Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea: Implications for the Customary International Law of the Sea
2023; Taylor & Francis; Volume: 54; Issue: 3 Linguagem: Inglês
10.1080/00908320.2023.2247980
ISSN1521-0642
AutoresFrances Anggadi, Camille Goodman, Natalie Klein, Donald R. Rothwell,
Tópico(s)Energy Law and Policy
ResumoAbstractThe International Court of Justice's judgment in Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea reflects one of the most significant contributions the Court has made to customary international law of the sea since the Anglo-Norwegian Fisheries case. This article assesses the Court's findings in the 2022 judgment in relation to customary international law and the implications of the Court's views for the law of the sea, especially as reflected in the UN Convention on the Law of the Sea. After providing a background to the legal proceedings between Nicaragua and Colombia, the discussion focuses on the respective rights and duties of states within the exclusive economic zone, artisanal fishing rights, straight baselines, and the contiguous zone. The article concludes with reflections on the interaction of the Court's judgment with the UN Convention on the Law of the Sea.Keywords: Artisanal fishingColombiacontiguous zonecustomary international lawexclusive economic zonefishingInternational Court of Justicelaw of the seaNicaraguastraight baselines Correction StatementThis article has been republished with minor changes. These changes do not impact the academic content of the article.Notes1 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia) (Judgment) 21 April 2022 ("Alleged Violations of Sovereign Rights") available at: https://www.icj-cij.org/sites/default/files/case-related/155/155-20220421-JUD-01-00-EN.pdf (accessed 3 August 2023).2 The other cases are: Territorial and Maritime Dispute (Nicaragua v Colombia) (Judgment) [2012] ICJ Rep. 624 ("Territorial and Maritime Dispute"); and Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia) (Preliminary Objections) [2016] ICJ Rep. 100, which in 2022 moved to the merits phase with public hearings held in December 2022.3 Anglo-Norwegian Fisheries (United Kingdom v Norway) (Judgment) [1951] ICJ Rep. 116 ("Anglo-Norwegian Fisheries").4 United Nations Convention on the Law of the Sea, adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397, Arts 74(1) and 83(1) (UNCLOS). This case law has been assessed in Natalie Klein and Kate Parlett, Judging the Law of the Sea: Judicial Interpretations of the UN Convention on the Law of the Sea (OUP, 2022); Øystein Jensen (ed), The Development of the Law of the Sea Convention: The Role of International Courts and Tribunals (Elgar, 2020).5 Furthermore, there were territorial sovereignty disputes that largely fall beyond the subject matter jurisdiction of courts and tribunals constituted under Part XV of UNCLOS.6 ICJ Statute, Art 38.7 "Memorial of Nicaragua," Territorial and Maritime Dispute (Nicaragua v Colombia) (28 April 2003) [4]. Nicaragua dates the dispute from when the territories of which modern-day Nicaragua and Colombia formed part gained their independence from Spain.8 Costa Rica and Honduras each sought to intervene in the proceedings on the basis that their respective legal interests were affected: ICJ Statute, Art 62. However, the Court refused these applications. Territorial and Maritime Dispute (Nicaragua v. Colombia) (Application by Honduras for Permission to Intervene) [2011] ICJ Rep. 420; Territorial and Maritime Dispute (Nicaragua v. Colombia) (Application by Costa Rica for Permission to Intervene) [2011] ICJ Rep. 348.9 Treaty Concerning Territorial Questions at Issue Between Colombia and Nicaragua, adopted 24 March 1928, entered into force 5 May 1930, 105 LNTS 337 ("1928 Treaty").10 American Treaty on