ICJ Rules Against Colombia in Territorial Fight with Nicaragua; President Santos Says Colombia Will Defend Territory ‘Until Death’

The International Court of Justice (ICJ) issued two judgments on March 17, 2016, favoring Nicaragua in separate lawsuits against Colombia concerning disputed maritime rights in the Caribbean Sea. In both cases, the court, located in The Hague, Netherlands, rejected Colombia’s jurisdictional objections and agreed to hear the merits of Nicaragua’s claims. This ruling simply means that the court will hear the claims and is not a final ruling on their merits.

“This is a total victory for Nicaragua,” said ambassador Carlos Arguello, Nicaragua’s agent before the court. According to Arguello, the effect of the court’s decision is to underscore that “its judgments must be complied with — period.”

After the ruling, Colombian President Juan Manuel Santos flew immediately to Colombia’s San Andres archipelago in the Caribbean where he laid out the government’s official position. “Colombians can be sure that, all united, we are going to continue defending to the last centimeter our territory,” said Santos. “For that I have called on the formation of a united front, firm, uncrushable to protect our interests in our Caribbean Sea.”

The government’s position was immediately endorsed by the administration’s chief critic, former President Alvaro Uribe, via Twitter.

On his visit to San Andres, Santos was accompanied by Foreign Relations Minister Maria Ángela Holguín, Minister of Defense Luis Carlos Villegas, and Minister of the Presidency Maria Lorena Gutiérrez.

Legal Ramifications

Nicaragua was represented in both cases by partners Paul Reichler and Lawrence Martin of Foley Hoag LLP, as well as professors Alain Pellet of France; Vaughan Lowe of the U.K.; Antonio Remiro of Spain; and Alex Oude Elferink of the Netherlands. Reichler hailed the court’s decision, saying that it facilitates judicial resolution of disputes over maritime entitlements in the extended continental shelf, and that it brings the court into conformity with other tribunals, especially the International Tribunal for the Law of the Sea (ITLOS) in Hamburg. “The ICJ now joins ITLOS and arbitral tribunals in enabling expeditious judicial resolution of continental shelf boundary disputes, instead of subjecting them to interminable and arcane procedural obstacles,” Reichler said.

“The court’s rejection of Colombia’s jurisdictional defenses clears the way for Nicaragua to vindicate and expand its rights to the waters and seabed of the Western Caribbean Sea, including oil and gas resources,” said Reichler, the Chair of Foley Hoag’s international litigation and arbitration practice.

In the first of the two decisions, the court found that it had jurisdiction to consider Nicaragua’s claims that Colombia had violated its rights under a 2012 judgment unanimously awarding Nicaragua vast amounts of sea and seabed that Colombia had also claimed. The court will now hear and decide whether Colombia has violated the terms of that judgment, as Nicaragua has alleged.

In the second case, the court determined that it would consider Nicaragua’s claim to an extended continental shelf beyond 200 nautical miles from its Caribbean coast, a claim that the court declined to consider in 2012. The court explained that, in the interim, Nicaragua had complied with certain obligations under the United Nations Convention on the Law of the Sea which had not been fulfilled at the time of the prior case.

140 miles east of Nicaragua and 470 miles north of Colombia in the Caribbean, San Andres is a tourist destination rivaling Cartagena in Popularity. its territorial waters are rich with aquatic fauna & potential petroleum reserves. (Photo: Wikipedia)

Complex history

San Andres has had an English speaking population with a Caribbean culture since 1630 when Puritan pilgrims from England arrived with captive African slaves. The Spanish military took control of the island  to put an end to the privateering raids on their ships taking place from the island, and held it until it was taken over by the famous English pirate, Captain Morgan in 1670. He and other pirates ran the island until 1689 when Spain regained control, and held the islands except for a brief period from 1820-1821.

During that interlude, French privateer Louis Michel Aury landed in San Andres and used it as a base from which to attack and “liberate” Central America. Aury apparently wanted to join forces with Simon Bolivar, fighting for independence from Spain in Gran Colombia, but apparently, Bolivar never responded to his overtures. Aury died in the islands in 1821.

Upon the fall of Spain’s colonies and the rise of Gran Colombia (now Colombia, Venezuela & Ecuador), administrative control of San Andres went to Colombia. Nicaragua protested Colombia’s control, but in 1928 signed a treaty recognizing Colombia’s sovereignty over the islands.

The United States also laid claim to some of the islands, and invited the Raizal residents to secede during the United State’s dispute with Colombia over the Panama Canal project, leading to the secession and independence of Panamá from Colombia in 1903. The United States ceded claims to Serrana and Roncador Bank to Colombia in 1981, though still claims jurisdiction over Bajo Nuevo and Serranilla Bank, as do Honduras, Nicaragua, Jamaica, and Colombia.

In 2001 Daniel Ortega’s Sandinista government rejected the validity of the treaty, claiming it was signed under duress from the United States. In 2007, the ICJ ruled that the islands did belong to Colombia, but did not rule on maritime boundaries, which is the current matter of dispute before the court.

The descendants of the slaves that originally landed on the island are known as Raizales, and maintain a distinct, Caribbean-influenced culture. Many still speak English, and the population is largely Protestant.

Uncertain future

President Santos during his visit stated that Colombia will not permit third parties to intervene in the disputes Colombia has with other countries, and since the court’s ruling, Colombia simply will no longer participate in the court’s proceedings, saying the rulings “were a confirmation that this court is not what is best for Colombia.” Said Santos, “We will not keep appearing,” in reference to the ICJ.

Santos also met with the Raizales community, and assured them that their interests would be put first. “The inhabitants of the archipelago will have a clear forceful participation in any future negotiations we have, to defend their interests and the interests of the archipelago in a treaty with any other country, but especially with Nicaragua. Fishing rights and maritime territory use must also be established,” said the president.

Colombian Guided Missile Frigate Caldas

While Santos said Colombia will no longer recognize the ICJ, the administration is willing to negotiate directly with Nicaragua.  It is not clear what other options Nicaragua may have, as the ICJ has no real enforcement mechanism of its own. Nicaragua has no deepwater navy, while Colombia has considerable fleets of guided missile frigates and submarines in both the Atlantic and the Pacific. Nicaragua’s Sandinista government is close allies with Cuba and Venezuela, while Colombia has a close military cooperation pact with the United States.  While this imbalance makes for a strong negotiating position, it is unlikely that matters would escalate into a hot conflict, because of the military power imbalance and unpredictable diplomatic externalities.