The Increasing Authority of the International Court of Justice in Latin America and the Caribbean in Light of the Maritime Dispute of Nicaragua v. Colombia

Abstract

This article seeks to empirically examine a current topic of interest for the Latin American and the Caribbean region. It focuses on analyzing the evolution of the International Public Authority (as conceptualized by von Bogdandy et al.) of the International Court of Justice (ICJ) in this region from a constructivist perspective. The text explores how ICJ rulings aim to reshape the international and legal relations of states in the region by examining three specific factors: ICJ procedures, the legal qualification of its decisions, and its mandate. Additionally, it analyzes the case study of Nicaragua v. Colombia regarding the territorial and maritime dispute in the Western Caribbean and the continental shelf, which unfolded between 2001 and 2023. This article aims to shed light on the present and future of the ICJ in the region within the context of the fragmentation of public international law and the proliferation of international courts.

It addresses a novel and relatively unexplored topic in the existing literature, aiming to promote an emerging field of research on Public International Law and Latin American international relations from a multilevel perspective. Moreover, it seeks to bridge the gap between the fields of Public International Law and International Relations, demonstrating how the evolution of these disciplines —traditionally developed in the Transatlantic sphere— is beginning to establish new hubs of growth in the Global South, grounded in a constructivist and functionalist perspective of International Relations. In this context, the debate surrounding the international jurisdiction of the ICJ in the Latin American and Caribbean region (LATAMC) gains significant relevance. This region has been key in promoting the jurisdiction of the ICJ, as well as being active before the Court since its creation. Therefore, it is pertinent to examine how the participation of these states has affected the authority of the ICJ.

This article explores the role of the ICJ in Latin America under the premises of the concept of International Public Authority by von Bogdandy et al. (2008) and De Facto Authority by Alter et al. (2016). These approaches help establish the parameters within which it is understood that the de jure authority of international courts finds its raison d'être in its transformation into de facto authority, one that can influence the actions of other actors in international society from a multilevel perspective, thus disregarding the need to appeal to a sociological criterion of legitimacy. The proposed analysis, therefore, aims to demonstrate whether the ICJ possesses authority from a multilevel perspective concerning other international agents in a case that is difficult to prove in the Latin American region. This research is framed within the approaches of constructivism and functionalism in International Relations. The first section of this article discusses the theoretical foundation for analyzing the ICJ's international public authority. Secondly, it specifically explores the ICJ's international public authority in the Latin American region through three factors: the ICJ's procedures, the legal qualification of ICJ decisions, and the ICJ's mandate. Finally, the article examines the case study of the Nicaragua v. Colombia dispute over the territorial and maritime conflict in the Western Caribbean and the continental shelf that developed between 2001 and 2023. Methodologically speaking, this dissertation embraces a multi-method approach. It involves a combination of quantitative and qualitative tools and analysis techniques from different methodological tradition built on the background of a deductive process. In this line, the article is divided into three parts with different methodological approaches and sources depending on the specific objective to cover.

This article concludes that the ICJ exercises international public authority in the region of Latin America and the Caribbean. When examining procedural factors, legal qualifications and mandate, it is plausible to affirm that the ICJ effectively exercises international public authority in the region. In particular, the Western Caribbean has emerged as a hub for initiatives seeking the peaceful resolution of disputes through the ICJ's proceedings. The potential influence of ICJ decisions on the legal situation of states in the region under study appears consistent, as 40 out of the 199 instruments issued by the Court since its establishment have involved a state in the region. This is particularly evident in judgments on the merits, where 18 of the total 70 cases have involved a state in the region under scrutiny. Regarding the ICJ's mandate, from a general perspective, the LATAMC region has 11 active unilateral declarations, which is a significant number compared to other macro-regions like Asia or Oceania. Additionally, the 1948 Bogotá Pact reinforces this mandate granted to the ICJ in the region. From a specific mandate perspective, Latin American countries are highly active in appearing before the ICJ in its contentious jurisdiction. Of the 156 cases opened before the Court, LATAMC countries have participated as claimants or respondents on 66 occasions, demonstrating a notable dynamism in the region. This active participation has intensified in recent decades, seemingly due to the dynamics among different states in the Western Caribbean, with Nicaragua being the focal point of major disputes in the region, especially after the landmark case of military and paramilitary activities in the 1980s. Regarding the situation of Nicaragua and Colombia in the Western Caribbean before the ICJ, the situation has been quite turbulent in recent decades. Nicaragua has strengthened its position in the region, demonstrating confidence in the ICJ's international jurisdictional system. Meanwhile, Colombia has faced a complex and uncomfortable situation, trying to balance the defense of its international legal values with its local and regional interests following ICJ rulings. As a result of this situation, Colombia has struggled to adapt to the new legal reality. In addition to withdrawing from the 1948 Bogotá Pact, Colombia has avoided directly rejecting ICJ decisions, instead inefficiently using domestic strategies to delay compliance with the rulings. The 2023 ruling in favor of Colombia regarding the extended continental shelf provided some relief to Colombia’s and Nicaragua’s intertwined interests in the Western Caribbean. However, the 2012 and 2022 rulings have been key in altering bilateral relations between the two states and, consequently, their relations with other states in the region. This scenario suggests that, for now, the ICJ exercises limited authority in this specific situation. Nevertheless, the trend could evolve towards intermediate or full authority in the future, should the full transfer of sovereignty over the territory lost by Colombia to Nicaragua be confirmed in the years to come.