A. Colombia's contested activities in Nicaragua's maritime zones

1. Incidents alleged by Nicaragua in the south-western Caribbean Sea

49. In its submissions, Nicaragua requests the Court to adjudge and declare that, by its conduct, Colombia has breached its international obligation to respect Nicaragua's maritime zones as delimited by the Court in its 2012 Judgment. Nicaragua claims that, after the Court delivered its Judgment on maritime delimitation, Colombia engaged in a series of acts that violated Nicaragua's sovereign rights and jurisdiction in Nicaragua's exclusive economic zone. Nicaragua maintains that Colombia attempted to enforce its own jurisdiction in Nicaragua's maritime zones, including by obstructing, through both naval and aerial means, Nicaragua's exercise of its own jurisdiction; by harassing and intimidating Nicaraguan-flagged and Nicaraguan-licensed fishing vessels; and by authorizing Colombians and nationals of third States to operate in those zones. Nicaragua also refers to instances in which it alleges that Colombia asserted its sovereignty over Nicaragua's exclusive economic zone or otherwise rejected the 2012 Judgment.

50. Nicaragua contends that Colombia must establish that the rights it claims in Nicaragua's exclusive economic zone are “attributed” to it, and not to Nicaragua, under customary international law. According to Nicaragua, the set of sovereign rights of the coastal State for the purpose of exploring and exploiting, conserving and managing natural resources in the exclusive economic zone “contains no exception or qualification that would give or preserve traditional fishing rights of artisanal fishermen”.

51. The Applicant recognizes that the Respondent enjoys, in Nicaragua's exclusive economic zone, freedoms of navigation and overflight and other internationally lawful uses of the sea related to these freedoms. It does not question Colombia's right to take action against Colombian-flagged vessels or against a vessel suspected of drug-trafficking that a Colombian naval vessel may happen to encounter in Nicaragua's exclusive economic zone. The Applicant argues, however, that in light of the ordinary meaning of the word “navigation”, the scope of the Respondent's freedom of navigation is limited to the passage of ships or the movement of ships on water and does not include systematic acts of “monitoring” and “tracking”.

52. The Applicant complains that the Respondent has erected and implemented a régime of surveillance and enforcement that treats Nicaragua's exclusive economic zone as if it were Colombian “national waters”. Nicaragua further argues that Colombia has no right to enforce or police environmental standards in Nicaragua's exclusive economic zone, because UNCLOS is clear in allocating jurisdiction to coastal and flag States in relation to the protection and preservation of the marine environment.

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53. For its part, Colombia contends that in the exclusive economic zone, States other than the coastal State enjoy freedoms of navigation and overflight as well as other internationally lawful uses of the sea. According to Colombia, in assessing the lawfulness of a State's conduct in another State's exclusive economic zone, regard needs to be had to the customary international law of the sea, which may be identified by reference to both the text of UNCLOS and to State practice; to other rules of customary international law, including local custom; to commitments undertaken in unilateral declarations; and to rules reflected in other applicable treaties. It is not the case, in the Respondent's view, that a right not specifically attributed to third States necessarily vests with the coastal State.

54. In support of the legality of its actions, the Respondent claims that it has acted in accordance with three types of rights and duties recognized by international law: (i) the right and duty to protect and preserve the environment of the south-western Caribbean Sea; (ii) the due diligence duty within the relevant maritime area; and (iii) the right and duty to protect the habitat of the Raizales and other local communities inhabiting the Archipelago. Colombia asserts that, in view of the fragility of the Caribbean ecosystem resulting from threats such as marine-based pollution, overfishing and other predatory practices, it has adopted a series of protective measures and become a party to bilateral and regional agreements to protect and preserve the area, among which the most important are the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, done at Cartagena de Indias on 24 March 1983 (hereinafter the “Cartagena Convention”) and the Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, done at Kingston on 18 January 1990 (hereinafter the “SPAW Protocol”). In addition, Colombia established two special reserve areas for marine environmental protection in 2000 and 2005, the Seaflower Biosphere Reserve and the Seaflower Marine Protected Area, with the respective aims of protecting the marine environment in the south-western Caribbean Sea and the habitat of the Raizales community.

55. The Respondent claims that it therefore has the right and duty to protect and preserve the environment of the south-western Caribbean Sea and the duty to exercise due diligence within the relevant marine area. It states that “[e]nvironmental concerns within the Southwestern Caribbean Sea need to be fully taken into account regardless of considerations of sovereignty or sovereign rights”. According to Colombia, it has the right to monitor and track any practices that endanger the marine environment and urge them to cease. The Respondent maintains that to find unlawful under customary international law an activity of Colombia that is not specifically recognized as encompassed by its freedoms of navigation and overflight, or other permissible uses of the sea, it must be proved that “Colombia's actions impeded, or materially prejudiced, Nicaragua's ability to exercise its sovereign rights”.

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56. The Court recalls that the applicable law between the Parties is customary international law. The Court notes that, by the time UNCLOS was concluded, the concept of the exclusive economic zone had already received widespread acceptance by States. In 1985, the Court found it incontestable that the institution of the exclusive economic zone had become a part of customary law (Continental Shelf (Libya Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 33, para. 34). To date, around 130 States, including both parties and non-parties to the Convention, have adopted national legislation or administrative decrees declaring an exclusive economic zone.

57. Customary rules on the rights and duties in the exclusive economic zone of coastal States and other States are reflected in several articles of UNCLOS, including Articles 56, 58, 61, 62 and 73. Article 56 reads as follows:

“Article 56

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

1. 1. In the exclusive economic zone, the coastal State has:

   1. (a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds;

   2. (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:

      1. (i) the establishment and use of artificial islands, installations and structures;

      2. (ii) marine scientific research;

      3. (iii) the protection and preservation of the marine environment;

   3. (c) other rights and duties provided for in this Convention.

2. 2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions of this Convention.

3. 3. The rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part VI.”

58. Articles 61 and 62 address the conservation and utilization of the living resources in the exclusive economic zone. Under Article 61, the coastal State has the responsibility to conserve the living resources in that maritime zone. For that purpose, it shall determine the allowable catch of the living resources in the exclusive economic zone and ensure, through proper conservation and management measures, taking into account the best scientific evidence available to it, that the living resources in that zone are not endangered by over-exploitation. The coastal State shall take measures to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of the coastal fishing communities and the special requirements of developing States. Article 62 provides that in order to achieve an optimum utilization of the living resources in the exclusive economic zone, the coastal State shall determine its capacity to harvest the living resources of the zone, and, where it does not have the capacity to harvest the entire allowable catch, it shall, through agreements or other arrangements, give other States access to the surplus of the allowable catch, with particular attention paid to the rights of landlocked States and geographically disadvantaged States. Article 62 also provides that nationals of other States fishing in a coastal State's exclusive economic zone shall comply with the conservation measures established in the laws and regulations adopted by the coastal State in conformity with the Convention.

59. Moreover, under Article 73 of UNCLOS, the coastal State, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, has the power to take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations it has adopted in conformity with UNCLOS.

60. In exercising its sovereign rights and jurisdiction in the exclusive economic zone, the coastal State shall have due regard to the rights and duties of other States and shall observe its other obligations under the law of the sea.

61. Customary international law also attributes rights and duties to other States in the exclusive economic zone, as reflected in Article 58 of UNCLOS, which states:

“Article 58

Rights and duties of other States in the exclusive economic zone

1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.

2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.

3. In exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part.”

62. Thus, under customary international law, all States enjoy the freedoms of navigation and overflight, as well as other internationally lawful uses related to such freedoms, in another State's exclusive economic zone. Moreover, the customary rules as reflected in Articles 88 to 115 of UNCLOS and other pertinent rules of international law are applicable to the exclusive economic zone in so far as they are not incompatible with the régime of that zone.

63. In exercising their rights and performing their duties in the exclusive economic zone, other States shall have due regard to the sovereign rights and jurisdiction of the coastal State in that zone.

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64. In considering whether the evidence establishes the violations of customary international law alleged by Nicaragua, the Court will be guided by its jurisprudence on questions of proof. The Court recalls that, “as a general rule, it is for the party which alleges a particular fact in support of its claims to prove the existence of that fact” (Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation, Judgment, I.C.J. Reports 2018 (I), p. 26, para. 33; see also Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010 (II), p. 660, para. 54). The Court will treat with caution evidentiary materials prepared for the purposes of a case, as well as evidence from secondary sources (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 731, para. 244; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, pp. 201, 204 and 225, paras. 61, 68 and 159; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 65). It will consider evidence that comes from contemporaneous and direct sources to be more probative and credible. The Court will also “give particular attention to reliable evidence acknowledging facts or conduct unfavourable to the State represented by the person making them” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 201, para. 61, citing Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64). Finally, while press articles and documentary evidence of a similar secondary nature are not capable of proving facts, they can corroborate, in some circumstances, the existence of facts established by other evidence (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Merits, Judgment, I.C.J. Reports 2015 (I), p. 87, para. 239, citing Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 40, para. 62).

65. In the present case, Nicaragua refers to over 50 alleged incidents at sea. The Court observes that, for most of these events, Nicaragua mainly relies on the following materials as evidence: a letter from the Nicaraguan Naval Force to the Ministry of Foreign Affairs of Nicaragua dated 26 August 2014, which contains a report of alleged incidents produced pursuant to a request for information from the Ministry of Foreign Affairs and which is accompanied by daily reports from the Navy and, in respect of some of the alleged incidents, audio recordings of exchanges between the vessels involved. According to Nicaragua, these daily reports in map format were prepared contemporaneously with the incidents and maintained in the logs of the Nicaraguan armed forces. The above-mentioned report listing alleged incidents was also annexed to a diplomatic Note sent by Nicaragua to Colombia, dated 13 September 2014. Moreover, Nicaragua adduces three letters from the President of the Nicaraguan Chamber of Fisheries to the Executive Director of the Nicaraguan Institute of Fisheries and Aquaculture (hereinafter “INPESCA”), dated, respectively, 6 January 2014, 1 July 2014, and 24 July 2014, each of which refers to certain incidents allegedly reported by captains or crewmembers of fishing vessels to their vessel owners. For alleged incidents between 2015 and 2017, Nicaragua also produces daily reports from its Navy, some with audio recordings attached. In addition to these letters and materials, Nicaragua refers to diplomatic Notes, affidavits, photographic and audio-visual materials, and media reports.

66. In considering the evidentiary weight of the reports from the Nicaraguan Navy, some of which are accompanied by audio recordings, the Court takes into account Nicaragua's assertion that these reports were prepared contemporaneously with alleged events, while also bearing in mind that they appear to have been prepared for the purposes of the current proceedings and that, in many instances, they do not contain first-hand evidence. The Court approaches with some caution the letters from the President of the Nicaraguan Chamber of Fisheries to the Executive Director of INPESCA, which do not contain first-hand accounts of events and at least some of which appear to have been specially prepared for the purposes of the case.

67. In response, Colombia presents, for certain incidents, its naval maritime travel reports and navigation logs to prove that its naval frigates did not have encounters with Nicaraguan vessels at the times and the places alleged by Nicaragua, or that the naval frigates concerned were recorded docking at the port or elsewhere at the relevant time. In respect of some incidents, Colombia also provides communications from officers of the Colombian Navy, audio recordings, photographic evidence, and video footage of its own, as well as affidavits. In addition, in respect of incidents which allegedly occurred before 18 March 2014, Colombia refers to the statement made on that date by the Chief of Nicaragua's Army that there had been “no incidents” involving Colombia or its Navy.

68. With regard to Colombia's evidence, the Court considers that the Colombian Navy's maritime travel reports and navigation logs have probative value, as they mostly provide information from contemporaneous and direct sources. The Court will attach particular significance to reliable evidence that admits or establishes facts unfavourable to Colombia. In the same way as with the evidence adduced by Nicaragua, the Court will treat with caution reports and affidavits adduced by Colombia which appear to have been prepared specially for the purposes of the case.

69. Upon examination of the evidence submitted by Nicaragua, the Court finds that for many alleged incidents, Nicaragua seeks to establish that Colombian naval vessels violated Nicaragua's rights in its maritime zones; yet its evidence does not prove, to the satisfaction of the Court, that Colombia's conduct in Nicaragua's exclusive economic zone went beyond what is permitted under customary international law as reflected in Article 58 of UNCLOS. In relation to a number of other alleged incidents, Nicaragua's evidence is primarily based on what fishermen reported to the owners of their vessels, on materials that were apparently prepared for the purposes of the present case without other corroborating evidence, on audio recordings that are not sufficiently clear, or on media reports that either do not indicate the source of their information or are otherwise uncorroborated. The Court does not consider that such evidence suffices to establish Nicaragua's allegations against Colombia.

The Court considers that, with regard to the alleged incidents referred to above, Nicaragua has failed to discharge its burden of proof to establish a breach by Colombia of its international obligations. The Court will therefore dismiss those allegations for lack of proof.

70. With regard to the rest of the alleged incidents, the Court will examine in detail the evidence adduced by Nicaragua, together with Colombia's responses to each of the alleged incidents.

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The alleged incidents of 17 November 2013

71. Nicaragua claims that in the morning of 17 November 2013 the ARC Almirante Padilla, a Colombian frigate, ordered the Miss Sofia, a Nicaraguan lobster ship, to move from its position at 14° 50' 00" N and 81° 45' 00" W because the lobster ship was in “Colombian waters”. According to Nicaragua, when the Miss Sofia refused to leave, the Colombian frigate sent a speedboat to chase the lobster ship away. Nicaragua bases these allegations on the report of incidents attached to the letter from the Nicaraguan Naval Force to the Ministry of Foreign Affairs of Nicaragua, dated 26 August 2014 and the letter from the President of the Nicaraguan Chamber of Fisheries to the Executive Director of INPESCA, dated 6 January 2014. On the basis of the same evidence, Nicaragua claims that, later that day at around 3 p.m., after one of its coast guard vessels, the Río Escondido, informed the ARC Almirante Padilla that it was in Nicaraguan waters, the Colombian frigate refused to leave, stating that the Government of Colombia did not recognize the 2012 Judgment. Nicaragua argues that the different narrative of the alleged incident provided by Colombia (see paragraph 72 below) is not inconsistent with its own allegations, as the two accounts pertain to events that occurred at different times of the day.

