CIJ - Territorial and Maritime Dispute (Nicaragua v. Colombia) - Judgment of 19 November 2012

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,

ADVISORY OPINIONS AND ORDERS

TERRITORIAL AND MARITIME

DISPUTE

(NICARAGUA v. COLOMBIA)

JUDGMENT OF 19 NOVEMBER 2012

2012

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRÊTS,

AVIS CONSULTATIFS ET ORDONNANCES

DIFFÉREND

TERRITORIAL ET MARITIME

(NICARAGUA c. COLOMBIE) ARRÊT DU 19 NOVEMBRE 2012 6 CIJ1034.indb 1 7/01/14 12:43Official citation : Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012, p. 624

Mode officiel de citation : Différend territorial et maritime (Nicaragua c. Colombie), arrêt, C.I.J. Recueil 2012, p. 624

ISSN 0074-4441

ISBN 978-92-1-071148-7

Sales number No de vente: 1034 6 CIJ1034.indb 2 7/01/14 12:43TERRITORIAL AND MARITIME

DISPUTE

(NICARAGUA v. COLOMBIA)

DIFFÉREND

TERRITORIAL ET MARITIME

(NICARAGUA c. COLOMBIE) 19 NOVEMBER 2012

JUDGMENT 19 NOVEMBRE 2012

ARRÊT 6 CIJ1034.indb 3 7/01/14 12:43624 4 TABLE OF CONTENTS Paragraphs Chronology of the Procedure 1-17

I. Geography 18-24

II. Sovereignty 25-103

1. Whether the maritime features in dispute are capable of appropriation 25-38

2. Sovereignty over the maritime features in dispute 39-102

A. The 1928 Treaty 40-56

I. Geography 18-24

II. Sovereignty 25-103

1. Whether the maritime features in dispute are capable of appropriation 25-38

2. Sovereignty over the maritime features in dispute 39-102

A. The 1928 Treaty 40-56

B. Uti possidetis juris 57-65

C. Effectivités 66-84

(a) Critical date 67-71 (b) Consideration of effectivités 72-84

D. Alleged recognition by Nicaragua 85-90

E. Position taken by third States 91-95

F. Evidentiary value of maps 96-102

3. Conclusion as to sovereignty over the islands 103

III. Admissibility of Nicaragua’s Claim for Delimitation of a Continental Shelf Extending beyond 200 Nautical

Miles 104-112

IV. Consideration of Nicaragua’s Claim for Delimitation of a Continental Shelf Extending beyond 200 Nautical

Miles 113-131

V. Maritime Boundary 132-247

1. The task now before the Court 132-136

2. Applicable law 137-139

3. Relevant coasts 140-154

A. The Nicaraguan relevant coast 143-145

B. The Colombian relevant coast 146-154

4. Relevant maritime area 155-166

5. Entitlements generated by maritime features 167-183

A. San Andrés, Providencia and Santa Catalina 168-169

B. Alburquerque Cays, East-Southeast Cays, Roncador,

Serrana, Serranilla and Bajo Nuevo 170-180

C. Quitasueño 181-183 6 CIJ1034.indb 4 7/01/14 12:43625 territorial and maritime dispute (judgment)

5

6. Method of delimitation 184-199

7. Determination of base points and construction of the provisional median line 200-204

8. Relevant circumstances 205-228

5

6. Method of delimitation 184-199

7. Determination of base points and construction of the provisional median line 200-204

8. Relevant circumstances 205-228

A. Disparity in the lengths of the relevant coasts 208-211

B. Overall geographical context 212-216

C. Conduct of the Parties 217-220

D. Security and law enforcement considerations 221-222

E. Equitable access to natural resources 223

F. Delimitations already effected in the area 224-228

9. Course of the maritime boundary 229-238

10. The disproportionality test 239-247

VI. Nicaragua’s Request for a Declaration 248-250

Operative Clause 251

6 CIJ1034.indb 6 7/01/14 12:43626 6

INTERNATIONAL COURT OF JUSTICE YEAR 2012 19 November 2012

TERRITORIAL AND MARITIME

DISPUTE

(NICARAGUA v. COLOMBIA) Geographical context — Location and characteristics of maritime features in dispute.

