1. Introduction
On 19 November 2012, the International Court of Justice (ICJ) gave its judgment concerning Territorial and Maritime Dispute between Nicaragua and Colombia.Footnote 1 The members of the Court, including two judges ad hoc, were unanimous on sovereignty over maritime features and the maritime delimitation. The 2012 Nicaragua v. Colombia case provides interesting insights into, inter alia, the interpretation of Article 121 of the UN Convention on the Law of the Sea (hereafter UNCLOS), the methodology of maritime delimitations, the function of proportionality, and the impact of the ICJ judgment upon third states. This article will focus on these issues, examining the case from the viewpoint of the international law of the sea, in particular, the law of maritime delimitation.Footnote 2 In addition to this introduction (section 1), this contribution will contain four sections, dealing, respectively, with the legal status of maritime features in dispute (section 2), the methodology of maritime delimitation (section 3), and the critical assessment of maritime delimitation in the present proceedings (section 4). Finally, section 5 will draw a number of conclusions.
2. The legal status of maritime features in the dispute
2.1. The legal status of Quitasueño
The maritime features in dispute between the parties in the proceedings were: Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, Quitasueño, Serranilla, and Bajo Nuevo.Footnote 3 The law applicable to maritime features varies according to their legal status. Whilst it is well established in international law that islands, however small, are capable of appropriation, low-tide elevations cannot be appropriated.Footnote 4 Hence the legal status of maritime features is of particular importance in determining whether sovereignty over these features is governed by the law of acquisition of territory. Thus, the question whether or not Quitasueño could be regarded as a low-tide elevation was debated. The part of Quitasuenño which is above water at high tide is a minuscule feature, barely one square metre in dimension.Footnote 5 On this issue, the Court held that: ‘[O]ne of the features at Quitasueño, namely QS 32, is above water at high tide and thus constitutes an island within the definition embodied in Article 121, paragraph 1, of UNCLOS.’Footnote 6 It then concluded that, apart from QS 32, the other 53 features identified at Quitasueño are low-tide elevations.Footnote 7
When deciding whether or not Quitasueño can be considered as ‘an island’ under UNCLOS Article 121(1), the Court focused solely on its height. In relation to this, it referred to the Qatar v. Bahrain case where Qit’at Jaradah was considered an island, notwithstanding that it was only 0.4 metre above water at high tide.Footnote 8 Nonetheless, the Qatar v. Bahrain judgment did not adequately clarify the reason why Qit’at Jaradah could be regarded as an island. Indeed, Judges Bedjaoui, Ranjeva, and Koroma dissented with the majority opinion on this matter. These three judges argued that:
The fact that the land lies above the high-water line is not enough in itself for a feature to be characterized as an island; only areas of terra firma can be accorded the status of island under Article 121 of the Law of the Sea Convention.Footnote 9
Judge Vereshchetin also considered that: ‘In my assessment, this tiny maritime feature . . ., constantly changing its physical condition, cannot be considered an island having its territorial sea.’Footnote 10 The learned judge concluded that Qit’at Jaradah was a low-tide elevation. Hence there are some doubts whether Qit’at Jaradah could provide a good precedent on this subject.
Furthermore, under UNCLOS Article 121, the legal status of a maritime feature cannot be determined only by its height. In order to decide the legal status of Quitasueño, there would be a need to examine elements reflected in UNCLOS Article 121(3), such as: the capability or possibility of rocks to sustain human habitation or economic life, the test of human habitation, the concept of ‘economic life’, and the meaning of the phrase ‘of their own’.Footnote 11 If these elements are not satisfied, a maritime feature cannot be considered as an island. However, the Court did not examine elements set out in UNCLOS 121(3). Instead, the Court relied essentially on the claims by the parties and ruled that:
It has not been suggested by either Party that QS 32 is anything other than a rock which is incapable of sustaining human habitation or economic life of its own under Article 121, paragraph 3, of UNCLOS, so this feature generates no entitlement to a continental shelf or exclusive economic zone.Footnote 12
For the Court,
Since Quitasueño is a rock incapable of sustaining human habitation or an economic life of its own and thus falls within the rule stated in Article 121, paragraph 3, of UNCLOS, it is not entitled to a continental shelf or exclusive economic zone.Footnote 13
At first sight, this statement seems to be inconsistent with the Court's own statement that Quitasueño constitutes an island within the definition embodied in UNCLOS Article 121(1). A possible interpretation in this regard may be that, in the Court's view, ‘rocks’ set out in Article 121(3) constitute a sub-category of islands and that they are an exception to the regime of islands provided in Article 121(1) and (2). According to this interpretation, the concept of an island under Article 121(1) includes both ‘islands’ which can sustain human habitation or economic life of their own and ‘rocks’ which cannot meet such conditions. In fact, in another part of the judgment (with regard to Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, Serranilla, and Bajo Nuevo), the Court stated that: ‘[E]ven an island which falls within the exception stated in Article 121, paragraph 3, of UNCLOS is entitled to a territorial sea’.Footnote 14 This statement did seem to imply that the Court regarded rocks which fall within the scope of Article 121(3) as a variation of an ‘island’. According to the Court's terminology, however, the fact that a maritime feature constitutes an ‘island’ does not automatically mean that it is entitled to generate the exclusive economic zone (EEZ) and the continental shelf.
2.2. Legal status of Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, Serranilla, and Bajo Nuevo
Opinions of the parties were divided on the legal status of Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, Serranilla, and Bajo Nuevo. Although Nicaragua contended that these maritime features all fall within the exception stated in UNCLOS Article 121(3), namely that they are rocks,Footnote 15 Colombia argued that they are islands.Footnote 16 Without specifying their legal status, the Court merely ruled that those maritime features are each entitled to a territorial sea of 12 nautical miles, irrespective of whether they fall within the exception stated in UNCLOS Article 121(3).Footnote 17 In relation to this, it is of particular interest to note that the ICJ regarded UNCLOS Article 121 as customary international law. In the Qatar v. Bahrain case, the Court already treated Article 121(1) and (2) as part of customary international law.Footnote 18 Further to this, the Court, in the Nicaragua v. Colombia judgment, stressed the linkage between paragraph 3 of Article 121 and paragraphs 1 and 2 of the same article. The Court thus took the view that the legal regime of islands set out in UNCLOS Article 121 forms an indivisible regime, all of which has the status of customary international law.Footnote 19 Although the Court's view is thought to be an innovation, caution is necessary in two points.
