INTERNATIONAL COURT OF JUSTICE

DISPUTE CONCERNING ALLEGED VIOLATIONS OF SOVEREIGN RIGHTS AND MARITIME SPACES IN THE CARIBBEAN SEA

(Nicaragua v. Colombia)

ORAL PLEADINGS

THE FACTS REGARDING COLOMBIA’S VIOLATIONS OF NICARAGUA’S RIGHTS

Paul S. Reichler

20 September 2021

I.Madame President, Members of the Court: it is, as always, an honour for me to appear before you, and it is a privilege to do so on behalf of Nicaragua in these proceedings. I am deeply grateful to the Court for allowing counsel to plead virtually from their home countries, and thus avoid the risks of international travel during this period of heightened public health concern.

II.My task today is to address the facts pertaining to the present dispute, concerning Colombia’s violations of Nicaragua’s sovereign rights and jurisdiction in Nicaragua’s exclusive economic zone and continental shelf, as delimited by the Court in the Judgment of 19 November 2012.

III.I will discuss these facts under three headings in the following order: first, facts concerning Colombia’s rejection of the Court’s 2012 Judgment, including its refusal to accept the boundary established by the Court, and its ongoing insistence – to the present day – on its own sovereign rights and jurisdiction in areas located on Nicaragua’s side of the delimitation line; second, facts concerning Colombia’s establishment of a so-called Integral Contiguous Zone, encompassing parts of Nicaragua’s EEZ and continental shelf, in furtherance of Colombia’s assertion of sovereign rights and jurisdiction beyond the limits of the maritime areas attributed to it by the Court; and the revival, and maintenance to this day, of its pre-Judgment claim to all of the maritime space east of the 82^nd Meridian; and third, facts concerning the Colombian Navy’s physical interference with Nicaragua’s exercise of sovereign rights and jurisdiction in its EEZ, based on the assertion that the 2012 Judgment is inapplicable, and that Colombia is therefore entitled to exercise its own sovereign rights and jurisdiction in these waters.

IV.Although, for clarity, I will address these three sets of facts under separate headings, they are all closely linked, and constitute inseparable parts of the same dispute. All of Colombia’s wrongful actions, including those of its Navy, since Nicaragua’s Application was filed, relate back to Colombia’s rejection of the 2012 Judgment, its refusal to accept the boundary with Nicaragua established by the Court, and its reassertion of a claim to the entire area east of the 82^nd Meridian, the same claim that Colombia advanced before the Court, and the Court rejected.

V.In fact, pursuant to this revived claim, the Colombian Navy, upon confronting Nicaraguan coast guard vessels in this area, warned them, in recorded audio messages, some of which you will hear today, that the Court’s Judgment was inapplicable, exactly as the President of Colombia first declared in November 2012; that all of the waters east of the 82^nd Meridian were Colombian, and that Nicaragua had no jurisdiction in these waters.

VI.Colombia’s Rejection of the 2012 Judgment and the Boundary Fixed by the Court

 

VII.The statements by Colombia’s President denouncing the 2012 Judgment, disavowing it, and rejecting the boundary fixed by the Court are set out in Nicaragua’s Memorial. My purpose in reading some of them aloud today is not to rub salt in Colombia’s self-inflicted wounds; nor is it to inflame passions by recalling remarks that are truly disturbing, not only for their impact on Nicaragua’s own hard-won rights, but for their disregard of the rule of law, and for the sanctity of the judgments issued by the world’s supreme judicial authority. Rather, Nicaragua invokes these statements here for the sole reason that they constitute the origin of the dispute that is presently before the Court, as well as the basis and the alleged justification for the actions subsequently carried out by Colombia, including by its Navy, in flagrant violation of Nicaragua’s rights, as determined by the 2012 Judgment. As such, these statements explain, and cannot be separated from, the unlawful conduct to which they gave rise, and thus, like those actions, constitute part of a single, indivisible dispute.

VIII.To be precise, Colombia did not reject or disavow the entire 2012 Judgment. It was perfectly content to accept and applaud the Court’s ruling on sovereignty over disputed islands, which its President, Juan Manuel Santos, described as “a final and unappealable judgment on this issue.”¹ Colombia’s rejection of the Judgment was selectively limited to the maritime boundary in the Caribbean Sea, which President Santos described as riddled with what he called “omissions, errors, excesses and inconsistencies that we cannot accept.”² The conclusion, in the President’s own words, SLIDE 1 was: “Colombia – represented by its Head of State – emphatically rejects that aspect of the judgment rendered by the Court today.”³

IX.Within 10 days of the Judgment, Colombia formally denounced the Pact of Bogota, withdrawing its acceptance of the Court’s compulsory jurisdiction.⁴ President Santos left no doubt that this was in further rejection SLIDE 2 of the Court’s Judgment: “I have decided that the highest national interests demand that the territorial and maritime boundaries be fixed through treaties, as has been the legal tradition of Colombia, and not through judgments rendered by the International Court of Justice.”⁵