Sovereignty. Whether maritime features in dispute are capable of appropriation — Islands — Low‑tide elevations — Question of Quitasueño — Smith Report — Tidal mod ‑ els — QS 32 only feature above water at high tide. 1928 Treaty between Nicaragua and Colombia — 1930 Protocol — 2007 Judg ‑ ment on the Preliminary Objections — Full composition of the Archipelago cannot be conclusively established on the basis of the 1928 Treaty. Uti possidetis juris — Maritime features not clearly attributed to the colonial provinces of Nicaragua and Colombia prior to their independence — Title by vir ‑ tue of uti possidetis juris not established. Effectivités — Critical date — No Nicaraguan effectivités — Different catego ‑ ries of effectivités presented by Colombia — Normal continuation of prior acts à titre de souverain after critical date — Continuous and consistent acts à titre de

tue of uti possidetis juris not established. Effectivités — Critical date — No Nicaraguan effectivités — Different catego ‑ ries of effectivités presented by Colombia — Normal continuation of prior acts à titre de souverain after critical date — Continuous and consistent acts à titre de souverain by Colombia — No protest from Nicaragua prior to critical date — Colombia’s claim of sovereignty strongly supported by facts. Alleged recognition by Nicaragua of Colombia’s sovereignty — Nicaragua’s reaction to the Loubet Award — No Nicaraguan claim to sovereignty over Ronca ‑ dor, Quitasueño and Serrana at time of 1928 Treaty — Change in Nicaragua’s position in 1972 — Some support to Colombia’s claim provided by Nicaragua’s conduct, practice of third States and maps. Colombia has sovereignty over maritime features in dispute.

2012 19 November General List No. 124 6 CIJ1034.indb 8 7/01/14 12:43627 territorial and maritime dispute (judgment) 7 Admissibility of Nicaragua’s claim for delimitation of a continental shelf extend‑ ing beyond 200 nautical miles — New claim — Original claim concerned delimita ‑ tion of the exclusive economic zone and of the continental shelf — New claim still concerns delimitation of the continental shelf and arises directly out of maritime delimitation dispute — No transformation of the subject‑matter of the dispute — Claim is admissible. Consideration of Nicaragua’s claim for delimitation of an extended continental shelf — Colombia not a party to UNCLOS — Customary international law appli ‑ cable — Definition of the continental shelf in Article 76, paragraph 1, of UNCLOS forms part of customary international law — No need to decide whether other provisions of Article 76 form part of customary international law — Claim for an extended continental shelf by a State party to UNCLOS must be in accordance with Article 76 — Nicaragua not relieved of its obligations under Article 76 — “Preliminary Information” submitted by Nicaragua to the Commission on the

provisions of Article 76 form part of customary international law — Claim for an extended continental shelf by a State party to UNCLOS must be in accordance with Article 76 — Nicaragua not relieved of its obligations under Article 76 — “Preliminary Information” submitted by Nicaragua to the Commission on the Limits of the Continental Shelf — Continental margin extending beyond 200 nau ‑ tical miles not established — The Court not in a position to delimit the boundary between the extended continental shelf claimed by Nicaragua and the continental shelf of Colombia — Nicaragua’s claim cannot be upheld. Maritime boundary. Task of the Court — Delimitation between Nicaragua’s continental shelf and exclusive economic zone and continental shelf and exclusive economic zone gener ‑ ated by the Colombian islands — Customary international law applicable — Arti ‑ cles 74 and 83 (maritime delimitation) and Article 121 (régime of islands) of UNCLOS reflect customary international law. Relevant coasts — Mainland coast of Nicaragua — Entire coastline of Colom ‑ bian islands — Coastlines of Serranilla, Bajo Nuevo and Quitasueño do not form part of the relevant coast — Relevant maritime area — Relevant area extends to 200 nautical miles from Nicaragua — Limits of relevant area in the north and in the south. Entitlements generated by maritime features — San Andrés, Providencia and Santa Catalina entitled to territorial sea, exclusive economic zone and continental shelf — Serranilla and Bajo Nuevo are not relevant for delimitation — Roncador, Serrana, Alburquerque Cays and East‑Southeast Cays generate territorial sea of 12 nautical miles — Colombia entitled to a territorial sea of 12 nautical miles around QS 32 — No need to determine whether maritime entitlements extend beyond 12 nautical miles. Method of delimitation — Three‑stage procedure. First stage — Construction of a provisional median line between Nicaraguan coast and western coasts of Colombian islands feasible and appropriate — Deter ‑ mination of base points — No base points on Quitasueño and Serrana — Course of provisional median line.

