Abstract
This chapter highlights some challenges concerning the delimitation of continental shelves outside 200 nautical miles (nm). It focuses on the Caribbean, one of the world’s largest seas, and on the globe’s smallest and shallowest ocean, the Arctic, where the legal disputes over sovereign rights of the extended continental shelf are yet to peak.
This chapter is the result of the research projects entitled Contemporary Challenges for the Protection of Human Rights in Post-Conflict Scenarios from Interdisciplinary Approaches and Current Transformations of Punitive Power developed with the groups Person, Institutions and Demands for Justice and Criminality and Conflict, linked to the Socio-Legal Research Center (CISJUC) at the Faculty of Law of Universidad Católica de Colombia, in Bogotá.
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Notes
- 1.
International Court of Justice (2012), p. 668, para. 125.
- 2.
Holland et al. (2006).
- 3.
National Petroleum Council (2015), pp. 11–12.
- 4.
Matz-Lück (2009), pp. 235–255.
- 5.
- 6.
Reppy (1950), p. 274.
- 7.
See United States of America. Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, in Presidential Proclamation 2667 of September 28, 1945. Washington D.C.: 10 Fed. Reg. 12303, 1945. There is less frequent reference to the struggle between the States of California (1947), Louisiana (1950) and Texas (1950), on behalf of the oil industry, and the US Federal Government over the paramount right and power to determine when, how and by what agencies oil and other resources underlying the ocean off the coast were to be exploited. The US Supreme Court finally settled the issue, ruling that such administration would be safer in the hands of the Federal Government. See United States v. California, 332 U.S. 19 (1947); United States v. Louisiana, 340 U.S. 699 (1950); United States v. Texas, 340 U.S. 707 (1950).
- 8.
United Nations General Assembly (1957).
- 9.
Anand (1975), p. 89.
- 10.
The statement advocating the establishment of the New International Economic Order is contained in the Declaration on the Establishment of a New International Economic Order, G.A. Res. 3201, 29 U.N. GAOR (6th Spec. Sess.), Supp. (No.1), U.N. Doc. A/9555 (1974).
- 11.
- 12.
United Nations (1982), art. 55.
- 13.
International Court of Justice (1985), p. 33, para. 34.
- 14.
Hope-Thompson (1980), pp. 55–60.
- 15.
Ibid.
- 16.
Ibid.
- 17.
Salomon (2013), pp. 46–47.
- 18.
From which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nm in length, connecting fixed points, defined by coordinates of latitude and longitude.
- 19.
The Commission on the Limits of the Continental Shelf is a technical body responsible for evaluation of the information submitted by parties claiming sovereign rights over an extended continental shelf. The CLCS makes non-binding recommendations on the delineation of the outer limit, state can resubmit data if it does not agree with recommendations. The limits of the shelf established by a coastal state based on these recommendations shall be final and binding.
- 20.
Commission on the Limits of the Continental Shelf (2001), para. 5 (a).
- 21.
See, for example, Communication of Colombia dated 5 February 2014: A/68/743 as a reaction to Nicaragua’s submission on the limits of the continental shelf beyond 200 nautical in the southwestern part of the Caribbean Sea. United Nations General Assembly (2014).
- 22.
See, for example, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras). International Court of Justice (2007), p. 659, para. 319.
- 23.
Under the Article 4 of the Annex II to the UNCLOS.
- 24.
Decision regarding the date of commencement of the ten-year period for making submissions to the Commission on the Limits of the Continental Shelf set out in article 4 of Annex II to the United Nations Convention on the Law of the Sea May 29, 2001. SPLOS/72.
- 25.
Decision regarding the workload of the Commission on the Limits of the Continental Shelf and the ability of States, particularly develo** States, to fulfill the requirements of article 4 of annex II to the United Nations Convention on the Law of the Sea, as well as the decision contained in SPLOS/72, paragraph (a), June 20, 2008. SPLOS/183.
- 26.
Denmark, Greenland and the Faroe Islands: Kingdom of Denmark Strategy for the Arctic 2011–2020.
- 27.
Krista Lucenti (Coord.) Caribbean Regional Action Plan on Freight Logistics, Maritime Transport and Trade Facilitation. (Washington D.C: Inter-American Development Bank, Technical Note No. IDB – TN-712, 2014), 10–14.
- 28.
Formerly, the most popular hypotheses contended that the Caribbean oceanic crust was formed in the Pacific during the Jurassic era (e.g. Pindell and Lorcan 2009). Recent models (Keppie (2013), pp. 9–16.), propose that the bulk of the Caribbean Plate grew in place by capturing microplates from northwest South America and the Gulf of Mexico.
