Eight years ago on the 19th of November Colombia lost 43% of its ocean territory. A decision by the International Court of Justice (ICJ) in The Hague, which deprived Colombia of its right to preserve its Caribbean marine biodiversity, its artisanal fishing zone near San Andres and Providencia and oil-rich seabed.
On Monday, November 19, 2012, Colombia’s maritime and ocean affairs received devastating news. At the seat of the International Court of Justice in The Hague, they redefined the maritime boundaries between Colombia and Nicaragua, leaving the latter with 43% of the sea that previously belonged to the Colombians.
Background
The Island territory of the Archipelago of San Andrés, Providencia, Santa Catalina, and the keys was surrendered to the sovereignty of Colombia on November 20, 1803 by means of a Royal Order granted by the King of Spain. In the said order, the Islands and the Mosquito Coast that were in the control of the Captaincy General of Guatemala became part of the Viceroyalty of New Granada; justifying the request presented by the Governor of San Andres, Tomas O’Neill and a group of neighbors about the threat and danger of the presence of Buccaneers and pirates in the Archipelago.
Once the Gran Colombia became independent, it continued considering the Islands and the Coast of Mosquitos like part of Cundinamarca and the Isthmus between 1819 and 1830. Likewise, it remains as a territory in the so-called República de la Nueva Granada, which today is known as Colombia, although without effective control of the territory by the same.
In March 1825, the Treaty of Union, League and Perpetual Confederation between the Federal Republic of Central America and Colombia was signed, where it was agreed that the limits between both nations would be those existing at that time. This treaty invoked the principle of uti possidetis iure of 1810, where the borders between Spanish provinces belonging to viceroyalties or capitalizes were determined under existing royal orders or cédulas of territorial division. Consequently, Colombia and the successor states of the Federal Republic of Central America (Nicaragua) were obliged to abide by the Royal Order of 1806 issued before the beginning of 1810. In accordance with international law, Colombia would exercise sovereignty over the Islands of San Andrés and Providencia.
After the dissolution of the Captaincy General of Guatemala, the new states had to recognize the agreements made by the former Captaincy. Nevertheless, Nicaragua intended to exercise sovereignty over the Mangrove Islands, belonging to the San Andres Archipelago, situation for which Colombia interposed a lawsuit at the ICJ through its chancellor Jorge Holguín, indicating that these are sovereign of Colombia.
By means of the Esguerra-Bárcenas Treaty, signed by the plenipotentiaries of the two nations, the difference over the territory is settled and Colombia is granted sovereignty up to the 82nd meridian; that is, to the east and Nicaragua from that meridian to the west.
In the ratification, Nicaragua clarifies that “the Archipelago of San Andrés mentioned in the first clause of the Treaty does not extend to the west of the 82nd meridian of Greenwich… “. It is clear from the ratification that the Esguerra-Bárcenas Treaty does not establish limits between the two countries.
Timeline
March 24, 1928: Signature of the Esguerra-Bárcenas Treaty
6 December 2001: Nicaragua denounces Colombia to the ICJ
April 8, 2003: Nicaragua presents the Annual Report on time
21 July 2003: Colombia submits Preliminary Objections to the ICJ
13 December 2007: ICJ rules on Exceptions
November 11, 2008: Colombia submits its Counter-Memorial to the Court
September 18, 2009: Nicaragua submitted its Replica document
June 18, 2010: Colombia delivered its Rejoinder
October 11-15, 2010: Costa Rica’s Request for Intervention Hearings
October 18-22, 2010: Hearings on Honduras’ request for intervention
May 4, 2011: Ruling on the request for intervention of the two countries
April 23 to May 4, 2012: Start of the Oral Phase (Public Hearings)
November 19, 2012: The ICJ issues its final judgment, which is final and binding on the parties
June 14, 2013: Colombia reiterates its rejection of the ICJ ruling
Positions of each Nation
Colombia assures that the territories have historically belonged to it with the signing of the Esguerra-Bárcenas treaty in 1928, however, this treaty did not set the maritime limits between Colombia and Nicaragua in the 82nd meridian as the Colombian government assured.
