Nicaragua and Colombia are still battling in a dispute over the delimitation of their territory and sovereignty in the Caribbean Sea. Since 2001, and before the International Court of Justice in The Hague, the main judicial body of the United Nations, the two nations have been seeking others to decide for them on a resource that they share and in which they could jointly cooperate, protect and develop.
The dispute in The Hague began with the lawsuit filed by the Nicaraguan government in December 2001. It claimed a maritime area of more than 50,000 km2, including the San Andres and Providencia archipelago, as well as several atolls and cays.
Colombia had the option of submitting or not to arbitration by that court, but the governments in power opted for legalism and accepted that the Hague Court decide on the claim. Despite the fact that Colombia had the necessary historical, cultural, geographical, and legal arguments for the international court to be able to disqualify Nicaragua’s claims, this was not the case.
The historical background presented by Colombia
According to the Bárcenas Meneses-Esguerra Treaty signed in Managua in 1928, in which Colombia recognized the sovereignty of Nicaragua over the Mosquito Coast that goes from Cape Gracias a Dios to the San Juan River. Also the sovereignty of the Corn Islands.
For its part, Nicaragua recognized Colombia’s sovereignty over the San Andrés archipelago with all that it includes, excluding the Roncador, Quitasueño, and Serrania keys; the domain of which is in dispute between Colombia and the United States of America. Likewise, the Archipelago of San Andrés y Providencia does not extend to the west of the 82nd meridian of Greenwich.
This treaty was then ratified by both republics, in the same city, through the Protocol of 1930.
Interpretations of the Bárcenas Meneses-Esguerra Treaty
At the end of the sixties, Colombia, according to the treaty, defined the 82nd meridian as the ‘maritime border’. Based on the fact that if the Archipelago could not extend to the west of the 82nd meridian, it should be considered that this is where the border limitation resides, thus maintaining that it is a boundary treaty.
Nicaragua, for its part, on February 4, 1980, disavowed said treaty, alleging its invalidity on the grounds that it was signed at a time when Nicaragua was occupied by the United States. In addition, maintaining that the treaty did not set limits and in accordance with modern international law (Law of the Sea), it claimed its rights of maritime exclusivity.
Subsequently, The Hague Court ignores the principle of equity despite the fact that the treaty did not violate customary law or the Sea Convention since at that time it did not exist.
Judgment of the Court of The Hague December 2, 2007
6 years later, in December 2007, there was a fundamental precedent for this ruling: the ruling that concluded the incidental process initiated by Colombia was released —by presenting preliminary objections to the Nicaraguan claim—, through which Colombia’s sovereignty over the archipelago of San Andrés, Providencia, and Santa Catalina. At the same time, it established that it had jurisdiction to resolve the dispute over the maritime border between the two countries, advancing that the Colombian thesis, which established that the Colombia-Nicaragua international border ran on the 82nd meridian, was incorrect, for which reason it ordered that It would analyze the sovereignty of the other islands and keys, as well as that of their adjacent waters.
Judgment of the Court of The Hague November 19, 2012
Regarding the dispute between Colombia and Nicaragua, a judgment was issued by the International Court of Justice on November 19, 2012, where Colombia’s sovereignty over the islands of Alburquerque, Bajo Nuevo, Sureste, Quitasueño, Roncador, Serrana and Serranilla and, likewise, Nicaragua’s petition was declared admissible in order for the Court to decide the appropriate form of maritime delimitation, within the geographical and legal framework constituted by the continental coasts of Nicaragua and Colombia, dividing equally the overlapping rights to the continental shelf of both parts; Thus, the ruling established a single maritime borderline between the two countries, which delimits the continental shelf and the exclusive economic zones of Nicaragua and Colombia up to the limit of 200 nautical miles from the baselines from which the territorial sea of Nicaragua is measured. However, the precise location of the eastern ends of the maritime boundary could not be determined because Nicaragua had not yet notified the United Nations Secretary-General of the location of those baselines. In addition, it determined a single enclave maritime border around the islands of Quitasueño and Serrania.
This ruling would put an end to the territorial dispute between Colombia and Nicaragua in the southwestern Caribbean Sea, although this has not yet happened. Indeed, the delimitation is still open and undefined beyond 200 nautical miles from the continental coasts, an area on which the magistrates refrained from ruling.