- 29.
Singh (2008), pp. 6–8.
- 30.
Ibid.
- 31.
Brady (1999), pp. 121–143.
- 32.
The eastern coastline of the Central American isthmus is characteristically a flat plain with swampy humid tropical rainforest extending deep inland. During the second half of the seventeenth century, English privateers made informal alliances with a mixed African – Native American ethnic group, known as the Miskitos, settled along the Caribbean coastal area extending from Cape Camaron, in present day Honduras, to Rio Grande in Nicaragua. In the late 17th and early 18th centuries, Miskito raiders attacked Spanish-held territories and independent indigenous areas as far north as Yucatan, and as far south as Costa Rica. Captives were sold as slaves to English merchants and shipped to work in Jamaican sugar plantations. The area since known as the Coast of Mosquitia, later became a British protectorate. Bridenbaugh and Bridenbaugh (1972), pp. 67–305 & Helms (1983), pp. 179–197.
- 33.
Floyd (1967), pp. 117–135.
- 34.
For a contentious interpretation of this episode Territorial and Maritime Dispute (Nicaragua V. Colombia). Memorial of the Government of Nicaragua, vol. 1, 28 April, 2003, pp. 15–58.
- 35.
Ireland (1971).
- 36.
Londoño-Paredes (2015), p. 8.
- 37.
Gordon, Op. Cit., pp. 320–330.
- 38.
Gardner-Munro (1964).
- 39.
Ibid., pp. 160–216.
- 40.
Londoño-Paredes (2015) pp.20–21.
- 41.
Authors’ translation. See Congreso de la República de Colombia. Ley 93 de 1928 que aprueba un tratado sobre cuestiones territoriales entre Colombia y Nicaragua. Bogotá: Diario Oficial No. 20.952 de 23 de noviembre, 1928.
- 42.
Londoño-Paredes (2015), pp. 45–60.
- 43.
Colombia and Venezuela are emblematic in this respect. After failing to agree on their maritime border in the Gulf of Venezuela, from the mid 1970s onward, both countries focused on agreeing bilateral maritime border treaties with their neighbors. According to estimates by Sander and Ratter, by means of these treaties Colombia and Venezuela made use of high sea islands to claim an EEZ area in the Caribbean roughly equivalent to 37% of its marine space, which is bound by 35 states or territories. See Gerhard Sandner y Beate Ratter, “La territorialización del Mar Caribe. Transfondo de intereses y áreas conflictivas en el manejo estatal de la delimitación fronteriza según el derecho el mar” (The territorialization of the Caribbean Sea. Background of conflicting interests and areas in the state management of border delimitation according to the Law of the Sea). Sandner and Ratter (1997). When UNCLOS came into effect in 1994 only two of Colombia’s marine borders remained unsettled: (1) the disagreement with Venezuela, which voted against the adoption of the UNCLOS; and (2) the contentious dispute with Nicaragua, which declared the 1928 Esguerra-Barcenas treaty null and void in 1980.
- 44.
Sandner and Ratter (1997), p. 11.
- 45.
Singh (2008), pp. 9–14.
- 46.
MARPOL 73/78 is the International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978. (“MARPOL” is short for marine pollution and 73/78 short for the years 1973 and 1978.) MARPOL 73/78 is an important international marine environmental convention.
- 47.
The Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Area (known as the Cartagena Convention) was adopted in Cartagena, Colombia in 1983 and entered into force in 1986. It has been ratified by 20 countries, and its area of application comprises the marine environment of the Gulf of Mexico, the Caribbean Sea and the areas of the Atlantic Ocean adjacent thereto, south of 30 north latitude and within 200 nautical miles of the Atlantic coasts of contracting states. As a regional environmental treaty for the Wider Caribbean Region, the Cartagena Convention serves as a vehicle for the implementation of global initiatives and a global legal instrument, such as the Convention on Biological Diversity, MARPOL 73/78, the Basel Convention, the International Coral Reef Initiative, the Global Plan of Action for the Protection of the Marine Environment from Land Based Sources of Pollution, among others; also for regional initiatives such as the Barbados Plan of Action; the Agenda 21.
- 48.
The Caribbean Community (CARICOM) is a grou** of twenty countries, which include fifteen member states and five associate members. CARICOM came into being in 1973 with the signing of the Treaty of Chaguaramas, which was later revised in 2002 to allow for the eventual establishment of a single market and a single economy. CARICOM rests on four main pillars: economic integration; foreign policy coordination; human and social development; and security.
