Before analysing certain aspects of the decision, it is worth noting the Colombian reaction to the maritime delimitation. President Juan Manuel Santos of Colombia described the judgment as “seriously wrong”, containing “omissions, errors, excesses and inconsistencies that we cannot accept.” On Wednesday 28 November 2012, Colombia withdrew from the Pact of Bogotá, a regional treaty whereby the parties “recognize, in relation to any other American state, the jurisdiction of the Court as compulsory ipso facto in all disputes of a juridical nature that arise among them.” While this withdrawal will not have any effect on the binding nature of the decision in the Nicaragua v Colombia case, it will mean that in future, the ICJ will not have jurisdiction to hear disputes involving Colombia, unless by special agreement. Colombia has called for bilateral talks with Nicaragua on the decision. In the meantime, Nicaraguan President Daniel Ortega announced on 26 November 2012 that Nicaragua had started to “exert sovereignty” over the maritime areas awarded by the Court to Nicaragua.
Admissibility of revised claim
As noted previously, in its application and Memorial, Nicaragua requested the Court to delimit a single maritime boundary of the EEZ and the continental shelf. However, in its Reply and during oral proceedings, Nicaragua requested that the Court only delimit the continental shelf (including areas beyond 200nm of the Nicaraguan coast, comprising the extended continental shelf). The Court held that the extended continental shelf delimitation requested was formally a new claim but that it had not changed the subject matter of the dispute. The revised claim by Nicaragua still concerned the continental shelf, but on different legal grounds (that is natural prolongation rather than distance). Judge Owada, in his Dissenting Opinion, found that Nicaragua’s revised claim constituted a radical transformation of the subject matter of the dispute and should have been declared inadmissible.
The Court held that QS 32, a feature of the Quitasueño bank, was a rock within the meaning of Article 121(3) of UNCLOS and thus generated no entitlement to a continental shelf or EEZ. The Court further held that Quitasueño was unsuitable to use as a basepoint, and it was appropriate to disregard small features in the construction of a median line when they would distort the relevant geography.
Although the Court touched upon the issues raised by the UNCLOS Article 121(3) distinction between rocks which are entitled only to a territorial sea and all other islands, which are entitled to an EEZ and a continental shelf, the decision does not fully engage with the distinction as one might have hoped. For example, in the case of the feature of Serrana, the Court held (at para.180) that it was unnecessary to determine whether it was an Article 121(3) rock, since it lay within 200 miles of Providencia (a non-rock island) and its entitlements, if any, beyond a territorial sea would entirely overlap with those of Providencia. While the continental shelves of Providencia and Serrana would overlap if both were given a 200nm entitlement, the Court does not award Providencia a full 200nm entitlement. It is suggested that this should have brought the status of the feature of Serrana back into play; instead the Court concludes (at para. 238) that “its small size, remoteness and other characteristics mean that, in any event, the achievement of an equitable result requires that the boundary line follow the outer limit of the territorial sea around the island.” Thus, although the Court cites its decision in Qatar v Bahrain that islands, regardless of their size, generate the same maritime rights as other land territory, it relies on the size and “other characteristics” of Serrana to deny it any entitlements beyond a territorial sea, whilst at the same time avoiding the question of whether it is in fact a rock, and thus only entitled to a territorial sea.
Outer Continental Shelf
Nicaragua had requested that the Court delimit the continental shelf (including areas beyond 200nm of the Nicaraguan coast, comprising the extended or outer continental shelf). As Colombia is not a party to UNCLOS, the case had to be decided in accordance with customary international law. The parties disagreed on the customary law nature of rules regarding the continental shelf beyond 200nm. During oral proceedings Judge Bennouna addressed the following question to both parties:“Les règles posées à l’article 76 de la convention des Nations Unies de 1982 sur le droit de la mer, pour la détermination de la limite extérieure du plateau continental au-delà des 200 milles marins, peuvent-elles être considérées aujourd’hui comme ayant le caractère de règles de droit international coutumier?” Nicaragua submitted that Article 76(1) – 76(7) had the status of customary law while Colombia submitted that while 76(1) was customary law, there was no evidence that 76(4) – 76(9) had customary law status.
The Court held that Article 76(1) of UNCLOS (which defines the continental shelf as extending to the outer edge of the continental margin) constituted customary international law and that it need not decide on the status of the other paragraphs of that article (which define the outer edge of the continental margin and how it should be determined). As Nicaragua had not, on the evidence, established that its continental margin extended to overlap with Colombia’s 200nm continental shelf entitlement, the Court held that it would not delimit the continental shelf boundary between Nicaragua and Colombia’s mainland coast. Further discussion of the capacity of the Court to determine the outer continental shelf is contained in the Separate Opinion of Judge Donoghue and in the Declarations of Judge ad hoc Mensah and Judge ad hoc Cot.
Judge Bennouna’s question indicates that the Court was concerned with the status of rules on the determination of the continental margin. The Court seems to have chosen a half-way stance – stating that while the rule that the continental shelf extends to the outer edge of the continental margin has the status of customary international law, the methods of establishing the edge of the margin may not necessarily be so. Leaving aside the question of the Commission on the Limits of the Continental Shelf (‘CLCS’), it is difficult to imagine that State practice could have coalesced around Article 76(1) but not around 76(4), that is could States be said to agree that the shelf extends to the continental margin if there is no agreement on how the outer edge of the margin is to be measured?
While the Court avoided the issue of Nicaragua’s extended continental shelf, if the recommendations of the CLCS eventually indicate that Nicaragua has a continental shelf extending beyond 200nm, the status of the line indicated by the Court as the eastern limit of the relevant area will have to be evaluated. Is it to be presumed that this line and the perpendicular parallel lines drawn by the Court would extend eastwards? If not, the result would be a bizarre cut off effect.
Recent jurisprudence both of the ICJ and of ITLOS in the Bangladesh/Myanmar case had suggested that overlapping continental shelf and EEZ entitlements were to be delimited using a three-step approach, that is (1) drawing of a provisional median line; (2) consideration of relevant circumstances calling for the shifting of the line; and (3) an assessment of the proportionality of the share of maritime area granted to a party compared to the length of its relevant coasts. The Court in Nicaragua v. Colombia confirmed the three-step approach would “normally” be employed, finding that despite the geographical context of the case, the construction of a provisional median line was both “feasible” and “appropriate” as a starting point for the delimitation. While the Court theoretically followed the three-step process, the manner in which the provisional median line was adjusted to take relevant circumstances (namely disparity in coastal length and the overall geographic context) into account was somewhat unexpected. The Court, in shifting the median line, effectively introduced two parallel lines, enclosing the large Colombian islands and enclaving Quitasueño and Serrana, with the areas falling outside these lines being awarded to Nicaragua. As a result, Colombia was granted significantly less maritime entitlements than it had claimed. Distinct from any analysis of the equitable nature of such a delimitation is the question of whether the lines drawn can really be described as an “adjustment” of the provisional median line. The issue of methodology was raised by Judge Xue and Judge Keith in their Declarations and by Judge Abraham in his Separate Opinion.
The Court was faced with a difficult geographical context for delimitation, that of small Colombian features off the coast of Nicaragua, situated far from the Colombian mainland. Given the significant difference in the entitlements claimed by the parties, it was inevitable that one, if not both of them were likely to be disappointed with the judgment. The decision raises interesting questions which may come to light in future delimitations including the maritime entitlements of small islands, the authority of the ICJ to delimit the outer continental shelf, the relationship between the ICJ and the CLCS, and the relevance of the three-step delimitation methodology in certain geographical circumstances.