According to the reflections of (Wang y Xi, 2023) in the case of Nicaragua v. Colombia, the International Court of Justice (ICJ) issued a judgment on traditional fishing rights. On November 15, 2017, the Court accepted Colombia’s counterclaims regarding the artisanal fishing rights of the residents of the San Andrés Islands and the legality of Nicaragua’s system of straight baselines.
Previously, in 2012, the Court had determined that Colombia had sovereignty over the Archipelago of San Andrés in the southwestern Caribbean Sea. However, this sovereignty was given reduced weight when establishing the boundary between the two states. Nicaragua had full right to a 200 NM Exclusive Economic Zone (EEZ). This 2012 judgment was considered to have “reconfigured the maritime delimitation in the region” and potentially impacted those with interests in oil, gas, or fishing in the Caribbean Sea.
In this particular case, Colombia argued that the alleged traditional fishing rights of the Raizales community were based on local custom. Although some of the fishing areas where Colombian fishermen operated were within Nicaragua’s EEZ, Colombia claimed that the ICJ’s maritime delimitation ruling should not affect these rights. Colombia maintained that Nicaragua had recognized the survival of these rights despite the establishment of the EEZ, citing relevant acts and statements by the Head of State.
However, it was emphasized that these acts should not be interpreted as a defense of historical fishing rights. According to the interpretation of the relevant provisions of the United Nations Convention on the Law of the Sea (UNCLOS), the history of negotiation, and international jurisprudence, it was argued that traditional fishing rights, including artisanal rights, no longer existed as a result of the establishment of the EEZ regime.
Furthermore, in the analysis provided by (Wang y Xi, 2023), it is stated that Colombia was unable to demonstrate the existence of traditional fishing practices in Nicaragua’s Exclusive Economic Zone (EEZ) for many centuries. The tribunal analyzed whether the Colombian fishing practices met the criteria of being “traditional” by referring to practices that had been carried out for generations or a prolonged period. Colombia had the burden of proof to demonstrate that the residents of the San Andrés archipelago, particularly the Raizales people, had historically engaged in artisanal fishing in areas that fell within Nicaragua’s EEZ, and that it constituted an undisputed local customary norm or customary rights of access and exploitation. Colombia presented as evidence the sworn affidavits of 11 fishermen, but the tribunal approached them with caution, considering they were provided by one of the parties.
Upon review, the tribunal found no evidence to support Colombia’s claim that these fishing activities had taken place continuously for many decades or centuries. Some fishermen stated that they only fished outside the Colombian archipelagos a few times a year, while others claimed to have fished in these areas since the 1980s and 1990s. Colombia argued that the timeframe was insufficient to support its claim of local customs or customary artisanal fishing rights and that these activities did not constitute a long-standing practice in this case.
Moreover, the majority of fishermen stated that they worked in the waters around the Colombian archipelagos or within the Colombian territorial sea, not in the EEZ of Nicaragua. The 11 sworn statements presented by Colombia did not prove that the residents of the San Andrés Archipelago, especially the Raizal people, had carried out historical fishing activities in the traditional fishing grounds located in the waters that are now within Nicaragua’s EEZ over a significant period.
In addition to the fishermen’s sworn statements, Colombia referred to evidence from statements before the Committee of Experts on the Application of Conventions and Recommendations of the International Labour Organization and Resolution No. 0121 of the Colombian General Maritime Directorate of April 28, 2004. The General Confederation of Labour of Colombia (CGT) stated that the 2012 ruling had negatively impacted artisanal fishing, generating difficulties and fines for Raizal fishermen who had to cross Nicaraguan maritime territory. However, the Ministry of Labour of the Colombian government stated that the artisanal fishermen of the San Andrés Archipelago had not been affected by the 2012 ruling, although it did not provide evidence to support the claim that the artisanal fishing sites were located precisely in areas unaffected by the decision. These contradictory statements from official sources further weakened Colombia’s argument for the continued existence of traditional fishing rights.
Finally, the court examined an official report submitted by Colombia, which focused on the impact of the 2012 ruling on industrial fishing rather than artisanal fishing. The report described the locations of the traditional fishing areas where artisanal fishermen generally stayed close to the Colombian archipelagos and rarely entered Nicaragua’s EEZ. Based on this report, the court concluded that it further undermined the existence of long-standing traditional fishing practices by Colombia in Nicaragua’s EEZ.
