supplies and food are
delivered every 6 weeks from the Falklands Islands by the British
patrol vessel “Pharos SG”, since the island is only accessible by
sea .41
37 See “Submission to the Commission on the Limits of the Continental
Shelf in respect of the Falkland Islands, and of South Georgia and the South
Sandwich Islands”, available at:
www .un .org/depts/los/clcs_new/submissions_files/gbr45_09/gbr2009fgs_exe
cutive%20summary.pdf (last visited: 21 Jan. 2019); and “Outer Limit of the
Continental Shelf – Argentine Submission”, available at
http://www.un.org/depts/los/clcs_new/submissions_files/arg25_09/arg2009e_
summary_eng.pdf (last visited: 21 Jan. 2019)
38 UNEP, “Island Directory - Islands of South Georgia”, available at:
http://islands.unep.ch/INQ.htm#924 (last visited: 21 Jan. 2019) .
39 CIA World Factbook “South Georgia and South Sandwich Islands”,
available at: https://www.cia.gov/library/publications/the-worldfactbook/
geos/sx.html (last visited: 21 Jan. 2019) .
40 Government of South Georgia and the South Sandwich, “South
Georgia & the South Sandwich Islands”, available at:
http://www.gov.gs/information/about-sgssi/ (last visited: 21 Jan. 2019) .
41 British Antarctic Survey, “Life on the sub Antarctic island of South
Georgia”, available at: https://www.bas.ac.uk/blogpost/life-on-the-subantarctic-
island-of-south-georgia/ (last visited: 21 Jan. 2019) .
411
APPENDIX 2
11
Example No. 7: Crozet Archipelago (France)
The Crozet Archipelago is located in the Indian Ocean and is part
of the French Southern and Antarctic Lands . Its three main islands
are Possession Island, East Island and Pigs Island .
In addition to 200-nautical-mile entitlements around the Crozet
Archipelago,42 France also claims an outer continental shelf to
these islands and to this end it has filed a joint submission with
42 French Republic, Decree No . 2017-366 of 20 March 2017, available
at:
www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000034251793
&dateTexte=20180608 (last visited: 21 Jan. 2019)
Possession Island East Island
Pigs Island
412
APPENDIX 2
12
South Africa before the CLCS .43 This claim has not been disputed
by other States .
The Crozet Archipelago is located 3076 km south of Madagascar
and 2400 km north of the coast of Antarctica . The average annual
temperature is about 5°C and the wind regime is “quite violent”,
blowing with gusts of over 100 km/h on average 120 days per
year .44
UNEP classifies Pigs Island with an isolation index of 90 and
Possession and East Islands of 83 .45 As noted by a scientific
journal:
“Hier comme aujourd’hui, ce sont les conditions
d’isolement et les efforts déployés pour les
surmonter qui font de ces îles un milieu extrême.”46
The only human presence in the Archipelago is the Alfred Faure
scientific station on Possession Island where, depending on the
43 See “Joint Submission by France and South Africa to the Commission
on the Limits of the Continental Shelf in the area of the Crozet Archipelago
and the Prince Edward Islands”, available at:
www.un.org/depts/los/clcs_new/submissions_files/frazaf34_09/frazaf2009ex
ec_sum_resume .pdf (last visited: 21 Jan. 2019)
44 Terres Australes et Antarctiques Françaises, “L’archipel de Crozet”,
available at: http://www.taaf.fr/L-archipel-de-Crozet (last visited: 21 Jan.
2019) .
45 UNEP, “Island Directory - Islands of French Southern Territories
(France)”, available at: islands.unep.ch/INO.htm#1121 (last visited: 21 Jan.
2019) .
46 Jean-François Le Mouël, Patrick Arnaud, Paul Courbon et al, “La
vallée des Phoquiers aux îles Crozet. Un fondoir à graisse, témoin des
premières occupations humaines”, Archéopages : Archéologie et Societé, No .
38, July 2013, available at: https://journals .openedition .org/archeopages/501
(last visited: 21 Jan. 2019)
413
APPENDIX 2
13
season, 15 to 60 scientists work . It is visited 4 times a year by the
supply ship “Marion Dufresne II”, which delivers supplies and
rotating crews of scientists .47 The Archipelago is only accessible
by sea, although since there is no harbour on Possession Island, it
cannot be directly reached by the supply vessel and the last meters
must be operated by helicopter and smaller vessels .48
Example No. 8: Wrangel Island (Russia)
Wrangel Island is a Russian island located in the Arctic Ocean . 49
In addition to full maritime entitlements, Russia claims an outer
continental shelf from Wrangel Island and has relied on it in its
submission before the CLCS .50
47 French Polar Team, “Alfred Faure Station / Crozet Islands - TAAF”,
available at: http://french-polarteam.
fr/FT5W_Alfred_Faure_Station_Crozet_Islands.php (last visited: 21
Jan. 2019)
48 Terres Australes et Antarctiques Françaises, “Présentation du Marion
Dufresne”, available at: www .taaf .fr/Presentation-du-Marion-Dufresne (last
visited: 21 Jan. 2019) .