The first point concerns the ambiguity of the language of UNCLOS Article 121(3). To this day, there is no general agreement between commentators as to the precise meaning of the concepts of, inter alia, ‘rocks which cannot sustain’, ‘economic life’, and ‘of their own’. The interrelationship between the human habitation test and the test of ‘economic life on their own’ also remains a matter for discussion.Footnote 20
The second point relates to the paucity of state practice. It is uncommon that coastal states incorporate Article 121(3) in their national legislation.Footnote 21 Further, with the notable exception of Rockall in the North Atlantic Ocean, it is rare that coastal states have abandoned the establishment of an EEZ or continental shelf around marine formations because they constitute rocks under Article 121(3). It is also infrequent that municipal courts deal with UNCLOS Article 121(3).Footnote 22 Therefore, it is debatable whether there is ‘extensive and virtually uniform’ state practice and opinio juris generating a rule of customary law on this matter.
Overall there are serious doubts whether UNCLOS Article 121(3) can be thought to represent part of customary international law. Even if this provision became part of customary international law, its precise meaning would remain obscure. In any case, since there is no doubt that Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, Serranilla, and Bajo Nuevo are not low-tide elevations, sovereignty over these features is governed by the law of acquisition of territory. Having considered the entirety of the arguments and evidence put forward by the parties,Footnote 23 the Court found, unanimously, that Colombia has sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana, and Serranilla.Footnote 24
3. Methodology of maritime delimitation
3.1. Three-stage approach
Next, the ICJ turned to maritime delimitation.Footnote 25 Here the methodology to be employed in effecting the maritime delimitation is of central importance in the law of maritime delimitation since it directly affects the establishment of a maritime boundary. In addition, this issue concerns the legal philosophy of the law as a whole. In this regard, the ICJ, in the Nicaragua v. Colombia judgment, made clear that it would normally carry out a maritime delimitation employing three stages. In the first stage, the Court establishes a provisional equidistance/median line, unless there are compelling reasons why the establishment of such a line is not feasible. In the second stage, it considers whether there are any relevant circumstances which may call for an adjustment or shifting of the provisional equidistance/median line so as to achieve an equitable result. If it concludes that such circumstances are present, it establishes a different boundary which usually entails such adjustment or shifting of the equidistance/median line as is necessary to take account of those circumstances. In the third and final stage, it conducts a disproportionality test in which it assesses whether the effect of the line, as adjusted or shifted, is such that the parties’ respective shares of the relevant area are markedly disproportionate to their respective relevant coasts. The Court pronounced that in the present case, it would proceed through the three stages in accordance with its standard method.Footnote 26 The Court's approach – which may be called the three-stage approach – is essentially the same as that followed in the Romania v. Ukraine case.Footnote 27
3.2. Change of the methodology in the jurisprudence concerning maritime delimitations
The Court's methodology in the Nicaragua v. Colombia case is in line with the development of the case law of maritime delimitations. As explained elsewhere, an essential issue of the law of maritime delimitation concerns the question how it is possible to reconcile the requirement of predictability with the requirement of flexibility within the law.Footnote 28 Reflecting these two contrasting requirements of the law, two contrasting approaches appeared.Footnote 29
3.2.1. The result-orientated equity approach (l’équité créatrice)
The first approach emphasizes maximum flexibility. Originally this approach was adopted by the ICJ in the 1969 North Sea Continental Shelf judgment. In this judgment, the Court made clear that maritime delimitation is governed by equitable principles as customary law.Footnote 30 In this regard, it did not admit the existence of any obligatory method of continental shelf delimitation, including the equidistance method.Footnote 31 In the words of the Court, ‘it is necessary to seek not one method of delimitation, but one goal’.Footnote 32 Hence the Court, in the North Sea Continental Shelf judgment, did not specify any method of delimitation and merely indicated the factors to be taken into account in a negotiation. According to this approach, it is the goal which should be stressed, and the law of maritime delimitation should be defined only by this goal, i.e., the achievement of equitable results. As a consequence, no specific method of delimitation is incorporated into the legal domain, and the law of maritime delimitation prescribes only an equitable result. In this sense, one can call this approach a result-oriented equity approach or l’équité créatrice.Footnote 33
Subsequently the ICJ, in the 1982 Tunisia v. Libya case, further promoted the result-oriented equity approach, stating that:
The result of the application of equitable principles must be equitable. . . . It is, however, the result which is predominant; the principles are subordinate to the goal. The equitableness of a principle must be assessed in the light of its usefulness for the purpose of arriving at an equitable result.Footnote 34
In this case, it accepted neither the mandatory character of equidistance, nor some privileged status of equidistance in relation to other methods.Footnote 35
The result-oriented equity approach was also echoed by the Chamber of the ICJ in the 1984 Gulf of Maine case. In this case, the Chamber specified a ‘fundamental norm’ applicable to every maritime delimitation between neighbouring states. The first part of the norm is that maritime delimitation must be sought and effected by means of an agreement in good faith. The second part of the norm is:
(2) In either case, delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result.Footnote 36
According to the Chamber, there has been no systematic definition of equitable criteria because of their highly variable adaptability to different concrete situations. Thus ‘equitable criteria’ are excluded from the legal domain.Footnote 37 The same applies to the ‘practical method’, since the latter would be selected on a case-by-case basis, relying on actual situations.Footnote 38 In the view of the Chamber, the law of maritime delimitation defines neither the equitable criteria nor the practical method, merely advancing the idea of ‘an equitable result’.Footnote 39 The full Court, in the Libya/Malta case of 1985, also stressed the result to be achieved, not the means to be applied.Footnote 40 Later the result-oriented equity approach was echoed by the 1985 Guinea v. Guinea-Bissau arbitrationFootnote 41 and the 1992 St Pierre and Miquelon arbitration.Footnote 42