X.It might have been hoped that Colombia, disappointed with this aspect of the Judgment, would eventually reconcile itself to it, and that its extreme reaction would ultimately give way to conduct more befitting a responsible State, like the one gave the name of its capital to a historic agreement – the Pact of Bogota – under which the States Parties agreed to submit their disputes with one another to the Court. Unfortunately, such was not the case. Ten months after the Judgment, in September 2013, SLIDE 3 President Santos again declared: “The Judgment of the International Court of Justice is not applicable – it is not and will not be applicable – until a treaty that protects the rights of Colombians has been celebrated, a treaty that will have to be approved in accordance with our Constitution. I repeat the decision I have made: the judgment of the International Court IS NOT APPLICABLE without a treaty.”⁶

XI. Of even greater concern, upon making this statement, President Santos ordered the Armed Forces High Command to “defend with ‘cloak and sword’ the continental shelf Colombia has in the Caribbean Sea.”⁷ The High Command understood this as a call to defend the entire maritime area historically claimed by Colombia east of the 82^nd Meridian, notwithstanding the delimitation effected by the Court’s 2012 Judgment. Vice Admiral Hernando Wills Velez, the Commander of the Colombian Navy, responded to the President’s call by declaring that his forces would “comply with the order of the Head of State to exercise sovereignty throughout the Colombian Caribbean Sea,” since “the judgment of The Hague is inapplicable,” and the Colombian Navy would fulfil its duty “to defend all the Colombian maritime space”.⁸

XII. And that is exactly what the Colombian Navy proceeded to do, including by interfering with, and preventing, Nicaragua’s exercise of its sovereign rights and jurisdiction in its own EEZ, in areas that unmistakably fall on the Nicaraguan side of the boundary fixed by the Court, as I will describe in the third part of my presentation.

XIII. To conclude this first part, it is indisputable, and Colombia does not seriously attempt to dispute, that it denounced, rejected and refused to accept the maritime boundary fixed by the Court in its 2012 Judgment, and that, as of September 2013, by order of its President, its Armed Forces had pledged to disregard that Judgment and enforce Colombia’s claims against Nicaragua, including its purported sovereign rights and jurisdiction, in the areas east of the 82^nd Meridian that the Court had determined to fall within Nicaragua’s EEZ. Nor can it now be disputed that this has remained Colombia’s official position until today: SLIDE 4. This is what its current President, Ivan Duque, said as recently as 1 September 2021: “The 82^nd Meridian is the boundary we have today with Nicaragua and that is why we are very clear that our Constitution says that Colombia’s limits can only be modified through treaties; we are defenders of its integrality.”⁹ All of these statements by Colombia’s Presidents can be found at Tab 6 of your Judges’ Folders.

XIV.Colombia’s Establishment of an Integral Contiguous Zone and Renewed Claim to All of the Maritime Space East of the 82^nd Meridian

XV.This brings me to the second part of my presentation, Colombia’s establishment of an Integral Contiguous Zone, and the renewal of its claim to all maritime space east of the 82^nd Meridian, despite the Court’s rejection of that claim. The Integral Contiguous Zone was established by Presidential Decree No. 1946, on 9 September 2013.¹⁰ Article 5 describes the “Contiguous Zone of the Western Caribbean Sea Insular Territories”. Paragraph 1 of that Article declares a contiguous zone of 24 M around the Western Caribbean Insular Territories, but this is expressly without prejudice to the provisions of paragraph 2, which extend it beyond 24 M in order to “connect” the contiguous zones of the various islands of the San Andrés Archipelago, so that they form “a continuous zone and uninterrupted zone of the whole of the San Andrés, Providencia and Catalina Department”.¹¹

XVI. Upon introducing this Decree, President Santos displayed a map illustrating the extent of the newly created Integral Contiguous Zone.¹² SLIDE 5 This slide shows President Santos and his map. Next is the same Integral Contiguous Zone displayed by President Santos SLIDE 6 superimposed on the maritime boundary established by the Court, as reflected in sketch map no. 11 from the Judgment. Here, we have highlighted in pink SLIDE 7 the areas where the Integral Contiguous Zone overlaps waters attributed by the Court to Nicaragua as its EEZ. As can easily be seen, the Integral Contiguous Zone depicted by President Santos in 2013 substantially transgresses areas subject to Nicaragua’s exclusive sovereign rights and jurisdiction. All three of these maps of Colombia’s Integral Contiguous Zone are at Tab 7 of your Judges’ Folders.

XVII. Here is another map of the Integral Contiguous Zone, provided by Colombia in its Rejoinder. SLIDE 8 This map, which is also at Tab 8 of your folders, is helpfully entitled, by Colombia itself: “Areas of Colombia’s ICZ lying beyond 24 M and within Nicaragua’s EEZ”.¹³ I am tempted to say: “QED”. But there is much more to say, and it gets much worse for Colombia.

XVIII. First, Colombia’s transgression of Nicaragua’s EEZ was exacerbated by the powers Colombia attributed to itself in its Integral Contiguous Zone. SLIDE 9 According to President Santos: “In this Integral Contiguous Zone we will exercise jurisdiction and control over all areas related to security and the struggle against delinquency, and over fiscal, customs, environmental, immigration and health matters and other areas as well.”¹⁴ This presidential statement is at Tab 9 of your folders.