72. With regard to these events, Colombia acknowledges that the ARC Almirante Padilla and the Miss Sofia were in the Luna Verde area on 17 November 2013. Colombia claims, however, that on that day the ARC Almirante Padilla unsuccessfully tried to contact the Miss Sofia in order to return two fishermen whom it had rescued in the late afternoon and who appeared to have been abandoned by the Miss Sofia. Colombia asserts that, due to its inability to establish contact with the fishing vessel, its frigate contacted the Nicaraguan patrol boat. Colombia claims that it acted in accordance with its obligation under customary international law to assist any person found at sea in the exclusive economic zone in danger of being lost. In relation to these events, Colombia refers to signed declarations by two fishermen, dated 17 November 2013, attesting to their good treatment by the crew of the Colombian frigate, to audio-visual material, and to a communication from the Commander of the ARC Almirante Padilla to the Commander of the Specific Command of San Andrés and Providencia dated 20 November 2013. Colombia did not provide any information or evidence concerning the location and activities of the ARC Almirante Padilla before 5.10 p.m. that day.

The alleged incidents of 27 January 2014

73. Nicaragua claims that, on 27 January 2014, the Colombian frigate ARC Independiente informed the Caribbean Star, a Nicaraguan lobster ship, located at 14° 47' 00" N and 81° 52' 00" W, that it was fishing illegally in the Seaflower Biosphere Reserve. In support of this claim, Nicaragua relies on an audio recording, the letter from the President of the Nicaraguan Chamber of Fisheries to the Executive Director of INPESCA dated 1 July 2014, and the report of incidents attached to the letter from the Nicaraguan Naval Force to the Ministry of Foreign Affairs dated 26 August 2014. According to the audio recording submitted by Nicaragua, the Colombian frigate stated “the Colombian [S]tate has determined that the judgment of the International Court of Justice is not applicable, therefore the units of the [Colombian Navy] will continue exercising sovereignty and control over these waters”. Also on the basis of the report attached to the letter dated 26 August 2014, Nicaragua alleges that, on the same day, the ARC Independiente harassed the Al John, another lobster ship, operating with a Nicaraguan fishing licence at 14° 44' 00" N and 81° 47' 00" W.

74. For its part, Colombia states that it cannot confirm the authenticity of the audio recording. It denies, by reference to the maritime travel report of the ARC Independiente for 27 January 2014, that the Independiente encountered the Caribbean Star on that day, but concedes that the ARC Independiente was in Nicaragua's exclusive economic zone and that it interacted with the Al John. Colombia refers to a communication from the Commander of the Colombian Naval Force of the Caribbean, dated 28 January 2014, in support of its claim that the ARC Independiente did not harass the Al John as Nicaragua asserts but rather informed it that its practices in the Seaflower Biosphere Reserve were illegal. According to the communication on which Colombia relies, the captain of the Al John asked the Colombian frigate to allow his crew to continue to work “in these Nicaraguan waters”. Colombia claims that this was the end of the communication, indicating that the fishermen were neither intimidated nor prevented from carrying out their activities.

The alleged incidents of 5 February 2014

75. According to Nicaragua, on 5 February 2014, the ARC 20 de Julio, a Colombian frigate, informed the Nicaraguan Navy vessel Tayacán and 12 Nicaraguan fishing boats operating in the vicinity of 14° 44' 01" N and 81° 39' 08" W to withdraw from Colombia's contiguous zone and territorial sea. Nicaragua relies, in this regard, on the report of incidents and an audio recording attached to the letter dated 26 August 2014. In the audio recording submitted by Nicaragua, the speaker identifies himself as representing the “[Navy] of the Republic of Colombia, ARC ‘20 de Julio’” and informs “Nicaraguan units” that “you are in Colombia jurisdictional waters — the Colombian State has determined that the ruling by The Hague is not applicable; therefore, the units of the [Navy] of the Republic of Colombia will continue to exercise sovereignty over these waters”. The speaker also notes the specific co-ordinates at which the Nicaraguan units are located as 14° 44' 02" N and 81° 39' 06" W. By reference to the letter from the President of the Nicaraguan Chamber of Fisheries to the Executive Director of INPESCA dated 1 July 2014, as well as the above- mentioned report, Nicaragua also claims that, later that day, the ARC 20 de Julio intercepted the Nica Fish, a Nicaraguan fishing boat, located at 14° 44' 00" N and 81° 39' 00" W, and urged it to withdraw from “Colombian waters”.

76. Colombia does not challenge the authenticity of the audio recording submitted by Nicaragua, nor does it deny that its vessel interacted with the Tayacán, which the ARC 20 de Julio identified as being located at 14° 44' N and 81° 36' W. Colombia, however, asserts that the mere reading of a statement concerning the 2012 Judgment, without any evidence of interference with Nicaragua's sovereign rights, does not amount to a violation of international law. Colombia also refers to the maritime travel report of the ARC 20 de Julio, which it argues supports its claim that on 5 February 2014 the frigate identified only one fishing vessel, the Nica Fish, with which it did not interact.

The alleged incidents of 12 and 13 March 2014

77. Nicaragua claims that on 12 March 2014 the Colombian frigate ARC 20 de Julio harassed the Nicaraguan lobster ship Al John, which was located at approximately 14° 44' 00" N and 81° 50' 00" W, by ordering it to withdraw from the area in which it was fishing and by sending a speedboat to chase it away. Nicaragua also alleges that the Colombian frigate and speedboat had a “hostile attitude”. In respect of this alleged incident, Nicaragua relies on the letter from the President of the Nicaraguan Chamber of Fisheries to the Executive Director of INPESCA dated 1 July 2014 and the report attached to the letter from the Nicaraguan Naval Force to the Ministry of Foreign Affairs of Nicaragua dated 26 August 2014. Moreover, Nicaragua claims, on the basis of the same evidence, that, the following day, the same Colombian frigate ordered the Marco Polo, a Nicaraguan fishing boat in the vicinity of 14° 43' 00" N and 81° 45' 00" W, to leave the area in which it was fishing.

78. In response, Colombia accepts that the ARC 20 de Julio interacted with the Al John and the Marco Polo on 12 and 13 March 2014, respectively. Colombia claims that its frigate simply informed each of the fishing vessels that they were operating “in a UNESCO specially-protected area” and invited them to suspend their environmentally harmful practices and to change them for other methods. The Respondent submits a communication from the Commander of the ARC 20 de Julio to the Colombian Navy's Specific Command of San Andrés and Providencia dated 13 March 2014 to which photographic evidence and the transcription of communications with the two fishing vessels were attached, which indicates that the ARC 20 de Julio, reading from a proclamation, informed the Al John and the Marco Polo that they were engaged in predatory fishing practices in a protected area. Colombia notes that, according to its transcription of those communications, the captain of the Al John said that it would move when it was “done fishing” and the Marco Polo replied that it would continue “exercising legal fishing”. Colombia claims that these responses support its contention that there was no harassment or violation of Nicaragua's sovereign rights.

The alleged incident of 3 April 2014

79. Nicaragua alleges that on 3 April 2014 a Colombian Navy ocean patrol ship, the ARC San Andrés, harassed the Mister Jim, a Nicaraguan fishing boat, located at 14° 44' 00" N and 82° 00' 00" W, and advised it by radio that it should not continue to fish for lobster and should withdraw from the area. In relation to this allegation, Nicaragua relies on the report attached to the letter from the Nicaraguan Naval Force to the Ministry of Foreign Affairs of Nicaragua dated 26 August 2014 and the letter from the President of the Nicaraguan Chamber of Fisheries to the Executive Director of INPESCA dated 1 July 2014.

80. While conceding that an interaction did occur between the ARC San Andrés and the Mister Jim, Colombia claims that the ARC San Andrés invited the Mister Jim to suspend its environmentally harmful fishing practices and to make use of authorized fishing methods instead. The communication from the Commander of the Specific Command of San Andrés and Providencia to the Commander of the Naval Force of the Caribbean dated 7 April 2014 and submitted by Colombia with respect to this incident confirms that the interaction indeed took place. Colombia introduces evidence that indicates that, as part of the exchange, the ARC San Andrés, reading from a proclamation, “invited the Mister Jim to suspend its predatory fishing practices, which are harmful to the marine environment, and change its methods to authorized ones”.

The alleged incident of 28 July 2014

81. Nicaragua alleges that on 28 July 2014 the captain of the Nicaraguan-flagged fishing vessel Doña Emilia informed a Nicaraguan Navy vessel that “a few days earlier”, while at 14° 29' 00" N and 81° 53' 00" W, a Colombian Navy vessel advised the Doña Emilia that it could not operate in that area. Nicaragua supports this allegation by reference to the report and an audio recording attached to the letter from the Nicaraguan Naval Force to the Ministry of Foreign Affairs, dated 26 August 2014.

82. Colombia accepts that one of its naval vessels, the ARC 7 de Agosto, interacted with the Doña Emilia on 22 July 2014. It presents a communication from the Commander of the Specific Command of San Andrés and Providencia to the Commander of Colombia's Naval Force of the Caribbean dated 22 July 2014. According to this communication, the ARC 7 de Agosto informed the Doña Emilia that it had been found carrying out predatory fishing in a UNESCO protected environmentally sensitive area, and invited it “to suspend such harmful practice for the marine environment and change it for authorized methods”. In support of its assertion that Nicaragua was not impeded from exercising its sovereign rights in the area, Colombia also refers to the transcript of the audio recording provided by Nicaragua, according to which the captain of the Doña Emilia stated that the fishing vessel ignored the Colombian naval vessel and continued with its fishing activities.

The alleged incidents of 26 March 2015

83. Nicaragua claims that on 26 March 2015 the ARC 11 de Noviembre, located at 14° 50' 00" N and 81° 41' 00" W, stated to Nicaraguan coast guard vessel GC-401 José Santos Zelaya that, “according to the Colombian government, the ruling of The Hague [was] inapplicable, which is why [it was] in the Colombian Archipelago of San Andrés [and] Providencia”. According to Nicaragua, later that day, the ARC 11 de Noviembre informed the Nicaraguan-flagged fishing vessel Doña Emilia that it was engaging in predatory fishing at co-ordinates 14° 50' 2.98" N and 81° 47' 3.62" W and asked it to suspend this practice. In respect of these alleged events, Nicaragua relies on daily reports of its Navy and audio recordings. According to Nicaragua's transcript of one of these recordings, the captain of the ARC 11 de Noviembre told the Doña Emilia that its fishing technique was “totally prohibited anywhere . . . regardless of the fishing license that a boat has” and asked the fishing vessel whether the “instructions” were clear.

84. For its part, Colombia claims that, even if true, Nicaragua's audio recording relating to GC-401 José Santos Zelaya shows no violation of Nicaragua's sovereign rights, and that Nicaragua is seeking to negate Colombia's rights in the south-western Caribbean Sea. As for the alleged interaction between the ARC 11 de Noviembre and the Doña Emilia, Colombia claims to have no record of this encounter. It further claims that, if Nicaragua's audio recording is authentic, Nicaragua has distorted the alleged interaction. Colombia asserts that, in the recording, the Colombian officer informed the fishing vessel that “it was in a UNESCO specially-protected area, where predatory fishing was not permitted” and the officer “merely invited the vessel to suspend this harmful fishing practice and change it for authorized methods”. According to Colombia, this alleged incident does not constitute a violation of Nicaragua's sovereign rights.

The alleged incident of 21 August 2016

85. Nicaragua further claims that on 21 August 2016 the captain of the Marco Polo reported that, while fishing at 14° 51' 00" N and 81° 41' 00" W, the Colombian frigate ARC Almirante Padilla informed the vessel that its fishing activities were illegal and “proceeded to emit an acute sound in the water, which obstructed the Marco Polo’s fishing for lobster, thereby forcing it to leave the area”. In respect of this incident, Nicaragua relies on the letter from the Navy to the Commander in Chief of the Army, dated 20 August 2016, accompanied by a signed complaint from the captain of the Nicaraguan fishing vessel Marco Polo, as well as a daily report of its Navy.

86. Regarding the encounter with the Marco Polo, Colombia accepts that the ARC Almirante Padilla had an encounter with the Nicaraguan fishing vessel in question, but argues that the Colombian frigate, after finding the Marco Polo to be undertaking predatory fishing, merely read a proclamation used to address Nicaraguan fishing vessels engaging in what Colombia regarded as predatory practices and invited the crew to suspend its environmentally harmful fishing practices. Colombia relies on the maritime travel report of the ARC Almirante Padilla in claiming that the fishing vessel ignored this invitation, which, in Colombia's view, implies that the Marco Polo did not leave the area and was not precluded from carrying out its fishing activities.

The alleged incidents of 6 and 8 October 2018

87. Nicaragua alleges that, on 6 October 2018, the ARC Almirante Padilla, a Colombian naval vessel, intercepted the Dr Jorge Carranza Fraser, a Mexican-flagged vessel conducting marine scientific research activities with Nicaragua's authorization in waters south of Alburquerque Cay. Nicaragua claims that the Mexican-flagged vessel was located at 13° 51' 50.79" N and 81° 27' 18.066" W when the Colombian vessel “ordered it to stop its activities and prevented it from continuing [its marine scientific research activities], claiming that it was operating in Colombian waters”. Nicaragua further alleges that, two days later, the ARC Almirante Padilla again intercepted the Mexican-flagged vessel while operating at 11° 51' 39.798" N and 80° 58' 9.998" W and ordered it to leave. Nicaragua bases its claim on evidence that includes diplomatic Notes, a letter from the Mexican National Institute of Fisheries and Aquaculture (hereinafter “INAPESCA”), dated 16 April 2019, and affidavits provided by two Mexican crew members accompanied by contemporaneous radar screen photographs. In respect of its allegations concerning the Mexican-flagged vessel, Nicaragua also refers to the original and modified navigation course and sampling stations of that vessel.

