                         DISSENTING OPINION OF JUDGE AD HOC MCRAE

        Disagreement with the finding of the Court that it has jurisdiction ratione temporis — No
justification for the assimilation of a dispute involving events subsequent to the application to a
dispute involving events subsequent to the lapse of the jurisdictional title — Responsibility may not
be based on events subsequent to the lapse of the jurisdictional title — Policy considerations.

      Disagreement with the finding that Colombia exercised control in Nicaragua’s EEZ —
Definition of enforcement — Distinction between monitoring and enforcement — Failure by
Colombia to exercise its rights with due regard to Nicaragua’s rights and duties as coastal State.

      Disagreement with the finding that Colombia authorized fishing activities in Nicaragua’s EEZ.

        Agreement with the finding that Colombia’s ICZ may overlap with Nicaragua’s EEZ and that
it may not extend beyond 24 nautical miles — Disagreement with the finding that the powers claimed
by Colombia in its ICZ are not in conformity with international law — The powers listed in Article 33
of UNCLOS addressed security concerns of the 1950s — Evolutive interpretation of Article 33 of
UNCLOS — The jurisdiction claimed by Colombia pertains to offences committed on its territory or
in its territorial sea, not in the ICZ or Nicaragua’s EEZ.

       Disagreement with the Court’s rejection of the traditional fishing rights of the Raizales — The
rights claimed by the Raizales are akin to indigenous rights — Recognition by Nicaragua of the
fishing rights of the Raizales as akin to indigenous rights.

       Disagreement with the Court’s acceptance of the fourth counter-claim — Imprecision of the
criteria for the drawing of straight baselines — Relevance of State practice in the examination of the
permissibility of straight baselines.

                                                   I

      1. I regret that I have had to vote against the Court’s Judgment on all of the findings in this
case and will elaborate on my reasons in this dissent.

       2. As a preliminary matter, I would note that I voted against the Court on the finding “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”, because the
finding focused on the provisions of Presidential Decree 1946 which dealt with the powers to be
exercised within the Integral Contiguous Zone (hereinafter “ICZ”). As I will point out in this dissent,
I consider that the powers asserted by Colombia are among those that a State may exercise in its
contiguous zone consistently with customary international law. However, I agree with the Court that
the configuration of Colombia’s ICZ put before the Court is not in conformity with customary
international law in so far as it exceeds 24 nautical miles. Thus, when it formally establishes the outer
limits of its ICZ, Colombia must ensure that those limits do not exceed 24 nautical miles.

                                                   II

       3. I start with the issue of jurisdiction ratione temporis raised by Colombia in the course of
these proceedings.

      4. I disagree with the Court’s conclusion that it has jurisdiction in respect of events that
allegedly took place after the lapse of the jurisdictional title (Article XXXI of the Pact of Bogotá) on

                                                          -2-

27 November 2013. The point is critical because the conclusion of the Court that by interfering with
the fishing and marine scientific activities of Nicaraguan-flagged or -licensed vessels and purporting
to enforce conservation measures Colombia has violated Nicaragua’s rights within its exclusive
economic zone (hereinafter “EEZ”) is based essentially on events that took place after the lapse of
jurisdictional title. In other words, were it not for the events that occurred after the lapse of title, the
Court would have had no basis for its conclusion in the second subparagraph of its operative clause
that Colombia had violated Nicaragua’s sovereign rights and jurisdiction within its EEZ. In short,
Colombia is found internationally responsible on the basis of alleged violations of Nicaragua’s rights
and jurisdiction that took place after the Court’s jurisdictional title had lapsed.

       5. On 27 November 2013, Colombia’s denunciation of the Pact of Bogotá came into effect,
and from that point on the Court ceased to have jurisdiction in respect of claims brought against
Colombia under the Pact. This is made evident in Article XXXI of the Pact of Bogotá which provides
for the jurisdiction of the Court “as compulsory ipso facto, without the necessity of any special
agreement so long as the present Treaty is in force”. Indeed, the Court recognized this jurisdictional
limit in its Judgment of 17 March 2016 on preliminary objections, where it accepted that it had
jurisdiction over Nicaragua’s claim because it was filed on 26 November 2013, the day before the
lapse of jurisdictional title in accordance with Colombia’s denunciation of the Pact of Bogotá 1. In
doing so, the Court applied the well-established principle that its jurisdiction is to be determined as
of the date of application 2.

       6. The Court justifies its assumption of jurisdiction in respect of events that took place after
jurisdiction had lapsed, on the basis of the principle, also well established in the Court’s
jurisprudence, that jurisdiction extends to “facts subsequent to the filing of the Application, but
arising directly out of the question which is the subject-matter of that Application” 3. But, until this
case, the principle had never been applied to cases where the events subsequent to the filing of the
application are events over which the Court otherwise had no jurisdiction. In none of the cases
referred to in the Judgment (para. 44) did the question of lapse of title of jurisdiction arise.

       7. The Court treats the limitation in Article XXXI as applicable only to “the subject-matter of
a dispute over which the Court may exercise jurisdiction” (Judgment, para. 40). Since in its
2016 Judgment the Court had already determined that it did have jurisdiction, the question before it
now “is whether its jurisdiction over that dispute extends to facts or events that allegedly occurred
after the lapse of the title of jurisdiction” (ibid.).

       8. In the critical part of its Judgment, the Court says that considerations relevant to the
adjudication of claims or submissions subsequent to the date of application can be instructive in
deciding this case, which deals with events that were certainly subsequent to the date of application
but also, critically, subsequent to the lapse of title of jurisdiction. The Court immediately goes on
(Judgment, para. 43) to say that the same criteria should apply to the question of jurisdiction
ratione temporis in this case, that is where the events in question are subsequent to the date of lapse

       1 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia),

Preliminary Objections, Judgment, I.C.J. Reports 2016 (I), p. 26, para. 48.
       2 Ibid., p. 18, para. 33, citing Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports 2008, pp. 437-438, paras. 79-80, and
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 613, para. 26.
        3 Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 203,

para. 72; see also Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment,
I.C.J. Reports 2008, pp. 211-212, para. 87.

                                                  -3-

of title. The Court notes that, in the case of claims or submissions that have occurred subsequent to
the date of application, it has “considered whether such a claim or submission arose directly out of
the question which is the subject-matter of the application or whether entertaining such a claim or
submission would transform the subject of the dispute originally submitted to the Court” (Judgment,
para. 44). This, then, becomes the test for deciding whether jurisdiction can be taken over events
occurring after the lapse of title. However, the Court does not explain how a dispute dealing with
events over which it otherwise has no jurisdiction should be equated with a dispute dealing with
events over which the Court has jurisdiction. It affirms that the rule for events subsequent to the date
of application should be applied to events subsequent to the lapse of jurisdictional title but provides
no explanation or rationale to show why this affirmation is justified.

