Colombia and Chile Signal Their Defiance of International Law

Colombia has refused to accept the International Court of Justice’s binding resolution regarding territorial disputes with Nicaragua.

By Tortilla Con Sal

On March 17, the International Court of Justice based in the Hague in the Netherlands, declared it was competent to consider two cases brought by Nicaragua against Colombia. The first case is Nicaragua’s claim to an area of the continental shelf extending from the country’s Caribbean Coast out into the sea. That area is claimed by Colombia and is important from the point of view of its potential resources. Nicaragua’s claim was made before Colombia’s withdrawal from the 1948 American Treaty on Pacific Settlement, also known as the Pact of Bogota, came into effect at the end of 2013. At the end of 2012, Colombia withdrew from the Pact of Bogota which sets the rules of the ICJ’s jurisdiction over States members of the treaty. It is also worth noting that the Pact of Bogota is part of the system of the Organization of American States of which Colombia is a member.

The move by Colombia was an expression of its refusal to accept the ICJ’s judgment awarding about 90,000 square kilometers of marine territory, usurped by Colombia since the 1930s, to Nicaragua. Subsequently, as a result of its newly recovered marine territory, Nicaragua brought another case against Colombia in relation to the extent of its continental shelf. In its submissions to the ICJ over this claim, Colombia argued that its withdrawal from the Bogota Pact meant the case did not fall within the ICJ’s competence. However, the ICJ magistrates ruled that Colombia was still subject to its jurisdiction because Nicaragua presented the current case prior to the expiry of Colombia’s obligations under the Bogota Pact.

In response to this latest adverse ICJ judgment, Colombia’s President Juan Manuel Santos then declared that Colombia would take no further part in any proceedings at the ICJ in relation to the case. He also repeated Colombia’s view that the ICJ’s 2012 ruling was illegitimate and flawed, for which reason, he insisted, Colombia and Nicaragua should agree a bilateral treaty to resolve their territorial dispute. President Santos argued, “We are very clear that whatever the final result, our country’s maritime limits can only be modified via an international treaty”. In saying this, President Santos is defying precedent. Decisions of the ICJ are binding on States party to the Pact of Bogota under the terms of that treaty, an obligation Colombia’s petulant withdrawal does not change. Nor are ICJ judgments subject to appeal.

The second case Nicaragua presented to the ICJ relates directly to this refusal by Colombia to comply with the ICJ’s 2012 judgment. Colombian warships are still present in what are now Nicaraguan waters, although, to date, both sides have been careful to avoid serious incidents. Nicaragua’s position is that, despite definitively losing to Colombia island territories it had hoped to recover, it is determined to obey that 2012 ICJ ruling just as it has done the ICJ ‘s 2015 judgment which favored Costa Rica in Nicaragua’s dispute with Costa Rica over territory in the delta of the Rio San Juan.

Nicaragua’s representative to the ICJ Dr Carlos Arguello remarked in response to the declarations by President Santos, “Countries have to obey what the Court decides. It’s not optional and what the Court disposes cannot be appealed, so there is no tribunal superior to the Court. What the Court resolves is definitive. For that reason, no country which respects international law even thinks of questioning a ruling by the International Court. That is why when the Court made its ruling in 2012 and the Colombian authorities began making declarations that they were not going to comply, that they rejected the judgment and so on, it came as a kind of shock, at a continental level above all, because every other country was stunned that a country like Colombia would make a mockery of the Court, at a judgment by the Court, ignoring it.”

Just a few days after the decision of the ICJ judges in the Hague in the case between Nicaragua and Colombia, on March 23, Bolivia celebrated its Day of the Sea. This year, that date marked the 137th anniversary of Bolivia’s loss of access to the Pacific Ocean at the hands of the sub-imperialist Chilean oligarchy in the so called War of the Pacific from 1879 to 1883. Chile’s military aggression against Bolivia and Peru also saw Chilean forces occupying Peru’s capital Lima. The war ended with the Treaty of Ancón which awarded Peru’s Tarapacá province to Chile and, too, the Bolivian province of Antofagasta.