Overall, between 1969 and 1992 international courts and tribunals supported the result-oriented equity approach. This approach seeks to maintain considerable discretion of the international courts, stressing the maximum flexibility in the law of maritime delimitation. In light of the infinite variety of geographical and non-geographical factors to be taken into account in each case of maritime delimitation, the requirement of flexibility is not negligible. However, this approach presents three problems.Footnote 43 The first problem is its excessive subjectivity. An unlimited discretion for the international courts and tribunals without an objective criterion for judging equitableness would entail the risk of equating the result of the application of the law of maritime delimitation with a decision ex aequo et bono.Footnote 44 The second problem relates to the lack of predictability. According to this approach, the application of equitable principles is to be broken down into relevant circumstances in specific situations. Nonetheless, over-individualization would make it difficult to formulate predictable rules of maritime delimitation. The third problem concerns the lack of specificity. The real issue disputed between the parties concerns the concrete method to be applied for maritime delimitations. Nonetheless, the result-oriented equity approach does not address this issue since, under this approach, no specific method of delimitation is incorporated into the realm of law. Overall it may be concluded that the result-oriented equity approach reduces the normativity of the law of maritime delimitation at the lowest level.Footnote 45
3.2.2. The corrective-equity approach (l’équité correctrice)
In contrast, the second approach seeks to enhance predictability in the law of maritime delimitation by incorporating the equidistance method into the realm of law. This approach appeared in the 1977 Anglo-French Continental Shelf arbitration. Unlike the North Sea Continental Shelf judgment, the Court of Arbitration equated Article 6 of the 1958 Geneva Convention on the Continental Shelf, as a single combined equidistance--special circumstances rule, to the customary law of equitable principles.Footnote 46 The Court of Arbitration then applied the equidistance method with modification in the Atlantic region. The Court's view on this matter bears quoting:
The Court notes that in a large proportion of the delimitations known to it, where a particular geographical feature has influenced the course of a continental shelf boundary, the method of delimitation adopted has been some modification or variant of the equidistance principle rather than its total rejection. . . . [I]t seems to the Court to be in accord not only with the legal rules governing the continental shelf but also with State practice to seek the solution in a method modifying or varying the equidistance method rather than to have recourse to a wholly different criterion of delimitation.Footnote 47
According to the approach of the Court of Arbitration, the equidistance method is applied at the first stage of delimitation, and then a shift of the equidistance line may be envisaged if relevant circumstances warrant it in order to achieve an equitable result; equity comes into play as a corrective element. In this sense, one could speak of the corrective-equity approach, or l’équité correctrice.Footnote 48
Later, the corrective-equity approach was adopted by the ICJ itself. A turning point was the 1993 Denmark v. Norway case concerning a maritime delimitation between the continental shelf and the EEZ/fishery zone (FZ).Footnote 49 In this case, the Court attempted to achieve assimilation at three levels. First, the Court equated Article 6 of the Convention on the Continental Shelf with customary law by relying on a passage of the 1977 award of the Court of Arbitration in the Anglo-French Continental Shelf case.Footnote 50 The Court ruled that:
[I]n respect of the continental shelf boundary in the present case, even if it were appropriate to apply, not Article 6 of the 1958 Convention, but customary law concerning the continental shelf as developed in the decided cases, it is in accord with precedents to begin with the median line as a provisional line and then to ask whether “‘special circumstances’” require any adjustment or shifting of that line.Footnote 51
Second, with respect to the law applicable to the FZ, the Court equated the customary law applicable to the FZ with that governing the EEZ on the basis of the agreement of the parties.Footnote 52 Third, quoting the Anglo-French arbitral award, the Court assimilated the law of continental shelf delimitation with that of the FZ at the customary-law level. In this regard, the Court took the view that: ‘It thus appears that, both for the continental shelf and for the fishery zones in this case, it is proper to begin the process of delimitation by a median line provisionally drawn’.Footnote 53 It went to state that:
It cannot be surprising if an equidistance--special circumstances rule produces much the same result as an equitable principles--relevant circumstances rule in the case of opposite coasts, whether in the case of a delimitation of continental shelf, of fishery zone, or of an all-purpose single boundary.Footnote 54
Thus, for the first time in the case law of the ICJ, the Court applied the corrective-equity approach as customary law. It is important to note that under this approach, the equidistance method is incorporated into the domain of customary law.
Later on, basically the corrective-equity approach was echoed by jurisprudence concerning maritime delimitations. In the 1999 Eritrea v. Yemen arbitration (the Second Phase), the Arbitral Tribunal applied the corrective-equity approach under UNCLOS Articles 74 and 83.Footnote 55 The ICJ, in the 2001 Qatar v. Bahrain case, accepted the applicability of the corrective-equity approach as customary law in the delimitation between states with adjacent coasts.Footnote 56 Furthermore, the ICJ, in the Cameroon v. Nigeria case, broke new ground by applying the corrective-equity approach under UNCLOS Articles 74 and 83.Footnote 57 According to the Court's interpretation, a specific method, i.e., the equidistance method, should be incorporated into Articles 74 and 83. Given that any reference to a specific delimitation method was omitted in drafting those provisions, this is thought to be a judicial innovation.