XIX. At Tab 10, you will find SLIDE 10 that Decree 1946 itself specifies that “the Colombian State shall exercise in the established Integral Contiguous Zone its sovereign authority and the powers for the implementation and the necessary control regarding: [inter alia] environmental protection, cultural patrimony and the exercise of historic rights to fishing held by the State of Colombia …”¹⁵ Colombia later modified the Decree by deleting the reference to fishing rights.¹⁶ But, in practice, Colombia has continued to assert and enforce them, as you will soon see. In its Rejoinder, Colombia acknowledges that, under international law, “The contiguous zone does not bestow upon the coastal State any territorial or sovereign rights.”¹⁷ But those are exactly the rights that Decree 1946 expressly attributes to Colombia in its Integral Contiguous Zone, and that Colombia itself has continuously exercised.

XX. As Professor Lowe will show, the rights a coastal State may exercise in a properly established contiguous zone, that is, one that does not extend across an international boundary, do not include control of fishing or environmental protection.¹⁸ And, as Mr. Martin will show on Friday, Colombia has no fishing rights, historic or otherwise, in any of the areas the Court determined to be within Nicaragua’s EEZ. Yet, in practice, as I will come to in the final part of my presentation, Colombia has invoked its Integral Contiguous Zone, and the powers declared thereunder, as well as its resurrected claim to all of the maritime area east of the 82^nd Meridian, to justify its exercise of sovereign rights and jurisdiction in Nicaragua’s EEZ, including its authorization of Colombian and foreign-flagged vessels to fish in Nicaragua’s waters; and its prevention of Nicaraguan-authorized vessels from fishing or conducting marine scientific research in those same waters.

XXI. By 2014, it became clear that Colombia’s pretentions to sovereign rights and jurisdiction in the areas determined by the Court to belong to Nicaragua went well beyond the limits of the Integral Contiguous Zone. President Santos declared at that time that Colombia’s exclusive rights and jurisdiction extended over the entire area that Colombia had claimed prior to the Court’s Judgment, as if the Judgment were never issued, that is, all the waters SLIDE 11 east of the 82^nd Meridian: “In consequence, for our country as long as a new treaty is not signed – the limits of Colombia with Nicaragua continue to be those established in the [1928] Esguerra-Barcenas Treaty. That is to say, the limits previous to the International Court of Justice’s judgment.”¹⁹ This statement is at Tab 11 of the folders.

XXII.This was not a mere rhetorical exercise. It was the position and policy of the Colombian State, as pronounced by the Head of State himself. And it has remained Colombia’s official position. To this day, Colombia claims that its maritime rights and jurisdiction are limited not by the boundary fixed by the Court, but by the 82^nd Meridian, and that everything to the east is theirs, in complete abnegation of Nicaragua’s judicially determined rights in this area. This map, SLIDE 12 which is at Tab 12 of the folders, is from a power point presentation given by the Commander of the Colombian Navy, Admiral Hernando Wills Vélez, on 3 March 2015. It remains available today on a Navy-connected website.²⁰ It is captioned “Areas of Responsibility of the National Navy”. The map depicts Colombia’s maritime boundaries in the Caribbean Sea and Pacific Ocean. In the Caribbean, boundaries are shown with all of Colombia’s neighbours, including Nicaragua, where the boundary is depicted as the 82^nd Meridian. This is where, according to Colombia, Nicaragua’s maritime jurisdiction ends.

XXIII. The same power-point presentation, by the Commander of the Colombian Navy, also includes this map, SLIDE 13 captioned “National Navy Areas of Operation”.²¹ It too is at Tab 13. I call your attention to the blue dot, in the upper left part of the map. As you can see, this dot is just to the east of the 82^nd Meridien, which depicts the outer limit of the Navy’s area of operation in this zone. The map identifies the CESYP as the naval component responsible for enforcing Colombia’s jurisdiction here. The initials stand for Comando Específico de San Andrés y Providencia, or, in English, Specific Command for San Andrés and Providencia.²²

XXIV. And this is from a map published by the National Hydrocarbon Agency SLIDE 16 showing oil blocks that are described as available for concession, in relation to the boundary fixed by the Court in 2012.²³ The entire map is at Tab 15. What you see here is the northwesternmost portion of the map, which shows that, in 2017, Colombia held out as available for concession oil blocks bounded in the west by the 82^nd Meridien, as if the Court’s 2012 Judgment had never been issued. This map is still accessible on the National Hydrocarbon Agency’s website today.²⁴ After these oral hearings were scheduled, and soon before they were to commence, Colombia cleverly updated its website with a more sanitized version of the map,²⁵ but the 2017 version has remained accessible alongside it. The oil blocks along the 82^nd Meridian indisputably infringe on Nicaragua’s EEZ and continental shelf. Colombia asserts that it has not awarded any concessions in these areas.²⁶ We have no reason to challenge that assertion. Experienced international oil companies would not be so foolish as to bid for exploration or drilling rights in a maritime area disputed by two States, especially when the ICJ has already ruled against Colombia’s claim. But the fact remains: various Colombian State organs, including the Navy, the Ministry of Defence, the General Maritime Directorate and the National Hydrocarbon Agency, continue to depict, and regard, these areas, up to the 82^nd Meridian, as subject to Colombia’s sovereign rights and jurisdiction.