Method of delimitation — Three‑stage procedure. First stage — Construction of a provisional median line between Nicaraguan coast and western coasts of Colombian islands feasible and appropriate — Deter ‑ mination of base points — No base points on Quitasueño and Serrana — Course of provisional median line. Second stage — Relevant circumstances requiring adjustment or shifting of the provisional line — Substantial disparity in lengths of relevant coasts is a relevant 6 CIJ1034.indb 10 7/01/14 12:43628 territorial and maritime dispute (judgment) 8 circumstance — Overall geographical context — Geological and geomorphological considerations not relevant — Cut‑off effect is a relevant circumstance — Conduct of the Parties not a relevant circumstance — Legitimate security concerns to be borne in mind — Issues of access to natural resources not a relevant circum ‑ stance — Delimitations already effected in the area not a relevant circumstance — Judgment is without prejudice to any claim of a third State.

Distinction between western and eastern parts of relevant area — Shifting east ‑ wards of the provisional median line — Different weights accorded to Nicaraguan and Colombian base points — Curved shape of weighted line — Simplified weighted line — Course of the boundary eastwards from extreme northern and southern points of the simplified weighted line — Use of parallels — Quitasueño and Serrana enclaved — Maritime boundary around Quitasueño and Serrana. Third stage — Disproportionality test — No need to achieve strict proportional‑ ity — No disproportionality such as to create an inequitable result. Nicaragua’s request for a declaration of Colombia’s unlawful conduct — Mari ‑ time delimitation de novo not granting to Nicaragua the entirety of the areas it claimed — Request unfounded.

JUDGMENT

Present : President Tomka ; Vice‑President Sepúlveda-Amor ; Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Sebutinde ; Judges ad hoc

JUDGMENT

Present : President Tomka ; Vice‑President Sepúlveda-Amor ; Judges Owada, Abraham, Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue, Sebutinde ; Judges ad hoc

Mensah, Cot ; Registrar Couvreur. In the case concerning the territorial and maritime dispute, between the Republic of Nicaragua, represented by H.E. Mr. Carlos José Argüello Gómez, Ambassador of the Republic of Nicaragua to the Kingdom of the Netherlands, as Agent and Counsel ; Mr. Vaughan Lowe, Q.C., former Chichele Professor of International Law, University of Oxford, associate member of the Institut de droit international, Mr. Alex Oude Elferink, Deputy-Director, Netherlands Institute for the Law of the Sea, Utrecht University, 6 CIJ1034.indb 12 7/01/14 12:43629 territorial and maritime dispute (judgment) 9 Mr. Alain Pellet, Professor at the University Paris Ouest, Nanterre-La Défense, former Member and former Chairman of the International Law Commission, associate member of the Institut de droit international, Mr. Paul Reichler, Attorney-at-Law, Foley Hoag LLP, Washington D.C., Member of the Bars of the United States Supreme Court and the District of Columbia, Mr. Antonio Remiro Brotóns, Professor of International Law, Universidad Autónoma, Madrid, member of the Institut de droit international, as Counsel and Advocates ; Mr. Robin Cleverly, M.A., D.Phil, C.Geol, F.G.S., Law of the Sea Consultant, Admiralty Consultancy Services, The United Kingdom Hydrographic Office, Mr. John Brown, R.D., M.A., F.R.I.N., F.R.G.S., Law of the Sea Consultant, Admiralty Consultancy Services, The United Kingdom Hydrographic Office, as Scientific and Technical Advisers ; Mr. César Vega Masís, Director of Juridical Affairs, Sovereignty and Terriant, Admiralty Consultancy Services, The United Kingdom Hydrographic Office, as Scientific and Technical Advisers ; Mr. César Vega Masís, Director of Juridical Affairs, Sovereignty and Territory, Ministry of Foreign Affairs, Mr. Walner Molina Pérez, Juridical Adviser, Ministry of Foreign Affairs, Mr. Julio César Saborio, Juridical Adviser, Ministry of Foreign Affairs, Ms Tania Elena Pacheco Blandino, Juridical Adviser, Ministry of Foreign Affairs, Mr. Lawrence H. Martin, Foley Hoag LLP, Washington D.C., Member of the Bars of the United States Supreme Court, the District of Columbia and the Commonwealth of Massachusetts, Ms Carmen Martínez Capdevila, Doctor of Public International Law, Universidad Autónoma, Madrid, as Counsel ; Mr. Edgardo Sobenes Obregon, First Secretary, Embassy of Nicaragua in the Kingdom of the Netherlands, Ms Claudia Loza Obregon, Second Secretary, Embassy of Nicaragua in the Kingdom of the Netherlands, Mr. Romain Piéri, Researcher, Centre for International Law (CEDIN), University Paris Ouest, Nanterre-La Défense, Mr. Yuri Parkhomenko, Foley Hoag LLP, Washington D.C., as Assistant Counsel ; Ms Helena Patton, The United Kingdom Hydrographic Office, Ms Fiona Bloor, The United Kingdom Hydrographic Office, as Technical Assistants, and the Republic of Colombia, represented by H.E. Mr. Julio Londoño Paredes, Professor of International Relations, Universidad del Rosario, Bogotá, as Agent and Counsel ; 6 CIJ1034.indb 14 7/01/14 12:43630 territorial and maritime dispute (judgment) 10 Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the Institut de droit international, Barrister, Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris, member of the

