By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies
International law moves at a slow pace, much slower than what we can expect in domestic courts. In different international law courses I teach for the University, I stress the patience that is needed for these kinds of cases. Cases take years to be settled, and this particular one is no different.
Last month, we saw an example of why that patience is necessary regarding the case of “Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia).” The disagreement between these two countries concerns a territorial dispute over some cays and islands in the Caribbean Sea.
On April 21, the United Nations International Court of Justice (ICJ) ordered the Colombian navy to stop interfering in Nicaraguan waters. According to France 24, the ICJ said that “by interfering with fishing and marine research activities of Nicaraguan-flagged vessels … in Nicaragua’s exclusive economic zone … Colombia has violated Nicaragua’s sovereign rights and jurisdiction.” It also ordered Colombia to stop all its activities.
Most importantly, the ICJ stated in its decision that Colombia’s declaration that it controls the contested area is unlawful according to international law. It ordered Colombia to publicly declare that all such declarations are null and void.
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This Case Is Not the First Disagreement Between Nicaragua and Colombia
This case, however, is not the first time that Nicaragua and Colombia have gone to court. It is a follow-up to a case that began in 2001. A third case, which began in September 2013, is still pending.
In 2001, Nicaragua began proceedings in a different case, “Territorial and Maritime Dispute (Nicaragua v. Colombia).” In this case, Nicaragua focused on the status of the San Andrés archipelago involving several islands and cays. This archipelago is over 400 miles from Colombia and over 70 miles from Nicaragua.
In its 2012 decision on this case, the ICJ found that Colombia had sovereignty over several of the contested islands. However, it also redrew the maritime borders between the two countries, giving Nicaragua more maritime territory.
The 2012 decision increased Nicaragua’s continental shelf and its exclusive economic zone (EEZ) that gives Nicaragua jurisdiction over natural maritime resources in the EEZ. In international law, the continental shelf refers to an area that might be outside the territorial waters of a coastal nation but has resources that are still under the economic control of that nation. In the United Nations Convention of Laws of the Sea (UNCLOS), the continental shelf includes the economic rights of fishing and mining.
According to UNCLOS, an EEZ is 200 nautical miles from a nation’s territorial sea baseline and provides a nation with exclusive economic rights in the continental shelf area. By contrast, territorial waters end 12 nautical miles from the territorial sea baseline where a nation has full sovereignty.
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What Does the ICJ’s Decision Mean?
In the context of both regional and global politics, this case is a good sign. It shows that even in countries where there is a limited history of regional cooperation or democratic values, there are peaceful ways to deal with international disputes without violence.
It is interesting to note that there were some conciliatory declarations from Colombia after the release of the decision. According to ABC News, Colombia’s representative to the ICJ, Carlos Gustavo Arrieta Padilla, said: “They limited some of [Columbia’s] functions in the sense that they cannot undertake environmental control activities, which is a shame because we do have the ability to do that. But nevertheless, the court maintained the possibility of the Colombian navy being there and doing operations in the fight against organized crime in the area.”
Joseph Jessie, a representative of an Afro-Caribbean ethnic group living on the Colombian islands of San Andres and Providencia, expressed his satisfaction with the ICJ’s ruling. In an audio recording shared by Colombia’s foreign ministry, Jessie stated “that he felt a sense of ‘mission accomplished’ because the court recognized his community’s fishing rights.”
The US Perspective
Nicaragua has a long history of utilizing the ICJ and is part of some important case law. For example, there is the 1986 case of “Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),” which was a watershed moment in international law.
The ICJ found that the U.S. violated international law by supporting the right-wing rebellion of the contras against the socialist government of Nicaragua. That case became a foundation regarding foreign intervention in civil wars. Similarly, the 2022 ruling on the Nicaragua v. Colombia case could change U.S. behavior in the future.
From the perspective of the United States, it is interesting to see how UNCLOS has become integral to international law. The U.S. has always had a difficult time with UNCLOS and has never ratified it.
Over several decades, many countries have ratified UNCLOS, and the U.S. has accepted many parts of it as customary international law. But even today, there is still strong opposition to the ratification of UNCLOS in Congress because some fear that UNCLOS will limit U.S. sovereignty on the maritime front.
UNCLOS has also become part of the U.S. legal discourse concerning maritime law. Perhaps this case involving Nicaragua and Colombia is another sign that it is time to reevaluate the U.S. position on UNCLOS. It seems that even in these troubled times when there is a possibility of war returning to Europe, international law has the potential to bring about a more peaceful global arena.
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