Doughnut hole in the Caribbean Sea: the maritime boundary between Nicaragua and Colombia according to the International Court of Justice.

Author:Khan, M. Imad
  1. INTRODUCTION II. BACKGROUND III. ICJ DECISION A. Sovereignty Over the "Islands" B. Maritime Boundary Between Nicaragua and Colombia 1. Applicable Law 2. Delimiting the Maritime Boundary IV. EFFECT OF THE ICJ DECISION AND EFFECTS ON NICARAGUA AND COLOMBIA V. CONCLUSION I. INTRODUCTION

    On November 19, 2012, the International Court of Justice (ICJ) unanimously (1) resolved a multi-year maritime boundary dispute between Nicaragua and Colombia by establishing a single maritime boundary. (2) The decision was complicated by the question of Colombian sovereignty over certain islands located about 100 to 150 nautical miles (nm) off the eastern coast of Nicaragua and about 380 nm from mainland Colombia. (3) Having found in favor of Colombian sovereignty over the islands, the ICJ carved out a "rectangular-esque" shaped maritime area around most of Colombia's islands in the relevant area; furthermore, it enclaved two Colombian islands (4) to account for Colombia's maritime areas that fall within what would have been Nicaraguan waters absent Colombian sovereignty over the islands. (5)

    The ICJ's opinion in Territorial and Maritime Dispute between Nicaragua and Colombia materially expands Nicaraguan maritime territory in the Caribbean Sea. (6) This newly-established maritime boundary may affect those with oil, gas, or fishery interests in the Caribbean Sea, considering the countries had been using the 82nd meridian as the de facto maritime boundary. (7) Colombia's president Juan Manuel Santos has declared that the ICJ is "seriously wrong" in its decision to hand over large chunks of sea around the island of San Andres to Nicaragua. (8) However, there is very limited recourse for Colombia given the formal legal finality of the ICJ's decision. (9)


    Colombia traditionally claimed maritime territory, including exclusive mineral rights, east of the 82[degrees] West meridian. (10) This means that both Banco Tyra and Banco Isabel border the seabed territory traditionally claimed by Colombia. (11) According to Nicaragua, the Colombian military has, on several occasions, endeavored to enforce its claims by intercepting and seizing Nicaraguan vessels around the 82nd meridian. (12) In response, Nicaragua brought proceedings against Colombia in the ICJ claiming, inter alia, that Colombia's military presence at the 82nd meridian was illegal and that Nicaragua should be granted a maritime boundary that extends east of the 82nd meridian. (13)

    In its application, Nicaragua asked the ICJ to find that Nicaragua had sovereignty over the islands of Providencia, San Andres, and Santa Catalina, along with all appurtenant islands and keys (i.e. the San Andres Archipelago). (14) Additionally, it sought sovereignty over the Roncador, Serrana, Serranilla and Quitasueno keys, though it would not concede that these form part of the San Andres Archipelago. (15) Nicaragua further asked the ICJ to "determine the course of the single maritime boundary between the areas of continental shelf and exclusive economic zones appertaining respectively to Nicaragua and Colombia." (16)

    In response, Colombia filed preliminary objections with the ICJ, arguing that the issues before the Court had already been settled under the Barcenas-Esguerra Treaty of 1928 and the related Protocol of Exchange of Ratifications (Protocol), signed at Managua on May 5, 1930 (together the 1928 Treaty). (17) The 1928 Treaty contains various provisions that arguably settled many of the issues in the dispute. (18)

    First, the first paragraph of the 1928 Treaty contains dual acknowledgements by Colombia and Nicaragua. (19) Nicaragua recognizes Colombia's sovereignty over the San Andres Archipelago and Colombia recognizes Nicaragua's sovereignty over the Mosquito Coast and the Corn Islands. (20) The second paragraph of the 1928 Treaty provides that it did "not apply to the reefs of Roncador, Quitasueno, and Serrana, sovereignty over which [was] in dispute between Colombia and the United States of America." (21) Additionally, the Protocol included the statement that "the San Andres and Providencia Archipelago mentioned in the first clause of the [1928 Treaty] does not extend west of 82nd degree of longitude west of Greenwich." (22)