In the 2006 Barbados v. Trinidad and Tobago arbitration, the Arbitral Tribunal did not admit a mandatory character of any delimitation method. Nevertheless, the Arbitral Tribunal considered that ‘the need to avoid subjective determinations requires that the method used starts with a measure of certainty that equidistance positively ensures, subject to its subsequent correction if justified’.Footnote 58 It thus applied the corrective-equity approach in the operation of maritime delimitation under UNCLOS Articles 74 and 83.Footnote 59 Likewise the ICJ, in the 2007 Nicaragua v. Honduras case, took the view that the application of the equidistance method at the first stage of maritime delimitation is not obligatory. In this case, the Court found itself that it could not apply the equidistance line because of the very active morphodynamism of the relevant area. Accordingly, it established a single maritime boundary by applying the bisector method. Nonetheless, the Court accepted that ‘equidistance remains the general rule’.Footnote 60 This statement implies that the non-application of the equidistance method in the Nicaragua v. Honduras dispute is only exceptional. In fact, the Court applied the corrective-equity approach in relation to the delimitation around the islands in the dispute area without any problems, by referring to the Qatar v. Bahrain case.Footnote 61 Hence it may be argued that the departure from the previous jurisprudence is only partial.Footnote 62 The Arbitral Tribunal, in the 2007 Guyana v. Suriname arbitration, applied the corrective-equity approach more clearly under UNCLOS Articles 74 and 83.Footnote 63
As noted, the ICJ, in the 2009 Romania v. Ukraine case, applied the three-stage approach. Given that the disproportionality test aims to check for an equitable outcome of the maritime delimitation, it may be argued that the three-stage approach in the Romania v. Ukraine case can be regarded as a variation of the corrective-equity approach developed through judicial practice in the field of maritime delimitations. The three-stage approach was followed by the International Tribunal for the Law of the Sea (ITLOS) in the 2012 Bangladesh v. Myanmar case.Footnote 64
In summary, the development of the law of maritime delimitation is essentially characterized by the tension between predictability and flexibility in the law. It can be broadly observed that the law of maritime delimitation is moving in a direction from the result-orientated equity approach (l’équité créatrice) to the corrective-equity approach (l’équité correctrice).Footnote 65 As ITLOS aptly observed in the Bangladesh v. Myanmar case, it may be said that: ‘Over time, the absence of a settled method of delimitation prompted increased interest in enhancing the objectivity and predictability of the process’.Footnote 66 Equidistance is the only objective method for ensuring predictability of results in the sense that once the base points are fixed, the delimitation line is mathematically determined.Footnote 67 By incorporating the equidistance method into the realm of law, the corrective-equity approach is thought to enhance predictability of the law of maritime delimitation. At the same time, equidistance can provide an objective criterion for testing the equitableness of a delimitation line taking relevant circumstances into account.Footnote 68 One can thus argue that the corrective-equity approach – and its variation of the three-stage approach – would provide a better framework for balancing predictability and flexibility in the law of maritime delimitation.Footnote 69 As will be discussed below, however, an issue arising concerns the manner in which this approach is applied.
4. Critical assessment of the maritime delimitation process
4.1. The manner in which the three-stage approach is applied
Three issues may arise with regard to the application of the three-stage approach in the present proceedings. The first issue pertains to the adjustment of the provisional equidistance line. According to the ICJ, in the western part of the relevant area, the disparity in coastal length is so marked as to justify a significant shift. In shifting the provisional median line eastwards, the Court thus constructed a line each point on which is three times as far from the controlling base point on the Nicaraguan islands as it is from the controlling base point on the Colombian islands. As a result, the ‘weighted line’ was constructed using a 3:1 ratio between Nicaraguan and Colombian base points.Footnote 70 Yet the legal ground of the 3:1 ratio remains unclear. It seems questionable whether there is any relationship between the ratio of coastal lengths of each party which is 8:1 and the 3:1 ratio for the adjustment. A possible reason may be that the effect of the provisional median line was to cut Nicaragua off from some three-quarters of the area into which its coast projects.Footnote 71 Even so, as Judge Xue pointedly observed, a question arises whether the weighted line can be considered as a shifting of the provisional median line or a reconstruction of a new line by a 3:1 ratio between the base points of the parties.Footnote 72
The second issue relates to the two horizontal lines. In this respect, the Court considered that ‘an equitable result which gives proper weight to those relevant considerations is achieved by continuing the boundary line out to the line 200 nautical miles from the Nicaraguan baselines along lines of latitude’.Footnote 73 The Court thus drew two horizontal lines along lines of latitude from points one and nine. Here an issue arises in relation to the legal grounds for drawing these two horizontal lines. In this circumstance, the application of the equidistance method at the first stage of maritime delimitations relies on solid legal ground, i.e., the interlinkage between legal title and the delimitation method. This point was explicitly affirmed by the ICJ in the Libya v. Malta case, which stated that: ‘[t]he legal basis of that which is to be delimited cannot be other than pertinent to the delimitation’.Footnote 74 For the Court,
[t]he criterion is linked with the law relating to a State's legal title to the continental shelf. . . . It therefore seems logical to the Court that the choice of the criterion and the method which it is to employ in the first place to arrive at a provisional result should be made in a manner consistent with the concepts underlying the attribution of legal title.Footnote 75
The Court's view was echoed by commentators. For instance, Weil stated that ‘il est tout aussi évident, faut-il le rappeler, que la délimitation est étroitement liée à la base juridique du titre. La délimitation ne peut pas être comprise en dehors du titre; elle est fille du titre.’Footnote 76 Likewise Lucchini and Voelckel advanced the view that ‘[l]e titre est, en effet, l’élément fondamental de base. La délimitation ne peut avoir lieu qu’à partir de lui et en s’appuyant sur lui’.Footnote 77 Presently there is no doubt that the legal title over maritime spaces up to 200 nautical miles is attributed by virtue of the distance criterion. Therefore, it is logical that the method of delimitation should reflect the criterion of distance and its spatial nature. Equidistance is the most appropriate method which reflects the spatial nature of the distance criterion.Footnote 78 Should a method of delimitation be combined with the distance criterion, the equidistance method should logically be singled out. This is the reason why the equidistance method must be applied at the first stage of maritime delimitations.
