International Court of Justice (ICJ)

This year, the ICJ delivered judgment in the case Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia). It received a request from the United Nation General Assembly (UNGA) to render advisory opinion in the case of Obligations of States in Respect of Climate Change.

(1) Court’s Docket

(A) Final Judgement

(i) Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v Colombia)

The matter pertains to an application submitted by Nicaragua against Columbia in 2013 regarding delimitation of maritime boundaries between them—in particular, the continental shelf of Nicaragua beyond the 200 nautical mile limit and the continental shelf of Columbia. The Court framed two questions in the matter. The first question was: ‘[u]nder 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?’ (para. 35 <https://www.icj-cij.org/sites/default/files/case-related/154/154-20230713-jud-01-00-en.pdf>). It is to be noted that the applicable law in the case is the customary international law (CIL) applicable to the exclusive economic zone (EEZ) and continental shelf because Columbia is not party to the United Nations Convention on the Law of Sea (UNCLOS). Considering the actual practice and opinio juris of the states, the Court considered both Article 56 and Article 76 of UNCLOS, dealing with the rights and duties in the EEZ and the definition of the continental shelf respectively, as forming part of CIL. Further, the Court stated that CIL is reflected in the rights and obligations of coastal states and other states in the exclusive economic zone as outlined in Articles 56, 58, 61, 62, and 73 of UNCLOS.

A state’s entitlement to a continental shelf within 200 nautical miles of its baselines is based on a different standard than its entitlement to a shelf beyond that distance. A state’s entitlement to a continental shelf is actually determined by two different criteria under customary international law, as stated in Article 76, paragraph 1 of UNCLOS: the distance criterion, which applies to areas within 200 nautical miles of its coast, and the natural prolongation criterion, which applies to areas beyond 200 nautical miles, with the outer limits to be established based on scientific and technical criteria. Meanwhile, the Court took into account the role and mandate given to the Commission on the Limits of Continental Shelf (CLCS) in terms of fixing extended continental shelves. The Court observed that in reality, the great majority of convention parties who have filed submissions to the CLCS have decided not to claim in that document the outer boundaries of their extended continental shelf that are within 200 nautical miles of another state’s baselines. The Court believed that states’ actions before the CLCS serve as an example of opinio juris. In regard to the first question, the Court came to the conclusion that a state’s right to a continental shelf under CIL cannot extend within 200 nautical miles of another state’s baselines even if the entitlement to the shelf is beyond 200 nautical miles from the baselines from which the breadth of the State’s territorial sea is measured.

The second question framed by the Court was:

[w]hat 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? [(para 80 <https://www.icj-cij.org/sites/default/files/case-related/154/154-20230713-jud-01-00-en.pdf>)].

As the first question was answered by the Court in the negative, it was decided that there was no need to answer the second question.

Nevertheless, the Court answered three submissions made by Nicaragua in its written pleadings. Nicaragua proposed coordinates for delimitation of its continental shelf beyond 200 nautical miles but which falls within 200 nautical miles of Columbia, and the Court dismissed it for the reasons discussed above. In the second submission, Nicaragua proposed coordinates that would include the islands San Andrés and Providencia under its extended 200 nautical miles continental shelf but within 200 nautical miles continental shelf of Columbia. The Court reiterated that Nicaragua is not entitled to an extended continental shelf within 200 nautical miles from the baselines of San Andrés and Providencia. In the third submission, Nicaragua requested 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’ (para. 93 <https://www.icj-cij.org/sites/default/files/case-related/154/154-20230713-jud-01-00-en.pdf>). This submission was rejected by the Court, which stated that within 200 nautical miles from the baselines of Serranilla and Bajo Nuevo, there can be no area of overlapping entitlement to a continental shelf to be delimited in the present proceedings. The Court held that Serrana’s marine entitlements were already defined by the 2012 judgment. The Court determined that the maritime boundary between the parties surrounding Serrana was a twelve-nautical-mile envelope of arcs measured from Serrana Cay and the other cays in its vicinity, as stated in the operative paragraph of that judgment. There is no need for the Court to reiterate Serrana’s marine entitlements in this matter because their impact was decided upon definitively in the 2012 judgment.

(B) Pending Cases

(i) Obligations of States in Respect of Climate Change (Request for Advisory Opinion)

On 20 April, the Court admitted an application submitted by the UNGA requesting it to render an advisory opinion on the obligations of states in regard to climate change. On 29 March, the UNGA adopted Resolution 77/276 entitled ‘Request for an Advisory Opinion of the International Court of Justice on the Obligations of States in Respect of Climate Change.’ In accordance with Article 96 of the UN Charter and Article 65 of the Statute of the Court, UNGA requested an advisory opinion from the Court for the following questions:

Having particular regard to the Charter of the United Nations, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment and the duty to protect and preserve the marine environment,

a) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations?

b) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:

i) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?

ii) Peoples and individuals of the present and future generations affected by the adverse effects of climate change? <https://www.icj-cij.org/sites/default/files/case-related/187/187-20230412-app-01-00-en.pdf>

Thereafter, pursuant to Article 66 of the Statute of the Court, it allowed the following international organizations to participate in the proceedings: the International Union for Conservation of Nature, the Commission of Small Island States on Climate Change and International Law, the European Union, the African Union, the Organization of the Petroleum Exporting Countries, the Organization of African, Caribbean and Pacific States, the Melanesian Spearhead Group, the Forum Fisheries Agency, and the Pacific Community and Pacific Islands Forum and the Alliance of Small Island States. On 30 June, the Legal Counsel of the United Nations Secretariat, in pursuance of Article 65, paragraph 2, submitted to the Court a dossier of the documents that would aid the Court in understanding the nature of the questions formulated as a request for an advisory opinion. The time limit for the submission of written statements and written comments was originally fixed for 20 October 2023 and 22 January 2024, respectively. The Court allowed extensions to 22 March 2024 for the submission of written statements, and 24 June 2024 for written comments.