    The ICJ delivered its judgment on the preliminary objections in December of 2007 (2007 Judgment). (23) The Court upheld Colombia's preliminary objection regarding the issue of sovereignty over the San Andres Archipelago islands of San Andres, Providencia, and Santa Catalina, as well as adjacent islets and keys. The Court reasoned that sovereignty over these islands was settled by the 1928 Treaty, under which Nicaragua recognized Colombian sovereignty over the Archipelago. (24) However, the ICJ rejected Colombia's objection with respect to the following issues that had not been resolved pursuant to the 1928 Treaty: (a) the issue of maritime features that form other parts of the Archipelago; (25) (b) the issue of sovereignty over the Roncador, Serrana, and Quitasueno keys because the 1928 Treaty explicitly states that it does not apply to those keys; (26) and (c) the issue of a single, maritime boundary between Nicaragua and Colombia. (27) The ICJ found that it had jurisdiction and would subsequently set a maritime boundary between Nicaragua and Colombia. (28)

    Following the 2007 Judgment, the parties altered their arguments. Nicaragua, though still making statements intended to retain its argument of the invalidity of the 1928 Treaty, (29) explicitly altered its claim and proposed a method of delimitation. (30) It also requested that the ICJ determine the relevant delimitation by use of continental shelf delimitation. (31) Colombia also altered its claims to a degree. It backed away from its arguments that the 82nd meridian formed the maritime boundary between Nicaragua and Colombia. (32) Colombia argued that a maritime delimitation should be drawn, using the equidistance method of delimitation, from base points on the islands of the San Andres Archipelago (including Quitasueno and Albuquerque Cay) to basepoints on the Miskito Cays and the Corn Islands. (33) Before determining the maritime boundary between the two States, however, the Court had to determine the question of sovereignty.


    A. Sovereignty Over the "Islands"

    Given the location of the islands and formations in question, the issue of determining sovereignty over them became a threshold question of sorts. (34) The ICJ already determined in its 2007 Judgment that sovereignty over the islands of San Andres, Providencia, and Santa Catalina belonged to Colombia pursuant to the 1928 Treaty. (35) However, there remained two significant questions the ICJ had to answer with regards to sovereignty over the islands and other maritime features. (36) These islands and maritime features include the Caribbean islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueno, Roncador, Serrana and Serranilla (Sketch Map 1 provides the necessary geographical context for the sovereignty and maritime dispute).

    First, the ICJ had to decide whether the islands and features were capable of appropriation. (37) Only "islands" (as defined in Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS) and discussed below) may be appropriated, but low-tide elevations may not be. (38) Though Nicaragua and Colombia agreed that most of the maritime features were islands, their agreement diverged with respect to the Quitasueno feature. Nicaragua argued that Quitasueno was merely a low-tide elevation, not an island. (39) Despite its small size, the fact that it is only 0.7 meters above water at high tide, and the fact that it is composed of coral, the ICJ determined that Quitasueno was capable of appropriation as it met all the requirements of UNCLOS Article 121. (40)

    Second, the ICJ had to determine the trickier question of sovereignty over the islands. (41) The ICJ rejected the use of the uti possidetis juris (42) principle to determine the sovereignty question. This Latin-American principle dictates that the boundaries established by colonial powers are to be maintained when post-colonial States are created after the latter gain independence. (43) However, the ICJ concluded that the evidence before it afforded the Court "inadequate assistance in determining sovereignty over the maritime features in dispute ... because nothing clearly indicates whether these features were attributed to the colonial provinces of Nicaragua or of Colombia prior to independence." (44) In the absence of sufficient evidence that established colonial boundaries, the Court was unable to rely on this principle. Consequently, the Court had to turn to the principle of effectivitds to determine the sovereignty issue. (45)

    The principle of effectivites is based on State acts that manifest a display of authority over a given territory. The relevant query regarding a claim of title to territory under this principle concerns (a) occupation of said territory, (b) acquisition of territory through prescription, or (c) analysis of factual elements that demonstrate the exercise of governmental authority over said territory. (46)

    Under its effectivites analysis, the Court first determined the "critical date" or the date on which the dispute between Nicaragua and Colombia as to sovereignty over the islands in the Caribbean crystallized. (47) This date is significant because the Court only takes into account events occurring prior to the critical date to ascertain which...

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