By contrast, legal ground for establishing these two horizontal lines remains obscure. In fact, there is no linkage between the provisionally drawn equidistance line and these two horizontal lines. In this regard, Judge Abraham rightly observed that:
[I]t is difficult to regard these two horizontal lines as a mere ‘adjustment’ or even ‘shifting’ of the provisional line. With the exception of the starting-point of the first line, those lines are actually entirely unrelated to the provisional line.Footnote 79
Judge Xue also gave her misgivings that the Court unduly restricted the coastal projections of Colombian islands against those of the other two third states, i.e. Costa Rica and Panama, in the southern area.Footnote 80 Needless to say, maritime delimitations before international courts and tribunals must be effected by applying rules of international law. If the two horizontal lines in the Nicaragua v. Colombia judgment were drawn without solid legal grounds, this may entail the risk of equating maritime delimitations in accordance with international law by the Court with a decision ex aequo et bono.
Third, attention must be paid to the legal effect given to Serrana. It consists of several groups of cays. The largest one, Serrana Cay (also known as Southwest Cay), is some 1,000 metres in length and has an average width of 400 metres. There is a six-metre-wide well for the water supply of the marine infantry corpsmen and fishermen who visit the cay. There are also facilities, solar panels, and communication systems for a detachment of the Colombian marine infantry that carries out law-enforcement activities relating to the control of fishing and illicit drug trafficking.Footnote 81 In light of its small size, remoteness, and other characteristics, the Court established only a 12-nautical-mile envelope of arcs measured from Serrana Cay and other cays in its vicinity. It would seem to follow that Serrana was de facto treated as a rock, although the Court refrained from deciding whether or not Serrana falls within the scope of rocks under UNCLOS Article 121(3). According to the Court's solution, Serrana was given the same effect as Quitasueño, which is barely one square metre in dimension.
The creation of an enclave of 12 nautical miles' arc of the territorial sea is not new in the ICJ jurisprudence. In the Romania v. Ukraine case, the Court attributed only a 12-nautical-mile arc of the territorial sea to Serpents’ Island.Footnote 82 Although the Court did not decide the legal status of Serpents’ Island, the Court's solution seems to produce the same effect as if Serpents’ Island were treated as a rock. Likewise, in the Nicaragua v. Honduras case, the Court took the view that Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay, which belong to Honduras, fall within the definition and regime of islands under UNCLOS Article 121 since the parties did not dispute the fact that these marine features remain above water at high tide. Thus these four features were referred to as islands in the Nicaragua v. Honduras judgment.Footnote 83 In drawing the maritime delimitation line between Nicaragua and Honduras, the Court ruled that the Honduran islands of Bobel Cay, Savanna Cay, Port Royal Cay, and South Cay should be accorded a territorial sea of 12 nautical miles.Footnote 84 It thus traced the 12-nautical-mile arc of the territorial sea around the south of Bobel Cay until it reached the median line in the overlapping territorial seas of Bobel Cay, Port Royal Cay, and South Cay (Honduras) and Edinburgh Cay (Nicaragua). The Court also traced the arc of the outer limit of the 12-nautical-mile territorial sea of South Cay round to the north until it connected with the bisector line.Footnote 85 It would seem to follow that the Court's solution produced the same effect as these cays being treated as rocks under UNCLOS Article 121(3).
The ICJ jurisprudence seems to suggest that all maritime features which remain above water at high tide may be attributed at least 12 nautical miles of the territorial sea, regardless of their legal status. On the one hand, the Court's position will secure the territorial sea around any maritime features which are always above water. Even the consideration of proportionality can impede the concept of ‘12-nautical-mile territorial sea’. On the other hand, according to the Court's position, even if a maritime feature can be regarded as an island, this does not automatically mean that the island generates its EEZ and continental shelf. If this is the case, the distinction between ‘islands’ under Article 121(2) and ‘rocks’ provided in Article 121(3) of the UNCLOS will be thin in the context of maritime delimitations.
4.2. The role of (dis)proportionality in maritime delimitations
Another issue to be considered pertains to the role of proportionality in maritime delimitations. The concept of proportionality has been given an increasingly important role in the jurisprudence in the field of maritime delimitations. Nonetheless, the function of proportionality in maritime delimitations is in need of reconsideration. In this regard, the original function of the concept of proportionality must be examined.
It was in the 1969 North Sea Continental Shelf judgment when the concept of proportionality was, for the first time, introduced in the jurisprudence concerning maritime delimitations. In this case, North Sea coastlines of three states, i.e., Denmark, the Netherlands, and the Federal Republic of Germany, were in fact comparable in length. If the equidistance method was used, however, the German area of the continental shelf would be considerably diminished comparing it to the continental shelves of the other two states merely because the German coastline is roughly convex in form and the Netherlands’ and Denmark's coastlines are markedly concave. In the Court's view, this situation would create inequity.Footnote 86 It was against that background that the ICJ took into account the concept of proportionality, stating that:
A final factor to be taken account of is the element of a reasonable degree of proportionality which a delimitation effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines,– these being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions.Footnote 87
The North Sea Continental Shelf judgment suggests that the concept of proportionality was originally intended to correct inequitableness produced by the equidistance method in a particular geographical situation which comprises three elements: (i) adjacent coasts; (ii) existence of particular coastal configurations, such as concavity and convexity; and (iii) quasi-equal length of the relevant coasts. In such a geographical situation, the application of the equidistance method would reduce the scope of the marine space of the middle state with convex coast – that is, the Federal Republic of Germany in the North Sea Continental Shelf cases – as compared to those of its neighbours, although the coastlines are similar in length. Given that the coastal lengths of the parties are almost equal, there may be scope to argue that the distorting effect arising from the application of the equidistance method is thought to be inequitable. It was in this particular geographical situation that the concept of proportionality was taken into account with a view to reducing the distortions created by the application of the equidistance method.Footnote 88 In fact, Judge Oda stated that:
[W]hat the Court intended to say in 1969 was that in such specific circumstances, in which the States concerned were located as adjacent States in similar situations, but where the existence of a marked concave or convex coastline produced a somewhat distorting effect, the proportion of the length of the coast as rectified by its general direction . . . was in principle useful in the verification of geographical equity . . .. The 1969 Judgment nowhere implied the possibility of generally applying the concept of proportionality in other cases, particularly in cases of delimitation between opposite States.Footnote 89
Nonetheless, subsequently the role and geographical scope of the application of proportionality have been enlarged by international courts and tribunals.Footnote 90 Concerning the geographical scope, at the moment it appears that international courts are ready to apply the concept of proportionality to every geographical situation. For aforementioned reasons, however, there are serious doubts whether originally the concept of proportionality was thought to be universally applicable to maritime delimitations. In particular, the applicability of the concept of proportionality in the maritime delimitation between states with opposite coasts was questioned by some members of the ICJ and commentators because the difference of coastal lengths is already reflected in the surfaces of the two zones separated by the median line.Footnote 91 Respecting the role of the concept of proportionality, as noted, this concept is taken into account as a factor for shifting a provisionally drawn equidistance lineFootnote 92 and as a test of the equitable result at the same time. However, the double usage of proportionality at the second and third stages of maritime delimitation seems to be a circular reasoning. In any case it is clear that the dual role of proportionality has radically departed from the original concept of proportionality.