Pacific Settlement, adopted 30 April 1948, entered into force 6 May 1949, 30 UNTS 55 ("Pact of Bogotá").11 Territorial and Maritime Dispute (Nicaragua v. Colombia) (Preliminary Objections) [2007] ICJ Rep. 832, 861 [88].12 Territorial and Maritime Dispute [103].13 Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep. 61.14 Alleged Violations of Sovereign Rights, note 1, [217]–[228].15 Ibid, [211]; notably, the Court calculated Colombia's relevant coasts using a radial projection of its islands, i.e., including those parts of the coasts that faced away from Nicaragua's mainland coast. That approach was justified given that Nicaragua's 200 NM maritime claim extended to the east of the Colombian islands and thereby surrounded the islands; see discussion in Klein and Parlett, note 4, 232–233.16 Territorial and Maritime Dispute, note 2, [215]–[230].17 Ibid, [238].18 Stephen Fietta and Robin Cleverly, A Practitioner's Guide to Maritime Boundary Delimitation (OUP, 2016) 529.19 Territorial and Maritime Dispute, note 2, [230].20 Ibid, [244], [247]; for analysis of this decision and Nicaragua's engagement with the court on a variety of matters see Donald R Rothwell, "International Law of the Sea and the Nicaraguan Cases" in Edgardo Sobenes Obregon and Benjamin Samson (eds), Nicaragua Before the International Court of Justice: Impacts of International Law (Springer, 2018) 327–346.21 On the domestic law changes needed to implement the judgment, see Ricardo Abello-Garvis and Walter Arevalo-Ramirez, "Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia, 2022): Commentary on the Case and the Judgment on the Merits by the International Court of Justice" (2022) 10(1) Journal of Territorial and Maritime Studies 5, 7–9.22 Helen Murphy, "Colombia Leaves Pact Recognizing U.N. Court Rulings" 29 November 2012, Reuters at: https://www.reuters.com/article/us-colombia-icj-idUSBRE8AR11Q20121128 (accessed 27 February 2023).23 Ibid.24 Julian Ku, "Is Colombia Going to Just Ignore the ICJ's Ruling on Nicaragua?" 24 August 2013, Opinio Juris at: http://opiniojuris.org/2013/08/24/colombia-going-just-ignore-icjs-ruling-nicaragua (accessed 27 February 2023).25 Anastasia Moloney, "Their Waters Wrested Away, Colombia's Island Fishermen Lament—and Learn" 6 December 2018, Reuters at: https://www.reuters.com/article/us-oceans-rights-colombia-feature-idUSKBN1O51A3 (accessed 27 February 2023).26 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia) (Preliminary Objections) [2016] ICJ Rep. 3.27 Alleged Violations of Sovereign Rights, note 1, [11].28 "Order of 15 November 2017," Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia) (Counter-Claims) [2017] ICJ Rep. 289, 314 [82].29 Alleged Violations of Sovereign Rights, note 1, [15].30 Ibid, [15].31 Ibid, [34]; See also [40] (Court agreeing with the relevant question).32 Ibid, [42].33 Ibid, [44].34 Ibid, [46].35 UN Charter, Art 94(2).36 Alleged Violations of Sovereign Rights, note 1, [28].37 Ibid, [64].38 Ibid.39 Ibid, [66].40 Ibid, [69]. Vice President Gevorgian did not consider that Nicaragua had met its evidentiary burden with respect to the authorization for fishing. See Alleged Violations of Sovereign Rights, note 1, Declaration of Vice President Gevorgian.41 Alleged Violations of Sovereign Rights, note 1, [71]-[90].42 Ibid, [87].43 Ibid, [89].44 Ibid, [103]-[104].45 Ibid, [72].46 Ibid, [57]. Judge Robinson further considered that Articles 69 and 70 reflect customary international law. Alleged Violations of Sovereign Rights, note 1, Sep. Op. of Judge Robinson, [1].47 UNCLOS, Art 56(1).48 UNCLOS, Art 58(1).49 An aspect of customary international law also recognized by the Court: see Alleged Violations of Sovereign Rights, note 1, [60], [63].50 Continental Shelf (Tunisia v Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep. 