XXV. The Commander of Colombia’s Navy has expressly confirmed this. In a 2019 interview, Admiral Evelio Ramírez Gáfaro was asked: “Does the Navy patrol the 82^nd Meridian and help the Colombian fishermen in that jurisdiction?” SLIDE 17 The Admiral responded, as shown on your screens and at Tab 16 of the folders: “The Navy has a permanent presence in that area. The operations carried out in the Archipelago of San Andres, Providencia and Santa Catalina have resulted in … the capture of 29 persons for the crime of illegal fishing and the seizure of 15,460 kilograms of queen conch. In addition, our presence in the area of operations of the Archipelago Department creates conditions of security and tranquility for the Colombian fishermen and artisanal fishermen of the region.”²⁷

XXVI. In February 2021, Colombia protested the adoption of legislation by the Nicaraguan National Assembly protecting the Nicaraguan Caribbean Biosphere Reserve, which lies entirely within Nicaragua’s EEZ and continental shelf, as determined by the Court.²⁸ Colombia’s note claimed that it alone may exercise jurisdiction over this area, which it still considers part of what it denominated as its own Biosphere Reserve before the 2012 Judgment. This was precisely the position expressed by Rear Admiral Hernando Mattos Dager, the Chief of Colombia’s Naval Command for San Andrés and Providencia, the naval unit charged by Colombia with protection of the Reserve, just prior to the dispatch of Colombia’s 2021 diplomatic note: “For us, the Biosphere Reserve continues to be indivisible no matter if there is a court judgment that fixes its limits…”²⁹ None of these facts is, or can credibly be, disputed.

XXVII. And these are not separate, isolated events. They are manifestations and integral parts of the same dispute, which arose from Colombia’s denial of and refusal to recognize Nicaragua’s rights in the maritime areas found to be Nicaraguan by the Court in its 2012 Judgment, and Colombia’s insistence that it alone enjoys sovereign rights and jurisdiction in all such areas lying east of the 82^nd Meridian, just as if the Court’s Judgment were never issued. This is the dispute that Nicaragua presented to the Court in its Application, over which the Court accepted jurisdiction when it rejected Colombia’s preliminary objection in this regard in its Judgment of 17 March 2016.

XXVIII.These are the facts pertaining to the Integral Contiguous Zone, and the reassertion of Colombia’s claim to the entire area east of the 82^nd Meridian, and they are all well established by the evidence.

XXIX.Colombia’s Physical Acts of Interference with Nicaragua’s Exercise of Its Sovereign Rights and Jurisdiction within Its EEZ

XXX. I turn now to the third and final part of my presentation, which addresses Colombia’s physical acts of interference with Nicaragua’s sovereign rights and jurisdiction in its own EEZ, as defined by the Court in its 2012 Judgment. In its written pleadings, Nicaragua identified and offered proof of 51 such acts by Colombia’s Armed Forces, particularly its Navy, from the beginning of 2013 to the end of 2018. These, too, are not separate, isolated events, but manifestations of the same dispute that began with Colombia’s rejection of the Court’s 2012 Judgment, its denial of Nicaragua’s rights thereunder, its reversion to its pre-Judgment position that the boundary is the 82^nd Meridian, and its attribution to itself of sovereign rights and jurisdiction that exclusively belong to Nicaragua under the 2012 Judgment.

XXXI. I will focus today on some of the more egregious of these actions by the Colombian Navy, which are sufficient in themselves to prove that Colombia has repeatedly, and deliberately, violated Nicaragua’s rights in areas the Court adjudged to belong to Nicaragua, but which Colombia, in defiance of the Court’s Judgment, continues to claim as its own.

XXXII. As set out in Nicaragua’s written pleadings, the Colombian Navy began to interfere with Nicaragua’s sovereign rights and jurisdiction in its EEZ as early as February 2013, less than three months after the Court’s Judgment and Colombia’s rejection of it.³⁰ These violations continued and grew bolder thereafter. In the face of Colombia’s denials of wrongdoing in its Counter Memorial, Nicaragua’s Coast Guard vessels began to record their radio communications with the offending Colombian naval ships. All of these recordings, including the ones I will play for you today, have been submitted as evidence annexed to Nicaragua’s Reply.

XXXIII. On 18 March 2015, Nicaraguan coast guard vessel CG-401 encountered the Colombian naval frigate ARC Independiente SLIDE 18 in the location now shown on your screens, and at Tab 17 of your folders, well within Nicaragua’s EEZ.³¹ CG-401 asked the ARC Independiente to state its objective in navigating in Nicaragua’s waters.³² The Colombian frigate responded, as you will now hear in the original Spanish, and see on your screens in English translation: “I inform you that you are in Colombian jurisdictional waters. The Colombian State has established that the ruling of The Hague is not applicable; therefore, the units of the Navy of the Republic of Colombia will continue to exercise sovereignty of these waters.”³³ A transcription of the original Spanish, and a translation into French as well as English, are provided in your Judges’ Folders. The same is true for the other incidents I will describe today.

