According to the reflections of (Wang and Xi, 2023) in the case of Nicaragua v. Colombia, the International Court of Justice (ICJ) issued a judgment regarding traditional fishing rights. On November 15th, 2017, the Court accepted Colombia’s counterclaims concerning the artisanal fishing rights of residents of San Andrés Islands and the legality of Nicaragua’s straight baselines system.

Previously, in 2012, the Court had determined that Colombia held sovereignty over the San Andrés Archipelago in the southwestern Caribbean Sea. However, this sovereignty was given reduced weight in establishing the boundary between the two states. Nicaragua was fully entitled to a 200 NM Exclusive Economic Zone (EEZ). This 2012 judgment was considered to “reconfigure the maritime delimitation in the region” and potentially impact those with interests in oil, gas, or fisheries in the Caribbean Sea.

In this particular case, Colombia argued that the alleged traditional fishing rights of the Raizales community were based on local custom. Although some of the fishing areas where Colombian fishermen operated fell within Nicaragua’s EEZ, Colombia claimed that the ICJ’s maritime delimitation ruling should not affect these rights. Colombia contended that Nicaragua had recognized the survival of these rights despite the establishment of the EEZ, citing relevant acts and declarations by the Head of State.

However, it was emphasized that these acts should not be interpreted as a defense of historical fishing rights. According to the interpretation of relevant provisions under the United Nations Convention on the Law of the Sea (UNCLOS), the negotiating history, and international jurisprudence, it was argued that traditional fishing rights, including artisanal rights, no longer existed as a result of the establishment of the EEZ regime.

Colombia failed to prove the existence of traditional fishing practices for many centuries

Furthermore in the analysis provided by (Wang and Xi, 2023) it states that Colombia was unable to prove the existence of traditional fishing practices in Nicaragua’s Exclusive Economic Zone (EEZ) over many centuries. The court analyzed whether Colombian fishing practices fulfilled the criteria of being “traditional” by referring to practices that had been carried out for generations or an extended period. Colombia had the burden of proof to demonstrate that the residents of San Andrés Archipelago, particularly the Raizales people, had historically engaged in artisanal fishing in areas falling within Nicaragua’s EEZ, and that it formed an uncontested local customary norm or customary rights of access and exploitation. Colombia presented 11 fishermen’s affidavits as evidence, but the court approached them cautiously, considering that they were provided by one party.

Upon review, the court found no evidence supporting Colombia’s claim that these fishing activities had taken place continuously over many decades or centuries. Some fishermen stated that they only fished outside the Colombian Archipelagos a few times a year, while others claimed to have fished in these areas since the 1980s and 1990s. Colombia argued that the timeframe was insufficient to support their claim of local customs or customary rights of artisanal fishing and that these activities did not constitute a long-standing practice in this case. Moreover, most fishermen stated that they operated in the waters around Colombian Archipelagos or within Colombian Territorial Sea, not in Nicaragua’s EEZ. The 11 affidavits submitted by Colombia failed to prove that the residents of San Andrés Archipelago, especially the Raizales people, had engaged in historic fishing activities in the traditional fishing grounds located in the waters now falling within Nicaragua’s EEZ for a significant period.

In addition to fishermen’s affidavits, Colombia referred to evidence from statements before the International Labour Organization’s Committee of Experts on the Application of Conventions and Recommendations and Resolution No. 0121 of Colombia’s General Maritime Directorate of 28 April 2004. The Colombian General Confederate of Labour (CGT) stated that the 2012 ruling had negatively impacted traditional fishing, leading to difficulties and fines for Raizal fishers who had to cross Nicaraguan maritime territory. However, the Colombian government’s Ministry of Labour claimed that the artisanal fishermen of San Andrés Archipelago had not been affected by the 2012 ruling, although it failed to provide evidence supporting the assertion that the traditional fishing sites were precisely located in areas unaffected by the decision. These conflicting statements from official sources further weakened Colombia’s argument for the continued existence of traditional fishing rights.

Finally, the court examined an official report submitted by Colombia, which focused on the impact of the 2012 judgment on industrial fishing rather than artisanal fishing. The report depicted the locations of traditional fishing areas where artisanal fishermen typically stayed near the Colombian Archipelagos and rarely entered Nicaragua’s EEZ. Based on this report, the court concluded that it further undermined the existence of long-standing traditional fishing practices by Colombia in Nicaragua’s EEZ.

Nicaragua does not explicitly recognize the existence of traditional fishing rights of Colombia in Nicaragua’s EEZ

In the light of the reflections by (Wang and Xi, 2023),  Nicaragua does not explicitly recognize Colombia’s traditional fishing rights in Nicaragua’s Exclusive Economic Zone (EEZ). According to Colombia, Nicaraguan President Ortega has made statements acknowledging the traditional fishing rights of the Raizales community in the waters now falling within Nicaragua’s EEZ. However, Nicaragua argues that a fishing permit or authorization from Nicaragua is required for artisanal or industrial fishing in the Raizales community or the Archipelago.