- 49.
The Organization of Eastern Caribbean States (OECS) is a grou** of ten states and associate members in an inter-governmental organization devoted to economic harmonization and integration, protection of human and legal rights, and the encouragement of good governance between countries and dependencies in the Eastern Caribbean. The OECS came into being in 1981 with signing of the Treaty of Basseterre. The 1981 Treaty was replaced in 2010 with a revised version creating an economic union that establishes a single financial and economic space and paving the way for the introduction of legislative competence at the regional level.
- 50.
The Convention that established the Association of Caribbean States (ACS) was signed in 1994 in Cartagena de Indias, Colombia, with the aim of promoting consultation, cooperation and concerted action among all the countries of the Caribbean. Presently it comprises 32 contracting states, countries and territories of the Greater Caribbean. The ACS has five areas of concern, including preservation and conservation of the Caribbean Sea; sustainable tourism; trade and economic external relations; natural disasters; and transport.
- 51.
- 52.
Junta de Gobierno de Reconstrucción Nacional de Nicaragua (1989), cited in Londoño-Paredes (2015), p. 85.
- 53.
Colombia is not a party to the UNCLOS, while Nicaragua is a party since May 3, 2000. As stated by the ICJ, “(…) the relevant provisions of UNCLOS concerning the baselines of a coastal State and its entitlement to maritime zones, the definition of the continental shelf and the provisions relating to the delimitation of the exclusive economic zone and the continental shelf reflect customary international law”.
- 54.
International Court of Justice (2007), p. 832.
- 55.
United States of America (1945).
- 56.
International Court of Justice (2007), p. 832, para. 91–97.
- 57.
International Court of Justice, Op Cit., p. 624.
- 58.
Diplomatic Note No GACIJ 79357 from the Minister of Foreign Affairs of Colombia to the Secretary-General of the Organization of American States, 27 Nov. 2012.
- 59.
Authors’ translation of the Colombia’s Constitution 1991. Congreso de la República de Colombia (1991), art. 1.
- 60.
International Court of Justice (1923–1930), pp. 20–21.
- 61.
International Court of Justice (2016).
- 62.
International Court of Justice (2017).
- 63.
International Tribunal for the Law of the Sea (2012), p. 4.
- 64.
Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them. Decision of 11 April 2006 11 April 2006 VOLUME XXVII pp.147–251. Available at: http://legal.un.org/riaa/cases/vol_XXVII/147-251.pdf.
- 65.
International Court of Justice, Op. Cit., p. 624.
- 66.
Ibid., pp. 669–670, para. 129–131.
- 67.
International Court of Justice, Op. Cit., p.36, para. 105.
- 68.
First: the Court lacks jurisdiction ratione temporis under the Pact of Bogota because the proceedings were instituted by Nicaragua on 16 September 2013, after Colombia’s notice of denunciation of the Pact became effective on 27 November 2012; second: the Court does not possess “continuing jurisdiction” because it fully dealt with Nicaragua’s claims in the Territorial and Maritime Dispute case with regard to the delimitation of the continental shelf between Nicaragua and Colombia in the area beyond 200 nm off the Nicaraguan coast; third: the issues raised in Nicaragua’s Application of 16 September 2013 were “explicitly decided” by the Court in its 2012 Judgment, so the Court therefore lacks jurisdiction because Nicaragua’s claim is barred by the principle of res judicata; fourth: Nicaragua’s Application is an attempt to appeal and revise the Court’s 2012 Judgment, and, as such, the Court has no jurisdiction to entertain the Application; and, fifth: in its Application, Nicaragua’s first and second requests are inadmissible. The first because the Commission on the Limits of the Continental Shelf has not made recommendations to Nicaragua with respect to whether, and if so how far, Nicaragua’s claim to the outer continental shelf extends beyond 200 nm; and the second because, if “the Court decides that it has no jurisdiction over the First Request or that such Request is inadmissible, no delimitation issue will be pending before the Court”.
- 69.
International Court of Justice, Op. Cit., p. 759, para. 659.
- 70.
International Court of Justice, Op. Cit., p. 37, para. 114.
- 71.
“If an area is not delimited and therefore remains the subject of a dispute, the Commission will not make recommendations about the outer limits (absent the consent of all involved States). And if the outer limits have not been established on the basis of Commission recommendations, the Court’s 2007 statement suggests that it will not proceed with a delimitation”. International Court of Justice, Op. Cit., p. 30, para. 759.
- 72.
United Nations (1945), arts. 59–60.
- 73.