Although the ruling is final, one or both litigating countries could eventually file an appeal for review before the same court, if it understands that new and decisive elements have appeared, which, being unknown, were not presented in the previous phases. . If this scenario were to occur, the Court should evaluate it, having an ample term of 10 years for it.
Judgment of the Court of The Hague April 21, 2022
Nicaragua’s claim against Colombia before the ICJ
Nicaragua alleges before the ICJ that Colombia has violated Nicaragua’s sovereign rights and jurisdiction in the exclusive economic zone of Nicaragua in various ways:
First, it alleges that Colombia has interfered with Nicaraguan-flagged or Nicaraguan-licensed marine scientific research and fishing vessels in this maritime zone in a series of incidents involving Colombian Navy vessels and aircraft. Nicaragua also claims that Colombia repeatedly directed its naval frigates and military aircraft to obstruct the Nicaraguan Navy in carrying out its mission in Nicaraguan waters.
Second, Nicaragua states that Colombia has granted fishing permits and authorizations for marine scientific research in Nicaragua’s exclusive economic zone to Colombians and nationals of third States.
Third, Nicaragua alleges that Colombia has violated its exclusive sovereign right to explore and exploit the natural resources in its exclusive economic zone by offering and awarding hydrocarbon blocks that encompass parts of that zone.
Nicaragua also objects to Presidential Decree No. 1946 of September 9, 2013, modified by Decree No. 1119 of June 17, 2014 (hereinafter “Presidential Decree 1946”), by which Colombia established an “integral contiguous zone” , which “ostensibly unified the maritime ‘contiguous zones’ of all the islands, keys and other maritime features of Colombia in the area”. Nicaragua asserts that the “integral contiguous zone” overlaps with waters attributed by the Court to Nicaragua as its exclusive economic zone and, therefore, “substantially infringes upon areas subject to Nicaragua’s exclusive sovereign rights and jurisdiction.”
Nicaragua further alleges that the Decree violates customary international law and that its mere promulgation engages Colombia’s international responsibility.
Defense by Colombia
First, the inhabitants of the San Andrés Archipelago, particularly the Raizales, enjoy artisanal fishing rights in the traditional fishing grounds located beyond the territorial sea of the islands of the San Andrés Archipelago. It maintains that Nicaragua has infringed the traditional fishing rights of the inhabitants of the San Andrés Archipelago to access their traditional fishing banks located in maritime spaces outside the territorial sea of the islands of the San Andrés Archipelago and those banks located on the coast. Colombian. maritime spaces, access to which requires sailing outside the territorial sea of the islands of the San Andrés Archipelago.
Second, Colombia challenges the legality of Nicaragua’s straight baselines established by Decree No. 33-2013 of August 19, 2013 (hereinafter “Decree 33”), which was promulgated by Nicaragua on August 27, 2013 and later modified in 2018. More specifically, Colombia maintains that the straight baselines, which connect a series of maritime landforms belonging to Nicaragua to the east of its continental coast in the Caribbean Sea, have the effect of pushing the outer limit of its territorial sea far to the east of the 12-mile limit permitted by international law, expanding Nicaragua’s internal waters, territorial sea, contiguous zone, exclusive economic zone, and continental shelf. According to Colombia, Nicaragua’s straight baselines thus directly impede the rights and jurisdiction to which Colombia is entitled in the Caribbean Sea.
the Court finds that Colombia has violated its international obligation to respect the sovereign rights and jurisdiction of Nicaragua in the latter’s exclusive economic zone by interfering with the fishing activities and marine scientific research of Nicaraguan-flagged or licensed vessels and with the operations of Nicaraguan naval vessels, and by trying to enforce conservation measures in that area.
the Court concludes that Colombia has violated the sovereign rights and jurisdiction of Nicaragua in its exclusive economic zone by authorizing vessels to carry out fishing activities in Nicaragua’s exclusive economic zone.
The Court finds that Nicaragua has not proven that Colombia continues to offer oil blocks located in Nicaragua’s exclusive economic zone. Therefore, it rejects the accusation that Colombia violated Nicaragua’s sovereign rights by granting oil exploration licenses.