88. Colombia argues that the alleged incident “was a non-event”. By reference to a communiqué by INAPESCA dated 8 October 2018, which indicates that on 5 October 2018 the Mexican-flagged vessel had already transited the area in which the alleged incident took place, Colombia claims that the Mexican-flagged vessel “could not have been where Nicaragua claims it was on 6 October 2018”. Colombia further states that contemporaneous materials emanating from INAPESCA do not mention the alleged interference by Colombia and that neither Mexico nor INAPESCA protested the alleged event. While Colombia accepts that the INAPESCA letter dated 16 April 2019 refers to an encounter the Mexican-flagged vessel had with a marine patrol vessel from a third State, it notes that the letter “did not mention Colombia”. Additionally, Colombia questions the veracity of the affidavits submitted by Nicaragua on the grounds that “[t]he individual who served as the notary public in both of them is . . . a recently retired member of Nicaragua's military as well as legal counsel in the current proceedings”.

The alleged incident of 11 December 2018

89. Nicaragua claims that in the late evening of 10 December 2018 the Nicaraguan Navy vessel Tayacán boarded the Observer, a Honduran-flagged fishing boat, and found it to be conducting illegal fishing for lobster at 14° 58' 00" N and 81° 00' 00" W. According to Nicaragua, while escorting the Observer to a Nicaraguan port early in the morning of 11 December 2018, its naval vessel detected the presence of the ARC Antioquia, a Colombian Navy frigate, which established communication, demanding that the Nicaraguan Navy release the Observer. Nicaragua alleges that its naval vessel was harassed first by a low-flying plane and then by a fast boat dispatched by the ARC Antioquia, forcing the Tayacán to change course. According to Nicaragua, the ARC Antioquia followed the Tayacán for hours and then took hostile actions with the aim of impeding the transfer of the Observer, culminating in the Antioquia bumping several times into both the Observer and the Tayacán. Nicaragua further alleges that the crew of the Antioquia pointed guns at Nicaraguan naval personnel aboard the Observer, demanding that they surrender. In respect of these allegations, Nicaragua relies on, among other things, an affidavit from the Commander and Second Commander of the Tayacán; signed and notarized interviews with the captain, second captain, and two crew members of the Observer; audio-visual material; photographs; and audio recordings.

90. With respect to the alleged events of 10-11 December 2018, Colombia argues that the Observer was not fishing in Nicaragua's exclusive economic zone but was in transit between Colombia's islands. In this regard, Colombia refers to, among other things, how lobster fishing is carried out, the timing of the alleged events, and data from the vessel monitoring system of the Observer. Colombia also relies on these data in support of its claim that the ARC Antioquia was in the area in response to a distress call from the Observer. Colombia denies that it deployed either a low-flying plane or a fast boat to harass the Nicaraguan vessel and refers, in support of its position, to a communication from the Commander of Colombia's Air Force dated 23 October 2019, which states that on 11 December 2018 there were no flights by the Colombian Air Force in the area, as well as to an affidavit by the captain of the ARC Antioquia and the maritime travel report of the ARC Antioquia. Moreover, relying on audio-visual material, audio recordings, and the affidavit from the captain of the ARC Antioquia, Colombia claims that Nicaraguan officials tried to ram the ARC Antioquia and deliberately manoeuvred the Tayacán in order to have the Observer and the ARC Antioquia bump into each other. Colombia also questions the credibility of the affidavits produced by Nicaragua, since the notary public for those affidavits is a recently retired member of Nicaragua's military who has served as legal counsel for Nicaragua in the present case. Referring to an affidavit from a crew member of the Observer, Colombia considers, moreover, that the interviews on which Nicaragua relies were taken under duress and that the Court should thus not take them into consideration.

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91. The Court considers that, based upon the above-mentioned evidentiary material, a number of facts on which Nicaragua's claim rests are established. First of all, as to many of the alleged incidents, the evidence supports Nicaragua's allegations regarding the location of Colombian frigates (see the alleged incidents of 17 November 2013; 27 January 2014; 12 and 13 March 2014; 3 April 2014; 28 July 2014; 21 August 2016; 6 and 8 October 2018). Colombia's own naval reports and navigation logs, as contemporaneous documents, also corroborate the specific geographic co-ordinates presented by Nicaragua, which lie within the area east of the 82° meridian, often in the fishing ground at or around Luna Verde, located within the maritime area that was declared by the Court to appertain to Nicaragua.

92. Moreover, the Colombian naval vessels purported to exercise enforcement jurisdiction in Nicaragua's exclusive economic zone (see the alleged incidents of 27 January 2014; 13 March 2014; 3 April 2014; 28 July 2014; 26 March 2015; 21 August 2016). In communications with Nicaraguan naval vessels and fishing vessels operating in Nicaragua's exclusive economic zone, Colombian naval officers, at times reading from a government proclamation, requested Nicaraguan fishing vessels to discontinue their fishing activities, alleging that those activities were environmentally harmful and were illegal or not authorized. These officials also stated to the Nicaraguan vessels that the maritime spaces concerned were “Colombian jurisdictional waters” over which Colombia would “continue to exercise sovereignty” on the basis of the determination by the Colombian Government that the 2012 Judgment “is not applicable”. The evidence sufficiently proves that the conduct of Colombian naval vessels was carried out to give effect to a policy whereby Colombia sought to continue to control fishing activities and the conservation of resources in the area that lies within Nicaragua's exclusive economic zone.

93. Colombia relies on two legal grounds to justify its conduct at sea. First, Colombia claims that its actions, even if proved, are permitted as an exercise of its freedoms of navigation and overflight. Secondly, Colombia asserts that it has an international obligation to protect and preserve the marine environment of the south-western Caribbean Sea and the habitat of the Raizales and other inhabitants of the Archipelago. It argues that environmental concerns need to be fully taken into account regardless of considerations of sovereignty or sovereign rights.

94. With regard to the Respondent's first assertion, the Court considers that, in accordance with the customary rules on the exclusive economic zone, freedoms of navigation and overflight enjoyed by other States in the exclusive economic zone of the coastal State, as reflected in Article 58 of UNCLOS, do not include rights relating to the exploration, exploitation, conservation and management of the natural resources of the maritime zone, nor do they give other States jurisdiction to enforce conservation measures in the exclusive economic zone of the coastal State. Such rights and jurisdiction are specifically reserved for the coastal State under customary international law, as reflected in Articles 56 and 73 of UNCLOS.

95. With regard to Colombia's assertion relating to its international obligation to preserve the marine environment of the south-western Caribbean Sea, it is not contested between the Parties that all States have the obligation under customary international law to protect and preserve the marine environment. In the exclusive economic zone, however, it is the coastal State that has jurisdiction to discharge that obligation. As stated by the International Tribunal for the Law of the Sea (hereinafter “ITLOS”), “the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment” (Southern Bluefin Tuna Cases (New Zealand v. Japan; Australia v. Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, p. 295, para. 70). In this respect, the coastal State bears the responsibility within its exclusive economic zone to take legislative, administrative and enforcement measures in accordance with customary international law, as reflected in the relevant provisions of UNCLOS, for the purpose of conserving the living resources and protecting and preserving the marine environment. A third State, in the capacity of a flag State, also has “an obligation to ensure compliance by vessels flying its flag with relevant conservation measures concerning living resources enacted by the coastal State for its exclusive economic zone” (Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 37, para. 120). However, a third State has no jurisdiction to enforce conservation standards on fishing vessels of other States in the exclusive economic zone.

96. The Court observes that great emphasis has been placed by the Respondent on its obligations to protect the marine environment of the south-western Caribbean Sea and the habitat of the Raizales and other inhabitants of the Archipelago under the Cartagena Convention and the SPAW Protocol (hereinafter referred to as the “Cartagena régime”). The Cartagena Convention was concluded with the objective of enhancing international co-operation to prevent, reduce and control pollution from various sources in the wider Caribbean region and to ensure sound environmental management. The SPAW Protocol is one of the three protocols to the Cartagena Convention, under which the States parties undertake to establish protected areas and take measures for the preservation of endangered species and marine areas. Colombia became a party to the Cartagena Convention on 2 April 1988 and Nicaragua became a party on 24 September 2005. Both Colombia and Nicaragua are parties to the SPAW Protocol, which entered into force on 17 June 2000. Colombia deposited its instrument of ratification on 5 January 1998; Nicaragua deposited its instrument of ratification on 4 May 2021.

97. In implementing the Cartagena régime, Colombia established the Seaflower Biosphere Reserve and the Seaflower Marine Protected Area. The Court observes that Colombia's two marine natural reserves were established in the south-western Caribbean Sea at the time when there were overlapping maritime claims between Colombia and Nicaragua in the area. As a result of the maritime delimitation in the 2012 Judgment, these two marine natural reserves now partly overlap with Nicaragua's exclusive economic zone (see the map “Colombia's Seaflower Marine Protected Area”, figure 2.3, Colombia's Counter-Memorial, p. 51). The question in the present case concerns the extent to which Colombia may exercise its rights and discharge its obligations under the Cartagena régime in an area that presently falls within the exclusive economic zone of Nicaragua. In Colombia's view, should Nicaragua fail to control and police predatory or other illegal fishing activities carried out by Nicaraguan nationals or by nationals of third States in that area, Colombia has the right and duty under the Cartagena régime to exercise due diligence to control such activities.

98. The maritime delimitation between the Parties directly affects the rights and duties of Colombia in the parts of the Seaflower Marine Protected Area and the Seaflower Biosphere Reserve that overlap with Nicaragua's exclusive economic zone. Colombia is under an international obligation to respect Nicaragua's sovereign rights and jurisdiction in those areas, not only on the basis of customary international law on the exclusive economic zone, but also on the basis of the Cartagena Convention and the SPAW Protocol. Article 10 of the Cartagena Convention states:

“The Contracting Parties shall, individually or jointly, take all appropriate measures to protect and preserve rare or fragile ecosystems, as well as the habitat of depleted, threatened or endangered species in the Convention area. To this end, the Contracting Parties shall endeavour to establish protected areas. The establishment of such areas shall not affect the rights of other Contracting Parties and third States. In addition, the Contracting Parties shall exchange information concerning the administration and management of such areas.”

The provision stating that “[t]he establishment of such areas shall not affect the rights of other Contracting Parties and third States” means that in discharging its obligations under the Cartagena Convention, Colombia must respect the sovereign rights and jurisdiction of Nicaragua in its exclusive economic zone. It may not, therefore, enforce conservation standards and protection measures in the area that is within Nicaragua's exclusive economic zone.

99. A similar provision is contained in the SPAW Protocol. Article 3, paragraph 1, of the Protocol states that each party “shall . . . take the necessary measures to protect, preserve and manage [certain areas and species of flora and fauna] in a sustainable way, within areas of the Wider Caribbean Region in which it exercises sovereignty, or sovereign rights or jurisdiction”. Paragraph 2 of Article 3 further states that

“[e]ach Party shall endeavour to co-operate in the enforcement of these measures, without prejudice to the sovereignty, or sovereign rights or jurisdiction of other Parties. Any measures taken by such Party to enforce or to attempt to enforce the measures agreed pursuant to this Protocol shall be limited to those within the competence of such Party and shall be in accordance with international law”.

Contrary to Colombia's claim, therefore, under the SPAW Protocol the power of the States parties to adopt and enforce conservation measures is limited to the maritime areas in which they exercise sovereignty, or sovereign rights or jurisdiction. The fragility of the ecological environment of a protected area established by a State party does not provide a legal basis for it to take measures in areas that are subject to the sovereignty, sovereign rights or jurisdiction of another State party.

MAP SHOWING THE SEAFLOWER MARINE PROTECTED AREA AND THE SEAFLOWER BIOSPHERE RESERVE ACCORDING TO COLOMBIA

(Source: Colombia's Counter-Memorial, Figure 2.3, p. 51)

100. According to customary international law on the exclusive economic zone, Nicaragua, as the coastal State, enjoys sovereign rights to manage fishing activities and jurisdiction to take measures to protect and preserve the maritime environment in its exclusive economic zone. The evidence before the Court shows that the conduct of Colombian naval frigates in Nicaraguan maritime zones was not limited to “observing” predatory or illegal fishing activities or “informing” fishing vessels of such activities, as claimed by Colombia. This conduct often amounted to exercising control over fishing activities in Nicaragua's exclusive economic zone, implementing conservation measures on Nicaraguan-flagged or Nicaraguan-licensed ships, and hindering the operations of Nicaragua's naval vessels (see paragraph 92 above). The Court considers that Colombia's legal arguments do not justify its conduct within Nicaragua's exclusive economic zone. Colombia's conduct is in contravention of customary rules of international law as reflected in Articles 56, 58 and 73 of UNCLOS.

101. In light of the foregoing considerations, the Court finds that Colombia has violated its international obligation to respect Nicaragua's sovereign rights and jurisdiction in the latter's exclusive economic zone by interfering with fishing activities and marine scientific research by Nicaraguan-flagged or Nicaraguan-licensed vessels and with the operations of Nicaragua's naval vessels, and by purporting to enforce conservation measures in that zone.

B. Colombia's “integral contiguous zone”

145. Among its allegations of Colombia's violations of Nicaragua's rights in its maritime zones, Nicaragua refers to Colombia's Presidential Decree 1946, which establishes an “integral contiguous zone” around Colombian islands in the western Caribbean Sea. Nicaragua does not deny Colombia's entitlement to a contiguous zone, but it maintains that both the geographical extent of the “integral contiguous zone” and the material scope of the powers which Colombia claims it may exercise therein exceed the limits permitted under customary international rules on the contiguous zone. In Nicaragua's view, by establishing the “integral contiguous zone”, Colombia violated Nicaragua's rights in the latter's exclusive economic zone.

