By Taliyah Winn

The majority opinion of the International Court of Justice (the Court) ruled in Nicaragua v Colombia; Honduras and Costa Rica that Nicaragua must respect the validity of the Esguerra-Bárcenas Treaty signed during the United States’ occupation of Nicaragua. Two groups dissented arguing that the treaty was invalid, but disagreed on the correct outcome. The case examined the disputed San Andres Archipelago Territory between the two Member States, and a deeper philosophical question of whether a treaty signed under the control of an imperial power, in this case the United States, can be upheld. 

In 1928, Nicaragua and Colombia signed the treaty where the countries recognized sovereignty over disputed islands. The contested island, the San Andrés Archipelago, was recognized by Nicaragua as Colombia’s territory.

Nicaragua argued that this treaty was unethically decided during the country’s occupation under the United States, preventing them from bringing this to the Court’s attention earlier. The Nicaraguan Advocates cited the United Nations Convention on the Law of the Sea (UNCLOS) Articles 56 and 58 that dictate a country’s right to their Exclusive Economic Zone (EEZ). An EEZ is an area of the ocean, generally extending 230 miles beyond a nation’s territorial sea, within which a coastal nation has jurisdiction over both living and non-living resources.

The Colombian Advocates claimed that UNCLOS would not override the previous treaty and that the Court did not have jurisdiction to address the case. Additionally, Colombia questioned the standing of the Nicaraguan claims, referencing the 50 years of understood agreement to their treaties. Regarding the San Andrés Archipelago, Colombia said that it had stronger cultural and historical ties to the area than Nicaragua.

Costa Rica aimed to remain neutral toward the decision of the case, but advocated for Nicaragua’s recognition of Costa Rica’s maritime sovereignty. “Because Costa Rica has no military, we are totally at the liberty of international bodies like the Court of Justice to officiate disputes between states like ours and Nicaragua and Colombia and to keep our borders safe,” Advocate Jonathan Gibbons of Costa Rica said.

Advocate Jack Hoving of Honduras agreed with Colombia and recognized the 1928 treaty as valid. “This is an issue that extends far beyond Colombia and Nicaragua,” Advocate Hoving said. “This has long-lasting implications, potentially for not just the Caribbean and the South American states, but also for the world when it comes to treaties and international agreements.”

In their reading of the opinion, the majority of Justices ruled that the Court had jurisdiction over this case, but disagreed with the Nicaraguan Advocates’ claims of United States coercion during the signing of the treaty.

“The Majority Opinion of the International Court of Justice holds that the 1928 Treaty of Esguerra-Bárcenas and the 1930 Protocol of the Esguerra-Bárcenas Treaty are valid and should be applied to the nationality of the San Andreas Archipelago.”

Dissenting opinions:

Two dissenting opinions were presented in the Court, both denying the validity of the Esguerra-Bárcenas Treaty. The first argued that the colonial influence of the treaty was unignorable, signed by Vice President Escobedo of Guyana, Justice Wasinger of Poland, Justice Hartman of Malta and Justice Houston of Malta. “If we were to uphold the 1928 Esguerra-Bárcenas Treaty, we would essentially uphold the structure of colonization,” the dissenting opinion reads. “Something this court in good conscience can not do.” 

The other dissent was written and signed by Justice West of Ecuador who worried of territorial ramifications outside of the San Andrés Archipelago in the region if the treaty was deemed invalid and disagreed with the cultural ties argument Nicaragua made to the body. “I believe the 1928 Treaty to be invalid,” Justice West wrote. “I recognize that Colombia is asking for less than what it could be entitled to and believe the agreement is fair for the parties involved.”

After the decision, Nicaragua expressed disappointment with the ruling. “This treaty never should have been valid, should not have been declared valid, as it was signed under coercion of the United States military,” Advocate Nicoli Donohue of Nicaragua said. “Next is focusing more…on our own country… as a direct result of United States intervention; we do have a lot of political, economic and structural instability within Nicaragua that we want to deal with.” This disappointment will not prevent Nicaragua from continuing to move forward, despite the residual impacts of colonialism.