10 Mr. James Crawford, S.C., F.B.A., Whewell Professor of International Law, University of Cambridge, member of the Institut de droit international, Barrister, Mr. Rodman R. Bundy, avocat à la Cour d’appel de Paris, member of the New York Bar, Eversheds LLP, Paris, Mr. Marcelo Kohen, Professor of International Law at the Graduate Institute of International and Development Studies, Geneva, associate member of the Institut de droit international, as Counsel and Advocates ; H.E. Mr. Eduardo Pizarro Leongómez, Ambassador of the Republic of Colombia to the Kingdom of the Netherlands, Permanent Representative of Colombia to the OPCW, as Adviser ; H.E. Mr. Francisco José Lloreda Mera, Presidential High-Commissioner for Citizenry Security, former Ambassador of the Republic of Colombia to the Kingdom of the Netherlands, former Minister of State, Mr. Eduardo Valencia-Ospina, Member of the International Law Commission, H.E. Ms Sonia Pereira Portilla, Ambassador, Ministry of Foreign Affairs, Mr. Andelfo García González, Professor of International Law, former Deputy Minister for Foreign Affairs, Ms Mirza Gnecco Plá, Minister-Counsellor, Ministry of Foreign Affairs, Ms Andrea Jiménez Herrera, Counsellor, Embassy of Colombia in the Kingdom of the Netherlands, as Legal Advisers ; CF William Pedroza, International Affairs Bureau, National Navy of Colombia, Mr. Scott Edmonds, Cartographer, International Mapping, Mr. Thomas Frogh, Cartographer, International Mapping, as Technical Advisers ; Mr. Camilo Alberto Gómez Niño, as Administrative Assistant, The Court, composed as above, after deliberation, delivers the following Judgment :

1. On 6 December 2001, the Republic of Nicaragua (hereinafter “Nicaragua”) filed in the Registry of the Court an Application instituting proceedings against the Republic of Colombia (hereinafter “Colombia”) in respect of a disafter deliberation,

delivers the following Judgment :

1. On 6 December 2001, the Republic of Nicaragua (hereinafter “Nicaragua”) filed in the Registry of the Court an Application instituting proceedings against the Republic of Colombia (hereinafter “Colombia”) in respect of a dispute consisting of “a group of related legal issues subsisting” between the two States “concerning title to territory and maritime delimitation” in the western

Caribbean. In its Application, Nicaragua seeks to found the jurisdiction of the Court on the provisions of Article XXXI of the American Treaty on Pacific Settlement signed on 30 April 1948, officially designated, according to Article LX thereof, 6 CIJ1034.indb 16 7/01/14 12:43631 territorial and maritime dispute (judgment) 11 as the “Pact of Bogotá” (hereinafter referred to as such), as well as on the declarations made by the Parties under Article 36 of the Statute of the Permanent Court of International Justice, which are deemed, for the period which they still have to run, to be acceptances of the compulsory jurisdiction of the present Court under Article 36, paragraph 5, of its Statute.