       9. The rule allowing the Court to treat events subsequent to the date that jurisdiction is
established makes sense because it encourages efficiency; that is, it would be inefficient to require
an applicant to bring a new application in respect of events that are part of the same dispute when
they can be dealt with in the application already brought. But in the case of events subsequent to the
loss of title of jurisdiction, no such efficiency considerations can be shown. A new application could
not be brought in respect of events subsequent to the title of jurisdiction lapsing, because there would
be no such title to do so. So, instead of applying a rule that encourages efficiency in cases where
jurisdiction is established, what the Court is doing in this case is creating jurisdiction over events
when no such jurisdiction would otherwise exist.

       10. The Court points out that there is “nothing in the Court’s jurisprudence to suggest that the
lapse of jurisdictional title after the institution of proceedings has the effect of limiting the Court’s
jurisdiction ratione temporis to facts which allegedly occurred before that lapse” (Judgment,
para. 42). But equally, there is nothing in the Court’s jurisprudence to say that the Court can take
jurisdiction over events that have occurred after the lapse of jurisdictional title.

       11. The Court says, too, that the 2016 Judgment “implie[d] that the Court has jurisdiction to
examine every aspect of the dispute” (Judgment, para. 45). But the Court was careful in 2016 to
identify the dispute on the basis of events that allegedly occurred before the date of the Application.
It would be strange in light of this to conclude, now, that the Court at that time was asserting that it
could assume jurisdiction over events allegedly occurring after the title of jurisdiction had lapsed. At
best the matter is simply not dealt with in the 2016 Judgment, and no inference can be drawn from
it.

       12. The Court’s conclusion that “consideration” of alleged incidents that occurred after the
lapse of jurisdiction “does not transform the nature of the dispute between the Parties” (Judgment,
para. 47) and, thus, it has jurisdiction over those incidents, masks the reality of what is being decided.
The question before the Court is not whether it can “entertain” or “consider” incidents subsequent to
the date of filing of the Application (Judgment, para. 41) or date of lapse of title (Judgment, para. 47).
Of course, the Court can “consider” or “entertain” events that took place after the lapse of title as
part of the broader context of the case. But that is different from determining responsibility based on
such events.

       13. What is at issue in this case is whether the Court can find responsibility on the basis of
events that occurred at time when the Court had no jurisdiction. To say that consideration of
subsequent events after title has lapsed does not transform the nature of the dispute (ibid.) ignores
the fact that responsibility based on events before title lapses is responsibility in respect of a matter
over which the Court has jurisdiction. Responsibility on the basis of events that were subsequent to
the lapse of title is responsibility in respect of events over which the Court has no jurisdiction.

                                                  -4-

        14. The Court was right in 2016 when it took jurisdiction over the dispute between the Parties
on the basis of allegations of conduct by Colombia that occurred before the filing of the Application.
And it is right today in asserting that it can consider facts and events subsequent to the Application
provided those events do not transform the nature of the dispute. But what the Court has been unable
to do is articulate a justification for finding responsibility on the basis of events that occurred after
title of jurisdiction has lapsed.

       15. There are no doubt policy implications of not taking jurisdiction over events subsequent
to the lapse of title. Could a State by withdrawing acceptance of jurisdiction after a case has been
filed against it undermine the ability of the Court to deal with the case? While that is certainly an
undesirable consequence, it is not the case here. This is not the case of a respondent withdrawing
jurisdiction on finding a case has been filed against it. Rather, it is a case of an applicant waiting to
the last minute before jurisdiction expired to bring the claim.

       16. Equally, there are contrary policy considerations. The principle that international
jurisdiction is based on consent is fundamental and the Court should not facilitate bypassing that
principle. But that is the consequence here. A State that has been unable to substantiate a case on the
basis of events that existed at the time of the application when the Court had jurisdiction is being
permitted to bypass a jurisdictional impediment and responsibility is found on the basis of events
which could not be the subject of a new application.

       17. In my view, the Court has provided no justification for finding responsibility on the basis
of events that have occurred after the title of jurisdiction has lapsed. As a result, I would have found
that the Court lacks jurisdiction ratione temporis over the events in this case that occurred after
27 November 2013.

                                                  III

       18. I turn now to Colombia’s contested actions in Nicaragua’s EEZ. With one exception
(Judgment, paras 71-72) the actions on which the Court relies to establish Colombia’s responsibility
occurred after the lapse of the jurisdictional title on 27 November 2013. Moreover, given that the
approach of the Court has not been to reach a conclusion on the basis of each specific incident, but
rather to base responsibility on an accumulation of incidents, it is unlikely that the Court would have
been able to conclude that Colombia’s international responsibility for the alleged incidents in
Nicaragua’s EEZ was engaged if that incident had stood alone. The facts are contested by the Parties
and there is no basis on the evidence before the Court for choosing whose allegations are correct.
Indeed, as Judge Nolte points out in his dissenting opinion, the Court does not even include this
incident among those purporting to show that Colombian naval vessels were seeking to exercise
enforcement jurisdiction in Nicaragua’s EEZ (Judgment, para. 92).

       19. In other words, the Court was able to conclude that Nicaragua had substantiated its claim
in respect of the alleged incidents in Nicaragua’s EEZ only because it relied on post-27 November
2013 incidents, over which the Court lacked jurisdiction.

       20. However, even if the Court’s decision to rely on events that occurred after the lapse of
jurisdiction were correct, in my view the incidents on which the Court does base its conclusion on
responsibility do not warrant the decision of the Court that Colombia was

      “interfering with fishing activities and marine scientific research of Nicaraguan-flagged
      or Nicaraguan-licensed vessels and with the operations of Nicaragua’s naval vessels in

                                                 -5-

      Nicaragua’s exclusive economic zone and . . . purporting to enforce conservation
      measures in that zone” (Judgment, para. 101).

       21. As pointed out, this conclusion of the Court was not based on an assessment of each
incident individually, but rather the Court reached a global conclusion in the light of all incidents.
There are two important components to the Court’s conclusion. First, the Court said that the incidents
all took place in the area of Luna Verde, east of the 82nd meridian, within Nicaragua’s EEZ
(Judgment, para. 91). Second, the Court stated that in a number of instances Colombian naval officers
read statements to vessels which they approached in the Nicaraguan EEZ, calling on them to
discontinue fishing activities because they were environmentally harmful and illegal or unauthorized
(Judgment, para. 92). The statements of these naval officers, it is said, also described the area as
“Colombian jurisdictional waters” and said that the 2012 Judgment was “not applicable”. In light of
this, and of statements of Colombian government authorities, the Court concludes that 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” (ibid.).

       22. The nature of the activities that the Court concludes violate the rights of Nicaragua in its
EEZ are described by the Court as “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” (Judgment, para. 100).