Nicaragua suggests that certain mechanisms need to be established for Nicaraguan and Colombian fishermen to operate in waters within Nicaragua’s EEZ, as outlined in the 2012 judgment. President Ortega proposes the creation of a commission to determine fishing areas for the Raizal people, an agreement between Colombia and Nicaragua to regulate the situation, or the establishment of a Nicaraguan consular section on San Andrés Island to address fishing permits for the Raizal community.

The Court does not find Colombia’s argument convincing that Nicaragua has recognized the Raizales’ right to fish within Nicaragua’s EEZ without prior authorization. It is questioned whether President Ortega’s unilateral statement creates a legal commitment granting rights to artisanal fishermen. Additionally, Colombia faces challenges in implementing the 2012 judgment, and Nicaragua is aware of the fishing issues involving the Archipelago’s inhabitants. Colombia expresses interest in reaching an agreement to address these challenges and adjust its domestic legislation accordingly.

The Court concludes that Colombia has failed to prove the existence of artisanal fishing rights for the inhabitants of the San Andrés Archipelago, particularly the Raizales, in Nicaragua’s EEZ. Nicaragua has not recognized or accepted their traditional fishing rights, nor has it legally committed to respecting them through unilateral statements by its Head of State. The Court suggests that an agreement should be negotiated between the two states regarding the Raizales community’s access to fisheries in Nicaragua’s EEZ.

According to the Court, other states have the right to enjoy freedom of navigation in the EEZ based on customary international law and UNCLOS Article 58. As a result, the Archipelago’s inhabitants, including the Raizales, have unrestricted access to Nicaragua’s EEZ, including when traveling between inhabited islands and fishing areas on Colombia’s side.

Reflections on the ICJ’s judgment concerning traditional fishing rights in Nicaragua v. Colombia

In the ICJ’s judgment on traditional fishing rights in Nicaragua v. Colombia, (Wang and Xi, 2023) aggregates that the majority of the Court supported the recognition of these rights, with only Judge ad hoc McRae issuing a dissenting opinion. This analysis focuses on three key reflections regarding the judgment. Firstly, the study examines the Court’s legal standards for determining the existence of traditional fishing rights. Scholars have identified two elements in identifying these rights: the continuous exercise of rights over a long period of time and the acknowledgment or acquiescence of concerned states. The Court adopted both of these criteria in the case, specifically considering the indigenous population of the San Andrés Archipelago, known as the Raizales, and their entitlement to traditional fishing rights.

Regarding the time element, traditional fishing rights are established through long-standing usage. Although the Colombian evidence provided testimony from fishermen spanning several decades, the Court deemed that the frequency of fishing activities, described as “a few times a year,” was insufficient to qualify as a “long-standing practice.” The Court required clear records of specific fishing activities, and affidavits from Colombian fishermen were considered inadequate due to the lack of contemporary evidence and the absence of a written record of their culture. The Court emphasized the need for sufficient proof of actual engagement in fishing activities, and the acceptance of evidence may require flexibility in considering its probative value.

Judge Xue, in a separate opinion, discussed two principal elements for establishing traditional fishing rights: artisanal fishing as evidence and the consistent continuation of such fishing activities over a lengthy period. However, there is no fixed number of years to measure the duration, as it must be sufficiently long to reflect a tradition and culture. Judge Xue’s approach appears to advocate for flexibility regarding the types of evidence and the length of time required to support a claim.

Secondly, the Court examined the acknowledgment or acquiescence of traditional fishing rights. It considered statements by Nicaraguan President Ortega but did not find express or implied recognition of Colombian fishermen’s rights, particularly those of the Raizales,

Whether traditional fishing rights as pre-existing rights are extinguished by the EEZ regime of the UNCLOS

The authors (Wang and Xi, 2023), the issue of whether traditional fishing rights continue to exist after the establishment of an Exclusive Economic Zone (EEZ) under the United Nations Convention on the Law of the Sea (UNCLOS) is a topic of controversy. Some scholars argue that historic rights are recognized and respected under general international law and are not denied by UNCLOS. On the other hand, some scholars believe that a state’s claim to historical fishing rights within another state’s EEZ is subject to the latter’s exclusive fishing rights in those waters.

Judge Xue, in the context of the Nicaragua v. Colombia case, upheld the view that customary international law recognizes and protects traditional fishing rights. The negotiating history of UNCLOS also indicates that the relationship between historic rights and the regimes of the EEZ and continental shelf was not intended to be settled. Therefore, customary international law can still address traditional fishing rights.

Traditional fishing is characterized by artisanal methods practiced for centuries. While Nicaragua argues that UNCLOS explicitly preserves traditional fishing rights of neighboring states in the waters of archipelagic states, Judge Xue disagrees and considers it as a special regime confined to archipelagos.

According to Judge Xue and supported by international case law, pre-existing rights continue to exist unless explicitly denied by treaty law or new customary law. The existence of traditional fishing rights is not precluded by UNCLOS, and state practice recognizes these rights independent of the treaty rules.

