2023-07-14 07:01:00
Olarte was seated in the front line of the Peace Palace podium listening to the 39 minutes of the reading of the ruling, a document that is condensed into 36 pages written in English and French – the official languages of the United Nations – in which the magistrates dismissed the Managua exhibits.
What was ruled this Thursday corresponds to one of the three cases in which Nicaragua sued Colombia in this century, the only one that remained open. In the litigation, the Caribbean State sought to have the power to exploit the soil and the marine subsoil beyond 200 nautical miles from its coast.
In technical language, that territory is called the extended continental shelf and the problem is that Managua intended to extend that geography to the piece of sea that is the jurisdiction of the Colombian State and that is part of its exclusive economic zone, where the raizales fish and the State grants exploitation contracts.
What was at stake were not the islands of San Andrés, Providencia and Santa Catalina, nor their keys, but a gap in Public International Law that would have forced the parties to coexist at sea.
Explained by Colombia’s agent before the ICJ, Eduardo Valencia-Ospina, “Nicaragua cannot claim any part, however small, of the bed and subsoil of the Colombian continental shelf.” The ICJ ruling studied the arguments put forward by the parties in two questions that were presented in the oral arguments in December 2022.
In the first one, the magistrates asked if according to customary international law – the law that governs customs between States – there was that presumed right to extend the continental shelf that Nicaragua claimed. In the second, the ICJ asked what the criteria would be to delimit that supposed right.
The Court accepted all of Colombia’s arguments in the first of those questions, which led it to dismiss the second point out of hand and conclude that: “In accordance with customary international law, the right to a continental shelf beyond 200 miles nautical miles from the baselines from which the breadth of its territorial sea is measured may not extend within 200 nautical miles from the baselines of another State. In simpler terms: that the territories cannot overlap.
The long litigation against Nicaragua
And although the ruling in The Hague was upheld in the oral hearings in December, the result of Colombia’s victory comes from a long process that began in 2001 with Nicaragua’s first lawsuit against Colombia. So far this century, that State has sued Colombia three times and the only litigation that remained open was the one ruled on Thursday.
Thus, at least before the international courts, no process is open between the two States of the three that have focused attention on binational relations since 2001 when the first litigation for a territorial and maritime dispute was filed.
That lawsuit ended in November 2012 with an ICJ ruling confirming Colombia’s sovereignty over the islands of San Andrés, Providencia, Santa Catalina and six cays, but which -on paper- Colombia lost part of your ocean.
From that decision the other two lawsuits were opened, one for the possible breach of Colombia to the 2012 ruling that closed its course in April 2022 and the one for the delimitation of the extended continental shelf that closed yesterday Thursday. Better said: territorial controversies have occupied the agendas of the last five presidents of the country –Andrés Pastrana, Álvaro Uribe, Juan Manuel Santos, Iván Duque and Gustavo Petro– and of all their foreign ministers.
Moreover, of the eleven moments that concerned this process, eight took place during the Presidency of Santos, with the management of María Ángela Holguín as foreign minister with decisive phases for the legal bid, such as the ruling and the hearings on preliminary objections.
The ninth moment of this litigation was a reply from Colombia to Nicaragua that was in charge of the Duque administration and, finally, during the Petro Government, the hearings on the legal issues of December 2022 and the reading of the ruling were held.
So, does the dispute between Colombia and Nicaragua have an end point? On the stands, yes; But there is one thing pending: Colombia’s compliance with the 2012 ICJ verdict and the subsequent ruling issued by that court in April 2022 on the same point.
“We have to think that this returns us to the 2012 ruling. We must define the scope of the ruling on the exclusive economic zone that gave us sovereignty over the Archipelago and the keys, but granted Nicaragua a zone and a series of cayos”, José Toro, professor of International Law at the Eafit University, draws attention.
For now, there will be no final point in that bid because Colombian presidents have defended that the Constitution prevents them from changing the borders and, therefore, complying with the 2012 ruling from The Hague. What’s more, the same Constitutional Court has already shielded that position of the Casa de Nariño, so there will be a pending issue to be resolved between the two States.
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