This is a short commentary of the judgment on preliminary objections based on the ICJ’s press release No. 2007/30 of 13 December 2007. The case was brought before the ICJ by Nicaragua on 6 December 2001. Nicaragua argued that the dispute concerned inter alia the validity of the 1928 Treaty, the interpretation of the 1928 Treaty as regards the geographical scope of the San Andrés Archipelago, the sovereignty over the maritime features in the disputed area, and the maritime delimitation between itself and Colombia. Nicaragua also asserted that the question whether the 1928 Treaty had settled all questions between the Parties was “the very object of the dispute”. Colombia contended that the matters in issue had already been settled by the 1928 Treaty and 1930 Protocol, and that there was thus no extant dispute over which the Court could have jurisdiction.
In its judgment on preliminary objections the Court noted that in 1928 Colombia and Nicaragua signed a Treaty in which Colombia recognized Nicaragua’s sovereignty over the Mosquito Coast, as well as over the Corn Islands. In the same Treaty, Nicaragua recognized Colombia’s sovereignty over the islands of San Andrés, Providencia, Santa Catalina, and the other maritime features that form part of the Archipelago of San Andrés. The Treaty mentioned that it did not apply to Roncador, Quitasueño and Serrana, “sovereignty over which [was] in dispute between Colombia and the United States of America”. A Protocol of Exchange of Ratifications signed in 1930 provided that the San Andrés and Providencia Archipelago mentioned in the 1928 Treaty did “not extend west of the 82nd degree of longitude west of Greenwich” (82nd meridian).
Defining the Subject-Matter of the Dispute
After consideration of the arguments of the Parties, the Court found that the question whether the 1928 Treaty and the 1930 Protocol settled the matters in dispute between the Parties did not form the subject-matter of the dispute, but was a preliminary question to legal issues in dispute between the Parties concerning title to territory and maritime delimitation. It concluded that the issues which constituted the subject-matter of the dispute on the merits are, first, sovereignty over territory (namely the islands and other maritime features claimed by the Parties) and, second, the course of the maritime boundary between the Parties.
The Bases of Jurisdiction
Nicaragua based the jurisdiction of the Court on the provisions of Article XXXI of the Pact of Bogotá as well as on the optional clause declarations made by the Parties. Colombia raised preliminary objections to both bases of jurisdiction invoked by Nicaragua.
First Preliminary Objection
Article VI of this Pact provides that recourse to the Court is not possible for “matters already settled by arrangement between the Parties, or by arbitral award or by decision of an international court, or which are governed by agreements or treaties in force on the date of conclusion” of the Pact in 1948. Article XXXIV provides that “if the Court . . . declares itself to be without jurisdiction to hear the controversy, such controversy shall be declared ended”. For its part, Nicaragua contended that the 1928 Treaty and its 1930 Protocol did not settle the matters in issue within the meaning of Article VI of the Pact because the Treaty was invalid (Nicaragua argued that it was concluded, first, in manifest violation of its Constitution in force in 1928 and, second, at a time when Nicaragua was occupied by the United States and was precluded from rejecting the conclusion of treaties that the United States demanded it to conclude).
Having reviewed the arguments of the Parties, the Court first noted that it was not in the interest of the good administration of justice for it to limit itself at the present juncture to stating merely that there was a disagreement between the Parties as to whether the 1928 Treaty and 1930 Protocol settled the matters which are the subject of the controversy, leaving every aspect thereof to be resolved on the merits. In considering whether the 1928 Treaty was in force between the Parties when the Pact of Bogotá was concluded in 1948 the ICJ noted that, for more than 50 years, Nicaragua had treated the 1928 Treaty as valid and never contended that it was not bound by the Treaty, even after the withdrawal of the last United States troops at the beginning of 1933. At no time in those 50 years did Nicaragua contend that the Treaty was invalid for whatever reason, including that it had been concluded in violation of its Constitution or under foreign coercion. On the contrary, Nicaragua has, in significant ways, acted as if the 1928 Treaty was valid. The Court thus concluded that the 1928 Treaty was valid and in force on the date of the conclusion of the Pact of Bogotá.
With respect to the question of its jurisdiction as regards the issue of sovereignty over the islands of the San Andrés Archipelago named in the 1928 Treaty (San Andrés, Providencia and Santa Catalina), the Court found that the question has been settled by the Treaty within the meaning of Article VI of the Pact of Bogotá. The Court thus upheld the first Colombian preliminary objection in this respect. With reference to the question of its jurisdiction as regards the issue of the maritime delimitation, the Court concluded that the 1928 Treaty and the 1930 Protocol did not effect a general delimitation of the maritime boundary between Colombia and Nicaragua. Since this dispute had not been settled within the meaning of Article VI of the Pact, the Court rejected the first Colombian preliminary objection in this respect and held that it had jurisdiction to adjudicate upon it.
Second Preliminary Objection
The Court noted that Nicaragua had also invoked the optional clause declarations made by the Parties as a basis of the Court’s jurisdiction. In light of the foregoing, the Court found that no practical purpose would be served by proceeding further with the other matters raised in Colombia’s second preliminary objection. It upheld the second preliminary objection raised by Colombia relating to jurisdiction under the optional clause declarations in so far as it concerned the Court’s jurisdiction with regard to the three islands.
In conclusion, the Court found that it had jurisdiction under the Pact of Bogotá to adjudicate upon the dispute concerning sovereignty over the maritime features claimed by the Parties other than San Andrés, Providencia and Santa Catalina; and upon the dispute concerning the maritime delimitation between the Parties. Thus, the Court remains seized of the dispute and will eventually deliver a judgment on the delimitation of the maritime boundary between Nicaragua and Colombia.
Judgment of the Court available at: http://www.icj-cij.org/docket/files/124/14305.pdf
Summary of the Judgment available at: http://www.icj-cij.org/docket/files/124/14325.pdf
ASIL insight on this case available at: http://www.asil.org/insights/insigh79.htm