* This text was reproduced and reformatted from the text available at the International Court of Justice Web site (visited March 4, 2013) http://www.icj-cij.org/docket/files/124/17164.pdf.

1 Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment (Nov. 19, 2012), available at http://www.icj-cij.org/docket/files/124/17164.pdf [hereinafter Fourth Judgment].

2 See Territorial and Maritime Dispute (Nicar. v. Colom.), 2007 I.C.J. 832, 875-76, ¶ 142 (Dec. 13), 47 I.L.M. 1 (2008) [hereinafter First Judgment] (defining the scope of the ICJ’s jurisdiction in this case under the American Treaty on Pacific Settlement (Bogotá Pact), Apr. 30, 1948, 30 U.N.T.S. 84). The Bogotá Pact has been invoked as the basis for the ICJ’s jurisdiction in numerous recent disputes between Latin American states. See, e.g., Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), Application Instituting Proceedings, ¶ 3 (Dec. 21, 2011), available at http://www.icjcij.org/docket/files/152/16917.pdf; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.), Application Instituting Proceedings, ¶ 3 (Nov. 18, 2010), available at http://www.icj-cij.org/docket/files/150/16279.pdf; Certain Questions Concerning Diplomatic Relations (Hond. v. Braz.), Application Instituting Proceedings, ¶ 13 (Oct. 28, 2009), available at http://www.icj-cij.org/docket/files/147/15935.pdf; Maritime Dispute (Peru v. Chile), Application Instituting Proceedings, ¶ 5 (Jan. 16, 2008), available at http://www.icj-cij.org/docket/files/137/14385.pdf; Territorial and Maritime Dispute (Nicar. v. Hond.) 2007 I.C.J. 659, 664, ¶ 1 (Oct. 8).

3 See Fourth Judgment, supra note 1, at ¶¶ 22-24. The ICJ’s decision also involved the maritime entitlements generated by various Nicaraguan islands, such as the Miskitos Cays and the Corn Islands, territorial title to which was not claimed by Colombia. See id. at ¶ 21.

4 In addition to the 2007 judgment rendered as to Colombia’s preliminary objections and the 2012 judgment on the merits, the ICJ also rendered two judgments addressing applications by Honduras and Costa Rica to intervene in the proceedings. See Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment (May 4, 2011), available at http://www.icj-cij.org/docket/files/124/16500.pdf [hereinafter Second Judgment] (addressing Honduras’ application to intervene); Territorial and Maritime Dispute (Nicar. v. Colom.), Judgment (May 4, 2011), available at http://www.icj-cij.org/docket/files/124/16482.pdf [hereinafter Third Judgment] (addressing Costa Rica’s application to intervene).

5 As expressions of convenience, the continental shelf beyond 200 nautical miles from the coast is frequently described as the ‘‘outer’’ or ‘‘extended’’ continental shelf, and the continental shelf within 200 nautical miles is often described as the ‘‘inner’’ continental shelf. These terms have no special legal consequence, however, for a claimant’s legal rights in these maritime areas or for boundary delimitation methodology. See Barbados v. Republic of Trinidad & Tobago, 45 I.L.M. 800, 835, ¶ 213 (2006) (‘‘[T]here is in law only a single ‘continental shelf’ rather than an inner continental shelf and a separate extended or outer continental shelf.’’).

6 Fourth Judgment, supra note 1, at ¶¶ 119-21, 125-30.

7 See Letter GACIJ No. 79357 from Maria Angela Holguin Cuellar, Minister of Foreign Affairs of Colombia, to the Hon. José Miguel Insulza, Secretary General of the Organization of the American States (Nov. 27, 2012), available at http://www.oas.org/dil/Notification_Colombia_Pact_Bogota_ 1-27-12.pdf. While the judgment does not record any intention expressed by the parties to pursue further proceedings, the ICJ carefully delimited the boundary so as to avoid ‘‘cutting off’’ the parties’ coastal projections from potential entitlements to the east of Colombia’s islands. See Fourth Judgment, supra note 1, at ¶¶ 214-16, 236-37. Should these potential entitlements overlap, this area of overlap will provide the basis for additional delimitation to the east of Colombia’s islands.