49 Photographic material on Wrangel Island by Виталий Дворяченко
(CC BY-SA 4 .0)
50 See “Outer limits of the continental shelf beyond 200 nautical miles
from the baselines: Submissions to the Commission: Submission by the
Russian Federation”, available at:
Wrangel Island
414
APPENDIX 2
14
While Canada,51 Denmark, 52 Japan, 53 Norway, 54 and the United
States55 have reacted to the Russian submission before the CLCS
on different grounds (lack of data, sovereignty, delimitation or
methodology), Wrangel Island’s entitlement to a continental shelf
has not been disputed .
The soil is barren and frozen.56 The mean temperature is rarely
above 0°C .57 The only human presence on the island is a station
where 7 Russian rangers live (although only 3 or 4 stay through
http://www.un.org/Depts/los/clcs_new/submissions_files/submission_rus.htm
(last visited: 21 Jan. 2019) .
51 Permanent Mission of Canada to the United Nations, Note No . 0145
of 18 January 2002, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/CLCS_01_20
01_LOS__CANtext.pdf (last visited: 21 Jan. 2019) .
52 Permanent Mission of Denmark to the United Nations, Note No .
119.N.8 of 4 February, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/CLCS_01_20
01_LOS__DNKtext.pdf (last visited: 21 Jan. 2019) .
53 Permanent Mission of Japan to the United Nations, Note No.
SC/02/084 of 25 February 2002, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/CLCS_01_20
01_LOS__JPNtext.pdf (last visited: 21 Jan. 2019) .
54 Permanent Mission of Norway to the United Nations, Note of 20
March 2002, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/CLCS_01_20
01_LOS__NORtext.pdf (last visited: 21 Jan. 2019) .
55 United States Mission to the United Nations, Note of 28 February
2002, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/rus01/CLCS_01_20
01_LOS__USAtext.pdf (last visited: 21 Jan. 2019) .
56 The Columbia Encyclopedia, “Wrangel Island”, available at:
https://www.encyclopedia.com/places/commonwealth-independent-statesand-
baltic-nations/cis-and-baltic-physical-geography/wrangel (last visited: 21
Jan. 2019)
57 National Oceanic and Atmospheric Administration, “Vrangelja
Island”, available at: ftp://ftp.atdd.noaa.gov/pub/GCOS/WMONormals/
TABLES/REG_II/RA/21982.TXT (last visited: 21 Jan. 2019) .
415
APPENDIX 2
15
the winter), who are supplied with food and fuel once a year in
the spring .58
Example No. 9: Kerguelen Islands (France)
The Kerguelen Islands are in the Indian Ocean and are part of the
French Southern and Antarctic Lands . They are also known as
Desolation Islands .59 The main island is Grande Terre .
France claims 200-nautical-mile maritime entitlements to the
Kerguelen Islands, which have been recognized by Australia in a
1982 maritime delimitation treaty.60
58 Otts World, “Wrangel Island”, available at:
https://www.ottsworld.com/wrangel-island/ (last visited: 21 Jan. 2019)
59 James Cook noted that it is “Une île assez petite que, à cause de sa
stérilité, j’appellerais avec justesse l’île de la Désolation, si je ne voulais pas
enlever à M. de Kerguelen l’honneur de lui donner son nom”. See E. Giret, “La
« base » de Kerguelen: les travaux et les jours”, Ethnologie française, Vol. 36,
2006, available at : https://www.cairn.info/revue-ethnologie-francaise-2006-
3-page-443 .htm (last visited: 21 Jan. 2019)
60 Agreement on Maritime Delimitation between the Government of
Australia and the Government of the French Republic, 4 January 1982.
Grande Terre Island
416
APPENDIX 2
16
In addition, France claims an outer continental shelf from the
Kerguelen Islands and has filed a submission before the CLCS to
this end 6.1 While Japan62 and the Netherlands63 have reacted to
this submission, they have only done so as it relates to the
Antarctic Treaty and not to the Kerguelen Islands’ entitlements .
UNEP classifies Kerguelen Islands with an isolation index of
82 .64 They are located 2000 km from the coast of Antarctica, 3400
km from La Réunion and 4800 km from Australia.65
The only human presence on the islands is the Port-aux-Français
scientific base .66 The station depends on a regular supply of food,
equipment, materials, tools and fuel, which is only possible by
sea . The supply ship “Marion Dufresne II” operates four rotations
per year to the French Southern and Antarctic Lands . Since there
61 “Executive Summary of the French Submission to the CLCS in
respect of the areas of the French Antilles and the Kerguelen Islands”, available
at:
http://www.un.org/Depts/los/clcs_new/submissions_files/fra09/fra_executive
summary_2009.pdf (last visited: 21 Jan. 2019)
62 Permanent Mission of Japan to the United Nations, Note No.
SC/09/391 of 19 November 2009, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/fra09/jpn_re_nv_fra
19112009 .pdf (last visited: 21 Jan. 2019)
63 Permanent Mission of the Kingdom of the Netherlands to the United
Nations, Note No. NYV/2009/2184 of 28 August 2009, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/gbr08/nld_re_nv_gr
b2009 .pdf (last visited: 21 Jan. 2019)
64 UNEP, “Island Directory - Islands of French Southern Territories
(France)”, available at: islands.unep.ch/INO.htm#1121 (last visited: 21 Jan.
