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Resolving Nicaragua’s Legal Battle with Colombia

By: Javier Garay - @Crittiko - Dec 6, 2013, 9:18 am

EspañolA few months ago, I described the dangerous neighborhood that surrounds Colombia. Beyond unfriendly declarations or words against the country, there has been a different variety of attacks, including the new claim presented by the government of Nicaragua with the International Court of Justice (ICJ).

In 1928, through the Esguerra-Bárcenas treaty, Nicaragua affirmed Colombian sovereignty over some islands and maritime territory in the Caribbean Sea. However, with the arrival of the Sandinista Front for National Liberation in 1979, their leader, Daniel Ortega, repudiated this agreement unilaterally. From that moment on, Colombia allowed the conflict to fester, until Nicaragua sued the country in the ICJ in 2001. The sentence, released in November 2012, ratified Colombia’s sovereignty over the islands. It also, however, recognized a Nicaraguan claim on an important maritime region.

Not satisfied with this outcome, in September of 2013, Nicaragua returned to court with a second demand — requesting a new maritime demarcation for both countries and an extension of the territory previously received. This third demand from the Central American country drew on a new argument: Colombia was a threat to Nicaragua’s security, since it had not yet complied with the earlier ruling.

Beyond discussions of court processes, this demand reveals four points that merit examination.

First, it’s paradoxical that Colombia would be sued for supposedly threatening the security of Nicaragua, a country that has armed itself recently and has military cooperation agreements with Russia and the United States.

Second, in Latin America there’s still the belief that territory is a source of power. In other words, it’s a zero-sum game.

Third, rulers of this region believe that national wealth equates to having natural resources. Experience with prosperous nations such as Hong Kong and Singapore shows that these two views, on the sources of wealth and power, are incorrect.

Finally, this case reflects the problems of so-called public international law. Colombia, like other countries in the past, has dragged its heals in complying with the sentence. They consider the decision to be a result of political interests, not legal reasoning. Besides, there’s no credible threat that obliges them to comply with it in the future, because this court, like many other international institutions, does not have representation, recognition, or authority.

This latest case also reflects errors on the Colombian side. The Nicaraguan demand is due, for the most part, to the fact that the government of Juan Manuel Santos adopted a confused and naive strategy of “we comply, but not fulfill.” Nonetheless, in the constant and healthy criticism that characterizes intellectual and academic groups in the country, discussion has focused in on that error.

At this point, one does well to consider the broader motives at play. This confrontation turns out to be necessary for Nicaragua, at least the nation’s rulers, and not for the maritime territory itself. It offers a way for them to divert attention from their incapacity to fulfill their promises. They can continue with their rhetoric about the need to establish totalitarian regimes and show themselves as defenders of the helpless.

That being said, when confronted with this predicament, Colombia must rethink its foreign policy in two ways.

First, regarding its neighbors, Colombia must abandon the idealism of establishing long-term harmonious relations. Colombian governments must acknowledge that agreeing with Venezuela or Nicaragua on everything or giving them a voice in Colombian domestic affairs won’t avert their attacks. On the contrary, such weakness will invite further instability and conflict in the country.

This change does not mean military confrontations or breaking up diplomatic relations. Rather, it means creating a strategy that starts with a recognition of the reasons for the international actions of these regimes and the limits that diplomacy has toward good relations.

Second, Colombia must rethink its traditional adherence to public international law. It’s common to think that adherence is the best tool for weak countries, because it allows them to attain their interests. However, this demand from Nicaragua shows that many times this assertion isn’t true.

The idea will not turn the country into a pariah, by acting outside institutions of international law. On the contrary, a direct negotiation with Nicaragua’s government is urgent. Nonetheless, to be ready for future legal confrontations, that will happen, the country must overcome the belief that public international law is the best instrument for protection.

The best possible strategy against future attacks is to turn foreign policy into a means towards open trade and development. Countries with close economic ties — such as Canada and the United States — not only prosper in a mutually beneficial manner, they are less likely to go to war. Who wants to enter into a military conflict with his customers or suppliers?

The attacks from neighbors will continue and international law will be unable to protect the country. But with this proposed foreign policy — centered on free trade as the key guide or strategy — wealth creation can be easily achieved.

Translated by Marcela Estrada.

Javier Garay Javier Garay

Javier Garay is a professor at the Externado University of Colombia. He has written two books on international issues, such as development, after his doctoral dissertation focused on the same topic. Follow him on Twitter @crittiko and through his personal blog, Crittiko.