8 See Fourth Judgment, supra note 1, at ¶¶ 190-99.

9 See id. at ¶¶ 230, 244. Prior to its adoption by the ICJ in Nicaragua v. Colombia, this phrase was best known as the title of an influential treatise on the modern law of the sea, which Judge ad hoc Cot cited in his appended declaration. See id. at ¶ 6 (Declaration of Judge ad hoc Cot) (citing Myres, S. McDougal & William, T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (1962, 2d prtg. 1987 Google Scholar)). As used in the ICJ’s judgment, the phrase expresses the need for boundary delimitation to facilitate the stability of states’ legal relationships and the orderly management of maritime resources. See id. at ¶¶ 230, 244; id. at ¶ 6 (Declaration of Judge ad hoc Cot); id. at ¶ 13 (Declaration of Judge ad hoc Mensah).

10 In determining the date when the parties’ present dispute ‘‘crystallized’’ as a matter of law, the ICJ found that the relevant date of crystallization was in 1969 during an exchange of protests in diplomatic correspondence. Fourth Judgment, supra note 1, at ¶¶ 67-71. The parties’ original dispute over the islands identified by the 1928 Treaty, however, first arose more than a century earlier. First Judgment, supra note 2, at ¶¶ 17-18.

11 Id. at ¶¶ 17-20.

12 See id. at ¶¶ 21, 23. The maritime boundary was allegedly based on a reference to a line of longitude contained within a protocol to the 1928 Treaty, which was signed and executed in 1930. See id.

13 Id. at ¶¶ 27-28.

14 See id. at ¶¶ 79-82.

15 Id.

16 Id. at ¶¶ 116-20.

17 See id. at ¶¶ 132, 138-40.

18 Id. at ¶ 97.

19 See id. at ¶ 142.

20 See Second Judgment, supra note 4; see also Third Judgment, supra note 4.

21 See, e.g., Maritime Delimitation and Territorial Questions (Qatar v. Bahr.), 2001 I.C.J. 40, 90-91 Google Scholar, ¶¶ 163-67 (Mar. 16), 40 I.L.M. 847 (2001) (first resolving questions of sovereignty over coastal territory, then turning to address questions involving maritime entitlements and delimitation). Similarly, the arbitration over territory and maritime jurisdiction between Eritrea and Yemen was conducted in two stages. The tribunal was requested to decide all questions of territory first, before proceeding to questions of maritime jurisdiction. See Eritrea/Yemen, Second Stage, 22 R.I.A.A. 335, 336, ¶¶ 2-6 (Perm. Ct. Arb. 1999)

22 Fourth Judgment, supra note 1, at ¶¶ 39-103.

23 See id. at ¶¶ 113-31, 167-83.

24 Id. at ¶¶ 184-247.

25 See id. at ¶¶ 26-27.

26 Id. at ¶¶ 27-33.

27 Nicaragua advocated for reliance on the Admiralty Total Tide model, while Colombia advocated for the use of the Grenoble Tide Model. Id. at ¶¶ 30-31. The ICJ did not endorse either model as a general matter, but did note that Colombia’s preferred model, the Grenoble Tide Model, was considered ‘‘inaccurate in shallow waters.’’ Id. at ¶ 36.

28 Id. at ¶¶ 37-38.

29 In the ICJ’s view, the fact that QS 32 may have been composed of ‘‘coral debris’’ did not affect its classification as an island under Article 121 of UNCLOS, which requires only that an island be ‘‘naturally formed.’’ Id. at ¶ 37.