A fundamental question in relation to proportionality is the fact that it may blur the distinction between delimitation and apportionment stressed by the ICJ in the North Sea Continental Shelf cases. The Court's statement on this matter deserves quoting:
[I]ts task in the present proceedings relates essentially to the delimitation and not the apportionment of the areas concerned or their division into converging sectors. Delimitation is a process which involves establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. Delimitation in an equitable manner is one thing, but not the same thing as awarding a just and equitable share of a previously undelimited area, even though in a number of cases the results may be comparable, or even identical.Footnote 93
Furthermore, the Court, in the Tunisia v. Libya case, stated that:
[I]t is bound to apply equitable principles as part of international law, and to balance up the various considerations which it regards as relevant in order to produce an equitable result. While it is clear that no rigid rules exist as to the exact weight to be attached to each element in the case, this is very far from being an exercise of discretion or conciliation; nor is it an operation of distributive justice.Footnote 94
However, the very idea of ‘ratios’ necessarily entails that of shares.Footnote 95 Accordingly, it may have to be accepted that the concept of proportionality contradicts the rejection of the idea of an apportionment in maritime delimitation.Footnote 96 This contradiction increases by placing more weight on proportionality.
As the Arbitral Tribunal stressed in the Barbados v. Trinidad and Tobago case, the proportionality test ‘does not require the drawing of a delimitation line in a manner that is mathematically determined by the exact ratio of the lengths of the relevant coastlines’.Footnote 97 Likewise, in the Denmark v. Norway case, the ICJ itself emphasized that ‘taking account of the disparity of coastal lengths does not mean a direct and mathematical application of the relationship between the length of the coastal front [of the parties]’.Footnote 98 In fact, there is no decisive legal reason why a state with longer coastlines should have larger marine areas than a state with shorter coastlines. Nonetheless, by giving much weight to the consideration of proportionality in the delimitation process, there is a serious concern that the process of maritime delimitations may be transformed to ‘apportionment’ or ‘award of a just and equitable share’ of marine spaces which was rejected by the Court itself. It must also be noted that the concept of proportionality contains several limitations as to its practical application.
The first limit concerns the obscurity of the methodology of calculation of coastal lengths and maritime areas pertaining to each party.Footnote 99 In many, if not most, cases, calculation of coastal lengths is a matter of dispute between the parties. Nonetheless, there is no objective criterion for calculating coastal lengths. In fact, the ICJ, in the Romania v. Ukraine case, admitted that diverse techniques have been used for assessing coastal length ‘with no clear requirements of international law’.Footnote 100 It would seem to follow that the calculation of coastal lengths may rely on the subjective appreciation of the Court. In the Nicaragua v. Colombia case, for instance, Nicaragua claimed that its relevant coast comprises its entire mainland coast in the Caribbean together with the island and estimated that the length of its relevant coast was 453 kilometres.Footnote 101 Colombia accepted that Nicaragua's coast has a length of 453 kilometres, if the straight-line system is used; and that if the Nicaraguan coast is measured in a way which takes full account of its natural configuration, Colombia maintained that the maximum length of that coast was 551 kilometres.Footnote 102 In this regard, the Court ruled that the length of Nicaragua's coast is approximately 531 kilometres taking the general direction of this coast. Yet the Court did not provide any precision respecting the general direction of the Nicaragua's coast.
This is not a problem only with the Nicaragua v. Colombia judgment. In the Romania v. Ukraine case, the Court made clear that it had measured the coasts of the parties according to their general direction.Footnote 103 However, the Court did not identify the general direction of the coasts used for the calculation. Given that there is no objective method of identifying the general direction of the coasts,Footnote 104 the calculation of the coastal lengths may be subject to a case-by-case appreciation of the Court. In addition, the application of (dis)proportionality test may encounter a difficulty with regard to the calculation of the maritime areas pertaining to each party when considering the presence of third states. In the Tunisia v. Libya case, for instance, the outer limits of the delimitation area remained indeterminate because of the existence of third states. The size of the maritime areas belonging to the parties will change according to future agreements establishing maritime boundaries in this region.
The second limit of the concept of proportionality relates to the lack of any criterion for evaluating a difference in coastal lengths. In this regard, the following statement by the Court in the Romania v. Ukraine case merits attention:
The Court cannot but observe that various tribunals, and the Court itself, have drawn different conclusions over the years as to what disparity in coastal lengths would constitute a significant disproportionality which suggested the delimitation line was inequitable, and still required adjustment. This remains in each case a matter for the Court's appreciation, which it will exercise by reference to the overall geography of the area.Footnote 105
The above passage did seem to imply that the question whether there was a disproportionality of the respective coastlines is decided by the judges on a case-by-case basis without using objective criteria.