      23. This might be compared with what actually happened in the incidents that the Court relies
on. The Court refers to incidents in which there was an interaction between the Nicaraguan coast
guard and a Colombian naval vessel and an incident involving a marine scientific research vessel. In
each of those cases the facts are disputed, and the Court does not draw any conclusion about which
Party’s factual allegations are to be accepted. Although the Court says that the presence of Colombian
vessels in the area is established (Judgment, para. 91), the key question was not presence of the
vessels; rather, it was the conduct alleged to have occurred.

       24. The predominant factual circumstances in the incidents identified by the Court involve
Colombian naval vessels confronting Nicaraguan fishing vessels. While the incidents show that
Colombian naval vessels did approach Nicaraguan or other non-Colombian-flagged vessels and
made the statements attributed to them, in no case was there any evidence that the Colombian
authorities attempted to arrest fishing vessels or prosecute individuals for violation of Colombian
laws. The only evidence that might be regarded as attempted enforcement are the instances where it
is alleged that a Colombian vessel chased a fishing vessel away and the intervention of a Colombian
naval vessel when a Nicaraguan coast guard vessel had arrested a vessel for allegedly illegal fishing
(Judgment, paras. 71, 77 and 89). But the facts of these incidents, too, are contested both as to
whether the arrested vessels had been fishing in Nicaragua’s EEZ and the events that were alleged
to have taken place (Judgment, paras. 72, 78 and 90). Indeed, in most instances the warning
statements of the Colombian naval officers, on which the Court relies, were simply ignored. The
Nicaraguan fishing vessels continued their fishing.

                                                           -6-

       25. Colombia’s argument in support of the actions of its naval vessels is that they were simply
“monitoring” and “informing”, which they claimed to be a right incidental to freedom of navigation 4.
Colombia argued further that there were responsibilities resulting from the particular environmental
circumstances in the south-western Caribbean reflected in the Cartagena Convention and the
SPAW Protocol (Judgment, para. 54). The Court rightly points out that neither of these instruments
grants authority to a State to enforce its own environmental measures in the EEZ of another State
(Judgment, paras. 98-99). However, that does not mean that the particular environmental
circumstances in the south-western Caribbean or the regional arrangements encouraging the
protection of the environment should be ignored in assessing the actions of States in the area. A claim
to monitoring activities that might harm the environment has added legitimacy in areas where there
is a regional concern about the environment.

       26. Ultimately, the Court rests its conclusion of violation by Colombia on a perception of an
intent by Colombia to control fishing and enforce its own national environmental laws in Nicaragua’s
EEZ. The Court never defines what it means by control or enforcement. Definitions of enforcement
generally refer to the exercise of State authority to apply criminal law through arrest, detention, trial
and punishment 5. Yet, there were no actions of control or enforcement such as arrests, detention or
prosecution. The perception of an intent to control and enforce is based less on what was done in fact
by Colombian vessels but rather on inferences drawn from statements read by Colombian naval
officers and statements of Colombian officials who argued that the 2012 Judgment was inapplicable
and had been rejected by Colombia. From this the Court concludes, there was “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” (Judgment, para. 92). In my view, this is
a thin reed on which to base international responsibility and I do not find the reasoning of the Court
compelling.

       27. Nonetheless, the fact remains that Colombian naval vessels did approach
Nicaraguan-licensed fishing vessels in the Nicaraguan EEZ and did notify them that they were
fishing illegally and that they were in waters subject to Colombian jurisdiction (e.g. Judgment,
paras. 75-76 and 81-84). And this was done without advising Nicaragua, either before or after the
event, that its flag vessels, or vessels authorized by it, were being approached and information was
being provided to them. Colombia claims that its vessels were doing this in exercise of their right of
navigation in those waters, pursuant to their customary international law right reflected in Article 58
of United Nations Convention on the Law of the Sea (hereinafter “UNCLOS”) and in the broader
interests of promoting the protection of the marine environment (Judgment, para. 93). But, even
accepting that this was a proper exercise of that customary international law right, such a right has
to be exercised, having due regard to the rights and duties of the coastal State.

       28. This, in my view, is the approach that the Court should have taken in this case. Instead of
elevating what occurred into some kind of policy by Colombia to control fishing and enforce its own

        4 See, for example, Counter-Memorial of Colombia, para. 3.59: “Colombia must be able to exercise in conformity

with international law its rights of freedom of navigation, overflight, monitoring, humanitarian assistance and other related
rights, which include the proper ‘monitoring of activities undertaken’ by public or private operators without being accused
of impeding Nicaragua’s sovereign rights”; CR 2021/14, p. 46, para. 46 (Boisson de Chazournes): “Colombia’s
environmentally focused observing and informing activities fall within the scope of what is permitted by the international
law applicable to this dispute, in particular when fragile ecosystems and vulnerable habitats like that of the Raizales are
concerned” [translation by the Registry]; see also CR 2021/14, p. 29, para. 22 (Wood); CR 2021/14, p. 41, para. 25
(Boisson de Chazournes), CR 2021/14, p. 45, para. 40 (Boisson de Chazournes); CR 2021/18, p. 23, paras. 11-13 (Boisson
de Chazournes)
        5 Patrick Daillier, Mathias Forteau and Alain Pellet, Droit International Public (Nguyen Quoc Dinh), 8th edn.,

LGDJ 2009, p. 565, para. 336; American Law Institute, Restatement of the Law Fourth: the Foreign Relations Law of the
United States, American Law Institute Publishers 2018, p. 291, Comment to § 431; Roger O’Keefe, “Universal Jurisdiction:
Clarifying the Basic Concept”, 2004, Journal of International Criminal Justice, Vol. 2, pp. 736-737.

                                                  -7-

environmental laws in Nicaragua’s EEZ, the Court should have focused on what was actually done,
that is, monitoring the activities of Nicaraguan-licensed fishing vessels and informing them when it
believed that they were fishing by environmentally harmful or illegal methods. Since Colombia had
done this without informing Nicaragua either before or after the event, this is, in my view, evidence
of a failure to have due regard for the rights and duties of Nicaragua as the coastal State in exercising
its own jurisdiction over the marine environment. In is also in disregard of Nicaragua’s rights in its
EEZ for Colombia naval vessels to advise fishing vessels, erroneously, that these are waters subject
to Colombia’s jurisdiction, or to make gratuitous statements about Colombia rejecting the Court’s
2012 Judgment. These are the matters on which the Court should have focused, instead of drawing a
sweeping conclusion about a Colombian policy to control fishing and enforce its own environmental
laws in Nicaragua’s EEZ.

       29. A statement by the Court that Colombia was acting without due regard for Nicaragua’s
EEZ rights and that it should cease from doing so would have been a much more appropriate solution
to this aspect of the case than what the Court has in fact done in its decision on the alleged incidents
in Nicaragua’s EEZ.

                                                   IV

      30. I turn now to the allegation of Nicaragua that Colombia’s has granted permits for fishing
in Nicaragua’s EEZ. I have voted against the Court’s conclusion that Colombia has authorized its
nationals and foreign nationals to fish in Nicaragua’s EEZ.