XXXIV. The next one occurred five days later. On 23 March 2015, Nicaragua’s CG-401 again encountered Colombia’s ARC Independiente within Nicaragua’s EEZ, SLIDE 19 as shown here, and at Tab 18.³⁴ This time, the Colombian ship was positioned approximately 300 meters from a Honduran-flagged industrial fishing vessel, the Lucky Lady, which had not been licensed by Nicaragua to conduct fishing activities. As CG-401 approached the Lucky Lady, the ARC Independiente intervened, and issued the following warning to the Nicaraguan coast guard vessel, which I will not play aloud to save time, but you can see in transcription: “I inform you that the Colombian government has not abided by the ruling in The Hague; until that happens, the boats that are in the area, are under the protection of the government of Colombia. I invite you to maintain caution in these cases, keep the caution, captain, to avoid situations that you might regret later. Please refrain yourself from any intentions you have on that motorboat”.³⁵

XXXV. These were not isolated incidents. Far from it. On 26 March 2015, three days later, Nicaragua’s CG-401 encountered the Colombian naval frigate ARC 11 de Noviembre in Nicaragua’s EEZ, SLIDE 20 as depicted on the chart now on display, which is at Tab 19 of your folders.³⁶ You can hear, and see in transcription, the message delivered by the Colombian ship: “I inform you that I am in the Colombian Archipelago of San Andrés and Providencia, protecting the historic fishing rights of the Colombian State, guaranteeing the security of all vessels present in the area and implementing operations against transnational crimes.” After the captain of the Nicaraguan vessel protested that they were in Nicaraguan waters as determined by the International Court of Justice, the Colombian frigate responded: “Coast Guard of Nicaragua, this is the ARC 11 de Noviembre. According to the Colombian government, the ruling of The Hague is inapplicable, which is why I am in the Colombian Archipelago of San Andrés and Providencia, carrying out the work that I already informed you, and I invite you to maintain the caution required in these cases.”³⁷

XXXVI. On the same date, while it was still in Nicaragua’s EEZ, the ARC 11 de Noviembre ordered a Nicaraguan-flagged and Nicaraguan-licensed fishing vessel, the Doña Emilia, to stop fishing in what it called Colombian waters.³⁸ The incident SLIDE 21 occurred here, as depicted on the screen now and at Tab 20 of your folders. The Colombian naval vessel’s message was also recorded, and it was submitted as part of Annex 32 to Nicaragua’s Reply.³⁹

XXXVII.On 5 April 2015, Nicaraguan Coast Guard vessel BL-405 encountered another Colombian naval frigate, the ARC San Andrés, SLIDE 22 in the location depicted in the chart now on display, and at Tab 21, and initiated communication with it.⁴⁰ Again, you can hear Colombia’s response, and see the now familiar words on your screens: “I inform you that I am in the Colombian Archipelago of San Andrés and Providencia, protecting the historic fishing rights of the Colombian State and guaranteeing the security of all vessels present and implementing operations against transnational crime.”⁴¹

XXXVIII.The same two vessels had another encounter two days later, on 7 April 2015.⁴² It occurred here, SLIDE 23 as depicted on your screens and at Tab 22 of your folders.⁴³ This time the ARC San Andrés broadcast this message to the Nicaraguan Coast Guard vessel, as shown on your screens now: “I inform you that at this time your unit is 1.2 away from the ARC San Andrés, Coast Guard unit of the Republic of Colombia, it is located in the jurisdictional waters of the Archipelago of San Andrés and Providencia, enforcing the historic fishing rights of fishermen from the Republic of Colombia.”.⁴⁴

XXXIX. On 12 September 2015, Nicaragua’s BL-405 encountered the industrial fishing vessel Miss Dolores, flying the Tanzanian flag, SLIDE 24 in this location, also shown at Tab 23 of your folders.⁴⁵ It attempted to hail this unlicensed vessel, but received instead the following response from a nearby Colombian frigate: “This is the Coast Guard of the Navy of the Republic of Colombia. Good afternoon. I inform you that I am in the Colombian Archipelago of San Andrés and Providencia, protecting the historical fishing rights of the Colombian State, guaranteeing the security of all vessels present in the area. You have not been authorized by the Colombian government to exercise visitation rights on the Miss Dolores flagship of Tanzania, which is fishing for the Colombian government. I ask you to stay away from the boat. We will remain in the area to guarantee its protection. I invite you to maintain the caution required in these cases”.⁴⁶ Here again, the audio recording is part of the record, and you are invited to verify the accuracy of our transcriptions, in English, French and Spanish. I am not playing the tape today in order to stay within my allotted time.

