Written by: Professor Steven Haines[1]

On 19 November 2012 in The Hague, the International Court of Justice (ICJ) handed down its Judgement in the case between Nicaragua and Colombia concerning the two States’ dispute over territory and maritime jurisdiction in the south-western region of the Caribbean.[2] The following day, Claire O’Neill McCleskey posted an article on the InSightCrime website in which she raised the possibility that the Court’s decision would have negative consequences in relation to the combating of serious crime in the region.[3]   What was it about the case that prompted this immediate reaction – and was that reaction justified?  Indeed, are there any international criminal law consequences of the Judgement?  The aim of this note is to provide a brief account of the case, its background and the manner in which the Court dealt with it, and to follow that up with some comment on whether or not there are likely to be significant consequences in relation to international crime and criminal law.

Background to the Case

The case was initiated by Nicaragua in December 2001.  Seventy-three years earlier, the 1928 Barcenas-Esguerra Treaty had dealt with issues of sovereignty of islands in the region and for some time after that there was no obvious dispute between the two States.  There were certainly no maritime boundary issues because, in 1928, the only cause for such would have been a dispute over overlapping claims to three nautical mile territorial seas; the islands were so far offshore (over 100 nautical miles) that this was simply not an issue – or regarded as potentially so.

On the basis of its interpretation of the 1928 treaty, Colombia exercised sovereignty over several islands that were in very much closer proximity to the Nicaraguan coast than they were to Colombia’s.  Three island groups in particular – San Andres, Providencia and Santa Catalina – were habitable islands that were expressly dealt with in the 1928 treaty.  Today they are important tourist destinations in the region.  San Andres (pop: 70,000) is just over 100 nautical miles from the Nicaraguan coast, while Providencia (pop: 5,000) and Santa Catalina are about 50 nautical miles to the north east of San Andres and about 125 nautical miles from the Nicaraguan coast.  All three islands are in the region of 380 nautical miles from the Colombian coast.  Two other physical features located to the north of San Andres, Providencia and Santa Catalina – Quitasueňo and Serrana – are very low lying, uninhabited banks or cays that were not expressly covered by the provisions of the 1928 treaty but which Colombia has always since then regarded as its territory.  There was, though, some doubt as to the extent to which Quitasueno remained dry at high tide, a factor that the Court was required to consider.  If it remained above sea level at high tide, it would be classed as an island and would generate a territorial sea – although almost certainly not an EEZ, as to do so it would need to be able to sustain human habitation or economic life under Article 121(3) of the 1982 United Nations Convention on the Law of the Sea (1982 UNCLOS).  If it was submerged at high tide it would not qualify for island status, would not be appropriable as sovereign territory, and could not, therefore, generate a territorial sea or any other jurisdictional zone.

At the time the 1928 treaty was negotiated, the potential for substantial resource exploitation in the waters between the two States had not been a consideration and had not influenced the terms of the treaty. The islands claimed by Colombia generated a three mile territorial sea but Colombian sovereignty over them had relatively little geo-political, legal or, indeed, economic, impact on the region.  As the resources of the continental shelf emerged as a significant factor shaping the law of the sea in the second half of the twentieth century, however, the terms of the 1928 treaty increasingly came to be seen by Nicaragua as disadvantageous. Colombian sovereignty over the islands would have substantial impact as newly extended coastal state jurisdiction was established.  The location of the islands had the potential greatly to restrict the extent of Nicaraguan continental shelf and exclusive economic claims while at the same time giving Colombia a disproportionately large area of jurisdiction.  Nicaragua came to regard the situation as inequitable in the new era of extended jurisdiction and maritime resource exploitation, especially given the fact that the islands at the heart of the dispute were three times as distant from the Colombian mainland as they were from the Nicaraguan.  The latter began to challenge Colombian sovereignty of the islands. The result was that the claims of both States to continental shelf and exclusive economic jurisdiction overlapped significantly and the dispute intensified as the potential for economic exploitation increased.