146. The Parties disagree as to whether Article 33 of UNCLOS on the contiguous zone reflects customary international law. Before examining Presidential Decree 1946, the Court will first consider the customary rules applicable to the contiguous zone.

3. The compatibility of Colombia's “integral contiguous zone” with customary international law

164. Having concluded that the provisions of Article 33 of UNCLOS reflect customary international law and that a coastal State is entitled to a contiguous zone which may overlap with the exclusive economic zone of another State, the Court will next consider the compatibility of Colombia's “integral contiguous zone” established under Presidential Decree 1946 with customary international law and Nicaragua's claims in that regard.

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165. Regarding Presidential Decree 1946, Nicaragua claims that, according to the maps issued by Colombia, parts of the “integral contiguous zone” reach into Nicaragua's exclusive economic zone and extend beyond 24 nautical miles from the baselines from which Colombia's territorial sea is measured. In its view, Colombia's justification for using geodetic lines to draw the “integral contiguous zone” by reference to the special geographical situation of the San Andrés Archipelago has no legal basis in international law.

166. As for the powers to be exercised in the “integral contiguous zone” under Article 5 (2) and Article 5 (3) of Colombia's Presidential Decree 1946, Nicaragua contends that some of the powers contained therein, including those concerning the protection of security, national maritime interests and cultural heritage, are not listed in Article 33, paragraph 1, of UNCLOS and are unsupported by general State practice. It argues that Colombia has not been able to establish that State practice has evolved into a rule of customary international law authorizing States to exercise control in their contiguous zone over matters other than those listed in Article 33 of UNCLOS. Nicaragua claims that the powers claimed by Colombia conflict with Nicaragua's powers in its exclusive economic zone. According to Nicaragua, Colombia wrongfully stretches the phrase “sanitary laws and regulations” in Article 33, paragraph 1, of UNCLOS to encompass laws and regulations relating to environmental protection.

167. With respect to cultural heritage in the contiguous zone, Nicaragua maintains that only a State party to UNCLOS may claim the right referred to in Article 303 and that Colombia has not demonstrated that that provision reflects customary international law. Nicaragua further complains that the power to protect cultural heritage in the “integral contiguous zone” is contradictory to Colombia's own domestic law, which reserves to Colombia itself the sole control over cultural heritage in its exclusive economic zone.

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168. In response to Nicaragua's arguments against the establishment of the “integral contiguous zone”, Colombia denies that it acted wrongfully under international law. Colombia argues that the spatial construction of the “integral contiguous zone” is dictated by the natural and special configuration of the San Andrés Archipelago and that its use of geodetic lines is consistent with the established jurisprudence in this regard and serves solely to define a “functional” area within which Colombia may execute the powers granted by international law. It argues that even if the Court were to find that the 24-nautical-mile limit of the contiguous zone reflects customary international law, the geographical configuration of the “integral contiguous zone” is justified by a “customary exemption” to this rule. In its view, “in unique geographical circumstances, the techniques according to which the external limit of a maritime zone is determined, if reasonable in context, may depart from the general rules in order to create a viable contiguous zone that enables the achievement of its purposes” where “the application of the general rule would create an impracticable contiguous zone”.

169. Colombia argues that the powers prescribed under Presidential Decree 1946 are based on “context, function and policy considerations”, which are permitted under customary international law. According to Colombia, even if the Court were to proclaim that Article 33, paragraph 1, reflects customary law, the powers to be exercised in the “integral contiguous zone” still fall within the scope of that provision. In particular, Colombia argues that protection of the marine environment is consistent with a contemporary interpretation of the term “sanitary”, and protection of security and national maritime interests can also fall into the “customs”, “fiscal”, “immigration” and “sanitary” generic categories. With respect to the power to preserve cultural heritage, Colombia argues that it is explicitly permitted by Article 303 of UNCLOS.

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170. The Parties are divided over the conformity with customary international law of the provisions of Article 5 of Presidential Decree 1946, which set out the geographical extent of the “integral contiguous zone” and the material scope of the powers that may be exercised therein. Article 5 reads as follows:

“Contiguous zone of the island territories in the western Caribbean Sea

1. Without prejudice to the terms of Section 2 of this Article, the Contiguous Zone of the island territories of Colombia in the Western Caribbean Sea extends up to a distance of 24 nautical miles measured from the baselines referred to in Article 3 above.

2. The Contiguous Zones adjacent to the territorial sea of the islands which form the island territories of Colombia in the Western Caribbean Sea, except for the islands Serranilla and Bajo Nuevo, where they intersect, generate a continuous and uninterrupted Contiguous Zone, across the whole of the Department of the Archipelago of San Andrés, Providencia and Santa Catalina, over which the competent national authorities will exercise the powers recognized by international law and Colombian laws mentioned in Section 3 of this Article.

In order to secure the proper administration and orderly management of the entire Archipelago of San Andrés, Providencia and Santa Catalina, and of their islands, cays and other formations and their maritime areas and resources, and in order to avoid the existence of irregular figures or contours which would make practical application difficult, the lines indicated for the outer limits of the contiguous zones will be joined to each other through geodetic lines. In the same fashion, these will be linked to the contiguous zone of the island of Serranilla by geodetic lines which maintain the direction of parallel 14° 59' 08" N, and to Meridian 79° 56' 00" W, and thence to the North, thus forming an Integral Contiguous Zone of the Department Archipelago of San Andrés, Providencia and Santa Catalina.

3. Modified by Decree 1119 of 2014, Art. 2. In developing what has been provided for in the previous numeral, with the purpose of protecting the sovereignty in its territory and territorial sea, in the Integral contiguous zone established in this Article Colombia exercises the faculties of enforcement and control necessary to:

1. (a) Modified by Decree 1119 of 2014, Art. 2. Prevent and control the infractions of the laws and regulations related with the integral security of the State, including piracy and trafficking of drugs and psychotropic substances, as well as conduct contrary to security in the sea and the national maritime interests, the customs, fiscal, migration and sanitary matters which take place in its insular territories or in their territorial sea. In the same manner, violations against the laws and regulations related with the preservation of the environment and the cultural heritage will be prevented and controlled.

2. (b) Punish violations of laws and regulations related to the matters indicated in section a) above, committed in its island territories or in their territorial sea.

PARAGRAPH Added by Decree 1119 of 2014, Art. 3. The application of this article will be carried out in conformity with international law and Article 7 of the Present Decree.”

171. Colombia produces an illustrative map depicting the “integral contiguous zone”, which it claims is an accurate depiction of how the Decree should apply in practice. Nicaragua also produces a map that it claims was presented by the Colombian President on the day Presidential Decree 1946 was issued. The two maps do not coincide in their depiction of the “integral contiguous zone”, but both of them show that some parts of the “integral contiguous zone” extend more than 24 nautical miles from Colombia's baselines and overlap with Nicaragua's exclusive economic zone. (For illustrative purposes, the Court includes the map produced by Colombia in its Counter-Memorial.)

MAP SHOWING COLOMBIA'S "INTEGRAL CONTIGUOUS ZONE" ACCORDING TO COLOMBIA

(Source: Colombia's Counter-Memorial, Figure 5.1, p. 204)

172. Colombia does not deny that the “integral contiguous zone”, in various parts, extends beyond 24 nautical miles, but claims its position to be justified on the basis of customary international law. According to Colombia, a coastal State is permitted under customary international law to establish contiguous zones “of varying breadth”, going beyond those expressly envisaged in Article 33 of UNCLOS.

173. As is stated above, the 24-nautical-mile rule provided for in Article 33, paragraph 2, is an established customary rule. The coastal State does not have the right to extend the breadth of its contiguous zone as it sees fit. The Court notes that the simplification of boundary lines is not uncommon in maritime delimitation between two States, but in such cases a simplified boundary is achieved by mutual agreement or through a third-party settlement. By contrast, in the present case, the establishment of the outer limit of the “integral contiguous zone” is a unilateral act of Colombia that directly affects the rights and interests of Nicaragua.

174. Colombia refers to the Fisheries case between the United Kingdom and Norway and the 2012 Judgment as a jurisprudential basis for the simplified configuration of the “integral contiguous zone”. Neither of the Judgments invoked by Colombia, however, is applicable to the present case. Any consideration of the geographical circumstances by Colombia must respect the 24-nautical-mile rule, as required by customary international law reflected in Article 33, paragraph 2, of UNCLOS. Colombia may choose to reduce the breadth of the “integral contiguous zone” if it wishes to simplify the configuration of the zone, but it has no right to expand it beyond the 24-nautical-mile limit to the detriment of the exercise by Nicaragua of its sovereign rights and jurisdiction in its exclusive economic zone.

175. In sum, Colombia is under an international obligation to observe the 24-nautical-mile rule. The geographical extent of the “integral contiguous zone” is not in conformity with customary international law, as reflected in Article 33, paragraph 2, of UNCLOS.

176. With regard to the material scope of Colombia's powers within the “integral contiguous zone”, Article 5 (3) (a) of Presidential Decree 1946 provides that Colombia shall exercise powers in the “integral contiguous zone” to prevent and control infringements of laws and regulations regarding

“the integral security of the State, including piracy, trafficking of drugs and psychotropic substances, as well as conduct contrary to the security in the sea and the national maritime interests, the customs, fiscal, migration and sanitary matters which take place in its insular territories or in their territorial sea. In the same manner, violations against the laws and regulations related with the preservation of the maritime environment and the cultural heritage will be prevented and controlled.”

Under this provision, the scope of the powers under which the Colombian authorities may exercise control in the contiguous zone is much broader than the material scope of the powers enumerated in Article 33, paragraph 1, of UNCLOS (see paragraph 150 above).

177. The Court notes that, in terms of security, Article 5 (3) refers to the “integral security of the State”, which, according to Colombia, includes suppressing piracy and drug-trafficking, as well as conduct contrary to security at sea. As the Court has previously found, security was not a matter that States agreed to include in the list of matters over which a coastal State may exercise control in the contiguous zone; nor has there been any evolution of customary international law in this regard since the adoption of UNCLOS (see paragraph 154 above). The inclusion of security in the material scope of Colombia's powers within the “integral contiguous zone” is therefore not in conformity with the relevant customary rule.

178. In respect of the power to protect “national maritime interests”, Article 5 (3) of Presidential Decree 1946, through its broad wording alone, appears to encroach on the sovereign rights and jurisdiction of Nicaragua as set forth in Article 56, paragraph 1, of UNCLOS. This is also true with regard to violations of “laws and regulations related with the preservation of the environment”. As the “laws and regulations” are adopted by Colombia, the power thus conferred on the Colombian authorities to ensure their implementation in part of Nicaragua's exclusive economic zone is contrary to Article 56, paragraph 1 (b) (iii), of UNCLOS, which grants the coastal State, Nicaragua in the present case, jurisdiction in its exclusive economic zone over the “protection and preservation of the marine environment”.

179. Although under UNCLOS, as stated above, all States parties have an obligation to preserve the marine environment in the exclusive economic zone, other States must observe the laws and regulations adopted by the coastal State for the conservation of the living resources and for the preservation of the marine environment. A flag State may enforce such conservation measures adopted by the coastal State with regard to its national vessels operating in the exclusive economic zone (see Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, p. 37, para. 120). This is not the situation in the present case with regard to the powers authorized under Presidential Decree 1946. Article 5 (3) confers on the Colombian authorities powers that, if exercised in the area overlapping with Nicaragua's exclusive economic zone, would encroach on the sovereign rights and jurisdiction of Nicaragua.

180. With regard to Colombia's argument that the word “sanitary” can now be taken to include the protection of the marine environment, the Court is not convinced that the meaning of that word, as used in Article 33, paragraph 1, of UNCLOS, has evolved to extend to the protection of the marine environment, a matter that is separately governed by customary international law on the environment. The term “sanitary” was originally included in the provisions on the contiguous zone because of its connection with customs regulations (Commentary to the articles concerning the law of the sea, Yearbook of the International Law Commission, 1956, Vol. II, p. 295, Article 66, Comment (3)). There is no basis, either in law or in State practice, to give this term the expansive interpretation proposed by Colombia.

181. Article 5 (3) (a) of Presidential Decree 1946 also refers to cultural heritage. In support of its position, Colombia invokes Article 303, paragraph 2, of UNCLOS. Nicaragua challenges Colombia's claim on the basis that Colombia, as a non-party to UNCLOS, may not claim the right set out in Article 303 and that Colombia has not demonstrated that Article 303, paragraph 2, reflects customary international law.

182. The Court recalls that paragraphs 1 and 2 of Article 303, entitled “Archaeological and historical objects found at sea”, provide as follows:

“1. States have the duty to protect objects of an archaeological and historical nature found at sea and shall co-operate for this purpose.

2. In order to control traffic in such objects, the coastal State may, in applying article 33, presume that their removal from the sea-bed in the zone referred to in that article without its approval would result in an infringement within its territory or territorial sea of the laws and regulations referred to in that article.”

183. The Court notes that in Article 5 (3) (a), of Presidential Decree 1946, the phrase “cultural heritage” is used. Since Colombia relies on Article 303, paragraph 2, the Court takes it that Colombia uses this phrase to mean objects of an archaeological and historical nature.

184. Article 303 is included in the general provisions of Part XVI of UNCLOS. The travaux préparatoires and the ILC's Commentary to the articles concerning the law of the sea indicate that the negotiating States did not wish to include objects of cultural heritage found on the sea-bed as part of the natural resources of the continental shelf and, therefore, did not include cultural heritage in the continental shelf régime (Yearbook of the International Law Commission, 1956, Vol. II, p. 298). During the negotiations at the Third United Nations Conference on the Law of the Sea, the negotiating States agreed to give the coastal State the power to exercise control over objects of an archaeological and historical nature found in its contiguous zone and that the removal of such objects can be regarded as an infringement of its laws and regulations on customs, fiscal, immigration or sanitary matters. Such extended power is strictly confined to the limit of 24 nautical miles under Article 303, paragraph 2, which was accepted by the plenary of the Third United Nations Conference on the Law of the Sea (UN doc. A.CONF.62/L.58, para. 15).

