The International Court of Justice rejected Nicaragua's case against Colombia regarding their dispute over maritime borders and entitlements in the Caribbean in a decision [3] filed July 13. The Court, led by President Joan E. Donoghue, determined that Nicaragua is not entitled to an extended continental shelf within 200 nautical miles from the baselines of San Andres and Providencia. Nicaragua asked the Court to delimit the boundaries between the continental shield of Nicaragua beyond the 200 nautical mile limit from the baselines from which the breadth of the territorial sea of Nicaragua is measured and the continental shelf of Colombia.  Under UNCLOS, coastal states have sovereignty over waters up to 12 nautical miles, with exclusive economic and environmental rights extending to 200 nautical miles. Before it could arrive at a decision, the Court deemed it necessary to consider the following two questions: 

1. Under customary international law, may a State’s entitlement to a continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured extend within 200 nautical miles from the baselines of another State? (i.e., can there be overlap between the entitlements of two states)
2. What are the criteria under customary international law for the determination of the limit of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured and, in this regard, do paragraphs 2 to 6 of Article 76 of the United Nations Convention on the Law of the Sea reflect customary international law?

The Court answered the first question in the negative. It looked to the practice of both states that are party to UNCLOS and states that are not parties to the Convention and concluded that only a small number of UNCLOS states and no non-UNCLOS states have claimed an extended continental shelf that extends within 200 nautical miles from the baselines of another state. Therefore, the Court held that “under customary international law, a State’s entitlement to a continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured may not extend within 200 nautical miles from the baselines of another State.” It therefore did not address the second question and it concluded that Nicaragua’s first submission (that the Court delimit the continental shelf between it and Colombia in the area beyond 200 nautical miles from the baselines of Nicaragua’s coast but within 200 nautical miles from the baselines of Colombia’s mainland coast) could not be upheld. The Court also chose not to uphold Nicaragua’s second submission (that its entitlement to an extended continental shelf overlaps with Colombia’s entitlement to a continental shelf within 200 nautical miles from the baselines of the coasts of San Andrés and Providencia) because the Court’s conclusion with regard to the first question that Nicaragua is not entitled to an extended continental shelf means that there is no overlapping area to be delimited. Finally, the Court also rejected Nicaragua’s third submission (that the Court declare that “Serranilla and Bajo Nuevo are enclaved and granted a territorial sea of twelve nautical miles, and [that] Serrana is enclaved as per the Court’s November 2012 Judgment”) for the same reason.

Judge Tomka dissented [4], arguing that the Court’s decision was “arrived at by an irregular procedure which prevented the Applicant from presenting its case in full as required by the Rules of Court” and admonishing the fact that the submissions were rejected on the basis of written pleadings. He felt that “[t]he determination of the maritime boundary would have been a matter for adjudication, applying the rules calling for the achievement of an equitable result, had the Court allowed the case to proceed to that stage.”

Judge Xue issued a separate opinion [5], stating that she arrived at the same conclusion but for “entirely different legal grounds,” noting that “there seems to be no sound reason for the Court to depart from its established practice by holding an oral proceeding to hear the views of the Parties only on two legal questions.”

Judge Bhandari issued a declaration [6] agreeing with the Court’s conclusion that “under customary international law, a State’s entitlement to a continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured may not extend within 200 nautical miles from the baselines of another State.”

Judge Robinson dissented [7], disagreeing with the Court’s conclusion that “even if a State can demonstrate that it is entitled to an extended continental shelf, that entitlement may not extend within 200 nautical miles from the baselines of another State.”

Judge Iwasawa issued a separate opinion [8] which “supplement[s] the reasons underlying the Court’s conclusions” and “elaborate[s] upon some issues which are not addressed at length in the Judgment.”

Judge Nolte’s separate opinion [9] explaining his vote against the Court’s rejection of Nicaragua’s third submission, noting that the Court did not address Nicaragua’s request that the court to declare that “Serranilla and Bajo Nuevo are enclaved and granted a territorial sea of twelve nautical miles,” which, in practice, was really the question of “what effect, if any, that the maritime entitlements of Serranilla and Bajo Nuevo would have on the course of the relevant part of the maritime boundary.”

Judge Charlesworth dissented [10], arguing that “the questions that the Court had set out to address in the present phase of the proceedings were cast in abstract terms, detached from the specific facts of the case before the Court.” She felt that the Court was not in a position to reject the submissions that Nicaragua made in its written pleadings and that it should have held oral proceedings.

Judge ad hoc Skotnikov dissented [11], calling out the impact of “[t]he range of procedural deficiencies and abnormalities” in the judgment on the substantive findings of the Court.