XL. The frequency of Colombia’s interventions, to assert and exercise its purported sovereign rights within Nicaragua’s EEZ, to deny Nicaragua the exercise of its lawful rights, to protect Colombian-licensed industrial fishing vessels in Nicaragua’s waters, and repeatedly deliver the same message that the Court’s Judgment was not applicable, make clear that these incidents were part of a larger, government policy to assert Colombian jurisdiction over all of Nicaragua’s waters east of the 82^nd Meridian. As declared by the Commander of Colombia’s naval forces in San Andrés and Providencia, Rear Admiral Andrés Vásquez Villegas, SLIDE 25 on 3 December 2015: “There are no vetoed areas for our fishermen. We continue to exercise national sovereignty and defend our sovereignty in the jurisdictional waters of Colombia.”⁴⁷ This is at Tab 24 of the folders.

XLI. Shortly after this statement, on 12 January 2016, the Honduran flagged Observer was seen fishing in Nicaragua’s EEZ by Coast Guard vessel CG-403, SLIDE 26 at this location, and as depicted at Tab 25 of your folders.⁴⁸ The Observer was informed that it was in Nicaragua’s waters and required a license from Nicaragua to fish there.⁴⁹ The Observer responded, as recorded by the CG-403: “I did not know because the Colombian authorities allowed us to come and fish. They ordered us to come and work here.”⁵⁰ A few hours later, the CG-403 spotted the Observer fishing in the same area, and attempted to hail it again.⁵¹ This time, the recorded response came from a nearby Colombian naval frigate: “This is the vessel of the Navy of the Republic of Colombia. I inform you that the motorboat Observer is authorized to fish in this area by the Colombian maritime authority, according to the historic fishing rights of the State of Colombia.”⁵² When the CG-403 objected, the Colombian naval vessel responded: “I inform you that the Observer and all Colombian vessels that are in the area are authorized by the Colombian General Maritime Directorate to carry out fishing activities in the area.”⁵³

XLII.A similar incident occurred on 6 January 2017. On that date, the Nicaraguan Coast Guard vessel CG-405 encountered the Honduran-flagged Capitán Geovanie fishing without a license in Nicaragua’s EEZ, SLIDE 27 as depicted here, and at Tab 26 of the folders.⁵⁴ CG-405 ordered the Capitán Geovanie to leave the area, but a Colombian frigate soon arrived and instructed the Capitán Geovanie: “This the Coast Guard of Colombia. Upon receipt, proceed and continue your fishing task. You are in historically Colombian waters and our duty is to protect your task.”⁵⁵ The Colombian frigate then turned its attention to Nicaragua’s CG-405: “This is the Coast Guard of Colombia. Upon receipt, proceed to abort any attempt to board and any attempt to abort the fishing of the Capitán Geovanie motorboat.” In response to the Nicaraguan Coast Guard vessel’s protest, the Colombian vessel insisted: “The Capitán Geovanie is authorized by the Colombian maritime authority, fishing in historically Colombian waters.”⁵⁶

XLIII. On 10 December 2018, Nicaragua’s coast guard vessel BL-405 encountered once again, the Honduran fishing vessel Observer conducting illegal fishing in Nicaragua’s EEZ, SLIDE 28 as depicted here, and at Tab 27 of your folders.⁵⁷ This time, the Nicaraguan authorities were able to board the Observer, where they discovered 5,357 pounds of lobster and 150 lobster traps, as well as a Colombian fishing license⁵⁸ and a departure certificate issued in San Andrés in November 2018.⁵⁹ Nicaragua has submitted both of these official documents to the Court. The BL-405 took the Observer into custody and began to escort it to a port in Nicaragua. Due to mechanical problems, the Observer stalled, and had to be towed by BL-405.⁶⁰

XLIV. The following day, 11 December 2018, the Colombian Navy intervened. The frigate ARC-53 Antioquía ordered the BL-405 to release the Observer.⁶¹ The BL-405 refused.⁶² The Colombian frigate closely followed the BL-405, with the Observer in tow, and then, as the vessels maneuvered for position, the tow line connecting BL-405 with the Observer severed.⁶³ Notwithstanding Colombia’s interference with Nicaragua’s law enforcement efforts in its own EEZ, the BL-405 managed to retake control of the Observer and to bring it to the Nicaraguan mainland at Bluefields.⁶⁴

XLV.In its written response, Colombia makes two assertions. First, it claims the Observer was merely transiting Nicaragua’s waters, with lobster caught elsewhere. But the captain of the Observer has admitted that the boat was caught fishing in Nicaragua’s waters without a Nicaraguan license.⁶⁵ Second, Colombia claims that its naval frigate was threatened by the maneuvers made by the much smaller Nicaraguan Coast Guard vessel. That’s like an elephant claiming to be threatened by a mouse. But, even if Nicaragua’s mouse were somehow endowed with supernatural powers, the real question – for which Colombia has no answer - is: why was a Colombian naval frigate challenging and interfering with Nicaragua’s enforcement of its sovereign right to prevent illegal fishing activities in its own EEZ by a Honduran-flagged fishing boat?

