ICJ orders Colombia immediately to cease activities in Nicaraguan EEZ waters

On April 21, 2022, the International Court of Justice (ICJ) delivered judgment in Nicaragua v. Colombia concerning alleged violations of sovereign rights and maritime spaces in the Caribbean Sea. Following a ruling rendered in 2012 in a territorial and maritime dispute between the two countries, the ICJ determined that Colombia breached its international obligation to respect Nicaragua’s sovereign rights and jurisdiction by patrolling and trying to control fishing in areas that the ICJ had previously held to be within Nicaragua's exclusive economic zone (EEZ). The ICJ considered that these activities engaged Colombia’s responsibility under international law and determined that Colombia must immediately cease its wrongful conduct.

Background

At the beginning of the twentieth century, Colombia, Nicaragua, and the United States claimed sovereignty over areas southwest of the Caribbean Sea, north of Colombia, and east of Nicaragua.

On December 6, 2001, Nicaragua commenced proceedings before the ICJ against Colombia concerning title to territory and maritime delimitation in the western Caribbean pursuant to international customary law (as reflected in certain provisions of the United Nations Convention on the Law of the Sea (UNCLOS))[1] and the dispute settlement mechanisms provided for under the American Treaty on Pacific Settlement of 1948 (known as the “Pact of Bogota”).[2]

Colombia contested the ICJ’s jurisdiction based on the treaty signed in 1928 between Colombia and Nicaragua (the “1928 Treaty”), which Colombia argued had settled the issue of sovereignty over the islands of San Andrés, Providencia, Santa Catalina, and the maritime features forming part of the San Andrés Archipelago, thereby excluding the ICJ’s jurisdiction to resolve any disputes arising out of the Pact of Bogota.

       1) 2007 Ruling

On December 13, 2007, the ICJ partially rejected Colombia’s objection to jurisdiction in a judgment concerning preliminary objections (the 2007 Ruling). The ICJ considered that, while the 1928 Treaty had settled the issue of sovereignty over the islands of San Andrés, Providencia and Santa Catalina, it had not effected a general delimitation of the maritime areas between the two countries, nor had it identified which other maritime features formed part of the rest of the San Andrés Archipelago. As a consequence, the ICJ retained jurisdiction under the Pact of Bogotá over Nicaragua’s maritime and sovereign claims to areas other than the islands of San Andrés, Providencia, and Santa Catalina.

      2) 2012 Ruling

On November 19, 2012, in a decision on the merits of the case, the ICJ granted Nicaragua the control of a large amount of the western Caribbean surrounding waters and seabed (the 2012 Ruling).  The ICJ, however considered that Colombia, and not Nicaragua, had sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana, and Serranilla, as it had continuously and consistently acted as the sovereign entity in respect of the maritime features in dispute. Colombia refused to recognize the 2012 Ruling and shortly after the ruling it withdrew from the Pact of Bogota, thus renouncing the ICJ’s jurisdiction to resolve its “disputes of a juridical nature that arise among [the signatories of the Pact of Bogota] concerning any question of international law.”

For more information on the findings of the 2012 Ruling and the consequences of Colombia’s withdrawal from the Pact of Bogota, please check our previous post.

2013 Proceedings

In 2013, Nicaragua filed a new case before the ICJ, claiming Colombia violated the 2012 Ruling by continuing to patrol and control fishing activities in areas within Nicaragua’s EEZ.

Colombia denied Nicaragua's claims insisting that no violation of the 2012 Ruling regarding the maritime boundaries in the western Caribbean had taken place.  Colombia stated that the patrolling of the area was intended to prevent smugglers and drug trafficking, as well as protect the Seaflower Marine Reserve, protected by UNESCO, which intersects with Nicaragua’s EEZ in accordance with the 2012 Ruling.

2022 Ruling

On April 21, 2022, the ICJ decided that it had jurisdiction under the Pact of Bogota to settle the dispute regarding the alleged violations of Nicaragua’s rights in the maritime zones pursuant to the 2012 Ruling as well as certain counter-claims Colombia submitted against Nicaragua (the 2022 Ruling).

