Doughnut Hole in the Caribbean Sea: The Maritime Boundary between Nicaragua and Colombia According to the International Court of Justice

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I.      INTRODUCTION II.     BACKGROUND III. ICJ DECISION         A. Sovereignty Over the "Islands"         B. Maritime Boundary Between Nicaragua and Colombia            1. Applicable Law            2. Delimiting the Maritime Boundary IV.     EFFECT OF THE ICJ DECISION AND EFFECTS ON NICARAGUA AND         COLOMBIA V.      CONCLUSION 

I. INTRODUCTION

On November 19, 2012, the International Court of Justice (ICJ) unanimously (1) resolved a multi-year maritime boundary dispute between Nicaragua and Colombia by establishing a single maritime boundary. (2) The decision was complicated by the question of Colombian sovereignty over certain islands located about 100 to 150 nautical miles (nm) off the eastern coast of Nicaragua and about 380 nm from mainland Colombia. (3) Having found in favor of Colombian sovereignty over the islands, the ICJ carved out a "rectangular-esque" shaped maritime area around most of Colombia's islands in the relevant area; furthermore, it enclaved two Colombian islands (4) to account for Colombia's maritime areas that fall within what would have been Nicaraguan waters absent Colombian sovereignty over the islands. (5)

The ICJ's opinion in Territorial and Maritime Dispute between Nicaragua and Colombia materially expands Nicaraguan maritime territory in the Caribbean Sea. (6) This newly-established maritime boundary may affect those with oil, gas, or fishery interests in the Caribbean Sea, considering the countries had been using the 82nd meridian as the de facto maritime boundary. (7) Colombia's president Juan Manuel Santos has declared that the ICJ is "seriously wrong" in its decision to hand over large chunks of sea around the island of San Andres to Nicaragua. (8) However, there is very limited recourse for Colombia given the formal legal finality of the ICJ's decision. (9)

II. BACKGROUND

Colombia traditionally claimed maritime territory, including exclusive mineral rights, east of the 82[degrees] West meridian. (10) This means that both Banco Tyra and Banco Isabel border the seabed territory traditionally claimed by Colombia. (11) According to Nicaragua, the Colombian military has, on several occasions, endeavored to enforce its claims by intercepting and seizing Nicaraguan vessels around the 82nd meridian. (12) In response, Nicaragua brought proceedings against Colombia in the ICJ claiming, inter alia, that Colombia's military presence at the 82nd meridian was illegal and that Nicaragua should be granted a maritime boundary that extends east of the 82nd meridian. (13)

In its application, Nicaragua asked the ICJ to find that Nicaragua had sovereignty over the islands of Providencia, San Andres, and Santa Catalina, along with all appurtenant islands and keys (i.e. the San Andres Archipelago). (14) Additionally, it sought sovereignty over the Roncador, Serrana, Serranilla and Quitasueno keys, though it would not concede that these form part of the San Andres Archipelago. (15) Nicaragua further asked the ICJ to "determine the course of the single maritime boundary between the areas of continental shelf and exclusive economic zones appertaining respectively to Nicaragua and Colombia." (16)

In response, Colombia filed preliminary objections with the ICJ, arguing that the issues before the Court had already been settled under the Barcenas-Esguerra Treaty of 1928 and the related Protocol of Exchange of Ratifications (Protocol), signed at Managua on May 5, 1930 (together the 1928 Treaty). (17) The 1928 Treaty contains various provisions that arguably settled many of the issues in the dispute. (18)

First, the first paragraph of the 1928 Treaty contains dual acknowledgements by Colombia and Nicaragua. (19) Nicaragua recognizes Colombia's sovereignty over the San Andres Archipelago and Colombia recognizes Nicaragua's sovereignty over the Mosquito Coast and the Corn Islands. (20) The second paragraph of the 1928 Treaty provides that it did "not apply to the reefs of Roncador, Quitasueno, and Serrana, sovereignty over which [was] in dispute between Colombia and the United States of America. …