XLVI. These incidents, all of them except for the last one, have occurred in or near the rich fishing area known as Luna Verde, SLIDE 29 depicted here in green, and at Tab 28 of your folders. As you can see, it is plainly within Nicaragua’s EEZ. Nevertheless, Colombia has made no secret of its encouragement of Colombian and foreign-flagged vessels to fish at Luna Verde. For example, Resolution No. 4780, issued by the General Maritime Directorate of the Department of the Archipelago of San Andrés and Providencia SLIDE 30 on 24 September 2015, grants an “Industrial Commercial Fishing Permit” to the owner of the company Pesquera Serranilla to fish in “the area known as ‘la esquina’ or ‘luna verde’, which includes our insular territory and fishing zones.”⁶⁶ As this permit makes clear, it licenses “Industrial Commercial” fishing. That is what Colombia has regularly licensed at Luna Verde, in Nicaragua’s EEZ. The evidence thus belies Colombia’s claim that it only licenses small-scale, artisanal fishing by local island inhabitants in these waters. As Mr. Martin will show on Friday, even if Colombia’s issuance of fishing licenses were limited to artisanal fishing, which is not the case, this would still violate Nicaragua’s exclusive fishing rights in its EEZ under well-established principles of customary international law.

XLVII. These Columbian Resolutions expressly authorize fishing by industrial commercial vessels “within the maritime jurisdiction of the Department of the Archipelago of San Andrés and Providencia,” SLIDE 31 the contours of which are depicted on this official map.⁶⁷ The Court will observe that this purported maritime jurisdiction includes all the waters east of the 82^nd Meridian, as well as the notation, at the bottom left of the map: “Cortesía Armada República de Colombia”, which means, “Courtesy of the Navy of the Republic of Colombia.” These official Colombian documents are at Tab 29 of your folders.

XLVIII.Colombia has also usurped Nicaragua’s exclusive authority to license marine scientific research in its EEZ. On 8 October 2018, the Colombian naval frigate ARC-51 Almirante Padilla stopped the Mexican-flagged research ship, the Dr. Jorge Carranza Fraser, which had been licensed by Nicaragua under a research project funded by the United Nations Food and Agricultural Organization.⁶⁸ SLIDE 32 The incident occurred along this route, depicted in red on this map, which was submitted to the Court by Colombia, and is included in the Judges’ Folders at Tab 30. Although the entire route followed by the Mexican research vessel, as shown by Colombia, was within Nicaragua’s EEZ, the Colombian frigate forced it to leave the area, and prevented it from completing its mission. These facts are confirmed by correspondence from the Director General of Mexico’s National Institute of Fishing and Aquaculture, which is part of the Mexican Department of Agriculture, to his Nicaraguan counterpart.⁶⁹ The Mexican Director General’s letter, dated 16 April 2019, which is at Tab 31 of your folders, SLIDE 33 and shown here in relevant part, explained that his institute’s research vessel had been unable to complete its mission due to: “an interception by a marine military patrol from the government of a third country to the Jorge Carranza Fraser vessel during the cruise in the areas near the missing transects, indicating that it was sailing without permits in the waters of its marine jurisdiction, escorting the vessel Jorge Carranza Fraser until it departed the area.”

XLIX. There is no doubt about the identity of the “third country” referred to by the Mexican official. Colombia itself acknowledges this. Nor is there any doubt that the Mexican vessel was navigating within Nicaragua’s waters when it was “intercepted” by a “marine military patrol” from that third country. Colombia’s own map, which I just showed you, demonstrates this.

L.All of this evidence – as well as the evidence of the dozens of other, similar incidents described in Nicaragua’s pleadings – demonstrates the hypocrisy of Colombia’s insistence, in its Rejoinder, that its actions in these waters have allowed Nicaragua to “continue to enjoy its sovereign rights in its EEZ.”⁷⁰ The evidence also belies Colombia’s assertion that its actions reflect nothing more than its exercise of the right of freedom of navigation.⁷¹ Earlier this month, Colombia’s own President let the cat out of the bag, again, and dispensed entirely with these pretexts, as I displayed on your screens earlier: “The 82^nd Meridian is the boundary we have today with Nicaragua”. Freedom of navigation? That is not what the President of Colombia said. Nor is it what the Colombian Navy itself repeatedly told Nicaragua it was protecting. Rather, in the recorded words of its naval commanders, it was engaging, repeatedly, in the exercise of Colombia’s sovereign authority over these waters, and especially to protect Colombia’s “historic fishing rights” in areas the Court declared to constitute Nicaragua’s EEZ.⁷²

LI. Colombia seeks to minimize the incidents by arguing that Nicaragua itself played them down in its public statements, avoiding mention of conflicts with Colombia at sea up to early 2014.⁷³ Nicaragua has already explained that its statements were intended to minimize tensions with a vastly more powerful neighbour, and to give Colombia time and space to accommodate itself to the Court’s Judgment and an eventual settlement with Nicaragua on terms consistent with that Judgment.⁷⁴ However, as Colombia’s violations of Nicaragua’s rights continued, and grew more intrusive and threatening, Nicaragua began to protest them more vigorously, and to make recordings of them to provide irrefutable proof of those violations. Colombia has yet to offer a credible explanation of its actions.

