155- Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua vs Colombia)
On November 26th 2013, the Republic of Nicaragua filed before the International Court of Justice (the Court) an application instituting proceedings against the Republic of Colombia for alleged violations of its sovereign rights and maritime spaces in the Caribbean Sea.
This case is a direct follow-up to the Territorial and Maritime Dispute between Nicaragua and Colombia in which the Court had granted sovereignty over certain maritime areas and the delimitation of the continental shelves between the two countries. Directly after the Judgement of 19 November 2012, the Colombian President announced in an official communication that his country would not submit to the ICJ’s decision.
The Colombian authorities undertook important steps following this judgment which was deemed unfavourable to them. At the international level, they claimed that the ICJ was an “enemy”. At the regional level, the countrydeposited the instruments of withdrawal from the Pact of Bogota. Finally, at the national level, the President of the Republic on the one hand refused access to the waters internationally recognized as Nicaraguan by the Court, ordered the Colombian naval forces to defend the area “by the sword” in need be while on the other hand, issuing a Decree creating a single economic zone.
In its initial Submissions, Nicaragua requested the Court to hold that:
- Colombia has violated Article 4, paragraph 2, of the Charter of the United Nations and customary law by threatening to use force;
- Colombia must comply with the judgment of November 19th, 2012 and therefore cease all illegal action in areas internationally recognized as Nicaraguan in accordance with customary law but also with the International Convention on the Law of the Sea.
Colombia raised preliminary objections:
- It first considered that the International Court of Justice did not have jurisdiction to hear the case on the basis of the Bogota Pact insofar as the instruments of withdrawal from the Covenant had been deposited on November 27th, 2012 with immediate effect. The Court noted that the relevant provisions were found in article LVI of the Pact: while the first paragraph allows any State party to denounce the instrument, the second paragraph specifies that denunciation shall have no effect on ongoing proceedings initiated before the transmission of the denunciation to the other Contracting Parties. Nicaragua could therefore rely on the Pact of Bogota to sue Colombia before the ICJ;
- It then maintained that there was no dispute between the two countries within the meaning of the applicable international instruments, a prerequisite for any referral to the Court: in the present case, the ICJ noted that numerous formal and informal discussions had taken place between the representatives of the two States and that it was apparent from the words of the President of Colombia that no solution had yet been found. There was therefore indeed a dispute between the two countries before the filing of the application instituting the proceedings.
- It further asserted that the ICJ had no “inherent power” to hear the case since the Bogota Pact was not applicable in the present case. Having concluded that article LVI of the Pact confers jurisdiction Rationae Temporis to the Court, the latter did not consider this plea;
- Finally, it concluded that the Court had no jurisdiction to enforce its judgments: the Court notes that this plea is in line with the question of its “inherent power” to which it has already been dealt with.
The Court therefore declared it had jurisdiction to hear the case and affirmed that the application was admissible.
Colombia in turn made counterclaims. Of the 4 pleas submitted to the ICJ, only 2 met the criteria of jurisdiction of the Court and of direct connection with the main contention. It therefore agreed to consider whether Nicaragua had violated the right of artisanal fishermen in the San Andrés archipelago, including those from the indigenous Raizale population, to access and exploit the banks where they used to fish. It will also examine the contention that by adopting Decree No 33-2013 of 19 August 2013, which established straight baselines with the effect, in its view, of extending beyond what is permitted by international law, Nicaragua has violated its jurisdiction and sovereign rights.
Public hearings were held from September 20th to October 1st, 2021. The Court delivered its judgment on the merits of the case on April 21st, 2022.
It firstly reaffirmed its jurisdiction to hear the case and the admissibility of the proceedings. With regard to the merits of the case, the ICJ considered that:
- Colombia has violated Nicaragua’s sovereign rights in its internationally recognized waters by impeding fishing or research activities by Nicaraguan-flagged vessels and vessels;
- By authorizing fishing activities in the areas concerned (Nicaraguan Exclusive Economic Zone), Colombia has violated Nicaragua’s sovereign rights and must immediately cease the above-mentioned conduct;
- The Single Contiguous Zone established by Colombia in its 2013 Decree as amended by the 2014 Decree is not in conformity with customary international law;
- Colombia must amend its national law and specifically the 2013 Decree as amended by the 2014 Decree in order to comply with customary international law;
- The straight baselines established by Nicaragua in its 2013 Decree amended by the 2018 Decree are not in conformity with customary international law.
- All other applications are rejected.
This summary of the facts of this case and the proceedings is only proposed for informational purposes, does not engage Dome in any way and cannot replace the careful reading of the judgments and orders of the case.