18, 73–74 [100].51 An issue reflected at the time UNCLOS was drafted by the inclusion of Article 59 to resolve conflicts over the future attribution of rights and duties in the EEZ.52 Camille Goodman, Coastal State Jurisdiction Over Living Resources in the Exclusive Economic Zone (OUP, 2022) 43–61.53 Alleged Violations of Sovereign Rights, note 1, [91].54 See ibid, [33].55 Goodman explores this practice in detail, especially in chapters 4 and 6: Goodman, note 52.56 Alleged Violations of Sovereign Rights, note 1, [92].57 Ibid, [94].58 Ibid.59 Ibid, [95].60 Request for Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (Advisory Opinion) [2015] ITLOS Rep. 4, 37 [120] ("ITLOS SRFC Advisory Opinion").61 The South China Sea Arbitration (The Republic of Philippines v. The People's Republic of China) (Award of 12 July 2016), PCA Case No 2013-19, [743] ("South China Sea Arbitration").62 UNCLOS, Art 73(1).63 Notably, the Part XV dispute settlement procedures include an option for flag states to seek the prompt release of a vessel in accordance with UNCLOS Article 292.64 Alleged Violations of Sovereign Rights, note 1, [93].65 See, e.g., ITLOS SRFC Advisory Opinion, note 60, [120].66 See Millicent McCreath, "Community Interests and the Protection of the Marine Environment Within National Jurisdiction" (2021) 70(3) International & Comparative Law Quarterly 569–603 (arguing that there is a community interest in the protection of the marine environment, which might suggest that other states can act if a coastal state fails to do so in areas under national jurisdiction).67 Alleged Violations of Sovereign Rights, note 1, [95]. A view reinforced by Judge Robinson in his Separate Opinion. See Alleged Violations of Sovereign Rights, note 1, Sep. Op. of Judge Robinson, [29].68 But see Klein and Parlett, note 4, 349 (questioning the basis for this initial assertion by ITLOS in Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (ITLOS Cases No 3 and 4), though noting its subsequent endorsement as a general principle in UNCLOS jurisprudence).69 UNCLOS, Art 217(1).70 Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, adopted 24 March 1983, entered into force 11 October 1986, 1506 UNTS 157 ("Cartagena Convention"); Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, adopted 18 January 1990, entered into force 17 June 2000, 2180 UNTS 101 ("SPAW Protocol").71 Alleged Violations of Sovereign Rights, note 1, [98]–[99]. This provision was evident in the SPAW Protocol but less so in Article 10 of the Cartagena Convention.72 In this regard, the Court considered Colombia violated customary international law as reflected in Articles 56, 58, and 73. It did not refer to Articles 61 and 62; see Alleged Violations of Sovereign Rights, note 1, [100].73 Later in the judgment, the Court instead appears to endorse a view of the International Law Commission that where the question as to whether the "law on the books" may constitute an international law violation, the answer is "it depends." See Alleged Violations of Sovereign Rights, note 1, [191].74 See, eg, Alleged Violations of Sovereign Rights, note 1, [115].75 Ibid, [119].76 Ibid, [121]–[130].77 Ibid, [131].78 Ibid, [132].79 For discussion on this aspect of the judgment, see Yurika Ishii, "Violations of Sovereign Rights at a Foreign EEZ: Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia)" 7 July 2022, EJIL:Talk! at: https://www.ejiltalk.org/violations-of-sovereign-rights-at-a-foreign-eez-alleged-violations-of-sovereign-rights-and-maritime-spaces-in-the-caribbean-sea-nicaragua-v-colombia (accessed 27 February 2023).80 Judge Robinson, in his separate opinion, observes that "patrolling" has no relationship with navigation where the naval vessel is intending to intimidate the coastal state from exercising its sovereign rights (albeit the vessels authorized by that coastal state). Alleged Violations of Sovereign Rights, note 1, Sep. Op. of Judge Robinson, [14].81 An aspect of the judgment highlighted by Judge Robinson in his Separate Opinion. Judge ad hoc McRae did, though, consider that Colombia failed to exercise its duty of due regard. Alleged Violations of Sovereign Rights, note 1, Dissenting Op. of Judge ad hoc McRae, [27]-[29].82 South China Sea Arbitration, note 61, [944], [964]–[966].83 Alleged Violations of Sovereign Rights, note 1, [134]. Nicaragua failed to establish a similar claim relating to marine scientific research, and also failed to prove that Colombia violated Nicaragua's sovereign rights through issuance of petroleum licenses in areas within Nicaragua's continental shelf: Alleged Violations of Sovereign Rights, note 1, [133].84 "Counter-Memorial of Colombia," volume I, Alleged Violations of Sovereign Rights, 17 November 2016 [9.24]–[9.25].85 "Reply of Nicaragua," Alleged Violations of Sovereign Rights, 15 May 2018 [6.5].86 Ibid, [6.30].87 "Additional Pleading of the Republic of Nicaragua on Colombia's Counterclaims," Alleged Violations of Sovereign Rights, 4 March 2019, [2.12], quoting Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States) (Judgment) [1984] ICJ Rep. 246, 341–2 [235] ("Gulf of Maine Case").88 Reply of Nicaragua, note 85, [6.31].89 "Rejoinder of Colombia," volume I, Alleged Violations of Sovereign Rights, 15 November 2018 [5.12].90 Ibid, [5.15].91 Ibid, [5.26].92 Alleged Violations of Sovereign Rights, note 1, [213].93 Ibid, [220]–[221].94 Ibid, [222]–[224].95 Ibid, [230].96 Ibid, [231].97 Gulf of Maine Case, note 87, 341–2 [235].98 Valentin J Schatz, "The International Legal Framework for Post-Brexit EEZ Fisheries Access between the United Kingdom and the European Union" (2020) 35(1) International Journal of Marine and Coastal Law 133, 150. See also Leonardo Bernard, "Historic Fishing Rights and the Exclusive Economic Zone" (2021) 18(2) Indonesian Journal of International Law 161, 167.99 See, e.g., the discussion in Sophia Kopela, "Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration" (2017) 48(2) Ocean Development & International Law 181, 186. See also the examples of coastal state recognition or acceptance of historic fishing rights in the EEZ explored in Bernard, note 98, 176.100 South China Sea Arbitration, note 61, [804]. On the Tribunal's attempt to distinguish the situation in the South China Sea Arbitration from the dictum in Eritrea/Yemen, see Kopela, note 99, 194.101 Kopela, note 99, 192.102 Alleged Violations of Sovereign Rights, note 1, Declaration of Judge Xue [2].103 Ibid, [10].104 Ibid, [9].105 Ibid, [15].106 Ibid, [16].107 Alleged Violations of Sovereign Rights, note 1, Dissenting Op. of Judge ad hoc McRae [69].108 Ibid [63]–[64]. United Nations General Assembly resolution 61/295 "United Nations Declaration on the Rights of Indigenous Peoples" (adopted on 13 September 2007), doc. A/RES/61/295 (2 October 2007).109 Alleged Violations of Sovereign Rights, note 1, Dissenting Op. of Judge ad hoc McRae [69].110 Anglo-Norwegian Fisheries, note 3.111 Kopela, note 99, 181; see more generally Clive Symmons, Historic Waters and Historic Rights in the Law of the Sea: A Modern Reappraisal (Brill, 2nd ed, 2019).112 E.g., Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Merits) [2001] ICJ Rep. 40 ("Qatar v Bahrain"); Eritrea/Yemen—Sovereignty and Maritime Delimitation in the Red Sea (Award of the Arbitral Tribunal in the Second Stage of 17 December 1999: Maritime Delimitation), PCA Case No 1996-04; see analysis of these cases in Coalter G. Lathrop, J. Ashley Roach and Donald R. Rothwell (eds), Baselines under the International Law of the Sea: Reports of the International Law Association Committee on Baselines under the