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World Court Rules On Nicaragua/Colombia Sea-Border Row

May 10, 2013

A long-anticipated International Court of Justice (ICJ) ruling that was supposed to settle a decades-old maritime boundary dispute between Nicaragua and Colombia has instead riled relations further still for the two countries.

In a binding decision announced Nov. 19, the Netherlands-based ICJ recognized Colombian sovereignty over a handful of disputed cays near the Caribbean archipelago of San Andrés. In a previous ruling, the court established that the archipelago’s three biggest islands –San Andrés, Providencia and Santa Catalina – also belong to Colombia, despite the fact that they are much closer to Nicaragua (220 kilometers) than they are to Colombia (775 kilomters).

When it came to the water around those islands, however, the ICJ ruled very much in favor of Nicaragua, nearly doubling the country’s Caribbean claims by extending its maritime border well east of the 82nd meridian, a de facto boundary line imposed for years by Colombia. Nicaragua had long argued that the meridian demarcation violated the country’s right under international law to enjoy sovereignty over the first 200 nautical miles of coastal waters. After more than 10 years of deliberations, the ICJ now says it agrees.

“The provisional median line cut Nicaragua off from three-fourths of the area into which its coast projected,” said Peter Tomka, the head judge in the case. The court’s goal, he explained, was to reach an “equitable solution” by dividing up the disputed areas in a “reasonable and mutually balanced way.”

Cause for celebration

Nicaragua, which now controls nearly 100,000 additional square kilometers of sea – at least on paper, is clearly satisfied with the ICJ’s decision. President Daniel Ortega called it “a national victory.” His wife and official spokesperson, Rosario Murillo, described the ruling as “the beginning of a new history of recovering Nicaragua’s sovereignty.”

The “loss” of the islets in question is of little apparent concern compared to what Nicaragua gained. The disputed waters are teeming with marine life, particularly in and around an area known as the Seaflower Biosphere Reserve, which received UNESCO recognition in 2000 and is home to one of the largest coral reefs in the Americas. The ruling also extends Nicaraguan sovereignty over valuable fishing grounds. Currently 70% of the lobsters Colombia exports come from the area.

There are hints as well that the disputed waters could eventually be used for offshore oil drilling. Earlier this month Nicaragua’s energy and mines minister, Emilio Rappaccioli, announced a tentative agreement with Spanish energy giant Repsol to begin preliminary exploration studies in the Caribbean, including in areas just extended to the country by the ICJ ruling.

“The endgame was not to gain sovereignty over a few rocks and stones in the Caribbean; our main objective was to establish clear borders with Colombia that respect our claim to at least 200 nautical miles of ocean,” Francisco Aguirre, who served as Nicaragua’s foreign affairs minister under President Arnoldo Alemán (1997-2002), told the online news site The Nicaragua Dispatch. “In that sense, we achieved our endgame. And as the Shakespeare play says, all’s well that ends well.”

Bye bye Bogotá pact

Authorities in Colombia, starting with President Juan Manuel Santos, are livid and appear hell bent on discrediting and ultimately ignoring the ICJ ruling. The president’s initial reaction was to accuse the Court of committing “omission, errors, excesses and inconsistencies that we can’t accept.” His foreign affairs minister, María Angela Holguín, took a softer approach, calling later that day for dialogue with Nicaragua. But as the days went on, Santos remained on the defensive. Regular Colombian citizens, in the meantime, took the streets in several major cities to protest what they see as an embarrassing attack on their country’s sovereignty. According to one poll, 85% of Colombians want their government to ignore the maritime boundary changes, even if doing so could result in a military conflict.

With his own approval numbers in a sudden freefall, President Santos took the dramatic step on Nov. 28 of withdrawing Colombia from the so-called Bogotá Pact, a 1948 Organization of American States (OAS) treaty by which most of the countries in the region agreed to recognize ICJ jurisdiction in international disputes. Over the course of the following years and decades, the majority of those signatories – including Colombia, in 1968 – ratified the treaty. Notable exceptions include Venezuela, Argentina and the US.

In announcing the withdrawal, Santos said his government will only recognize land and sea borders which are set through bilateral treaties. “Never again should we have to face what happened to us on Nov. 19,” he said. Colombia and Nicaragua established their pre-ICJ ruling maritime borders in a 1928 treaty. Nicaragua, which was occupied at the time by US military forces, has long challenged the validity of that accord.

Analysts say Colombia’s reversal on the Bogotá Pact cannot be applied retroactively and thus does not legally affect the ICJ maritime border ruling. “This is little more than a salute to the flag,” Jaime Durate, an international law expert at Bogotá’s Externado University, told the Miami Herald. Nicaraguan authorities agree. “The ruling’s already been made. It’s over,” Argüello Gómez, who presented Nicaragua’s case before the ICJ, said during a recent meeting with government officials in Managua. Gómez went on to say that the Ortega administration has no interest in renegotiating the borders with Colombia. “Simply put, it just wouldn’t make any sense,” he said.

“Improvised Reponses”

Still, Santos’s refusal to heed the ICJ ruling certainly spells trouble for Nicaragua, which has no immediate way of forcing the Colombian government into compliance. Militarily, Ortega has little bite to back up his bark. Nicaragua’s meager armed forces would no doubt be out-gunned should tensions with Colombia lead to open conflict.

Both leaders say they are hoping to avoid such a scenario. Ortega and Santos met face-to-face in Mexico City just prior to the Dec. 1 inauguration ceremony for new Mexican President Enrique Peña Nieto. “I told [Ortega] that we need to manage this situation with cool heads, in a friendly and diplomatic way… in order to avoid incidents,” the Colombian president told reporters afterwards. War “is a last resort,” he added. “Nobody wants a violent confrontation.”

Ortega, for his part, said military action is “completely ruled out.” That did not stop him, however, from trying the next day to flex a bit of naval muscle. “At midnight on Sunday [Dec. 2] our ships sailed,” the Nicaraguan leader announced in a brief radio and television message. “They sailed to the recovered area, and by now they have established sovereignty in that whole territory.” Nicaraguan fishing boats, in the meantime, are complaining of harassment at the hands of Colombian military vessels, which continue to patrol the disputed waters.

Michael Shifter and Cameron Combs of the Washington, D.C.-based think tank Inter-American Dialogue believe the “improvised responses” currently being seen from the Colombian and Nicaraguan governments speak to a much larger problem: Latin America, the explained in a recent briefing, simply does not have “credible and effective multilateral mechanisms” to settle such disputes. The OAS, they argue, lacks the infrastructure to handle matters of this kind. The more recently created Unión de Naciones Suramericanas (UNASUR) has shortcomings as well, namely that some perceive it as politically partisan.

So what options does Ortega have? The Nicaraguan president, a historically divisive figure when it comes to the international stage, has already ruled out bringing the case before the U.N. Security Council. “How will that solve anything,” he told reporters last week.  “All it takes is one veto and there’s goes the solution.”

Ex-Foreign Affairs Minister Francisco Aguirre thinks Ortega’s best bet at this point is to approach individual foreign governments and lobby for support. While he could start with ally nations such as Venezuela and Bolivia, there is no reason, according to Aguirre, why Ortega should not also plead his case to nations such as Japan, Canada and even the United States. “Traditionally, the United States had been much closer to Colombia, but I don’t see the United States taking Colombia’s side when there’s a world court ruling involved,” he said.

(This article originally appeared December, 2012 in LADB)

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