30 Id. at ¶¶ 55-56. Judge Abraham disagreed strongly with the decision of the ICJ’s majority to decline to apply the 1928 Treaty based on the ambiguity of the phrase, ‘‘San Andrés Archipelago.’’ Id. at ¶¶ 6-13 (Separate Opinion of Judge Abraham). As Judge Abraham explained, even an ambiguous treaty would confer a territorial title superior to that arising from uti possidetis or effectivités. Id. at ¶ 11. Therefore, in Judge Abraham’s view, the ICJ failed in its duty to interpret the ambiguities of the 1928 Treaty and apply it. Id. at ¶¶ 8-13.

31 See Fourth Judgment, supra note 1, at ¶¶ 64-65.

32 Id.

33 The ICJ recalled that a State’s relevant acts of effectivités include, but are ‘‘not limited to, legislative acts or acts of administrative control, acts relating to the application and enforcement of criminal or civil law, acts regulating immigration, acts regulating fishing and other economic activities, naval patrols as well as search and rescue operations.’’ Id. at ¶ 80.

34 Id. at ¶¶ 66-71.

35 Id. at ¶ 80.

36 Id. at ¶¶ 72, 84. The ICJ also recognized three other categories of evidence that weighed in favor of Colombia’s sovereignty. First, acts by Nicaragua suggested tacit recognition of Colombia’s sovereignty. Id. at ¶¶ 85-90. Second, acts by third-party states suggested tacit recognition of Colombia’s sovereignty. Id. at ¶¶ 91-95. Third, relevant maps were published by the two states’ government agencies prior to 1980. Id. at ¶¶ 96- 102. The ICJ found that these three categories of evidence each provided ‘‘some measure of support to Colombia’s claim,’’ but that none of them provided the ‘‘very strong support’’ afforded by Colombia’s record of effectivités. See id. at ¶¶ 84, 90, 95, 102.

37 See id. at ¶¶ 113-18. Although this question was not introduced until very late in the dispute, the ICJ found that it was nonetheless admissible because it did not ‘‘transform the subject matter,’’ but merely changed the ‘‘legal basis’’ for Nicaragua’s existing claims regarding the delimitation of the sea boundary. See id. at ¶¶ 104-05, 111-12. In his dissent, by contrast, Judge Owada found that this new argument fundamentally transformed the character of the dispute and should therefore have been considered inadmissible. Id. at ¶¶ 21-26 (Dissenting Opinion of Judge Owada).

38 Only one decision by an international court or tribunal, the Bangladesh/Myanmar case, has explicitly delimited the outer continental shelf. That case, however, addressed adjacent coasts rather than opposite coasts at a considerable distance from one another. See Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangl./Myan.), ITLOS Case No. 16, Judgment, ¶¶ 461-62, 471-76 (Mar. 14, 2012), 51 I.L.M. 840.

39 Fourth Judgment, supra note 1, at ¶¶ 125-31. The two judges ad hoc and Judge Donoghue disagreed with the majority’s apparent conclusion that Nicaragua’s failure to demonstrate the existence of its outer continental shelf was a procedural failure under Article 76 of UNCLOS, rather than an evidentiary failure. In the shared view of these three judges, the critical flaw in Nicaragua’s case did not arise from Nicaragua’s noncompliance with the procedures of the CLCS under Article 76 of UNCLOS. After all, Colombia should not have been able to invoke Nicaragua’s procedural obligations under UNCLOS, because Colombia itself is not a party to UNCLOS. These three judges all agreed, however, that Nicaragua had failed to prove the existence of its continental shelf beyond 200 nautical miles because it had not supplied evidence to the ICJ of the same quality and specificity that the CLCS would have required under its procedures. Id. at ¶¶ 17-20 (Declaration of Judge ad hoc Cot); id. at ¶¶ 3-30 (Separate Opinion of Judge Donoghue); id. at ¶¶ 2-12 (Declaration of Judge ad hoc Mensah).

40 The ICJ recognized for the first time in any international dispute that ‘‘the legal régime of islands set out in UNCLOS Article 121 forms an indivisible régime, all of which . . . has the status of customary international law.’’ Fourth Judgment, supra note 1, at ¶ 139. This decision confirms, therefore, that even states that are not parties to UNCLOS, such as Colombia, are unable to claim that EEZ or continental shelf entitlements are generated by ‘‘[r]ocks which cannot sustain human habitation or economic life of their own . . . .’’ Id.

