Territorial and Maritime Dispute (Nicaragua v. Colombia)
OVERVIEW OF THE CASE
On 6 December 2001, the Republic of Nicaragua filed an Application instituting proceedings against the Republic of Colombia in respect of a dispute concerning “a group of related legal issues subsisting” between the two States “concerning title to territory and maritime delimitation”. On 28 April 2003, Nicaragua filed its Memorial within the time-limit laid down by the Court. On 21 July 2003, Colombia filed preliminary objections to jurisdiction, leading to the suspension of the proceedings on the merits.
In its Judgment on the preliminary objections, rendered on 13 December 2007, the Court found that it had jurisdiction to entertain the dispute concerning sovereignty over the maritime features claimed by the Parties, other than the islands of San Andrés, Providencia and Santa Catalina. The Court held that the treaty signed in 1928 between Colombia and Nicaragua (in which Colombia recognized Nicaragua’s sovereignty over the Mosquito Coast and the Corn Islands, while Nicaragua recognized Colombia’s sovereignty over the islands of San Andrés, Providencia and Santa Catalina, and the maritime features forming part of the San Andrés Archipelago) had settled the issue of sovereignty over the islands of San Andrés, Providencia and Santa Catalina, that there was no extant legal dispute between the Parties on that question and that, therefore, the Court could not have jurisdiction over it under the American Treaty on Pacific Settlement (also known as the Pact of Bogotá and invoked by Nicaragua as basis for the Court’s jurisdiction in the case). On the other hand, as regards the question of the scope and composition of the rest of the San Andrés Archipelago, the Court considered that the 1928 Treaty failed to provide answers as to which other maritime features formed part of the Archipelago and thus that it had jurisdiction to adjudicate on the dispute regarding sovereignty over those other maritime features. As for its jurisdiction with respect to the maritime delimitation issue, the Court concluded that the 1928 Treaty had not effected a general delimitation of the maritime areas between Colombia and Nicaragua and that, as the dispute had not been settled within the meaning of the Pact of Bogotá, the Court had jurisdiction to adjudicate upon it.
On 25 February 2010, Costa Rica filed an Application for permission to intervene in the case. In its Application it contended, among other things, that “[b]oth Nicaragua and Colombia, in their boundary claims against each other, claim maritime area to which Costa Rica is entitled” and indicated that it wished to intervene in the proceedings as a non-party State. On 10 June 2010, the Republic of Honduras also filed an Application for permission to intervene in the case, asserting that Nicaragua, in its dispute with Colombia, had put forward maritime claims that lay in an area of the Caribbean Sea in which Honduras had rights and interests. Honduras stated in its Application that it was seeking primarily to intervene in the proceedings as a party. The Court rendered two Judgments on 4 May 2011, in which it ruled that the Applications for permission to intervene filed by Costa Rica and Honduras could not be granted. The Court noted that the interest of a legal nature invoked by Costa Rica could only be affected if the maritime boundary that the Court had been asked to draw between Nicaragua and Colombia were to be extended beyond a certain latitude southwards. However, following its jurisprudence, the Court, when drawing a line delimiting the maritime areas between the two Parties to the main proceedings, would, if necessary, end that line before it reached an area in which the interests of a legal nature of third States might be involved. The Court concluded that Costa Rica’s interest of a legal nature could not be affected by the decision in the proceedings between Nicaragua and Colombia. With respect to Honduras’s Application for permission to intervene, the Court found that Honduras had failed to satisfy the Court that it had an interest of a legal nature that might be affected by the decision of the Court in the main proceedings. It ruled on the one hand that, since the entire maritime boundary between Honduras and Nicaragua in the Caribbean Sea had been settled by the Judgment of the Court rendered between those two States in 2007, there were no extant rights or legal interests that Honduras might seek to protect in the settlement of the dispute between Nicaragua and Colombia. On the other hand, the Court held that Honduras could invoke an interest of a legal nature, in the main proceedings, on the basis of the 1986 bilateral treaty concluded between Honduras and Colombia, but clarified that it would not be relying on that treaty to determine the maritime boundary between Colombia and Nicaragua.
In its Judgment rendered on the merits of the case on 19 November 2012, the Court found that the territorial dispute between the Parties concerned sovereignty over the features situated in the Caribbean Sea — the Alburquerque Cays, the East-Southeast Cays, Roncador, Serrana, Quitasueño, Serranilla and Bajo Nuevo — which were all above water at high tide and which were therefore islands capable of appropriation. The Court noted, however, that Quitasueño comprised only a single, tiny island, known as QS 32, and a number of low-tide elevations (features above water at low tide but submerged at high tide). The Court then observed that, under the terms of the 1928 Treaty concerning Territorial Questions at Issue between Colombia and Nicaragua, Colombia not only had sovereignty over the islands of San Andrés, Providencia and Santa Catalina, but also over other islands, islets and reefs “forming part” of the San Andrés Archipelago. Thus, in order to address the question of sovereignty, the Court first needed to ascertain what constituted the San Andrés Archipelago. It concluded, however, that neither the 1928 Treaty nor the historical documents conclusively established the composition of that Archipelago. The Court therefore examined the arguments and evidence not based on the composition of the Archipelago under the 1928 Treaty. It found that neither Nicaragua nor Colombia had established that it had title to the disputed maritime features by virtue of uti possidetis juris (the principle that, upon independence, new States inherit the territories and boundaries of the former colonial provinces), because nothing clearly indicated whether these features were attributed to the colonial provinces of Nicaragua or of Colombia. The Court then considered whether sovereignty could be established on the basis of State acts manifesting a display of authority on a given territory (effectivités). It regarded it as having been established that for many decades Colombia had continuously and consistently acted à titre de souverain in respect of the maritime features in dispute. This exercise of sovereign authority had been public and there was no evidence that it had met with any protest from Nicaragua prior to 1969, when the dispute had crystallized. Moreover, the evidence of Colombia’s acts of administration with respect to the islands was in contrast to the absence of any evidence of acts à titre de souverain on the part of Nicaragua. The Court also noted that, while not being evidence of sovereignty, Nicaragua’s conduct with regard to the maritime features in dispute, the practice of third States and maps afforded some support to Colombia’s claim. The Court concluded that Colombia, and not Nicaragua, had sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla.