185. Following the conclusion of UNCLOS, a growing number of States have extended the application of their cultural heritage legislation over the contiguous zone, and multilateral treaties have been concluded to protect underwater cultural heritage.

186. Taking into account State practice and other legal developments in this field, the Court is of the view that Article 303, paragraph 2, of UNCLOS reflects customary international law. It follows that Article 5 (3) of Presidential Decree 1946, in so far as it includes the power of control with respect to archaeological and historical objects found within the contiguous zone, does not violate customary international law.

C. Conclusions and remedies

195. The Court has concluded (see paragraph 144 above) that Colombia breached its international obligation to respect Nicaragua's sovereign rights and jurisdiction in its exclusive economic zone (i) by interfering with fishing activities and marine scientific research activities of Nicaraguan-flagged or Nicaraguan-licensed vessels and with the operations of Nicaraguan naval vessels in Nicaragua's exclusive economic zone; (ii) by purporting to enforce conservation measures in Nicaragua's exclusive economic zone; and (iii) by authorizing fishing activities in Nicaragua's exclusive economic zone. This wrongful conduct engages Colombia's responsibility under international law. Colombia must therefore immediately cease its wrongful conduct.

196. The Court has also found (see paragraphs 187 and 194 above) that the “integral contiguous zone” established by Colombia's Presidential Decree 1946 is not in conformity with customary international law, both because its breadth exceeds 24 nautical miles from the baselines from which Colombia's territorial sea is measured and because the powers that Colombia asserts within the “integral contiguous zone” exceed those that are permitted under customary international law. In the maritime areas where the “integral contiguous zone” overlaps with Nicaragua's exclusive economic zone, the “integral contiguous zone” infringes upon Nicaragua's sovereign rights and jurisdiction in the exclusive economic zone. Colombia's responsibility is thereby engaged. Colombia has the obligation, by means of its own choosing, to bring the provisions of Presidential Decree 1946 into conformity with customary international law in so far as they relate to maritime areas declared by the Court in its 2012 Judgment to appertain to Nicaragua.

197. In its final submissions, Nicaragua made a number of requests for additional remedies (see paragraph 24 above). Considering the nature of Colombia's internationally wrongful acts, the Court considers that the remedies stated above suffice to redress the injury that Colombia's internationally wrongful acts have inflicted on Nicaragua.

198. As regards the request by Nicaragua to order Colombia to pay compensation, the Court considers that in the course of the proceedings Nicaragua did not offer evidence demonstrating that Nicaraguan-flagged or Nicaraguan-licensed vessels or their fishermen suffered material damage or were effectively prevented from fishing as a result of Colombia's acts of interference by its naval frigates in Nicaragua's exclusive economic zone. Nicaragua's claim that fishing activities authorized by Colombia, in Nicaragua's exclusive economic zone, have caused “a substantial loss of profits for Nicaragua and its licensed fishermen” is not substantiated. In the absence of “any evidence capable of demonstrating . . . financially assessable injury”, the Court will not uphold a claim for compensation (Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, p. 267, para. 149). Therefore, Nicaragua's request for compensation must be rejected. Accordingly, there is no basis for the Court to defer the question of compensation to a further stage.

199. Finally, Nicaragua requests that the Court remain seised of the case until Colombia recognizes and respects Nicaragua's rights in the Caribbean Sea as attributed by the 2012 Judgment. The Court considers that there is no legal basis for the Court to accept such a request. Nicaragua's request must therefore be rejected.

A. Nicaragua's alleged infringement of the artisanal fishing rights of the inhabitants of the San Andrés Archipelago to access and exploit the traditional banks

201. In its third counter-claim Colombia asserts that the ancestral inhabitants of the San Andrés Archipelago, including the Raizales, have for more than three centuries engaged in navigating, fishing and turtling throughout the south-western Caribbean Sea in the maritime areas adjudged in the 2012 Judgment to appertain to Nicaragua, as well as in Colombian waters, access to which requires navigating through a part of Nicaragua's exclusive economic zone. It contends that the Raizales have traditionally fished between the Mosquito Coast and the San Andrés Archipelago, including in “[t]he shallow grounds of Cape Bank and, in particular, along La Esquina, that is to say on both sides of the 82° West Meridian, and the area known as Luna Verde”; and “[t]he deep-sea banks situated North of Quitasueño, East of the 82° West Meridian and West and North-West of Providencia, and between, respectively, Providencia and Quitasueño, Quitasueño and Serrana and Serrana and Roncador”. Colombia further contends that while long fishing expeditions to Cape Bank and the Northern Banks have always taken place, artisanal fishermen started sailing to these banks much more frequently in the second half of the twentieth century, due to the decrease in production around San Andrés and Providencia. Colombia asserts that, as a result of the 2012 Judgment, many traditional fishing banks of the inhabitants of the Archipelago are now located in the maritime zones under the jurisdiction of Nicaragua, while certain other fishing grounds located in Colombia's maritime areas can only be accessed by navigating through Nicaragua's exclusive economic zone.

202. In support of its third counter-claim, Colombia asserts, first, that the traditional fishing rights of the Raizales arise out of an uncontested local customary norm or practice spanning centuries, as evidenced through various historical documents and affidavits annexed to the Counter-Memorial. It describes those fishing rights as “limited . . . customary rights of access and exploitation” whose exercise does not negate the exclusive character of the sovereign rights of Nicaragua as the coastal State. Secondly, Colombia argues that, “in the immediate aftermath of the 2012 Judgment, Colombia and Nicaragua recognized, both tacitly and explicitly, that such a . . . long-established practice [of artisanal fishing] had taken the shape of a local customary norm that survived the maritime delimitation”. Thirdly, Colombia asserts that Nicaragua has, through the statements of its Head of State, accepted that the artisanal fishermen of the Archipelago have a right to fish in Nicaragua's own maritime zones without the need for bilateral fishing agreements or other mechanisms to preserve these rights and without the fishermen having to request authorization from INPESCA. Colombia argues, in the alternative, that these statements must be viewed as constituting a binding unilateral undertaking by Nicaragua to respect the traditional fishing rights of the Raizales. Finally, Colombia asserts that,

203. In this regard, Colombia refers, inter alia, to the following statements by Nicaragua's Head of State:

1. (i) a statement of 26 November 2012 in.which President Ortega allegedly stressed Nicaragua's respect for the rights of the inhabitants of the Archipelago “to fish and navigate in those waters, which they ha[d] historically navigated”, while also stating that “artisanal fishermen would require an authorization from the relevant Nicaraguan authorities”;

2. (ii) a statement of 1 December 2012 in.which President Ortega allegedly declared that “Nicaragua will respect the ancestral rights of the Raizales” and that “mechanisms for dialogue” would have to be established in order to “ensure the right of the Raizal people to fish”;

3. (iii) a statement of 21 February 2013 in.which President Ortega allegedly stated that “the Raizal community, living in San Andrés can continue fishing in the Caribbean waters now belonging to Nicaragua and that their rights as native people will not be affected” but that it was “necessary to work on an agreement between Colombia and Nicaragua to regulate this situation, because right now there is no way to know how many vessels belong to the Raizal community and which are related by industrial fishing”;

4. (iv) a statement of 18 November 2014 in.which President Ortega asserted that, while the President of Colombia was prepared to work on an agreement or treaty with Nicaragua to implement the 2012 Judgment, the Parties “agreed that it was necessary to work on reaching an Agreement where the [r]ights of the Raizal Community [would] be guaranteed”; and

5. (v) a statement by President Ortega, of 5 November 2015 which contains a reference to “engagements . . . with the Raizales Brothers regarding their [f]ishing [r]ights, which will have to be arranged later”.

204. Colombia claims that in the aftermath of the 2012 Judgment and, notwithstanding President Ortega's support of the rights of the inhabitants of the San Andrés Archipelago, Nicaragua's Naval Force has followed an active strategy of intimidation, including through threats and pillaging, thereby “preventing on a recurring basis, or at the very least, seriously discouraging the artisanal fishermen of the Archipelago from reaching their traditional banks located in the maritime zones adjudicated to appertain to Nicaragua and the Northern Banks of Quitasueño, Serrana, Serranilla and Bajo Nuevo”, as evidenced in 11 affidavits annexed to the Counter-Memorial. Colombia further asserts that the Nicaraguan industrial fishermen operating in the relevant areas are involved in “predatory practices as well as acts of piracy” and that, by the Nicaraguan Naval Force “tolerating these predatory fishing practices and criminal activities”, Nicaragua is in further violation of the customary right of the artisanal fishermen in the Archipelago to access and exploit the traditional banks.

205. Colombia considers that Nicaragua “is under an obligation to cease and desist from preventing Colombian artisanal fishermen from accessing their traditional fishing grounds, and to fully respect the traditional, historic fishing rights of the Raizales and other fishermen of the Archipelago to such grounds”. Colombia is also of the view that Nicaragua should pay compensation for damage caused, including loss of profits resulting from Nicaragua's alleged violations, and give appropriate guarantees of non-repetition.

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206. In response to Colombia's third counter-claim, Nicaragua argues that “there are absolutely no legal rights, residual or otherwise, of the Raizal population of the small islands of San Andrés, Providencia and Santa Catalina to any purported fishing in the Nicaraguan [exclusive economic zone]” and that the claimed rights are incompatible with the régime of the exclusive economic zone. In Nicaragua's view, “the text and context of the relevant provisions of UNCLOS, the preparatory works, and the jurisprudence all make clear that historic fishing rights, including artisanal fishing rights, did not survive the creation of the [exclusive economic zone] régime”. Furthermore, Nicaragua asserts that, in any event, Colombia has failed to establish that the artisanal fishermen of the San Andrés Archipelago have such rights or that Nicaragua has infringed them.

207. First, Nicaragua argues that, in accordance with the Court's jurisprudence, “the régime [of the exclusive economic zone], as codified in Part V of UNCLOS is fully applicable between the Parties as customary international law”. For Nicaragua, an examination of the text, context and preparatory work of Part V of the Convention clearly indicates that the exploitation of the living resources of the exclusive economic zone is reserved for the coastal State. The Applicant relies on the text of Article 56, paragraph 1 (a), which provides for the coastal State's “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil”. Nicaragua also notes that Article 61, paragraph 1, of the Convention gives to the coastal State the exclusive right to establish allowable catch limits in its exclusive economic zone; while Article 62, paragraph 2, empowers the same State to establish its own harvesting capacity, with the possibility, under Article 62, paragraph 3, of giving access to other States to the surplus stocks, taking into account, inter alia, “the need to minimize economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks”. Nicaragua argues that some provisions of UNCLOS concerning other maritime areas, such as Article 51 on archipelagic waters, “contain express carve-outs for traditional fishing rights or the application of other rules of international law”. Thus, according to Nicaragua, the absence of a provision in Part V of UNCLOS preserving traditional fishing rights in the exclusive economic zone indicates the intention of the drafters of the Convention to relegate these rights to a “relevant factor” in the allocation of the surplus resources.

208. Nicaragua further asserts that during the negotiation of UNCLOS at the Third United Nations Conference on the Law of the Sea, proposals concerning the protection of historic fishing practices in the exclusive economic zone were discussed and rejected and that a large number of States objected to this protection in the waters adjacent to their coasts, a fact which supports the recognition of exclusive sovereign rights and jurisdiction of the coastal State over the natural resources of the exclusive economic zone. Finally, Nicaragua argues that the jurisprudence, as evidenced by the Court's ruling in the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) (Judgment, I.C.J. Reports 1984, p. 246), also supports its argument that, under customary international law, traditional fishing rights have been extinguished by the establishment of the exclusive economic zone, and that coastal States now enjoy a “legal monopoly” over the living resources of the exclusive economic zone.

209. In the alternative, Nicaragua contends that, should the Court find that traditional fishing rights have survived the establishment of the exclusive economic zone, Colombia has, in any event, not discharged its burden of proving either that its fishermen actually had such rights or that Nicaragua has infringed them. Nicaragua argues further that Colombia's claim of traditional fishing rights is inconsistent with the latter's own prior admissions during the proceedings before the Court in the case concerning Territorial and Maritime Dispute (Nicaragua v. Colombia), where Colombia did not make any reference to the existence of ancestral fishing rights of the Raizales. Nicaragua also refers to a passage of Colombia's Counter-Memorial submitted in the above-mentioned case, where the Respondent indicated that the population of the Archipelago has relied for subsistence on the fisheries and other resources located in “Roncador, Quitasueño, Serrana, Serranilla and Bajo Nuevo”, features which are not located in the area the Court declared in its 2012 Judgment to appertain to Nicaragua's exclusive economic zone. Nicaragua also invites the Court to take into account Colombia's statement to the International Labour Organization's Committee of Experts on the Application of Conventions and Recommendations that the fishing areas used by the inhabitants of San Andrés “were not affected by the ICJ ruling, as they consisted of territorial waters awarded to Colombia”. Finally, Nicaragua argues that, through official acts, such as Colombia's DIMAR Resolution No. 0121 of 28 April 2004, Colombia itself placed tight limits on the areas where artisanal fishermen were allowed to fish, restricting their area of operation to a distance of 12 nautical miles from the islands of San Andrés and Providencia.

210. Nicaragua also submits that Colombia's own evidence, in the form of the 11 affidavits from artisanal fishermen referenced above, disproves Colombia's claim and demonstrates that fishing did not historically occur in the area the Court declared in its 2012 Judgment to constitute Nicaragua's exclusive economic zone. Nicaragua, moreover, questions the probative value of this type of evidence, arguing that the affidavits were sworn by private persons interested in the outcome of the proceedings, and prepared less than a month before the filing of Colombia's Counter-Memorial, for the purposes of litigation. Nicaragua asserts that, in any event, the affidavits prove that “historic fishing took place largely in the vicinity of Colombia's islands, and not in waters that the Court determined to be part of Nicaragua's [exclusive economic zone]”.