Nicaragua alleges invalidity of the treaty by alleging U.S. occupation during the signing. It also alleges that the law of the sea (UNCLOS) had not arisen at that time and therefore the rights of maritime exclusivity that are currently recognized to states are violated.
Litigation
On December 6, 2001, Nicaragua initiates before the International Court of Justice the Case of the Republic of Nicaragua v. the Republic of Colombia with respect to the “Legal Aspects subsisting between the two States
In 2007 the ICJ ruled in favor of Colombia, giving rise to the preliminary objections invoked by this country, against the lawsuit filed by Nicaragua, recognizing Colombian sovereignty over the islands of San Andrés, Providencia and Santa Catalina. Mentioning that this conflict is resolved by the Esguerra-Bárcenas treaty of 1928; however, the court did not define the maritime border between the two countries, an oil-rich area, requesting the arguments of each country to conclude the pending judgment on the merits.
On November 19, 2012, the ICJ ruled on Nicaragua’s claim against Colombia, arguing that the archipelago belongs to Colombia, reaffirming Colombia’s sovereignty over San Andres, Providencia and the keys of Alburquerque, Roncador, Serrana, Bajo Nuevo, Quitasueño and Serranilla. However, with this ruling Colombia loses 43% of its maritime territory in the Caribbean.
Colombia rejected the ICJ ruling arguing that the court made serious mistakes in drawing the line of demarcation. On November 27, 2012, Colombia denounced before the OAS the Bogotá Pact, an instrument by which Colombia recognized the obligatory jurisdiction of the ICJ. After Colombia withdrew from the Bogotá Pact, the government of Juan Manuel Santos stated that the limits should not be left in the hands of a court, since this principle is shared by other countries that have taken the same position as Colombia.
On June 14, 2013, the Colombian Senate, headed by its president, Roy Barreras, reiterated that the Congress of the Republic of Colombia does not accept the modification of the borders because of the ICJ ruling. According to Barreras “the presence of a judge of Chinese nationality, who not only did not declare herself impeded, but also did not admit to the High Court the commercial motivations, which would be behind the ruling against Colombia, make even more evident the need to reject that ruling and reiterate Colombian sovereignty, above all our land and maritime territory, as it has been since before November 19, 2012. He recalled that Articles 101 and 150 of the National Constitution clearly determine that Congress accepts or not the verification of national limits exclusively through the ratification of international treaties, a ruling that is also questionable in this case”.
Current situation
After the passage of Hurricane Iota on the island of San Andres and Providencia, this problem is revived. According to Infobae; Julio Londoño Paredes, current dean of the Faculty of International, Political and Urban Studies of the University of Rosario and, for many years, Colombia’s special agent for the dispute with Nicaragua, told El Espectador that “Colombia never worried about the archipelago, even in the 19th century, the government at the time instructed the Colombian ambassador at that time in Washington, Enrique Cortés, to try to sell it to the United States, but at that time the Americans were not interested”.
Londoño pointed out to the media that only with the creation of the Gustavo Rojas Pinilla International Airport did the country begin to value the archipelago. During the last few days, the inhabitants of the islands are reviving their years-long claim to the current government, calling themselves a “forgotten territory” in which there is still much to be done.
Editorial
The lack of awareness of our maritime and ocean affairs together with the years of neglect and mismanagement at the IMO has resulted in a legal and sovereignty vacuum that isolates San Andres and Providencia and leaves its artisanal fishermen without their source of livelihood. It also puts at risk the care and conservation of the marine biodiversity of the Caribbean Sea in the 82nd meridian.
Nowdays, the fish for consumption is being imported from Brazil and other countries through shipping to an island full of artisanal fishermen and surrounded by fish and crustaceans.
