History of Proceedings
The proceedings were instituted by application of Nicaragua in December 2001. Nicaragua then submitted its Memorial in April 2003, in accordance with the time-limit set by the Order of the Court of 26 February 2002. The Court had set June 2004 as the date for the submission of a Counter-Memorial by Colombia. However, Colombia submitted preliminary objections in July 2003. Colombia requested the Court to declare itself to be without jurisdiction and to dismiss Nicaragua’s application. Nicaragua submitted a written statement in reply in January 2004. The Court held public hearings on preliminary objections in June 2007 and issued a judgment in December 2007.
Following the decision on preliminary objections, Colombia submitted a Counter-Memorial in November 2008. Nicaragua submitted a Reply in November 2009 and Colombia its Rejoinder in June 2010. However, before the Court could proceed to consider the merits of the case, both Costa Rica and Honduras applied to the Court for leave to intervene in the proceedings (in February and June 2010 respectively). Nicaragua and Colombia filed written responses in request to both applications. Oral proceedings on the applications for intervention took place in October 2010. The Court issued a judgment denying permission to intervene in both cases in May 2011. At this point the Court was finally able to proceed to the merits of the case. Public hearings on the merits were held between 23 April and 4 May 2012.
This brief review of the procedural history of the case shows that the request for a judgment on preliminary objections, as well as the intervention by Honduras and Costa Rica, delayed the proceedings on the merits by several years. Although it has been 11 years since the submission of the dispute to the Court by Nicaragua, the Court is now due to issue its judgment, six months after the conclusion of hearings on the merits.
Jurisdiction
Nicaragua claimed that the Court had jurisdiction on two grounds namely: (a) under Article XXXIV of the of the American Treaty on Pacific Settlement 1948 (‘the Pact of Bogota’) and (b) on the basis of declarations made by both Nicaragua and Colombia accepting the compulsory jurisdiction of the Court in accordance with Article 36(2) of the Statute of the Court. Article XXXI of the Pact of Bogotá provides that 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.” Colombia objected at the preliminary stage to jurisdiction on both these grounds. First, Colombia argued that the matters raised by Nicaragua had been settled under the 1928 Barcenas-Esguerra Treaty between the two countries and its protocol of 1930. Since Article VI of the Pact of Bogotá provides that the compulsory jurisdiction of the ICJ will not apply regarding “matters already settled by arrangement between the parties,…, or which are governed by agreements or treaties in force on the date of the conclusion of the present Treaty” the jurisdiction of the Court could not be based on the Pact of Bogotá. Nicaragua claimed the 1928 Treaty was invalid, and that even if it remained in force it did not cover all the matters in dispute between the parties. In its judgment on preliminary objections of December 2007, the Court held that the 1928 Treaty was valid and in force at the time of conclusion of the Pact of Bogotá.
The Court further held that the 1928 Treaty granted sovereignty over the islands of San Andrés, Providencia and Santa Catalina to Colombia. The issue of sovereignty over these islands was therefore “settled” within the meaning of the Pact of Bogotá. The Court thus upheld Colombia’s preliminary objections to its jurisdiction regarding sovereignty over those islands. However, the Court considered that the 1928 Treaty did not settle the question of the scope and composition of the rest of the San Andrés Archipelago or the issue of sovereignty over Roncador, Quitasueño, and Serrana. As a result, the Court held that it had jurisdiction, under the Pact of Bogotá, to adjudicate on the dispute regarding sovereignty over those other maritime features.
Colombia had also asserted that the parties had agreed in the 1928 Treaty and 1930 Protocol on the 82nd meridian as the delimitation line of maritime areas between them and that the delimitation issue was therefore also “settled” within the meaning of the Pact of Bogotá. The Court held that the 1928 Treaty and its 1930 Protocol had not effected a general delimitation of the maritime boundary between Colombia and Nicaragua, and thus concluded that it had jurisdiction with respect to the maritime delimitation.
Regarding Article 36(2) jurisdiction, Colombia submitted that it has withdrawn its declaration accepting the compulsory jurisdiction of the Court prior to the submission of the application of Nicaragua and that even if the declaration was found to be still in force, the dispute would fall outside the scope of the declaration as a result of a reservation excluding disputes arising out of facts prior to 1932. Furthermore, Colombia argued that jurisdiction under the Pact was exclusive, that is, that since the Court did not have jurisdiction under the Pact of Bogotá, it could not proceed further to consider jurisdiction under the optional clause. The Court held that since it had jurisdiction under the Pact of Bogotá to deal to with certain issues that were not settled by the 1928 Treaty, no purpose was served by examining other grounds of jurisdiction. The issue of optional clause jurisdiction would only arise regarding the issue of sovereignty over the islands of San Andrés, Providencia and Santa Catalina. The Court rejected Colombia’s argument that jurisdiction under the Pact of Bogotá was exclusive. However, as the Court had held that there was no legal dispute between the parties regarding sovereignty over the islands of San Andrés, Providencia and Santa Catalina, the Court could not have jurisdiction either under the Pact of Bogotá or under the optional clause.
Disputed Issues
The case before the Court has two main components namely, the determination of sovereignty over certain maritime features (including Quitasueño, Roncador and Serrano) and a maritime delimitation based on the findings on sovereignty. Nicaragua claims sovereignty over all maritime features off her Caribbean coast not proven to be part of the San Andres Archipelago. Colombia, for its part, claims sovereignty over all the maritime features in dispute between the parties, which it describes as forming part of the San Andres Archipelago.
The parties also disagree on the type of maritime delimitation at issue. 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). Colombia argues that Nicaragua’s request is inadmissible as it changes the subject of the dispute as originally submitted, and that the Court should accordingly proceed to delimit the EEZ and the continental shelf by a single maritime boundary.
Regarding the maritime delimitation, the parties disagree on numerous points, a thorough analysis of which is beyond the scope of this post. Some key issues are outlined below. On the issue of relevant coasts, Nicaragua argues that the mainland coasts of Nicaragua and Colombia provide the relevant legal framework for continental shelf delimitation beyond 200 nautical miles. If the delimitation only concerns the continental shelf up to 200 nautical miles then Nicaragua argues that Colombia’s mainland coast is not relevant to the delimitation. Colombia argues that the relevant coasts are both the east and west facing coasts associated with Colombia’s islands comprising the San Andres Archipelago and Nicaragua’s coast.
The parties also disagree on the character of certain features, including that of Quitasueño. Colombia argues that there are several features within the Quitasueño bank which qualify as island. Nicaragua, on the other hand, maintains that Quitasueño is a permanently submerged bank. As for the entitlements of islands under Colombian sovereignty, Nicaragua argues that the islands of San Andres, Providencia and Santa Catalina should be enclaved and accorded a maritime entitlement of 12 nautical miles and further submits that any other cays found to be under Colombian sovereignty should have a 3 nautical mile enclave drawn around them. Colombia argues that all islands generate maritime rights and entitlements extending out to a distance of 200 nautical miles from their baselines in exactly the same manner as other land territory. In particular, Colombia argues that the territorial sea entitlement of islands (including cays and rocks) of 12 nautical miles trumps opposing EEZ claims.
The President of the Court, Judge Peter Tomka, will read the Court’s Judgment during a public sitting beginning at 2pm (GMT) on Monday 19th November 2012. This sitting will be broadcast live and in full on the Court’s website.
*Photo depicts a maritime delimitation workshop held at the IFLOS Summer Academy 2012 and does not represent the Nicaragua/Colombia delimitation.