The South China Sea Arbitration Award, which dealt with historic rights, is a subject of controversy. Some commentators agree with the Tribunal’s interpretation that only rights expressly mentioned in UNCLOS can continue to exist, while others argue that historic rights governed by general international law are not in conflict with UNCLOS.

The relationship between historic rights, including traditional fishing rights, and the EEZ regime under UNCLOS remains a debated topic in international adjudication. Recent cases and the positions taken by states indicate that these debates are likely to continue in the future. International courts and tribunals play a crucial role in safeguarding the peaceful use of oceans among all states, whether they are parties to UNCLOS or not.

Whether Raizales’ fishing rights are analogous to indigenous rights

(Wang and Xi, 2023) state that scholars in the field of law of the sea have explored how international human rights principles apply to maritime matters. The recognition of indigenous peoples’ rights to their traditional resources, as stated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), is a significant factor in understanding the perspective of Raizales’ fishing rights.

Judge MacRae objected to the Court’s decision on traditional fishing rights and argued that the Raizales’ situation could be treated similarly to that of indigenous peoples. He referred to statements made by President Ortega of Nicaragua, which described Raizales’ fishing rights using language typically associated with indigenous rights. Judge MacRae believed that this acknowledgment by President Ortega supported the claim of the Raizales to continue fishing in their traditional manner, drawing on the jurisprudence that recognizes indigenous peoples’ natural rights.

However, the Court’s decision did not explicitly address the claim of indigenous rights in Colombia and instead focused on traditional fishing rights. Judge ad hoc McRae acknowledged several issues with this decision. The Court failed to establish the standards required to recognize traditional fishing rights, and they did not consider the link between the Raizales’ claims and their right to fish in the Exclusive Economic Zone (EEZ). The Court hoped that the involved countries would negotiate an agreement specifically addressing the fishing activities of the Raizales, rather than applying to all inhabitants of the San Andrés Archipelago.

While Judge MacRae’s argument centered on the Raizales as an indigenous group, the Court emphasized that other residents of the archipelago also had an equal need for fishing rights within Nicaragua’s EEZ. Recognizing the Raizales as an indigenous group might not fully address the demands of all fishermen in the region. This complexity arises from the potential identification of multiple groups with fishing rights, placing a burden on the Court.

The relationship between fishing rights and indigenous rights has been extensively debated, reflecting the interactions between different legal frameworks concerning territorial boundaries and the rights of indigenous peoples. Some scholars argue that the right to fish is inherent in indigenous culture and advocate for the recognition of fishing rights for specific indigenous groups, such as the Saami people in Norway, the Maori in New Zealand, and the Chagossian in the Chagos Archipelago, based on their property rights under UNDRIP.

Law of the sea scholars suggest that coastal states should exercise their authority over resource rights in a manner consistent with their obligations under international human rights law concerning indigenous peoples. Sociocultural scholars also highlight the need to consider environmental and human dimensions in resolving maritime disputes and protecting coastal livelihoods and marine ecosystems.

In this context, the Court’s proposal for the parties to negotiate an agreement regarding fisheries access in Nicaragua’s EEZ should be given serious consideration. Additionally, regional efforts for common enforcement, fisheries policy, and ecosystem-based management approaches can contribute to the sustainability of Caribbean fisheries.

Conclusions

Lastly, (Wang and Xi, 2023) concludes that the 2022 judgment between Nicaragua and Colombia aimed to address the bilateral fishery dispute and the controversy surrounding traditional fishing rights. However, certain concerns arise from the judgment. Firstly, the Court’s strict approach to the time element led to the rejection of Colombian traditional fishing practices from several centuries ago. While contemporary fishermen couldn’t provide evidence from that period, the Court didn’t specify the conditions for meeting the time requirement. Judge Xue suggests that some flexibility may be necessary in terms of evidence and proceedings duration.

Secondly, the Court refrained from clarifying the relationship between traditional fishing rights and the Exclusive Economic Zone (EEZ) regime under the United Nations Convention on the Law of the Sea (UNCLOS). Although the ICJ missed an opportunity to interpret this controversial issue, customary international law still recognizes traditional fishing rights independent of the EEZ regime. Leading scholars argue that a state can possess rights beyond those specified in UNCLOS if they derive from pre-existing treaties or customary international law and align with UNCLOS. Traditional fishing rights fall under this category and must be respected and preserved even under UNCLOS.

Thirdly, the Court avoided addressing Colombian claims of traditional fishing rights as indigenous rights, particularly for the Raizales. While ad hoc Judge McRae supported the Colombian claim, it remains uncertain how the indigenous status of other inhabitants in the San Andrés Archipelago will be addressed. Given the impact of climate change-induced sea level rise on indigenous island communities, both the Raizales and other minority groups in the archipelago are likely to be affected in the future. Although some scholars advocate for applying human rights norms to the law of the sea, the Nicaragua v. Colombia judgment indicates that the Court adopts a cautious approach to this matter.

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