       31. There are three bases on which Nicaragua’s claim rests. First, Nicaragua asserts that
resolutions issued by General Maritime Directorate of the Ministry of National Defence of Colombia
(DIMAR) included waters within Nicaragua’s EEZ as areas where Nicaraguan-licensed vessels were
permitted to operate. Second, Nicaragua claims that the Governor of the Department of the
Archipelago of San Andrés, Providencia and San Catalina also issued resolutions permitting vessels
to operate in the Luna Verde areas within Nicaragua’s EEZ. Third, Nicaragua identifies certain
incidents at sea involving Colombian naval vessels which, it argues, reinforce that Colombia was
licensing vessels to fish in Nicaragua’s EEZ (Judgment, paras. 103-105).

       32. The Court does not appear to draw any conclusions from these resolutions, saying only
that the reference to Luna Verde, in what was in fact the preamble to the Governor’s resolutions,
“suggests that Colombia continues to assert the right to authorize fishing activities in parts of
Nicaragua’s exclusive economic zone” (Judgment, para. 119). But the Court does not address the
argument of Colombia that neither DIMAR nor the Governor had authority to issue fishing permits,
a matter that was not contradicted on the evidence by Nicaragua.

       33. The result is that the only real grounds the Court has for its conclusion that Colombia had
issued permits to vessels to fish in Nicaragua’s EEZ are the alleged incidents at sea (Judgment,
paras. 121-130). In this regard, it should be noted that none of these incidents occurred before
27 November 2013, the date the Pact of Bogotá ceased to be in force for Colombia. Thus, to the
extent that the Court relies on these incidents to establish responsibility, it is again finding
responsibility on the basis of events that occurred after the Court’s title of jurisdiction lapsed.

      34. Even so, as proof that Colombia issued permits to license fishing vessels within
Nicaragua’s jurisdiction, this evidence is at best problematic. There is no direct evidence of actual
licences, and the Court can only draw inferences from what was reported as having been said. What
the evidence does show is that Colombian naval vessels were in the area where at least some of the

                                                          -8-

alleged incidents took place and engaged in communications with fishing vessels and the Nicaraguan
coast guard. But as evidence that the vessels concerned had licences issued by Colombian authorities,
it really lacks any probative value.

       35. The engagement between the Colombian naval vessels and Nicaragua’s coast guard in
these incidents was not cited by the Court in its consideration of incidents at sea in support of the
Nicaraguan claim that Colombia had violated its rights in its EEZ, although that would seem to have
been a more appropriate place to consider those incidents. In that context, rather than showing a
violation of Nicaragua’s rights within its EEZ, these incidents would have justified the Court
cautioning Colombia to exercise its rights within Nicaragua’s EEZ with due regard to the rights and
duties of the coastal State as required by Article 58 of the Convention. That, in my view, would have
been a more appropriate disposition of these incidents than using them as an indirect way of
concluding that Colombia had been issuing licences to fish in Nicaragua’s EEZ.

                                                            V

       36. With respect to Colombia’s creation of its ICZ, I agree with the Court that Colombia has
the right to establish a contiguous zone off the coasts of the islands of the San Andrés Archipelago
notwithstanding any overlap with the EEZ of Nicaragua (Judgment, para. 163). As I pointed out
earlier, I also agree with the Court that Colombia was not entitled to “simplify” the outer limits of its
contiguous zone so that it extended more than 24 nautical miles from the Colombian coast
(Judgment, para. 175).

       37. However, I disagree with the Court’s conclusion that the ICZ as established in Presidential
Decree 1946 is not in conformity with customary international law (Judgment, para. 187). I also
disagree with the Court’s conclusion that the “expanded powers” asserted in Colombia’s ICZ directly
infringe on the sovereign rights and jurisdiction of Nicaragua with regard to the conservation,
protection and preservation of the marine environment in Nicaragua’s EEZ (Judgment, para. 178).

       38. The objection the Court has is to Article 5 (3) of the Decree, which deals with the material
scope of the zone. In the view of the Court, it confers powers on Colombia to exercise control over
the infringement of its laws and regulations that extend to matters which are not permitted under
customary international law. The Court’s conclusion is based on its position that the content of
customary international law relating to the contiguous zone is found in Article 33 of UNCLOS, and
that Colombia’s so-called “expanded powers” are not included in Article 33 (Judgment, para. 155).
The so-called “expanded powers” of Colombia expressed in Article 5 of Decree 1946, as modified
by Article 2 of Decree 1119 of 2014, that the Court found to be outside the scope of the rule reflected
in Article 33 of UNCLOS, are laws and regulations related to the integral security of the State,
including piracy and trafficking of drugs and psychotropic substances, conduct contrary to the
security of the sea and the national maritime interests, and laws and regulations related to the
preservation of the marine environment (Judgment, paras. 177-181) 6.

       39. The categories specified in Article 33 of UNCLOS are, “customs, fiscal, immigration or
sanitary laws and regulations”. The question facing the Court was whether the laws and regulations
covered in the Colombian Decree fall within the ambit of those Article 33 categories or whether State
practice has evolved since the inclusion of those terms of Article 33 of UNCLOS so that today they
can be said to cover the categories of laws identified by Colombia. Essentially, the question is

       6 I agree with the Court’s conclusion that the inclusion of the exercise of control with respect to archeological and

cultural objects found within the EEZ does not violate customary international law (Judgment, para. 186).

                                                          -9-

whether the security claims of Colombia and the claim relating to the preservation of the marine
environment fall within contiguous zone jurisdiction under Article 33 of UNCLOS.

       40. As the Court points out, the provisions of Article 33 of UNCLOS were adopted in the
1958 Convention on the Territorial Sea and Contiguous Zone, on the basis of the 1956 work of the
International Law Commission (hereinafter the “ILC” or the “Commission”), and have remained
unchanged since then (Judgment, para. 153). They were then endorsed without change in UNCLOS.
A proposal in 1958 to add security to the categories in Article 33 ultimately did not get support 7. The
question, then, is whether, notwithstanding what happened in 1958 and in the UNCLOS negotiations,
there is a case today for seeing security and the preservation of the marine environment as matters
that fall within the scope of Article 33 of UNCLOS.

        41. An alternative to seeing the terms of Article 33 of UNCLOS as static that must be
interpreted in the light of the world of 1956 might have led the Court to a different conclusion. The
specific claim to including dealing with the trade in drugs would seem to be no more than an enlarged
perception of both customs and fiscal laws. Drug trafficking is as much an issue of customs laws as
was the smuggling of alcohol whose prosecution was one of the matters covered by the United States’
“hovering acts” which laid the basis for the contiguous zone 8. Equally, sanitary laws in 1958, and
still today, concern health. Not seeing the preservation of the environment as an issue that is
fundamentally linked to health is also to ignore the reality of today.