In light of the reflections of (Wang and Xi, 2023), Nicaragua does not explicitly recognize Colombia’s traditional fishing rights in Nicaragua’s Exclusive Economic Zone (EEZ). According to Colombia, the Nicaraguan President Ortega has made statements recognizing the traditional fishing rights of the Raizal community in the waters that are now within Nicaragua’s EEZ. However, Nicaragua alleges that a fishing permit or authorization from Nicaragua is required for artisanal or industrial fishing by the Raizal community or the Archipelago.
Nicaragua suggests that certain mechanisms should be established for Nicaraguan and Colombian fishermen to operate in waters within Nicaragua’s EEZ, as described in the 2012 ruling. President Ortega proposes the creation of a commission to determine fishing areas for the Raizal people, an agreement between Colombia and Nicaragua to regulate the situation, or the establishment of a Nicaraguan consular section on the island of San Andrés to handle fishing permits for the Raizal community.
The Court does not find Colombia’s argument convincing that Nicaragua has recognized the right of the Raizal people to fish within Nicaragua’s EEZ without prior authorization.
It is questioned whether the unilateral declaration of President Ortega generates a legal commitment to grant rights to artisanal fishermen. Additionally, Colombia faces challenges in implementing the 2012 judgment, and Nicaragua is aware of the fishing problems involving the inhabitants of the Archipelago. Colombia expresses interest in reaching an agreement to face these challenges and adjust its internal legislation accordingly.
The Court concludes that Colombia has not proven the existence of artisanal fishing rights for the inhabitants of the San Andrés Archipelago, particularly the Raizales, in Nicaragua’s EEZ. Nicaragua has not recognized or accepted their traditional fishing rights, nor has it legally committed to respecting them through unilateral declarations by its Head of State. The Court suggests that an agreement be negotiated between the two states regarding the access of the Raizal community to fishing in Nicaragua’s EEZ.
According to the Court, other states are entitled to enjoy freedom of navigation in the EEZ based on customary international law and Article 58 of UNCLOS. As a result, the inhabitants of the archipelago, including the Raizales, have unrestricted access to Nicaragua’s EEZ, even when traveling between inhabited islands and fishing grounds on the Colombian side.
In the ICJ judgment on traditional fishing rights in Nicaragua v. Colombia, (Wang and Xi, 2023) adds that the majority of the Court supported the recognition of these rights, and only the ad hoc Judge McRae issued a dissenting opinion. This analysis focuses on three key reflections surrounding the judgment. First, the study examines the Court’s legal standards for determining the existence of traditional fishing rights. Scholars have identified two elements in identifying these rights: the continuous exercise of the rights over a long period of time and the recognition or acquiescence of the states involved. The Court adopted both criteria in the case, specifically considering the indigenous population of the San Andrés Archipelago, known as the Raizales, and their right to traditional fishing.
Regarding the temporal element, traditional fishing rights are established through prolonged use. Although the Colombian evidence provided fishermen’s testimonies spanning several decades, the Court considered the frequency of the fishing activities, described as “a few times a year,” to be insufficient to qualify as a “long-standing practice.” The Court required clear records of specific fishing activities, and the affidavits of Colombian fishermen were deemed inadequate due to the lack of contemporary evidence and the absence of a written record of their culture. The Court emphasized the need for sufficient proof of actual participation in fishing activities, and the admission of evidence may require flexibility when considering its probative value.
Judge Xue, in the context of the Nicaragua v. Colombia case, confirmed the view that customary international law recognizes and protects traditional fishing rights. The negotiating history of UNCLOS also indicates that it was not intended to resolve the relationship between historic rights and the regimes of the EEZ and the continental shelf.
Therefore, customary international law may still address traditional fishing rights.
Traditional fishing is characterized by artisanal methods practiced for centuries. While Nicaragua argues that UNCLOS explicitly preserves the traditional fishing rights of neighboring states in the waters of archipelagic states, Judge Xue disagrees and considers it a special regime confined to archipelagos.
According to Judge Xue and supported by international jurisprudence, pre-existing rights continue to exist unless treaty law or new customary law explicitly negates them. UNCLOS does not exclude the existence of traditional fishing rights, and state practice recognizes these rights regardless of treaty rules.
The South China Sea Arbitral Award, which dealt with historical rights, is subject to controversy. Some commentators agree with the Tribunal’s interpretation that only rights expressly mentioned in UNCLOS may continue to exist, while others argue that historical rights governed by general international law are not in conflict with UNCLOS.
The relationship between historical rights, including traditional fishing rights, and the EEZ regime under UNCLOS remains a debated topic in international adjudication. Recent cases and positions taken by states indicate that these debates are likely to continue in the future. International courts and tribunals play a crucial role in safeguarding the peaceful use of the oceans among all states, whether they are party to UNCLOS or not.