In light of the foregoing considerations, the Court finds that Colombia has breached its international obligation to respect the sovereign rights and jurisdiction of Nicaragua in its exclusive economic zone:
by interfering with the fishing and marine scientific research activities of Nicaraguan flagged or licensed vessels and with the operations of Nicaraguan warships in the exclusive economic zone of Nicaragua;
(ii) by seeking to enforce conservation measures in the exclusive economic zone of Nicaragua; Y
(iii) through the authorization of fishing activities in the exclusive economic zone of Nicaragua. Colombia’s unlawful conduct engages its responsibility under international law.
“Integral Contiguous Zone” of Colombia
Nicaragua does not deny Colombia’s right to a contiguous zone, but maintains that both the geographical extent of the “integral contiguous zone” and the material scope of the powers that Colombia claims it can exercise therein exceed the limits permitted by customary international norms. over the adjacent area.
the Court concludes that Colombia has the right to establish a contiguous zone around the San Andrés Archipelago in accordance with customary international law. however, it does not have the right to extend it beyond the limit of 24 nautical miles to the detriment of the exercise by Nicaragua of its sovereign rights and jurisdiction in its exclusive economic zone. Likewise, the inclusion of security (e.g. drug trafficking, preservation of the environment and cultural heritage) in the material scope of Colombia’s faculties within the “contiguous integral zone” does not conform to the pertinent customary norm.
Counterclaims of Colombia (Artisanal fishing rights of the inhabitants of the San Andrés Archipelago)
The Court concludes that Colombia has failed to establish that the inhabitants of the San Andrés Archipelago, particularly the Raizales, enjoy artisanal fishing rights in waters now located in the exclusive economic zone of Nicaragua, or that Nicaragua, through the declarations unilateral actions of their Head of State, accepted or recognized their traditional fishing rights, or made a legal commitment to respect them. In light of all the foregoing considerations, the Court dismisses Colombia’s third counterclaim.
Notwithstanding, the foregoing conclusion, the Court takes note of Nicaragua’s willingness, expressed through statements by its Head of State, to negotiate with Colombia an agreement on the access of the members of the Raizales community to the fisheries located within the exclusive economic zone of Nicaragua. The Court considers that the most appropriate solution to address the concerns expressed by Colombia and its nationals regarding access to fisheries located within Nicaragua’s exclusive economic zone would be the negotiation of a bilateral agreement between the Parties.
Alleged violation of sovereign rights and maritime spaces due to the use of straight baselines by Nicaragua
the Court cannot accept Nicaragua’s contention that there is a continuous strip or an “intricate system of islands, islets, and reefs protecting this part of the coast” of Nicaragua. Nicaragua’s straight baselines thus deny Colombia its rights in the exclusive economic zone, including the freedoms of navigation and overflight and the laying of submarine cables and pipelines. Consequently, the Court concludes that the straight baselines established do not conform to customary international law.
From December 5 to 9, public hearings will be held on the latest claim for the delimitation of the continental shelf beyond 200 nautical miles from its recognized economic territory of Nicaragua against Colombia in The Hague. The Central American country will claim that it has the right to more maritime land than the current one. Despite the fact that they are still oral hearings and the demand has not been defined, if the demand is accepted by the court, Colombia would have the water, the fishing, the navigability, but not at the bottom of the sea since it would belong to Nicaragua.
The Court requests evidence and arguments from each nation as to whether there is an international customary rule that allows the continental shelf of a state to extend beyond 200 nautical miles of another state. Additionally, if there are criteria derived from customary international law that allow determining the limit of a continental shelf that extends beyond 200 nautical miles; in particular, if paragraphs 2 to 6 of article 76 of UNCLOS (a treaty to which Colombia is not a party) that can be considered as international custom.
“Colombia’s defense argues that in this case there is no question to delimit, nor any limit to establish, as there are no legal, institutional or scientific grounds that allow a delimitation of the continental shelf in response to Nicaragua’s claims”, says Carolina Olarte, Colombian co-agent of the Foreign Ministry to El Tiempo.
Once the Court has ruled, each country must decide whether to abide by the ruling or if together they can find a way to negotiate a treaty that benefits both parties where they can cooperate, protect and develop the sea and its shared soil bathes and disputes the two nations.
Source: ICJ, El Tiempo