International Court of Justice, Op. Cit., p. 26, para 59.
- 74.
International Court of Justice, Op. Cit., p. 669.
- 75.
Question of Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), (n 29) para 85, at p.32. “The Court did not say that it was unable to delimit the continental shelf boundary because Nicaragua had failed to submit information to the CLCS as required by Article 76 (8) of UNCLOS, nor did it imply this at any point in the previous paragraphs” International Court of Justice, p. 8, para. 26.
- 76.
Ibid., p.27, para. 63.
- 77.
“Nicaragua made full use of the opportunity to prove its claim that its continental shelf entitlement extended far enough to overlap with Colombia’s mainland entitlement. (…) This is precisely the sort of situation in which, for reasons of procedural fairness, the doctrine of res judicata applies”.
- 78.
See for example, certain activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, 16 December 2015, p. 77, para. 229 (5) (b); and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),’ Joint Dissenting Opinion of Vice-President Yusuf, Judges Cançado Trindade, Xue, Gaja, Bhandari, Robinson and Judge Ad Hoc Brower (n 59), para 65, at p. 16.
- 79.
“These purposes — finality of litigation and protection of the respondent from repeat litigation — protect both the operation of the legal system and those within it”. Joint Dissenting Opinion of Vice-President Yusuf, Judges Cançado Trindade, Xue, Gaja, Bhandari, Robinson and Judge Ad Hoc Brower (n 97), para 65, at p. 16.
- 80.
“The decision to allow Nicaragua to attempt a de facto appeal or revision of the Court’s 2012 Judgment, threatens the credibility of the ICJ and hence diminishes the sanctity and respect that its judgments will be afforded in the future”. International Court of Justice (2016), art. 3, para. 11.
- 81.
International Court of Justice (1985), p. 24, para. 34.
- 82.
Ibid. pp. 25–26.
- 83.
Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J. Reports 1982, p. 18.
- 84.
Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 101, para. 115–116.
- 85.
International Court of Justice. op. cit., art. 753, para. 7.
- 86.
Ibid., p. 103, para. 122.
- 87.
Ibid., pp. 738–745, para. 262–282.
- 88.
Holland et al. (2006).
- 89.
Eger (2013).
- 90.
Ibid.
- 91.
United States Geological Survey (2008), pp. 1–4.
- 92.
National Petroleum Council (2015), pp. 11–12. Shortly before ending his administration, US President Barack Obama issued an executive order withdrawing hundreds of millions of acres of federally owned land in the Arctic and the Atlantic Ocean from new offshore oil and gas drilling. Fears and Eilperin (2016). The International Energy Agency’s 2016 World Energy Outlook monitors progress towards the 2015 Paris Climate Conference (COP21) target of limiting warming caused by fossil fuel emissions to less than 2 °C. According to this publication, the share of investment capital going to the fossil fuel development must drop to a third of total investment in the energy sector by 2040, to meet this goal. International Energy Agency (2016), pp. 1–8. This means that major fossil fuel companies committed to this goal will probably cut back the most risky and expensive projects, including new offshore oil and gas drilling in the Arctic Ocean. Darby (2016).
- 93.
Larsen and Fondahl (2014).
- 94.
Ibid., pp. 177–178.
- 95.
See Treaty between Norway, The United States of America, Denmark, France, Italy, Japan, the Netherlands, Great Britain and Ireland and the British overseas Dominions and Sweden concerning Spitsbergen signed in Paris 9th February 1920, pp. 1–7.
- 96.
Arctic Governance Project (2010), pp. 3–6.
- 97.
Ibid.
- 98.
Ibid.
- 99.
Ibid.
- 100.
Ibid.
- 101.
Larsen and Fondahl (2014), pp. 479–501. Increased involvement of Arctic peoples in resource ownership and development has highlighted the growing importance of incorporating traditional and local ecological knowledge in decision-making as well as of clearly delimited territorial rights. Devolution of power to local decision makers has been a major factor contributing to consolidate local resource governance in recent decades. However, increasing Indigenous representation in regional, national and international bodies entails ever-mounting demands on local and Indigenous representatives.
- 102.
Matz-Lück (2009), pp. 235–255. Although the planting of the flag in the ocean floor is irrelevant under international law, it reveals a political attitude that may make agreement and co-operation concerning the different demands more difficult.
- 103.
Arctic Ocean Conference (2008), pp. 1–2.
- 104.
Nele Matz-Lück (2011), pp. 155–191.
- 105.
In their submissions Russia, Denmark and Norway stated that delimitation will be effected by bilateral agreements.