In very general terms, this is the historical background to the dispute (more detail can be found in the Court’s Judgement and in the papers presented by both sides during the case.) Nicaragua took the case to the ICJ confident that the Court would award it sovereignty over key islands.  It then expected the Court to define a maritime boundary using Nicaraguan sovereignty of the islands to establish its continental shelf and exclusive economic zone (EEZ) in substantial areas previously claimed by Colombia.  Colombia, on the other hand, while reluctant to place the dispute with the Court, was anticipating a rejection of Nicaraguan claims for sovereignty over the islands, which it assumed would leave the Colombian claimed continental shelf and EEZ largely intact.

The Progress of the Case and the Court’s Judgement

The Court took seventeen days short of eleven years to reach its Judgement. One might ask why it took so long.  The answer lies in a combination of procedural requirements, the need for the Court initially to consider its own jurisdiction before moving on to the merits of the dispute itself, and technical complexities.

Following Nicaragua’s filing of its Application in 2001, there followed the usual promulgation by the Court of deadlines for the submission of the Nicaraguan Memorial and the Colombian Counter-Memorial; these were set for April and June 2003 respectively.  In July 2003, however, Colombia raised preliminary objections as to the Court’s jurisdiction and the proceedings on the merits were duly suspended.  Public hearings on the preliminary objections were held in June 2007 and the Court handed down its judgement on these in December that year.  With one important exception (see below), it concluded that it did have jurisdiction to adjudicate on the dispute.

Colombia was then given a new deadline of 11 November 2008 to submit its Counter-Memorial on the merits.  This was met and there followed a further round of deadlines for a Nicaraguan Reply (18 September 2009) and a Colombian Rejoinder (18 June 2010).  Public hearings on the merits were eventually held between 23 April and 4 May 2012, with the Judgement handed down six months later.

Maritime boundary disputes are frequently complicated by technical factors and this was certainly true in this case, in which hydrographic evidence concerning maritime features and tidal effects was submitted to the Court by both parties. Their representatives in the proceedings included both legal counsel and scientific and technical advisers, and each party challenged the other’s scientific and technical methodologies in the process.  The principal technical issues in focus in relation to the question of sovereignty were to do with whether or not certain physical features qualified as islands or cays, or were merely raised banks that only dried at some point below high tide. The precise physical characteristics of the features and of the tides that affected them were important in determining whether or not it was possible for either State to claim them as territory and whether they would then, as a consequence, generate extensions of coastal state jurisdiction (territorial jurisdiction, exclusive economic jurisdiction, or jurisdiction over the continental shelf).  Following the determination of sovereignty, further technical details were to do with the construction of the single maritime boundary delimiting the two States’ continental shelves and EEZs.

While the time taken to reach the Judgement following Nicaragua’s initiation of the case may appear unduly excessive to those unfamiliar with the ICJ’s proceedings, it was by no means unusual, and the technical issues were also complex.  The time was necessary for all of the details of the case to be thoroughly researched and presented and then analysed by the Court.

Nicaragua submitted the dispute to the ICJ to achieve two objectives: first, a ruling that it has sovereignty of various islands and cays located between Nicaragua and Colombia; and, second, the delimitation by the Court of the maritime boundary between the two States.  One can see that Nicaragua wished to be granted sovereignty of certain islands in order to maximise the extent of its continental shelf and exclusive economic zone – the islands having a potentially significant influence on the extent of the resource zones that would be partially generated by them.

While the case was reasonably complex at the technical level, we need only briefly state its outcome.  The result was somewhat unexpected from the point of view of both parties.  To start with, the Court had concluded in its Judgement on Colombia’s Preliminary Objections that it had no jurisdiction to consider Nicaragua’s claim to the islands of San Andres, Providencia and Santa Catalina because sovereignty had been determined in Colombia’s favour by the 1928 treaty.  In effect, it was ruling in favour of Colombian claims to sovereignty over the islands.  It also confirmed Colombian sovereignty over various other islands, including Quitesueno and Serrana.  What it then went on to do was acknowledge the need, for reasons of equity, to grant no significance to Quitesueno and Serrana in relation to delimitation of the continental shelf or EEZ.  While Colombia has the right to a 12 nautical mile territorial sea around these islands, it has no prospect of relying on them to generate either a continental shelf or an EEZ. The islands were effectively left as Colombian territorial enclaves within the Nicaraguan continental shelf and EEZ.  While welcoming the Court’s decision over sovereignty, Colombia effectively lost the case in the final analysis because of the extensive sea area (approximately 30,000 square miles of ocean) it lost as a result of the ruling.