       42. The justification for seeing contiguous zone jurisdiction in contemporary terms is in fact
found in the ILC commentary to what became Article 24 of the 1958 Convention and Article 33 of
UNCLOS. The Court quotes the relevant part of the Commentary (Judgment, para. 152) but does not
draw the necessary inference from it. In the relevant extract from its commentary, the ILC stated that
it had not included special security rights in the draft provisions relating to the contiguous zone,
indicating the term was vague and could lead to abuses and thus was not necessary. It then goes on
to make the critical statement: “The enforcement of customs and sanitary regulations will be
sufficient in most cases to safeguard the security of the State.” (Commentary to the articles
concerning the law of the sea, Yearbook of the International Law Commission, 1956, Vol. II, p. 295,
draft Art. 66, comment (4), quoted in Judgment, para. 152.)

       43. What the ILC statement shows is that the Commission thought that it was adequately
dealing with contemporary issues of security. And this reinforces the view that the purpose of the
contiguous zone was precisely to allow States to protect their security. But no one could now consider
that what was adequate to safeguard the security concerns of States at the time of the Commentary
in 1956 would necessarily parallel contemporary security needs. An assessment of the security needs
of States today might well include the suppression of the drug trade and the protection of the marine
environment. Indeed, at a time of heightened concern about the impact of climate change, the
protection of the marine environment might be seen for some States as their primary security concern.
Moreover, the last twenty years have shown that piracy, which might have been dealt with adequately
under international law in 1956, has been posing an increasing problem for States in certain regions,
including in their territorial seas. It is not surprising then that a State might wish to act in its
contiguous zone to prevent piracy within its territorial sea or to punish when piracy has occurred
within its territorial sea. Indeed, the fact that a significant number of States have inserted a right to

      7 Official Records of the First United Nations Conference on the Law of the Sea, 1958, Vol. II,

UN doc. A/CONF.13/38, p. 40, para. 63.
       8 D. P. O’Connell, The International Law of the Sea: Volume II, Oxford, Oxford University Press, 1988, p. 1038.

Indeed, the content of the hovering acts themselves evolved over time.

                                                         - 10 -

include certain security needs among the matters over which they will exercise contiguous zone
jurisdiction is testament to a change in contemporary security needs of States 9.

       44. It must be recalled that contiguous zone jurisdiction only enables States to act to prevent
and punish in respect of offences committed within the territory of a State or in its territorial sea,
namely, offences that are committed within its jurisdiction. It does not grant authority to coastal
States to prevent or punish in respect of offences committed within the contiguous zone or beyond.

        45. It is the failure to recognize this that has led the Court to its conclusion that the powers
asserted under Colombia’s ICZ directly infringe on the sovereign rights and jurisdiction of Nicaragua
with respect to the conservation, protection and preservation of the marine environment in
Nicaragua’s EEZ (Judgment, para. 187). But, as the Court points out earlier in its Judgment, the
contiguous zone and the EEZ deal with different things (Judgment, paras. 160-161). Nicaragua
certainly has jurisdiction over the preservation of the marine environment in its EEZ. And it has no
jurisdiction over the protection of the marine environment in the territory of Colombia or in
Colombia’s territorial sea. By the same token, Colombia, while having jurisdiction within its
contiguous zone to prevent and punish in respect of offences in certain categories of matters within
its territory and its territorial sea, has no jurisdiction on the basis of its contiguous zone to prevent or
punish in respect of offences committed in Nicaragua’s EEZ. And since Nicaragua’s EEZ does not
overlap Colombia’s territorial sea, there is no potential for overlapping jurisdiction.

        46. Nor does Colombia claim jurisdiction over offences within Nicaragua’s territorial sea.
Decree 1946, as amended by Decree 1119, makes this clear. It says that that Colombia has authority
in its contiguous zone to prevent infractions of its laws relating to the integral security of the State
“which take place in its insular territories or in their territorial sea” (Art. 5 (3) (a) of Decree 1946, as
amended by Decree 1119, quoted in Judgment, para. 170). And it goes on to say that “[i]n the same
manner” violations of the laws relating to the preservation of the environment will be prevented and
controlled (ibid.). “In the same manner” can only mean that the authority asserted in respect of the
environment is no different than the authority asserted in respect of security. And in respect of the
other element of contiguous zone jurisdiction, the power to punish, the Decree states that it relates to
the above-mentioned matters “committed in its island territories or in their territorial sea”
(Art. 5 (3) (b) of Decree 1946, as amended by Decree 1119, quoted in Judgment, para. 170).

        47. None of this involves a claim to exercise jurisdiction in respect of offences committed in
the contiguous zone itself or in the EEZ of Nicaragua. Thus, the regulation adopted by Colombia
makes no claim to “ensure their implementation in part of Nicaragua’s exclusive economic zone” as
asserted by the Court (Judgment, para. 178). Colombia’s claim in respect of the prevention of the
environment is no different than its claim in respect of customs, fiscal, immigration and sanitary
rights  that is, to prevent and punish in respect of offences committed on Colombia’s territory or
in its territorial sea.

       48. In my view, this was an appropriate case for the Court to interpret Article 33 of UNCLOS
in an evolutionary manner. Evolutionary (or evolutive) interpretation has been accepted in the
jurisprudence of the Court 10. A provision which, in 1956, the ILC saw as its purpose to protect the
security needs of States must be interpreted today in a way that reflects contemporary security needs.

       9 Counter-Memorial of Colombia, Appendix B; Reply of Nicaragua, para. 3.38.

       10 For example, Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), Judgment, I.C.J.

Reports 2009, pp. 242-243, paras. 64-66; see also Whaling in the Antarctic (Australia v. Japan; New Zealand intervening),
Judgment, I.C.J. Reports 2014, p. 247, para. 45.

                                                        - 11 -

On this basis, all of the matters identified in Colombia’s Decree 1946 reflect contemporary security
needs of some if not all States  piracy, suppression of the drug trade, maritime security and the
protection of the (marine) environment  and thus should be seen a legitimate matters to be covered
under the contiguous zone jurisdiction of States.

                                                          VI

      49. I turn now to Colombia’s two counter-claims, (A) Traditional and artisanal fishing rights
and (B) Straight baselines. I disagree with the Court’s findings in respect of each counter-claim.

                                                          A

       50. I have voted against the Court’s rejection of all remaining issues in the eighth subparagraph
of the operative clause because I do not agree with the Court 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 statements of
        its Head of State, accepted or recognized their traditional fishing rights, or legally
        undertaken to respect them” (Judgment, para. 231).

      51. In my view, the Court has failed to address what is a critical, and to some extent unique,
aspect of Colombia’s counter-claim and this has had an impact on the way the Court has both
assessed the evidence of traditional fishing rights and viewed the statements of Nicaragua’s
President.

