Territorial and Maritime Dispute (Nicaragua v. Colombia)
On 06 December 2001 Nicaragua instituted proceedings before the International Court of Justice (ICJ), the principal judicial organ of the United Nations, against Colombia with regard to “legal issues subsisting” between the two States “concerning title to territory and maritime delimitation” in the western Caribbean.
In its Application, Nicaragua inter alia claimed that “the islands and keys of San Andres and Providencia pertain to those groups of islands and keys that in 1821 [date of independence from Spain] became part of the newly formed Federation of Central American States and, after the dissolution of the Federation in 1838, . . . came to be part of the sovereign territory of Nicaragua”.
It considers in this connection that the Barcenas-Esguerra Treaty of 24 March 1928 “lacks legal validity and consequently cannot provide a basis of Colombian title with respect to the Archipelago of San Andres”. Nicaragua adds that in any case, that treaty was “not . . . a treaty of delimitation”. Nicaragua recalled that its Constitution as early as 1948 affirmed that the national territory included the continental platforms on both the Atlantic and Pacific oceans, and that by decrees of 1958, it made it clear that the resources of the continental shelf belonged to it.
In 1965 it moreover declared a national fishing zone of 200 nautical miles. Nicaragua goes on to state that, by claiming sovereignty over the islands of Providencia and San Andres and keys which, according to it, “have a total of land area of 44 square kilometers and an overall coastal length that is under 20 kilometers, Colombia claims dominion over more than 50,000 square kilometres of maritime space that appertain to Nicaragua”, which represents “more than half” the maritime spaces of Nicaragua in the Caribbean Sea.
It contended that the current situation was “seriously imperilling the livelihood of the Nicaraguan people, particularly those of the Caribbean coast that traditionally have had a great dependence on natural resources of the sea” and observes that the Colombian navy has been intercepting and capturing a number of fishing vessels “in areas as close as 70 miles off the Nicaraguan coast”, east of the 82 meridian. Nicaragua finally maintains that diplomatic negotiations had failed.
The International Court of Justice (ICJ)13 December 2007The Court finds that the 1928 Treaty between Colombia and Nicaragua settled the matter of sovereignty over the islands of San Andrés, Providencia and Santa Catalina, that there is no extant legal dispute between the Parties on that question, and that the Court thus cannot have jurisdiction over the question; the Court further finds that it has jurisdiction to adjudicate upon the dispute concerning sovereignty over the other maritime features claimed by the Parties and upon the dispute concerning the maritime delimitation between the Parties.
On 19 November 2012 the International Court of Justice (ICJ) rendered its Judgment in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia). In its Judgment, which is final, without appeal and binding on the Parties, the Court found, unanimously, that the Republic of Colombia has sovereignty over the islands at Alburquerque, Bajo Nuevo, East-Southeast Cays, Quitasueño, Roncador, Serrana and Serranilla.
The dispute between the Parties concerned sovereignty over maritime features located in the Caribbean Sea, namely, the Alburquerque Cays, East-Southeast Cays, Roncador, Serrana, Quitasueño, Serranilla and Bajo Nuevo. All these remain above water at high tide and thus, as islands, they are capable of appropriation. However, as to Quitasueño, the Court finds that it comprises only one tiny island, referred to as QS 32, and a number of low-tide elevations (features which are above water at low tide but submerged at high tide).
The Court found that neither Nicaragua nor Colombia has established that it had title to the disputed maritime features by virtue of uti possidetis juris (a principle according to which, upon independence, new States inherit territories and boundaries of former colonial provinces), because nothing clearly indicates whether these features were attributed to the colonial provinces of Nicaragua or of Colombia.
The Court therefore turned to the question whether sovereignty can be established on the basis of a State’s acts manifesting a display of authority on a given territory (effectivités). The Court found that for many decades Colombia continuously and consistently acted à titre de souverain in respect of the maritime features in dispute. This exercise of sovereign authority was public and there is no evidence that it met with any protest from Nicaragua prior to 1969. Moreover, the evidence of Colombia’s acts of administration with respect to the islands is in contrast to the absence of any evidence of acts à titre de souverain on the part of Nicaragua. The facts thus provide very strong support for Colombia’s claim of sovereignty over the maritime features in dispute.
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