First, the Court determined that Colombia had violated Nicaragua’s sovereign rights by (1) interfering with fishing and marine scientific research activities of Nicaraguan naval vessels; and (2) authorizing fishing activities in the EEZ; as well as (3) purporting to enforce conservation measures in that zone.  Accordingly, the ICJ ordered Colombia to cease its wrongful conduct immediately. However, the Court held that Colombia retained its right to patrol the area in relation to drug trafficking and transnational crime.

The ICJ also ordered Colombia to “bring into conformity with customary international law” and the 2012 Ruling a presidential decree issued in 2013 which established the maritime areas around Colombia in the disputed area. Taking note of Nicaragua’s willingness to negotiate an agreement with Colombia to settle the dispute, the ICJ considered that “the most appropriate solution to address the concerns expressed by Colombia and its nationals in respect of access to fisheries located within Nicaragua’s exclusive economic zone would be the negotiation of a bilateral agreement between the Parties.”

Second, the ICJ determined that two of the four counter-claims Colombia had raised were admissible.  The first of these two counter-claims, however, was rejected on the merits as the ICJ found that inhabitants of the San Andrés Archipelago (including the Raizal community) did not enjoy artisanal fishing rights in waters which were now located in Nicaragua’s EEZ and therefore there was no violation of such rights.

The ICJ did grant Colombia’s second counter-claim, finding that the baselines Nicaragua used to delimit its territorial waters after the 2012 Ruling did not follow customary international law.  Because Nicaragua’s baselines were unsettled at the time of the 2012 Ruling, the ICJ had delimited the maritime boundary between Nicaragua and Colombia on an approximate basis.  Subsequently, Nicaragua enacted ‘Decree 33’ establishing a system of nine straight baselines along its Caribbean coast to measure the breadth of its territorial sea.  Colombia argued in these proceedings that Decree 33 produced an artificial overlap of Nicaragua’s EEZ with Colombia’s EEZ and continental shelf, thus violating the necessary geographical preconditions required under Article 7 of UNCLOS, which reflects the customary international law on the use of straight baselines.

The ICJ stated that the straight baselines method “must be applied restrictively,” and determined that certain of the straight baseline segments defined by Decree 33 denied Colombia the rights to which it is entitled in its EEZ, including the freedom of navigation, as provided under customary international law reflected in Article 58, paragraph 1 of UNCLOS.

Comment

The ICJ's 2022 Ruling, following on from the 2012 Ruling, has brought greater certainty to a dispute of long-standing in this maritime area. The Contracting States of the Pact of Bogota are required to implement the ICJ’s rulings, but it remains unclear whether Colombia will now comply, given its historic refusal to comply with the 2012 Ruling, alleging that only a bilateral treaty between Colombia and Nicaragua could modify the maritime borders.  Further, following the 2022 Ruling, Colombia’s President Ivan Duque has reportedly stated that he will not allow Nicaragua to limit the rights of Colombia in the Caribbean Sea or those of the Raizal community of the San Andrés and Providencia archipelago.

For more information, please contact Andrew Cannon, Partner, Christian Leathley, Partner, Florencia Villaggi, Of Counsel, Daniela Paez, Associate, Emily Westphalen, Associate or your usual Herbert Smith Freehills contact.

[1]       Unlike Nicaragua, Colombia is not a party to UNCLOS.  However, for purposes of the dispute, Nicaragua and Colombia agreed that “a number of the provisions of UNCLOS that they refer to reflect customary international law.” See 2022 Ruling, ¶ 48.

[2]       Under the Pact of Bogota, certain Latin American countries agreed to settle their controversies through pacific proceedings, without the use of force or any other means of coercion, while also recognizing the jurisdiction of the ICJ to resolve all disputes of a legal nature that arise among them concerning (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute the breach of an international obligation; and (d) the nature or extent of the reparation to be made for the breach of an international obligation.  To date, Chile, Colombia, Costa Rica, Dominican Republic, El Salvador, Haiti, Mexico, Nicaragua, Panama, Paraguay, Peru, and Uruguay have ratified the Pact of Bogota.