       52. Colombia’ third counter-claim relating to traditional or artisanal fishing rights was
articulated by Colombia in a number of different ways. It was referred to as a claim in respect of the
inhabitants of the San Andrés Archipelago “in particular the Raizales”11 or “including the Raizales” 12
or the “traditional, historic fishing rights of the Raizales and the other fishermen of the
Archipelago” 13. What is common about all of these formulations is that they identify two groups: the
Raizales, and the other inhabitants of the San Andrés Archipelago. The Raizales are included within
the inhabitants of the San Andrés Archipelago but are also seen as distinct from the other inhabitants
of the Archipelago.

      53. In its Counter-Memorial, Colombia identified the Raizales as “descendants of the enslaved
Africans and the original Dutch, British and Spanish settlers” which “have acquired through the
centuries their own specific culture”14. The Counter-Memorial also claims that “[s]ince time
immemorial, they [the Raizales] have navigated all of the Southwestern Caribbean in search of
resources, such as fish and turtles” 15.

        11 Rejoinder of Colombia, paras. 5.1 and 5.74, and submission II.3; CR 2021/18, p. 75, submission II.3 (Arrieta

Padilla).
        12 Rejoinder of Colombia, para. 5.76.

        13 Counter-Memorial of Colombia, para. 9.25.

        14 Counter-Memorial of Colombia, para. 2.64.

        15 Ibid.

                                                        - 12 -

       54. While Nicaragua’s pleadings refer to the fishing practices of the inhabitants of the
San Andrés Archipelago “including the indigenous Raizal people” 16 and on another occasion simply
“the Raizal people” 17, their pleadings tend to treat the inhabitants of the San Andrés Archipelago as
a single group. The main argument of Nicaragua is that traditional or artisanal rights did not survive
the creation of the EEZ18 and, thus, regardless of any claim to traditional or artisanal fishing, no such
right exists within the EEZ. In Nicaragua’s pleadings no independent right exists for the Raizales,
but rather the rights that are claimed by Colombia are rights in respect of all of the inhabitants of the
San Andrés Archipelago.

      55. Having described the origins of the Raizales and the fact that they had fished in the south-
western Caribbean for centuries, Colombia characterizes the Raizales as “indigenous fishermen” 19.
They are, Colombia says, a “distinct ethnic and cultural community” who “navigated, traded and
fished in this area of the Southwestern Caribbean Sea before and after the coming into existence of
Nicaragua and Colombia as independent States” 20.

       56. In describing the Raizales in this way, Colombia is clearly creating a category that is
separate from other claimants to traditional or artisanal fishing rights. The way that Colombia
articulates this claim for the Raizales as a separate and distinct group and in particular the reference
to the Raizales as “indigenous fishermen” suggests an analogy with indigenous rights, rights that
have most recently found expression in the United Nations Declaration on the Rights of Indigenous
Peoples 21.

      57. There is no accepted definition of who constitute indigenous peoples, but indicia of
indigeneity include:

       “(i) communal attachments to ‘place’; (ii) historical precedence over dominant
       societies; (iii) experience of severe disruption, dislocation and exploitation;
       (iv) ‘historical continuity’; (v) ongoing oppression/exclusion by dominant societal
       groups; (vi) distinct ethnic/cultural groups; and (vii) self-identification as an indigenous
       community” 22.

It has been argued that not all of the indicia are necessary in order to establish entitlement to
indigenous rights 23. In any event, it is clear that the attribution of the terms “indigenous” to a people
is a potentially complex task. Thus, it is not possible to reach any conclusion on whether the Raizales
are properly termed “indigenous” but, as described by Colombia in its pleadings, the Raizales clearly

       16 Reply of Nicaragua, para. 6.1.

       17 Reply of Nicaragua, para. 6.3.

       18 Reply of Nicaragua, para. 6.5; Judgment, para. 208.

       19 Counter-Memorial of Colombia, para. 2.68.

       20 Rejoinder of Colombia, para. 5.10.

       21 United Nations General Assembly resolution 61/295 “United Nations Declaration on the Rights of Indigenous

Peoples” (adopted on 13 September 2007), doc. A/RES/61/295 (2 October 2007).
       22 Stephen Allen, Nigel Bankes, Endalew Lijalem Enyew and Øyvind Ravna, “Introduction” in Stephen Allen,

Nigel Bankes and Øyvind Ravna (eds.), The Rights of Indigenous Peoples in Marine Areas, Hart 2019, p. 10; a similar
approach is found in Standard-setting activities: Evolution of standards concerning the rights of indigenous people,
Working Paper by the Chairperson-Rapporteur, Mrs. Erica-Irene A. Daes, on the concept of ‘indigenous people’”,
UN doc. E/CN.4/Sub.2/AC.4/1996/2, 10 June 1996, para. 69.
       23 Stephen Allen, Nigel Bankes, Endalew Lijalem Enyew and Øyvind Ravna, “Introduction” in Stephen Allen,

Nigel Bankes and Øyvind Ravna (eds.), The Rights of Indigenous Peoples in Marine Areas, Hart 2019, p. 10.

                                                           - 13 -

meet many of the above indicia suggesting that at the very least an analogy with indigenous rights is
appropriate.

      58. Treating the situation of the Raizales as akin to that of indigenous peoples finds indirect
support in the position of Nicaragua in the pleadings in this case and direct support in the statements
of President Ortega. Although Nicaragua’s pleadings assimilate the Raizales to the other inhabitants
of the San Andrés Archipelago, they refer to the Raizales as “Raizal people” reinforcing a
separateness from those other inhabitants of the Archipelago (see para. 54 above).

       59. President Ortega has consistently used language that emphasizes the analogy of the
Raizales with indigenous peoples. Shortly after the 2012 Judgment of the Court was delivered,
President Ortega spoke of the “Raizal brethren” and of being respectful of “the Principle of Native
Peoples” and of respect for their right to fish and navigate where they have historically navigated 24.
He later spoke of the “historical rights” of the Raizal people 25. He also spoke of the rights of the
Raizal people as rights of “Original People” 26. All of this is language of indigenous rights, not just
the language of traditional or artisanal fishing rights.

       60. Furthermore, President Ortega spoke of allowing the rights of the Raizales to “continue”,
and of “ensur[ing]” those rights 27. The context clearly shows that what was being assured was the
continuation of existing rights, not the creation of new rights where none had existed before.
President Ortega’s proposal for a “commission” was for a body to ensure the orderly continuation of
existing Raizal fishing. It was to help locate “where the [R]aizal people can fish in exercise of their
historic rights” 28. It was not a commission that would create a new right to fish.

      61. In short, when viewed from the perspective of Raizal rights as the rights of a specific group
with a strong analogy to indigenous rights, then President Ortega’s statements have much more
meaning. They are not just an expression about claims of the inhabitants of the San Andrés
Archipelago to traditional or artisanal fishing. Nor can they be explained away as President Ortega
wanting to be diplomatic or avoiding controversy and appeasing Colombia 29. They are a recognition
and validation of the claims of a particular community of “original peoples” to continue fishing as
they had in the past.

