Colombia withdraws from ICJ over Nicaragua v Colombia ruling

On 19 November 2012, the principal judicial organ of the United Nations, the International Court of Justice (the "ICJ"), ruled that Colombia has sovereignty over seven disputed islands in the western Caribbean but granted Nicaragua control of a large amount of the surrounding waters and seabed.

It was hoped that the decision of the court would resolve this long running territorial and maritime dispute. However, it has sparked political fallout, with Colombian president Juan Manuel Santos rejecting the judgment and announcing that he is pulling Colombia out of the Pact of Bogotá, a 1948 treaty by which Latin American countries recognise the jurisdiction of the ICJ.

Background

An application to institute proceedings was filed by Nicaragua on 6 December 2001, in respect of a dispute "concerning title to territory and maritime delimitation" in the western Caribbean.

Colombia raised preliminary objections to the jurisdiction of the ICJ. However, in a judgment rendered on 13 December 2007, the ICJ concluded that it had jurisdiction, under Article XXXI of the Pact of Bogotá, to adjudicate on those matters which had not already been settled on the basis of the Barcenas-Esguerra Treaty of 1928.

Following public hearings held between 23 April and 4 May 2012, the two key issues to be decided by the ICJ were as follows:

1. sovereignty over the maritime features in dispute; and
2. a maritime delimitation based on the findings on sovereignty.

Decision

Sovereignty over the maritime features in dispute

The ICJ decided unanimously that Colombia had sovereignty over the disputed islands of Albuquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla.

In making this decision, the court found that the evidence of Colombia's acts of administration with respect to the islands, in contrast to the absence of any evidence of such acts on the part of Nicaragua, provided "very strong support for Colombia's claim for sovereignty".

Maritime delimitation

The ICJ then proceeded to consider what maritime delimitation should be effected between the parties.

The court held that Nicaragua had not established that it had a continental margin that extended far enough to overlap with Colombia's 200-nautical-mile entitlement to a continental shelf, when measured from Colombia's mainline coast. The court was therefore not able to uphold Nicaragua's claim for a delimitation of a continental shelf extending beyond 200 nautical miles.

However, the court noted that it was still called upon to effect a delimitation between the overlapping maritime entitlements of Colombia and Nicaragua within 200 miles of the Nicaraguan coast. The relevant Colombian coast was derived from the islands over which the court held that Colombia had sovereignty.

In effecting the required delimitation, the ICJ applied the following three-stage test employed in its previous case law:

1. first, the court established a provisional delimitation line based on equidistance between the Nicaraguan coast and the western coasts of the islands over which the court held that Colombia had sovereignty;
2. secondly, the court considered whether there were any relevant circumstances which called for an adjustment or shifting of the provisional equidistance/median line so as to achieve an equitable result. The court noted that the substantial disparity between the relevant Colombian coast and that of Nicaragua, as well as the need to avoid any cut-off effect of the delimitation line vis-à-vis the parties' coastal projects, did constitute such relevant circumstances and that legitimate security concerns would also be borne in mind; and
3. thirdly, the court conducted a disproportionality test to assess whether the effect of the line, as adjusted or shifted, was such that the parties' respective shares were markedly disproportionate to their respective relevant coasts.

On the above basis, the court demarcated a boundary line which it recognised had the effect of dividing the relevant area between the parties in Nicaragua's favour and in fact granted Nicaragua more than three times as much maritime area as Colombia. Nonetheless, the ICJ found that the result achieved by the maritime delimitation did not entail such a disproportionality as to create an inequitable result.

Comment

The approach taken by the ICJ to achieving an equitable result in delimitating the maritime boundary raises a number of important issues. In particular, the (heavily modified) equidistance method adopted by the court has been criticised as being unsuitable, due to the specific geographical facts of the case. Accordingly, although the court claimed to be applying its standard method for maritime delimitation, it was argued by a number of the ICJ judges in their separate opinions and appended declarations that the court had in fact departed from it greatly, and that other approaches would have achieved a more equitable result.

It is also interesting to note that, in considering Nicaragua's claim for delimitation of a continental shelf extending beyond 200 nautical miles, the ICJ stated that it considered the definition of a continental shelf set out in Article 76(1) of the United Nations Convention on the Law of the Sea to be customary international law. The court decided not, however, to rule on whether the other provisions of Article 76 also form part of customary international law, despite an invitation from Counsel to do so.

As well as the legal issues outlined above, the judgment has had significant political ramifications. The waters into which the Nicaraguan maritime border has been extended are resource rich, and the President of Colombia, Juan Manuel Santos, has publicly rejected the ruling. Indeed, press reports suggest that the Colombian navy remains defiantly in the disputed waters. Further, Juan Manuel Santos has also announced that he is pulling Colombia out of the Pact of Bogotá, a 1948 treaty by which Latin American countries recognise the jurisdiction of the ICJ to settle disputes arising between them, stating that "[t]he borders between nations cannot be in the hands of a court of law… [t]hey must be drawn by agreement between the countries involved".

Colombia's withdrawal from the ICJ will, however, only become effective after 12 months and Nicaragua is reportedly considering a further claim to territory beyond the 200-nautical-mile boundary to the outer continental shelf. There are therefore likely to be further developments in this matter to come.

Territorial and Maritime Dispute (Nicaragua v Colombia)