Violations of Sovereign Rights at a Foreign EEZ: Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia)

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On 21 April 2022, the International Court of Justice (ICJ) delivered judgment in the Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) case. Nicaragua instituted proceedings against Colombia regarding, among others, (1) Colombia’s interference with fishing and marine scientific research (MSR) activities of Nicaraguan-flagged or Nicaraguan-licensed vessels in Nicaragua’s EEZ and its enforcement of conservation measures in Nicaragua’s EEZ and (2) Colombia’s authorization of fishing activities in Nicaragua’s EEZ. The Court found that Colombia violated its obligation to respect Nicaragua’s sovereign rights and jurisdiction by both (para. 101).

Nicaragua claimed Colombia’s licensing of oil exploration within Nicaragua’s continental shelf was illegal, but this claim was rejected by the Court (para. 141). In addition, the Court decided on other issues, namely, the scope of its Court’s, Colombia’s ‘integral contiguous zone,’ and Nicaragua’s straight baselines, which will not be dealt with in  this post.

There are two essential takes from the present judgment: (1) the characterization of the sovereign rights in a foreign EEZ and (2) the conditions for violating the sovereign rights. The first part of this post illustrates their significance. The second part explores the threshold of the violation of sovereign rights in a foreign EEZ.

Sovereign Rights in A Foreign EEZ

The present case is the first one where the ICJ found a State’s violation of the obligation to respect other States’ sovereign rights in the latter’s EEZ. The Court’s decision is based on customary international law because Colombia was not a party to the United Nations Convention on Law of the Sea (UNCLOS). Yet, the Court stated that Articles 56 and 58 of UNCLOS reflect customary international law rules (para. 100), and the case will be referred to how it interpreted this instrument. The Annex VII Arbitral Tribunal in the South China Sea case (The Philippines v. the People’s Republic of China) held that China breached UNCLOS Articles 56 and 77 obligations to respect Philippines’ sovereign rights (para. 716). However, the present case did not cite that arbitral award.

The first point of this judgment is its characterization of the sovereign rights in the EEZ. A coastal State has sovereign rights and jurisdiction within its EEZ as listed in UNCLOS Article 56(1), and the rule is established under customary international law. However, the EEZ constitutes sui generis waters, created under the convention, where all States enjoy the freedoms of the high seas as long as its exercise is not incompatible with the EEZ regime (UNCLOS, Article 58(1)). There is functional jurisdiction in those waters and the coastal State does not have territorial jurisdiction.

The present case showed that when the action is not reserved for the coastal State’s authority, there is no a priori presumption that the latter State has the priority. In other words, the Court did not hold that Nicaragua’s rights prevailed over Colombia’s enjoyment of freedom at Nicaragua’s EEZ (see Robinson, para. 8).

The second point relates to the conditions for violating sovereign rights in a foreign EEZ. In the present case, the coastal State exclusively preserved the rights to conduct the activities in question, i.e., the fishery activities and marine environment conservation. No treaty authorized Colombia to enforce conservation standards and protection measures within a foreign EEZ (paras. 98-99).

When a vessel illegally engages in activities reserved for a foreign coastal State’s authority, such as fisheries, the coastal State may protest against the flag State for its failure to fulfil its responsibility as provided under UNCLOS Article 94. However, typically, a user State only lets private parties engage in such activities, and it may not be responsible for their actions per se that are not attributable to it. The negligence does not necessarily constitute a violation of sovereign rights.

Then, what are the conditions for encroachment of the coastal State’s sovereign rights? The Court stated two elements. The first is Colombia’s explicit authorization reached the level to be characterized as Colombia’s ‘control’ of the vessels and ‘enforcement’ of its policy in Nicaragua’s EEZ. The second is that the actual conduct took place in Nicaraguan waters. They included the confrontation between Colombian frigates and Nicaraguan ships and frigates (paras. 92 and 132). The judgment implied that a mere authorization or licensing to a private party would not suffice to constitute the interference.