211. Nicaragua further asserts that none of the statements in which President Ortega expressed his openness to address Colombia's concerns about the fishing practices of the Raizales, amount to an explicit recognition or acceptance of the alleged traditional fishing rights. In Nicaragua's view, those statements, which must be understood in the particularly delicate context in which they were made, were intended to be conciliatory and to diffuse the political tension created by Colombia's rejection of the Court's 2012 Judgment. Nicaragua emphasizes that, in the statements, President Ortega expressly called for the establishment of appropriate mechanisms to accommodate the activities of the artisanal fishermen, including a bilateral agreement with Colombia. Nicaragua also makes it clear that, while it denies that the inhabitants of the San Andrés Archipelago have a

212. Nicaragua further argues that Colombia has failed to produce any contemporaneous evidence of the alleged incidents of interference by the Nicaraguan Navy. Nicaragua states that the declaration of President Santos of 18 February 2013 and the affidavits on which Colombia relies do not provide any details of the incidents of harassment or pillaging that is alleged to have occurred.

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213. The Court observes that Colombia's third counter-claim is premised on two main contentions: first, Colombia asserts that the inhabitants of the San Andrés Archipelago, in particular the Raizales, have for centuries practised traditional or artisanal fishing in locations now falling in Nicaragua's exclusive economic zone. The alleged long-standing practices amongst those communities are said to have given rise to an uncontested “local customary norm” between the Parties or to customary rights of access and exploitation that survived the establishment of Nicaragua's exclusive economic zone. Additionally, Colombia points to statements of President Ortega, the Head of State of Nicaragua, which it characterizes both as accepting or recognizing the existence of those rights and as unilateral statements that are capable of producing “legal effects” in the sense that they amounted to “granting rights to the artisanal fishermen”. The Court will examine the merits of each of those arguments before determining whether Colombia has proven Nicaragua's alleged violations.

214. As to Colombia's first main contention, the onus is on Colombia to prove that the inhabitants of the San Andrés Archipelago, in particular the Raizales, have historically practised artisanal fishing in areas that now fall within Nicaragua's exclusive economic zone, giving rise (according to Colombia) to an “uncontested local customary norm” or to “customary rights of access and exploitation” that survived the establishment of Nicaragua's exclusive economic zone.

215. The Court begins by recalling that the Parties’ relations in respect of the exclusive economic zone are governed by customary international law (see paragraph 48 above). Accordingly, in order to determine the rights and obligations of the Parties specifically in Nicaragua's exclusive economic zone, the Court will apply the relevant rules of customary international law, as reflected in the relevant provisions of Part V including Article 56 and Article 58 of UNCLOS (see paragraphs 57 and 61 above).

216. Under customary international law, as reflected in Article 56 of UNCLOS, Nicaragua, as the coastal State, enjoys sovereign rights in its exclusive economic zone including “for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the sea-bed and of the sea-bed and its subsoil”. Furthermore, customary international law as reflected in Articles 61 and 62 of UNCLOS grants to Nicaragua, as the coastal State, the right to “determine the allowable catch of the living resources in its exclusive economic zone” (Article 61, paragraph 1); to determine its capacity to harvest the living resources of the exclusive economic zone and where it does not have the capacity to harvest the entire allowable catch, give access to the surplus of the allowable catch to other States, through agreements or other arrangements, and pursuant to its terms, conditions and laws (Article 62, paragraph 2). Furthermore, customary international law requires that, in giving access to other States to its exclusive economic zone for the purpose of accessing the surplus of Nicaragua's allowable catch, Nicaragua

217. Under customary international law, as reflected in Article 58 of UNCLOS, other States, including Colombia, enjoy in Nicaragua's exclusive economic zone, high seas freedoms of navigation and overflight and other internationally lawful uses of the sea related to these freedoms which must, however, be exercised with due regard to Nicaragua's rights as the coastal State.

218. The Court now turns to the question whether Colombia has proved that the inhabitants of the San Andrés Archipelago, in particular the Raizales, have historically enjoyed “artisanal fishing rights” in areas that now fall within Nicaragua's exclusive economic zone and that those “rights” survived the establishment of Nicaragua's exclusive economic zone. Colombia relies on 11 affidavits annexed to its Counter-Memorial to prove the existence of a long-standing practice of artisanal fishing by the inhabitants of the San Andrés Archipelago, in particular the Raizales. The Court recalls that it must exercise caution in giving weight to affidavit evidence especially prepared by a party for the purposes of a case:

219. In the present case, the 11 affidavits annexed to Colombia's Counter-Memorial appear to have been sworn specifically for the purposes of this case and are signed by fishermen who may be considered as particularly interested in the outcome of these proceedings, factors that have a bearing on the weight and probative value of that evidence. The Court must nonetheless analyse the affidavits “for the utility of what is said” and to determine whether they support Colombia's contention (Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, I.C.J. Reports 2007 (II), p. 731, para. 244).

220. Having reviewed the affidavits on which Colombia relies, the Court observes that they contain indications that some fishing activities have in the past taken place in certain areas that had once been part of the high seas but now fall within Nicaragua's exclusive economic zone. However, the Court also notes that the affidavits do not establish with certainty the periods during which such activities took place, or whether there was in fact a constant practice of artisanal fishing spanning many decades or centuries, as claimed by Colombia. Some affiants refer to fishing expeditions beyond the Colombian islands being limited to “a few times a year”, while others claim to have carried out fishing in those areas since the 1980s and 1990s, a time span which the Court does not consider, in the circumstances of the present case, long enough to qualify such fishing as “a long-standing practice” or to support Colombia's claim concerning the existence of a local custom or of “a local customary right to artisanal fishing”. The Court also notes in this regard that most of the affiants speak of having conducted their activities in waters surrounding the Colombian features or in fishing grounds located within Colombia's territorial sea, rather than Nicaraguan maritime areas. The evidence also suggests that the fishing expeditions within the areas now falling within Nicaragua's exclusive economic zone increased in frequency in recent decades as a result of technological developments enabling artisanal fishermen to venture further out to sea, and as a result of the depletion of fish stocks around the Colombian islands, a fact that Colombia itself concedes in its written pleadings and oral arguments. Finally, the Court observes that certain affidavits do not address the alleged historical nature of the fishing conducted in waters now falling in Nicaragua's exclusive economic zone, so that a conclusion in that regard cannot be derived from their reading.

221. The Court is mindful that traditional fishing practices alleged to have taken place over many decades may not have been documented in any formal or official record (cf. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2009, pp. 265-266, para. 141), which calls for some flexibility in considering the probative value of the affidavits submitted by Colombia. Nonetheless, the Court is of the view that the 11 affidavits submitted by Colombia do not sufficiently establish its claim that the inhabitants of the San Andrés Archipelago, in particular the Raizales, have been engaged in a long-standing practice of artisanal fishing in “traditional fishing banks” located in waters now falling within Nicaragua's exclusive economic zone.

222. The Court also considers that the positions adopted by Colombia, inter alia, its statement before the International Labour Organization's Committee of Experts on the Application of Conventions and Recommendations, and Resolution No. 0121 of Colombia's General Maritime Directorate of 28 April 2004 (see paragraph 209 above), are inconsistent with Colombia's assertion concerning the existence of such a traditional practice of artisanal fishing in Nicaragua's exclusive economic zone. For example, on two occasions (August 2013 and February-March 2014), the Colombian General Confederation of Labour (hereinafter the “CGT”) submitted information on behalf of the Raizal Small-Scale Fishers’ Associations and Groups of the Department Archipelago of San Andrés, Providencia and Santa Catalina to the International Labour Organization's Committee of Experts on the Application of Conventions and Recommendations concerning the application by Colombia of the International Labour Organization's Indigenous and Tribal Peoples Convention of 1989. In these communications, the CGT asserted that the 2012 Judgment had negative implications for traditional fishing, as “Raizal fishers have no longer been able to fish with the tranquillity that they did ancestrally” and that “[they] have to cross Nicaraguan maritime territory, which is reported to give rise to difficulties and the payment of fines”. The Committee summarized the responses sent by the Government of Colombia refuting the submissions of the CGT as follows:

223. Colombia responds to the above observation by claiming that the Colombian Ministry of Labour “cavalierly concluded . . . that the artisanal fishermen of the San Andrés Archipelago could not have been impacted by the 2012 line” while “fail[ing] to provide even a shred of evidence to support its assertion that the traditional fishing sites were precisely located in the vicinity of areas not affected by the decision”. It further points to the plan established by the Colombian Government to alleviate the adverse effects of the 2012 Judgment on the artisanal fishermen and considers that the communications from the fishermen prove its claim in the present proceedings. However, the Court has previously held that “statements emanating from high-ranking official[s] . . . are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 206, para. 78. See also Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41, para. 64). The Court has further observed in the past that

The Court must consider therefore that the statements noted above, emanating from the Head of the Office of Co-operation and International Relations of Colombia's Ministry of Labour, further undermine Colombia's assertion of the existence of such a traditional practice of artisanal fishing in Nicaragua's exclusive economic zone.

224. The Court also takes note of a report issued by the Comptroller General's Office of the Department Archipelago of San Andrés, Providencia and Santa Catalina. In his 2013 Report on the “Status of Natural Resources and the Environment”, the Comptroller of the Archipelago presented the new maritime boundary determined by the Court and the effects of the 2012 Judgment, asserting that the ruling of the Court translated into a substantial reduction of the marine territory of the Archipelago. With regard to the impact of the 2012 Judgment on fisheries, the Comptroller's report alludes to the reduction of fisheries activities, and links it to the concerns expressed by fishermen over “conflicts arising from [the ruling of the Court]”. However, the Court observes that, in presenting “a detailed description of each impact on fisheries [of the 2012 Judgment]”, the report only refers to the effects of the 2012 Judgment on industrial fishing without any specific mention of detrimental impacts in respect of artisanal fishermen. In addition, the report lists the “Traditional Fishing Location[s]” as follows:

The report also seems to confirm that the artisanal fishermen usually remained close to the Colombian islands and found themselves in Nicaragua's exclusive economic zone only infrequently, a fact supported by the aforesaid affidavits. In view of the foregoing, the Court concludes that previous positions adopted by or on behalf of Colombia further undermine Colombia's assertion concerning the existence of a traditional practice of artisanal fishing in Nicaragua's exclusive economic zone.

225. The Court turns to several statements of Nicaragua's Head of State, which, according to Colombia, either illustrate Nicaragua's acceptance or recognition that the artisanal fishermen of the Archipelago have the right to fish in Nicaragua's maritime zones without having to request prior authorization or alternatively create a legal obligation on the part of Nicaragua to respect those fishing rights.

226. First, the Court observes that, in certain statements, President Ortega refers to the need to “respect the ancestral rights of the Raizales over those waters now fully belonging to [his] country” or to “respect the historical rights of the Raizal people . . . over the region”. In other instances, the President affirms that “the [R]aizal community, living in San Andrés can continue fishing in the Caribbean waters now belonging to Nicaragua and that their rights as native people will not be affected”.

227. Bearing in mind these observations, the Court begins by considering whether a recognition by Nicaragua of the alleged artisanal fishing rights may be inferred from the above statements. In this context, the Court will examine carefully the words used in those statements in order to ascertain whether such a recognition emerges therefrom. The Court observes that, in several of President Ortega's statements, reference is made to the need for the Raizal community or the inhabitants of the Archipelago to obtain fishing permits or authorizations from Nicaragua to carry on artisanal or industrial fishing. In addition, President Ortega made references to mechanisms that needed to be established between Nicaragua and Colombia before the artisanal fishermen could operate in waters falling in Nicaragua's exclusive economic zone by virtue of the 2012 Judgment. In this regard, President Ortega proposed, inter alia, the creation of a commission “to work [to delimit] where the Raizal people can fish in [the] exercise of their historic rights”; the elaboration of “an agreement between Colombia and Nicaragua to regulate [the] situation”; or the establishment of “a Nicaraguan consular section” on the San Andrés island “to solve the issue of the fishing permits for the [R]aizal community”. In the Court's view, the statements by President Ortega do not establish that Nicaragua has recognized that the inhabitants of the San Andrés Archipelago, in particular the Raizales, have the right to fish in Nicaragua's maritime zones without having to request prior authorization. It follows that the Court cannot uphold Colombia's contention that Nicaragua, through the statements of its Head of State, accepted or recognized the rights of the Raizales to fish in Nicaragua's exclusive economic zone without requiring authorization from Nicaragua.

228. The Court will now consider whether the statements of President Ortega constitute a legal undertaking “granting rights to the artisanal fishermen”. In determining whether a unilateral declaration by a State official entails the creation of legal obligations, the Court has stated:

229. The Court has also emphasized the need to consider the factual circumstances in which the unilateral statement was made and the need to consider carefully whether the State issuing the declaration intended to be bound by it (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment. I.C.J. Reports 1986, p. 43, para. 71; Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 573, para. 39; Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment, I.C.J. Reports 2018 (II), p. 555, para. 146). In this regard, the Court is mindful that certain declarations may express a State's willingness to adopt a particular course of conduct, without being expressed in terms of undertaking a legal obligation (Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Judgment, I.C.J. Reports 2018 (II), p. 555, para. 147). The Court has also held that “[w]hen States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for” (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 267, para. 44; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 473, para. 47). It also falls to the Court to “form its own view of the meaning and scope intended by the author of a unilateral declaration which may create a legal obligation” (Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 573, para. 39, citing Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 269, para. 48; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 474, para. 50).

