The International Court of Justice (ICJ) recently set the arena for a timely discussion of the question of the admissibility of a claim of continental shelf rights beyond 200 nm, absent a recommendation by the Commission on the Limits of the Continental Shelf (CLCS). The litigation concerned the Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (NICOL II). In its 17 March 2016 Judgment on Preliminary Objections, the ICJ dismissed Colombia’s preliminary objections against the jurisdiction of the Court and the inadmissibility of Nicaragua’s first claim. While the ICJ upheld Colombia’s contentions against the admissibility of Nicaragua’s second submission – a rather unusual request for the establishment of a provisional regime of conduct in the area of overlapping entitlements pending delimitation – the case will now move to the merits with respect to Nicaragua’s request for the Court to adjudge and declare:
“The precise course of the maritime boundary between Nicaragua and Colombia in the areas of the continental shelf which appertain to each of them beyond the boundaries determined by the Court in its Judgment of 19 November 2012.”
This post will focus on the decision of the ICJ to reject, by 11 votes to 5, Colombia’s overarching claim on inadmissibility. ICJ’s 2016 ruling seems to definitely settle the doctrinal debate concerning admissibility of maritime rights beyond 200 nm without exhaustion of the procedure in UNCLOS Article 76(8).
Colombia’s case on inadmissibility
Colombia challenged the admissibility of Nicaragua’s claims on the basis of the procedure established in UNCLOS Article 76(8). Counsel for Colombia, Professor Tullio Treves, summarized the Respondent’s preliminary objection in the following terms:
“The Court cannot consider the Application by Nicaragua because the CLCS has not ascertained that the conditions for determining the extension of the outer edge of Nicaragua’s continental shelf beyond the 200-nautical mile line are satisfied and, consequently, has not made a recommendation”
The ICJ had expressed at paragraph 126 of the 2012 Judgment in the Territorial and Maritime Dispute that:
“In the case concerning Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), the Court stated that “any claim of continental shelf rights beyond 200 miles [by a State party to UNCLOS] must be in accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf established thereunder” (I.C.J. Reports 2007 (II), p. 759, para. 319). The Court recalls that UNCLOS, according to its Preamble, is intended to establish “a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources”. The Preamble also stresses that “the problems of ocean space are closely interrelated and need to be considered as a whole”. Given the object and purpose of UNCLOS, as stipulated in its Preamble, the fact that Colombia is not a party thereto does not relieve Nicaragua of its obligations under Article 76 of that Convention.” (Emphasis added).
In NICOL II Colombia compartmentalized paragraph 126 in order to structure an argument against la recevabilité. In Colombia’s view, a claim of continental shelf rights beyond 200 nm is admissible insofar as it is: a) in accordance with Article 76 of UNCLOS; and (b) reviewed by the CLCS.
The Court’s 2012 requirement for any claim of continental shelf rights beyond 200 nm by an UNCLOS State Party, reaffirmed its previous ruling in Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea in 2007, albeit with a necessary clarification in light of the fact that Colombia, although a signatory, is not a Party to UNCLOS. What is new in the 2012 Judgment is the Court’s constitutional approach and consideration that:
“[g]iven the object and purpose of UNCLOS, as stipulated in its Preamble, the fact that Colombia is not a party [to UNCLOS] does not relieve Nicaragua of its obligations under Article 76 of that Convention.”
Colombia was able to invoke paragraph 126 in NICOL II since at the moment the new Application was filed – 16 September 2013 – Nicaragua had not yet secured a recommendation by the CLCS (Preliminary Objections of the Republic of Colombia, p. 164, para. 7.15). While Nicaragua had made a full submission in 2013, upon knowledge of objections by Panamá, Costa Rica and Colombia under paragraph 5(a) of Annex I to its Rules of Procedure, the CLCS deferred consideration (CLCS/83, 31 March 2014, p. 15, para. 83). In NICOL I, Nicaragua had only submitted Preliminary Information to the CLCS (Territorial and Maritime Dispute (2012), para. 127).
The Western Caribbean and the Bay of Bengal cases
Given two previous ICJ rulings against the same Applicant [(Nicaragua v. Honduras (2007), (Nicaragua v. Colombia (2012)], with arguably the same material condition, one may wonder, why then was this still an outstanding issue as between Nicaragua and Colombia? Since Colombia was a party to one of the proceedings, at least prima facie the “compelling reason to depart test” did not seem operational (Croatia v. Serbia (2008), paras. 53-54). Nicaragua’s Agent conveyed their position in his concluding remarks during the public sittings before the ICJ in October 2015:
“Last Wednesday Professor Treves argued that “Nicaragua’s First Request is inadmissible because of Nicaragua’s failure to secure the requisite CLCS recommendation”. As has been demonstrated last Tuesday and today, Colombia’s claim is contrary to legal principle. As a matter of customary international law, clearly and repeatedly affirmed in the case law of this Court, the rights of a coastal State over the continental shelf are inherent. They exist ipso facto and ab initio and do not come into existence through a recommendation of the CLCS.”
Notably, the 2012 ICJ Judgment in Nicaragua v. Colombia was issued 8 months after the International Tribunal on the Law of the Sea (ITLOS) rendered its Judgment in the Dispute Concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal. In turn, the VII Arbitral Tribunal dealing with the Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India, delivered its Award almost two years after ICJ’s 2012 Judgment.