2. In accordance with Article 40, paragraph 2, of the Statute of the Court, the Registrar immediately communicated the Application to the Government of Colombia ; and, in accordance with paragraph 3 of that Article, all other States entitled to appear before the Court were notified of the Application.

3. Since the Court included upon the Bench no judge of the nationality of either of the Parties, each Party proceeded to exercise its right conferred by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit in the case.

Nicaragua first chose Mr. Mohammed Bedjaoui, who resigned on 2 May 2006, and then Mr. Giorgio Gaja. Following Mr. Gaja’s election as a Member of the Court, Nicaragua chose Mr. Thomas Mensah. Judge Gaja then decided

Nicaragua first chose Mr. Mohammed Bedjaoui, who resigned on 2 May 2006, and then Mr. Giorgio Gaja. Following Mr. Gaja’s election as a Member of the Court, Nicaragua chose Mr. Thomas Mensah. Judge Gaja then decided that it would not be appropriate for him to sit in the case. Colombia first chose Mr. Yves Fortier, who resigned on 7 September 2010, and subsequently Mr. Jean-Pierre Cot.

4. By an Order dated 26 February 2002, the Court fixed 28 April 2003 as the time-limit for the filing of the Memorial of Nicaragua and 28 June 2004 as the time-limit for the filing of the Counter-Memorial of Colombia. Nicaragua filed its Memorial within the time-limit so prescribed.

5. On 21 July 2003, within the time-limit set by Article 79, paragraph 1, of the Rules of Court, as amended on 5 December 2000, Colombia raised preliminary objections to the jurisdiction of the Court. Consequently, by an Order dated 24 September 2003, the Court, noting that by virtue of Article 79, paragraph 5, of the Rules of Court, the proceedings on the merits were suspended, fixed 26 January 2004 as the time-limit for the presentation by Nicaragua of a written statement of its observations and submissions on the preliminary objections made by Colombia. Nicaragua filed such a statement within the time-limit so prescribed, and the case thus became ready for hearing in respect of the preliminary objections.

6. The Court held public hearings on the preliminary objections raised by Colombia from 4 to 8 June 2007. In its Judgment of 13 December 2007, the Court concluded that it had jurisdiction, under Article XXXI of the Pact of Bogotá, to adjudicate upon the dispute concerning sovereignty over the maritime features claimed by the Parties, other than the islands of San Andrés, Providencia and Santa Catalina, and upon the dispute concerning the maritime delimitation

concluded that it had jurisdiction, under Article XXXI of the Pact of Bogotá, to adjudicate upon the dispute concerning sovereignty over the maritime features claimed by the Parties, other than the islands of San Andrés, Providencia and Santa Catalina, and upon the dispute concerning the maritime delimitation between the Parties (Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2007 (II), p. 876, para. 142 (3)).

7. By an Order of 11 February 2008, the President of the Court fixed 11 November 2008 as the new time-limit for the filing of Colombia’s CounterMemorial. That pleading was duly filed within the time-limit thus prescribed.

8. By an Order of 18 December 2008, the Court directed Nicaragua to submit a Reply and Colombia to submit a Rejoinder and fixed 18 September 2009 and 18 June 2010 as the respective time-limits for the filing of those pleadings. The Reply and the Rejoinder were duly filed within the time-limits thus prescribed.

9. Referring to Article 53, paragraph 1, of the Rules of Court, the Governments of Honduras, Jamaica, Chile, Peru, Ecuador, Venezuela and Costa Rica 6 CIJ1034.indb 18 7/01/14 12:43632 territorial and maritime dispute (judgment) 12 asked to be furnished with copies of the pleadings and documents annexed in the case. Having ascertained the views of the Parties in accordance with that same provision, the Court decided to grant each of these requests. The Registrar duly communicated these decisions to the said Governments and to the Parties.