       62. Viewing the rights of the Raizales through an analogy with indigenous rights has certain
consequences for the conclusions reached by the Court. The Court assesses the statements of
President Ortega in terms of whether they could constitute recognition of traditional or artisanal
fishing rights or of a right to fish without prior authorization (Judgment, para. 227). The Court also
considers whether President Ortega’s statements constituted a unilateral declaration undertaking
legal obligations (Judgment, paras. 228-230). But a more appropriate focus would have been to

        24 Memorial of Nicaragua, Ann. 27.

        25 Counter-Memorial of Colombia, Ann. 74.

        26 Rejoinder of Colombia, Ann. 6.

         27 See, for example Memorial of Nicaragua, Ann. 27: “we [Nicaragua] fully respect their right to fish and to navigate

those waters, which they have historically navigated, and have also survived from the marine resources”; Counter-Memorial
of Colombia, Ann. 73: “we [Nicaragua] will respect the historical rights that they (the Raizals) have had over those
territories. We will find the mechanisms to ensure the right of the Raizal people to fish, in San Andrés”.
        28 Counter-Memorial of Colombia, Ann. 76.

        29 Reply of Nicaragua, para. 6.65; Additional pleading of Nicaragua, para. 2.29; CR 2021/6, pp. 24-25, paras. 29-32

(Martin).

                                                          - 14 -

consider what President Ortega was saying about the Raizales. He called them “original people”,
“native people”, and spoke of their “ancestral rights”. The traditional fishing rights of the Raizales
that he spoke of, were rights that flowed from their status as Raizal people. This is evidenced clearly
when President Ortega argues for a commission to delimit where the Raizales are to exercise their
fishing rights. He said: “they already have a permanent permit there, they do not have to be going for
a permit every day, why? Because they are in their lands, they are in their waters, they are in their
natural habitat.” 30 In short, for President Ortega, the right to a fishery was an inherent consequence
of who the Raizal people were. Their fishing in what were now Nicaragua’s waters was their right
because it was in “their lands”, in “their waters”. It was, President Ortega said, the Raizales “natural
habitat” 31.

      63. The language and imagery President Ortega used is consistent with indigenous rights. And
his statements should also be considered against the background of the jurisprudence of the
Inter-American Court of Human Rights which has consistently held that “tribal and indigenous
peoples” have rights to the natural resources that they have traditionally used 32. In light of such
developments in the Inter-American Court, it is not surprising that a president of a Latin American
country would refer to the Raizales in the language that President Ortega used.

       64. The fishing rights of indigenous peoples are recognized in the United Nations Declaration
on the Rights of Indigenous Peoples. Article 26, paragraph 1, provides: “Indigenous peoples have
the right to the lands, territories and resources which they have traditionally owned, occupied or
otherwise used or acquired” 33. This clearly covers indigenous fishing rights.

       65. However, the Court concludes that Colombia has not established that the Raizales enjoyed
traditional rights to fishing in Nicaragua’s EEZ. This conclusion is based on a rejection of affidavit
evidence of fishers provided by Colombia. But this is problematic in two ways. First, the standard
the Court set for establishing traditional fishing rights is essentially one that could never be reached.
Second, the Court failed to see the link between what was claimed in respect of the Raizales and
what was said about them, and about their right to fish in Nicaragua’s EEZ.

       66. With regard to the assessment of affidavit evidence, as the Court itself notes, it is unrealistic
to expect that evidence of what happened centuries ago can be gleaned from the affidavits of
contemporary fishers, particularly when their culture is not a written one. It is not surprising,
therefore that the Court concluded that the affidavit evidence had nothing to say about the location
of fishing of the Raizales some two hundred years ago (Judgment, para. 221).

       67. But if the claims in respect of the Raizales were seen as analogous to claims to indigenous
rights then a different approach must be taken. In this regard, the Court failed to appreciate the import

       30 Rejoinder of Colombia, Ann. 6.

       31 Ibid.

         32 Inter-American Court of Human Rights, Saramaka People v. Suriname, Ser C No 172, Judgment of 28

November 2007, para. 121: “members of tribal and indigenous communities have the right to own the natural resources
they have traditionally used within their territory for the same reasons that they have a right to own the land they have
traditionally used and occupied for centuries”; Kichwa Indigenous People of Sarayaku v. Ecuador, Ser C No 245, Judgment
of 27 June 2012, para. 146: “the protection of the territories of indigenous and tribal peoples also stems from the need to
guarantee the security and continuity of their control and use of natural resources, which in turn allows them to maintain
their way of living”.
       33 United Nations General Assembly resolution 61/295 “United Nations Declaration on the Rights of Indigenous

Peoples” (adopted on 13 September 2007), doc. A/RES/61/295 (2 October 2007).

                                                  - 15 -

of what President Ortega said. All of President Ortega’s statements were about the right of the
Raizales to engage in fishing in Nicaragua’s EEZ. For President Ortega it went without saying that
the original peoples, the Raizales, fished within the waters that were now subject to Nicaraguan
jurisdiction. It did not require affidavit evidence of such practices.

       68. Viewing the claims of the Raizales as akin to indigenous rights also makes irrelevant
another part of the Court’s reasoning, that relating to the position taken by the Ministry of Labour of
the Colombian Government in a complaint brought before the International Labour Organization
relating to the impact of the 2012 Judgment on the Raizales and other fishers of the San Andrés
Archipelago (Judgment, paras. 222-223). The rights of the Raizales that President Ortega was
referring to are not rights that can be abandoned by a department of a government seeking to protect
the reputation of its government in another international forum.

       69. In my view, the Court has failed to appreciate the real nature of the claim relating to the
Raizales in respect of the third counter-claim. It has reached a conclusion that does not accord with
the entitlement of the Raizales as reflected in the words of President Ortega — that the Raizales had
fished in waters that were now within the Nicaraguan EEZ and that, by virtue of their particular status
as “original peoples”, they were entitled to continue that fishing. All that was needed was an
arrangement between Nicaragua and Colombia to ensure the effective implementation of that right
to continue fishing.

       70. In paragraph 232, the Court supports the negotiation of an agreement between Nicaragua
and Colombia regarding access by the Raizales community to fisheries within Nicaragua’s EEZ. The
fact that the Court singles out the Raizales specifically and does not speak of an agreement for all the
inhabitants of the San Andrés Archipelago is a clear indication that the Court was at least implicitly
treating the Raizales as a distinct group. The negotiation of an agreement is an important step, but it
is unfortunate that the Court did not couple this recommendation with an affirmation of the rights
that the Raizales have. The purpose of such an agreement should not be to grant rights to the Raizales.
Rather, an agreement would, as President Ortega anticipated, provide the modalities to ensure that
Raizales could continue to exercise their right to a resource that they had traditionally fished but
which as a result of the 2012 Judgment was now in Nicaragua’s EEZ.