The Impact of the Case on International Crime and Criminal Law

It must be said that on first reflecting on this case, it appears to have no substantial relevance to international criminal law at all.  As already explained, it was to do with rival maritime claims that, while producing tension, had not previously resulted in the parties to the dispute resorting to force.  One narrow definition of ‘international criminal law’ is that implied in the Statute of the International Criminal Court (ICC), which has jurisdiction over genocide, war crimes, crimes against humanity and aggression. Unless war were to break out between the two States, it is virtually impossible to imagine circumstances in which the case would have relevance to ICC-based criminal law.

Both Nicaragua and Colombia have accepted the Court’s Judgement, although the latter feels aggrieved by it.  Apart from initially challenging the ICJ’s jurisdiction, Colombia has subsequently been highly critical of its ruling.  Colombian president, Juan Manuel Santos, declared on 28 November that the Judgement was ‘unjust and erroneous’ and announced that his government would ‘no longer recognise the World Court in border disputes’.[4] He went on to say, however, that Colombia’s ‘emphatic rejection’ of the resultant maritime boundary would not result in any extra-legal action; it will only rely on international legal processes to challenge it.  It must be said that it is difficult to imagine what legal processes Colombia now intends to resort to.  The ICJ’s Judgement is final and there is no avenue for appeal against a Court Judgement, which is legally binding on the parties.  Despite post-Judgement rhetoric, Colombia has so far not acted irresponsibly in relation to it and remains within the law.  On current assessment, its disappointment with the Judgement seems unlikely to cause the dispute to rumble on, and certainly not to the extent that force will be deployed (which would raise questions concerning aggression and the application of the law of armed conflict/international humanitarian law).  We can reasonably hope that the dispute has been resolved peacefully and that both parties will respect that.

We can also reasonably rule out the possibility of this case having any relevance to ICC-based international criminal law.  If, however, we adopt a broader definition of what constitutes ‘international crime’ there is at least a suggestion that the Judgement has consequences.  A broader definition arguably includes all serious crimes having a significant international dimension.  Given the international nature of the oceans, crimes committed at sea will almost invariably have potentially significant international dimensions.

One group of crimes with profound international consequences is to do with the manufacture, sale and trafficking of illicit narcotics.  These activities are a seriously worrying feature in the Central American/Caribbean region, with Colombia itself a major source of illicit narcotics, with cartels like the Medellin, Cali and Norte del Valle extensively engaged in the production and export of drugs into North America, using maritime routes through the region.  It was the narcotics problem in the region that prompted McCleskey to post her article and to ask whether the Court’s ruling would be ‘Good news for drug traffickers’.  Her interjection was perhaps a little surprising, but it clearly demands some consideration, at the very least.

Unfortunate Consequences for Law Enforcement?

The thrust of McCleskey’s article was that the substantial reduction in the extent of Colombia’s maritime jurisdiction and consequential increase in Nicaragua’s, combined with the latter’s relatively weak navy, would undermine efforts to combat the narcotics trafficking activities of drugs cartels operating out of Colombian territory and using the waters off Nicaragua to traffic narcotics from Colombia to the United States (see map below).  A key consideration is that a number of criminal groups operating out of Colombia have recently been using sea routes through the San Andres islands.  This activity has been targeted by the Colombian navy but, McCleskey suggests, Colombia’s loss of jurisdiction over waters very close to the islands will undermine these efforts.  To quote from her article:

‘……the withdrawal of the Colombian Navy, from what are now Nicaraguan waters, may benefit drug traffickers operating in the region, among them the Revolutionary Armed Forces of Colombia (FARC) and the Urabenos, due to the comparative weakness of the Nicaraguan Navy. Colombia…..has a large, modernized navy, while Nicaragua’s navy is small and relatively low-tech.’

