Colombia-Nicaragua ICJ Case Tests Region's Crisis Resolution Mechanisms

By Michael Shifter & Cameron Combs
World Politics Review, December 5, 2012

Latin America prides itself on being a peaceful region -- and with good reason. There has not been a military conflict between states for many years, and peace talks between the Revolutionary Armed Forces of Colombia (FARC) and the Colombian government may finally end the hemisphere’s only ongoing internal armed conflict. No other area of the developing world can boast such a record.

It is surprising, then, that border disputes continually bedevil the region. Many of these tensions remain unresolved, and when they surface, as in the example of the Nov. 19 ruling by the International Court of Justice on the case between Colombia and Nicaragua, there can be huge, often unexpected, ramifications. In this case, originally presented by Nicaragua in 2001, the court decided that the contested Caribbean islands making up the San Andrés archipelago belong to Colombia. But the court went on to greatly expand Nicaragua’s maritime rights around the islands.

The ruling was bemoaned in Bogota and celebrated in Managua. Having never before exercised control over the territory in question, the Nicaraguans had nothing to lose and rallied behind their usually divisive Sandinista president, Daniel Ortega, after the decision. Colombians also reacted strongly with accusations that The Hague’s judges were too political, while at the same time pointing fingers at Colombian politicians. The government’s perceived failure to prevent a humiliating blow to national pride has united Colombians of all stripes in collective disappointment and anger.

After a good deal of waffling, the government of Colombian President Juan Manuel Santos had little choice but to abide by the court’s decision. The consequences of not doing so would have been very serious, especially in light of Colombia’s recent success at enhancing its regional and international standing. In this regard, it is notable and regrettable that former Colombian President Álvaro Uribe, appealing to nationalist sentiment, has taken such a strong stand against abiding by the court’s decision.

Meanwhile, Santos has been subject to enormous public pressure at home. Some 85 percent of Colombians believe that the ICJ ruling should be ignored, even if this means military confrontation with Nicaragua, while his popularity decreased 15 points overnight. To prevent further rulings that might undermine national interests, the president decided that Colombia should withdraw from the Bogota Pact, an agreement recognizing the court’s jurisdiction in settling territorial disputes among Latin American nations. This move, while unfortunate and not helpful to Colombia’s global standing, is not altogether surprising. A politically weakened government is bound to affect Santos’ ambitious national agenda, including the Havana peace talks with the FARC in the coming months.

The court’s ruling was also noted throughout the region and in Washington. Peru and Chile have been following the situation with particularly keen interest, given the two nations have a pending case before the court over maritime rights with a decision expected in mid-2013. These neighbors have become increasingly interconnected, especially in economic terms, as bilateral trade and investment have boomed. As a result, leaders on both sides are taking steps to ensure that the court’s decision is not disruptive and is calmly received.

The San Andrés case and its continuing, complicated fallout also reveal the lack of available conflict resolution alternatives on a regional level. The Organization of American States, which largely focuses on monitoring elections and human rights, does not have the required infrastructure or enforcement mechanisms to adequately handle such situations. The consequence has been that Latin American governments typically turn to the United Nations and the ICJ as the preferred multilateral bodies for conflict resolution.

New regional mechanisms, however, are being tested as challenges emerge. The Union of South American Nations (UNASUR), created in 2008 by the South American countries and led by Brazil and Venezuela, has acted in a number of cases to help defuse bilateral tensions, notably between Colombia and Venezuela in 2008. UNASUR also acted in response to what it regarded as an interruption of democratic rule in Paraguay after the impeachment of President Fernando Lugo on June 22, expelling the country from the regional body until a new government is in place. But UNASUR has been widely criticized for failing to give due process to the Paraguayan government, raising the question of whether the body has become too politicized to effectively serve as a regional broker in resolving conflicts.

For the United States, which is not part of UNASUR and increasingly disengaged from the OAS, the Colombia-Nicaragua situation has been treated as a bilateral issue. However, in light of Nicaragua’s expanded maritime rights, it will be important for Washington and Managua to develop mechanisms for greater cooperation to deal with drug trafficking in the Caribbean. Recognizing its limited capacity to handle such a challenge, for instance, Nicaragua moved quickly to authorize U.S. drug patrols in its newly acquired waters late last week.

The court’s ruling has set in motion reactions and consequences that will weigh heavily on peace and stability in the hemisphere. Colombian officials have reiterated the critical role of diplomacy moving forward, particularly when forging a relationship with Nicaragua that supports those affected by the court’s decision, such as the fishermen living on the San Andrés islets.

Taking a step back, the case also revealed the need for sufficiently credible and effective multilateral mechanisms in the Americas to resolve such conflicts when they do develop, and to ensure that their impact on associated transnational problems such as drug trafficking are not met with such ad-hoc, improvised responses.