- 106.
See Communication of Colombia dated 5 February 2014: A/68/743 as a reaction to Nicaragua’s submission on the limits of the continental shelf beyond 200 nautical in the southwestern part of the Caribbean Sea.
- 107.
See Treaty between the Russian Federation and the Kingdom of Norway concerning maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean. Murmansk 15 September 2010, United Nations Treaty Series, vol. 2791, No. 49095, p. 3.
- 108.
China, for example. Hong (2017).
- 109.
See “The Maritime Doctrine of the Russian Federation” approved by the Edict of the President of the Russian Federation July 26, 2015.
- 110.
See Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission, Tenth session. April 12, 2002. CLCS/32, para. 10. Also see Statement by the Chairman of the Commission on the Limits of the Continental Shelf on the progress of work in the Commission.
- 111.
Progress of work in the Commission on the Limits of the continental Shelf. Statement by the Chair. Thirty-fourth session. March 31, 2014. CLCS/83.
- 112.
See Treaty between the Russian Federation and the Kingdom of Norway concerning maritime delimitation and cooperation in the Barents Sea and the Arctic Ocean. Murmansk 15 September 2010, in force July 7, 2011. UNTS, vol. 2791, No. 49095, p. 3.
- 113.
The Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, Washington 1 June 1990.
- 114.
The Norwegian Government High North Strategy (2017), p. 5.
- 115.
Executive Summary of the Partial Submission of the Government of the Kingdom of Denmark together with the Government of Greenland to the Commission on the Limits of the Continental Shelf, The North-Eastern Continental Shelf of Greenland. October 2013.
- 116.
Recommendations by the CLCS were issued in 2014. See Recommendations of the Commission on the Limits of the Continental Shelf in regard to the Partial Submission Made by the Government of the Kingdom of Denmark together with the Government of the Faroes in respect of the Continental Shelf North of the Faroe Islands on 29 April 2009. March 12, 2014.
- 117.
See Executive Summary of the Partial Submission of the Government of the Kingdom of Denmark together with the Government of the Faroes to the Commission on the Limits of the Continental Shelf, The Southern Continental Shelf of the Faroe Islands. November 2010, p. 15. Another potential maritime dispute exists in relation to the continental shelf of Iceland. The governments of Denmark and Faroe Islands stressed by means of notes dated May 27, 2009, that recommendations by the CLCS about the partial submission by Ireland and the United Kingdom concerning the Southern Continental Shelf of the Faroe Islands, shall not prejudice matters relating to delimitation of the outer limits of this continental shelf. The Kingdom of Denmark together with the government of the Faroes only agreed on the Commission to consider the submissions of Ireland and the United Kingdom of Great Britain and Northern Ireland, provided that the 2010 Faroe-Rockall Plateau Region Submission is considered simultaneously.
- 118.
See Executive Summary of the Partial Submission of the Government of the Kingdom of Denmark together with the Government of Greenland to the Commission on the Limits of the Continental Shelf, The Northern Continental Shelf of Greenland. November 2014, p. 18. The agreement with Norway expresses that the parties do not object to the consideration of this submission by the CLCS. In a similar vein, the 2014 Agreement between the Russian Federation and the Kingdom of Denmark also provides for no-objection of their respective submissions. Regarding the USA, the partial submission mentioned is a matter subject to consultations between parties.
- 119.
Denmark, Greenland and the Faroe Islands: Kingdom of Denmark Strategy for the Arctic 2011–2020, p. 1.
- 120.
Government of Canada (2010), p. 3.
- 121.
Ibid., p. 4.
- 122.
United Nations (2013).
- 123.
United Nations (2013).
- 124.
Ibid.
- 125.
Petrov (2015).
- 126.
The Russian Federation (the USSR) accepted the sectoral principle of delimitation in 1926. Canada approved it in 1925.
- 127.
Tulupov (2015) & United Nations Convention on the Law of the Sea (1982), art. 83.
- 128.
Under the Annex VII to the UNCLOS.
- 129.
Beauchamp (1986), pp. 611–660.
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Antsygina, E., Pérez-Salazar, B. (2023). Maritime Territorialization and Governance: Geopolitical and Legal Issues Concerning Delimitation of Extended Continental Shelves in the Caribbean Sea and the Arctic Ocean. In: Endrizzi, D., Becerra, J., Del Campo, E.A.P., Cubides Cárdenas, J., Gamarra-Amaya, L.C. (eds) Frontiers – Law, Theory and Cases. Springer, Cham. https://doi.org/10.1007/978-3-031-13607-8_3
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