ASIL Insights

Nicaragua's Application asserts that the so-called Barcenas-Esguerra Treaty of March 24, 1928 cannot provide a legal basis for Colombian title to the Archipelago of San Andrés, because it is not a valid treaty of delimitation.  In Nicaragua's view, the islands and keys of San Andrés and Providencía became a part of the sovereign territory of Nicaragua after the dissolution of the Federation of Central American States in 1838.

The Application further asserts that, by claiming sovereignty over the islands of San Andrés and Providencía and certain keys, Colombia claims dominion over more than 50,000 square kilometers of maritime space that appertains to Nicaragua, or more than half the maritime spaces of Nicaragua in the Caribbean Sea.  According to Nicaragua, this situation seriously imperils the livelihood of the people on its Caribbean coast.  The Application also refers to incidents where the Colombian navy has intercepted and captured Nicaraguan fishing vessels in areas lying only 70 miles off the Nicaraguan coast.

Nicaragua's Application requests the Court to declare that Nicaragua has sovereignty over the islands of San Andrés, Providencía and Santa Catalina and all the appurtenant islands and keys, as well as other keys capable of appropriation.  In addition, Nicaragua is asking the Court to fix a single maritime boundary between the areas of both states' continental shelf (i.e., the sea-bed and subsoil of the submarine areas that extend beyond a state's territorial sea throughout the natural prolongation of its land territory to a certain distance) and exclusive economic zone (i.e., an area beyond and adjacent to the territorial sea up to 200 nautical miles from the baselines from which the breadth of the territorial sea is measured).  Finally, Nicaragua has reserved the right to claim compensation for Colombia's alleged unjust enrichment stemming from its possession of the disputed islands and keys and for Colombia's interference with fishing vessels owned or licensed by Nicaraguan parties.

As the basis of the Court's jurisdiction, Nicaragua is relying, first, on Article XXXI of the American Treaty on Pacific Settlement (the "Pact of Bogotá") of April 30, 1948, which has been ratified by both parties.  According to Article XXXI of the Bogotá Pact, the parties "recognize, in relation to any other American state, the jurisdiction of the Court as compulsory ipso facto . in all disputes of a juridical nature that arise among them."  Second, Nicaragua has invoked the declarations whereby the two states have accepted the Court's compulsory jurisdiction under the so-called "Optional Clause" contained in the ICJ Statute.  In 1988, Nicaragua successfully invoked the Bogotá Pact in a case against Honduras (Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 69 (Dec. 20)).  In that case, the ICJ declined to rule whether the Optional Clause declarations of Nicaragua and Honduras also conferred jurisdiction upon the Court.  Nicaragua's declaration was previously found valid in the case brought by Nicaragua against the United States in 1984.

As is usual in "involuntary" cases brought unilaterally by claimant states, Colombia is likely to argue that the Court lacks jurisdiction to entertain Nicaragua's Application and/or that the Application is inadmissible, which arguments usually are dealt with by way of a separate, initial phase of the proceedings.  Colombia will be guided in its defense by the Court's treatment of the arguments advanced by Honduras in Border and Transborder Armed Actions.  For example, Article II of the Pact limits recourse to the ICJ to situations where a matter "cannot be settled by direct negotiations through the usual diplomatic channels."  The ICJ held in 1988 that both parties must have been of the view that further direct negotiations were futile before it can assume jurisdiction under the Pact of Bogotá.  Nicaragua maintains that diplomatic negotiations with Colombia have failed.

If Nicaragua prevails on jurisdiction, it will find guidance in recent ICJ decisions fixing a single maritime boundary involving more than one delimitation (i.e., delimiting territorial seas/continental shelves/exclusive economic zones).  The Court has used this technique in the past in cases involving Canada and the United States (1984), Denmark and Norway (1993), and, most recently, Qatar and Bahrain (2001), where it undertook this task on the basis of customary international law.  The customary international law of the sea will also be the applicable law in this case, given that only Colombia is a party to the 1958 Convention on the Continental Shelf and only Nicaragua has ratified the 1982 United Nations Convention on the Law of the Sea.  If Nicaragua ultimately is successful on the merits, it could claim monetary compensation for damage sustained and proven by it in a separate phase of the proceedings.  The ICJ has only once awarded monetary compensation to a victorious state, namely in its first ever decision on the merits of a contentious case, issued in 1949.

The text of the Court's brief press communiqué on this case (No. 2001/34) is available on its Web site: <http://www.icj-cij.org>.

Almost exactly two years ago, on December 8, 1999, Nicaragua instituted proceedings against Honduras over a dispute concerning Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea.  That case is still pending.

About the Author: 
Dr. Pieter H.F. Bekker practices international law and arbitration at White & Case LLP in New York City, and formerly served as a staff lawyer in the Registry of the ICJ in The Hague.  He co-chaired the 94^th Annual Meeting of the American Society of International Law in April 2000.  He has written a book "Commentaries on World Court Decisions (1987-1996)" and numerous articles and notes on the ICJ.  His next book, "The World Court at the Turn of the Millennium (1997-2001)," is scheduled to be published in March 2002.
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ASIL Insights are intended to identify international law issues in order to provide a basis for informed discussion of current events. They are not intended to be definitive, and they do not necessarily reflect the views of all members of The American Society of International Law. The Society itself takes no position on these issues.