Source: www.InSightCrime.org

According to The Economist newspaper, in an article published on 8 December 2012, ‘Nicaragua celebrated (the Judgement) by dispatching ships to patrol its new waters. “By now [the navy has] established sovereignty in that whole territory,” said Daniel Ortega, its president’.  This comment was from an article that also included the map below.[5]  That map, as well as the title of The Economist article, makes reference to Colombian (and ‘former Colombian’) ‘territorial waters’.  When coupled with the quote from Daniel Ortega, in which he refers to the Nicaraguan navy having established ‘sovereignty in that whole territory’ judged by the ICJ to be within Nicaragua’s continental shelf and EEZ, an uninformed reader may gain the wholly erroneous impression that the waters in question now have the status of Nicaraguan territory.  The same impression is gained from a reading of McCleskey’s article on the possibility of the Court’s ruling advantaging Colombian drug cartels and those trafficking their wares.  The two articles reinforce each other’s fundamental misunderstanding of the juridical status of the waters subject to the ICJ’s Judgement.

Source: The Economist, 8 Dec 12

The impression that may be gained from the two articles and the manner in which they have been presented is that law enforcement activities targeting drugs traffickers in the region will be significantly affected by the Colombian navy’s inability now to operate in those waters affected by the dispute before the ICJ.  This, to put if very simply and starkly, is just plain nonsense.  The authors of these two articles seem to lack an adequate level of understanding of the juridical nature of the waters in question.  The legal or juridical status of the waters is as continental shelf or EEZ.  These are both resource zones whose legal significance is restricted to activities of an economic nature.

There is absolutely nothing in the law of the sea preventing the Colombian navy operating throughout this region up to, but admittedly not within, the outer limit of the Nicaraguan territorial sea (which is a mere 12 nautical miles from the Nicaraguan coast).    Maritime law enforcement operations are not affected by the range of rights and obligations contained in the 1982 UNCLOS, the instrument that is the formal source of both continental shelf and exclusive economic jurisdictions.  The existence of neither continental shelf nor exclusive economic jurisdictions results in rights or obligations that significantly curtail naval operational activities.  Navies do have to operate taking into account the rights of those vessels engaged in legitimate resource exploitation activities, within both jurisdictions, but the chances of navies’ obligations in this respect resulting in any serious undermining of their ability to conduct drug interdiction operations are virtually nil.  The relevant parts of 1982 UNCLOS are also now widely recognised as forming a part of the customary international law of the sea and are, therefore, binding on all States – even those that are not themselves party to the convention.  Colombia has the right to deploy its navy up to the limits of the Nicaraguan 12 nautical mile territorial sea and, in order to give meaning to that right, Nicaragua is under a correlative obligation not to prevent it doing so.  The waters above the continental shelf and forming the EEZ are, for non-economic purposes, to be regarded still as having the status of the high seas.

Closing Remarks

One of the most worrying issues within the law of the sea at present is the potential for coastal States to assume rights and to impose obligations on others that are no part of the consensus arrangements that were codified in 1982 UNCLOS.  That convention was a package deal that balanced the extension and enhancement of coastal state jurisdiction with the freedom to use the high seas for navigation and other legitimate activities.  The suggestion that navies should remove themselves from other States’ areas of continental shelf jurisdiction or EEZs serves profoundly to undermine that balance and the pattern of rights and correlative obligations that define zones of maritime jurisdiction.  Statements, such as that made by President Ortega to the effect that the Nicaraguan navy had secured the new ‘territory’ granted to Nicaragua by the ICJ, are arguably irresponsible political rhetoric; they are arguably also deserving of some measure of challenge from other States.  When respectable internationally renowned publications like The Economist fail to use the correct terminology when describing issues of this nature, there is also a need for their errors to be highlighted; if they are not they may add to the gradual spread of erroneous assumptions about vital rights and obligations at sea.

This ICJ Judgement should in no substantial manner adversely affect the way in which the Colombian navy goes about its lawful business interdicting illicit narcotics traffickers in the waters of the south-western Caribbean.  Indeed, there may even be some hope of enhanced cooperation in the region now that this dispute is legally settled.  Both Colombia and Nicaragua have clear national interest in putting an end to this traffic through their waters – and the United States also has a major interest in supporting them both.  Perhaps now that the territorial and maritime boundary dispute is resolved, a responsible diplomatic approach by the US to bring the two parties together in a spirit of cooperation will see drug interdiction improved in these waters.  In resolving the dispute, the ICJ has probably done much to stabilise and normalise relations between Nicaragua and Colombia.  In the long term, far from benefiting the drugs cartels, this Judgement may well serve to create the conditions for a further curtailing of their activities.