2019) .
65 Terres Australes et Antarctiques Françaises, “L’archipel de
Kerguelen”, available at: http://www.taaf.fr/L-archipel-de-Kerguelen (last
visited: 21 Jan. 2019) .
66 Ibid .
417
APPENDIX 2
17
is no harbour, the station cannot be directly reached by the supply
ship and the last meters have to be operated by helicopter and by
smaller vessels, further reducing the amount of supplies which
can be delivered .67
Example No. 10: Saint Matthew Island (USA)
Saint Matthew Island is located in the Bering Sea and belongs to
the United States .
The United States claims a 200-nautical-mile EEZ from Saint
Matthew Island, entitlement which was recognized by the Soviet
Union in a 1990 maritime delimitation treaty .68
67 Terres Australes et Antarctiques Françaises, “Présentation du Marion
Dufresne”, available at: www .taaf .fr/Presentation-du-Marion-Dufresne (last
visited: 21 Jan. 2019) .
68 Agreement between the United States of America and the Union of
Soviet Socialist Republics on the Maritime Boundary, with Annex, signed on
1 June 1990.
Saint Matthew Island
418
APPENDIX 2
18
The island is located 320 km from the nearest inhabited Alaskan
settlement, its vegetation is predominantly low growing tundra
and has been described as a “fog-bound, wind-swept island” .69
The only human presence in the island is a group of 8 scientists
stationed therein .70
Example No. 11: Bear Island (Norway)
Bear Island (Bjørnøya) is a Norwegian island in the Barents Sea .
Norway claims a 200-nautical-mile EEZ from the island and
relied on its entitlements in the OCS submission it filed before the
69 D. Griffin, “A history of human land use on St. Matthew Island,
Alaska”, Alaska Journal of Anthropology, Vol. 2, 2004, p. 84, available at:
http://www.alaskaanthropology.org/wp-content/uploads/2017/08/Vol_2_1-2-
Article-6-Griffin .pdf (last visited: 21 Jan. 2019)
70 N. Rozell, “Even by Alaska standards, St. Matthew Island is a lonely
place”, Daily News-Miner, 2 September 2012, available at:
http://www.newsminer.com/features/sundays/alaska_science_forum/even-byalaska-
standards-st-matthew-island-is-a-lonely/article_c0cf60e2-ca0f-5ce0-
ac6b-03efaa9d394b .html (last visited: 21 Jan. 2019) .
Bear Island
419
APPENDIX 2
19
CLCS .71 While Denmark,72 Iceland,73 Russia74 and Spain75 have
reacted to Norway’s submission, they did so on grounds different
to the entitlements generated by Bear Island .
For its harsh Arctic climate, with strong winds and frequent fog,
the island’s soil is barren and lacks vegetation.76 The island is
very inaccessible due to its “almost unapproachable coastline”.77
The only human presence in the island is a group of 11 scientists
who work in a Norwegian radio and weather station for periods
of 6 months .78
71 “Continental Shelf Submission of Norway in respect of areas in the
Arctic Ocean, the Barents Sea and the Norwegian Sea – Executive Summary”,
available at:
www .un .org/Depts/los/clcs_new/submissions_files/nor06/nor_exec_sum.pdf
(last visited: 21 Jan. 2019) .
72 Permanent Mission of Denmark to the United Nations, Note No .
119.N.8 of 24 January 2007, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nor06/dnk07_0021
8 .pdf (last visited: 21 Jan. 2019) .
73 Permanent Mission of Iceland to the United Nations, Note No .
FNY07010008/97.B.512 of 29 January 2007, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nor06/isl07_00223.
pdf (last visited: 21 Jan. 2019) .
74 Permanent Mission of the Russian Federation to the United Nations,
Note No .82/n of 21 Jan. 2007, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nor06/rus_07_0032
5 .pdf (last visited: 21 Jan. 2019) .
75 Permanent Mission of Spain to the United Nations, Note No .184
JR/ot of 3 March 2007, available at:
http://www.un.org/Depts/los/clcs_new/submissions_files/nor06/esp_0700348
.pdf (last visited: 21 Jan. 2019) .
76 Spitsbergen – Svalbard, “Bjørnøya”, available at:
https://www.spitsbergen-svalbard .com/spitsbergen-information/islandssvalbard-
co/bjornoya.html (last visited: 21 Jan. 2019) .
77 Norwegian Polar Institute, “Bjørnøya”, available at:
http://www .npolar .no/en/the-arctic/svalbard/bjornoya/ (last visited: 21 Jan.
2019) .
78 Spitsbergen – Svalbard, “Bjørnøya Meteo (Bear Island weather
station)”, available at: https://www.spitsbergen-svalbard .com/photospanoramas-
videos-and-webcams/spitsbergen-panoramas/bjoernoeyameteo
.html (last visited: 21 Jan. 2019) .