(Wang and Xi, 2023) state that scholars in the field of the law of the sea have explored how international human rights principles apply to maritime affairs. The recognition of the rights of indigenous peoples to their traditional resources, as set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), is an important factor in understanding the perspective of the Raizales’ fishing rights.
Judge MacRae objected to the Court’s decision on traditional fishing rights and argued that the situation of the Raizales could be treated similarly to that of indigenous peoples. He referred to statements made by President Ortega of Nicaragua, who described the fishing rights of the Raizales using language typically associated with indigenous rights. Judge MacRae considered this recognition by President Ortega to support the Raizales’ claim to continue fishing in their traditional manner, drawing inspiration from jurisprudence recognizing the natural rights of indigenous peoples.
However, the Court’s decision did not explicitly address the claim of indigenous rights in Colombia and instead focused on traditional fishing rights. The ad hoc Judge McRae recognized several problems with this decision. The Court did not establish the required standards for recognizing traditional fishing rights, and it did not consider the link between the Raizales’ claims and their right to fish in the Exclusive Economic Zone (EEZ).
The Court hoped that the involved countries would negotiate an agreement that specifically addressed the fishing activities of the Raizales, rather than applying to all inhabitants of the San Andrés Archipelago.
While Judge MacRae’s argument focused on the Raizales as an indigenous group, the Court emphasized that other residents of the archipelago also had the same need for fishing rights within Nicaragua’s EEZ. Recognizing the Raizales as an indigenous group might not fully address the demands of all fishermen in the region. This complexity arises from the potential identification of multiple groups with fishing rights, which imposes a burden on the Court.
The relationship between fishing rights and indigenous rights has been widely debated, reflecting the interactions between different legal frameworks concerning territorial boundaries and the rights of indigenous peoples. Some scholars argue that the right to fish is inherent to indigenous culture and advocate for the recognition of fishing rights for specific indigenous groups, such as the Saami people in Norway, the Māori in New Zealand, and the Chagossians in the Chagos Archipelago, based on their property rights under UNDRIP.
Scholars of the law of the sea suggest that coastal states must exercise their authority over resource rights in a manner consistent with their obligations under international human rights law with respect to indigenous peoples. Sociocultural scholars also highlight the need to consider environmental and human dimensions when resolving maritime disputes and protecting coastal livelihoods and marine ecosystems.
In this context, the Court’s proposal that the parties negotiate an agreement on fishing access in Nicaragua’s EEZ must be seriously considered. Furthermore, regional efforts for common enforcement, fisheries policy, and ecosystem-based management approaches can contribute to the sustainability of Caribbean fisheries.
Finally, (Wang and Xi, 2023) concludes that the 2022 judgment between Nicaragua and Colombia aimed to address the bilateral fishing dispute and the controversy surrounding traditional fishing rights. However, certain concerns arise from the judgment. Firstly, the Court’s strict focus on the temporal element led to the rejection of Colombian traditional fishing practices dating back several centuries. While contemporary fishermen were unable to provide evidence from that period, the Court did not specify the conditions for meeting the time requirement. Judge Xue suggests that some flexibility regarding the duration of evidence and procedures may be necessary.
Secondly, the Court refrained from clarifying the relationship between traditional fishing rights and the Exclusive Economic Zone (EEZ) regime under the United Nations Convention on the Law of the Sea (UNCLOS). Although the ICJ missed the opportunity to interpret this controversial issue, customary international law still recognizes traditional fishing rights independent of the EEZ regime. Leading scholars argue that a state may possess rights beyond those specified in UNCLOS if they are derived from pre-existing treaties or customary international law and align with UNCLOS.
Traditional fishing rights fall within this category and must be respected and preserved even under UNCLOS.
Third, the Court avoided addressing the Colombian claims of traditional fishing rights as indigenous rights, particularly for the Raizales. While Judge ad hoc McRae supported the Colombian claim, it remains unclear how the indigenous status of other inhabitants of the San Andrés Archipelago will be addressed. Given the impact of climate change-induced sea-level rise on the indigenous communities of the islands, both the Raizales and other minority groups in the archipelago are likely to be affected in the future. Although some scholars advocate for applying human rights norms to the law of the sea, the Nicaragua v. Colombia judgment indicates that the Court takes a cautious approach on this matter.
Wang J. and Xi Q. (2023) Reflections on theNicaragua v. Colombia case (2022): From the perspective of traditional fishing rights POLICY AND PRACTICE REVIEWS, Front. Mar. Sci., 02 March Sec. Marine Affairs and Policy Volume 10 – 2023 |