10. On 25 February 2010 and 10 June 2010, respectively, the Republic of Costa Rica and the Republic of Honduras each filed in the Registry of the Court an Application for permission to intervene in the case, invoking Article 62 of the Statute of the Court. In separate Judgments rendered on 4 May 2011, the Court

Costa Rica and the Republic of Honduras each filed in the Registry of the Court an Application for permission to intervene in the case, invoking Article 62 of the Statute of the Court. In separate Judgments rendered on 4 May 2011, the Court found that those Applications could not be granted.

11. In accordance with Article 53, paragraph 2, of the Rules of Court, the Court decided that, after ascertaining the views of the Parties, copies of the pleadings and documents annexed would be made accessible to the public on the opening of the oral proceedings.

12. Public hearings were held between 23 April and 4 May 2012, at which the

Court heard the oral arguments and replies of :

For Nicaragua : H.E. Mr. Carlos José Argüello Gómez,

Mr. Alex Oude Elferink, Mr. Antonio Remiro Brotóns, Mr. Alain Pellet, Mr. Robin Cleverly, Mr. Vaughan Lowe, Mr. Paul Reichler.

For Colombia : H.E. Mr. Julio Londoño Paredes,

Mr. James Crawford, Mr. Marcelo Kohen, Mr. Rodman R. Bundy.

13. The Parties provided judges’ folders during the oral proceedings. The Court noted, with reference to Article 56, paragraph 4, of the Rules of Court, as supplemented by Practice Direction IXbis, that two documents included by Nicaragua in one of its judges’ folders had not been annexed to the written pleadings and were not “part of a publication readily available”. The Court thus decided not to allow those two documents to be produced or referred to during the hearings.

14. At the hearings, Members of the Court put questions to the Parties, to which replies were given orally and in writing, in accordance with Article 61, paragraph 4, of the Rules of Court. Under Article 72 of the Rules of Court, each Party presented written observations on the written replies received from the other.

15. In its Application, the following requests were made by Nicaragua :

which replies were given orally and in writing, in accordance with Article 61, paragraph 4, of the Rules of Court. Under Article 72 of the Rules of Court, each Party presented written observations on the written replies received from the other.

15. In its Application, the following requests were made by Nicaragua : “[T]he Court is asked to adjudge and declare : First, that the Republic of Nicaragua has sovereignty over the islands of Providencia, San Andrés and Santa Catalina and all the appurtenant islands and keys, and also over the Roncador, Serrana, Serranilla and Quitasueño keys (in so far as they are capable of appropriation) ; 6 CIJ1034.indb 20 7/01/14 12:43633 territorial and maritime dispute (judgment)

13 Second, in the light of the determinations concerning title requested above, the Court is asked further to determine the course of the single maritime boundary between the areas of continental shelf and exclusive economic zone appertaining respectively to Nicaragua and Colombia, in accordance with equitable principles and relevant circumstances recognized by general international law as applicable to such a delimitation of a single maritime boundary.” Nicaragua also stated : “Whilst the principal purpose of this Application is to obtain declarations concerning title and the determination of maritime boundaries, the Government of Nicaragua reserves the right to claim compensation for elements of unjust enrichment consequent upon Colombian possession of the Islands of San Andrés and Providencia as well as the keys and maritime spaces up to the 82 meridian, in the absence of lawful title. The Government of Nicaragua also reserves the right to claim compensation for interference with fishing vessels of Nicaraguan nationality or vessels licensed by Nicaragua.

The Government of Nicaragua, further, reserves the rights to supplement or to amend the present Application.”

16. In the written proceedings, the following submissions were presented by the Parties : On behalf of the Government of Nicaragua, in the Memorial : “Having regard to the legal considerations and evidence set forth in this

The Government of Nicaragua, further, reserves the rights to supplement or to amend the present Application.”

