Hey, Associated Press! Colombia’s Withdrawal Really Does Diminish ICJ’s Authority

by Julian Ku

The Associated Press has a confusing and muddled account of the consequences of Colombia’s withdrawal from the Bogota Pact (American Treaty on Pacific Settlement), which had committed Colombia to the ICJ for disputes with other signatory states.  Here is where the AP account doesn’t make much sense (or is flat out wrong):

Legal experts, however, said [Colombian President] Santos’ announcement was unlikely, in practice, to diminish the court’s authority in any international disputes involving the South American nation.

International legal experts said [Colombian President] Santos’ announcement would not, in practice, exempt Colombia from the jurisdiction of the World Court, as it is recognized as the arbiter of last resort under customary international law and practice.

Uh, with all due respect to the AP’s international legal experts, that’s not quite right. By withdrawing from the Bogota Pact, Colombia is no longer committed to go to the ICJ to resolve disputes with other Bogota signatories (not that there are all that many).  Colombia has also not accepted the compulsory jurisdiction of the ICJ under the ICJ Statute.  Colombia is therefore free from being forced to go to the ICJ unless it has specifically agreed to do so in a particular treaty. And it has not always done so. For instance, it has never ratified the Optional Protocol to the Vienna Convention on Diplomatic Relations, which would have committed to compulsory dispute settlement before the ICJ.

So the ICJ’s authority over Colombia has diminished (although it was never great to begin with) and, if not exempt, Colombia is at least “free” of the jurisdiction of the ICJ in disputes with most other nations.  And I have no idea what the AP reporter means when he says that the World Court is recognized as “the arbiter of last resort under customary international law and practice.” The ICJ’s interpretations of customary international law are authoritative but not binding.

The AP report gets further confused when it quotes from Prof. Matthew Brotman of Pace Law School.

In my opinion, although he may say that they no longer are going to recognize the jurisdiction of the court, it doesn’t really matter,” Brotmann said.

“Countries can’t really pick and choose what parts of a treaty that they’ve already ratified they want to be held to.”

Reporters garble quotes all the time, which is probably what happened here.  Countries can denounce treaties that otherwise grant jurisdiction for dispute settlement. El Salvador did it under the Bogota Agreement and the U.S. did so with respect to the Consular Relations Convention’s Optional Protocol.  So the denunciation means Colombia can never be brought under the Bogota Treaty to the ICJ in a future dispute. That “matters”!

So, Associated Press, I think a re-write is in order.


One Response

  1. My guess is that the quotes related to the Aerial Herbicide case, of which the Court is already seized under the Pact of Bogotá, as well as the 1988 UN Drug Convention, and that the reporter misunderstood the quotes as relating to future cases as well.

    In fact, reporters seemed to be getting things wrong right and left yesterday. Reuters headlined its story about the Colombia denunciation “Colombia withdraws from pact required it to abide by ICJ rulings”, and, before updates, a Reuters article referred to Palestine’s bid for “semi-statehood” today (the current version now refers to an implicit recognition of the “sovereign state of Palestine”, so someone must have recognized the error and tacked the other way)!

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