International Law of the Sea (Brill, 2019) 77–80.113 Anglo-Norwegian Fisheries, note 3.114 Alleged Violations of Sovereign Rights, note 1, [200].115 The Court did also briefly consider the other geographic circumstance mentioned in Article 7(1), concluding that the southern portion of Nicaragua's straight baselines (between points 8 and 9) did not conform with the requirement that the coastline be "deeply indented and cut into": ibid, [245].116 Ibid, [254].117 Ibid, [256]; with reference to a "chapelet" the Court observed that "This conclusion is reinforced by the ordinary meaning of the words 'fringe of islands' in other authentic languages of UNCLOS, such as in French, which refers to 'un chapelet d'îles', a term which implies a certain succession or continuity": Alleged Violations of Sovereign Rights, note 1, [254].118 Alleged Violations of Sovereign Rights, note 1, 84–87, discussing Qatar v Bahrain, note 112, Eritrea/Yemen, note 112, and Anglo-Norwegian Fisheries, note 3.119 Alleged Violations of Sovereign Rights, note 1, [250]; the Court principally refers to "Edinburgh Cay" through the 2022 judgment, while in Territorial and Maritime Dispute, note 2, the Court refers exclusively to "Edinburgh Reef." For consistency, this article uses the term "Edinburgh Cay" throughout, and "Edinburgh [Cay]" in any direct quotes from Territorial and Maritime Dispute.120 Note that the same feature was also accepted by the parties as relevant to the delimitation of the maritime boundary in Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras) [2007] ICJ Rep. 659, 753 [305] ("Nicaragua-Honduras Territorial and Maritime Dispute").121 Territorial and Maritime Dispute, note 2, [201] (emphasis added).122 Alleged Violations of Sovereign Rights, note 1,[251]123 Ibid, Dissenting Op. of Judge ad hoc McRae [80].124 Alleged Violations of Sovereign Rights, note 1, [258]. However, the Court read together the requirement in Article 7(1) that the "fringe of islands" is to be located "along the coast" and in its "immediate vicinity" together with the stipulation in Article 7(3) that straight baselines "must not depart to any appreciable extent from the general direction of the coast": [255].125 Ibid, [242].126 Ibid, [241].127 Convention on the Territorial Sea and Contiguous Zone, adopted 29 April 1958, entered into force 10 September 1964, 516 UNTS 205.128 Donald Rothwell and Tim Stephens, The International Law of the Sea (Hart, 3rd ed, 2023) 40.129 Alleged Violations of Sovereign Rights, note 1, Dissenting Op. of Judge ad hoc McRae [78].130 "Reply of Nicaragua," note 85.131 "Additional pleading of Nicaragua on Colombia's Counter-Claims," Alleged Violations of Sovereign Rights, 4 March 2019.132 Ibid, 36.133 Reply of Nicaragua, note 85, [7.42].134 Lathrop et al, note 112, 71.135 See examples of State practice listed in ibid, appendix 2; see also R. R. Churchill, A. V. Lowe and Amy Sander, The Law of the Sea (Manchester University Press, 4th ed, 2022), 69–73; Office of Ocean and Polar Affairs, "Limits in the Seas," U.S. Department of State at: https://www.state.gov/limits-in-the-seas (accessed 27 February 2023).136 Lathrop et al, note 112, [27].137 Churchill, Lowe and Sander, note 135, 71.138 Alleged Violations of Sovereign Rights, note 1, Dissenting Op. of Judge ad hoc McRae [78].139 Alleged Violations of Sovereign Rights, note 1, [258].140 Which is itself a point of distinction, as the zone is expressly referenced in the name of the treaty.141 See discussion in Rothwell and Stephens, note 128, 79–81; Churchill, Lowe and Sander, note 135, 212–220; J. Ashley Roach, Excessive Maritime Claims (Brill, 4th ed, 2021) 146–153.142 As to the use of the term "integral," it was explained by Counsel for Colombia that "it is simply 'integral' because the geography of the area dictates so. It