Alleged violations of Nicaragua's rights in the Caribbean Sea

Alleged violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea

(Nicaragua v. Colombia)

Merits

Agent’s Speech and submissions

27 September 2021

(Estimated time 10’)

1. Madame President, Members of the Court, good afternoon.

2. Before proceeding to deliver Nicaragua’s submissions on its case against Colombia, allow me to address very briefly a couple of issues that Colombia has directly or indirectly argued about the legal questions that are properly before the Court.

3. One of these questions is that of the environment. It should be recalled that Colombia filed 4 counterclaims. Two of these were related to questions of the environment and the Court did not admit them.

4. Madame President, in spite of Colombia’s insistence on the topic, environmental issues are not part of the subject matter of the present case, as has been clearly pointed out by Prof. Pellet. Nevertheless, allow me a few additional remarks.

5. Since 2007 Nicaragua has increased its attention to the environment and has taken concrete steps that go well beyond its international commitments. For example, Nicaragua is one of the few countries in the world to have included in its Constitution, since 2014, a recognition of Mother Earth’s Rights.¹

6. In a country that has a continental territory of just over 130 thousand square kilometers, it has declared 73 protected areas including 4 biosphere reserves adding up to 7,261,860 hectares of protected areas; that is, 72 thousand square kilometers of protected areas.²

7. The protection of the environment is an ongoing process for Nicaragua. Just this past January Nicaragua established a biosphere reserve of 44, 157 km² in its Caribbean area that extends roughly from the Miskito archipelago out to the EEZ attributed by the Court to Nicaragua. Colombia promptly protested that it was located in its Seaflower biosphere reserve, which it is not.³ The Nicaraguan biosphere is entirely in Nicaraguan territory and waters, and the law clearly and in so many words spells out that it does not include or affect the Colombian keys of Quitasueño and Serrana or any of the areas attributed by the Court to Colombia. The text of the law with a map of the area and the coordinates were published in the Official Gazette on 2 February 2021, which is a readily available publication⁴. The Colombian protest note and Nicaragua’s response are part of the record of these case, despite Colombia’s opposition.⁵

8. Madam President, it is ironic that Colombian counsel should state that Nicaragua treats the environment with disdain (mépris)⁶, whilst Colombian authorities are trying to hinder Nicaragua’s attempts to enhance this protection.

9. In conclusion, Colombia’s attempt to portray Nicaragua as a country that does not care for the environment is no more than a bid to divert the attention of the public, and this Court, to matters that are not part of the case. In any event, it also fails on the merits. 

10. Another point that has been the object of comments by the Co-agent and by Colombian counsel is the right of Colombian vessels to fight crime they encounter in the Nicaraguan EEZ. Mr. Cepeda, the Co-agent, notes that 38 States take part in joint operations (Operation Orion) against drug trafficking “including Nicaragua”, and then states that “it is unclear, to say the least, why Nicaragua maintains that all these countries can be present in the area, but Colombia cannot.”⁷

11. For my part, it is unclear for me, to say the least, how Nicaragua can be participating in an operation of which Colombia is an important part and at the same time the distinguished Co-agent should allege that Nicaragua opposes this. Nicaragua has never opposed in any way, openly or tacitly, Colombia’s participation in multinational operations against the scourge of drug traffic.

12. Sir Michael Wood also continues with this strange argument that Nicaragua is opposed to Colombia combatting drug traffic in the Caribbean and in the same breath he states, and I quote: “The Chief of the Nicaraguan Army applauded the “high level of cooperation” with the Colombian Navy against drug trafficking, through participation in Operation Orion.”⁸

13. Madame President, let me state it very clearly, Nicaragua does not object that Colombia should take measures for the control of the criminal activities that might occur in the Caribbean, particularly drug trafficking. After all, it is only logical that Colombia do so since most of this criminal activity has its origin in Colombia. But Colombian naval forces are also protecting illegal fishing in Nicaraguan waters, harrying Nicaraguan fishermen in Nicaraguan waters and, in general, carrying out activities in the Nicaraguan EEZ which are plain usurpations of Nicaragua’s sovereign rights and jurisdiction there. If Colombia wishes to act beyond its jurisdictional limits as set by international law, it must do so by agreement, not by unilaterally asserting its control over the waters of neighbouring States.

14. Madame President, in compliance with art. 60 of the Rules of Court, I will now proceed to read into the record Nicaragua’s final submissions. A copy of the written text of these Submissions, duly signed is being communicated to the Court and transmitted to the other Party.

FINAL SUBMISSIONS

1. In the case concerning Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), for the reasons explained in the Written and Oral phase, Nicaragua respectfully requests the Court to adjudge and declare that:

1. By its conduct, the Republic of Colombia has breached its international obligation to respect Nicaragua's maritime zones as delimited in paragraph 251 of the Court Judgment of 19 November 2012, as well as Nicaragua's sovereign rights and jurisdiction in these zones; and that, in consequence

2. Colombia must immediately cease its internationally wrongful conduct in Nicaragua’s maritime zones, as delimited by the Court in its Judgment of 19 November 2012, including its violations of Nicaragua’s sovereign rights and jurisdiction in those maritime zones and take all necessary measures effectively to respect Nicaragua’s sovereign rights and jurisdiction; these measures include but are not limited to revoking, by means of its choice:

(i) all laws and regulations, permits, licences, and other legal instruments which are incompatible with the Court’s Judgment of 19 November 2012, including those related to marine protected areas;

(ii) the provisions of Decrees 1946 of 9 September 2013 and 1119 of 17 June 2014 in so far as they relate to maritime areas which have been recognized as under the jurisdiction or sovereign rights of Nicaragua; and

(iii) permits granted to fishing vessels to operate in Nicaragua’s exclusive economic zone, as delimited in the Court’s Judgment of 19 November 2012;

3. Colombia must ensure that the decision of the Constitutional Court of Colombia of 2 May 2014 or of any other National Authority will not bar compliance with the 19 November 2012 Judgment of the Court;

d) Colombia must compensate Nicaragua for all damage caused by its violations of its international legal obligations, including but not limited to damages caused by the exploitation of the living resources of the Nicaraguan exclusive economic zone by fishing vessels unlawfully “authorized” by Colombia to operate in that zone, and the loss of revenue caused by Colombia’s refusal to allow, or by its deterrence of, fishing by Nicaraguan vessels or third State vessels authorized by Nicaragua and, generally, for the damages caused by its actions and declarations to the proper exploitation of the resources in Nicaragua’s exclusive economic zone, with the amount of the compensation to be determined in a subsequent phase of the case; and

e) Colombia must give appropriate guarantees of non-repetition of its internationally wrongful acts, including by formally acknowledging that the boundary as delimited by the Court in its Judgment of 19 November 2012 will be respected as the international maritime boundary between Colombia and Nicaragua.

f) Nicaragua also requests that the Court adjudge and declare that it will remain seised of the case until Colombia recognizes and respects Nicaragua’s rights in the Caribbean Sea as attributed by the Judgment of the Court of 19 November 2012.

These are Nicaragua’s submissions, and with this I end the pleading of Nicaragua. Madam President, Members of the Court, I thank you for your attention.