That military victory freed up Chile’s army to attack the Mapuche people in southern Chile resulting in land conflicts that continue to this day. What Chile has done to Bolivia is unprecedented in world history. No other State in modern times has condemned a neighbor to permanent asphyxiation by cutting off its legitimate sovereign access to the sea. On Sept. 14, 2015, the International Court of Justice ruled it was competent to consider Bolivia’s demand against Chile aimed at recovering its sovereign access to the Pacific.

During this year’s Day of the Sea commemoration, Bolivia’s President Evo Morales announced his government’s decision to add to that historic claim against Chile in the International Court of Justice a second claim, this time over water rights to what Bolivia regards as the Silala wetlands. This dispute too is a direct result of the partition of Bolivia imposed by Chile 137 years ago in the 1879 War of the Pacific. The Silala is an area fed by over 90 natural springs which Chile describes as an international river. If that were the case, which Bolivia contests, it would confirm Chile’s rights to the Silala area’s water resources, worth many millions of dollars a year in terms of economic activity.

Just as Colombia insists on resolving its dispute with Nicaragua via a bilateral treaty, so too does Chile insist on a bilateral treaty to resolve Bolivia’s demand for sovereign access to the Pacific rather than submitting the case to the ICJ. Similarly, just as Colombia’s government rejects the jurisdiction of the ICJ and has withdrawn, albeit too late to make any difference, from the Pact of Bogota, so Chilean politicians are calling on Michelle Bachelet’s government to do the same. Chile’s foreign minister, Heraldo Muñoz, responded to Evo Morales’ decision to take Bolivia’s demand against Chile to the ICJ by saying, “It doesn’t matter how many demands Bolivia presents in international tribunals, Chile will not cede its sovereign territory. It will not yield its sovereignty. Let’s be clear. We are going to defend our national interests by all means.”

Senators like Juan Antonio Coloma, of the extreme right wing Unión Demócrata Independiente, call in the most strident terms for Chile to withdraw from the Pact of Bogota. Michelle Bachelet’s government has yet to take that controversial step but the threat that it will do so is very real.This common attitude on the part of Colombia and Chile to frontier disputes with historically weaker neighbors like Nicaragua and Bolivia is certainly no accident. Both Colombia and Chile are countries that have operated as sub-hegemonic powers in their respective regions.

Colombia has played that role in the Central American Caribbean while Chile has done so along the Pacific region of sub-equatorial South America. Throughout the 19th century the Colombian ruling oligarchy took chauvinistic advantage of privileges inherited from the Spanish colonial era and in the 20th century exploited faithless territorial deals in league with the United States. For their part, Chile’s ruling elites expanded national territory via outright military conquest. Both countries then maintained their unjust territorial gains by imposing bilateral treaties heavily prejudicial to their weaker, more impoverished neighbors.

That game is over now, because both Bolivia and Nicaragua have reached previously unattained levels of sovereign independence. Both countries have won widespread international recognition and support for their respective historic territorial claims based on unwavering respect of international law. For Bolivia, its claim of sovereign access to the sea is now a legitimate cause widely supported both across Latin America and in the rest of the world. For its part, Nicaragua has won respect worldwide for its determined principled assertion of its right to defend its territory via the instruments of international law. If Colombia and Chile do decide to defy the International Court of Justice, as their government representatives have stated that they will, that stand will place both countries beyond the pale of international law.

That in its turn would seriously threaten the authority of one of the few fundamental international institutions that have genuinely contributed to building a civilized world order. On another level, such a stance by two very important Latin American countries would negate the development of a truly multipolar world. In effect, the governments of Chile and Colombia are signaling the demise of equal respect for the sovereignty of all nations and elevating “might makes right”, once again, over the very significant achievements, despite everything, of modern international law as a force for progressive change.