230. In the Court's view, the statements of Nicaragua's Head of State indicate that the Nicaraguan authorities were aware of the issues that arose in respect of the fishing activities of the inhabitants of the Archipelago and the challenges that Colombia faced in implementing the 2012 Judgment. In that regard, it appears that Nicaragua expressed an openness to concluding an agreement with Colombia regarding appropriate mechanisms and solutions to overcome those challenges. The Court notes that, in some statements adduced by the Respondent, the Nicaraguan Head of State expressed concerns regarding the rejection by Colombia of the delimitation effected by the Court and affirmed the need to work with Colombia on reaching an agreement to ensure compliance with the 2012 Judgment. President Ortega further alluded to the need to understand the inner workings of domestic politics and to give due time to Colombia to bring its national legislation into compliance with the Court's Judgment. The Court further observes that both Parties agree that the statements were made in the context of political protests in the aftermath of the 2012 Judgment and against the backdrop of the ongoing negotiations with Colombia with the view of achieving an agreement on the implementation of the 2012 Judgment. Bearing in mind the above context and adopting a restrictive interpretation (Nuclear Tests (Australia v. France), I.C.J. Reports 1974, p. 267, para. 44; Nuclear Tests (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 473, para. 47), the Court cannot accept Colombia's alternative argument that the statements of President Ortega, referred to above, constitute a legal undertaking on the part of Nicaragua to respect the rights of the artisanal fishermen of the San Andrés Archipelago to fish in Nicaragua's maritime zones without requiring prior authorization from Nicaragua.

231. For these reasons, the Court concludes that Colombia has failed to establish that the inhabitants of the San Andrés Archipelago, in particular the Raizales, enjoy artisanal fishing rights in waters now located in Nicaragua's exclusive economic zone, or that Nicaragua has, through the unilateral statements of its Head of State, accepted or recognized their traditional fishing rights, or legally undertaken to respect them. In view of this conclusion, the Court need not examine the Parties’ arguments in respect of whether or in which circumstances the traditional fishing rights of a particular community can survive the establishment of the exclusive economic zone of another State, or Colombia's contentions concerning Nicaragua's alleged infringement of said rights through the conduct of its Naval Force. In light of all the above considerations, the Court dismisses Colombia's third counter-claim.

232. Notwithstanding the above conclusion, the Court takes note of Nicaragua's willingness, as expressed through statements of its Head of State, to negotiate with Colombia an agreement regarding access by members of the Raizales community to fisheries located within Nicaragua's exclusive economic zone. The Court considers that the most appropriate solution to address the concerns expressed by Colombia and its nationals in respect of access to fisheries located within Nicaragua's exclusive economic zone would be the negotiation of a bilateral agreement between the Parties.

233. The Court also emphasizes that, under customary international law applicable to the exclusive economic zone, as reflected in Article 58 of UNCLOS, third States possess freedom of navigation in this area. It follows that the inhabitants of the Archipelago, including the Raizales, may freely navigate within Nicaragua's exclusive economic zone, including in the course of their travel between the inhabited islands and the fishing areas located on Colombia's side of the maritime boundary.

B. Alleged violation of Colombia's sovereign rights and maritime spaces by Nicaragua's use of straight baselines

234. The Court now turns to Colombia's fourth counter-claim. On 27 August 2013, Nicaragua enacted Decree 33 through which it established a system of straight baselines along its Caribbean coast, from which the breadth of its territorial sea is measured. In the preamble to the Decree, Nicaragua purports to have acted in accordance with the provisions of UNCLOS in establishing those baselines. The Decree identifies nine base points — two are located on the low-water line along Nicaragua's mainland coast and the remaining seven are located on the low-water line along islands seaward of Nicaragua's mainland coast — and eight straight baseline segments. (In the 2018 amendment to Decree 33, Nicaragua made a small adjustment to the location of base point 9, located on its southern coast, to take into account the Court's Judgment of 2 February 2018 in.the cases concerning Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua), a change that neither Party considers material to the present case.)

235. In its fourth counter-claim, Colombia raises three objections to Nicaragua's use of straight baselines. First, the Respondent argues that Nicaragua has not met the necessary geographical preconditions required under Article 7 of UNCLOS, which reflects the customary international law on the use of straight baselines, in that there is no “fringe of islands along the Nicaraguan coast in its immediate vicinity”, and the coastline is not “deeply indented and cut into”. Colombia also advocates for a strictly frontal projection in determining the extent to which the coast is masked or guarded by the islands and finds that the concerned features “mask no more than 5 to 6 percent of the coast”. Secondly, Colombia argues that even if those geographical preconditions were met, the manner in which Nicaragua drew those baselines contravenes the provisions of Article 7, paragraph 3, since the baselines depart significantly from the general direction of Nicaragua's coast and enclose sea areas that are not sufficiently closely linked to the land domain to be subject to the régime of internal waters. Thirdly, Colombia argues that by employing straight baselines, Nicaragua is attempting to misappropriate significant maritime areas as its internal waters and is artificially expanding its territorial sea, exclusive economic zone and continental shelf, in a manner that not only infringes upon Colombia's rights and maritime spaces, but also limits the rights of third States in the Caribbean Sea. Colombia accordingly maintains that Nicaragua's straight baselines established in Decree 33, as amended, are contrary to international law and violate Colombia's rights and maritime spaces.

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236. For its part, Nicaragua asserts that its straight baselines were drawn in accordance with customary international law and the relevant provisions of UNCLOS, and that the Applicant is therefore entitled to determine the status of the waters landward and seaward of those baselines in accordance with international law. Nicaragua also disagrees with Colombia's contention that Decree 33 produces an artificial overlap of Nicaragua's exclusive economic zone with Colombia's entitlement to its own exclusive economic zone and continental shelf. According to Nicaragua, the outer limit of its exclusive economic zone is unaltered by the use of straight baselines, because the outer limit of that zone is controlled by basepoints on the low-water line along its coast that are seaward of the straight baselines.

237. Nicaragua maintains that the geographical configuration of its coast permits the use of straight baselines, in that the coastline is deeply indented and cut into and there is a fringe of islands along the coast in its immediate vicinity, as required by Article 7, paragraph 1, of UNCLOS. Nicaragua further argues that the Court's 2012 Judgment in two instances refers respectively to the “Nicaraguan fringing islands” and the “islands fringing the Nicaraguan coast”. Moreover, base points on Nicaragua's fringing islands were used in the construction of a provisional median line. In its view, these islands form a fringe in the immediate vicinity of the coast of Nicaragua. It also disputes Colombia's assertion that the islands do not form a unity with the mainland given the distance between the main features — the Miskitos Cays and the Corn Islands — and the Nicaraguan coast. Nicaragua observes in this respect that Colombia's claim does not take account of the fact that these main features are located in an area in which there are numerous other islands. Nicaragua argues that the Court should be informed by its own approach to determining the seaward projection of relevant coasts in connection with the delimitation of maritime boundaries. In light of the Court's jurisprudence, Nicaragua submits, it would be reasonable to look at a projection of all relevant islands and features between a perpendicular to the general direction of the mainland coast and an angle of 20 degrees to that perpendicular, an approach which allegedly yields a masking effect of 46 per cent.

238. Nicaragua further contends that the course of its baselines does “not depart to any appreciable extent from the general direction of the coast”, in accordance with Article 7, paragraph 3, of the Convention. It considers that, as indicated by the Court, in applying the principle of the general direction of the coast, the focus should be on the overall direction of the coast under consideration, not that of specific localities. Second, it asserts that “the sea areas lying within the lines [are] sufficiently closely linked to the land domain to be subject to the régime of internal waters”, in accordance with the same provision.

239. Finally, Nicaragua argues that Colombia's rights have not been infringed by Nicaragua's straight baselines. It states that its straight baselines are in conformity with Article 7 of the Convention and, as a consequence, Nicaragua is entitled to apply the régime for internal waters, as defined by the Convention and customary international law, landward of these straight baselines. It adds that the outer limit of Nicaragua's exclusive economic zone has not shifted seaward following the establishment of its straight baselines through Decree 33, since the outer limit of Nicaragua's exclusive economic zone is determined from base points located on the low-water line along Nee Reef and London Reef (low-tide elevations that are located within 12 nautical miles of the Miskitos Cays), Blowing Rock and Little Corn Island, all of which are seaward of those straight baselines.

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240. The Court recalls that when it delimited the maritime boundary between the Parties in the 2012 Judgment, the location of Nicaragua's baselines was unsettled, given that “Nicaragua ha[d] not yet notified the Secretary-General [of the United Nations] of the location of those baselines under Article 16, paragraph 2, of UNCLOS”. Accordingly, the location of the eastern endpoints of the maritime boundary was determined only on an approximate basis (Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 683, para. 159, and p. 713, para. 237).

241. The Parties agree on the principles governing the determination of appropriate baselines. They consider that Article 5 of UNCLOS sets out the criteria that govern the establishment of normal baselines, namely “the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State”. The Parties also agree that customary international law permits a deviation from normal baselines where “the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity”. They accept that Article 7 of UNCLOS reflects customary international law on the drawing of straight baselines.

242. The Court recalls that in its Judgment in the Fisheries case, it recognized the employment of straight baselines as the “application of general international law to a specific case” given the geographic characteristics of Norway's coast (Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 131). In assessing the validity of Norway's baselines under international law, the Court indeed identified certain criteria which were codified in Article 4 of the 1958 Convention. This provision corresponds, almost verbatim, to Article 7 of UNCLOS on “Straight baselines”, paragraphs 1, 3 and 4 of which provide that:

The Court considers that Article 7 of UNCLOS reflects customary international law.

243. The Court recalls that it is for the coastal State to determine its baselines for the purposes of measuring the breadth of its maritime zones, in conformity with international law. However, as the Court has stated in the past, the determination of baselines is “an exercise which has always an international aspect” and falls to be assessed by reference to international rules (Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p. 108, para. 137; see also Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 132). Moreover, the Court would recall, in relation to the use of straight baselines and the applicable rules, that

244. Customary international law as reflected in Article 7, paragraph 1, of UNCLOS provides for two geographical preconditions for the establishment of straight baselines. The preconditions are alternative and not cumulative. With respect to the straight baselines drawn from Cabo Gracias a Dios on the mainland to Great Corn Island along the coast (points 1-8), Nicaragua asserts that there is “a fringe of islands along the coast in its immediate vicinity” that entitles it to use straight rather than normal baselines. As to the southernmost part of its mainland coast, Nicaragua claims instead that the indentation of the coast from Monkey Point to the land boundary terminus with Costa Rica justifies Nicaragua's straight baselines drawn from point 8 (Great Corn Island) to point 9 (Barra Indio Maíz).

245. The Court notes that there appears to be no single test for identifying a coastline that is “deeply indented and cut into”. Since Nicaragua concedes that it is only the southernmost portion of its Caribbean coast between Monkey Point and Barra Indio Maíz that falls to be considered under the second geographic option, the Court must determine whether the straight baseline segment between base points 8 and 9 defined by Decree 33, as amended, is justified on the basis that the corresponding coast is “deeply indented and cut into”. An examination of the relevant maps reveals that Nicaragua's southernmost coast does, in fact, curve inward. Under the conditions reflected in Article 7, paragraph 1, of UNCLOS, however, it is not sufficient for the coast to have slight indentations and concavities; the coast must be “deeply indented and cut into”. From the Isla del Venado (facing the bay of Bluefields) to Monkey Point, Nicaragua's mainland coast has a smooth configuration. A broad concavity is observable from Punta Grindston Bay to Isla Portillos, at the land boundary terminus with Costa Rica. The indentations along the relevant portion of Nicaragua's coast do not penetrate sufficiently inland or present characteristics sufficient for the Court to consider the said portion as “deeply indented and cut into”. The relevant portion is not “of a very distinctive configuration”, nor “broken along its whole length” or “constantly open[ing] out into indentations often penetrating for great distances inland” (Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 127). Thus, recalling that the straight baselines method “must be applied restrictively”, the Court finds that the straight baseline segment between base points 8 and 9 defined by Decree 33, as amended, does not conform with customary international law on the drawing of straight baselines as reflected in Article 7, paragraph 1, of UNCLOS.

246. The Court now turns to the remainder of Nicaragua's straight baselines running from point 1 to point 8, where some base points are located on features such as Edinburgh Cay, the Miskitos Cays, Ned Thomas Cay, the Man of War Cays and the Corn Islands. It recalls that base points used to construct straight baselines may be placed on islands, but may not be placed on features that are below water at high tide (low-tide elevations) except in certain situations which are not present in this case. Article 121, paragraph 1, of UNCLOS, defines an “island” as “a naturally formed area of land, surrounded by water, which is above water at high tide”. In the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, the Court viewed the legal definition of an island embodied in Article 121, paragraph 1, as part of customary international law (Maritime Delimitation and Territorial Questions between Qatar and Bahrain, (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 91, para. 167, and p. 99, para. 195) and it reaffirmed the same in its 2012 Judgment (Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 674, para. 139).

247. In this regard, the Court notes that the Parties are divided on the question whether Nicaragua's offshore islands constitute a “fringe of islands along the coast in its immediate vicinity” within the meaning of Article 7, paragraph 1, of UNCLOS. First, the Parties disagree as to whether certain features are islands and whether there is a sufficient number of islands for drawing straight baselines. They also disagree on whether the islands in question “form a unity with the mainland” or have a “masking effect” on Nicaragua's coastline. Lastly, the Parties disagree about the size of the islands and whether their distance from each other and from the mainland justifies the drawing of straight baselines.

248. The Court must begin by ascertaining whether Nicaragua has demonstrated the presence of “islands” and, if so, whether those islands amount to “a fringe . . . along the coast in its immediate vicinity” as required by customary international law. Nicaragua asserts that there are 95 “islands” along its coast and provides a list of these as an annex to its written pleadings. Colombia adopts the view that Nicaragua has failed to prove the existence of the “islands”, noting that Nicaragua does not adduce evidence concerning the insular nature or characteristics of these features. Colombia further considers that the feature called Edinburgh Cay, on which Nicaragua has placed a base point, is not an “island” for the purposes of Article 7, paragraph 1, and is shown as a simple “low-tide elevation” on Nautical Chart 28130.

