Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea; (Nicaragua v. Colombia)

Abstract

International Court of Justice — Dispute concerning alleged violations by Colombia of Nicaragua’s sovereign rights in maritime zones appertaining to it under 2012 judgment — Court found to have jurisdiction in 2016 judgment — Merits — Applicable law — Colombia not being Party to United Nations Convention on the Law of the Sea, 1982 — Customary international law — Standard of proof — Evidence from contemporaneous and direct sources being more probative — Evidence prepared for purposes of litigation being less probative

International Court of Justice — Jurisdiction — Objection raised after 2016 judgment — Scope of the Court’s jurisdiction ratione temporis — Whether jurisdiction extending to claims relating to incidents occurring after 27 November 2013 — Articles XXXI and LVI of Pact of Bogotá, 1948 — Interpretation — Distinction between validity of title of jurisdiction and temporal scope of jurisdiction — Distinction between facts used to establish the existence of a dispute and facts over which Court’s jurisdiction could extend — Claims relating to incidents occurring after 27 November 2013 arising directly out of question which was subject matter of Nicaragua’s application — Connection between incidents occurring after 27 November 2013 and incidents over which Court having jurisdiction — Whether claims relating to incidents occurring after 27 November 2013 changing nature of dispute

Sea — Alleged interference by Colombia with Nicaraguan-flagged and authorized vessels conducting fishing and marine scientific research activities in Nicaragua’s exclusive economic zone — Colombia’s alleged authorization of fishing, marine scientific research and hydrocarbon exploration activities in Nicaragua’s exclusive economic zone — Nicaragua failing to discharge its burden of proof in relation to some of the incidents — Colombian vessels intending to assert Colombia’s maritime rights within Nicaragua’s exclusive economic zone — Colombia breaching Nicaragua’s exclusive economic zone rights under customary international law — Nicaragua failing to discharge its burden of proof in relation to claim that Colombia had granted hydrocarbon exploration permits — Consistency with customary international law of Colombia’s creation of an “integral contiguous zone” around the San Andrés Archipelago by Presidential Decree 1946 — Breadth of contiguous zone under customary international law — Powers under Presidential Decree 1946 — Powers as to security, marine environmental protection and protection of cultural heritage

Damages — Remedies — Responsibility of Colombia for violating Nicaragua’s exclusive economic zone rights in customary international law — Colombia having to cease its wrongful conduct immediately — Inconsistency of Colombia’s integral contiguous zone with customary international law — Whether Colombia having to bring provisions of Presidential Decree 1946 into conformity with customary international law — Rejection of Nicaragua’s request for compensation — Rejection of Nicaragua’s request for Court to remain seised of the case

Claims — Counterclaims — Colombia’s third and fourth counterclaims being declared admissible by order of 15 November 2017 — Third counterclaim — Whether Nicaragua having violated traditional fishing rights of the Raizales and other inhabitants of San Andrés Archipelago — Existence of a supposed customary right to artisanal fishing in areas now in Nicaragua’s exclusive economic zone — Evidence of such a right — Affidavits by fishermen — Uncertainty as to period over which this supposed customary right would have been exercised — Relevance of statements by Nicaraguan high-ranking officials recognizing this supposed customary right — Colombia failing to establish that the Raizales and other inhabitants of San Andrés Archipelago had a customary right to artisanal fishing in the areas now in Nicaragua’s exclusive economic zone — Fourth counterclaim — Consistency of Nicaragua’s straight baselines with customary international law — Preconditions for drawing straight baselines — Whether Nicaragua’s coast fulfilling such preconditions