What is relevant about the chronology of the decisions is that the question of the admissibility of a maritime claim beyond 200 nm without completion of the procedure in UNCLOS Article 76 (8) was formally decided in an opposite manner by the ICJ in the Western Caribbean cases (Nicaragua v. Honduras, p. 759, para. 319) (Nicaragua v. Colombia, pp. 668-669, para. 126) and by UNCLOS’ Tribunals in the Bay of Bengal cases (Bangladesh/Myanmar, p. 115, paras. 391-393) (Bangladesh/India, p. 23, para. 83) .
In NICOL II Nicaragua strongly relied on the rationale inspiring UNCLOS’ Tribunals decisions in the Bay of Bengal cases. According to Nicaragua’s Counsel:
“…The Tribunal in Bangladesh/India case, decided after [ICJ’s] Judgment of 19 November 2012, adhered to the view that ‘the delimitation of the continental shelf beyond 200 nm through judicial settlement was in conformity with article 76 of UNCLOS’’. In neither case, the CLCS had issued recommendations on the outer limits of the continental shelf beyond 200 nautical miles.” [CR 2015/27, Public Sittings, 6 October 2015, (Elferink), p. 49, para. 11.]
Before proceeding to the delimitation of the continental shelf beyond 200 nm between Bangladesh and Myanmar in the absence of a recommendation of the CLCS, ITLOS expressly evoked the unique character of the continental margins in the Bay of Bengal, a situation recognized since the Third Conference of the United Nations on the Law of the Sea. ITLOS also expressed that, given CLCS’s inaction resulting from an objection under paragraph 5(a) of Annex I, a decision not to exercise jurisdiction “would leave the Parties in a position where they may be unable to benefit fully from their rights over the continental shelf” (p. 115, para. 392.). In 2014, UNCLOS Annex VII Tribunal in Bangladesh/India reiterated this concern (p. 22, para. 82.), and with the Parties’ agreement exercised jurisdiction over maritime delimitation beyond 200 nm.
The doctrinal debate
At the core of this debate is UNCLOS Article 76(10), which states:
“The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.”
Beyond formal independence, Bjorn Kunoy points out that “it is difficult to escape the interpretation that these two operations [delineation and delimitation] are intertwined.” Kunoy construed paragraph 319 of the 2007 Judgment in the Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean as supporting the statement that “delineation of the outer limits of the continental shelf without proceeding with the procedures prescribed in the [UNCLOS] is inconsistent with international law” (The Admissibility of a Plea …, TIJMCL 25 (2010) p. 239-240). In response, Barbara Kwiatwowska characterized both Kunoy’s and ICJ’s approaches as incorrect (Submissions to the UN Commission on the Limits of the Continental Shelf…Part One, TIJMCL 28 (2013), p. 225-226).
The disagreement between Kunoy and Kwiatkowska is a reflection of the extent of controversy and indeterminacy with respect to the conditions required to submit a claim of continental shelf rights before an international tribunal without a recommendation by the CLCS. Judge Donoghue’s Separate Opinion in the 2012 Judgment further advanced the debate (Separate Opinion, para. 19). It is then not surprising that Professor Lowe, Counsel for Nicaragua in NICOL II, after summarizing Colombia’s thesis that a mere claim of entitlement to the continental shelf beyond 200 nm was insufficient, addressed the ICJ with the following concern:
“So one wonders what a potential applicant before the Court does have to produce in order to have the merits of its case heard. That is an important question, which the Court will no doubt wish to answer for the benefit of States choosing a forum for maritime delimitation in the future.” [(CR 2015/29, Public Sittings, 9 October 2015, (Lowe), p. 40, para. 16-17].
Admissibility: vanishing concerns of fragmentation
At paragraphs 105 of the 2016 Judgment, the ICJ clarified that to “be in accordance with Article 76 of UNCLOS and reviewed by the Commission on the Limits of the Continental Shelf”, means to file a full submission before the CLCS. Then, the Court characterized the relevant question in the following terms “
“whether a recommendation made by the CLCS, pursuant to Article 76, paragraph 8, of UNCLOS, is a prerequisite in order for the Court to be able to entertain the Application filed by Nicaragua in 2013.” (para. 106).
From paragraphs 108 to 113 the ICJ reproduced the rationale in the Bay of Bengal cases on the independence of the functions of delimitation and delineation.
A further question concerns the consistency of the 2016 ruling with the standard affirmed by the ICJ in 2007 and reaffirmed in 2012. The following paragraph in Judge Donoghue’s Dissenting Opinion to the 2016 Judgment serves as a point of departure for future academic discussion and lucubration:
“50…As noted above, the 2012 Judgment (pp.668-669, para. 126) expressly links delimitation of extended continental shelf not to a unilateral submission by the coastal State to the Commission, but rather to such a submission having been “reviewed” by the Commission, reprising a point that the Court had made in 2007. In my 2012 opinion (I.C.J. Reports 2012 (II), p. 756, para. 18; p. 758, para. 25), I expressed the concern that this quotation suggested a generally-applicable bar on delimitation applications in the absence of Commission recommendations or the establishment of the outer limits on the basis of those recommendations. (For this reason, I am pleased that the Court today rejects Colombia’s fifth preliminary objection, although I regret that the reasoning in Part VI of today’s Judgment does not mention the apparent inconsistency between today’s conclusion and that the Court made in 2007 and 2012.” (Emphasis added).