Is the continental shelf beyond 200 nautical miles limited by the 200-nautical-mile limit of another State? – Questioning the ICJ’s answer

The International Court of Justice (Court) in Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 nautical miles from the Nicaraguan Coast (Nicaragua v. Colombia) determined that “under customary international law, a State’s entitlement to a continental shelf beyond 200 nautical miles from the baselines from which the breadth of its territorial sea is measured may not extend within 200 nautical miles from the baselines of another State”.

In its reasoning leading up to this determination, the Court considered the interpretation of in particular articles 56 and 76 of the United Nations Convention on the Law of the Sea (UNCLOS) and the question what rules of customary law are applicable to the matter at hand. While academic commentaries have criticized the Court’s approach on the second of these issues, this is less so as far as the interpretation of articles 56 and 76 of the UNCLOS is concerned. For that reason, my presentation will consider the arguments the Court advanced in its interpretation of these articles, considering the text of these provisions, and the Court’s reliance on its 1985 judgment in Libya/Malta and the drafting history of the provisions of the UNCLOS dealing with the regime of the continental shelf. I will also consider the Court’s finding that the two Bay of Bengal cases, decided by respectively by the International Tribunal for the Law of the Sea and an Annex VII tribunal were of no assistance to the Court in answering the question about the relationship between the continental shelf beyond 200 nautical miles and the continental shelf of another State within 200 nautical miles.

In conclusion, the presentation submits that the Court’s reasoning is unpersuasive and poses the question whether we now are facing of fragmentation of the jurisprudence on this issue and whether the Court’s findings represent the final say on the matter. Finally, the question is raised what may explain the Court’s approach to handling the oral proceedings the way it did, only asking two legal questions to the parties instead of hearing the whole case.