File picture of a case before the International Court of Justice in The Hague (Netherlands). Agency Anadolu (via Getty Images)
The International Court of Justice (ICJ), based in The Hague (Netherlands), will on Thursday issue a new ruling on the border dispute in the Caribbean Sea, which Nicaragua and Colombia have been facing for years. On that occasion, he will decide on the process that the Central American country began in 2013 to extend its continental shelf beyond its equivalent 200 nautical miles – to the point of overlapping with the Exclusive Economic Zone of its South American neighbor. Court President Joan Donoghue will report on the decision at a public hearing at the Peace Palace at 3:00 p.m. Thursday (7:00 a.m. in Nicaragua and 8:00 a.m. in Colombia).
What is the background?
Disputes between Colombia and Nicaragua over their territorial borders in the Caribbean Sea date back to colonial times. Although both countries signed a treaty in 1928, the Nicaraguan government ignored its validity in 1979 because it had been signed during the US occupation. In 2001, Nicaragua presented the first of three demands to The Hague: in this case, sovereignty over the islands of San Andrés, Providencia and Santa Catalina. Eleven years later, the court upheld Colombia’s rights in the archipelago, while Nicaragua recognized a greater expanse of sea territory than it already had.
The second lawsuit occurred in 2012. Managua complained that Bogotá was still conducting fishing and patrolling activities in the waters that the court recognized as part of Nicaraguan territory the previous year. Colombia, in turn, replied that Nicaragua had unilaterally changed the way it measured its equivalent 200 nautical miles from its shores. In April 2022, the ICJ found that Colombia violated Nicaragua’s sovereign rights and called for an immediate halt to fishing activities that the Central American country had denounced. However, the court declared that the new Managua measures were not in accordance with international law.
What claim does Nicaragua make in this third trial?
Newsletter
Analysis of current affairs and the best stories from Colombia, every week in your mailbox
GET THIS
The case being defined this Thursday is the third initiated by Nicaragua, also in 2013. It is not related to the decision the court made in April 2022 regarding the violation of the 2012 verdict. Rather, it refers to the demarcation of the Central American country’s continental shelf and the oil and gas deposits on the sea floor.
Nicaragua posits that there is an uninterrupted natural extension of the continent from its shores, extending beyond its 200 nautical miles. It should be noted that in this case Article 76 of the 1982 United Nations Convention on the Law of the Sea recognizes the right of countries to expand their platforms. The problem is that the delimitation made by Nicaragua extends the 200 nautical miles that correspond to Colombia from its continental coasts.
What competence does the ICJ have to decide in this case?
Colombia’s first strategy was to denounce that the international court did not have jurisdiction to rule on the case. The main argument was that the government of Juan Manuel Santos had abandoned the Bogotá Pact in 2012 after the first sentence. In 1948, this treaty recognized the jurisdiction of the Court of Justice to decide disputes between Latin American countries.
The ICJ ruled in 2016 that it had jurisdiction in both the second and third proceedings. There is a clause in the Bogotá Pact that states that the jurisdiction of the international court ends only one year after the country involved has withdrawn from the agreement. Nicaragua had filed its third lawsuit a few days before that deadline.
How did Colombia defend itself?
Forced to defend itself, Colombia has argued that it never ratified the 1982 United Nations Convention on the Law of the Sea. For this reason, it considers that a report that the Platform Limits Commission prepared a few years ago in favor of Nicaragua has not been ratified and is valid. Continental, a group of experts who must define the disputes under the 1982 treaty. Nicaragua’s response is that the UN Convention has become part of customary law, based on customs that states internalize over time and which are accepted as binding on all.
The South American country reiterates that common law refers to general principles of continental shelves and not to the technicalities of delimiting territories. In addition, Colombia argues that another international custom speaks in its favor in any case: States generally do not require the extension of their continental shelves when the continent’s natural extension collides with another country’s 200 miles. There are precedents in treaties between Canada and the United States, Australia and Indonesia, and the Maldives and Sri Lanka.
Are there any clues as to the decision?
Walter Arévalo, professor at the Faculty of Law at the Universidad del Rosario, explains on the phone that it is important to take into account the hearings of the International Court of Justice last December. It was the first time in the history of the court that it was decided to narrow down the subjects to be dealt with over the course of a week of sessions. The lawyers for Colombia and Nicaragua had to focus their argument on answering just two questions: Is there a norm in common law for delimiting platforms and how can these extensions be delimited when they are related to the 200 nautical miles that one another Country match, overlap? .
“The public request alone shows that the heart of the matter is at stake and anticipates a large part of the decision,” says Arévalo, who is also president of the Colombian Academy of International Law. For example, the debate is not about whether the Nicaraguan platform actually has the scale that the Central American country claims to have. What matters is whether the Convention’s measurement methods are accepted as part of an international custom that also applies to countries that have not signed the Convention. Arévalo also sees Colombia as right with its strategy of also debating whether it is goodwill practice not to call for an expansion of the platform in the event of overlaps with another country.
What impact can the judgment have?
The decision of the ICJ is binding. However, countries can create bilateral arrangements to set out the details of how the ruling is implemented – as Chile and Peru did after a 2014 ruling. In April last year, the ICJ took into account in its decision on the second procedure that both countries must reach an agreement in order to settle their territorial disputes and avoid constant incidents at sea. The problem is that Colombia has never had a favorable political climate for negotiations, and Nicaragua has so far made no commitments following its court victories.
Professor Arévalo also points to the international implications that the decision may have. For him, a ruling favorable to Nicaragua can set the precedent that an extension of the continental shelf is permissible even if it overlaps with another state’s exclusive economic zone. Countries that in the past refrained from asserting these claims out of goodwill could now reopen closed disputes. “If Norway stopped against Denmark for something similar, if Japan stopped against Palau… wouldn’t that mean that the behavior of these other states could be reconsidered?” wonders the expert.
Subscribe here to the EL PAÍS newsletter on Colombia and receive all the latest information about the country.