249. As noted by the Parties, the 2012 Judgment contains references to “islands fringing the Nicaraguan coast” and to “the Nicaraguan mainland and fringing islands”. While the Parties reach different conclusions on the legal significance of such references by the Court, they agree that the Court did not qualify the said islands as “a fringe of islands” within the meaning of Article 7, paragraph 1, of UNCLOS, nor that the Court was dealing with Nicaragua's claim to straight baselines. Furthermore, the Court clearly indicated that Nicaragua was yet to notify its baselines from which the breadth of its territorial sea would be measured, in accordance with Article 16, paragraph 2, of UNCLOS (Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 683, para. 159). Notwithstanding these clarifications, the Court is satisfied, in general terms, on the basis of the above references and noting its findings in its 2012 Judgment according to which “[t]here are a number of Nicaraguan islands located off the mainland coast of Nicaragua” (ibid., p. 638, para. 21), that some of the 95 features listed by Nicaragua are islands, as opposed to low-tide elevations. The Court must emphasize, nonetheless, that it does not automatically follow that all the features listed by Nicaragua are “islands” or that they constitute “a fringe” within the meaning of Article 7, paragraph 1, of UNCLOS. It remains for Nicaragua to prove that there is indeed “a fringe of islands along the coast in its immediate vicinity” within the meaning of that provision.

250. The Parties are divided concerning the insular nature of “Edinburgh Cay” and about whether this feature may be considered an island for the purpose of drawing straight baselines under Article 7 of UNCLOS. The Court notes that, in plotting a provisional equidistance line, the 2012 Judgment refers to “Edinburgh Reef” as part of the islands located off the coast of Nicaragua (Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II), p. 638, para. 21) and that the Court placed a base point on this feature for the construction of the provisional equidistance line (ibid., pp. 698-700, paras. 201 and 204). However, the Court did not at that time consider the appropriateness of this feature for the purpose of drawing straight baselines, nor did the Court qualify it as an “island” within the meaning of Article 7, paragraph 1, of UNCLOS. The Court has underlined in the past that

251. The Court notes the contradictory data put forward by the Applicant concerning the nature of Edinburgh Cay. Nautical Chart NGA 28130, annexed to the Applicant's written pleadings, indicates that Edinburgh Cay, based on charted data, is not an island. Nicaragua explains that a different chart (British Admiralty Chart 1218), which was part of Nicaragua's pleadings in the case concerning Territorial and Maritime Dispute, shows the presence of “several islands on Edinburgh Cay or Reef”. In these circumstances, the Court considers that there are serious reasons to question the nature of Edinburgh Cay as an island for the purpose of Article 7, paragraph 1, of UNCLOS. Thus, significant questions arise as to its appropriateness as the location for a base point for the drawing of straight baselines under the same provision. The Court adopts the view that Nicaragua has not demonstrated the insular nature of this feature.

252. In respect of the existence of a fringe of islands, the Court notes that there are no specific rules regarding the minimum number of islands, although the phrase “fringe of islands” implies that there should not be too small a number of such islands relative to the length of the coast (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 103, para. 214). Given the uncertainty about which of the 95 features are islands, the Court is not satisfied, on the basis of the maps and figures submitted by the Parties, that the number of Nicaragua's islands relative to the length of the coast is sufficient to constitute “a fringe of islands” along Nicaragua's coast.

253. The maritime features shown on the maps may be divided into two groups on the basis of their geographic proximity: one group, located off the northernmost part of Nicaragua's mainland coast, extends from Edinburgh Cay to Ned Thomas Cay, including the Miskitos Cays; the second group, located off the central part of Nicaragua's mainland coast, extends from Man of War Cays to the Corn Islands, including the Tyra Cays and Pearl Point (Punta de Perlas).

254. The Parties have alluded in their pleadings to several factors they consider as relevant to determine whether a given group of islands amounts to “a fringe”. The Court has equated in the past the term “fringe of islands” to a “cluster of islands” or an “island system” (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 103, para. 214). The arbitral tribunal in the proceedings between Eritrea and Yemen referred to “[a] tightly knit group of islands and islets, or ‘carpet’ of islands and islets” or to “an intricate system of islands, islets and reefs which guard this part of the coast” (Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Award, 17 December 1999, Reports of International Arbitral Awards (RIAA), Vol. XXII, p. 369, para. 151). Also, it emerges from these considerations that a certain continuity must be observed in respect of the islands in question for them to form a “fringe of islands” within the meaning of Article 7, paragraph 1, of UNCLOS. This conclusion is reinforced by the ordinary meaning of the words “fringe of islands” in other authentic languages of UNCLOS, such as in French, which refers to “un chapelet d’îles”, a term which implies a certain succession or continuity. In the Court's view, a “fringe” must enclose a set, or a cluster of islands which present an interconnected system with some consistency or continuity. In certain instances, a fringe of islands “guard[ing] [a] part of the coast” may have a masking effect on a large proportion of the coast from the sea, a criterion which has been used and discussed by the Parties in the present proceedings to demonstrate or refute the existence of a fringe of islands along the Nicaraguan coastline (Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Award, 17 December 1999, RIAA, Vol. XXII (2001), p. 369, para. 151).

255. In determining whether the features identified by the Applicant can be considered a “fringe of islands”, the Court observes that customary international law, as reflected in Article 7, paragraph 1, of UNCLOS, requires this fringe to be located “along the coast” and in its “immediate vicinity”. Read together with the additional requirements of Article 7, paragraph 3, according to which the drawing of straight baselines “must not depart to any appreciable extent from the general direction of the coast” and “the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the régime of internal waters”, the specific requirements of Article 7, paragraph 1, indicate that a “fringe of islands” must be sufficiently close to the mainland so as to warrant its consideration as the outer edge or extremity of that coast (Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 128). It is not sufficient that the concerned maritime features be part, in general terms, of the overall geographical configuration of the State. They need to be an integral part of its coastal configuration (Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 103, para. 214; Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Award, 17 December 1999, RIAA, Vol. XXII (2001), p. 338, para. 14).

256. Bearing in mind these considerations, the Court is of the opinion that the Nicaraguan “islands” are not sufficiently close to each other to form a coherent “cluster” or a “chapelet” along the coast and are not sufficiently linked to the land domain to be considered as the outer edge of the coast. Nicaragua asserts that “there are numerous small cays between the mainland and the Corn Islands and that as a consequence the territorial seas of the two merge and overlap” in order to illustrate the relationship between the “islands” and the mainland. However, the Court notes that Nicaragua's straight baselines enclose large maritime areas where no maritime feature entitled to a territorial sea has been shown to exist. These areas are between Ned Thomas Cay and the Man of War Cays, between East of Great Tyra Cay and the Corn Islands, and from Corn Islands to the land boundary terminus with Costa Rica. The Court further notes that the features and islands located towards the south of Nicaragua's mainland coast ⎯ the Man of War and East of Great Tyra Cay and the Little Corn and Great Corn Islands — appear to be significantly detached from the islands grouped in the north. Furthermore, a notable break in continuity of over 75 nautical miles can be observed between Ned Thomas Cay, on which Nicaragua has plotted base point 4, and Man of War Cays where base point 5 is located. Nicaragua concedes that the groups of islands along its coast are “separate”.

257. Furthermore, the Court is not convinced that Nicaragua's islands “guard . . . part of the coast” in such a way that they have a masking effect on a large portion of the mainland coast (Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Award, 17 December 1999, RIAA, Vol. XXII (2001), p. 369, para. 151). The segments of Nicaragua's mainland coast facing the areas lying between Ned Thomas Cay and the Man of War Cays and south of the Corn Islands do not seem to be masked by islands. The Court notes that the Parties disagree about the approach to be adopted to assess the extent of the masking effect of the islands and propose different methods by way of different projections. Without adopting a view concerning the relevance of the projections suggested by the Parties in assessing the masking effect of islands for the purpose of Article 7, paragraph 1, of UNCLOS, the Court considers that, even if it were to accept Nicaragua's approach, the masking effect of the maritime features that the Applicant identifies as “islands” is not significant enough for them to be considered as masking a large proportion of the coast from the sea.

258. In light of the above findings, the Court cannot accept Nicaragua's contention that there exists a continuous fringe or an “intricate system of islands, islets and reefs which guard this part of the coast” of Nicaragua (Second stage of the proceedings between Eritrea and Yemen (Maritime Delimitation), Award, 17 December 1999, RIAA, Vol. XXII (2001), p. 369, para. 151). It follows that Nicaragua's straight baselines do not meet the requirements of customary international law reflected in Article 7, paragraph 1, of UNCLOS. Having reached this conclusion, the Court need not consider whether the Applicant's straight baselines meet the additional requirements reflected in Article 7, paragraph 3, of UNCLOS.

259. Nicaragua's own evidence establishes that the straight baselines convert into internal waters certain areas which otherwise would have been part of Nicaragua's territorial sea or exclusive economic zone and convert into territorial sea certain areas which would have been part of Nicaragua's exclusive economic zone. The establishment of Nicaragua's straight baselines limits the rights that Colombian vessels would have had in those areas. The availability of the right of innocent passage in areas landward of straight baselines, consistent with Article 8, paragraph 2, of UNCLOS, does not fully address the implications for Colombia of Nicaragua's straight baselines. The Court notes in particular that by converting certain areas of its exclusive economic zone into internal waters or into territorial sea, Nicaragua's straight baselines deny to Colombia the rights to which it is entitled in the exclusive economic zone, including the freedoms of navigation and overflight and of the laying of submarine cables and pipelines, as provided under customary international law as reflected in Article 58, paragraph 1, of UNCLOS.

260. For the reasons set out above, the Court concludes that the straight baselines established by Decree 33, as amended, do not conform with customary international law. The Court considers that a declaratory judgment to that effect is an appropriate remedy.

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261. For these reasons,

THE COURT,

(1) By ten votes to five,

Finds that its jurisdiction, based on Article XXXI of the Pact of Bogotá, to adjudicate upon the dispute regarding the alleged violations by the Republic of Colombia of the Republic of Nicaragua's rights in the maritime zones which the Court declared in its 2012 Judgment to appertain to the Republic of Nicaragua, covers the claims based on those events referred to by the Republic of Nicaragua that occurred after 27 November 2013, the date on which the Pact of Bogotá ceased to be in force for the Republic of Colombia;

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa; Judge ad hoc Daudet;

AGAINST: Judges Abraham, Bennouna, Yusuf, Nolte; Judge ad hoc McRae;

(2) By ten votes to five,

Finds that, by interfering with fishing and marine scientific research activities of Nicaraguan-flagged or Nicaraguan-licensed vessels and with the operations of Nicaraguan naval vessels in the Republic of Nicaragua's exclusive economic zone and by purporting to enforce conservation measures in that zone, the Republic of Colombia has violated the Republic of Nicaragua's sovereign rights and jurisdiction in this maritime zone;

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa; Judge ad hoc Daudet;

AGAINST: Judges Abraham, Bennouna, Yusuf, Nolte; Judge ad hoc McRae;

(3) By nine votes to six,

Finds that, by authorizing fishing activities in the Republic of Nicaragua's exclusive economic zone, the Republic of Colombia has violated the Republic of Nicaragua's sovereign rights and jurisdiction in this maritime zone;

IN FAVOUR: President Donoghue; Judges Tomka, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa; Judge ad hoc Daudet;

AGAINST: Vice-President Gevorgian; Judges Abraham, Bennouna, Yusuf, Nolte;

Judge ad hoc McRae;

(4) By nine votes to six,

Finds that the Republic of Colombia must immediately cease the conduct referred to in points (2) and (3) above;

IN FAVOUR: President Donoghue; Judges Tomka, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa; Judge ad hoc Daudet;

AGAINST: Vice-President Gevorgian; Judges Abraham, Bennouna, Yusuf, Nolte;

Judge ad hoc McRae;

(5) By thirteen votes to two,

Finds that the “integral contiguous zone” established by the Republic of Colombia by Presidential Decree 1946 of 9 September 2013, as amended by Decree 1119 of 17 June 2014, is not in conformity with customary international law, as set out in paragraphs 170 to 187 above;

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Bennouna, Yusuf, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte; Judge ad hoc Daudet;

AGAINST: Judge Abraham; Judge ad hoc McRae;

(6) By twelve votes to three,

Finds that the Republic of Colombia must, by means of its own choosing, bring into conformity with customary international law the provisions of Presidential Decree 1946 of 9 September 2013, as amended by Decree 1119 of 17 June 2014, in so far as they relate to maritime areas declared by the Court in its 2012 Judgment to appertain to the Republic of Nicaragua;

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Bennouna, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte; Judge ad hoc Daudet;

AGAINST: Judges Abraham, Yusuf; Judge ad hoc McRae;

(7) By twelve votes to three,

Finds that the Republic of Nicaragua's straight baselines established by Decree No. 33-2013 of 19 August 2013, as amended by Decree No. 17-2018 of 10 October 2018, are not in conformity with customary international law;

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Yusuf, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte; Judge ad hoc Daudet;

AGAINST: Judges Bennouna, Xue; Judge ad hoc McRae;

(8) By fourteen votes to one,

Rejects all other submissions made by the Parties.

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Sebutinde, Bhandari, Robinson, Salam, Iwasawa, Nolte; Judge ad hoc Daudet;

AGAINST: Judge ad hoc McRae.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this twenty-first day of April, two thousand and twenty-two, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Republic of Nicaragua and the Government of the Republic of Colombia, respectively.

(Signed)  Joan E. DONOGHUE,

President.

(Signed)  Philippe Gautier,

Registrar.

Vice-President GEVORGIAN appends a declaration to the Judgment of the Court; Judge TOMKA appends a separate opinion to the Judgment of the Court; Judge ABRAHAM appends a dissenting opinion to the Judgment of the Court; Judge BENNOUNA appends a declaration to the Judgment of the Court; Judge YUSUF appends a separate opinion to the Judgment of the Court; Judge XUE appends a declaration to the Judgment of the Court; Judge ROBINSON appends a separate opinion to the Judgment of the Court; Judge IWASAWA appends a declaration to the Judgment of the Court; Judge NOLTE appends a dissenting opinion to the Judgment of the Court; Judge ad hoc MCRAE appends a dissenting opinion to the Judgment of the Court.

(Initialled)  J.E.D.

(Initialled)  Ph.G.