With respect to Nicaragua’s claim for delimitation of a continental shelf extending beyond 200 nautical miles, the Court observed that “any claim of continental shelf rights beyond 200 miles [by a State party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS)] must be in accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf”. Given the object and purpose of UNCLOS, as stipulated in its Preamble, the fact that Colombia was not a party thereto did not relieve Nicaragua of its obligations under Article 76 of that Convention. The Court observed that Nicaragua had submitted to the Commission only “Preliminary Information” which, by its own admission, fell short of meeting the requirements for the Commission to be able to make its recommendations. As the Court was not presented with any further information, it found that, in this case, Nicaragua had not established that it had a continental margin that extended far enough to overlap with Colombia’s 200-nautical-mile entitlement to the continental shelf, measured from Colombia’s mainland coast. The Court was therefore not in a position to delimit the maritime boundary between the extended continental shelf as claimed by Nicaragua and the continental shelf of Colombia. Notwithstanding this conclusion, the Court noted that it was still called upon to effect the delimitation of the zone situated within 200 nautical miles of the Nicaraguan coast, where the entitlements of Colombia and Nicaragua overlapped.
In order to effect the delimitation of the maritime boundary, the Court first determined what the relevant coasts of the Parties were, namely those coasts the projections of which overlapped. It found that Nicaragua’s relevant coast was its whole coast, with the exception of the short stretch of coast near Punta de Perlas, and that Colombia’s relevant coast was the entire coastline of the islands under Colombian sovereignty, except for Quitasueño, Serranilla and Bajo Nuevo. The Court next noted that the relevant maritime area, i.e., the area in which the potential entitlements of the Parties overlapped, extended 200 nautical miles east of the Nicaraguan coast. The boundaries to the north and to the south were determined by the Court in such a way as not to overlap with any existing boundaries or to extend into areas where the rights of third States might be affected.
To effect the delimitation, the Court followed the three-stage procedure previously laid down by and employed in its jurisprudence.
First, it selected the base points and constructed a provisional median line between the Nicaraguan coast and the western coasts of the relevant Colombian islands opposite the Nicaraguan coast.
Second, the Court considered any relevant circumstances which might have called for an adjustment or shifting of the provisional median line so as to achieve an equitable result. It observed that the substantial disparity between the relevant Colombian coast and that of Nicaragua (approximately 1:8.2), and the need to avoid a situation whereby the line of delimitation cut off one or other of the Parties ties from maritime areas into which its coasts projected, constituted relevant circumstances. The Court noted that, while legitimate security concerns had to be borne in mind in determining what adjustment should be made to the provisional median line or in what way that line should be shifted, the conduct of the Parties, issues of access to natural resources and delimitations already effected in the area were not relevant circumstances in this case. In the relevant area between the Nicaraguan mainland and the western coasts of the Alburquerque Cays, San Andrés, Providencia and Santa Catalina, where the relationship was one of opposite coasts, the relevant circumstances called for the provisional median line to be shifted eastwards. To that end, the Court determined that different weightings should be given to the base points situated on Nicaraguan and Colombian islands, namely a weighting of one to each of the Colombian base points and a weighting of three to each of the Nicaraguan base points. The Court considered, however, that extending the line thus constructed to the north or the south would not lead to an equitable result, since it would leave Colombia with a significantly larger share of the relevant area than that accorded to Nicaragua, notwithstanding the fact that Nicaragua’s relevant coast was more than eight times the length of Colombia’s relevant coast. Moreover, it would cut off Nicaragua from the areas to the east of the principal Colombian islands into which the Nicaraguan coast projected. In the view of the Court, an equitable result was to be achieved by continuing the boundary line out to the line 200 nautical miles from the Nicaraguan coast. To the north, that line would follow the parallel passing through the most northern point of the outer limit of the 12-nautical-mile territorial sea of Roncador. To the south, the maritime boundary would first follow the outer limit of the 12-nautical-mile territorial sea of the Alburquerque and East-Southeast Cays, then the parallel from the most eastern point of the territorial sea of the East-Southeast Cays. In order to prevent Quitasueño and Serrana from falling, under those circumstances, on the Nicaraguan side of the boundary line, the maritime boundary around each of those features would follow the outer limit of their 12-nautical-mile territorial sea.
Third, and finally, the Court checked that, taking account of all the circumstances of the case, the delimitation thus obtained did not create a disproportionality that would render the result inequitable. The Court observed that the boundary line had the effect of dividing the relevant area between the Parties in a ratio of approximately 1:3.44 in Nicaragua’s favour, while the ratio of relevant coasts was approximately 1:8.2. It concluded that that line did not entail such disproportionality as to create an inequitable result.