The third limit of the concept of proportionality pertains to the lack of an objective criterion for evaluating (dis)proportionality between the coastal lengths and maritime areas appertaining to each Party. In the Nicaragua v. Colombia case, the Court considered that there was no disproportionality between the ratio for the coastal lengths, which is approximately 1:8.2 in Nicaragua's favour, and the ratio of the relevant area, which is approximately 1:3.44 in Nicaragua's favour. Yet there may be serious doubts as to whether or not the ratio of the lengths of the coasts and that of the maritime areas are reasonably proportionate. In support of its judgment, the Court referred to the 1993 Denmark v. Norway case.Footnote 106 It is also debatable whether there was no disproportionality between the ratio for the coastal lengths (approximately 1:9 in Denmark's favour) and the ratio of the maritime area (approximately 1:2.7 in Denmark's favour) in this case. The striking fact is that in all cases concerning maritime delimitations, international courts and tribunals concluded that there was no disproportion between the ratio of coastal lengths and the ratio for maritime areas appertaining to the parties. This is not merely a coincidence. It can be reasonably presumed that, at the second stage of maritime delimitation, the maritime boundary was already drawn so as to pass the proportionality test. It cannot be denied that the application of the proportionality test may be only formalistic.
Finally, but not least, particular attention must be devoted to the paucity of state practice concerning proportionality in the field of maritime delimitations. There are only a few treaties respecting maritime delimitation which rely on proportionality. Even in cases where considerations of proportionality may be presumed to have been present, it is difficult to determine its effect on the negotiated boundary with any degree of precision. It is clear that the concept of proportionality is not supported by ‘extensive and virtually uniform’ state practice and opinio juris and that there is no customary rule on this matter.Footnote 107 One can thus argue that the significant role of the concept of proportionality in the jurisprudence concerning maritime delimitations is the product of a ‘judge-made law’. It must be remembered that the application of the concept of proportionality is not widely supported by state practice respecting maritime delimitations. In light of aforementioned limitations, it is advisable to exercise caution so as not to place excessive weight on this concept in the delimitation process.Footnote 108
4.3. Legal effect of the decision upon third states
Another issue that merits particular attention is that of the impact of the maritime boundaries established by the court upon third states. Colombia already established maritime boundaries with Panama and Costa Rica in the Caribbean Sea in 1976 and 1977, respectively.Footnote 109 Colombia also constructed a maritime boundary and Joint Regime Area with Jamaica in 1993. In addition, Costa Rica and Panama established a delimitation line, without fixing an end point, by concluding the 1980 Treaty.Footnote 110
The ICJ jurisprudence shows that the Court has consistently taken the approach of refraining from drawing a maritime boundary in the area where interests of third states may be involved, by indicating the ‘directorial arrow’ only or cutting off the area in question. In the Tunisia v. Libya case, for instance, the Court dismissed Malta's request to intervene in 1981.Footnote 111 Even so, the Court attempted to avoid prejudging the rights of Malta in its judgment of 1982. It thus ruled that in the northern and north-eastern parts of the Pelagian Block where conflicting claims of the parties existed, it ‘has no jurisdiction to deal with such problems in the present case and must not prejudge their solution in the future’.Footnote 112 Concerning the second sector, the Court did not specify the terminal point of the delimitation line on the grounds that ‘the extension of this line northeastwards in a matter falling outside the jurisdiction of the Court in the present case, as it will depend on the delimitation to be agreed with a third state’.Footnote 113 In the Libya v. Malta case, the ICJ limited the scope of its judgment so as not to infringe upon the rights of Italy in the region,Footnote 114 although it refused Italy's request to intervene in 1984.Footnote 115 As a consequence, it may be said that Italy's application for permission to intervene was rewarded.
In the Qatar v. Bahrain case, the Court did not fix the territorial boundary's southernmost point since its definitive location depended on the limits of the maritime zones of Saudi Arabia and the parties.Footnote 116 Nor did the Court fix the terminal point of the delimitation line in the northern sector.Footnote 117 Likewise the Court in the Cameroon v. Nigeria case held that it could not rule on Cameroon's claim in so far as it might affect the rights of Equatorial Guinea and São Tomé and Príncipe.Footnote 118 Accordingly, the Court drew a maritime boundary in so far as it did not affect the rights of Equatorial Guinea. The same approach was adopted in the Nicaragua v. Honduras case. In this case, the Court did not specify the precise location of the endpoint, simply stating that it extends beyond the 82nd meridian without affecting third-state rights.Footnote 119 More recently, the Court, in the Romania v. Ukraine case, did not fix the terminal point of the maritime boundary, stating that after point five, the boundary runs until it reaches the area where the rights of third states may be affected.Footnote 120 Overall, the ICJ was careful not to affect the rights of third states in maritime delimitations.
The Court's approach in the Nicaragua v. Colombia case seems to show a clear contrast with its precedents. On the one hand, the Court, in its 2011 judgment on Costa Rica's application for permission to intervene, ruled that ‘a third state's interest will, as a matter of principle, be protected by the Court, without it defining with specificity the geographical limits of an area where that interest may come into play’.Footnote 121 A similar view was expressed by the Court in the 2012 judgment on the merits of the case.Footnote 122 Nonetheless, the Court, in the present proceedings, did not hesitate to draw the horizontal lines. These two lines would inevitably affect the existing maritime boundaries between Colombia and Panama, between Colombia and Costa Rica, and between Colombia and Jamaica, even though the Court stated that the judgment in the present case addresses only Nicaragua's rights as against Colombia and vice versa and is, therefore, without prejudice to any claim of a third state or any claim which either party may have against a third state.Footnote 123 In fact, Judge Xue expressed her misgivings that ‘[t]he boundary line in the south would virtually produce the effect of invalidating the existing agreements on maritime delimitation that Colombia has concluded with Panama and Costa Rica respectively and drastically changing the maritime relations in the area’.Footnote 124 Likewise Judge ad hoc Cot took the view that ‘[t]he problem is that those treaty-based delimitations no longer exist, since their object disappears with the substitution of Nicaragua for Colombia as the holder of sovereignty or of sovereign rights in the spaces concerned’.Footnote 125 The same issue arises with regard to the 1993 Treaty between Colombia and Jamaica.