Concerning Colombia’s intrusion of fishery and MSR activities into Nicaraguan waters, the Court looked at the fact that Colombia’s naval frigates were not ‘limited to “observing” predatory or illegal fishing activities or “informing” fishing vessels of such activities’ (para. 100). It highlighted that Colombia’s action ‘amounted to exercising control over fishing activities’ and ‘implementing conservation measures’ (ibid.). It looked at Colombia’s intent, claiming that the maritime spaces were ‘Colombian jurisdictional waters’ (paras. 92, 100).

Concerning the authorization of fishing activities in Nicaraguan EEZ, the Court found that the fishing vessels authorized by Colombia engaged in fishing activities in Nicaragua’s EEZ. Colombia’s frigates often protected them, although it recognized that the area belonged to Nicaragua’s EEZ (para. 131).

The Court did not find Colombia’s violation of Nicaragua’s sovereign rights by issuing oil exploration licenses because the issuance was done ‘at a time when the maritime boundary between the Parties had not yet been delimited,’ and the concession did not take place (paras. 141-142).

However, there remains the question regarding the threshold of ‘control’ and ‘enforcement.’ The Court never defined the term. Judge ad hoc McRae disagrees with the Court’s finding by narrowly outlining these terms. He stated that ‘[d]efinitions of enforcement generally refer to the exercise of State authority to apply criminal law through arrest, detention, trial and punishment’ (McRae, para. 26). In addition, Judges McRae and Gevorgian did not view that Nicaragua provided sufficient evidence to substantiate its claim (Gevorgian, paras. 2-6; McRae, para. 21). While I consider that the concept of control and enforcement is wider than Judge McRae’s characterization, further exploration is necessary.

It is noted that, in the South China Sea case, the Tribunal assessed China’s own actions as opposed to its failure to administer private vessels flying its flag. China’s efforts were not ‘limited to stating its understanding of the Parties’ respective rights,’ but it ‘acted directly’ to induce the licensed vessel to cease operation and depart from the continental shelf (para. 706; Submission 8). It further considered that China violated Article 56 because it promulgated its moratorium on fishing in the South China Sea (para. 716). In other words, the Tribunal decided on the direct engagement or governmental actions. The present case was a more complex scenario because it was partially  private vessels that illegally operated in Nicaragua’s EEZ.

To further seek the threshold, the following part tries to distinguish this obligation from the due regard obligation and the obligation to respect the counterparty’s sovereign rights in an overlapping jurisdictional area.

The Due Regard Obligation

The due regard obligation is by nature different from the obligation to respect foreign sovereign rights and jurisdictions. Most importantly, this obligation arises when a State’s use of the area is compatible with the UNCLOS (i.e., ‘in exercising its rights and performing its duties’) (UNCLOS Articles 56(2) and 58(3)) (see IJMCL, Special Issue). However, when the case does not reach the level to constitute the violation of Article 56(1), States can dispute the breach of the due regard obligation (see McRae, para. 26). The distinction between Articles 56(1) and 56(2) as well as Articles 58(1) and 58(3) is not immediately clear from the text of the UNCLOS (see Robinson, para. 8). It is, therefore, a valuable exercise to compare the present scenario and the case of the due regard obligations.

While what is ‘due’ requires a case-by-case analysis, this obligation calls for the State ‘to have such regard for the rights of [the other State] as is called for by the circumstances and by the nature of those rights’ (Chagos Marine Protected Area Arbitration (Mauritius v. the United Kingdom), para. 519). It is also noted that the coastal State’s obligation to ‘refrain from unjustifiable interference with activities carried out by other States in the exercise of their rights when it exercises its jurisdiction to protect the marine environment is to be ‘functionally equivalent to the obligation to give ‘due regard’ (ibid., para. 540).

The user State’s due diligence to prevent their nationals from violating coastal State laws is considered a part of the due regard obligations (UNCLOS, Article 58(3)). This rule was first upheld in the International Tribunal for Law of the Sea (ITLOS)’s advisory opinion in 2015 (ITLOS, Sub-Regional Fisheries Commission (SRFC), para. 124). It was the case where the regional fisheries management organization asked the Tribunal to advise on the obligations of the flag States in a case where illegal, unreported and unregulated (IUU) fishing activities are conducted in a foreign EEZ. The Tribunal characterized the flag State’s obligation as an obligation of conduct to deploy adequate means to prevent IUU fishing by ships flying its flags (ibid., para., 129). It did not require the flag state to ‘achieve compliance by fishing vessels […] not to engage in IUU fishing […]’ (ibid.).