16. In the written proceedings, the following submissions were presented by the Parties : On behalf of the Government of Nicaragua, in the Memorial : “Having regard to the legal considerations and evidence set forth in this Memorial : May it please the Court to adjudge and declare that : (1) the Republic of Nicaragua has sovereignty over the islands of San Andrés, Providencia, and Santa Catalina and the appurtenant islets and cays ; (2) the Republic of Nicaragua has sovereignty over the following cays : the Cayos de Alburquerque ; the Cayos del Este Sudeste ; the Cay of Roncador ; North Cay, Southwest Cay and any other cays on the bank of Serrana ; East Cay, Beacon Cay and any other cays on the bank of Serranilla ; and Low Cay and any other cays on the bank of Bajo Nuevo ; (3) if the Court were to find that there are features on the bank of Quitasueño that qualify as islands under international law, the Court is requested to find that sovereignty over such features rests with Nicaragua ; (4) the Barcenas-Esguerra Treaty signed in Managua on 24 March 1928 was not legally valid and, in particular, did not provide a legal basis for Colombian claims to San Andrés and Providencia ; (5) in case the Court were to find that the Barcenas-Esguerra Treaty had been validly concluded, then the breach of this Treaty by Colombia entitled Nicaragua to declare its termination ; (6) in case the Court were to find that the Barcenas-Esguerra Treaty had been validly concluded and were still in force, then to determine that this Treaty did not establish a delimitation of the maritime areas along the 82° meridian of longitude west ; 6 CIJ1034.indb 22 7/01/14 12:43634 territorial and maritime dispute (judgment)

14

this Treaty did not establish a delimitation of the maritime areas along the 82° meridian of longitude west ; 6 CIJ1034.indb 22 7/01/14 12:43634 territorial and maritime dispute (judgment) 14 (7) in case the Court finds that Colombia has sovereignty in respect of the islands of San Andrés and Providencia, these islands be enclaved and accorded a territorial sea entitlement of twelve miles, this being the appropriate equitable solution justified by the geographical and legal framework ; (8) the equitable solution for the cays, in case they were to be found to be Colombian, is to delimit a maritime boundary by drawing a 3 nautical mile enclave around them ; (9) the appropriate form of delimitation, within the geographical and legal framework constituted by the mainland coasts of Nicaragua and Colombia, is a single maritime boundary in the form of a median line between these mainland coasts.” in the Reply : “Having regard to the legal considerations and evidence set forth in this

Reply :

I. May it please the Court to adjudge and declare that : (1) The Republic of Nicaragua has sovereignty over all maritime features off her Caribbean coast not proven to be part of the ‘San Andrés Archipelago’ and in particular the following cays : the Cayos de Alburquerque ; the Cayos del Este Sudeste ; the Cay of Roncador ; North Cay, Southwest Cay and any other cays on the bank of Serrana ; East Cay, Beacon Cay and any other cays on the bank of Serranilla ; and Low Cay and any other cays on the bank of Bajo Nuevo. (2) If the Court were to find that there are features on the bank of Quitasueño that qualify as islands under international law, the Court is requested to find that sovereignty over such features rests with Nicaragua. (3) The appropriate form of delimitation, within the geographical and legal framework constituted by the mainland coasts of Nicaragua and

Quitasueño that qualify as islands under international law, the Court is requested to find that sovereignty over such features rests with Nicaragua. (3) The appropriate form of delimitation, within the geographical and legal framework constituted by the mainland coasts of Nicaragua and Colombia, is a continental shelf boundary with the following co-ordinates : Latitude north Longitude west 1. 13° 33ʹ 18˝ N 76° 30ʹ 53˝ W ; 2. 13° 31ʹ 12˝ N 76° 33ʹ 47˝ W ; 3. 13° 08ʹ 33˝ N 77° 00ʹ 33˝ W ; 4. 12° 49ʹ 52˝ N 77° 13ʹ 14˝ W ; 5. 12° 30ʹ 36˝ N 77° 19ʹ 49˝ W ; 6. 12° 11ʹ 00˝ N 77° 25ʹ 14˝ W ; 7. 11° 43ʹ 38˝ N 77° 30ʹ 33˝ W ; 8. 11° 38ʹ 40˝ N 77° 32ʹ 19˝ W ; 9. 11° 34ʹ 05˝ N 77° 35ʹ 55˝ W. (All co-ordinates are referred to WGS84.) (4) The islands of San Andrés and Providencia (Santa Catalina) be enclaved and accorded a maritime entitlement of twelve nautical miles,