In this regard, a further issue to be considered is whether or not the rights of third states are adequately protected by Article 59 of the ICJ Statute. It seems that the Court had strong confidence in the protection of third states’ interests under Article 59.Footnote 126 When dismissing Costa Rica's request to intervene under Article 62 of the Statute, the Court held that:
[T]o succeed with its request, Costa Rica must show that its interest of a legal nature in the maritime area bordering the area in dispute between Nicaragua and Colombia needs a protection that is not provided by the relative effect of decisions of the Court under Article 59 of the Statute, i.e., Costa Rica must fulfil the requirement of Article 62, paragraph 1, by showing that an interest of a legal nature which it has in the area ‘may be affected’ by the decision in the case.Footnote 127
The Court, in the Nicaragua v. Colombia judgment, also observed that ‘as Article 59 of the Statute of the Court makes clear, it is axiomatic that a judgment of the Court is not binding on any state other than the parties to the case’.Footnote 128 Nonetheless, there may be scope to consider the question whether interests of third states can be adequately protected by Article 59. In fact, in the Cameroon v. Nigeria case, the ICJ itself accepted the weakness of the protection, stating that:
in particular in the case of maritime delimitations where the maritime areas of several states are involved, the protection afforded by Article 59 of the Statute may not always be sufficient. In the present case, Article 59 may not sufficiently protect Equatorial Guinea or Sao Tome and Principe from the effects – even if only indirect – of a judgment affecting their legal rights. . . . It follows that, in fixing the maritime boundary between Cameroon and Nigeria, the Court must ensure that it does not adopt any position which might affect the rights of Equatorial Guinea and Sao Tome and Principe.Footnote 129
Regardless of the formalistic protection of Article 59, it cannot be denied that the delimitation line drawn by the Court may affect legal rights and interests of third states, creating a presumption of the finality of the maritime boundary.Footnote 130
Several members of the Court expressed their misgivings on this matter. For instance, Judge Xue considered that ‘[t]he principle res inter alios acta and Article 59 of the Statute do not help in the present situation’.Footnote 131 This view was echoed by Judge ad hoc Cot, saying that ‘Article 59 of the Statute of the Court does not afford them [third states] adequate protection in this case’.Footnote 132 Likewise Judge ad hoc Mensah also stated that ‘[he was] not sure that reliance on Article 59 of the Court's Statute alone would offer adequate protection for the rights of third states, and achieve the objective of stability and practicability, in this case’.Footnote 133 In practice, there will be a need for Costa Rica, Panama and Jamaica to negotiate with Nicaragua concerning their maritime boundaries in light of the Court's judgment.
5. General conclusions
The above-made considerations can be summarized as follows:
1. The applicability of the law of acquisition of territory to maritime features relies on the legal status of these features. The legal title over marine spaces also differs according to the status of maritime features. Thus the legal status of maritime features is of particular importance. In this regard, it is of particular interest to note that the Court regarded Quitasueño as a rock. The Court's view on the legal status of Quitasueño will provide an interesting precedent respecting ‘rocks’ in international law.
2. The Court, in the present proceedings, considered that UNCLOS Article 121 as a whole represents customary international law, by stressing the indivisibility of the legal regime of islands under the UNCLOS. As already confirmed by the precedents, one can argue that UNCLOS Article 121(1) and (2) may be thought to have the status of customary international law. In light of the paucity of state practice, however, there is room for doubting whether Article 121(3) can also be considered as part of customary international law.
3. Following the international jurisprudence concerning maritime delimitations, the Court, in the present proceedings, adopted the three-stage approach when constructing maritime boundaries between Nicaragua and Colombia. It thus confirmed the validity of this methodology. Although this methodology has an advantage of enhancing the predictability of the law of maritime delimitation by applying the equidistance method at the first stage, the maritime boundaries established by the Court in the Nicaragua v. Colombia case significantly departed from the provisionally drawn equidistance line. It is debatable whether the maritime boundaries can be considered as modified equidistance lines. In this regard, there is a concern that an excessive departure from a provisionally drawn equidistance line may run the risk of undermining the predictability of the law of maritime delimitation.Footnote 134
4. It is argued that originally the role of the concept of proportionality was limited to correct inequitableness produced by the equidistance method in a particular geographical situation which comprises three elements: (i) adjacent coasts; (ii) existence of particular coastal configurations, such as concavity and convexity; and (iii) quasi-equal length of the relevant coasts. Nonetheless, subsequently the ICJ as well as other international tribunals departed radically from the original concept of proportionality. In the Nicaragua v. Colombia case, it seems that the consideration of proportionality had a decisive impact upon the location of maritime boundaries drawn by the Court. Yet giving too much weight to proportionality may entail the serious risk of changing the nature of maritime delimitation to apportionment of marine spaces by international courts and tribunals.
5. In relation to this, particular attention must be devoted to the distinction between maritime delimitation and apportionment. As the ICJ repeatedly stressed, maritime delimitation effected by the Court must be distinct from an operation of distributive justice. In reality, apportionment of marine spaces may easily change the character of a decision from being a legal decision of maritime delimitation under international law to a decision on the basis of ex aequo et bono governed by Article 38(2) of the ICJ Statute.Footnote 135 This may run the risk of reducing the normativity of the law of maritime delimitation and might eventually damage the confidence of states in judicial settlement of maritime delimitation disputes.Footnote 136
6. In the present proceedings, it may have to be accepted that the maritime boundary drawn by the Court will affect the existing boundaries between Colombia, Costa Rica, Panama, and Jamaica. In this regard, there may be scope to consider the question whether the rights of third states can be adequately protected by Article 59 of the ICJ Statue. Thus further consideration must be given to the legal effect of Article 59 and third states’ intervention under Article 62 of the Court's Statute in a particular context of maritime delimitations.