41 See, e.g., Maritime Delimitation in the Black Sea (Rom. v. Ukr.), 2009 I.C.J. 61, 122-23 Google Scholar, ¶ 187 (Feb. 3) (finding that because ‘‘any possible entitlements generated by Serpents’ Island in an eastward direction are fully subsumed by the entitlements generated by the western and eastern mainland coasts of Ukraine itself . . . . the Court does not need to consider whether Serpents’ Island falls under paragraphs 2 or 3 of Article 121 of UNCLOS nor their relevance to this case.’’).

42 Id. at ¶ 183.

43 Id. at ¶ 180.

44 Nicaragua argued that numerous other small Colombian islands were Article 121(3) rocks based on ‘‘the small size of these islands and the absence of any settled population,’’ as well as the fact ‘‘that none of them has any form of economic life.’’ Id. at ¶ 171. Colombia argued the opposite, based on the presence ‘‘of housing for detachments of Colombian armed forces and other facilities,’’ ‘‘communication facilities and heliports,’’ and ‘‘activities by local fishermen’’ on various islands. Id. at ¶ 173.

45 See id. at ¶ 180.

46 Id. at ¶ 190.

47 Id. at ¶ 191.

48 Id. at ¶ 192.

49 Id. at ¶ 193.

50 Several of the ICJ’s individual judges found that the geographical circumstances of this case rendered the standard threestage methodology unsuitable and inapplicable. In view of the final boundary’s substantial deviation from equidistance, these judges concluded that the construction of a provisional equidistance line was superfluous. See id. at ¶¶ 21-24, 33-35 (Separate Opinion of Judge Abraham); id. at ¶¶ 9-13 (Declaration of Judge Keith); id. at ¶¶ 2-10 (Declaration of Judge Xue).

51 Fourth Judgment, supra note 1, at ¶ 211.

52 See id. at ¶¶ 233-35.

53 See id. at ¶¶ 214-16, 236-37. The two states made various arguments regarding several other factors that previous international courts and tribunals have occasionally considered in the course of maritime boundary delimitation. These included the two states’ conduct in relation to one another’s hypothetical EEZ and continental shelf entitlements, id. at ¶ 220, the two states’ naval security concerns, id. at ¶ 222, the two states’ access to natural resources, id. at ¶ 223, and the need to respect the existing maritime boundaries delimited by negotiation or adjudication with neighboring third-party states, id. at ¶¶ 227- 28. Without foreclosing the possibility that these concerns might play a role in future disputes, the ICJ found that the evidentiary record before it did not require consideration of any of these factors.

54 Because the island of QS 32 on the submerged bank of Quitasueño is an Article 121(3) rock, no more than twelve nautical miles of territorial sea were attributed to QS 32. Id. at ¶ 238. The cays on the bank of Serrana, meanwhile, which may or may not constitute Article 121(3) rocks, were also allocated no more than twelve nautical miles of territorial sea by virtue of their ‘‘small size, remoteness and other characteristics . . . .’’ See id. at ¶¶ 24, 180, 238.

55 The ICJ rejected Nicaragua’s request to allot these small and remote islands a territorial sea of less than twelve nautical miles. As the ICJ explained, a state’s ‘‘sovereignty’’ in the territorial sea will always take priority over another state’s ‘‘sovereign rights’’ in the EEZ and continental shelf, regardless of the size or remoteness of the insular feature. Id. at ¶¶ 177-80.

56 See id. at ¶¶ 118, 139.

57 Id. at ¶¶ 230, 244; id. at ¶ 6 (Declaration of Judge ad hoc Cot); id. at ¶ 13 (Declaration of Judge ad hoc Mensah).

58 Id. at ¶¶ 230, 244.

1 These cays are referred to either as ‘‘Alburquerque’’ or as ‘‘Albuquerque’’. For the purposes of the present case the court will use ‘‘Alburquerque’’.