Medellin v. Texas Goes Abroad? Colombia Says It Will Not Abide By ICJ Ruling

by Julian Ku

I’m a little late to this, but it is worth noting that President Santos of Colombia has announced that Colombia will “not abide” by an ICJ ruling awarding certain territorial and maritime rights to Nicaragua.  Colombia is not exactly going to simply ignore the ICJ ruling, its Foreign Minister says, but it sure sounds like it is going to do exactly that.

“At no time are we disregarding the jurisdiction of the court at The Hague,” Foreign Minister María Ángela Holguín told Caracol Radio on Tuesday. “We’re not disregarding the ruling either. We’re saying that our constitution does not permit its applicability.” Santos said that it is going to sue the Pact of Bogota at the country’s Constitutional Court, and that in the meantime the government will try to secure a new treaty with Nicaragua that satisfies both countries.

I think the Colombian FM is saying that the Pact of Bogota which gave compulsory jurisdiction to the ICJ is unconstitutional under the Colombia Constitution. And, presumably, that the Colombian Constitution is supreme to the Pact of Bogata within Colombia. And therefore, Colombia won’t carry out the ICJ judgment.  It’s Medellin v. Texas all over again!

None of this analysis would explain why Colombia is not in plain violation of its obligations under the Pact of Bogata and the UN Charter’s general obligation to abide by ICJ judgments. President Santos further announced that Colombia will “subscribe in a letter of protest along with other neighboring nations [Jamaica, Costa Rica, and Panama] that I will personally deliver to the United Nations’ Secretary General.” Gee, that will show them!

I think what is really happening here is that Colombia is refusing to comply with the ICJ ruling, but it is not going to admit it is doing so.  In the meantime, Colombia will pretend that there is some litigation or appeal going on somewhere that is delaying its obligation to comply (there is none) until Nicaragua gives up and makes a deal.  Since I seriously doubt Nicaragua has enough leverage to push Colombia to comply, this strategy just might work!

The larger lesson is that we often forget just how hard it is to get countries to carry out international court rulings, even when they have voluntarily agreed to the jurisdiction of those international courts.  It is really, really, hard, and it is more surprising when countries do comply than when they don’t.

Of course, it is entirely possible I’m misreading this somehow. I don’t speak Spanish, and I don’t exactly trust Google Translate.  But a video of the President Santos address is here.  Spanish-speaking readers should feel free to add their views to the comments.

http://opiniojuris.org/2013/09/11/medellin-v-texas-goes-abroad-colombian-president-says-country-will-abide-icj-ruling/

4 Responses

  1. This is not like Medellin!  Under the U.S. Const., art. VI, cl. 2, Texas remained bound by treaty law of the United States, since “all” treaties are expressly supreme law of the land.  Whether Texas complied is another story.  see http://ssrn.com/abstract=1484842
    Our Constitution did not obviate the obligation of the U.S. or of Texas per art. VI, cl. 2.

  2. The first sentence of Colombian president in this video is: “Colombians, all the citizens of our country are outraged at the failure of the ICJ”. So it seems you understood very well the situation, Julian. Colombian governmental just doesn’t want to apply the decision of the ICJ and is currently searching for excuses to justify it.

  3. ==We’re saying that our constitution does not permit its applicability.==
    Who cares? They comply with the rulling and are free to change the constituion if they wished.
     

  4. Many States in the international community have yet to understand that they cannot invoke provisions of their internal law as justification to breach international law.
    This is very worrying since such justification is always going to be the easy way out for these sort of issues.

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