LII. Faced with its inability to defend the indefensible, Colombia seeks refuge in a casuistic jurisdictional argument that would erase all these incidents from the case, as if they never took place, on grounds that they are beyond the scope of the present dispute, hence outside the Court’s jurisdiction. In its Counter Memorial, Colombia simply refused to address any of the incidents that post-dated 27 November 2013, the effective date of its withdrawal from the Pact of Bogota, arguing that these incidents were separate disputes, each of which arose after the jurisdictional title for Nicaragua’s Application had lapsed.⁷⁵ In its Rejoinder, Colombia likewise refused to discuss any of these incidents in the main body of its text, relegating its response to an Appendix.⁷⁶

LIII.Colombia can run from these incidents, but it cannot hide from them. Certainly not behind a half-baked jurisdictional argument. In its Judgment of 17 March 2016, the Court rejected Colombia’s Second Preliminary Objection, and affirmed its jurisdiction over: “dispute concerning the alleged violations by Colombia of Nicaragua’s rights in the maritime zones which, according to Nicaragua, the Court declared in its 2012 Judgment appertain to Nicaragua.”⁷⁷ The Court found that this dispute existed as of the time that Nicaragua filed its Application on 26 November 2013, which it regarded as the critical date for jurisdictional purposes.⁷⁸

LIV.Colombia would interpret the Court’s Judgment as limiting its jurisdiction only to acts by Colombia which occurred before that date. But the Judgment of 17 March 2016 does not say that. It does not limit the Court’s jurisdiction to acts occurring before 26 November 2013; it affirms jurisdiction over the dispute that arose prior to that date. Thus, as Professor Pellet has explained, acts by Colombia afterwards that are part of the same dispute inevitably fall within the jurisdictional scope of this case.

LV.The Court was called upon to decide what was fundamentally the same question, that is, whether subsequent and ongoing violations of the Applicant State’s rights relate back to the date the dispute arose, or constitute new and separate disputes, in the case concerning Legality of Use of Force (Yugoslavia v. Belgium). In that case, NATO’s bombing of targets in Yugoslavia, which was the subject of the dispute between the parties, began on 24 March 1999. This was before Yugoslavia made its Article 36(2) declaration on 25 April 1999, and filed its application four days later. Yugoslavia, like Colombia, attempted to slice the dispute into discrete pieces. It argued that each bombing incident gave rise to a new and separate dispute distinct from the original one, such that bombings after 25 April 1999 fell within the jurisdiction of the Court even though the NATO bombing campaign, began before that date.

LVI.The Court upheld Belgium’s preliminary objection on the ground that the individual bombing incidents after Yugoslavia’s Article 36(2) declaration were part of the same dispute that arose prior to it, and thus, like the dispute itself, fell outside the scope of its jurisdiction. The Court explained that “each individual air attack could not have given rise to a separate subsequent dispute”, because “Yugoslavia has not established that new disputes, distinct from the initial one, have arisen between the Parties since 25 April 1999 in respect of subsequent situations or facts attributable to Belgium …”⁷⁹

LVII. This was not the first time the Court ruled as such. In the Fisheries Jurisdiction case (Germany v. Iceland), Germany alleged violations of its rights by Iceland that post-dated its Application. The Court had no difficulty holding that it had jurisdiction over these actions, on the ground that they constituted part of the same dispute that was submitted in the Application: “The Court cannot accept the view that it would lack jurisdiction to deal with this submission. The matter raised therein is part of the controversy between the Parties, and constitutes a dispute relating to Iceland’s extension of its fisheries jurisdiction. The submission is one based on facts subsequent to the filing of the Application, but arising directly out of the question which is the subject-matter of that Application.”⁸⁰

LVIII.The same is true here. Colombia’s violations of Nicaragua’s EEZ rights after November 2013 were unquestionably part of the same dispute raised by Nicaragua in its Application over which the Court affirmed its jurisdiction, that is, in the Court’s language, “the dispute concerning the alleged violations by Colombia of Nicaragua’s rights in the maritime zones which, according to Nicaragua, the Court declared in its 2012 Judgment appertain to Nicaragua”.⁸¹ Because the Court ruled that it has jurisdiction over this dispute, all of the individual incidents that form part of it, or relate back to it, necessarily fall within that same jurisdictional competence. Just as each post-Application bombing of Yugoslavia did not give rise to a new dispute, separate from the one that arose when the bombings first commenced, neither did the Colombian Navy’s recurring and repeated violations of Nicaragua’s sovereign rights and jurisdiction in Nicaragua’s EEZ constitute new disputes separate from the one raised by Nicaragua in its Application. And, just as Iceland’s post-Application actions arose directly out of the subject matter of Germany’s Application, Colombia’s actions after 2013 arose directly out of the subject matter of Nicaragua’s Application.

LIX. As a consequence, Colombia cannot escape its international responsibility for violating Nicaragua’s rights on jurisdictional grounds, any more than it can avoid its responsibility on the merits.

LX. Madame President, Mr. Vice President, Members of the Court, this concludes my presentation this afternoon. I thank you for your kind courtesy and patient attention, and I ask that you give the floor to my esteemed colleague, Professor Lowe.

Notes