                                                    B

      71. I have voted against the Court’s conclusion that Nicaragua’s straight baselines do not
conform with customary international law. I did so because, in my view, the Court has based its
decision on a decontextualized application of the law relating to drawing straight baselines and
ignored State practice which should have been taken into account in interpreting the relevant
provisions of customary international law.

       72. The Court notes that the Parties accept that Article 7 of UNCLOS reflects customary
international law on drawing straight baselines and concludes itself that this is so (Judgment,
paras. 241-242). As result, the issue before the Court is whether Nicaragua’s straight baselines meet
the requirements of Article 7.

       73. In interpreting Article 7, the Court focuses on the criteria in paragraph 1 of that Article that
straight baselines can apply in localities where the coastline “is deeply indented and cut into” or
whether there is a “fringe of islands along the coast in its immediate vicinity”. In respect of
Nicaragua’s baseline between points 8 and 9 the Court asks whether the coast in the area meets the
requirement of being “deeply indented and cut into” (Judgment, para. 245). The baselines between

                                                        - 16 -

points 1 and 8 are tested by reference to whether there is a “fringe of islands” along the coast
(Judgment, para. 246).

       74. The terms of Article 7 are essentially a direct reflection of what was said in the
1951 Judgment in the Fisheries (United Kingdom v. Norway) case 34. Thus, the terms constitute a
description of the coasts of Norway as perceived in that Judgment. The difficulty is how to apply
these terms to coasts that are not identical to those of Norway 35. Thus, the challenge for the Court
was to give meaning to the terms “deeply indented and cut into” or “fringe of islands” along the coast
that can be readily applied to the coastal configurations in this case and can be used as guidance for
States in applying Article 7 to their own coastlines.

        75. Unfortunately, I do not consider that the Court has done this. It has taken the idea expressed
in the language of “deeply indented and cut into” and applied it by saying that the coastal indentations
of the Nicaragua coast “do not penetrate sufficiently inland or present characteristics sufficient for
the Court to consider the said portion as ‘deeply indented and cut into’” (Judgment, para. 245).
Resorting to the language of the 1951 Judgment, the Court refers to requirements of the coast being
of a “very distinctive configuration” or not “broken along its length”, or indentations “often
penetrating great distances inland” (ibid.). None of this is any more precise than the phrase “deeply
indented or cut into” of Article 7. The impression left is that the conclusion is based not on clear
criteria but on a subjective impression of what “deeply indented and cut into” means.

       76. The same applies to the Court’s treatment of the term “fringe of islands”. The Court notes
that in its 2012 Judgment it had referred to islands off Nicaragua’s coast as “fringing islands”, but
states that it did not do so as an interpretation of Article 7 (Judgment, para. 249). The fact that it had
used the term “fringe of islands” apparently to mean something different from the term “fringe of
islands” in Article 7, should itself have alerted the Court to the perils of trying to apply the term. The
closest the Court comes to elucidating the meaning of a “fringe of islands” is when it says that “the
phrase ‘fringe of islands’ implies that there should not be too small a number of such islands relative
to the length of coast” (Judgment, para. 252) and when it says, “a ‘fringe’ must enclose a set, or
cluster of islands which present an interconnected system with some consistency or continuity”
(Judgment, para. 254). But while such statements can provide an image of what the Court is seeking
to establish, the link between them and the Court’s conclusion that it “is not satisfied . . . that the
number of Nicaragua’s islands . . . is sufficient to constitute a ‘fringe of islands’ along Nicaragua’s
coast” (Judgment, para. 252) or that they “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” (Judgment,
para. 256) is simply not evident. In elaborating on the requirements for a fringe of islands the Court
also refers to islands having “a masking effect” (Judgment, para. 254), but this is as imprecise as the
terms to which it is supposed to give content.

       77. What is missing from the Court’s analysis is a treatment of State practice in drawing
straight baselines. The imprecision of the terms in Article 7 might well be lessened by considering
how States in practice have interpreted and applied those provisions. There are many examples of

       34 Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports 1951, p. 116; see Myron H. Nordquist,
Satya N. Nandan, Shabtai Rosenne (eds.), United Nations Convention on the Law of the Sea, 1982: A Commentary, Vol. II,
Dordrecht, Martinus Nijhoff 1985, para. 7.1.
       35 See Tullio Scovazzi, “Baselines”, Max Planck Encyclopedia of Public International Law, article last updated in

June 2007, para. 20.

                                                           - 17 -

State practice in drawing straight baselines, including the practice of Colombia itself 36. And when
viewed against that practice, the straight baselines of Nicaragua do not seem to be out of line with
the way States are interpreting Article 7. It is true that straight baselines are sometimes objected to
by neighbouring States, but even those instances are relatively rare. There is simply no widespread
objection by States to the way straight baselines have been drawn 37. Only one State has consistently
objected to straight baselines, reflecting its own view of what is appropriate. In light of this, it might
have been prudent for the Court to have been guided by what States have been doing when
establishing straight baselines.

      78. In short, what the Court has done is measure Nicaragua’s baselines against an impression
created by the words in Article 7, rather than giving concrete content to the words that would reduce
subjectivity and provide guidance not only on how the conclusion was reached in this case but on
how States should in the future be guided in the interpretation of Article 7. And this has been done
without reference to State practice. Yet there is significant State practice which can throw light on
how Article 7 has been interpreted and, if taken into account, would lead to a contrary conclusion.

       79. Ultimately, in my view, this was not the case for the Court to provide a definitive
interpretation of Article 7. It came by way of counter-claim, not as a principal claim, from a State
that itself had drawn straight baselines that do not appear dissimilar from the baselines it is
challenging. The case raised questions about how to assess the relevance of scale on the maps used
to depict the baselines. It involved challenges to the status of features that were claimed to be islands
and to the legitimacy of using them as base points. Yet the Parties did not ask the Court to appoint a
technical expert who could provide guidance on aspects of the pleadings of the Parties that would
have enabled the Court to reach definitive conclusions on some of these questions.

      80. There is no doubt that the law relating to straight baselines is in need of clarification and
perhaps the day will come when an appropriate case comes before the Court, where the matter can
be considered fully with a complete articulation by the Parties of all the issues, and technical support
provided for the Court. Unfortunately, that is not this case. I am concerned therefore that what the
Court has done will increase uncertainty in this area, rather than providing clarification, and will
leave States in considerable doubt about how to assess whether their straight baselines meet the
requirements of Article 7.

                                                                          (Signed)      Donald M. MCRAE.

                                                     ___________

         36 See International Law Association, “Baselines under the International Law of the Sea: Final Report” ILA Reports

of Conferences, Vol. 78 (2018), especially p. 124, para. 20, p. 126, para. 25, and p. 160, para. 105, with further references
therein.
        37 See ibid., p. 127, para. 27: “Not entirely surprisingly, the number of States which have protested relevant state

practice in this regard [i.e. in relation to the drawing of straight baselines], in proportion to the number of potentially
interested States, is very small.”