is not a new type of zone": Alleged Violations of Sovereign Rights, Verbatim Record CR 2021/15 (22 September 2021) 25 [4] per Mr Reisman.143 See map showing Colombia's "Integral Contiguous Zone" according to Colombia in Alleged Violations of Sovereign Rights, note 1, 63, which was described as follows: "The modest use of geodetic lines to smooth out and simplify the otherwise impractical outer limits of the contiguous zone is dictated by geography": Alleged Violations of Sovereign Rights, Verbatim Record CR 2021/15 (22 September 2021) 26 [8] per Mr Reisman.144 Alleged Violations of Sovereign Rights, note 1, [155].145 Ibid, [148].146 Ibid.147 Ibid, [152]–[154].148 Ibid, [155].149 Ibid, [176].150 Ibid, [178].151 Ibid, [179].152 Ibid, [180].153 See ibid, 66 [184], for discussion by the International Law Commission and at the Third United Nations Conference on the Law of the Sea on the background to this provision; see also Tullio Scovazzi, "Article 303 Archaeological and Historical Objects Found at Sea" in Alexander Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (C.H. Beck, 2017) 1950–1961.154 Alleged Violations of Sovereign Rights, note 1, [185]; see also Roach, note 141, 149–151.155 Alleged Violations of Sovereign Rights, note 1, [186].156 See also Barbados v Trinidad and Tobago (2006) 45 ILM 798; Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea, note 119; Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua) (Judgment) [2018] ICJ Rep 139.157 See generally Roach, note 141, 22–23, and Appendix 1, "President's Ocean Policy Statement, March 10, 1983."158 North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) [1969] ICJ Rep. 3.159 Continental Shelf (Libyan Arab Jamahiriya/Malta) [1985] ICJ Rep. 13.160 See analysis in J. Ashley Roach, "Today's Customary International Law of the Sea" (2014) 45(3) Ocean Development & International Law 239; David L. Larson, "Conventional, Customary, and Consensual Law in the United Nations Convention on the Law of the Sea" (1994) 25(1) Ocean Development & International Law 75–85; and with respect to distinctive aspects of + UNCLOS see Said Mahmoudi, "Customary International Law and Transit Passage" (1989) 20 Ocean Development & International Law 157; Bjarni Már Magnússon, "Can the United States Establish the Outer Limits of Its Extended Continental Shelf Under International Law?" (2017) 48(1) Ocean Development & International Law 1.161 Notably the possible role of state practice in treaty interpretation: see Vienna Convention on the Law of Treaties, adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331, Art 31 (3)(b).162 Alleged Violations of Sovereign Rights, note 1, [56].163 Ibid.164 Ibid, [149].165 Ibid.166 See submissions by Colombia where it was asserted: "It is customary international law that determines the rights of Colombia in its contiguous zone in accordance with current State practice and opinio juris. Colombia's study of State practice, found in Appendix B to the Counter-Memorial, shows that States have claimed powers in their contiguous zones for security and defence matters, environmental concerns and effects on cultural heritage": Alleged Violation of Sovereign Rights, Verbatim Record CR 2021/15 (22 September) 31 [37] per Mr Reisman.167 This view was expressed by Judge ad hoc McRae: Alleged Violations of Sovereign Rights, note 1, Dissenting Op. of Judge ad hoc McRae [79]. Arguably, it is also possible that the Court may have been assisted by a consideration of state practice in its examination of the meaning of "island" for the purposes of Article 121(1) and Article 7(1), and its application to Edinburgh Cay. Such consideration was absent here, as it was in the reasoning of the Tribunal in South China Sea Arbitration, note 61, [553].
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