The same was upheld in the South China Sea case (paras. 740-756; Submission 9). The issue before the Tribunal was whether China’s supervision of the fishing vessels at the Philippines’ EEZ, namely the waters surrounding Mischief Reef and Second Thomas Shoal, was in violation of the instrument. Similar to the present case, the Chinese fishery vessels conducted the fisheries in contravention of the Philippines’ national laws, and the Chinese government vessels closely escorted them. The Tribunal, relying on Chagos MPA and Fisheries Advisory Opinion, held that ‘China has failed to show the due regard called for by Article 58(3) of the Convention to the Philippines sovereign rights with respect to fisheries within its [EEZ]’ (para. 753).

The Philippines claimed that China violated Article 56 to ‘respect the sovereign rights and jurisdiction of the Philippines by failing to prevent its nationals and vessels from exploiting the living resources of the Philippines [EEZ]’ (para. 723). Yet, the Tribunal did not apply Paragraph 1. It is noted that the Tribunal did not stand on the premise of the Philippines’ argument that ‘China [had] established de facto control over areas of the South China Sea.’ Instead, it recognized that the area belonged exclusively to the Philippines (para. 735). Nor did it find that China exercised control over its fishery vessels, notwithstanding it escorted them. In other words, the Tribunal did not find China’s authority to undertake what it did, which was different from the present case.

Sovereign Rights in An Overlapping Area

A State’s unilateral exploitation of an overlapping jurisdictional area may also constitute a violation of the sovereign rights of the counterparty. The coastal States have the maritime entitlement to the maximum extent under the UNCLOS on an equal footing in such an area until it is delimited.

There has not been a case where a court finds a violation of the sovereign rights. Two cases, ITLOS’s Maritime Boundary (Ghana v. Cote-d’Ivoire) and the ICJ’s Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) dealt with this issue. In both cases, the counterparty exploited the undelimited continental shelf, creating a permanent physical change to the environment. Yet, both ITLOS and the ICJ rejected the allegation that the unilateral exploitation violated the counterparty’s sovereign rights. Both institutions held an identical decision: When maritime claims of States overlap, maritime activities undertaken by a State in an area which is subsequently attributed to another State by a judgment cannot be considered to be in violation of the sovereign rights of the latter if those activities were carried out before the judgment was delivered and if the area concerned was the subject of claims made in good faith by both States (Maritime Boundary, para. 592; Maritime Delimitation in the Indian Ocean, para. 203).

This low standard (‘claims made good in faith’) shows that the scenario of overlapping area is to be distinguished from the present case, where there was no serious dispute that Colombia lacked the maritime entitlement. It is even so when the fact was not a necessary condition.

Concluding Remarks

The creation of the EEZ under UNCLOS invited a sharp increase in the number of maritime disputes, not only in the undelimited areas but also where the boundary is clearly established. While the present case decided in favour of Nicaragua, and it would protect the coastal State’s legitimate interests, it may have opened a way for the user State because it did not presume the priority of the coastal State’s rights in the latter’s EEZ. For example, a casebook scenario of a competing use of the same area in an EEZ is where a foreign State undertakes a military exercise using heavy weapons that may harm the natural resources. The present case explained why such a use would not constitute a violation of sovereign rights. It is because the military operation is not exclusively reserved for the coastal State’s authority.

Furthermore, it clarified (1) the nature of the sovereign rights in the EEZ and (2) the conditions for the violation of Article 56(1), which is the control of the actors and the enforcement of its laws and policies in undertaking the activities that are reserved to the coastal State’s authority. It would have implications in other areas, including the South China Sea, East China Sea, Mediterranean Sea and the Caribbean Sea, where regional powers take provocative actions to hinder the economic activities of the coastal State.

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